Attorney General in and for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9 (5 February 2010)

Last Updated: 8 February 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Attorney General in and for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9


JURISDICTION:


FILE NUMBER(S):
2006/262000

HEARING DATE(S):
11 May 2009 to 20 May 2009, final submissions 18 December 2009

JUDGMENT DATE:
5 February 2010

PARTIES:
Attorney General in and for the State of New South Wales (Plaintiff)
Lucy Patricia Klewer (Defendant)

JUDGMENT OF:
Harrison J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
K G Oliver (Plaintiff)

SOLICITORS:
I V Knight, Crown Solicitor (Plaintiff)


CATCHWORDS:
PRACTICE – Supreme Court Act 1970 s 84(1) – where defendant engaged in sixty separate proceedings or applications against manifold defendants in the Local Court, the District Court, the Supreme Court, the Court of Appeal, the High Court and elsewhere – proceedings to restrain - whether defendant habitually and persistently and without reasonable cause instituted vexatious legal proceedings – orders made restraining the defendant from commencing or continuing any legal proceedings without the leave of the Court.

LEGISLATION CITED:
Bankruptcy Act 1966 (Cth)
Companion Animals Act 1998
Consumer, Trader and Tenancy Tribunal Act 2001
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Evidence Act 1995
Impounding Act 1993
Land and Environment Court Act 1979
Mental Health Act 1990
Social Security Act 1991 (Cth)
Supreme Court Act 1970
Supreme Court of Judicature (Consolidation) Act 1925 (UK)
Trade Practices Act 1974 (Cth)
Vexatious Proceedings Restriction Act 1930 (WA)
Victims Compensation Act 1996

CATEGORY:
Principal judgment

CASES CITED:
Armidale City Council v Connell [1997] NSWLEC 127
Attorney General v Bar-Mordecai [2005] NSWSC 142
Attorney-General v Michael [1999] WASCA 181
Attorney-General v Van Reesema (1986) 43 SASR 170
Attorney General v Vernazza [1960] 1 QB 197
Attorney-General v Wentworth (1988) 14 NSWLR 481
Attorney General for the State of Victoria v Horvath, Senior [2001] VSC 269
Attorney-General for the State of Victoria v Weston [2004] VSC 314
Attorney General for New South Wales v Solomon (1987) 8 NSWLR 667
Attorney General in and for the State of New South Wales v Bhattacharya [2003] NSWSC 1150
Attorney General in and for the State of New South Wales v Klewer (No 2) [2009] NSWSC 454
Attorney General of New South Wales v Klewer [2003] NSWCA 295
Attorney-General (NSW) v Betts [2004] NSWSC 901
Crown Solicitor for the State of Western Australia v Michael (Supreme Court of Western Australia, Wheeler J, 30 July 1998, unreported)
Donnelly v Capricornia Prospecting Pty Ltd [1999] NSWLEC 39; (1999) 102 LGERA 310
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478
Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303
Lohe v Bird [2004] QSC 23
Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302
Public Trustee v Gittoes aka Caldar [2005] NSWSC 373
Ramsey v Skyring [1999] FCA 0907; (1999) 164 ALR 378
Re Cameron [1996] QCA 37; [1996] 2 Qd R 218
Re Chaffers; Ex parte Attorney General (1897) 76 LT 351
Valassis v South Sydney City Council [1996] NSWLEC 232; (1996) 92 LGERA 275
Walton v Klewer [2005] FMCA 878

TEXTS CITED:


DECISION:
Until further order:
1. Order that the defendant shall not, without the leave of the Court, institute any legal proceedings in any Court.
2. Order that any legal proceedings instituted by the defendant before the making of order (1) shall not be continued without the leave of the Court.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

HARRISON J

5 February 2010

2006/262000 Attorney General in and for the State of New South Wales v Lucy Patricia Klewer

JUDGMENT

1 HIS HONOUR: The Attorney General seeks two orders pursuant to s 84 of the Supreme Court Act 1970. First, that Ms Klewer not institute any legal proceedings in any court without leave and secondly, that if she does so before that order is made, the proceedings not be continued by her without leave. All of the factual material referred to below upon which the Attorney General relies in pursuit of these orders is either referred to in, or annexed or exhibited to, the affidavit of Yi Chen sworn on 5 April 2006 and the affidavit of Jessica Brown sworn on 8 May 2007. Ms Klewer required neither deponent for cross-examination and took no objection to any part of their evidence.

Some preliminary matters

2 On 25 November 2009 Ms Klewer sent a notice of motion to my chambers by fax in which she sought the following orders:

"1. That the main proceedings be permanently stayed and dismissed.

Or in the alternative;

2. The summons dismissed but the defendant gives an undertaking to the court that she notifies the plaintiff in the event she commences fresh proceedings in any NSW court or tribunal.

3. Any other order the Court deems fit."

3 This was not the first such application made by Ms Klewer. She has made other applications in identical or cognate terms from time to time during at least the period since this matter first came before me for hearing in early 2008. As far as I can determine, the earliest such motion was actually filed as long ago as 22 November 2006. Similarly framed motions seeking either or both a stay or dismissal of the whole proceedings were also filed by Ms Klewer on 30 November 2006, 1 June 2007, 28 November 2007, 11 and 12 December 2007, 26 May 2009 and 18 August 2009. In essence, Ms Klewer has repeatedly sought what amounts to summary disposal of the Attorney General's claim for relief against her in the proceedings. Ms Klewer ultimately filed her latest motion in a regular way on 7 December 2009. In due course the application came before McDougall J on 19 January 2010 as the vacation judge, when his Honour took the view that I should hear it.

4 In making these applications, Ms Klewer has had scant, if any, regard for the rules or procedures of this Court, and even less regard for the need to present a case supported by evidence to establish it according to the law. In essence, Ms Klewer's motion appears to be predicated upon the unestablished contention that the Attorney General's case against her is hopeless, and that she can demonstrate it by simply saying so. This attitude has led Ms Klewer on numerous occasions with considerable associated indignation to berate me for having taken the not incautious approach of treating these applications as submissions in opposition to the case that is put against her. I have attempted consistently to adopt that course with respect to Ms Klewer's similar applications in the past and I intend to take the same approach in response to the latest one.

5 I am confirmed in the wisdom of that approach by what Ms Klewer has somewhat revealingly included in her supporting affidavit. The following paragraphs are instructive:

"1. On 30/10/09, his Honour, Harrison J made orders that I prepare and file submissions in response to the plaintiff's submissions by 18 December 2009.

2. I later realised that my defence case requires evidence given by way of oral evidence and documentary evidence. I have informed the Court in that regard on previous occasions."

6 It is neither convenient nor necessary presently to set out the long and troublesome history of these proceedings to date. It is sufficient to observe that Ms Klewer has never come to terms with the fact that she would ultimately have to confront the Attorney General's application for the orders that are sought. She has assiduously attempted to avoid doing so by manifold applications of every type including seeking adjournments or venue changes for no good purpose and without proper support. Earlier judgments that I have delivered, as well as those of other judges in this Court and elsewhere, bespeak recognition of this attitude in high volume. Ms Klewer's latest edition of the application is an example of this. She has had since the commencement of these proceedings more than sufficient time within which to assemble and file any relevant evidence on the substantive issues that she wished to rely on but she has not done so. Ms Klewer has instead directed the vast bulk of her not inconsiderable energies to irrelevant matters, with the apparent intention of promoting largely repetitive and unmeritorious interlocutory points at the expense of the main issue. The two-week hearing conducted before me, in Coffs Harbour in May 2009 to suit Ms Klewer's convenience, was significantly affected by just such an approach. She cannot now reasonably expect that she will be able to forestall the final determination and adjudication of the principal proceedings again in order to prepare a defence that she has ignored to date.

7 I should also record that Ms Klewer has, at least in the time of my involvement with this action, chosen regularly to engage in a stream of correspondence by fax to me directly or most usually to my Associate, and to call my chambers regularly by telephone, at almost every critical stage in the proceedings or more significantly when Ms Klewer finally appreciated that she needed to respond in some way to steps that the Attorney General was taking or contemplating to advance the matter. This has created considerable disruption and confusion to the orderly and traditional conduct of adversarial legal proceedings.

8 The latest manifestation of this trend occurred on 3 February 2010. My Associate wrote to the parties on 2 February 2010 to inform them that Ms Klewer's latest application for a permanent stay or dismissal of the proceedings, referred to at [2] above, would not be allocated any court time but would be dealt with in the course of these reasons. This resulted in a response from Ms Klewer by fax in the following terms:

"It would seem to me that you were never prepared to allow me such justice. Please do not proceed with handing down judgment on Friday [5 February 2010], it will shame my children in a huge way. If you have a heart please allow my application. I always told you the truth. If I were to die before Friday can you promise you will not proceed with your decision?"

9 One side effect of this approach is that three lever arch folders of predominantly handwritten correspondence, which for the most part has not entered the contest in an easily understood or traditional way, now augment the file. Ms Klewer has on many occasions required instantaneous responses to this material in circumstances where the attitude of the Attorney General has not always been easy to establish in a similar time frame. The most recent application for orders permanently staying the proceedings originally came to my attention in this unorthodox way. It became administratively impossible to keep track of what documents Ms Klewer intended to file as process and to rely upon in support of one or other of her many applications, and those that she intended only to be sent as correspondence. Interlocutory hearings regularly conducted by telephone hook up to Ms Klewer's home number in Coffs Harbour in order to suit her convenience became the rule rather than the exception. Documents that Ms Klewer wished to rely on or tender therefore invariably arrived in my chambers by fax on the morning of the hearing or occasionally on the previous evening and in circumstances where the Attorney General's attitude to their use in the proceedings could not always be known beforehand.

10 I have formed the view that Ms Klewer's latest application that the proceedings be summarily dismissed or permanently stayed is misconceived and that any further delay in the final disposition of this case for the purpose of considering it is unwarranted. I also consider, having regard to the history of this matter, that her reinvigoration of this application would amount to an abuse of the process of the court if it were intended by Ms Klewer that I should deal with it otherwise than as a submission by her in aid of her defence of the principal proceedings. That is how I propose to treat it.

11 I also note that on 30 October 2009 when I ordered that Ms Klewer file her final written submissions by 18 December 2009, she effectively acknowledged and accepted that the proposed date was suitable to her in all of the circumstances. The subsequent affidavit material quoted earlier, in which no complaint is raised about what was proposed, is a tacit recognition by Ms Klewer of that fact. Moreover, the transcript of 30 October 2009 contains a very instructive and compelling summary of what I intended should occur in this litigation, and by when, in order that I could be in a position to deliver my judgment today as indicated. It included the following exchanges:

"HIS HONOUR: Mrs Klewer, I am going to go back over what happened in Coffs Harbour.

DEFENDANT: But, it does have to happen.

HIS HONOUR: It does not have to happen. This is adversary litigation and it came to an end in Coffs Harbour and I should have delivered my judgment by now but for a series of applications faxed to my chambers, which I have taken account of, having regard to the fact that you have been unrepresented. But the time has come now for the matter to be determined once and for all.

DEFENDANT: I know your Honour wants to get rid of it, but unfortunately my health was an issue--

HIS HONOUR: Ma'am, I am not going to talk about your health any more. You made an application about that and you know what the outcome of that was. You did not appeal against my decision. My hands are tied on that issue, do you understand?

*****

HIS HONOUR: Just hold on. I have indicated that I will be proposing to deliver my judgment in this matter, subject to whatever happens otherwise today, on 5 February next year. Are you now applying to, or indicating that you would like to, put on some written submissions before then?

DEFENDANT: I have to.

HIS HONOUR: It is not a question of whether you have to, want to, or need to. Is it your contention that you would like to do so?

DEFENDANT: All right. Yes.

HIS HONOUR: You would?

DEFENDANT: Yes. Thank you.

HIS HONOUR: By when would you want to put those submissions on?

DEFENDANT: When is the latest you would allow me to, only because I've got commitments to family, so I can only do them in dribs and drabs, and hopefully--

HIS HONOUR: I do not want dribs and drabs.

DEFENDANT: No. Here.

HIS HONOUR: I see. I would want them by no later, assuming I come to the view that you should do that, by no later than the last day of term this year, which will be 18 December. So, they would have to be on by 18 December.

DEFENDANT: All right."

12 It was in these circumstances that I formed the view I should proceed to formulate and finally deliver my reasons for judgment on the substantive issues without further delay beyond 18 December 2009.

Proceedings commenced by Ms Klewer relied upon by the Attorney General

13 Ms Klewer instituted twenty-two separate proceedings in the Local Court. Twelve were dismissed, three were withdrawn, six were withdrawn and dismissed and one was stayed. None of these proceedings resulted in a decision in her favour.

14 Ms Klewer instituted seventeen proceedings in the District Court. One only out of seven resulted in the quashing of a criminal conviction. One was withdrawn on the basis of undertakings given without admission. The remaining fifteen were either dismissed or resulted in judgments for the opposing parties.

15 Ms Klewer instituted eleven separate proceedings in the Supreme Court. None resulted in a decision in her favour. Eight were determined adversely to her and three were discontinued.

16 Ms Klewer instituted ten proceedings in the Court of Appeal. None resulted in a decision in her favour. Six were dismissed, three were discontinued or were deemed to have been discontinued, and one appears currently to remain inactive.

17 Accordingly, of the sixty separate proceedings instituted by Ms Klewer, she was partially successful in one, and obtained a compromise in another. In the remaining fifty-eight proceedings relied on by the Attorney General, Ms Klewer was unsuccessful, either because the proceedings were decided against her, dismissed, struck out as incompetent, discontinued, or never served. In most instances the proceedings were dismissed with costs.

18 In addition to these proceedings, Ms Klewer has also filed thirteen notices of motion, which can be considered as coming within the definition of proceedings for the purposes of s 84. In this respect in Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 Yeldham J said the following at 488:

"Section 84 of the Supreme Court Act 1970 is clearly directed to the removal of abuses of the processes of the Court and of hardship to persons against whom vexatious proceedings are taken. While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form."

19 Whealy J approved that statement in Attorney General in and for the State of New South Wales v Bhattacharya [2003] NSWSC 1150 at [7].

20 These are the very many proceedings that have been commenced by Ms Klewer upon which the Attorney General relies in support of his claim for orders against her pursuant to s 84(1). The extensive written submissions filed by the Attorney General refer to these numerous proceedings in minute detail. They draw upon the equally extensive affidavit material filed by him that annexes or exhibits what appears to be every, or almost every, significant and relevant document that has been produced, or describes or refers to every, or almost every, significant and relevant event that has occurred, in the course of these numerous sets of proceedings.

21 Ms Klewer has been in possession of these submissions and the supporting affidavits for some considerable time. They were in her possession well before the hearing in Coffs Harbour in May 2009. She has chosen neither to file evidence to contradict the material tendered by the Attorney General nor has she taken any valid objection to it. It seems to me therefore to be an appropriate course to adopt that I incorporate the Attorney General's submissions and extracted evidentiary material, with appropriate but limited modification, in these reasons in order to facilitate Ms Klewer's understanding of the way that I have approached consideration of the case. Unfortunately that has meant that more, rather than less, detail of the various proceedings under consideration has had to be included in these reasons. That has inevitably and regrettably meant that this judgment is longer than it might ideally have been in different circumstances. For example, a judgment could have been produced more efficiently if Ms Klewer had filed her own evidence and written submissions, or at least responsive oral submissions, which refined or identified the real issues in dispute.

22 The relevant proceedings are hereafter considered in jurisdictional categories. Because there is a degree of overlap between a number of the various sets of proceedings, including appeals to higher courts, some inevitable repetition and duplication arises in what follows. It is also convenient to refer to these proceedings simply by plaint number alone, as the reference to the substance of the matters sufficiently identifies them.

Proceedings instituted in the Local Court

Proceedings 165 of 1994

23 On 1 June 1994 Ms Klewer laid an information charging Mark Wertz with entering enclosed lands. Ms Klewer prosecuted the charge on 12 July 1994 and in the course of the hearing it transpired that the correct defendant should have been John Wertz, the father of Mark Wertz. Ms Klewer declined to withdraw the three charges and they were subsequently dismissed. Ms Klewer was ordered to pay Mark Wertz's costs.

Proceedings 105 of 1995

24 On 22 June 1995 Ms Klewer prosecuted Andrew Martin, a police officer, for assault. Ms Klewer failed to convince Magistrate Doring beyond reasonable doubt that Mr Martin used excessive force in the course of arresting her for traffic offences, and the information was dismissed with costs. Ms Klewer's legal representative submitted that she was in receipt of social security payments and the Magistrate gave Ms Klewer three months to pay those costs. The Magistrate said, in the course of dismissing the proceedings, that:

"It is clear from [Ms Klewer's] own evidence that she didn't fully co-operate with the Constable or comply with her obligations under [section] 5 of the Motor Traffic Act. In cross-examination she agreed Martin had asked her for her full name and place of abode and that she refused to give such. . . Obviously even on [Ms Klewer's] own evidence [she was] not complying with the obligation placed upon a driver under [section] 5 of the Motor Traffic Act . . .

*****

It was then after some further conversation that [Ms Klewer] made the unilateral decision to drive off which she did. . . . So it's open to suggest it was not unreasonable for the Constable to seek there and then to continue with the matter by, in fact, following Ms Klewer as he did.

*****

If Constable Martin's evidence is accurate [Ms Klewer] at the shopping centre was completely uncooperative."

25 A subsequent appeal to the District Court against the Local Court costs order was dismissed with costs. A further appeal from the decision of the District Court to the Court of Appeal was also dismissed with costs.

Proceedings 17/96 of 1994

26 This was an application by Ms Klewer for an apprehended domestic/personal violence order against Mark Wertz. In the information and summons dated 26 July 1994 signed by Ms Klewer she alleged that Mr Wertz had:

"... on numerous occasions damaged the nature strip in front of [her] property. [He] has thrown excess timber, cement and soil onto [her] property in the course of his constructing a retaining wall. [He] interferes with [her] privacy by asking questions of persons on [her] property. [He] also has taken a photo of [her] whilst on her property."

27 Ms Klewer also prosecuted Mr Wertz for entering enclosed lands and both matters were heard together. At the conclusion of the evidence called by Ms Klewer, Mr Wertz submitted that no prima facie case had been established. In relation to both matters Magistrate Doring was not satisfied that the evidence before him reached the standard required and dismissed them. In relation to the charge of entering enclosed lands Magistrate Doring noted as follows:

"With respect [to] the authorities, as I understand the authorities, and on that definition of what is required to be shown so far as enclosed lands, there is [no] evidence that the lands were enclosed. Ms Klewer has got to fail on that basis."

28 In relation to the AVO Magistrate Doring observed:

"... she has not seen Mr Wertz in fact do any damage to the nature strip. I can understand her belief, but belief is not evidence. So there is no evidence that I can utilise relative to damage to [the] nature strip because she has not seen Mr Wertz do anything. . . . She did seem to suggest that it was Mr Wertz, it was not spelt out and it was not specifically tested in cross-examination that she actually physically saw him do this..."

Proceedings 4 of 1996

29 This was a prosecution by Ms Klewer of Pauline Brown-Paul for offensive language. Ms Brown-Paul was a nurse at Coffs Harbour Base Hospital. The information and summons signed by Ms Klewer are each dated 26 April 1995. This was the day immediately following an incident at the hospital that resulted in a police prosecution pursuant to which Ms Klewer was herself convicted at Grafton Local Court on 12 March 1996 of using offensive language towards Ms Brown-Paul. Ms Klewer's subsequent appeal to the District Court against her own conviction was dismissed. Ms Klewer alleged that Ms Brown-Paul:

"... did use offensive language in a public place, to wit, the Treatment room of the accident emergency unit, at Coffs Harbour Base Hospital, 'why are you being such a paranoid about all this; yes you are paranoid about all of this'."

30 At a directions hearing on 16 May 1995 Ms Klewer wrote to the court indicating that she would be late. On 24 October 1995 Ms Klewer requested that the matter be listed

". . . for consideration by Magistrate Doring on the question of disqualification".

31 On 17 November 1995 a court information sheet records that Ms Klewer was "unable to attend – car trouble", and that she sought a hearing date in January or February 1996. On 20 November 1995, prior to a directions hearing on 21 November 1995, Ms Klewer wrote to the court indicating that she had "transport problems". On 12 February 1996 Ms Klewer withdrew the information, which was accordingly dismissed.

Proceedings 591167 of 1997

32 This was an application by Ms Klewer for an AVO against David Malcolm, her former solicitor. It was filed at Lismore Local Court. In a complaint and summons signed by her and dated 21 February 1997 Ms Klewer stated:

"2. In May 1994 the defendant said to the complainant 'If I wasn't a solicitor I'd have you hit for non-payment of the debt' or 'I'll send the police to get you'. By this remark the [complainant] believed the defendant may resort to violence to recover the debt."

3. In March 1996 the defendant approached the [complainant] within Grafton Court and behaved in an aggressive manner in the presence of the daughter of the [complainant] causing her to become frightened and concerned . . .

4. During a Court appearance in February 1997 the defendant continued to glare in an intimidating manner at the complainant causing her further and ongoing fear."

33 On 23 June 1997 Ms Klewer sent a facsimile to Lismore Local Court stating that she was unable to attend court on 27 June 1997. She said:

"The reasons include that my motor car has to undergo certain repairs before I can travel to Lismore and back. Another reason is that even if I did travel the distance and by some chance I happen to be late getting there even by a few minutes, you may dismiss the matter, as you are well aware madam this was the case on the 8-2-97 at Casino."

34 The following day Mr Malcolm sent a facsimile to the court stating he had received a copy of Ms Klewer's facsimile and that he opposed what appeared to be Ms Klewer's adjournment application. Magistrate Barkell heard the application on 27 June 1997. In Ms Klewer's absence the application was dismissed with costs.

Proceedings 43 of 1997

35 This was another application by Ms Klewer for an AVO against David Malcolm. This time the complaint was filed at Bellingen and made returnable at Kempsey Local Court. In a complaint and summons signed by her and dated 4 September 1997 Ms Klewer stated:

"2. In May 1994 the defendant in a phone conversation ... said 'I'll have to hit you for not paying the debt'. When asked to repeat the threat the defendant did so.

3. In 1996 the defendant approached the [complainant] in Grafton and behaved in an intimidating manner in front of her daughter...

4. In Coffs Harbour in [early] 1997 the defendant again approached the [complainant] in an aggressive manner causing her fear and apprehension.

5. In January 1997 the defendant telephoned the [complainant] at home in the early hours of the morning, spoke in an aggressive manner...

6. The complainant fears further and ongoing harassment by the defendant."

36 On 17 November 1997 Magistrate Evans dismissed the application, with costs. In his ex tempore judgment the Magistrate found that Ms Klewer had not been harassed. He said the following:

"Now I ask rhetorically what chance would a judgment debtor have in many cases if Courts brought about the sanctions of violence orders prohibiting them contacting in any way directly or indirectly or in a case like this it would mean that a solicitor would have to have another solicitor write his letters, or even another firm write his letters of demand and I would think defeat the law ...

Even if it occurred and I don't hold that it did, but for the purpose of a case even if the conversation occurred as was alleged in May of '94 I could not hold that it was reasonable on 17 November 1997 or on the date the complaint was made, which date is reviewed, whichever way one looks at it, for the person in need of protection to claim that she holds a reasonable fear for the future."

37 The court allowed Ms Klewer three months to pay those costs. These proceedings appear to be an attempt to re-agitate the grounds of a similar application that had been dismissed by Magistrate Barkell at Lismore Local Court on 27 June 1997.

Proceedings 2775 of 1997

38 These were proceedings commenced by Ms Klewer against Constable Andrew Martin. They raised precisely the same issue in relation to precisely the same facts as proceedings 105 of 1995, which had been dismissed on 22 June 1995. On 5 December 1997 the Local Court granted a stay of proceedings and ordered Ms Klewer to pay the respondent's costs. Ms Klewer then filed a motion asking the court to revoke the stay. On 16 January 1998 that motion was dismissed with costs.

Proceedings 129 of 2001

39 Ms Klewer commenced proceedings 155 of 2001 on 2 February 2001 against Wayne Benson and Ray Benson Motors Pty Ltd. Mr Benson had sold Ms Klewer a car in March 1999. The statement of liquidated claim signed by Ms Klewer stated that she claimed $8,180 in respect of the following cause of action:

"Breach by Ray Benson Motors of section 52 of the Trade Practices Act.

Breach by Wayne Benson of section 79 of the Trade Practices Act stemming from the order of the Tribunal in October 1999 which based [sic] on the false information under oath of Wayne Benson."

40 On or about 6 July 2001 proceedings 155 of 2001 at Coffs Harbour Local Court were transferred to the Ballina Local Court and given the plaint number 129 of 2001. On 30 July 2001 the proceedings were dismissed in chambers, the court deciding, as had Hulme J previously in the Supreme Court, that it had no jurisdiction to consider on its merits a claim that had already been determined by the Fair Trading Tribunal.

Proceedings 675 of 2001

41 Ms Klewer commenced proceedings 675 of 2001 on 8 October 2001 against Wayne Benson and Ray Benson Motors Pty Ltd. The statement of liquidated claim, signed by Ms Klewer, stated that she claimed $10,635 in respect of the following cause of action:

4. In October 99 the second defendant by its servant or agent engaged in conduct which was misleading and deceptive or likely to mislead or deceive.

5. [The defendants] contravened Part V of the Trade Practices Act.

*****

7. As a result of the conduct by the first and/or second defendant the plaintiff sustained loss in the sum of $2,200 which she was ordered by the Tribunal to pay the second defendant. Such $2,200 has increased by various orders of the Local Court Coffs Harbour to approximately $4,500 to date.

8. In attempting to mitigate her loss the plaintiff lodged an appeal to the Supreme Court of NSW, however no proof of denial of natural justice was found and a costs order was made against her amounting to about $3,700. Filing fees in the Supreme Court was $1,011, travel costs $780, $500 for incidentals and other associated disbursements."

42 On or about 24 January 2002 the statement of claim was summarily dismissed with costs. In these proceedings Ms Klewer sought to re-agitate virtually the same issues dealt with in proceedings 129 of 2001 and, like proceedings 129 of 2001, they sought to re-agitate some of the same issues that had been determined by the Fair Trading Tribunal in proceedings MO99/648 in respect of which Ms Klewer had previously sought to appeal, unsuccessfully, to the Supreme Court of New South Wales.

43 On 8 February 2002 Ms Klewer sought a stay of the court's orders, together with an order that:

"The above claim be allowed to proceed upon the grounds that:

1. such a claim is valid.

2. justice demands the plaintiff can get a hearing on this issue."

44 In an "affidavit" made by Ms Klewer that accompanied her notice of motion seeking a stay, she stated:

"1. I could not attend the Notice of Motion hearing by the defendants on the 24/01/02 where they sought orders to stay or strike out my claim against them.

2. Reason being (a) I am greatly intimidated by Magistrate Rheimer (who was to hear the motion) because as far as I am concerned he does not follow the rule of law, this is evidence on 3 occasions in recent months in an AVO matter involving a young person called Shane West and myself. (b) The Local Court magistrates at Coffs Harbour have been prevented by the Deputy Chief Magistrate at the Downing Centre Local Court to hear my matters. (c) Mr Rheinberger LCM chose to move a civil case to the Downing Centre on his own volition as a result of problems I have with the Registrar at Coffs Harbour, as well as the presiding magistrates in the area.

3. Accordingly I left written representation – file which Mr Rheimer ought to have read. Such representations clearly established my concerns regarding the incompetence of Mr Rheimer in dealing with my matter as well as my legal right as a citizen to have a valid claim to remain so it can be proceeded with."

45 It would appear that the motion was ultimately abandoned. When it was listed for hearing on 5 March 2002 Ms Klewer filed an application for its re-listing on a later date on the stated grounds that "the applicant attends school each Tuesday". Annotations on the application for re-listing indicate that the request for re-listing was refused. The matter was thereafter twice adjourned, apparently on each occasion by reason of Ms Klewer's non-attendance. On the second adjourned date of 1 May 2002 it does not appear to have been adjudicated.

Proceedings 46535 of 2001

46 These proceedings originated in two informations sought to be issued by Ms Klewer against Ian Walton (the principal of John Paul II College at Coffs Harbour) and Jamie Skinner. In relation to Mr Walton Ms Klewer alleged that he grabbed her by the left arm and moved her from the end of the administration desk at the John Paul II College. She said that at the time she was attempting to call the police to attend the college in relation to an incident in which her son had sustained a head injury. In relation to Jamie Skinner (apparently a child) Ms Klewer alleged that he pinched and injured her son Robert on the head. She alleged that Jamie Skinner said to her son, "I am going to get you, I will kill you", and that her son had not been able to attend school since that time.

47 Informations and draft summonses were apparently presented on 16 March 2001. The court refused to issue either summons. In a letter to Ms Klewer dated 22 March 2001 the Office Manager of the Coffs Harbour Local Court stated:

"The reasons for refusing to issue Summonses...are because in the matter against Jamie Skinner another authorised Justice and senior staff member from this office... had previously considered and dealt with that matter. I am not prepared to entertain this matter further as I consider it to be "Justice shopping".

In relation to the matter against Ian Walton I am not satisfied on the information supplied that the actions of Ian Walton were of such a nature as to cause immediate fear of violence and therefore prima facie no assault has occurred.

Furthermore in view of the nature of comments made by you about staff at this office it is not considered appropriate for other staff at this office to have further dealings in relation to the above mentioned matters."

48 It seems that, on the day immediately following Mr Walton's notification to Ms Klewer that her son Robert would not be readmitted to the school, Ms Klewer sought to re-enliven her assault charge against him by means of a complaint to the police, as a result of which she was herself charged (and ultimately acquitted) of laying a false complaint. It would appear that, in order to commence her prosecution of Mr Walton for assault, Ms Klewer resorted to laying an information before a Justice of the Peace in Sydney at or about the time of laying additional criminal informations against Mr Walton in August 2001. All three informations were ultimately adjourned to the Downing Centre where Magistrate O'Keefe heard them on 10 December 2001. Counsel's cross-examination of Ms Klewer as to the precise means whereby she had caused the summons to issue against Mr Walton on the assault charge elicited what the Attorney General characterised as "evasive and obfuscatory replies", and the questioning was disallowed before a conclusive answer was obtained.

49 The charge was dismissed, and Ms Klewer was ordered to pay Mr Walton's costs of $10,504. In dismissing the charges, Magistrate O'Keefe said of Mrs Klewer:

"Now there is no dispute that when she did leave she didn't complain to the police immediately about any assault, nor did she give any evidence at all today that she was in fact in any fear or that she apprehended any, any further violence. ...

*****

Even at its highest, it seems to me, there would be some argument certainly, it's certainly arguable that an assault didn't occur."

50 This Court dismissed Ms Klewer's application for orders setting aside the decision of Magistrate O'Keefe with costs. Her subsequent application to the Court of Appeal for leave to appeal against that decision was also dismissed with costs, as was her application for special leave to appeal to the High Court.

Proceedings 46560 of 2001

51 The summons in this proceeding was issued pursuant to one of at least two (and probably three) informations laid by Ms Klewer on 14 August 2001 against Ian Walton, the principal of John Paul II College at Coffs Harbour. The relevant information alleged that Mr Walton had made a false representation in breach of s 547B of the Crimes Act 1900. Ms Klewer's information alleged that on 19 April 2001 Mr Walton:

"... did by means of a signed statement knowingly make to a member of the Police Force, a false representation that an act had been done that is to say, no assault was committed on the informant on the 7th March 01 as she had earlier alleged to Police, which said act had been done was so represented in such statement called for an investigation by a member of the Police Force."

52 Prior to laying this information, on 5 April 2001, Ms Klewer had signed a police statement alleging that Mr Walton had assaulted her on 7 March 2001. As a consequence of that statement, on 15 May 2001 Ms Klewer had herself been charged with knowingly making a false representation to a member of the Police Force contrary to s 547B(1) of the Crimes Act. This charge against Ms Klewer was subsequently dismissed. The charge against Mr Walton was one of three charges against him that were heard by Magistrate O'Keefe at Coffs Harbour Local Court on 10 December 2001. At the close of the informant's evidence, the charge was dismissed on the basis of Magistrate O'Keefe's finding that there was insufficient evidence to satisfy the court beyond reasonable doubt that the defendant had committed the offence.

53 An appeal to this Court against the decision of Magistrate O'Keefe was dismissed by Master Harrison (as her Honour then was), as was an application to the Court of Appeal for leave to appeal against her decision.

Proceedings 44193 of 2001

54 This was another of at least two (and probably three) informations laid by Ms Klewer on 14 August 2001 against Ian Walton, the principal of John Paul II College at Coffs Harbour. In it Ms Klewer stated that, in breach of s 314 of the Crimes Act Mr Walton:

". . .did make an accusation intending [her] to be the subject of an investigation of an offence, knowing [her] to be innocent of the offence."

55 This charge was dismissed on the same basis as the charge under s 547B of the Crimes Act.

Proceedings 59037 of 2001

56 This was an application by Ms Klewer for an AVO against "the NSW Police Service Coffs Harbour". In her complaint and summons sworn 9 November 2001 Ms Klewer stated that she was in need of protection because she feared "harassment, intimidation, abuse and property damage and total disrespect for the families [sic] welfare". She also stated:

"I fear that unless prohibitions and restrictions are not [sic] placed on the behaviour of the police at Coffs Harbour then further conduct amounting to assault, intimidation, harassment and threatening behaviour may occur."

57 In particular, Ms Klewer stated that:

"On 5/11/01 I faxed S/c Walter at the police station and requested all dealing with us to be by fax and not bang on my glass door and break it."

58 Ms Klewer further stated in her information that:

"Darren Murphy caused bruising to my arm, despite me in February this year officer advising the police I had an injured arm."

59 Although this alleged incident involving Officer Murphy had taken place some eleven months prior to Ms Klewer's AVO application, at the time when she swore this information, Officer Murphy was one of two police officers whom she had named as a defendant in assault proceedings 96 of 2001 filed in Coffs Harbour District Court only six weeks before on 25 September 2002. On 9 November 2001 the Authorised Justice at Macksville, Carmel Gleeson, exercised her discretion to refuse to issue the AVO on grounds that the complaint was frivolous, vexatious, without substance and that it had no reasonable prospect of success. The details of that decision were given as follows:

"The complainant wished to take out 71 complaints, the complainant could not supply dates and details. I believe that the complainant had no reasonable prospect of success and may be vexatious and frivolous."

60 On 27 November 2001 the matter was listed before the Local Court at Coffs Harbour for the Magistrate to determine whether the process should be issued or the complaint dismissed. On 27 November 2001 the complaint was dismissed. It appears, however, that at some time after Ms Klewer filed her unsuccessful complaint, Senior Constable Walter, one of the police officers named in it, was himself successful in obtaining an AVO against her, and that her subsequent appeal to the District Court against this order was dismissed.

Proceedings 12415, 12423, 12431, 12440 of 2002

61 On 22 February 2002 at Bellingen Ms Klewer swore four informations pursuant to which summonses were issued to her tenants, Casey Carter and Michael Carter, to appear in Coffs Harbour Local Court. The charges against each person were for stealing and malicious damage. A month after the informations in these proceedings were sworn, the Residential Tribunal upheld an application by the Carters that their rental bond be set-off against arrears of rent payable to Ms Klewer. It appears that in the course of the hearing of that application the Tribunal also considered Ms Klewer's cross application for relief in respect of property damage.

62 On 25 July 2002 the Coffs Harbour Local Court issued a subpoena in proceedings 12440 of 2002 at Ms Klewer's request to the Coffs Harbour Health Campus for production of all medical and psychiatric records relating to Casey Carter in the preceding five years. On 16 June 2003 all four summonses were withdrawn and dismissed on the basis of orders made by the Consumer Trader and Tenancy Tribunal.

Proceedings 17961 and 17970 of 2002

63 These were applications by Ms Klewer, for herself and on behalf of her children Lisa, Laura, Robert and Ryan, for AVOs against Casey Carter and Michael Carter. In her complaint and summons against Casey Carter dated 28 March 2002 Ms Klewer stated that:

"1. [Ms Carter] maliciously damaged the [property] of [Ms Klewer] whilst her tenant.

2. On several occasions [Ms Carter] has behaved in a hysterical and [uncontrolled] manner causing [Ms Klewer] to fear for her safety and that of her children.

3. [Ms Klewer] fears further and ongoing intimidation by [Ms Carter]."

64 Ms Klewer's complaint and summons against Michael Carter stated that:

"1. [Mr Carter] maliciously damaged the property of [Ms Klewer] whilst her tenant.

2. When [Ms Klewer] served the termination of tenancy [Mr Carter] displayed a bul[l]ying attitude causing [Ms Klewer] to fear for her safety and that of her children as [Mr Carter] knows where she lives.

3. [Ms Klewer] fears further and ongoing [i]ntimidation."

65 These two complaints were made within a week of notification to Ms Klewer that the Residential Tribunal had upheld an application by the Carters for return of their rental bond upon termination of their tenancy. It appears that an application by Ms Klewer for a telephone interim order pursuant to Division 4 of Part 15A of the Crimes Act was refused by Magistrate O'Keefe on or about 9 July 2002. The court file includes what appears to be Ms Klewer's draft notice of appeal to the District Court against such refusal dated 10 July 2002 in which Ms Klewer alleged that:

"Me and my children have good grounds to obtain an interim order to protect us from Michael and Casey Carter".

66 On 17 July 2002 an officer of the court telephoned Ms Klewer and notified her that an appeal to the District Court was not competent. It would appear that on 12 March 2003 Ms Klewer withdrew both complaints.

Proceedings 28337 and 28345 of 2002

67 These were a further two summonses brought in the Local Court by Ms Klewer against the Carters. The informations were sworn by Ms Klewer at Bellingen on 7 June 2002. Each information alleged that on 12 December 2000 the relevant defendant:

"... did dishonestly obtain for the said defendant a valuable thing to wit a quantity of goods ordered to be retained by the Residential Tribunal, by deception, namely that the said defendant was landlord of premises and entitled to the benefit of an order by the said Tribunal."

68 Together with the four charges of 22 February 2002, these two summonses were ultimately withdrawn and dismissed on 16 June 2003 on the basis of orders made by the Consumer Trader and Tenancy Tribunal.

Proceedings 5116 of 2005

69 These were applications by Ms Klewer, on behalf of herself and her children Robert, Ryan and Lisa, for AVOs against Andrew Dykes and Alison Dykes. In her complaint and summons apparently filed on or about 24 January 2005 Ms Klewer stated that:

"1. On 23 January 2005, [she] and her son were shopping... [Andrew Dykes] appeared cranky. [She] then watched as [Andrew Dykes] walked at the same fast pace straight into [her son] Robert who suffers from hemiplegia and loss of vision. Robert appeared startled. [Andrew Dykes] came into contact with [her son's] right side of his head. [Andrew Dykes] appeared indifferent with the apparent assault on Robert. [Andrew Dykes] never apologised and kept going... Police confirmed the arrogant nature of [Andrew Dykes] whilst being interviewed.

2. In late 2002 [Andrew Dykes] made a scene at [her] residence where he accused her 2 sons of throwing rocks at his car whilst driving past. Police later dealt with his complaint and took no action after speaking to (2) adult witnesses who confirmed the wild outburst by [Andrew Dykes] at the time . . .

3. On February 5, 2003 [she] told Council Rangers that on 5 February 2003 [Andrew Dykes] found [her] labradors roaming on his street where he lives and he proceeded to seize them. . ."

70 It appears that the application to issue an AVO against Andrew Dykes was initially refused by the court Registrar, Aldo Loprete, on 1 February 2005. The matters thereafter came before Magistrate Lyon on 19 April 2005.

71 In terms Ms Klewer's complaint sought to re-agitate a number of factual and legal issues that had previously been determined against her in earlier Supreme Court proceedings arising from the seizure and impounding of her dogs in 2003. This is referred to below. In the course of the hearing, Magistrate Lyon noted "a perception by [Ms Klewer]" that perjury had occurred in another court". There was no appearance for either Andrew Dykes or Alison Dykes at the hearing. In the course of the hearing Ms Klewer withdrew the complaint against Alison Dykes. The application against Andrew Dykes was refused.

72 Ms Klewer appealed to the District Court from this decision. The appeal was dismissed with costs, as being "frivolous, vexatious and an abuse of the court's process".

Proceedings instituted in the District Court

Proceedings 22/0308 of 1991

73 This was an appeal to the District Court from a decision of Magistrate Cullen. On 20 February 1991, at the Local Court at Windsor, Ms Klewer was prosecuted for three offences of using offensive language, resisting an officer in the execution of duty and assaulting an officer in the execution of duty. Each information was dismissed pursuant to the provisions of s 556A of the Crimes Act. At the conclusion of the hearing in the Local Court before Magistrate Cullen, he delivered an ex tempore judgment. Among other things he said the following:

"In relation to critical and relevant matters the evidence of Constable Higgins is that [Ms Klewer] was pulled over in relation to an unrestrained seatbelt charge of a child, there being six children plus [Ms Klewer] in the car. The allegation is that there was a boy aged eleven in the front seat and in the rear seat two boys aged ten and two and three girls aged eight, six and four. The boy aged two and the girl aged four were not restrained.

This clearly was a minor traffic infringement that has snowballed to substantial proportions. It certainly was unusual behaviour for [Ms Klewer] to drive from the scene whilst the constable was writing out a ticket, to pull into what she says was a quieter street. I have no doubt that she intended to drive home at that stage and only stopped when the police followed her.

I FIND EACH OF THOSE OFFENCES PROVED BEYOND REASONABLE DOUBT.

I must clearly say that I don't accept your evidence in relation to police misconduct...

I DISMISS THE INFORMATIONS UNDER PROVISIONS OF S. 556A OF THE CRIMES ACT IN EACH CASE."

74 Despite the fact that no convictions were recorded, on 15 April 1992 Ms Klewer appealed to the District Court. Judge Karpin dismissed the appeal and confirmed the orders of the Magistrate.

Proceedings 52/0196 of 1994

75 This was an appeal to the District Court from the costs order of Magistrate Doring in proceedings No 165 of 1995. Judge Bell dismissed the appeal, with costs.

Proceedings 52/0218 of 1994

76 This was an appeal to the District Court from Ms Klewer's conviction at Coffs Harbour Local Court on 1 August 1994 on eight charges, namely:

1. Drive whilst licence cancelled;

2. Disobey direction of police;

3. Refuse to produce licence and state place of abode;

4. Resist police in execution of duty;

5. Use offensive language;

6. No child restraint;

7. Use telecommunications service in an offensive manner; and

8. Drive an unregistered vehicle.

77 Judge Bell heard the appeals at the Coffs Harbour District Court on 13 August 1996. The appeal in relation to driving while licence cancelled was withdrawn and dismissed, and the findings and orders of the Local Court confirmed in all respects. The appeal in relation to using a telecommunications service in an offensive manner was upheld and the conviction quashed. It is to be noted however that his Honour said:

"I think that on the sole basis of resemblance of voice I would not be justified in finding beyond reasonable doubt that it was she who made the call. I do think, as I said, it is very probable that it was made by her but I'm not prepared to make such a finding."

78 However all other appeals were dismissed. In relation to the no child restraint conviction, his Honour noted that "when pressed [Ms Klewer] did not deny that she was indeed guilty".

79 In relation to driving the unregistered vehicle, his Honour said:

"There was a lot of evidence in chief and cross-examination on this point but it can be summarised in two sentences, she claims not to have known whether the vehicle was registered or not and made no inquires. The s 12 certificate indicates that it was not registered in this State and a similar certificate from Queensland is evidence that it was not registered there. The offence must therefore be found proved and that appeal is dismissed and the finding confirmed."

80 In relation to driving whilst licence suspended charge, his Honour said:

"Again there has been a great deal of evidence on this point but it is clear that she did not have a licence."

81 In relation to the conviction for refusing to produce a licence and state place of abode, his Honour found that:

"She also failed, when required to do so at that time, to state her name and address. She concedes that and this is the essence of the offence charged. That appeal is also dismissed."

82 In relation to the charge of resisting an officer in the execution of duty, his Honour held that he did not accept Ms Klewer's explanation of events. Whilst his Honour was delivering his judgment, an exchange occurred between him and Ms Klewer. In the course of that exchange his Honour asked Ms Klewer whether she wanted to be heard in opposition to the penalties that had been imposed in the Local Court. Ms Klewer responded in the following terms:

"My submission would be that you wouldn't impose anything because I mean this guy's guilty as hell and you know, finally I will get justice, if it's not through this Court I will get it through the Supreme Court, but he's not going to get away with what he's done . . .I will not pay them because I'm not guilty..."

83 In his judgment on penalty delivered on 13 August 1994 his Honour said the following:

"The matter did not conclude until approximately 4.30 and [Ms Klewer] at that stage, was in a rush to depart, so before she did so, I adjourned the matter until this morning at 9.30. She announced then and there that she had no intention of attending but I have nevertheless had her name called a number of times ... and she has still not appeared. I therefore propose to deal with her in her absence...

She had no real defence to any of the charges that I dealt with except possibly the charges of resist arrest and use offensive language. In those instances she denied the allegations and it was, in each case, a matter of her word against the word of the police officer. Once again, I disbelieved her and I accepted the evidence of Constable Martin. I might add that any lingering doubts that I may have had regarding her guilt would not have survived her reactions after conviction when she revealed quite clearly her volatility and her contempt for authority and wilfulness. These impressions were further confirmed this morning when her criminal history and traffic history were tendered."

Proceedings 52/0157 of 1995

84 This was an appeal by Ms Klewer against an order for costs made at the Coffs Harbour Local Court on 22 June 1995 in consequence of a failure to succeed in a prosecution for assault against police officer Andrew Martin. Judge Johnston dismissed the appeal with costs. His Honour said:

"In cross–examination [Ms Klewer] was cross-examined as to an affidavit sworn by her in examination proceedings here where she listed her assets. I found her evidence on this aspect somewhat evasive and I was not impressed by the calibre of her evidence. However, that is not the be all and end all.

What is challenged by [Ms Klewer] is the exercise of my discretion to make an order for costs on behalf of Constable Andrew Martin. . . . [He] had given evidence that, although he was represented by the Crown Solicitor he has not himself, personally, incurred any costs. As I said earlier, this is not an unusual procedure where members of the Police Force or other public office[rs] are sued and the Crown Solicitor intervenes to appear on their behalf. . . .As a serving officer he was represented by the Crown Solicitor which is the normal practice. Why then should the successful litigant be deprived of the question of their liability for costs which have been incurred in defending the matter."

Proceedings 52/0312 of 1995

85 This was an appeal by Ms Klewer from the conviction made and imposed by Magistrate Doring on 20 October 1995 on a charge of assault. The appeal was heard and determined by Judge Wall at the Coffs Harbour District Court on 23 May 1996. His Honour found the offence proved, dismissed the appeal and confirmed the conviction.

86 The background to the matter is as follows. The complainant, Sandra Luxford, was an employee of the Department of Community Services. On 7 June 1995 Ms Klewer attended the offices of the Department in Coffs Harbour, with the expectation that she would be attended to by a particular officer. However, she was attended to by Ms Luxford, who informed her that the particular officer that Ms Klewer wished to see would not be attending her that day and that she would be attended by another officer who was the case officer. This led to a confrontation between Ms Klewer and Ms Luxford, in which Ms Klewer picked up a "counter bell" from the counter and threw it, striking Ms Luxford (according to her) on the nose. In his judgment his Honour found:

"In relation to the credibility of the two witnesses who are the critical witnesses in this case, namely Mrs Luxford and Mrs Klewer. Mrs Luxford impressed me as a credible witness. Mrs Klewer did not impress me in a number of respects as a credible witness. Where there was a conflict in relation to their evidence as to where the two of them were standing respectively at the time the bell was thrown I prefer the evidence of Mrs Luxford. I accept Mrs Luxford's evidence that there was abusive language directed towards her by [Ms Klewer] before the bell was thrown. I accept Mrs Luxford's evidence that the appellant showed signs of being very angry at the time the bell was thrown ...

In relation to the question of whether or not this conduct which I find on the evidence to be proved to my satisfaction beyond reasonable doubt amounts to an assault I find that the throwing of the bell was intentional. I find that the throwing of the bell was without lawful excuse. I find that it was without the consent of Mrs Luxford and I find that it was thrown out of anger and in circumstances of intending that the bell be thrown in the direction of Mrs Luxford.

In those circumstances I am satisfied that all the elements that are required to be proved beyond reasonable doubt in relation to the commission of common assault have been proved. Accordingly I find the offence proved."

Proceedings 52/0086 of 1996

87 This was an appeal in respect of Ms Klewer's conviction on 12 March 1996 for using offensive language on 25 April 1994. The appeal was heard and determined by Judge Freeman at the Grafton District Court on 4 December 1996. It seems that Ms Klewer left the court during the course of his Honour's judgment saying "Oh you can settle it ... I'm going". His Honour found the offence proved by the sworn testimony of the witnesses. The appeal was dismissed with costs and the conviction confirmed.

Proceedings 52/0319 of 1996

88 This was an appeal in respect of Ms Klewer's conviction on 11 October 1996 for driving a vehicle in which a child was travelling on a public street, the child not being restrained by a suitable child restraint. Ms Klewer had given evidence that she had ensured that all her children were wearing seatbelts and stated, "when I'm driving I want to make sure they're wearing seatbelts". Exhibit D at the trial was a document in Ms Klewer's handwriting which stated:

"The incompetent officer who issued this infringement on 17 December 1996 [sic] is also a rotten liar, typical police officer, was trained to be corrupt by his superiors, all corrupt police should be sacked".

89 Constable Stimpson had given evidence at the trial and gave evidence that Ms Klewer had said:

"You are just very unprofessional, you are corrupt, what is your name, I'm going to report you, you corrupt cop, I'm reporting you to the Ombudsman . . . you are a crooked cop, you are unprofessional and I'm going to have your job, I have my witnesses, you are going to be liable for this you know, you're a corrupt cop and I'm taking you to the Royal Commission."

90 Judge Garling dismissed the appeal with costs and confirmed the penalty imposed by the Magistrate. During the course of his judgment, his Honour said:

"During addresses it became apparent the Court had not been told the full story...I do not believe [Ms Klewer]. I do not accept her evidence. It is clear that one of her children was not restrained. She gave the impression that she was very careful to ensure that all the children were restrained. She did that when giving evidence and I have just read that evidence out... What she said on page 5 of the transcript was simply not true. The fact that one child was unrestrained and that the officer saw an unrestrained child totally supports his evidence, his version was quite clear.

[Ms Klewer's] total overreaction to the police is of concern. He was abused, he was called corrupt. The Police Force generally was called corrupt and all because of a traffic Infringement Notice. This would suggest to me that all is not well about the appellant or her evidence. Why would someone react in this way, if a child was simply not restrained that would be stated, she would go to Court and she would defend the matter. The total overreaction would tend to suggest that she was guilty. The total overreaction is unacceptable, there was not one iota of evidence offered by [Ms Klewer] to back up those statements."

91 His Honour said that he would consider whether the transcript of the trial should be referred to the Director of Public Prosecutions in relation to whether proceedings for perjury should be brought.

Related contempt proceedings

92 At this point his Honour's judgment was interrupted by an "outburst" from Ms Klewer. An extract of transcript titled "Appellant's Outburst" is part of the evidence before me. During the course of this "outburst" Ms Klewer said a number of things to his Honour including the following:

"I don't have to listen to you – you're not even looking at the law."

"I think there's something wrong with you."

"You're supporting lying of an officer because you're on their side."

"We'll see what a Supreme Court Judge will have to say – and what you are doing this for, what's your problem. Trying to be smart."

"I think if anyone is in contempt it's yourself."

"Just because I'm a foreigner you don't have to treat me this way."

93 His Honour then had the Correctional Services Officers remove Ms Klewer from court into custody. His Honour on his own motion subsequently charged Ms Klewer with contempt of court. Ms Klewer was released on bail in the sum of $500, without surety. The contempt proceedings were heard on 5 June 1997. Ms Klewer asked Judge Garling to disqualify himself from hearing the matter. The application was refused. His Honour found Ms Klewer guilty of contempt of court. He deferred passing sentence upon Ms Klewer upon her entering into a recognizance in the sum of $500 to be of good behaviour for two years. However Ms Klewer subsequently refused to sign the recognizance so his Honour revoked the order deferring sentence and instead fined Ms Klewer $1,000 allowing six months to pay. A subsequent appeal to the Court of Appeal by Ms Klewer in relation to the contempt proceedings was successful.

Proceedings 11 of 1997

94 This was an appeal by Ms Klewer against a determination of the Victims Compensation Tribunal of 28 January 1997 (Tribunal reference G 96/20131). The notice of appeal filed 25 February 1997 stated as the grounds of the appeal that:

"The appellant was subjected to an act of violence.

The Tribunal was in error not to award the appellant compensation."

95 At all relevant times s 39 of the Victims Compensation Act 1996 was in the following terms:

"39 Appeals to the District Court on questions of law

(1) An applicant for statutory compensation may, with the leave of the District Court, appeal to the District Court on a question of law arising in any determination of the application by the Tribunal.

(2) An appeal by a person under this section may be instituted:

(a) within the period of 3 months after the day on which the relevant notice of the determination made by the Tribunal was duly served on the person, or

(b) within such further time as the District Court may in exceptional circumstances allow.

(3) For the purposes of this section, the following matters are not questions of law:

(a) a determination of whether an injury for which compensation has been claimed is an injury specified in the schedule of compensable injuries or whether it is a compensable injury of a particular description specified in that schedule,

(b) a determination of whether a series of acts are related and constitute a single act of violence.

(4) An appeal does not lie to the District Court against a decision of the Tribunal to refuse leave for a late application for statutory compensation.

(5) On an appeal, the District Court may only:

(a) affirm the determination of the Tribunal, or

(b) set aside the determination and remit the matter to be considered and determined again by the Tribunal (either with or without the hearing of further evidence) in accordance with the decision of the District Court on the question of law concerned."

96 In her affidavit dated 21 April 1998 Ms Klewer sought to re-agitate questions of fact that had been determined adversely to her not only by the Victims Compensation Tribunal but also previously by Magistrate Doring in her Local Court prosecution of Constable Andrew Martin, which she had been stayed from further prosecuting in civil proceedings. The hearing commenced and concluded on 5 May 1998. Ms Klewer's appeal was dismissed with no order as to costs being sought or made.

Proceedings 37 of 1997

97 This was an appeal by Ms Klewer against a determination of the Victims Compensation Tribunal of 10 March 1997. In her application for compensation Ms Klewer had stated:

"On 8 April 1994 [I] was treated at Coffs Harbour Hospital, having lost consciousness in a taxi. Without [my] consent [I] was removed to the Jordan Centre, an annex to the hospital which treats the mentally ill. There [I] was unlawfully assaulted. [I] was assaulted when my clothing was removed in the presence of male staff and male police officers and [I] was forcibly injected with drugs. [I] was then unlawfully detained until the following Monday 11 April when [I] was released."

98 In a statutory declaration dated 24 November 1994 Ms Klewer stated that the police took her to the psychiatric unit after an altercation at a solicitor's office relating to the seizure of her car by the local Sheriff. In its published reasons for the decision appealed from the Tribunal stated:

"I am of the opinion based on the medical record received from Messrs Fisburn, Watson and O'Brien, Solicitors, for the victim, that the detention of the victim was not unlawful. In this respect, I note that Ms Charmaine Redding, Psychologist, who has provided a report on the victim, shares the professional view that the action taken by the medical practitioners as to the detention of the victim 'was warranted'.

Following the victim being dealt with under the Mental Health Act, the provision of appropriate medical treatment would not be unlawful. I also find nothing in the conduct of the police that was unlawful.

The victim's solicitors were invited by letter of 5th December, 1996, to place before the Tribunal any submissions as to how the subject conduct of the doctors and the police constituted an act of violence as defined under section 3(1) of the Victims Compensation Act, 1987. A further follow up request to the same effect was made on this date. However, no such submissions have been forwarded.

I am not satisfied that an act of violence has occurred in this matter. Such is a prerequisite to the making of any order for compensation. Accordingly, the application for compensation is dismissed. I will however allow the payment of solicitors scale costs."

99 The notice of appeal stated as the grounds of the appeal from this decision that:

"The appellant was subjected to an act of violence.

The Tribunal was in error not to award the appellant compensation."

100 Judge Kirkham dismissed the appeal on 6 October 1998, and directed each party to pay its own costs. At all material times s 39 of the Victims Compensation Act permitted appeals to the District Court on questions of law only.

Proceedings 52/0316 of 1997

101 This was an application by Ms Klewer for leave to appeal against the dismissal by Magistrate Barkell at Lismore Local Court on 27 June 1997 of the first of two unsuccessful applications for an AVO against her former solicitor David Malcolm. Ms Klewer had sought an order against Mr Malcolm on 22 June 1997, and her application was dismissed with costs when she failed to appear at the hearing. Though not filed until 10 September 1997, the application for leave to appeal was signed on 4 September 1997. This was also the day when Ms Klewer swore a fresh information and summons at Bellingen Local Court for an AVO against Mr Malcolm. Judge Ducker recorded the following words in his judgment:

"The respondent, Mr Malcolm, a solicitor who practices in the Coffs Harbour area, travelled to the Lismore Court on that day and was therefore away from his professional practice. It was [Ms Klewer] who made that trip necessary, yet she failed to appear herself. She wrote a letter to the Magistrate, but did not appear. It seems she has had a history of failing to appear after instituting proceedings. Reference to such behaviour is contained in the documents before me. Furthermore, she failed to appear at this Court, or have anyone else here to represent her on Monday. . . .

I do not accept [Ms Klewer's ] excuse that she was waiting for confirmation of the making of those orders . . . She also gave some very hazy evidence about having sought some further legal advice, I was not impressed by that evidence either. ...

There is a tradition in this Court that upon the giving of an explanation on oath by an applicant, unless there are compelling reasons not to, leave to appeal will be granted.

I believe that there are compelling reasons not to grant leave to the applicant. The appellant seems to think the courts should give her some special treatment and allow her to proceed or not proceed according to her whim. . . . I see no reason to be sympathetic to a person who was well aware of the hearing date of a matter, failed to turn up, and then seek to have this Court assist her, long after the time for an appeal has expired. The appellant well knew that the hearing was on. She gives an attempted explanation, which I do not accept for failing to lodge the appeal on time.

The application for leave is itself over two months after the proper date for the filing of the appeal – two months after the order was made and well past the time for the filing of the Notice of Appeal.

In short, I do not accept that the applicant is bona fide in this matter. I dismiss the application for leave to appeal to this Court."

102 On 17 March 1998 Judge Ducker dismissed the application for leave to appeal with costs.

Proceedings 52/0434 of 1997

103 This was Ms Klewer's fourth unsuccessful attempt to obtain an AVO against Mr Malcolm. On 21 November 1997 Ms Klewer filed a complaint in the District Court in its criminal jurisdiction pursuant to (now repealed) s 562GA of the Crimes Act. The complaint annexed, and expressly relied upon, Ms Klewer's second Local Court application for an AVO against Mr Malcolm, which had been dismissed with costs. The transcript evidences that Ms Klewer also sought to re-agitate questions that had been decided adversely to her by Judge Ducker in the course of her prior attempt to appeal against the dismissal of her first AVO application in the Local Court.

104 At all material times, s 562GA and s 562GB of the Crimes Act provided as follows:

"562GA Making of orders by District Court

(1) A complaint by or on behalf of a person for whose protection an order is sought from the District Court must be made within 28 days after the date a Local Court or the Children's Court dismissed the earlier complaint.

(2) The District Court may, without further hearing, admit in evidence any evidence that was admitted in the proceedings before the Local Court or Children's Court.

(3) Further evidence may be given, but only with the leave of the District Court.

(4) The rules of the District Court may make provision for or with respect to the procedure to be followed in respect of proceedings in the District Court for an order (including the variation or revocation of an order).

562GB Jurisdiction of District Court under this Part

The jurisdiction conferred on the District Court by this Part is conferred on the Court in its criminal jurisdiction."

105 In the course of the hearing the transcript records that the following exchange took place:

"APPLICANT: I've got the documents.

HIS HONOUR: Thank you. I'll have a look at it please.

APPLICANT: Sorry, this is not the sealed one.

HIS HONOUR: It doesn't matter, it doesn't matter.

APPLICANT: I've got the sealed one at home. What had happened when I was before Judge Ducker, I failed to look at two documents which support the fact that I did appeal in time.

HIS HONOUR: You see you mention an appeal, there is no right of appeal.

APPLICANT: I didn't know that Sir.

HIS HONOUR: No.

APPLICANT: And it was only because there was cost orders made against me.

HIS HONOUR: See for example, you're complaining about an order for costs made by his Worship Mr Evans at Kempsey. Now if this were an appeal that would all be on the table and I could confirm that, or halve it, or rule it out altogether. I just simply don't have any jurisdiction. These are original proceedings."

106 The complaint was withdrawn upon Mr Malcolm giving certain undertakings (without admission).

Proceedings 52/0530 of 1999

107 This was Ms Klewer's appeal to the District Court in relation to a conviction in the Local Court at Ballina for exceeding the speed limit. The original information and the police statement in the Ballina proceedings established that the relevant speed-reading was taken by lidar instrument that was in correct working order. The police evidence and the original infringement notice issued to Ms Klewer established that on Ms Klewer's own admission she was travelling at 65 km/h or higher in a 60 km/h zone.

Judge McGuire heard the appeal on 9 August 2000. His Honour dismissed the appeal with costs. The appeal papers record:

"In short, the magistrate's orders are confirmed in all respects".

Proceedings 96 of 2001

108 These were proceedings commenced by Ms Klewer against Darrin Murphy, Gavin Brown and the State of New South Wales. The proceedings were commenced by statement of claim issued 25 September 2001. At the relevant time Mr Murphy and Mr Brown were serving officers in the New South Wales Police Force.

109 Ms Klewer alleged that the two defendants attended her residence on 15 February 2001 and assaulted her, aggravating a pre-existing bilateral epicondylitis during what was alleged to be an unwarranted arrest. She alleged that they acted negligently and proceeded knowingly to breach their duty of care thereby causing her injury. She alleged that she suffered nervous shock and permanent injury to her arms, as well as pain and suffering, loss of employment and property damage. She sought compensatory, aggravated and exemplary damages.

110 On 7 November 2002, at the conclusion of a four-day hearing, Judge Rolfe gave a verdict and judgment for the defendants, and ordered Ms Klewer to pay the defendants' costs. In the course of his judgment his Honour said:

"It is apparent from all of the evidence in the case and from my own observations of [Ms Klewer], that she is obsessed about the way in which she has been treated by the police...

I should add that [Ms Klewer] has informed the Court that she has undertaken legal studies. Although she has not been admitted as a practitioner in this State, she is an intelligent and articulate person, who is able to conduct her case in a way that many lay people who appear before the Court are not able to do.

In terms of the remarks I have made earlier in this judgment about [Ms Klewer's] excessiveness concerning the activities of the police, this question was put to her in cross-examination:

'Q. You were making no efforts to co-operate?

A. I don't co-operate with corrupt police, when I could see they were bullying me I went along, I just had to go when they dragged me out. I don't go along with the police, I've tried to get AVOs against the police, they don't have respect for me so I don't have any respect for them.'

There was further evidence before the Court that in 1990 [Ms Klewer] claimed to have suffered problems arising out of an arrest. In 1994 she claimed to have been assaulted by a crazed police officer and again in 1995 claimed to have been assaulted by the police. In 1994 she claimed the Sheriff in this State seized some cars and caused stress. She has also been involved in legal proceedings with the Department of Community Services.

I will return to my assessment of [Ms Klewer's] evidence shortly."

111 As to the evidence of Ms Klewer's then 16-year-old daughter Laura, his Honour found that the language used in her affidavit (which Laura conceded her mother typed) was not the language of a person of her age at the time. His Honour found that the words in the statement "were put into her mouth by her mother and I do not accept her evidence as reliable".

112 As to Ms Klewer's evidence his Honour said:

"I have had a good opportunity to observe all of the witnesses give their evidence in this case. I have already indicated that I do not regard [Ms Klewer's] daughter as a reliable witness. I also do not regard [Ms Klewer] as a reliable witness. I do not accept her version of events. I had a good chance to – I should just interpolate here during the course of giving this judgment, that [Ms Klewer], without the leave of the Court, has simply walked out of Court. This is the second time that this has occurred. On the previous occasion [she] walked out after the evidence was complete and it was necessary for me to adjourn this matter in order to give [her] the opportunity to present submissions, which she did, in lengthy detail, both in writing and orally to the Court today.

Going on where I left off, I regard [her] as an unreliable witness. It is unfortunate, to say the very least, that she appears to have this obsession with members of the New South Wales Police Force. . . .The officers had no cause to mistreat [her] in the way in which she has alleged. I completely accept the evidence that they gave about what occurred when they attended at her residence...

I am completely satisfied that there was nothing whatsoever inappropriate about the way in which the two officers acted when they arrested [Ms Klewer]. I consider the way in which she resisted was totally unjustified and I am satisfied the two officers used as little force as possible to remove this woman from her home. They were conscious of the fact that there were young children present and it seems to me that they carried out their task efficiently and coolly and if anyone was angry and if there was any shouting, I am satisfied that it was [Ms Klewer] who was the person who was guilty of behaving in that way and not the officers. She sought to provoke them when she cross-examined them in the witness box and each of them maintained his cool."

Proceedings 52/0172 of 2002

113 This was an appeal by Ms Klewer, in relation to an AVO granted against her by the Local Court on the application of Senior Constable Trevor Walter. Ms Klewer's application for an AVO against "the NSW Police Service Coffs Harbour", in which Senior Constable Walter had been particularly named, was dismissed on 27 November 2001. On 24 September 2002 Judge Urquhart dismissed Ms Klewer's appeal against Senior Constable Walter's successful AVO application and the Local Court order was confirmed.

Proceedings 8622 and 8623 of 2002

114 These two actions were heard together. In action 8622 Ms Klewer sued the State of New South Wales claiming damages as a consequence of events that occurred between 9 and 14 June 1995. The cause of action was based on trespass to Ms Klewer's person and property. She also alleged false imprisonment and wrongful arrest. Alternatively she claimed that the defendant was negligent in inflicting nervous shock upon her. As a consequence she claimed compensatory, aggravated and exemplary damages.

115 In action 8623, five of Ms Klewer's seven children, then aged 20, 18, 16, 14 and 11, sued the State of New South Wales, two officers of the Department of Community Services and one police officer, alleging that the State through those agents and servants, between 9 and 16 June 1995 assaulted them, committed trespass to the land on which they were housed and falsely imprisoned them. As a consequence they too claimed compensatory, aggravated and exemplary damages.

116 The proceedings passed through several courts and files. Proceedings 8622 of 2003 had their origin in Local Court proceedings 444 of 1998, which Ms Klewer commenced by ordinary statement of claim filed in the Local Court at Coffs Harbour on 9 June 1998. The defendant was the State of New South Wales, and Ms Klewer claimed damages based upon loss of civil liberty and nervous shock said to have arisen out of actions by officers of the Department of Community Services in seizing her five children on 9 June 1995. In an affidavit sworn on 26 June 2001 by Sophia Mackenzie, a solicitor then employed in the office of the Crown Solicitor, in support of a notice of motion to strike out the proceedings or stay them pending security for costs, she asserted that the ordinary statement of claim in proceedings 444 of 1998 was incompetent because it was not served in compliance with Part 5 of the Local Courts (Civil Claims) Rules 1988. She also asserted that no reasonable cause of action was disclosed on the pleadings.

117 On 10 April 2001 Ms Klewer filed a notice a motion in the District Court at Coffs Harbour seeking orders that the matter be transferred to that court. The motion was heard by Judge Rolfe on 17 May 2001 and dismissed with costs. On 14 June 2001 Ms Klewer filed a holding summons for leave to appeal to the Court of Appeal against the decision of Judge Rolfe. Subsequently, on 6 August 2001, Ms Klewer filed a further proceeding in the Court of Appeal by way of summons for judicial review of Judge Rolfe's decision. In the interim, the State's motion to strike out or stay the proceedings was filed on 27 June 2001, and Ms Klewer's motion for orders extending time for service of the statement of claim was filed on 11 July 2001.

118 On 8 August 2001 Ms Klewer's children commenced proceedings 111 of 2001 in the Port Macquarie District Court, which ultimately became proceedings 8623 of 2002. Ms Klewer's daughter Susan was the first plaintiff and her other children Laura, Lisa, Robert and Ryan were second plaintiffs through Ms Klewer as their next friend. The defendants were respectively the State of New South Wales, Barbara Beadle, Anthony Hall and Graham Forbes. In these proceedings the children each claimed $750,000 damages (compensatory, aggravated and exemplary) for assault, battery and false imprisonment. The claim was said to have arisen out of actions by officers of the Department of Community Services in seizing the children on 9 June 1995.

119 On 28 August 2001 Ms Klewer's Local Court proceedings were transferred to the Downing Centre as proceedings 10650 of 2001. Ms Klewer's motion for extension of time for service of the statement of claim in those proceedings was granted on 4 October 2001. In the interim, on 21 September 2001, the Court of Appeal proceedings initiated by the holding summons had been deemed to be discontinued and the file closed. Ms Klewer was not in attendance when the proceedings initiated by summons were called over on 24 September 2001. On 8 October 2001, Ms Klewer discontinued these proceedings also.

120 By motion dated 12 October 2001 Ms Klewer sought leave to remove each of Local Court proceedings 10650 of 2001 and the children's proceedings 111 of 2001 to the Coffs Harbour District Court. The motion in respect of the children's proceedings was unopposed and Judge Coolahan granted the motion in respect of the Local Court proceedings on 27 June 2002. Local Court proceedings 10650 of 2001 thus became District Court proceedings 71 of 2002.

121 In these proceedings Ms Klewer alleged that on or about 12 and 14 June 1995 while attempting to visit her children she was subjected to intentional physical force and intentional intimidatory behaviour by the defendant while being arrested and held in custody. Ms Klewer further alleged that the defendant "intentionally or negligently inflicted nervous shock" upon her, "intentionally and without lawful excuse trespassed" on her land, and "falsely and wrongfully" arrested her.

122 On 18 November 2002 Ms Klewer filed notice of motion seeking transfer of the proceedings to Port Macquarie or Sydney. In her affidavit setting out the grounds for this application, Ms Klewer alleged that Judge Rolfe, who was apparently anticipated to preside at the pending Coffs Harbour civil sittings, had exhibited bias towards her in District Court proceedings number 96 of 2001. In those proceedings, Ms Klewer had unsuccessfully sought damages for alleged assaults upon her by two Coffs Harbour police officers allegedly occasioning personal injuries. Judge Rolfe had dismissed those proceedings with costs on 7 November 2002.

123 The proceedings were ultimately transferred to the Sydney Registry and listed for a five-day hearing commencing on 7 October 2003. Acting Judge Murray who delivered judgment on 12 December 2003 heard them. In each action his Honour gave verdicts and judgments for the defendants with costs. In the judgment his Honour referred to Ms Klewer's "long history of litigation". His Honour found at [77] - [78] of the judgment that:

"[77] When [Ms Klewer] was cross-examined concerning the items of history of her relationship with the Department on critical issues which reflected badly on her, she invariably prevaricated, denied or obfuscated the material put to her. I found her generally an entirely unsatisfactory and unreliable witness. She was reluctant to admit any proposition which reflected badly on her or was to her forensic disadvantage.

[78] Even when faced with incontrovertible evidence of her agreement to certain propositions, for example giving signed undertakings and her acceptance of the bail conditions following her arrest, she obfuscated or claimed that she had no memory of the events concerned."

124 His Honour also said that the decision in the case came down to a very simple question: whether before and at the time of entry by the defendants onto Ms Klewer's premises they suspected on reasonable grounds that the Klewer children were in immediate danger of abuse. His Honour concluded:

"I have formed the view that, because of the foregoing history of Mrs Klewer's conduct and because her conduct in the days immediately preceding and on the day itself, at Opal Cove, there were reasonable grounds for the officers to suspect that the children were in immediate danger of abuse.

Accordingly I find that the Defendants were justified under section 60 in entering the Plaintiff's premises and taking the children into care as they did. Accordingly in my opinion the Plaintiffs' actions must fail."

125 His Honour added the following "postscript".

"As the Plaintiff is such a well-known litigant, should this decision go on appeal, I proceed to give some indication of the damages which, if I had found otherwise, I would award.

Because of the attitude I have adopted to the claim it follows that in my view, there are no grounds for either aggravated or exemplary damages.

Aggravated damages are intended to compensate the Plaintiffs for any hurt to feelings that may have been occasioned by the tort. In this case, any hurt to feelings is in my view minimal and would be encompassed by a small award of compensatory damages."

126 Applications for leave to appeal were initiated by each of Ms Klewer and her children. Each application was dismissed. An application for special leave to appeal to the High Court of Australia was ultimately deemed abandoned.

Proceedings 52/10203 of 2005

127 This was an appeal by Ms Klewer, from a decision of Magistrate Lyon refusing to issue an AVO against Andrew Dykes. There was a directions hearing before Judge Nield on 18 July 2005. The court file reveals that directions were made in relation to applications for fresh evidence. That same day Ms Klewer wrote to Judge Nield via his Honour's Associate in the following relevant terms:

"I seek an apology for your demeanour in Court today. I also need an apology in person at such time the matter is listed next. You strike me as a frustrated fool who felt that he had to take the opportunity to prove himself so in public. Your behaviour only shows what an unprofessional you really are.

I spoke to solicitor Hougo Schlieger [sic] who was present in Court today and he agrees that you stepped over the line. Furthermore you're a liar . . . I do not tollarate [sic] persons in your positions acting like you do, but then again in general you Australians are low lives. You're jealous of other cultures because they're better."

128 The hearing of the appeal commenced on 4 August 2005 before Judge Nield. The court file states:

"Hearing commenced and during the proceedings Ms Klewer left the Courtroom and did not return. Stood over to 10am 5/8/05."

129 It appears that Ms Klewer sent a facsimile to the judge's Associate later that day. In the facsimile she stated:

"I shall not return to Court tomorrow. I have just received some shocking news which is devastating, as a matter of fact I shall not survive it. But regarding the matter before you, please look at the enclosed documents to prove that Andrew Dykes lied when he said it was not him who took out dogs on 5/02/0. I have to go."

130 The hearing continued the following day. The court file notes that in Ms Klewer's absence when the matter was called at 10.26am, his Honour delivered the following judgment:

"I dismiss Ms Klewer's appeal from Magistrate Lyons' decision. Accepting that I have original jurisdiction, pursuant to s 562W of the Act, I refuse leave to issue an AVO in favour of Ms Klewer against Mr Dykes. I consider Ms Klewer's original complaint to have been frivolous, vexatious and an abuse of the Court's process. I order Ms Klewer to pay Mr Dykes' costs of appearing on the return of the appeal.

I assess Mr Dykes' professional costs to be $2,000. I order Ms Klewer pay Mr Dykes' costs of $2,000 to the Registrar of the Local Court at Coffs Harbour within 28 days of today."

131 The file note is signed and dated by Judge Nield.

Proceedings instituted in this Court

Proceedings 11793 of 1997

132 On or about 18 June 1997 Ms Klewer filed a summons seeking an interlocutory injunction against the Department of Social Security preventing the Department from proceeding with a prosecution against her for contravening s 1347 of the Social Security Act 1991 (Cth), until such time as other proceedings were dealt with by the Administrative Appeals Tribunal. In her affidavit in support Ms Klewer stated:

"I would rather deal with the matter before the AAT and once I prove my innocence before the AAT I shall seek that such injunction remains to prevent the DSS from further prosecuting the matter in the Local Court."

133 On 27 June 1997 Ms Klewer wrote to the Registry seeking an adjournment of the directions hearing listed for 30 June 1997 as follows:

"I have just heard that the Administrative Appeals Tribunal have listed this same matter for hearing on the 7/9/97 which happens to be the same day for the prosecution case in the same subject matter before the magistrate at Coffs Harbour Court House. I am unsure whether the DSS will insist that the prosecution case should be still heard prior to the AAT hearing.

Currently I am proposing to have the prosecution case adjourned as I shall be in Sydney to attend the AAT hearing on the 7/8/97.

In the event that the DSS seeks that the AAT hearing should be stayed I shall have to proceed with my application before the Supreme Court.

Could you kindly accept by request for adjournment in my absence."

134 On 10 June 1997 the matter was stood out of the list with liberty to restore on seven days notice. On 30 November 1999 the court wrote to Ms Klewer noting that no step had been taken in the proceedings for over a year and indicating that, unless within 28 days she satisfied the court that it was desirable that an order not be made pursuant to Part 32A of the Supreme Court Rules 1970, the court would dismiss the proceedings. On 9 February 2000 Barr J dismissed the proceedings pursuant to Pt 32A r 2.

Proceedings 12884 of 1998

135 On or about 26 November 1998 Ms Klewer filed a summons naming solicitor David Malcolm as the first defendant and Magistrate Evans as the second defendant. Ms Klewer sought the following orders:

"1. That the decision made by His Worship Mr Evans at the Local Court House at Kempsey on the 17 Nov 97 regarding costs be declared void.

2. That the decision made by His Worship Mr Evans at the Local Court House at Kempsey on the 17 Nov 97 regarding costs be quashed.

3. That the defendants be restrained from enforcing such costs order made against the plaintiff."

136 The primary complaint in respect of which the costs orders had arisen had been the subject of a re-hearing in the Lismore District Court, where it had been withdrawn by consent on 29 May 1998. On or about 12 February 1999 Ms Klewer discontinued the proceedings. Despite this, on 1 September 1999, Ms Klewer was notified by the court that her application for waiver of fees in this matter had been granted.

Proceedings 30098 of 1998

137 On or about 2 October 1998 Ms Klewer filed a summons naming One Tel Pty Ltd as the first defendant and Magistrate Pugsen as the second defendant. She sought the following orders:

"1.That the decision made by His Worship Mr Pugsen at the Coffs Harbour Local Court on the 15/7/9 [sic] be declared void.

2. That the decision made by His Worship Mr Pugsen at the Coffs Harbour Local Court on the 15/7/98 be quashed."

138 In her affidavit in support of the summons Ms Klewer stated:

"I attended the Local Court Coffs Harbour on the 15 July 1998 for the hearing of a small matter.

My evidence consisted of a Notice of Grounds of Defence together with an annexure.

His Worship viewed one document I raised his attention to which ought to have directed his Worship to make a finding in my favour.

I am aggrieved by his Worship's determination and the evidence before him ought to have proven that the Plaintiff One Tel, breached the Trade Practices Act by making misrepresentation about their service."

139 On or about 23 October 1998 Ms Klewer discontinued the proceedings. Once again, on 1 September 1999, Ms Klewer was notified by the court that her application for waiver of fees in this matter had been granted.

Proceedings 10781 of 2000

140 On or about 4 April 2000 Ms Klewer filed a summons naming Ray Benson, Steven Benson and Wayne Benson respectively as first, second and third defendants, and Mr Gilson, a member of the Fair Trading Tribunal, as fourth defendant. She sought the following orders:

"1. That the decision made by M. Gilson member of the Fair Trading Tribunal on the 29/10/9 [sic] be declared void.

2. That the decision made M. Gilson at such time, be quashed."

141 An amended summons named Ray Benson Motors Pty Ltd as the first defendant and Mr Gilson as the second defendant and referred to a decision of the Fair Trading Tribunal on 29 October 1999. On 5 June 2000 Hulme J dismissed Ms Klewer's summons with costs. His Honour said the following things in the course of his judgment:

"The applicant sought such a rehearing [before the Tribunal] but it was not granted... The applicant has since sought an appeal to this Court ...

Nothing has been put before me which provides any basis whatsoever for suggesting that the Tribunal had no jurisdiction to make the order which it did, nor has anything been put before me to suggest that any question of law arises beyond such questions of law as are implicit in the ground of a denial of natural justice. Accordingly it is unnecessary to consider that basis of appeal further.

I then turn to the issue of a denial of natural justice. The applicant contends that this arose in a number of ways. One was that the Tribunal made a decision in her absence. The second was that the Tribunal seemed to be biased against her. The third, and this has connections with the second, is that the Tribunal seemed to take notice of the evidence of the person who appeared on behalf of the respondent when that person was in fact not a party to the contract which was the subject of dispute before the Tribunal. The fourth basis suggested was that the result of the proceedings is unfair to the applicant.

So far as the first is concerned, the evidence before me indicates that the applicant during the course of the proceedings before the Tribunal walked out. She said that was because it became apparent to her that she was not receiving justice. Whether that be so or not, it is not a denial of natural justice for a tribunal to make a decision in the absence of a party who deliberately chooses not to be there. The contrary would be an easy way for dissatisfied litigants to avoid decisions adverse to them...

In the result, no grounds are shown which would permit this court, in the limited circumstances for which Parliament has provided, to intervene in the way in which the applicant seeks that the Court do. Accordingly the application must be dismissed."

Proceedings 20543 of 2001

142 In a statement of claim filed 15 June 2001 Ms Klewer sued Ian Walton, Michael Hogan and the "Parish School Board" respectively for damages for the exclusion of her children from their school. By notice of motion dated 14 June 2001 Ms Klewer sought the following orders:

"1. Until further orders, the principal of John Paul College Coffs Harbour, being the first defendant be restrained from refusing admission to the school of Lisa, Laura and Robert Klewer, being the children of the applicant.

2. Until further orders, the principal of St. Augustine School, Coffs Harbour be restrained from refusing admission to the Saint Augustine School of Ryan Klewer.

3 Until further orders Parish School Board for Coffs Harbour and Sawtell, being the third defendant, be restrained from refusing admission to Lisa, Laura and Robert Klewer Catholic Schools within the parish."

143 Dowd J heard the motion on 15 June 2001. His Honour dismissed the motion stating:

"4. There is no evidence before me that her children are presently entitled to be at the schools conducted by the relevant Parish School Board, and Ms Klewer has not disclosed any legal basis for the children being entitled to be at the school ...

5. In the circumstances, I consider that no legal right has been shown for the children to attend at the school, and in any event, it may be that the incorrect parties have been shown as defendants to the proceedings, and I therefore decline to make the orders as sought."

144 In an amended statement of claim filed 2 July 2002 Ms Klewer sued the Trustees of the Roman Catholic Church for the Diocese of Lismore. On behalf of her children Laura, Robert and Ryan, Ms Klewer sought damages for the exclusion of her children from John Paul II College. The particulars to the damages claimed stated:

"Denial of Catholic School education.

Interruption of education.

Distress, humiliation and psychological harm".

145 By notice of motion filed 16 June 2003 Ms Klewer sought to set aside two subpoenas, issued by the Trustees and addressed to the Department of Community Services and the Sydney Children's Hospital. Assistant Registrar Howe held that the subpoenas had a legitimate forensic purpose and declined to accede to the orders sought. Accordingly he dismissed the motion.

146 The proceedings first came on for hearing before Simpson J on 18 May 2004. There was no appearance by Ms Klewer. Various witnesses were in court ready to give evidence. As her Honour had received some communications from Ms Klewer, she stood the matter over to 19 May 2004 stating:

"I think having in mind the great expense and inconvenience involved, I will stand the matter over until [19 May 2004] but only for the purpose of enabling Ms Klewer to make an application if she wishes to do so, that I disqualify myself. I will vacate the hearing of this matter and if no application is made tomorrow I will dismiss the statement of claim."

147 The next day her Honour delivered the following judgment:

"[1] When this matter was called on for hearing yesterday at 10am I briefly outlined what had occurred outside the Court room since the matter was allocated to my list. I do not propose to repeat that. The transcript of today's proceedings will disclose adequately, I think, what has occurred since that date.

[2] I would simply note this as a short summary. The matter in which Mrs Klewer is the plaintiff was listed for hearing to commence on Monday, 17 May 2004. No Judge was available on that day. But, during the course of Monday the matter was listed before me to commence on Tuesday 18 May at 10am.

[3] It seems that the processes of the Registry brought that to Mrs Klewer's attention, whereupon she asked that I not hear the matter and that some other judge be allocated to hear it. She was told that she would have to make an application if she wished me to disqualify myself, but she advised that she proposed to leave Sydney and return to Coffs Harbour with her daughter who, it seems, was proposed to be a witness in the proceedings.

[4] The matter was called on and the defendant was represented by counsel and I was told that seven witnesses were in attendance, all of them having traveled from the Coffs Harbour area for the purpose; that being at the request of Mrs Klewer who wished them to attend for cross-examination on statements which apparently they had made and that have been served. Thereafter, I have received a number of bulky facsimiles from Mrs Klewer, including one which she specifically asked me not to disclose to the defendant and which has, therefore, not been disclosed, but which remains on the file and which I consider it inappropriate to take into account, given that the defendant is unable to deal with the matters there raised.

[5] I have twice previously dealt with matters involving Mrs Klewer in which she has been the plaintiff and in each of which she has been unsuccessful. Neither of them has involved any findings as to her credibility.

[6] I do not feel embarrassed in proceeding to deal with matters involving Mrs Klewer. One question which arises is whether a reasonable observer would perceive that I would fail to bring an impartial mind to bear on the matters involved in the present litigation. Having regard to the issues raised in the previous matters, I do not think that could reasonably be concluded.

[7] One of the matters raised by Mrs Klewer in her facsimile communications has been her desire to seek legal advice as to whether there is any basis to seek my disqualification. That has given me some pause, but the fact is that Mrs Klewer was apparently in Sydney on Monday. She was expressly advised that if she wished to make an application for my disqualification she should do so in person on Tuesday morning. She elected to leave Sydney and to conduct all communications by facsimile messages.

[8] I have to balance the wish of Mrs Klewer to receive legal advice, which seems to be limited only to one issue, against the expense and inconvenience caused to the defendant and to do that in the light of the issues raised in the proceedings, so far as I can appreciate those. As I said, there were seven defence witnesses in attendance on Tuesday morning and it may be that they were also in attendance on Monday; I do not know about that.

[9] I have come to the view that this litigation should come to an end. The Court cannot impose upon the defendant the further costs and inconvenience of maintaining this litigation. Mrs Klewer has been given every opportunity to pursue the claim or to make an application in proper form for my disqualification.

[10] Further, the Court itself cannot be manipulated and its processes should not be used in such a way as to deprive other litigants of their rightful place in the queue to have matters determined.

[11] Accordingly, I have come to the view that the statement of claim should be dismissed and I so order.

[12] I order that the plaintiff pay the defendant's costs of the proceedings. Mrs Klewer can have liberty to apply in relation to that order. Any application by Mrs Klewer in relation to the order for costs should be made within fourteen days of today's date."

148 Five months later, on 20 September 2004, Ms Klewer approached Wood CJ at CL. Ms Klewer stated to his Honour:

"I was absent, I produced a medical certificate and that medical certificate was produced to the Associate that very morning."

149 Hall J eventually heard the proceedings over four days from late April to early May 2005. His Honour gave a verdict and judgment in favour of the defendant, and ordered Ms Klewer to pay the defendant's costs. In conclusion his Honour said the following:

"[116] On the basis of findings made and recorded earlier in this judgment, the following conclusions in relation to liability are made:-

(a) There is no basis for the implication of the implied terms alleged and relied upon by the plaintiff.

(b) The termination of Robert Klewer's enrolment was the result of the plaintiff's own conduct and not a consequence of action taken by the defendants.

(c) On this basis, there was no breach of contract in relation to the termination of Robert Klewer's enrolment.

(d) There existed a cogent and proper basis for the decision to terminate the enrolment of Laura and Ryan Klewer, namely, the repeated failure by the plaintiff to pay fees:-

(i) due and owing under the contract relevant to each enrolment;

(ii) pursuant to agreements reached for the payment of school fees at a reduced level;

(iii) the conduct of the plaintiff in failing to co-operate and provide evidence of an inability to pay fees. Such conduct including reduced school fees, constituted repudiatory conduct by the plaintiff in relation to the agreements entered into by her for payment of school fees.

[117] It follows from the above findings and conclusions that there must be a verdict and judgment in favour of the defendants."

150 While it was strictly speaking unnecessary for his Honour to address the question of damages claimed by Ms Klewer, he said that out of deference to her submissions he would make some limited observations in relation to that issue. He said:

"[119] The plaintiff, in a document (MFI 3), set out in outline particulars as to the basis of the claim and losses alleged to have resulted from the breaches relied upon.

[120] In general terms, the document records the contention that, as a result of the breaches alleged, the plaintiff's children, Laura and Ryan, would suffer psychological harm and disruption to their education and that this would impact upon their future academic achievements in their future careers.

[121] Separate allegations are made in respect of claimed losses by Robert. The particulars of relief claimed include:-

(a) Compensate the children from their losses;

(b) to obtain an order against the defendant for costs required to pay for private tuition for the children ...

(c) to compensate the children for their suffering, eg., distress, shame and embarrassment, depressive symptoms.

(d) to compensate the children for the loss of their future academic and future potential that lead to compensate the children's mother for the grief she suffered by watching her children suffer and her inability to continue to ensure the provision of the quality and standard of education provided until March 2001.

[122] There was very little evidence tendered in support of these identified heads of claim. The evidence is principally to be found in the following reports . . .

[123] The various assessment, psychological and other reports in evidence establish the following:-

These reports do not support the claim made for damages as particularised. The evidence does not establish any causal link between any action by the defendants with respect to Robert or Ryan. There is very limited assessment of Laura which I have identified. There is some evidence to support the claim of some emotional upset and unspecified health problems. There is no evidence of any progress by Laura since last assessed and what, if any, tuition has been provided to her as recommended."

Proceedings 13825 of 2001

151 By summons filed 14 December 2001 Ms Klewer sought the following orders:

"(1) An order that:

The respondent, Peter Rheinberger, L.C.M. of Coffs Harbour Local Court be prevented from hearing any matters involving the plaintiff, Lucy P Klewer.

(2) The respondent, Peter Rheinberger, transfers all pending matters involving the plaintiff to the Downing Centre Local Court Sydney.

(3) Any other orders the Court deems fit."

152 In her affidavit in support Ms Klewer stated:

"2. ... Due to past experiences in that court I will not get a fair hearing ...

I do not believe that I will get a fair hearing at Coffs Harbour, this has been the case on all occasions since 1994 in both criminal and civil matters."

153 On 31 July 2001 at Ms Klewer's request Magistrate Rheinberger transferred all matters from Coffs Harbour Local Court to the Downing Centre except for one, which was a social security charge. In September or October 2001, that order was countermanded by the Deputy Chief Magistrate at the Downing Centre Local Court and the matters were re-transferred to Coffs Harbour, to be heard by a Sydney-based magistrate.

154 The background to the application was that on 31 July 2001 Magistrate Rheinberger acceded to an application by Ms Klewer that charges of resisting an officer, custody of a knife, common assault, wielding of knives and false representation resulting in police investigation, and applications for AVOs, which all involved her and were listed to be heard in the Local Court at Coffs Harbour, should be transferred to the Downing Centre. In a letter to Magistrate Rheinberger dated 30 May 2003 Ms Klewer had stated:

"I insist on a fair hearing, and you are very well aware that there are serious problems with this registry. . . . I have gone through many lengths to have decision made here reviewed or appealed in higher courts and by allowing the existing matters to be heard here I am 100% certain that I will have to continue doing just that for the next few years...

So as you can see, I do not get justice here...

As you are most probably aware, the course of all the problems originates from the conduct of the local police which unfortunately goes back to a time in 1991 when I made a successful complaint against police to the NSW Ombudsman. The hatred toward me and my family is immense and I could produce many records by them to suggest this. Of course then the police influence the Registry staff and in turn judicial officers, so the end result is always against me. I have no credibility with your court and you know that."

155 Magistrate Rheinberger said the following:

"Application is made by Ms Klewer in relation to charge matters on 15 February 2001 and in relation to summons matters on 5 April 2001, that the matters be transferred to Sydney. That application is on the basis that I am presently part heard in relation to a matter involving Ms Klewer and it would not be possible for me to proceed to hear these matters. As I understand it, the other Magistrates in this area are also unable to hear matters and there are two alternatives therefore, that the matters either be transferred to Sydney, or that the matters be left for hearing here and arrangements made for a Magistrate or Magistrates to attend to hear the matters. I am aware that there are other matters as well that need disposing of, in addition to these charge matters and summons matters.

An arrangement which would involve a Magistrate coming to Coffs Harbour, is not likely to be able to dispose of all matters and it's likely that it would then involve arrangements on a number of occasions to have Magistrates come to Coffs Harbour to hear matters. I appreciate the costs involved in transferring the matters to Sydney, but it appears to me that having regard to what Ms Klewer has set out in relation to her reasons for transfer to Sydney, that justice must not only be done, but be seen to be done and I really don't see any alternative but to transfer the matters to Sydney as requested."

156 After the matters were transferred to Sydney, they were all later referred back from the Downing Centre in October 2001 to Coffs Harbour on terms that a Sydney magistrate would hear them. On 5 December 2001 an application was made by Ms Klewer for Magistrate Rheinberger to disqualify himself from hearing the social security charge against her on the grounds of apprehended bias. Ms Klewer retained legal representation on this occasion and Mr Abdul-Karim submitted that the "fundamental" basis for the application was that Ms Klewer had made a complaint to the Independent Commission Against Corruption against Magistrate Rheinberger. He also submitted that there was a "climate of hostility and bias" in the court that prevented Ms Klewer from receiving a fair hearing in Coffs Harbour. The application was rejected in terms that included the following:

"In my view I had taken those steps to ensure that Miss Klewer's matters were dealt with expeditiously and by a person who could not claim to be biased. It does not appear to me that, in relation to my involvement with Miss Klewer, having regard to the fact that it is my responsibility to administer this Court, that there could be any perception of bias.

The additional question arises as to whether the fact that she had made a complaint to the Independent Commission Against Corruption should affect the matter. It does not appear to me that the making of such a complaint should affect the situation. As far as I am aware that complaint is based upon my dealings with her in this Court.

I should perhaps add that although I take the view that there is no apprehension of bias, if I had not been part heard in this matter I would have acceded to her request to try and arrange for another magistrate to hear the matter on the basis that I think it is good policy for a magistrate not to hear a matter if a complaint is pending against him in any tribunal involving that person. However, I do not believe that it raises, in this case, any apprehension of bias and because I take the view that I am part-heard I do not propose to disqualify myself in relation to this matter."

157 Thus Ms Klewer's summons was filed on 14 December 2001 seeking orders preventing Magistrate Rheinberger from hearing any matters involving Ms Klewer. An affidavit sworn and relied on by her dated 26 June 2003 commenced as follows:

"Since 1994 I have been involved in many matters before the Coffs Harbour Local Court, most matters commenced by police where they continually charged me or summonsed me without investigating or properly investigating allegations.

The local police department do not have any regard for myself or members of my family since I made a complaint to the NSW Ombudsman which found against police and recommendations made to the Police Service.

The local police officers are frequently seen behind the counter mingling and communicating with the court registry staff.

The Local Court registrar, Cliff Weebeck has refused to speak to me since 1996. I am black-listed on police records and I have not been given an explanation as to why. The Local Police Commander P. Wadsworth refuses to tell me why I am black-listed yet he says that his officers spread many rumours about my family...

8. I have from time to time when I attended the Local Court Registry observed that staff and judicial officers share a common tearoom..."

158 On 3 February 2003 Ms Klewer filed a notice of motion seeking an order that Magistrate Rheinberger be prevented from hearing a Federal prosecution on 12 March 2003. On 24 February 2003 Levine J heard the motion and ordered that the Attorney General be joined as a party. His Honour also made an order that Magistrate Rheinberger no longer hear the matter which was before him between the Department of Social Security and Ms Klewer on 4 December 2001. His Honour said:

"[11] I must say that there is an aspect of this application that has troubled me in the context of those principles. It relates to some observations made by Mr Rheinberger at p 10 of the transcript of the proceedings before him on 5 December 2001. Whilst it seems clear that his Worship was quite unpersuaded, and properly unpersuaded, in relation to the various earlier matters referred to in Mr Roser's application, his Worship, in the context of being informed that a complaint had been made about him to the Independent Commission Against Corruption, said as follows at lines 20 to 30:

'I should perhaps add that although I would take the view that there is no apprehension of bias, if I had not been part heard in this matter I would have acceded to her request to try and arrange for another magistrate to hear the matter on the basis that I think it is good policy for a magistrate not to hear a matter if a complaint is pending against him in any tribunal involving that person. However, I do not believe that it raises, in this case, any apprehension of bias and because I take the view that I am part heard I do not propose to disqualify myself in relation to this matter'.

[12] I am not concerned with the outcome of any such complaint to ICAC. I am concerned with the matter of impression that the words his Worship uttered on that occasion could reasonably be taken to have given. It is unquestionably the law that merely because a case is part heard before a Judge does not constitute sufficient reason for that Judge hearing it to conclusion if those proceedings are otherwise flawed in the context of a reasonable apprehension of bias (see Klewer v Dutch (2000) 99 FCA 217).

[13] As I understand it, his Worship viewed himself as part heard in these proceedings by reason of his having dealt with an application in respect of a question of duplicity. In so far as having dealt with any such application provided some basis for the view to which he came as being part heard, his Worship on the one hand rejected the fact of a complaint to ICAC as a matter affecting the situation.

[14] On the other hand, his Worship curiously said in any event had he not been part heard he would have taken the same course in relation to the social security matter as he had taken in relation to all those other cases.

[15] Without doubt no litigant whether represented or otherwise should consider that the making of a complaint to an investigatory body such as ICAC or the Judicial Commission about a Judge hearing that litigant's case will automatically involve that Judge self-disqualifying. The reasons are obvious. It would be a mechanism of much mischief in the administration of justice if that course could be taken with such facility.

[16] I am troubled by his Worship having disposed as it were of other matters yet coming to the view represented in the elliptical paragraph of his reasons which I have cited. Exceptionally, and I cannot stress that too strongly, in that context, what his Worship said leads to the standard of reasonable apprehension to which the courts have referred being met and, accordingly, I direct that those proceedings proceed no further before him."

159 However, an appeal to the Court of Appeal (proceedings 40202 of 2003) by the Attorney General was successful: Attorney General of New South Wales v Klewer [2003] NSWCA 295. Davies AJA, with whom Mason P and Meagher JA agreed, said in his judgment on 15 October 2003 that:

"[18] Levine J did not find that a reasonable apprehension of bias arose from the Magistrate's remarks of 31 July 2001. I agree with his Honour. Although, his Worship's remarks were somewhat elliptical, their only possible meaning was that, as the Magistrate was part heard in relation to the Social Security case, he would transfer the other matters to Sydney to be dealt with by other magistrates. No inference could be drawn from the remarks that the Magistrate would not bring an impartial, unprejudiced mind to the matter which he retained.

[19] However, Levine J considered that a reasonable apprehension of bias arose from remarks of Magistrate Rheinberger in the last paragraph of his reasons of 5 December 2001, which I have set out above. Levine J said:-

"I am troubled by his Worship having disposed as it were of other matters yet coming to the view represented in the elliptical paragraph of his reasons which I have cited. Exceptionally, and I cannot stress that too strongly, in that context, what his Worship said leads to the standard of reasonable apprehension to which the courts have referred being met and, accordingly, I direct that those proceedings proceed no further before him."

[20] In my view, the last paragraph of his Worship's reasons raised no apprehension of bias on his part. He had already made it clear that his handling of the proceedings in which Mrs Klewer had been involved did not, in his view, raise any reasonable apprehension of bias. In this circumstance, his Worship's remarks did not suggest that, in his view, there was any reasonable apprehension of bias. His Worship simply referred to what he regarded as "good policy". His Worship was incorrect in that view for it is not good policy and certainly not appropriate that a judicial officer should disqualify himself just because one of the parties before him has lodged a complaint with the Independent Commission Against Corruption. A judicial officer should disqualify himself only if there are facts which raise a reasonable apprehension of bias on his or her part. Nevertheless, the reference to "good policy" did not suggest that Magistrate Rheinberger would fail to be impartial and unprejudiced in his handling of Mrs Klewer's case. Indeed, the reference to what he regarded as good policy showed that the Magistrate kept in the forefront of his mind the need to be and to be seen to be without bias."

160 The Court of Appeal overturned the order made by Levine J that Magistrate Rheinberger not hear the Department of Social Security prosecution, and ordered that Ms Klewer's particular application be dismissed with costs. Ms Klewer's motion to stay the orders of the Court of Appeal was dismissed with costs. Pending the determination of the Attorney General's appeal, Dowd J made consent orders on 16 June 2003, pursuant to Ms Klewer's notice of motion filed 29 May 2003, including an order that:

"The Magistrates of New South Wales are not to list for hearing any pending matters at Coffs Harbour Local Court involving the plaintiff until further order."

161 On 30 October 2003, the Attorney General moved for orders dismissing Ms Klewer's summons in its entirety pursuant to Pt 13 r 5(1)(a) and/or (c) of the Supreme Court Rules 1970. This motion was initially listed for hearing before Master Malpass, as his Honour then was, on 4 February 2004. He noted that the relief sought in the Attorney General's motion included an order vacating the interlocutory orders of Dowd J, and accordingly adjourned it for hearing by a judge. In the course of his reasons, Master Malpass observed the following:

"The matter raised by the first order sought by the plaintiff in the Summons has now been finally disposed of by the Court of Appeal. Any challenge to the decision of the Court of Appeal has to be made elsewhere. The plaintiff has not pursued any such challenge and apparently does not intend to do so.

Despite this, the plaintiff has persisted with a contention that the decision of the Court of Appeal is founded on error. The alleged error is presented as being a misconception as to the first defendant being part heard in the Social Security charge.

During the course of argument, I sought to bring to the attention of the plaintiff certain of the problems that beset this contention.

This court is bound by the decision of the Court of Appeal. She has not taken the course of challenging the decision.

Leaving that matter aside, it seems to me that the submission was otherwise devoid of substance. In my view, it does not matter whether the first defendant was part heard or not. The decision of the Court of Appeal was based on its rejection of her contention that there was an apprehension of bias."

162 On 7 April 2004 the matter came before Simpson J by way of a motion filed on 30 October 2003 by the Attorney General seeking orders that the summons be dismissed generally pursuant to Pt 13 r 5(1)(a) and/or 5(1)(c) of the Supreme Court Rules. It is convenient to set out her Honour's judgment in full:

"[1] By summons filed in this court on 14 December 2001 the plaintiff, Lucy Klewer, claims orders as follows:

'(1) An order that:

The respondent, Peter Rheinberger, L.C.M. of Coffs Harbour Local Court be prevented from hearing any matters involving the plaintiff, Lucy P Klewer.

(2) The respondent, Peter Rheinberger, transfers all pending matters involving the plaintiff to the Downing Centre Local Court Sydney.

(3) Any other orders the Court deems fit.'

[2] The proceeding before me is a notice of motion filed on 30 October 2003 by the Attorney General for New South Wales seeking orders that the summons be dismissed generally pursuant to Pt 13 r 5 (1) (a) and/or (c) of the Supreme Court Rules 1970. However, there have been a number of other proceedings in relation to the summons in the meantime. It appears that the matters to which the summons alludes are both civil and criminal matters listed in the Coffs Harbour Local Court.

[3] On 31 July 2001 at the plaintiff's request Mr Rheinberger transferred from Coffs Harbour Local Court to the Downing Centre all matters except for one, which was a social security charge. In September or October 2001 that order was countermanded by the Deputy Chief Magistrate at the Downing Centre Local Court and the matters were re-transferred to Coffs Harbour, to be heard by a Sydney-based magistrate.

[4] The social security charge came on for hearing on 5 December 2001 on which occasion the plaintiff asked Mr Rheinberger, to disqualify himself. He declined to do so. That prompted an application to this Court by the plaintiff seeking an order that Mr Rheinberger be prevented from hearing that particular proceeding. That matter came on for hearing before Levine J in February 2003. Levine J made orders favourable to the plaintiff, that Mr Rheinberger be disqualified from proceeding with the hearing.

[5] The Attorney General appealed against that decision. On 15 October 2003 the Court of Appeal set aside Justice Levine's order and ordered that the magistrate proceed with the hearing.

[6] The basis on which the application was made to Levine J and on which the appeal was decided, was the plaintiff's assertion that Mr Rheinberger was biased or, alternatively, that a reasonable observer would apprehend that Mr Rheinberger was biased.

[7] The Court of Appeal made clear that there was no reason for such a perception and that Mr Rheinberger should proceed with that particular matter.

[8] The case made on behalf of the Attorney General pursuant to the notice of motion is that effectively the matters raised by the plaintiff in the summons have been the subject of a decision by the Court of Appeal.

[9] For that reason and, having regard to the width of the terms of the summons, I pressed Ms Klewer as to the basis on which she claims the orders in the summons which are, as I said, wider than those that were before Levine J and the Court of Appeal. She told me that the reason she sought the removal of all matters and the effective disqualification of the magistrate at Coffs Harbour was to do with what she regarded as the unsatisfactory behaviour of Registry staff in Coffs Harbour.

[10] The matter is complicated by this circumstance. On 16 June 2003 when the Court of Appeal proceedings were pending the plaintiff filed a notice of motion which came before Dowd J. By consent Dowd J ordered that magistrates of New South Wales not list any hearing of pending matters in the Coffs Harbour Local Court involving the plaintiff until further order.

[11] The matter then came before Master Malpass on 4 February 2004 who referred to the order of Dowd J and held that he had no jurisdiction to vacate or vary those orders.

[12] If it be the case that the plaintiff, contrary to her responses to me today, wishes to continue to assert bias on the part of Mr Rheinberger, that issue is concluded by the judgment of the Court of Appeal.

[13] In a wide-ranging argument before me today the plaintiff appeared to challenge the basis upon which the Court of Appeal made its decision, but it is of course not open to me, or indeed to her, to challenge those rulings in this court. The issue of bias is concluded against the plaintiff.

[14] The only thing remaining is whether the other orders which the plaintiff would seek to advance as being reasons for preventing Mr Rheinberger from continuing to hear matters that involve her, are the matters raised by her in response to my questions concerning behaviour of the Registry staff. In my opinion those matters are not capable of going to whether Mr Rheinberger should be disqualified from hearing such matters.

[15] The second order sought by the plaintiff for transfer of pending matters falls into the same category. It can only be put forward either because of apprehended bias as to which the gate is closed, or the other matters raised by Ms Klewer in argument. They are not a basis in my opinion for a transfer.

[16] The consequence of what I have said is that the plaintiff's prospects of succeeding on her summons are negligible as they disclose no reasonable cause of action and constitute no abuse of process of the court. In accordance with Supreme Court Rules Pt 13 r 5(1) I order that the proceedings for summons be dismissed. I order the plaintiff to pay the second defendant's costs of the proceedings."

Proceedings 10266 of 2002

163 These proceedings were commenced by summons filed on 9 January 2002. The defendants were Ian Walton (Principal at John Paul II College) and Magistrate O'Keefe. The summons sought the following relief:

"An order that the decision made his Worship Magistrate O'Keefe on the 10 December 2001, at Coffs Harbour be quashed.

Such decision be declared void.

Any other order the Court deems fit."

164 Master Harrison heard the matter on 2 July 2002. The proceedings before the Magistrate are referred to earlier in these reasons. They were Ms Klewer's private prosecutions of Mr Walton for assault and making false representations in breach of s 314 and s 547B of the Crimes Act. After a contested hearing the Magistrate dismissed the informations and ordered Ms Klewer to pay Mr Walton's professional costs of $10,540 within 14 days. In respect of the false representations allegation, Magistrate O'Keefe had concluded that the evidence was not sufficient to establish a case to answer. With respect to the assault charge he had concluded:

"Mrs Klewer, really has a very weak case, it seems to me. And bearing in mind the denial on oath by Mr Walton and Mr Walsh that any physical act had occurred, this complaint must fail, that she has failed to prove the matter beyond a reasonable doubt, which is what she must do, and, therefore, THE CHARGE IS DISMISSED."

165 Master Harrison said the critical question was whether a prior written statement made by a police officer should have been admitted as evidence and whether that officer should have been treated as an unfavourable witness. Ms Klewer submitted that had the statement been admitted into evidence, it would have proved she had been assaulted and that that evidence would form the basis upon which the two other charges would have been proved. Her Honour concluded:

"[34] While the plaintiff did submit that Sergeant Levey should be regarded as an unfavourable witness she did at the earliest opportunity say that he was a reluctant witness and later referred to Sergeant Levey as being a hostile witness. The Magistrate ruled that she could not cross-examine him. In other words, the Magistrate did not grant leave pursuant to s 38. By that time Sergeant Levey had provided an explanation as to why there was an inconsistency between the words 'physically removed' contained in the statement and the word 'ejected' given in evidence. His explanation was that the conversation occurred nine months previously and he could not recall the exact words but he did not recall the words 'touch her' or 'use any force on her' being used. The decision to give leave pursuant to s 38(1) is a discretionary one. Even if on the evidence of Sergeant Levey it may be considered that he made a prior inconsistent statement it was open to the Magistrate in the exercise of his discretion to conclude that Sergeant Levey was not an unfavourable witness. The Magistrate was not obliged to grant leave pursuant to s 38(1). There has been no error of law.

[35] Further as the plaintiff agreed, if the assault charge was not proved the other charges would fail. There was no evidence from any police officer or other person to support the informations concerning s 314 of the Crimes Act or s 547B(1). Even if the Magistrate had allowed the critical sentence to be admitted into evidence, it would have been afforded little weight. It was a précis of what Sergeant Levey understood Mr Walton to have told him. There are no errors of law apparent in the Magistrate's orders dismissing the three charges at the summary hearing on 10 December 2001. The Magistrate's decision of 10 December 2001 is affirmed. The appeal is dismissed. The summons is dismissed. Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed."

166 Ms Klewer sought to appeal against the Master's decision. An appeal was pursued by motion filed on 12 November 2002, and was heard by Levine J on 24 February 2003. Levine J dismissed the motion with costs on the basis that the appeal was incompetent. His Honour's reasons include the following:

"[23] I have come to the conclusion that the 'proceedings' referred to in paragraph 4(a) include an appeal under Part 5 of the Justices Act. The fact that they were referred by a Judge does not trigger the operation of paragraph 4(b) to exclude those 'proceedings' from the operation of SCR Pt 60 r 17(a). It is the nature of the proceedings that is determinative in the legislative context upon its proper and sensible construction that governs the avenue of appeal.

*****

[25] It can thus be remarked that the situation is 'curious' however, as I have indicated, I am of the view that the 'hearing of proceedings' referred to in paragraph 4(a) of Schedule D Part 3 includes an appeal under Pt 5 of the Justices Act and thus is only amenable to an appeal by leave to the Court of Appeal under SCR Pt 60 r 17(a) even in circumstances where it is determined by a Master on reference from a Judge of the Division."

167 In addition, subsequently on 4 December 2002, Ms Klewer filed in the Court of Appeal a holding summons for leave to appeal against the Master's decision, together with a motion for extension of time to file the holding summons. On 3 February 2003 Registrar Schell dismissed that motion with costs stating that:

"It seems to me that despite the claimant's contentions to the contrary, that it would amount to an abuse of process to allow her to seek leave to appeal in the circumstances outlined. On the basis of the Judgment of the Master it seems to me that any appeal would be futile and doomed to failure. For those reasons and in order to protect the parties, and I say both parties, from the incurring of any additional, unnecessary costs, my discretion must be exercised so as to prevent the filing of a document which would not ultimately benefit the claimant who seeks the relief sought."

168 On 26 May 2003 Santow JA set aside the orders of Registrar Schell and extended time for the filing of a summons for leave to appeal. The application for leave to appeal was, however, ultimately dismissed with costs in an ex tempore judgment delivered on 14 October 2003. In delivering the reasons of the Court, Hodgson JA stated that:

"...in my opinion, the appeal has no prospect of success."

Proceedings 11477 of 2003

169 By summons filed on 16 June 2003 Ms Klewer sought the following orders against the Coffs Harbour City Council:

"(i) an order that [the Council] be restrained from disposing of two Labrador dogs pending the outcome of proceedings in the Local Court;

(ii) an order that the two Labrador dogs be released to the plaintiff forthwith; and

(iii) an order that the defendant pay the plaintiff's costs of the proceedings."

170 By notice of motion filed on the same day Ms Klewer claimed orders in essentially the same terms as those contained in the summons. The background to these proceedings is set out in the judgment of Simpson J delivered on 21 July 2003. As at 4 February 2003 Ms Klewer was the owner of two labradors named Jesse and Leo. They were ordinarily kennelled at her home at Coachman's Close, Korora. On 4 February 2003 the dogs escaped from Ms Klewer's yard. They were observed at a local resort in Coffs Harbour where they were pursued around a golf course and a public lagoon area, where they were eventually captured. Neither dog was carrying any identification of its owner or any indication of an address at which it was ordinarily kennelled. By the time the dogs were captured it was after 4.00pm and the council's offices were apparently closed. An employee of the resort (Alison Dykes) took the dogs to her home in Korora for the night, and, by leaving a telephone message, advised the council. The following day a council ranger, Mr Murdock, attended at Ms Dykes' home and took possession of the dogs. He tested them for the microchip information he might have expected under the requirements of the Companion Animals Act 1998 but the result in each case was negative. He therefore delivered them to the RSPCA. Thereafter there was extensive correspondence, particularly from the plaintiff to the council concerning the return of the dogs, but as at the date of hearing, they remained in council custody.

171 On 11 April 2003 Ms Klewer filed an application in the Administrative Decisions Tribunal of New South Wales seeking review of the decision of the council. The application was dismissed by ADT judicial member Higgins, who held that the ADT had no jurisdiction to hear the application. This was because Ms Higgins held that the dogs had been seized under the powers conferred by the Act and that such decisions were not among those subject to ADT review.

172 On 5 March 2003, in the Local Court in Coffs Harbour, the plaintiff laid an information alleging that, in failing to return the dogs to her, Mr Murdock had contravened s 62 of the Act. By information laid and summons filed on 29 April 2003, Gordon Polkinghorne, senior ranger of the council, charged the plaintiff with two counts of unlawful ownership of unregistered dogs, in contravention of s 90 of the Act, and two counts of ownership of dogs that did not have collars and name tags around their necks, in contravention of s 12 of the Act. The substantive orders that Ms Klewer sought in the Supreme Court proceedings were orders for preservation of the dogs pending the outcome of her s 62 prosecution of Mr Murdock, and immediate release of the dogs to her.

173 Simpson J heard the matter on 21 July 2003. Her Honour was satisfied that the dogs were seized at the resort under the authority of the Act by resort employees. What Mr Murdock had done was to take delivery of the dogs in broad compliance with s 62 of the Act. Her Honour held:

"In my opinion, the evidence in this court establishes that there is no reasonable prospect that the plaintiff can make out a case against Mr Murdock for contravention of s 62. This is for two independent reasons: firstly he was not the person who seized the dogs under the authority of the Act, and was therefore not bound by s 62(1) to deliver them to their owner; secondly, neither at the time of seizure nor at the time Mr Murdock took custody of the dogs (nor within a reasonable time thereafter) was it possible to identify their owner. Section 62 required delivery of the dogs to the Council pound. Once that was done, the provisions of s 63 overtook the provisions of s 62. In reaching the conclusion that the plaintiff has no reasonable prospect of making a case against Mr Murdock under s 63, I apply the test of whether she has established that there is a serious question to be tried. In concluding that she has not, I do not intend to pre-empt the findings of the Local Court: the evidence there may be quite different. My conclusions are confined to the evidence adduced before me."

174 Shortly afterwards Ms Klewer was granted an interlocutory injunction from the Court of Appeal. Her application for leave to appeal was, however, ultimately dismissed.

Proceedings 12804 of 2004

175 On 27 August 2004 Ms Klewer filed a summons naming as the first of three respondents Magistrate Fleming and seeking the following primary relief:

"The first Respondent be prevented from dealing with the sentencing hearing listed before Her on 15 November 2004 and any other matter.

That her decision of 20 August 2004 at Coffs Harbour Local Court be declared nul [sic] and void and thereby the convictions quashed.

That the matter be heard di novo [sic] before an alternate magistrate."

176 The decision of 20 August 2004 in respect of which relief was sought was Ms Klewer's conviction on five criminal charges arising out of an incident on a public walkway at Opal Cove Resort at Coffs Harbour in the course of which it was alleged Ms Klewer had brandished a knife in the presence of her neighbours, Mr and Mrs Gintowt. The proceeding was ultimately heard and determined by Adams J on the basis that it was an appeal on a question of law alone pursuant to s 52(1) and/or an application for leave to appeal on a question of fact or fact/law pursuant to s 53(1) of the Crimes (Appeal and Review) Act 2001. Insofar as the proceeding was an application for leave to appeal on a question of fact or mixed law and fact, Adams J concluded that:

"[10] It is obvious ... that it was open to the learned magistrate to conclude that the plaintiff's own accounts of the arrest provided significant support for – indeed, was capable of establishing – the plaintiff's guilt of the charges. Moreover, the learned magistrate was entitled to rely on the evidence of the police officers which in a number of respects was supported by the evidence and the admissions of the plaintiff, although her account plainly contradicted significant parts of the officers' testimony. Weighing up the differing accounts was entirely within the proper exercise by the learned magistrate of her fact-finding function and I can discern no error in her Honour's reasoning."

177 Of Ms Klewer's evidence, his Honour observed that:

"[29] The evidence of the plaintiff – perhaps not surprisingly – was marked by continuous argumentative advocacy of her case and what she believed was Mr Gintowt's gross irresponsibility so far as controlling his dog was concerned. It seems to me that the plaintiff's evidence also showed she had a distinct tendency to exaggerate."

178 Adams J concluded that:

"[40] So far as leave is sought to appeal as to any question of fact or question of mixed fact and law, the plaintiff should be refused leave, there being no merit in her complaints in these regards. So far as the plaintiff's contentions involve pure errors of law, they are also without merit. It follows that the appeal must be dismissed with costs."

Proceedings 10788 of 2005

179 By summons filed on 7 March 2005 Ms Klewer named Coffs Harbour City Council as a defendant and sought the following orders:

"1. The decision of Stoddart LCM at Coffs Harbour Local Court on 4 March 2005 (that is three days before hand) whereby his Honour dismissed [her] application where she sought that an order [to pay two civil debts by instalments at the rate of $580 per month] made by the Court on 24 February 2005 remains.

2. That the Respondent Coffs Harbour City Council be prevented from executing the two writs on the [her] family residence at Korora NSW.

3. Costs."

180 By amended summons filed 7 March 2005 Ms Klewer sought an additional order, namely:

"The costs (assessed) be reviewed under s 208NC [of the] Legal Profession Act, with leave under s 208M."

181 The decision against which Ms Klewer sought relief is disclosed in the transcript of the Local Court hearing is said to have been Magistrate Stoddart's dismissal of a motion to set aside an order of the Local Court Registrar refusing to adjourn the hearing of, and refusing, Ms Klewer's application for an instalment order. In her affidavit in support of the summons Ms Klewer stated on oath the following matters, among others:

"10. I found his Honour to be most unreasonable and out of order."

182 It appears that Ms Klewer was not present in court when her application was specially fixed for hearing on 6 July 2005. On 16 June 2005 the solicitors for the defendant council noted advice that Master Malpass had in chambers vacated that fixture and listed the matter for directions. A court file note records that the matter was subsequently fixed for hearing together with proceedings number 11571 of 2005 on Friday 21 October 2005. On 18 October 2005, Ms Klewer sought to vacate the hearing of the two matters. On 14 August 2006 Ms Klewer discontinued the proceedings.

Proceedings 11571 of 2005

183 By summons filed on 22 April 2005 Ms Klewer named as defendants Magistrate Lyons and the Coffs Harbour City Council. She sought the following orders:

"The decision of Lion [sic] LCM at Coffs Harbour Local Court on 19 April 2005 whereby He proceeded to strike out [her] defence in such claim be wholly or partly set aside.

The decision of Lion [sic] LCM at Coffs Harbour Local Court on 19 April 2005 where by He proceeded to set aside a subpoena be revoked.

Costs."

184 Ms Klewer filed a 13 page handwritten affidavit in support of her application. On 7 June 2005 the defendant council filed a notice of motion for orders striking out Ms Klewer's summons to the extent that it sought revocation of orders setting aside certain subpoenas that had been served by her. An affidavit in support of that motion indicates that the subpoenas to which the relevant orders related had been issued by Ms Klewer in a prosecution of her by the council for alleged breaches of the Companion Animals Act. The council's motion was later dismissed by consent with no order as to costs on the basis of a notation by the Court that the relief sought in the summons was to relate only to particular civil proceedings, not including those in respect of which the council's motion had sought relief.

185 Subsequently, on 22 June 2005, Ms Klewer filed a notice of motion seeking an extension of time for leave to amend her summons:

"...to include appeal against the decision of the 2nd respondent, Lyons LCM at Local Court Coffs Harbour of on [sic] 19 April 2005 where He proceeded to set aside a 2nd subpoena in a criminal matter commenced by Coffs Harbour City Council, 1st respondent."

186 A draft amended summons that was faxed to the court together with this notice of motion included as additional grounds of Ms Klewer's application:

"That His Honour failed to find that it was fair and just that the subpoena for the production of the relevant Council file was essential for the plaintiff to defend the Council's claim against her."

187 Thereafter, these proceedings appear to have progressed in tandem with proceedings 10788 of 2005. On 22 August 2006 Ms Klewer discontinued the proceedings.

188 There is no record of the motion that was filed on 22 June 2005 having been heard and determined before the proceedings were discontinued. The court file includes a copy of correspondence from the council's solicitors, apparently faxed to the court by Ms Klewer bearing her handwritten annotations, advising that the council will not consent to the motion being heard prior to the hearing of her two summonses.

189 This motion was in substance an attempt to re-agitate an interlocutory dispute that had previously been determined by the court on terms to which Ms Klewer had consented.

Proceedings instituted in the Court of Appeal

Proceedings 40534 of 1996

190 This was an application to the Court of Appeal for orders setting aside orders of Judge Johnston on 15 March 1996. The background is set out in the judgment of the Court of Appeal. Ms Klewer was involved in an altercation with police officer Andrew Martin on 18 March 1994. She sued Mr Martin in the Local Court and that matter was heard on 22 June 1995. She failed in that case and costs of $4,500 were awarded against her. She then appealed to the District Court on the question of costs. She lost that appeal and incurred further costs of $500. In her affidavit in support of her application to the Court of Appeal Ms Klewer stated:

"9. His Honour permitted the defence to question me about matters which were irrelevant. My legal representative objected. His Honour overruled the objection and stated.

'Please let Mr Stidwell (an agent for the Crown, representing officer Martin) continue. Let us see if Mrs Klewer is a vexatious litigant.'

I was offended by this, it appeared that maybe His Honour and Mr Stidwell had some prior discussions into the matter...

10. Other events took place during the hearing. I was questioned by the defence about some issue involving a local solicitor who acted very inappropriately towards me and my family...

11. As a result of this I could not continue to be present at the District Court hearing. This may have had some baring [sic] on his Honour's decision.

12. Neither did my legal representative nor myself believe that I was given a fair hearing."

191 The matter was heard on 5 March 1997. The summons was dismissed with costs. During the course of the hearing the following exchange occurred between Meagher JA and Ms Klewer:

"MEAGHER JA: So really, your complaint is that the judge's discretion miscarried. He took account of things he should not have taken account of and he did not take into account things he should have taken account of.

APPELLANT: Mm hm.

MEAGHER JA: Anything else?

APPELLANT: I think my counsel at the time in the District Court also pointed to a case, Latoudis v Casey, and at the time he was hoping that the judge would use his discretion – as not allowing costs to the defendant, and therefore uphold the appeal. I have a copy of that case here, your Honour.

MEAGHER JA: Thank you. Is there anything else you would like to say?

APPELLANT: Just the fact that I've got seven young children and I'm a single parent.

MEAGHER JA: I appreciate that. That in the real world and as a practical matter, that of course is tremendously important. The difficulty we labour under is that we have a very limited jurisdiction. You have no right to be here simply to appeal from the judge, or simply to start thee case afresh, as it were. There are very limited circumstances in which we can act against the judge in the position of his Honour, that he has made an error of law that is apparent on the record or that he has denied natural justice, or something else. But I do not see that we can take into account, myself, many of the matters which are very important to you, such as that you are a single mum with seven children, or that your natural position must be pretty precarious, or that his Honour failed to be merciful. They are from a practical point of view matters that are extremely important, but I don't think they are of any legal importance as far as our jurisdiction is concerned."

192 In its judgment the Court stated:

"The only material before the Court to which we can have regard, taking her case even at its highest, is her affidavit and the judgment of his Honour Judge Johnson, and perhaps the transcript. On recent judicial authorities we may not even be able to have regard to some of that, but in any event it is fairly clear that from the documents before the Court there is no case proved of error of law. There is no case proved of breach of natural justice. There is no case proved of procedural unfairness. And the unfortunate fact must be that the summons should be dismissed."

Proceedings 40267 of 1998

193 The summons in this matter was originally filed on 1 May 1998. By amended summons bearing corrected date references Ms Klewer sought the following orders against David Malcolm and "the District Court of NSW":

"That the decision made by his Honour Judge Ducker at Coffs Harbour District Court on the 17 March 98 regarding costs be declared void.

That the decision made by his Honour Judge Ducker at Coffs Harbour District Court on the 17 March 98 regarding costs be quashed.

Any other order the Court deems fit."

194 The orders appealed from were orders refusing leave to appeal out of time against a costs order that had been made in Ms Klewer's absence. The basis of the refusal of leave was Ms Klewer's failure to explain to Judge Ducker's satisfaction the delay in filing notice of appeal. In her affidavit in support Ms Klewer stated:

"I was somewhat preoccupied at the time of the hearing of the 17 March before Judge Ducker. I had to remind myself at the time about details of the issues before the Court that day. The reason why I was pre-occupied is because at the time (and even currently) I have been involved in a long ugly battle in the Family court against my former husband ... On the 17 March 98 due to the stress I am under I failed to locate 3 documents which were in a folder before me, such documents prove that I had indeed tried to appeal within time against the decision of Ms Barkhell of June 97."

195 On 12 February 1999 Ms Klewer discontinued the proceedings.

Proceedings 40429 of 2001

196 These proceedings, which were commenced on 14 June 2001, were a holding summons for leave to appeal. Ms Klewer sought leave to appeal from a decision of Judge Rolfe on 17 May 2001 dismissing Ms Klewer's motion to transfer from the Coffs Harbour Local Court to the Coffs Harbour District Court the proceedings that ultimately became No 8622 of 2002. It appears that on two occasions at least, namely 5 July 2001 and 17 September 2001, the listing of the proceedings was vacated. On 17 September 2001 the proceedings were deemed discontinued, and the file closed.

Proceedings 40597 of 2001

197 This was a second proceeding filed by Ms Klewer with a view to overturning Judge Rolfe's interlocutory decision dismissing her motion to transfer her action against the State of New South Wales from the Coffs Harbour Local Court to the Coffs Harbour District Court. The summons is framed as an application for judicial review and seeks orders that:

"1. The decision of His Honour, Judge Rolfe, DCJ of the 17 may 01 in the District Court at Coffs Harbour be declared void.

2. The decisions of His Honour on the 17 May 01 be quashed.

3. Proceedings number 444/98 in the Local Court at Coffs Harbour be transferred to the District Court.

4. Any other order the Court deems fit."

198 A letter from the Court of Appeal to Ms Klewer of 25 September 2001 notes that Ms Klewer did not attend a callover on 24 September 2001, and states:

"A summons is required to be served 5 days before the return date which in this case was 24 September.

The summons will be listed again for mention on 15 October at 9.45.

You are required to serve the summons on or before 5 October together with a letter advising the opponent that the summons will be listed for call over on 15 October at 9.45am.

If you fail to attend the call over the summons will be dismissed."

199 On 8 October 2001 Ms Klewer discontinued the proceedings. It appears that she never served the respondent with any summons as she wrote to the Court of Appeal on 8 October 2001 stating:

"I hereby seek to discontinue the above proceedings following a related matter in the Downing Centre Local Court on the 4/10/01 involving the same parties. The State of NSW has not been served with the above Summons matter, therefore I do not require their consent to discontinue."

Proceedings 41127 of 2002

200 On 4 December 2002 Ms Klewer filed a holding summons seeking leave to appeal against the decision of Master Harrison of 6 September 2002 dismissing her application for orders to set aside the decision of Magistrate O'Keefe to dismiss her criminal prosecutions of Mr Walton, the principal of her son's school. On the same day she filed a notice of motion seeking an extension of time to file the holding summons. The motion was listed for hearing on 3 February 2003 before Registrar Schell. Ms Klewer in effect sought an adjournment of the hearing of the motion but the hearing of the motion proceeded. The Registrar dismissed the motion with costs. The Registrar held:

"It seems to me that despite [Ms Klewer's] contentions to the contrary, that it would amount to an abuse of process to allow her to seek leave to appeal in the circumstances outlined. On the basis of the judgment of the Master it seems to me that any appeal would be futile and doomed to failure. For those reasons and in order to protect the parties, and I say both parties, from the incurring of any additional, unnecessary costs, my discretion must be exercised so as to prevent the filing of a document which would not ultimately benefit the claimant sho seeks the relief sought."

201 Ms Klewer successfully had the Registrar's decisions set aside by the Court of Appeal. In a judgment of 26 May 2003 (revised 2 June 2003) Santow JA concluded:

"[15] Master Harrison affirmed the magistrate's decision and thereby upheld the magistrate's decision declining to grant leave pursuant to s 38 of the Evidence Act. That decision of Master Harrison is in an area where she was reviewing a discretionary determination by the magistrate. But it is importantly a discretionary determination wherein there is nothing in his reasons to indicate that he had taken into account the matters in s 192 of the Evidence Act.

[16] Applying the test that Registrar Schell applied to Ms Klewer's application for an extension of time, I could not conclude that the appeal she seeks to lodge is inevitably futile and doomed to failure this being the threshold which the parties have accepted as the correct one. In saying that I do not of course reach any conclusion as to the merits of either the leave application, in what is a matter of discretion, and of the appeal beyond that limited proposition. I have earlier set out such basis as might be arguable in relation to the potential application of 38 of the Evidence Act.

[17] Clearly Ms Klewer will need to satisfy the necessary matters to establish that she should be given leave to appeal and I express no view as to her prospects in that regard beyond that limited proposition earlier stated."

202 On 18 January 2003 Ms Klewer filed an ordinary summons for leave to appeal. This summons was in identical terms to the holding summons. The application for leave was heard by the Court of Appeal (Meagher and Hodgson JJA) on 14 October 2003. There was no appearance by Ms Klewer. The Court noted that:

"[3] However, Mr See of counsel for the opponent told us that his solicitor had received a facsimile message from the claimant dated 12 October 2003, which the solicitor had seen for the first time in his in-tray this morning. This facsimile concerned another case. However, at the bottom there appeared a PS in handwriting to the effect that, in relation to the matter in the Court of Appeal listed for hearing on 14 October, the claimant requested that there be consent to a five-week adjournment. The claimant in this note said she had university exams on 18 November, and that 4, 11 and 25 November were suitable. It requested a response by facsimile by "tomorrow pm". The message concluded to the effect that the claimant was still in the District Court Sydney all week. The solicitor having seen this message only this morning had not yet responded to it.

[4] Mr See told the Court that his instructions were to oppose any adjournment. The opponent was ready to proceed in the matter. He indicated that the opponent relied on the written response which was with the Court papers."

203 The Court considered that the appropriate course was to hear Ms Klewer's application for leave to appeal in her absence, for the following reasons:

"[11] The matter was listed for hearing today, and there was no communication by the claimant to the opponent that an adjournment would be sought until the facsimile dated 12 October, that is last Sunday. Even if that facsimile had been brought to the attention of the solicitor yesterday, plainly preparations would have been concluded for the hearing today and substantial costs already incurred. There was no communication by the claimant to this Court by letter or otherwise, explaining her inability to attend.

[12] I would comment in relation to this, that while I would recognise a difficulty faced by an unrepresented litigant who has proceedings in different courts on the same day, a person in that situation, if an adjournment is to be sought in one proceeding, should notify the other party well in advance of the date set for hearing and should in some appropriate way make an application to the court for an adjournment. The normal way to do this would be to seek a short adjournment in the other case, that is to be excused for a short period, and to appear in the Court to apply in person for an adjournment. If for some reason that is impossible, then at the very least a letter should be sent to the Court requesting the adjournment and giving the reasons, with a copy being given to the other party to the case. It is plainly quite inappropriate to seek an adjournment in the manner that has been done in this case, without any communication to the Court.

[13] This matter has already involved a number of appearances in this Court with costs being incurred by the opponent. The claimant apparently does not in any event seek a new hearing of her prosecution, so the application is of little if any utility.

[14] Finally, on the reasons for deciding to hear and dispose of the case today, the issues are in my opinion adequately canvassed in the decision of Master Harrison, the judgment of Santow J, and the written outlines of argument to which I have referred."

204 Ms Klewer's submission was that there was an inconsistency between Sergeant Levey's oral evidence and his previous statement, that this enlivened s 38(1)(c) of the Evidence Act 1995 and that the Magistrate was then required to consider the matters set out in s 192 in order to exercise a discretion. She submitted that the Magistrate's failure to do so was an error of law that vitiated his Honour's decision to dismiss the prosecution. The Court concluded:

"[24] Cross-examination of Sergeant Levey pursuant to leave under s 38 could conceivably have had either of two consequences, which might possibly have been favourable to the claimant's case before the magistrate. One possibility is that Sergeant Levey might have accepted as being true the substance of what was in his statement, giving rise to some evidence of an admission by Mr Walton to the effect that physical force had been used by someone on the claimant. That would have possibly been of some assistance to her case, in that Mr Walton's oral evidence subsequently given suggested that there had been no physical force applied by anyone.

[25] The other possible consequence would be that Sergeant Levey simply adhered to his oral evidence, as he did when shown the statement and asked whether he recalled what Mr. Walton said. That may then have satisfied the requirements of s 43, leading to the application of s45 of the Evidence Act. However, s 45(4) would still make the document not admissible unless it was admissible under Chapter 3. Under Chapter 3 of the Evidence Act, s106 may have made it admissible as going to Sergeant Levey's credibility; and then, if and only if it was admitted on that basis, s 60 would have had the effect of making it admissible as hearsay evidence of a statement by Mr Walton. Again, that could have been taken as evidence of a relevant admission.

[26] Looking at those two alternatives, in my opinion there is no reasonable possibility that Sergeant Levey would have departed from his oral evidence and embraced in an unqualified way what was in the statement. He did not do so when shown the statement, and in my opinion there was no reasonable possibility that full cross-examination on the statement would have had any different effect.

[27] As regards the second possibility, in my opinion in a criminal prosecution it would be wrong to give effect to hearsay evidence pursuant to s 60 of the Evidence Act, when that evidence could be admitted only initially as going to the credibility of a witness who gave no other relevant evidence, as was the case with Sergeant Levey.

[28] For those reasons, in my opinion, even if there had been an inconsistency, which I do not think there was, there would have been no reasonable possibility of a different result before the magistrate.

[29] For those reasons, in my opinion the appeal has no prospect of success, and in my opinion the application for leave to appeal should be dismissed with costs."

205 On 29 October 2003 Ms Klewer filed a motion seeking to set aside the orders of the court of 14 October 2003. Her motion was dismissed with costs. The Court described her explanation for her non-appearance as "unsatisfactory". In its judgment the Court of Appeal stated that:

"[5] In paragraph [8] of the affidavit annexed to her Notice of Motion, [Ms Klewer] states that 'it appears from Their Honour's [sic] Judgment of the 14 October 2003 that they are missing certain vital points', and that she seeks the indulgence of additional argument to convince the Court that her application for leave should succeed.

[6] Nowhere in the affidavit, nor in [Ms Klewer's] written submission are these 'vital points' explained. There appear to be no new facts concerning [her] non-appearance which would warrant the setting side of the orders.

[7] [Ms Klewer] does, in paragraph [10] of those submissions, set out some new matters, but they were not raised in the earlier stages of the instant litigation, nor were they in the material originally put before the Court in support of the application for leave to appeal, They are of no relevance to the questions in the instant proceedings."

206 On 9 March 2004 Ms Klewer filed a further notice of motion, seeking the following order:

"The orders for costs made in this matter [in the Court of Appeal] inclusive of the order made by his Honour Justices Meagher [and] Hodgson on 24 February 2004 be stayed pending representations by the Claimant to the Attorney General Department Community Relations Division."

207 In her affidavit in support of that motion Ms Klewer stated:

"I am not prepared to take the matter to the High Court because I feel that I can have the decision of Mr O'Keefe set aside because his presiding in the Local Court matter was a direct contravention of Deputy Chief Magistrate Jerrham's decision and that all other matters which followed right up to the Court of Appeal [were] a direct consequence of such contravention."

208 On 22 March 2004 the motion was dismissed as an abuse of process and Ms Klewer was ordered to pay the opponent's costs.

209 On 7 March 2005 Ms Klewer filed a further notice of motion, seeking the following orders:

"1. All orders for costs be set aside. That being in the Local Court, Supreme Court and the Court of Appeal.

2. Any order the Court deems fit."

210 On 21 March 2005 the motion was withdrawn and Ms Klewer was ordered to pay the opponent's costs.

211 On 17 January 2005 in the High Court Ms Klewer sought special leave to appeal against the decision of the Court of Appeal of 14 October 2003. McHugh and Heydon JJ dismissed the application on 5 August 2005. In delivering the ex tempore judgment of the High Court, McHugh J remarked that "[a]n appeal has no prospects of success".

Proceedings 40202 of 2003

212 These proceedings were a successful appeal by the Attorney General against orders of Levine J restraining Magistrate Rheinberger from hearing certain proceedings between the Department of Social Security and Ms Klewer. Following the Court of Appeal decision, Ms Klewer filed a motion for a stay of the orders of the Court of Appeal, which came before Mason P on 1 December 2003. The motion was dismissed with costs. Mason P noted that:

"In terms, the present motion is drafted as an application to stay the orders made by this Court on 15 October 2003. There has been no application to appeal from those orders and, even if there were, nothing that I have been told indicates that it would be a proper case for those orders to be stayed."

Proceedings 40205 of 2003

213 This was a summons for leave to appeal against the decision of Judge Rolfe of 7 November 2002 dismissing Ms Klewer's action for assault against a number of police officers. When the matter was called on for hearing, Ms Klewer was not present, and the matter had to be adjourned. The application was refused with costs. The Court said:

"His Honour heard all the evidence on the part of Mrs Klewer from her and either her daughter or daughter in law on the one hand and on behalf of the police from Messrs Murphy and Brown and his Honour came to the conclusion on all questions of fact that are relevant to the defendants, Messrs Murphy and Brown, were to be believed and Mrs Klewer and her witnesses were to be disbelieved.

Mrs Klewer's application to us should in my view be dismissed because (a) it involves a challenge to perfectly rational findings by his Honour, Rolfe DCJ and, (b) so far as can be judged from today's hearing Mrs Klewer is unwilling or unable to present her case in an orderly manner to answer even the simplest of questions asked of her by the Court.

I see no reason why the long-going dispute should occupy any further time of the Court. In my view the summons should be dismissed with costs."

Proceedings 40600 of 2003

214 This was an application for leave to appeal against the decision of Simpson J of 21 July 2003. It appears that shortly after that decision Ms Klewer was granted an interlocutory injunction from the Court of Appeal, as in a judgment of 28 July 2003 Meagher JA stated:

"I will grant an injunction against the opponent in the terms sought by the claimant, Miss Klewer, but only to last until the application for special leave to appeal from a judgment of Simpson J is heard."

215 The matter came on for hearing on 21 November 2003 before Giles and Hodgson JJA. The hearing included the following exchange:

"HODGSON JA: In order to succeed in an appeal from Simpson J you have to establish that she was wrong in some respect and she found that the seizure was by resort staff. I am asking you if you are contending before us she was wrong on that finding?

CLAMANT: I cannot comment on that.

HODGSON JA: So you are not making that contention.

CLAMANT: No."

216 After hearing Ms Klewer's oral submissions the Court did not call on the respondent. In its judgment of 21 November 2003, the Court dismissed the application for leave to appeal with costs in terms that included the following:

"[2] Her Honour heard an application for an order that that the opponent be restrained from disposing of two dogs held in its council pound and that the dogs be returned to the claimant. She approached the application on the basis that it was sufficient that the claimant made out a reasonable case to be tried for the dogs being in the pound unlawfully. That turned on questions under the Companion Animals Act of seizure of the dogs in a public place and appropriate endeavours to identify their owner.

[3] Her Honour found that the dogs were seized by staff on resort premises and that the resort premises were a public place. She found that the resort staff gave the dogs into the custody of a council officer for delivery to the pound. In her Honour's view, it could not be said that the resort staff were in a position to identify the owner of the dogs. Accordingly, in her Honour's view the holding of the dogs in the pound was not unlawful and there was not a reasonable case to be tried to the contrary.

[4] In this application the claimant essentially challenged the seizure of the dogs. She submitted that because there was evidence from the council officer in the terms that he had "seized" the dogs, there was doubt on the matter. She said in effect that the correct view, or at the very least, an arguable view, was that the seizure had been by the council officer rather than the resort staff. If that was so, it was said, the council officer was in a position to have identified the claimant as the owner of the dogs before they were taken to the council pound. If that had been done, in accordance with the Act, the dogs would not have been impounded.

[5] The question then is whether a case for leave to appeal in relation to the seizure of the dogs has been made out. The fact that, as we were told, the council officer spoke in terms of seizure, does not really matter. On the facts as recounted by her Honour, the dogs were seized by the resort staff, not by the council officer. The council officer was the conduit for their transmission to the pound, and indeed, under the Act, the council officer could not have seized the dogs when he took custody of them from the resort staff because at the time the dogs were at the home of one of the resort staff and not in a public place. I can see no possible ground on which it can be said that her Honour's finding was incorrect.

[6] If that be so, then the rest of what was put to us crumbles. What we were told of the ability of the resort staff to identify the claimant as the owner of the dogs would be wholly inadequate to require them to have identified her as their owner. If the council officer did not seize the dogs, any question of his ability to identify the claimant as the owner of the dogs falls away. I am unable to see an arguable ground for challenging the judge's decision.

[7] In those circumstances, in my opinion the application for leave to appeal should be dismissed with costs."

217 The application for leave to appeal was described by a differently constituted Court of Appeal in a later judgment as "hopeless".

218 On 1 December 2003 Ms Klewer filed a notice of motion seeking a stay of the Court of Appeal judgment, pending an application for special leave to appeal to the High Court, which she subsequently filed on 5 January 2004.

Handley JA dismissed the notice of motion with costs on 2 February 2004. His Honour said:

"The fact she needs an interlocutory injunction rather than a stay of proceedings to achieve any useful result emphasises the difficulties she faced in this application. Its merits have been considered by two courts without any support for her arguments ... I would assess Ms Klewer's prospects of success as very low.

Her entitlement to an injunction pending the hearing of a special leave application requires that she makes out what has been described as a prima facie case or a proper case for the intervention of the court. In the light of her lack of success before Justice Simpson and the two judge bench of this court, I am unable to conclude that she has established a sufficient prima facie case or a sufficient basis for interlocutory intervention at this stage of the proceedings. In those circumstances I must dismiss her Notice of Motion with costs."

219 Meanwhile, on or about 20 February 2004, Ms Klewer filed a notice of motion seeking the following orders:

"That the decision of his Honour Justice Handley be set aside.

That pending the application for special leave to appeal to the High Court the respondents be prohibited from disposing of the claimant's 2 labradors.

Costs."

220 On 9 March 2004 Ms Klewer filed a further motion seeking the following orders:

"The order for costs made on 21 November 2003 by their Honours Justice Giles and Justice Hodgson be stayed pending:

The hearing of a current application for special leave to the High Court.

Representations to the Minister for Local Government the Honourable Mr Tony Kelly.

Costs.

Any other order the Court deems fit."

221 These motions of 20 February 2004 and 9 March 2004 were heard by the Court of Appeal (Mason P, Sheller JA and Campbell AJA) on 5 May 2004.

The Court described both applications as "hopeless" and dismissed each motion with costs. With respect to the second motion the Court said:

"In my view the application for leave was always a hopeless one and there is no reason why the costs order which followed its dismissal should not be enforced. The sad fact is that self-represented persons who bring repeated and often (but not invariably) hopeless claims cause cost to the parties that have to meet those claims; and there is absolutely no reason why the innocent party should not have its costs recouped."

222 On 7 March 2005 Ms Klewer filed a further motion seeking the following orders:

"All orders for costs be set aside. That being all costs in the Supreme Court Court of Appeal which followed.

If order 1 is not allowed, the claimant seeks an order that the assessed costs [2 separate assessments by 2 different assessors totalling app. $14,000 and $25,000 respectively] be reviewed under s 208NC Legal Professional Act if the Court grants leave under s 208N.

Any order the Court deems fit."

223 In her affidavit in support Ms Klewer (at paragraph 2) swore on oath that Head Ranger Brooks had "at all times, directly and through his lawyers acted in an unreasonable and vindictive manner" and misled the Court. Ms Klewer's application for special leave to appeal to the High Court was brought out of time and on 10 March 2005 an extension of time was refused and the application was dismissed with costs pursuant to rule 41.11.1 of the High Court Rules 2004. On 21 March 2005 the 7 March 2005 motion was withdrawn by Ms Klewer and dismissed with costs.

Proceedings 41262 of 2003

224 This was an application for leave to appeal from the judgment of Acting Judge Murray of 12 December 2003 delivering judgment for the defendants on Ms Klewer's action in respect of personal injuries alleged to have been sustained in the course of an incident involving officers of the Department of Community Services in 1995. Ms Klewer commenced it by the filing of a holding summons for leave to appeal on 20 December 2003. The grounds of appeal were:

"Murray DCJ erred by finding the Respondent's officers suspected on reasonable grounds that the Appellant's children were in immediate danger of abuse on the night of 10 June 1995.

Murray DCJ erred in his assessment of damage that would have been payable to the Appellant had she been successful."

225 The application was refused with costs on 16 May 2005. The transcript discloses that counsel for the respondent was not called upon to address the Court. Ms Klewer's application for special leave to appeal was subsequently dismissed by the High Court.

Proceedings 40081 of 2004

226 This was another application for leave to appeal against the decision of Judge Murray of 12 December 2003, filed by Ms Klewer's children, in respect of which Ms Klewer was the tutor for the purposes of the proceedings. The application was listed for hearing together with Ms Klewer's application for leave to appeal against the decision in her own District Court proceeding. In response to questions from the Bench, Ms Klewer disclosed that several of the putative plaintiffs were over the age of 18 years and, on that basis, the Court proceeded initially to hear Ms Klewer's application only. The transcript also discloses that counsel for the respondent was not called upon to address the Court.

227 Giles and Bryson JJA dismissed the application with costs on 16 May 2005. A subsequent application for special leave to appeal to the High Court was ultimately deemed abandoned.

Proceedings 40052 of 2006

228 On 1 February 2006 Ms Klewer filed a holding summons for leave to appeal against the decision of Adams J dismissing her appeal and application for leave to appeal against certain criminal convictions. It appears that the file in these proceedings subsequently remained inactive. On 5 April 2006 the Principal Registrar notified Ms Klewer that her application of 28 March 2006 for waiver of filing fees had been refused on grounds including that the summary of argument was not compliant with the relevant rules of court and might invite an application for strikeout pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005. On 1 June 2006 the Registry notified Ms Klewer that her application for waiver of fees had again been considered and refused.

Other proceedings

Proceedings 70063 of 1997

229 This was an application by Ms Klewer pursuant to s 474D of the Crimes Act for an inquiry into a total of seven convictions in Coffs Harbour Local Court on 9 August 1996 and Grafton Local Court on 4 December 1996, against the later of which she had unsuccessfully appealed to the District Court. Sully J refused the application. He described the application as "confused and confusing" and caused Ms Klewer to be sent a letter seeking further and better particulars of her application. His Honour held that the basic principle of law by which he was to be guided in considering the application was well settled. He should order an inquiry if the material put before him caused him "unease" in allowing any of the convictions to stand. His Honour held that he felt no "unease" about allowing any conviction to stand and accordingly refused each application for review.

Proceedings 70091 of 1997

230 This was an application by Ms Klewer pursuant to s 474D of the Crimes Act for an inquiry into the decision of Magistrate Doring on 20 October 1995 and the subsequent appeal heard by Judge Nield on 21 July 1997 and the decision of Magistrate Linden on 11 October 1996 and the subsequent appeal heard by Judge Garling on 23 May 1997.

231 Newman J refused the application. He found the material to be "inadequate" and caused Ms Klewer to be sent a letter seeking further and better particulars of her application. His Honour also held that he felt no "unease" about allowing any conviction to stand and accordingly refused each application for review.

Proceedings 101 of 2004

232 This was an application by Ms Klewer in the Federal Court of Australia for the review of a decision of the Federal Department of Health and Aging refusing to reimburse her costs for medical treatment that her son Robert received in New York in 1993 and 1994. It followed an application to the AAT for review of the same decision, which had been dismissed for want of jurisdiction. On 19 February 2004 the respondent filed a notice of objection to competency of the application on the grounds that:

"...the decision referred to in the application was not a decision to which the Administrative Decisions (Judicial Review)Act 1997 applied;

the named respondent was not a legal entity;

and the named respondent had not made the decision which was the subject of the proceedings."

233 On 21 May 2004 Gyles J dismissed the application with costs. His Honour held:

"[1] This matter was set down for hearing today when it was last before me on 9 March. The Registrar of the Court received yesterday a communication from the applicant by facsimile in which, amongst other things, she says she cannot attend today. The only explanation given was that 'there has been some significant events with this family lately' and the applicant sought what she described as a telephone hook up.

[2] Having consulted informally with the solicitor for the respondent and ascertaining that there was no objection to that course, I agreed in principle to it and arrangements were made by a Registrar of the Court with the applicant, for her to be at a particular number at 10.15 am today. It is now 10.20 am. A number of attempts have been made to make telephone connection with the applicant but an answering machine was the only answer that was received.

[3] The case has a considerable history. I do not need to recite it all. The solicitor for the respondent has filed an affidavit setting out that history and I have received comprehensive submissions from the respondent's solicitor as to why this application for extension of time is doomed to failure.

[4] I have taken into account the written response by the applicant. Although it is not necessary for me to come to any final decision about the matter today in the absence of the applicant, all I need say is that the barriers to a successful application for extension of time are very high indeed.

[5] When the matter was last before me on 9 March I endeavoured to ensure that the applicant understood that it was her task to have the matter ready for hearing and for her to appear and present her case. It was, I endeavoured to persuade her, not simply a matter of turning up unrepresented and throwing herself upon the mercy of the Court so the Court would conduct the case for her.

[6] At the moment I find it difficult to see any legal merit underlying the present application no matter what merit there may or may not be in terms of the course of events. In view of the absence of the applicant I simply propose to dismiss the application."

Proceedings 236 of 2004

234 This was an application by Ms Klewer to the Federal Court to set aside a bankruptcy notice issued by Ian Walton. The notice was based on the order against Ms Klewer to pay Mr Walton's costs of $10,504 in her unsuccessful prosecution of him for assault. On 7 April 2004 Ms Klewer's application to set aside the bankruptcy notice was dismissed with costs. In his judgment Tamberlin J noted:

"[9] The fourth and main ground, as indicated in Ms Klewer's affidavit of 25 February 2004, is that Mr Walton has no immediate right to execute the judgment debt. Ms Klewer annexes to her handwritten note a series of extracts from texts and judgments in support of this submission. These refer to the test of validity of a bankruptcy notice as being whether the creditor is in a position to issue immediate execution on the judgment. It is clear that these extracts refer to cases of an implied stay, where a creditor has taken some steps to enforce the judgment, but no further execution can be levied because of the particular circumstances of the case. However, in the present case it is not necessary, in my view, for the creditor to take any additional steps in order to enforce the judgment debt. The submission that the judgment creditor has no right of immediate execution has no substance in the present circumstances."

235 His Honour concluded:

"[15] This matter has a long and complex history in which the latest stage is that Ms Klewer intends to appeal a decision of the New South Wales Court of Appeal in respect of a challenge by her to the obligation to pay the debt claimed. This is a challenge in respect of which she has been unsuccessful to date. In order to pursue an appeal she will first have to obtain special leave from the High Court. Furthermore, there is in force no stay of the relevant judgment order. I am satisfied on the material before me that there is a judgment debt in force, execution of which has not been stayed. Accordingly, the application to set aside the Bankruptcy Notice should be dismissed with costs, as the applicant has not made out any of the submissions on which she seeks to rely."

Proceedings 696 of 2004

236 On 23 April 2004 Ms Klewer filed an appeal against Tamberlin J's decision. The Full Court of the Federal Court dismissed the appeal with costs on 5 November 2004. The substantive ground argued by Ms Klewer on the appeal was not a ground she had argued before the primary Judge. The Full Court also noted that:

"[14]... The onus lies on the appellant to establish the factual basis for her claim that execution has been impliedly stayed and she has adduced no evidence that the relevant certificate had not been filed with the Registrar. No point can fairly be taken about the lack of evidence on the part of the respondent on this factual issue as it was raised for the first time on the appeal. We would add that the two certificates of the Clerk of the Local Court Coffs Harbour, who became the Registrar of that Court under the amending Act, suggest that it is likely that the relevant information was duly recorded and filed in the Local Court before the Bankruptcy Notice was issued."

237 Accordingly the Court concluded:

"[16] For the above reasons, we have concluded that the appellant has failed to establish that the costs order had been impliedly stayed when the Bankruptcy Notice was issued or that at that date the respondent had not taken all the steps that entitled him to reap the fruits of the costs order. As the above ground was the only substantive ground raised on the appeal it must follow that the appeal is to be dismissed with costs."

Proceedings 2483 of 2004

238 On 9 August 2004 Mr Walton applied to the Federal Magistrates Court for a sequestration order under s 43 of the Bankruptcy Act 1966 (Cth) against the estate of Ms Klewer. On 7 December 2004 Ms Klewer filed a notice of intention to oppose the application, stating the following grounds:

"1 The amended creditor's petition misstates the date of the act of bankruptcy.

2 The creditor's petition is an abuse of process.

3 The respondent debtor is not insolvent."

239 The background to Ms Klewer's bankruptcy matters is helpfully set out in the judgment of Federal Magistrate Driver in Walton v Klewer [2005] FMCA 878 at [8] - [17] as follows:

"[8] The background to these proceedings is rather complex. The debt claimed in the creditor's petition arises from a private criminal prosecution of Mr Walton by Ms Klewer for assault. Mr Walton was, and apparently remains, principal of John Paul College, a school operated by the Roman Catholic Diocese of Lismore. Three of Ms Klewer's seven children were at that time students of the school. There was an altercation between Ms Klewer and Mr Walton on 7 March 2001 as a result of an incident at the school between one of Ms Klewer's children and another student. The incident involved Ms Klewer's son Robert, then aged 13, who is disabled. Ms Klewer claimed that she was assaulted by Mr Walton who physically removed her from the school administration area. She complained to the police, who, instead of acting upon her complaint, charged Ms Klewer with making a false complaint. On 6 December 2004 Ms Klewer was acquitted of the charge against her.

[9] The police apparently refused to deal further with Ms Klewer's complaint against Mr Walton and she instituted a private criminal proceeding against him. That case was heard on 10 December 2001 in the Local Court. Magistrate O'Keefe held that Ms Klewer had not proved her case beyond reasonable doubt. He ordered Ms Klewer to pay Mr Walton's costs. It is that costs order which has ultimately led to the creditor's petition.

[10] Ms Klewer has commenced other proceedings against the Roman Catholic diocese of Lismore arising out of the cancellation of the enrolment of two of her children. Ms Klewer has so far been unsuccessful in those proceedings.

[11] Ms Klewer appealed against the decision of Magistrate O'Keefe in the NSW Supreme Court on 9 January 2002. The case was heard by Master Harrison. Ms Klewer was unsuccessful. Later in 2002, Ms Klewer applied for a rehearing before a judge. The case was heard by Levine J. Once again, Ms Klewer was unsuccessful. Both of these cases resulted in further costs awards against Ms Klewer.

[12] On 4 December 2002 Ms Klewer appealed to the NSW Court of Appeal. The appeal was dismissed on 3 February 2003 with costs. That decision was made by a registrar and on 19 March 2003 Ms Klewer sought the review of the decision. The review was undertaken by Santow JA and Ms Klewer was successful. As a result, the NSW Court of Appeal heard an appeal against the decision of Master Harrison but the appeal was dismissed with costs on 14 October 2003. Ms Klewer sought that the orders of the Court of Appeal be set aside pending an application for rehearing of the appeal and pending an application for leave to appeal to the High Court but that application was also dismissed with costs.

[13] In March 2004 a registrar of the Court of Appeal dismissed with costs a further motion from Ms Klewer for a stay pending representations to the NSW Attorney-General's Department. Ms Klewer suffered a further costs order following her withdrawal of a further motion seeking to set aside previous adverse costs orders. The costs of the various proceedings in the NSW Supreme Court and Court of Appeal had been assessed at $27,691.86.

[14] Ms Klewer did not pay any of the costs due to Mr Walton and was served with a bankruptcy notice in respect of the sum of $10,504 arising out of the decision of the Local Court in the private criminal prosecution. Ms Klewer was served personally with the bankruptcy notice on 11 February 2004. On 26 February 2004 Ms Klewer applied in the Federal Court for the bankruptcy notice to be set aside. On 7 April 2004 Tamberlin J dismissed that application with costs. Mr Walton claims the sum of $10,521.50 in costs as a result of that proceeding.

[15] Ms Klewer appealed against the decision of Tamberlin J on 23 April 2004. On 5 November 2004 the Full Federal Court constituted by Ryan, Merkel and Conti JJ dismissed that appeal with costs. The decision is reported as Klewer v Walton [2004] FCAFC 284. Mr Walton claims a further sum of $9,249.63 arising from that proceeding.

[16] Ms Klewer sought special leave to appeal to the High Court, both against the decision of the Full Federal Court upholding the bankruptcy notice and the decision of the NSW Court of Appeal dismissing her appeal in relation to her private criminal prosecution. Both special leave applications have been dismissed[1].

[17] Ms Klewer has been engaged in other proceedings against the state of New South Wales which have apparently been resolved and against the Coffs Harbour City Council which appear not to have been finally resolved."

240 On 20 September 2005 Federal Magistrate Driver made a sequestration order against Ms Klewer's estate. At [25] of his judgment he noted the following:

"[25] While I am sympathetic to the circumstances of Ms Klewer, as the mother of a disabled child and six other children, that circumstance would not of itself persuade me to refrain from making a sequestration order. Ms Klewer has been a persistently unsuccessful litigant in numerous proceedings and has suffered many adverse costs orders. It was her choice to engage in that litigation. She is an intelligent woman undertaking legal studies and knew the risks."

241 As to the issue of solvency his Honour said:

"The remaining and most significant issue to be decided is whether Ms Klewer is solvent. I accept that she is a recalcitrant debtor. I believe that she has no intention of paying the costs order supporting the bankruptcy notice and the creditor's petition."

242 His Honour concluded that Ms Klewer had failed to demonstrate her solvency and that there was no other reason why a sequestration order should not be made. As Ms Klewer had committed an act of bankruptcy her creditors should have the benefit of an orderly administration of her financial affairs.

243 On 5 October 2005 Ms Klewer sought a stay of the sequestration order made by Federal Magistrate Driver. When the matter was first listed for hearing on 4 October 2005 Ms Klewer indicated that she sought pro bono assistance. Her application to be referred for pro bono assistance was refused. She then indicated that she wished to have the opportunity to consult with a lawyer who had provided her with some assistance. The matter was consequently adjourned for hearing on 5 October 2005.

244 The application for a stay was dismissed. Federal Magistrate Barnes held:

"[12] The applicant raised a number of issues in her written submissions which she stated were grounds for appeal. In an appropriate case, depending on all of the circumstances, the court has the power to grant a stay for a short period to allow an unrepresented applicant to formulate and file grounds of appeal in circumstances where property is not in jeopardy and the bankrupt has nonetheless filed a statement of affairs as required by section 54 of the Bankruptcy Act, even if the court is not persuaded that there is any real prospect of the appeal succeeding: Day, in the matter of Gould v Gould [2000] FCA 1377.

[13] However in this instance as I have indicated, no appeal has been filed. There is no draft notice of appeal. It has not been established that at this stage a stay is necessary or appropriate to enable the applicant to institute an appeal within the next few days (given the time limit on the filing of an appeal). According to the applicant's submissions she has not received a statement of affairs form to complete. There are extensive written submissions and the applicant foreshadows that she intends to file an appeal, but despite the time that has elapsed since the sequestration order was made it has not been established that she has taken any steps towards the filing of an appeal, other than to prepare the material that she puts before this Court in relation to the stay application. Importantly, I note in that respect that the applicant had pro bono representation on the hearing of the creditors' petition. There is nothing before me to suggest that a stay of the sequestration order was sought at that time.

[14] If the applicant does file an appeal she may then seek a lengthy stay from the Federal Court. I consider that it is not in these circumstances for this Court to enter into a consideration of the extent to which possible grounds of appeal may be identified in her wide-ranging submissions or to consider the extent to which the written submissions raise any arguable ground of appeal.

[15] Critically, the applicant has not established to the court's satisfaction that the balance of convenience supports the grant of a stay under s 52(3) that would outweigh the prejudice to creditors and the public interest that would result from the sequestration order being stayed rather than the bankruptcy proceeding.

[16] Apart from the institution of an appeal the applicant has indicated that she wishes to raise finance by applying for a loan but also that she wishes to sell her property and repay the petitioning creditor. As Sackville J accepted in Stedman v Commissioner of Taxation [1999] FCA 539 at [15], a stay under section 52(3) does not have the effect of preventing or undoing the applicant's change in status or the vesting of her property in the trustee. Further, as I have indicated, any stay that the court should grant would be limited in duration, and not such as to reasonably enable and be likely to result in the applicant raising funds (insofar as she able in any event to take such steps) to repay the petitioning creditor if indeed that is a proper basis on which a stay under section 52(3) should be granted. (cf Day, in the matter of Gould [2000] FCA 1377 at [7]).

[17] The applicant contends that the balance of convenience favours the grant of a stay because she is prepared to give a number of undertakings. There is an absence of proper evidence and some inconsistency in the applicant's proposals. The undertakings suggest that what she seeks is in fact a suspension of the sequestration order contrary to s.37(2) and that she may wish to dispose of her property (cf Stedman at [19] referring to Alexander v Cambridge Credit Ltd (Receivers appointed) (1985) 2 NSWLR 685 at 694). Her house is said to be on the market. She undertakes not to sell or dispose of her home and not to enter a contract of sale of her home without notice to the petitioning creditor's solicitor. She also then undertakes to provide written instruction and authorisation to her real estate agent to inform the creditors solicitor if an offer is made to purchase the property that is acceptable. She wishes to 'continue' to apply for loans but there is no satisfactory evidence of current proposals.

[18] Critically, even if a stay were granted, there is nothing to suggest that any aim of raising funds to repay creditors can be realised in the limited time in which this Court could grant a stay. The only stay that the court could grant would be for an extremely limited period (cf a stay pending resolution of an appeal). The applicant has not satisfied me that the competing interests of the parties and the balance of convenience favour a stay.

[19] On balance then, having considered all of the material before me, I do not consider that this is an appropriate case in which the Court should exercise its discretion to grant such stay as may be granted pursuant to section 52(3) of the Bankruptcy Act 1966. Accordingly, the application for a stay must be dismissed."

Proceedings 1907 of 2005

245 On 10 October 2005 Ms Klewer appealed against the decision of Federal Magistrate Driver of 20 September 2005. On 6 June 2006 Ms Klewer filed a notice of motion for orders that her appeal "be stood over pending the outcome of the intervention of Dr Ivan Fsadni, Malta High Commissioner". On 20 June 2006 the respondent to the appeal filed a notice of motion for dismissal of the appeal for want of prosecution. On 7 July 2006 Ms Klewer filed a notice of discontinuance.

Proceedings 70 and 71 of 2001

246 These were applications for special leave to appeal to the High Court from the refusals by each of Sully J and Newman J to grant Ms Klewer inquiries into various convictions pursuant to s 474D of the Crimes Act. The Court noted that each application was made out of time, and considered that each application had insufficient prospects of success to warrant a grant of special leave. Accordingly in each matter the extension of time required was refused.

Proceedings 6 of 2004

247 This was an application for special leave to appeal to the High Court from the judgment of the Court of Appeal (Giles and Hodgson JJA) of 21 November 2003. In her summary of argument Ms Klewer stated:

"The most important reason why leave should be granted is on the grounds that it is cruel on the part of the respondent to cause further suffering to the two innocent dogs which are not deemed to be dangerous by the respondent."

248 On 10 March 2005 the Court noted that the application was brought out of time, and held that the application for extension of time should be refused because there are no prospects of success in demonstrating on a special leave application that the Court of Appeal erred in its treatment of the matter.

Proceedings 96 of 2004

249 This was an application for special leave to appeal to the High Court from the judgment of the Court of Appeal of 23 February 2004. The application was deemed abandoned on 22 September 2004.

Proceedings 24 of 2005

250 This was an application for special leave to appeal to the High Court from the judgment of the Full Court of the Federal Court of 5 November 2004. The Full Court of the High Court heard the application on 5 August 2005. The Court concluded the decisions of the Federal Court and the Full Federal Court were not attended with doubt, and that the appeal had no prospects of success.

Proceedings 25 of 2005

251 This was an application for special leave to appeal to the High Court from the judgment of the Court of Appeal (Meagher and Hodgson JJA) of 14 October 2004. The Full Court of the High Court heard the application on 5 August 2005. Again, the Court concluded that the appeal had no prospects of success.

Proceedings 284 of 2005

252 This was an application for special leave to appeal to the High Court from the judgment of the Court of Appeal of 16 May 2005. On 9 March 2006, Hayne and Crennan JJ dismissed the application. The court observed that there was "no reason to doubt the correctness of the conclusions of the courts below".

Proceedings 285 of 2005

253 This was an application for special leave to appeal to the High Court from the judgment of the Court of Appeal of 16 May 2005 in respect of the proceedings commenced by Ms Klewer as tutor on behalf of her children. The application was deemed abandoned on 22 September 2004.

Proceedings 648 of 1999

254 This was the application brought in the Consumer Claims Tribunal by Ms Klewer against Ray Benson Motors. On 11 October 1999 the claim was dismissed by Member Gilson, who observed as follows:

"It should be noted that after about one hour of hearings, and after the evidence had been given by the parties, [Ms Klewer] abruptly left the hearing room...

I hold the view that [Ms Klewer] was fully aware of the financial arrangement she was entering into when she purchased the Falcon. [Ms Klewer] presents no evidence to corroborate her argument that the Respondent orally provided a 3 months warranty on the Falcon. The Respondent refutes that Ray Benson himself had any negotiations with [Ms Klewer] regarding the purchase of the Falcon as he was on holidays out of the State at the time. I also find [Ms Klewer's] evidence on this issue to be less than convincing ...

I determine that it is fair and equitable that [Ms Klewer] pay the Respondent the sum of $2,200 outstanding on the purchase of the Falcon, and that [Ms Klewer's] claim for compensation allegedly arising from an oral 3 month warranty, be dismissed. Orders are made accordingly."

255 Ms Klewer sought a rehearing of the matter. In her application for rehearing she stated that:

"The hearing was bias [sic] against myself. The hearing member was not listening to my arguments and he was being sarcastic and condescending about my knowledge of car mechanics."

256 She also sought that the orders of Member Gilson be stayed pending the rehearing. Member Deamer conducted the rehearing on 24 November 1999. The member dismissed the application noting:

"The central issue in this dispute was whether the respondent had given the applicant a three month oral warranty and, further, whether it was legally obliged to do so. It is explicit in the member's reasons for decision (which I note have been provided to [Ms Klewer]) that no such warranty was given, the respondent was under no statutory or legal obligation to do so and that he found [Ms Klewer's] evidence on the issue to be unconvincing.

The decision of the presiding member is not manifestly unjust or inequitable or against the weight of the evidence. No new evidence has been adduced (or even referred to) which would substantially change the evidence upon which the rehearing applicant would rely at a hearing de novo.

I am therefore not satisfied there is a substantial injustice within the terms of section 63(1) of the Fair Trading Tribunal Act and dismiss the application."

257 Ms Klewer subsequently appealed unsuccessfully to the Supreme Court from the decision of Member Gilson. On 10 July 2000 Ms Klewer sought a further rehearing from the Tribunal. The Tribunal wrote to Ms Klewer on 16 July 2000 advising her that if the Chairperson of the Tribunal or his delegate has refused an application for rehearing under s 621, the Chairperson does not have the power to consider another application for rehearing by the same party.

Proceedings 04441 of 2002

258 This was an application brought by Ms Klewer on 14 February 2002 against her tenants Michael Carter and Casey Carter in the Residential Tribunal. She sought the following order/s:

"Vacant possession immediately as the landlord is suffering great hardship and needs to move in the property herself, together with her 4 children as they have no money to continue to live at Korora where the outstanding mortgage payment are risking mortgage foreclosure by the Commonwealth Bank. Current savings account is running on $368 overdraft."

259 On 18 February 2002, or four days after the filing of proceedings 04441 of 2002, the Residential Tribunal made orders in proceedings 02917 of 2002 including that the relevant tenancy agreement be terminated and that the tenants deliver vacant possession on 24 February 2002. On 8 April 2002 the application in proceedings 04441 of 2002 was withdrawn pursuant to s 28(5)(h) of the Consumer, Trader and Tenancy Tribunal Act 2001, which requires the Tribunal to allow an applicant to withdraw proceedings on request.

Proceedings 10608 of 2002

260 This was an application brought by Ms Klewer for rehearing of an application that had been brought by her tenants Michael Carter and Casey Carter in the Residential Tribunal. The background to the application was that on 18 February 2002 the Tribunal had made orders in proceedings 02917 of 2002 terminating the tenancy, requiring the tenants to deliver possession by 24 February 2002, and awarding Ms Klewer $828.56 in arrears of rent and occupation fee. On the subsequent application of the tenants (No 08383 of 2002) the Tribunal ordered on 22 March 2002 that the rental bond of $760.00 held by Ms Klewer, plus an additional $5.00, being a sum in lieu of interest that would have accrued had the rental bond been lodged with the Rental Bond Board as required under the relevant legislation, be offset against the sum awarded on 18 February 2002.

261 On 25 March 2003 Ms Klewer sought a rehearing. In her application for rehearing dated 22 March 2003 she stated:

"The member was cranky and loud from the minute I set foot in the Court room."

262 On 5 April 2002 a delegate of the Chairperson declined to grant a rehearing and Ms Klewer was notified of this decision by letter dated 8 April 2002.

Proceedings 09569 of 2003

263 The background to this application appears in the judgment. On or about 29 May 2002 Ms Klewer had purchased a motor vehicle from Naijar Ousama, who then traded as Blues Brothers Autos. On 5 August 2002 Ms Klewer lodged claim 32695 of 2002 against Blues Brothers Autos. After a hearing, the Tribunal ordered the respondent to pay Ms Klewer $1,330.75. Ms Klewer subsequently filed this application, seeking a money order for $17,500 being the refund of the purchase price of the motor vehicle.

264 The application was dismissed for lack of jurisdiction. Member Turley stated in his reasons for decision that:

"I only recorded the above particulars to show that [Ms Klewer] has misconceived the basis upon which the earlier matter was resolved...

The issue of jurisdiction as decided by me may be briefly summarised ... [Ms Klewer's] rights under the Motor Dealers Act have been exhausted.

In addition, the whole of the engine was one of the issues in dispute that were heard and determined by the previous Tribunal. In my opinion, an estoppel arose at the time of that determination which prevents the further litigation of that issue in any forum. For both of these reasons I ruled that I did not have jurisdiction to hear this claim."

Proceedings 33039 of 2003

265 This was the application brought in the Administrative Decisions Tribunal by Ms Klewer under s 38 of the Impounding Act 1993 seeking review of the decision of the Coffs Harbour City Council to impound her two labrador dogs. On 23 May 2003 Judicial Member Higgins found that the Tribunal had no jurisdiction to hear Ms Klewer's application. The Tribunal only had jurisdiction to hear matters in respect of which the Companion Animals Act makes specific provision for the Tribunal to review a decision under that Act. The Companion Animals Act has no such provision.

Proceedings 1212 of 2002

266 This was an application brought by Ms Klewer in the Administrative Appeals Tribunal in which she sought a review of a decision of a delegate of the Minister for Health and Aging dated 6 August 2001 refusing her claim under a scheme known as the "Financial Assistance to Australian Residents requiring Life Saving Medical Treatment Overseas" ("the Scheme").

267 On 16 October 2002 Senior Member Sassella found that the Tribunal lacked jurisdiction to review decisions made under the Scheme. The member held:

"The Tribunal finds that it lacks jurisdiction to review decisions made under the Scheme. There is no Act of Parliament or any subordinate legislation conferring such jurisdiction on the tribunal. The tribunal would add that it would be very unusual if the position were otherwise given that the scheme is non-statutory. The very absence of a statute relating to the scheme would provide a hurdle in the event that policy was developed to make decisions under the scheme reviewable."

Proceedings 1075 of 2000

268 This was the application brought by Ms Klewer in the Administrative Appeals Tribunal in which she sought a review of a decision of the Secretary of the Department of Family and Community Services not to deduct business expenses from her income as a taxi driver, on the grounds that she was not carrying on a business. Save for an amount of $139.25 collected as Goods and Services Tax, Senior Member Muller affirmed the decision under review.

Proceedings 6709 of 2001

269 This was the application brought by Ms Klewer in the Fair Trading Tribunal against Hibbard Homes. At a hearing held on 31 August 2001 the Tribunal ordered the respondent Malcoy Pty Ltd trading as Hibbard Homes to pay Ms Klewer $66.00. On 20 September 2001 Ms Klewer sought a rehearing of the matter. The application for rehearing was refused.

Proceedings 023295 of 1996

270 This was the application for compensation brought by Ms Klewer in the Victims Compensation Tribunal. She had been scheduled under s 2 of the Mental Health Act 1990 on 8 April 1996 as an involuntary patient. She claimed that she was unlawfully detained during her period in hospital and assaulted when her clothing was removed and she was given intravenous drugs against her will.

271 The Tribunal found that Ms Klewer's detention was not unlawful. It also found that nothing in the conduct of the police was unlawful. Nor was the Tribunal satisfied that an act of violence had occurred, which was a prerequisite for the making of any order for compensation. Accordingly the application was dismissed. However, the Tribunal did allow for the payment of Ms Klewer's solicitors' scale costs.

Attorney General's submissions on legal issues

272 Mr K Oliver of counsel, who appeared for the Attorney General, provided me with a series of very comprehensive submissions on pertinent legal issues. These are considered below.

The meaning of "vexatious"

273 Section 84(1) of the Supreme Court Act provides as follows:

"84(1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application by the Attorney General, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court."

274 The relevant principles are set out in Attorney-General v Wentworth (1988) 14 NSWLR 481. The section was considered by Whealy J in Attorney General in and for the State of New South Wales v Bhattacharya, by Hoeben J in Attorney-General (NSW) v Betts [2004] NSWSC 901, by Patten AJ in Attorney General v Bar-Mordecai [2005] NSWSC 142 and by White J in Public Trustee v Gittoes aka Caldar [2005] NSWSC 373. In Bhattacharya Whealy J had this to say at pars [3] - [14]:

"[3] This legislation has its historical origin in the Vexatious Actions Act 1896 which was enacted in England (56) and (60) Vict. C 51. The history of the development of similar legislation in Australia is traced in the judgment of the High Court in Commonwealth Trading Bank v Inglis [1974] HCA 17; (1974) 131 CLR 311 at 316. The statutory power conferred by legislation of the kind contained in s 84 of the Supreme Court Act 1970 has been held to extend beyond the limits of the inherent power of the Court to restrain vexatious applications in a pending action.

[4] The terms of the section limit the consideration as to whether the vexatious litigant has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings to proceedings 'whether in the Court or in any inferior Court'. I take the reference to 'the Court' to mean the Supreme Court of New South Wales (s 19(1) Supreme Court Act 1970). I take the reference to 'any inferior court' to mean any New South Wales inferior court.

[5] Provided the necessary conditions precedent to the exercise of the Court's jurisdiction are established to the satisfaction of the Court, s 84(1) gives the Court power to make orders of two kinds. The first, which, as I have said extends beyond the inherent jurisdiction of the Court, is the order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings 'in any court'. This limitation means that the prohibiting order is confined to the institution of proceedings in the Supreme Court of New South Wales or any inferior State Court. (Hunter's Hill Municipal Council v Pedler (1976) 1 NSWLR 478 at 479). The second limb of the section is the power to order that any legal proceedings instituted by the vexatious litigant in the Supreme Court of New South Wales or any inferior State Court, before the making of the order, shall not be continued by the vexatious litigant without leave of the Court.

[6] Although the Court is confined to an examination of litigation in the Supreme Court and New South Wales inferior courts to determine whether the statutory pre-conditions have been satisfied, in my view, it is permissible to have regard to proceedings in other courts where, for example, those proceedings have authoritatively resolved the particular issue against the person instituting the proceedings. (Re Cameron [1996] QCA 37; (1996) 2 QDR 218 at 224; Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378 at 389-390). Those proceedings themselves, even though they be manifestly hopeless and plainly vexatious, cannot however be taken into account as litigation which itself satisfies the pre-conditions. It may nonetheless be permissible to consider the nature and extent of that other litigation as relevant to the issue of discretion.

[7] The section is concerned with an examination of activities which may appropriately be described as the institution of vexatious legal proceedings. In my view, the expression 'institutes vexatious legal proceedings' should be given a wide construction. I respectfully agree with the observations of Yeldham J in Hunter's Hill Municipal Council v Pedler at 488 lines E - F:

'Section 84 of the Supreme Court Act 1970 is clearly directed to the removal of abuses of the processes of the Court and of hardship to persons against whom vexatious proceedings are taken. While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form.'

[8] See also Re Vernazza (1960) 1 QB 197 at pp 208, 209, 210; Ramsey v Skyring (supra) at 391.

[9] The relevant question for the Court to consider is not whether the proceedings have been instituted vexatiously, but whether they are in fact vexatious: Re Vernazza (supra) at 208; Attorney General v Wentworth (1988) 14 NSWLR 481 at 492. The inquiry is directed to the subject matter of the proceedings, not to the manner in which the proceedings are conducted; Hunter's Hill Council v Pedler at 485.

[10] In Attorney General v Wentworth (supra), Roden J at 492 said of the expression "habitually and persistently": -

'Habitually' suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist;

'Persistently' suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness.'

[11] As I read the remarks of Roden J, his Honour did not attempt to formulate a definition of absolute or universal application, as indeed, he could not. The concepts of 'habitually' and 'persistently' are ordinary English expressions and do not require further elaboration.

[12] It is convenient, however, to adopt the language of Roden J in Attorney General v Wentworth at 491 in relation to the meaning of 'vexatious'.

'1. Proceedings are vexatious if they are instituted with the intention of a annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes and not for the purpose of having the Court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

4. In order to fall within the terms of s 84:

(a) Proceedings and categories 1 and 2 must also be instituted without reasonable ground (Proceedings in category 3 necessarily satisfy that requirement);

(b) The proceedings must have been "habitually and persistently" instituted by the litigant.'

[13] In Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303 at 306, Toohey J, in considering the scope and interpretation of High Court Rules O.63, rule 6(1) observed that the question must be decided on the facts, not by reference to whether the person against whom the order is sought has acted in good faith. It is immaterial that the respondent may believe in the justice of his or her argument and may not understand that the argument has been authoritatively rejected.

[14] In my opinion, the Court should approach the questions involved in s 84(1) with care and caution. The making of an order under the section effects a significant curtailment of a citizen's rights. Once satisfied that the pre-requisites have been met, however, a court should act firmly and authoritatively to restrain and control new and existing vexatious litigation, to the extent the statutory power enables it to act. There is, of course, undoubtedly a discretion whether to act or not, even where the statutory pre-conditions have been established."

275 Proceedings are vexatious if they are either instituted with the intention of annoying or embarrassing the person against whom they are brought, are brought for collateral purposes, and not the purpose of having the court adjudicate on the issues to which they give rise or, irrespective of the motive of the litigant, are so obviously untenable or manifestly groundless as to be utterly hopeless. The collateral purpose need not refer to the sole purpose, but merely to a purpose for which the proceedings were brought and for which they should not have been commenced: see Donnelly v Capricornia Prospecting Pty Ltd [1999] NSWLEC 39; (1999) 102 LGERA 310 and the cases cited at 322. Litigation is vexatious if it is brought for collateral or ulterior purposes, or if it is not a bona fide attempt to have the questions in dispute adjudicated: Attorney-General for New South Wales v Solomon (1987) 8 NSWLR 667 at 674.

276 To form the basis for an order under s 84(1), the proceedings must be shown to have been instituted "without any reasonable ground" and such proceedings must have been instituted "habitually and persistently". As to the circumstances in which proceedings are commenced "without any reasonable ground", Roden J in Attorney-General v Wentworth at 491E was of the view that proceedings that are said to be so obviously untenable or manifestly groundless as to be utterly hopeless necessarily satisfy this requirement. In Attorney General v Bar-Mordecai, Patten AJ, while less categorical, nonetheless assumed that vexatious proceedings instituted with reasonable ground would constitute a "rare case": [2005] NSWSC 142 at [30].

The proper approach

277 While the Court looks to see whether each allegedly vexatious proceeding is in fact vexatious, an order is justified if the pattern emerges of vexatious proceedings being habitually and persistently instituted. In Attorney-General for New South Wales v Solomon at 673, Young J said the following:

"The Court must examine the proceedings under review. It looks to see whether each is vexatious, though it remembers that an order is justified although there may have been reasonable grounds for the proceedings in each case considered by itself if the pattern emerges of vexatious proceedings being habitually and persistently instituted: Re Chaffers (1897) 45 WR 365".

278 In Attorney General for the State of Victoria v Horvath, Senior [2001] VSC 269 at [28] the Court said in relation to the Victorian equivalent to s 84:

"It is one thing to know what the word "vexatious" means. It is another thing to apply s 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files - documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance, it should be so characterised. Fourth, and this is a more general proposition with respect to s 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results"

279 Where a pattern of vexatious proceedings being habitually and persistently instituted is found to have emerged, the Court has a discretion to make an order notwithstanding that proceedings initiated by the defendant during a relevant period may have included some proceedings that cannot be characterised as vexatious: Attorney-General v Wentworth at 494 - 5.

The meaning of "any court" in s 84(1)

280 In Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302 the Full Court of the Supreme Court of South Australia held that the Workers Compensation Tribunal of South Australia should be regarded as a "court" for the purposes of s 39 of the South Australian Supreme Court Act. In New South Wales the expression "proceedings in any court" to which an order under s 84 may be applicable corresponds to "proceedings ... in the [Supreme] Court or in any inferior court" by reference to the vexatious character of which the jurisdiction to make such an order is enlivened. This does not extend to include proceedings in tribunals or in the courts of other jurisdictions. This view was expressed by Yeldham J in Pedler at 479:

"It will be seen that, provided the necessary conditions precedent are found to exist, the section empowers the Court to make orders of two kinds: the first, which, apart from statute, it does not otherwise possess, is the order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings against the person aggrieved in any court, which expression I take to mean the Supreme Court of New South Wales or any inferior State court"

281 In Attorney-General (NSW) v Betts, Hoeben J said at [3] that the reference to "any inferior court" means any New South Wales inferior court, which "of course excludes tribunals".

The meaning of "legal proceedings"

282 The expression "legal proceedings" in s 84 includes criminal proceedings: see Attorney General for New South Wales v Solomon at 672 per Young J and Attorney-General v Van Reesema (1986) 43 SASR 170 per O'Loughlin J.

The relevant question to consider

283 The relevant question for the Court to consider is not whether the proceedings have been instituted vexatiously, but whether they are in fact vexatious: Attorney General v Vernazza [1960] 1 QB 197 at 208; Attorney-General v Wentworth at 492. The inquiry is directed to the subject matter of the proceedings, not to the manner in which the proceedings are conducted: Pedler 485.

284 The Court's discretion is enlivened in any case where there has been a "great mass of litigation of a vexatious character, habitually and persistently instituted without any reasonable ground": Re Chaffers; Ex parte Attorney General (1897) 76 LT 351 per Wright J at 352. In such a case, the Court has a discretion to make an order notwithstanding that proceedings initiated by the defendant during a relevant period may have included proceedings that cannot be characterised as vexatious: Attorney-General v Wentworth at 494-5.

"Habitually", "persistently"

285 "Habitually" suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions exist; "persistently" suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness: Attorney-General v Wentworth at 492. The courts have been reluctant to formulate a definition of these terms, but the above test has been followed subsequently: Valassis v South Sydney City Council [1996] NSWLEC 232; (1996) 92 LGERA 275 at 280, Ramsey v Skyring [1999] FCA 0907; (1999) 164 ALR 378 at 290, Attorney General in and for the State of New South Wales v Bhattacharya and Attorney-General (NSW) v Betts.

Material to be considered

286 Material which may be considered by a court in considering an application under s 84 includes the initiating process in the allegedly vexatious proceedings, judgments, proceedings in other jurisdictions, applications for interlocutory relief brought in proceedings and related judgments and out of court statements.

287 The initiating process is obviously relevant to determining the nature of the proceedings, although it may be necessary to go behind the claim to determine conclusively whether the proceedings are vexatious in nature. Judgments have been referred to in order to establish that the proceedings were obviously groundless: Attorney-General for New South Wales v Solomon, Attorney-General v Wentworth, Valassis v South Sydney City Council and Armidale City Council v Connell [1997] NSWLEC 127. Comments by judges in dismissing litigation are relevant but not conclusive: Attorney-General for New South Wales v Solomon at 672. The result of proceedings in appellate courts can be relevant to whether the proceedings appealed from were vexatious: Re Cameron [1996] QCA 37; [1996] 2 Qd R 218, Ramsey v Skyring and Valassis v South Sydney City Council.

288 Judgments in proceedings in other courts on similar subject matter may assist in establishing the habitual and persistent nature of the litigant's pursuit of proceedings: Re Cameron; Valassis v South Sydney City Council. Findings of fact in such judgments may also assist in establishing whether a factual basis existed for bringing the allegedly vexatious proceedings: Attorney-General v Wentworth.

Proceedings in tribunals and other jurisdictions

289 As noted above, the received view is that the proceedings by reference to the vexatious character of which the Court's jurisdiction to make an order under s 84 is enlivened, and hence the only proceedings the vexatious character of which is placed directly in issue on an application under s 84, are proceedings in the Supreme Court or inferior courts of New South Wales. In determining whether particular proceedings instituted in one or more of those courts were or are in fact vexatious, it may nonetheless be appropriate to take account of proceedings in courts and tribunals other than the Supreme Court and inferior courts of New South Wales where those proceedings have authoritatively resolved the particular issue against the person instituting the proceedings. In Re Cameron, Mackenzie J stated at 224:

"To make a declaration that a person is a vexatious litigant it is necessary that the court be satisfied that the person has instituted vexatious legal proceedings and has done so frequently and without reasonable grounds. ... However one of [the plaintiff's counsel's] submissions was that proceedings in courts other than Queensland courts could be regarded as 'legal proceedings' for the purpose of determining whether a person had frequently and without reasonable grounds instituted legal proceedings. It was conceded that a consequence of this argument was that the Supreme Court might make a declaration, for example, in a case where a person had instituted numerous proceedings in the Federal Court or the courts of other States without reasonable grounds and it was apprehended that he was likely to commence actions in Queensland. I do not accept this proposition. The jurisdiction given by the Vexatious Litigants Act is a protective jurisdiction and it is the frequency of the proceedings brought without reasonable grounds in Queensland courts which enlivens it. However once the elements of frequency and lack of reasonable grounds are established it is legitimate, in a case where it is necessary, to have regard to the fact that groundless proceedings have been brought in other jurisdictions and what their outcome was to aid in establishing that proceedings brought in Queensland are vexatious."

290 In Ramsey v Skyring, Sackville J stated at 389-90:

"The terms of FCR O 21, r 1 can be satisfied, however, only by proceedings instituted in this court. Even so, in determining whether particular proceedings instituted in this court are in fact 'vexatious', it may be appropriate to take account of proceedings in other courts where, for example, they have authoritatively resolved the particular issue against the person instituting the proceedings: cf O'Shea v Cameron, at 6, per Mackenzie J, with whom Pincus JA agreed."

291 The relevance of proceedings in other jurisdictions for such a purpose is consistent with what may well be a wider general principle, that proceedings in courts and tribunals other than the Supreme Court and inferior courts of New South Wales may be "relevant for the light which they throw upon" proceedings in those courts: Public Trustee v Gittoes aka Caldar at [3]. As the Court has a discretion whether or not to make an order once the essential conditions precedent have been established, proceedings in other jurisdictions may also be considered in determining whether the discretion should be exercised in a particular case: Re Cameron at 222.

Applications for interlocutory relief

292 Applications for interlocutory injunctions, and judgments on those applications, have been considered to assist in determining whether proceedings have been brought on "reasonable grounds": Donnelly v Capricornia Prospecting Pty Ltd. Regard can be had to the evidence given in proceedings to form opinions on the issue of whether or not allegations made in proceedings had any basis. This may be most appropriately done by reference to findings of fact in judgments, whether in the allegedly vexatious proceedings or other proceedings: Attorney-General v Wentworth.

293 However, affidavits filed in support of the substantive proceedings and the transcript of argument might disclose the basis of the proceedings in a way that may not otherwise appear on the face of the proceedings, and may assist in drawing the conclusion that the proceedings are vexatious in nature: Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303 at 308. Whilst interlocutory documents (such as notices of motion) and affidavits in support of applications were referred to in Attorney-General v Wentworth, Roden J cautioned that a thorough analysis of the specific complaints and allegations the subject of the litigation should be undertaken before concluding that there was an element of vexatiousness.

Out of Court statements

294 Statements made out of court threatening litigation, or discussing litigation, have been admitted to demonstrate persistence: Donnelly v Capricornia Prospecting Pty Ltd, and such statements have also been admitted to demonstrate a collateral purpose for which litigation may have been brought.

Additional background

295 Section 84(1) was modelled on s 51 of the Supreme Court of Judicature (Consolidation) Act 1925 (UK). In Attorney General v Vernazza, a submission that, for the purposes of s 51 of the UK Act, the "vexatious" character of legal proceedings was to be assessed wholly subjectively by reference to "whether the [defendant] was acting maliciously or otherwise than in good faith" was rejected by the English Court of Appeal. Ormerod LJ remarked (at 208) that "the question is not whether [proceedings] have been instituted vexatiously but whether the legal proceedings are in fact vexatious".

296 In Attorney-General v Wentworth, Roden J noted the decision in Attorney General v Vernazza alongside a consistent line of authority for the proposition that, in the context of both inherent and statutory powers to restrain abuse of process, the test for the "vexatious" character of legal proceedings was capable of being satisfied according to a "purely objective test". On the basis of those authorities, he concluded that "the requirement of vexation for the purposes of s 84(1) [is] capable of being satisfied even in the absence of malice or improper motive on the part of the litigant": at 490A.

297 Where the vexatiousness of proceedings can be established according to this "purely objective test", the motive of the defendant in bringing the proceedings need not be proved. This is exemplified by Valassis v South Sydney City Council where the respondent to a successful application under s 70(2) of the Land and Environment Court Act 1979 was found to be seeking in substance to re-litigate against a local council a claim that the Court of Appeal had held to be untenable in a decision from which special leave to appeal to the High Court had been refused. Although an inference might reasonably have been drawn from all of the evidence that the repeat proceedings were part of a sustained campaign of harassing conduct, the ultimate objective of which was to induce the council to amend or retreat from its zoning policy, Stein J noted that the council did not allege any such collateral purpose, but relied solely upon the fact that the proceedings satisfied the test for objective vexatiousness.

298 As to what must be shown to satisfy that test, Roden J quoted passages from both English and Australian decisions on the power of courts to restrain abuse of process by means of striking out or summary dismissal and stated (at 490G – 491A) the following:

"What these cases, and the line of authorities of which they form part, make clear, is that where an objective test is applied to determine whether the court should exercise its power to prevent litigation from running its normal course – either by striking out or summary dismissal – what amounts to 'utter hopelessness' must be shown. It seems to me that when there is an application for the far more drastic s 84(1) order, which would deny or limit a citizen's right of access to the courts, and that is considered on a purely objective assessment of proceedings instituted by [the defendant], nothing less than that 'utter hopelessness' must be shown."

299 When, in a subsequent passage of the judgment, his Honour formulated the three-limbed test for vexatiousness that appears in the published headnote to the judgment, and which has subsequently been regarded as authoritative, he expressed the "third limb" or objective test to be whether proceedings are "so obviously untenable or manifestly groundless as to be utterly hopeless": at 491D. The Attorney General submitted that on a strictly grammatical reading of this "third limb" of the statutory test for vexatiousness, the proper starting point for its application is not the question simpliciter whether proceedings are "utterly hopeless", but rather whether they may properly be characterised as such on the basis of the degree or extent to which they are "obviously untenable" or "manifestly groundless". The Attorney General contended that the test that Roden J intended to be authoritative should have been so carefully formulated was unsurprising because the descriptions "obviously untenable" and "manifestly groundless" are each (and the phrase "utterly hopeless" is not) to be found in the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; [1964] HCA 69; (1964) 112 CLR 125 at 129, to which his Honour specifically referred.

300 The test for "utter hopelessness" was the subject of further consideration by the Western Australian Full Court in Attorney-General v Michael [1999] WASCA 181. The case was an appeal from a decision of Wheeler J in Crown Solicitor for the State of Western Australia v Michael (Supreme Court of Western Australia, Wheeler J, 30 July 1998, unreported). In that case, Wheeler J had declined to make an order under the (now repealed) Vexatious Proceedings Restriction Act 1930 (WA) which, like s 84(1), was consciously and closely modelled on s 51 of the 1925 UK provisions. Her Honour had referred to the views of Roden J in Attorney-General v Wentworth and concluded that:

"If actions are not 'utterly hopeless', then the use of misconceived procedures, defects of pleading, placing of irrelevant material before the court, and matters of that kind fall to be dealt with, not under the Act but under the rules of Court."

301 In Attorney-General v Michael the Full Court dismissed the appeal but only on the basis of upholding her Honour's finding that the conduct complained of fell just short of being "habitual and persistent": at [133]. Speaking of Roden J's test of "utter hopelessness", Anderson J, with whom Pidgeon J and Steytler J concurred, remarked at [126]:

"With all respect, if this means that, absent male fides in one form or another, proceedings will not be vexatious unless they are "so obviously untenable or manifestly groundless as to be utterly hopeless", I think that test is too narrow as a test of general application under our Act. I think proceedings may be vexatious for the purposes of the Western Australian statute without necessarily being "utterly hopeless", which I take to mean plainly devoid of any merit whatever."

302 Anderson J continued at [126]:

"The litigant who sees dark conspiracies and the threat of great harm to himself or herself in the trivial wrongs of another may provide an example. Commencement of an action by such a person, containing outlandish allegations and seeking forms of relief that the courts do not grant, may be vexatious, notwithstanding that it may be possible for the court to identify for the litigant a cause of action for which, arguably, there may be some form of remedy."

303 This passage echoes the observations of Yeldham J in Pedler at 484C that "a close perusal" of a statement of claim filed by defendants (whom his Honour described at 484G as having pursued litigation "with paranoid-like persistence") satisfied him "beyond doubt that the claims made [were] quite untenable and the relief sought [was] such as no court could or would possibly give".

304 Referring to a particular action that had been the subject of the unsuccessful application in Attorney-General v Michael and which exemplified the kind of objectively vexatious proceeding to which he was referring, Anderson J said:

"Whilst it is not possible to say that the claim of nuisance in respect of the loud playing of music is 'utterly hopeless', the allegations as to that, and the relief sought in respect of it, are so deeply buried in bizarre allegations and untenable claims for relief that the court ought to be able to say, as a matter of judgment, that it is a vexatious proceeding within the meaning of the section."

305 Single judges in Queensland and Victoria have approved the decision of the Western Australian Full Court in Attorney-General v Michael. It was followed in Lohe v Bird [2004] QSC 23 at [5] by McMurdo J with respect to cognate Queensland legislation. In Attorney-General for the State of Victoria v Weston [2004] VSC 314 Whelan J, though holding that the WA Full Court's "qualification to, or amplification of" Roden J's formulation in Attorney-General v Wentworth was unnecessary to dispose of the case, approved at [15] what had been said in Attorney-General v Michael. His Honour considered at [19] that a complete absence of any evidentiary basis for a proceeding was an example of a finding that would justify the characterisation of a proceeding as objectively vexatious for the purposes of the Victorian equivalent of s 84(1) even though such a proceeding would not and could not have been struck out on such a basis.

Consideration

306 The Attorney General relied on the following matters in asking the Court to exercise its discretion to make the orders sought. First, Ms Klewer repeatedly institutes proceedings that are vexatious, hopeless or otherwise an abuse of process. See for instance proceedings numbered 52/0218 of 1994, 41127 of 2002 (motion), 40600 of 2003 (motion), 101 of 2004, 236 of 2004 and 52/10203 of 2005.

307 Secondly, proceedings commenced by Ms Klewer are regularly dismissed for lack of jurisdiction. See for instance 10781 of 2000, 129 of 2001, 12423, 12431, 12432, 12440, 28337 and 28345 of 2002, 09569 of 2003 and 33039 of 2003.

308 Thirdly, Ms Klewer exhibits an inability to accept rational decisions made against her. Her inability or refusal to comprehend the basis on which an adverse decision has been made is exemplified by her pursuit of relief against the Coffs Harbour Council in respect of its detention of her dogs. Her initial application was determined against her on the basis of a finding by Simpson J that the dogs had not in fact been seized by the council's ranger, on which supposition there was no reasonable prospect of establishing any breach of the statutory provision on which Ms Klewer relied. Notwithstanding this finding, Ms Klewer thereafter pursued (in all cases unsuccessfully) an application for leave to appeal, an application for a stay of the decision refusing such leave, a motion to set aside the decision refusing to grant such a stay, two motions seeking to stay various costs orders that had followed upon her previous failed applications, and an application for special leave to appeal to the High Court of Australia.

309 Ms Klewer's litigation against Ray Benson Motors similarly manifests an inability or refusal on her part to accept that the evidence of others has been preferred to her own. Following the Fair Trading Tribunal's dismissal of her application for rehearing of an adverse decision that had been made on this ground, Ms Klewer filed three successive applications – one in the Supreme Court for judicial review and two in the Local Court alleging breaches of the Trade Practices Act 1974 (Cth), all of which were summarily dismissed for want of jurisdiction.

310 Fourthly, Ms Klewer regularly seeks an adjournment or says she can't attend or fails to appear. This occurred in proceedings 52/0218 of 1994, 4 of 1996 (x 2), 591167 of 1997, 52/0316 of 1997, 675 of 2001 (x3), 20543 of 2001, 40597 of 2001, 41127 of 2002, 40205 of 2003, 101 of 2004 and 52/10203 of 2005.

311 Fifthly, Ms Klewer, having invoked the jurisdiction of a court or other tribunal, regularly leaves the court during the conduct of the proceedings. See for instance 52/0218 of 1994, 52/0086 of 1996, 648 of 1999, 96 of 2001 (x2), and 52/10203 of 2005.

312 Sixthly, Ms Klewer regularly makes scandalous allegations of bias or corruption by police and judicial officers during the course of the vexatious proceedings. See for instance 22/0308 of 1991, 52/0319 of 1996, 675 of 2001, 13825 of 2001, 10608 of 2002, 10788 of 2005, and 52/10203 of 2005.

313 Seventhly, Ms Klewer regularly withdraws the complaint or discontinues the proceedings or the proceedings are ultimately deemed abandoned. See for instance 4 of 1996, 40429 of 2001, 40597 of 2001, 17961 of 2002, 12423, 12431, 12432, 12440, 28227 and 28345 of 2002, 04441 of 2002, 40600 of 2003, 96 of 2004, 285 of 2005, and 5116 of 2005.

314 Eighthly, Ms Klewer's credibility is regularly doubted or the court does not believe her. See for instance 22/0308 of 1991, 52/0218 of 1994, 52/0312 of 1995, 52/0319 of 1996, 52/0316 of 1997, 648 of 1999, 96 of 2001, 8622 and 8623 of 2002, 41127 of 2002, and 12804 of 2005.

315 Ninthly, Ms Klewer regularly seeks indulgences (such as the waiver of court filing fees), or the seeking of sympathy based on having seven children and other personal circumstances. See for instance 12844 of 1998, 30098 of 1998, 40267 of 1998, 40534 of 1996, 41127 of 2002, and 40052 of 2006. In this respect Judge Ducker has said:

" [Ms Klewer] seems to think the courts should give her some special treatment and allow her to proceed or not proceed according to her whim. . . . I see no reason to be sympathetic to a person who was well aware of the hearing date of a matter, failed to turn up, and then seeks to have this Court assist her, long after the time for an appeal has expired. Ms Klewer well knew that the hearing was on. She gives an attempted explanation, which I do not accept for failing to lodge the appeal on time."

316 This is redolent of comments by Gyles J as follows:

"It was, I endeavoured to persuade her, not simply a matter of turning up unrepresented and throwing herself upon the mercy of the Court so the Court would conduct the case for her".

317 The Attorney General also submitted that three characteristics emerged from all of this, which encapsulate Ms Klewer's approach to litigation. The first is her inability to understand the difference between allegations and evidence. She seems to believe that merely making allegations or claims, no matter how extreme or fanciful, in some way constitutes evidence of the matters alleged. Secondly, she habitually refuses to accept the adverse decisions of the court. Thirdly, she has an inability or an unwillingness to understand or comprehend the reasons that have led to the failure of her applications. This has caused her on a regular basis to distort or simply to ignore the findings made against her.

318 It is important immediately to record that Ms Klewer made no submissions on the issue of why the orders sought against her should not be made. That is not to say that Ms Klewer did not contest the making of the orders, as her vigorous and passionate opposition to the Attorney General's claim throughout the proceedings unambiguously reveals. Ms Klewer did not, however, formulate or present reasons why she should succeed in this case in any logical or meaningful or comprehensible way. In particular, Ms Klewer did not offer me at any stage of the proceedings a single reason why I should conclude that any particular proceeding commenced by her, upon which the Attorney General relies, was not vexatious. I should indicate that I would have been greatly assisted by submissions of this type. This is because Ms Klewer quite obviously and somewhat tragically takes a quite different view to the commencement and continuation of proceedings, as a response to the ups and downs of daily life, than most members of the community. Her particular motivations or reasons for the commencement of these manifold actions might arguably have gone a long way to explaining what on one view appears inexplicable, even if in the final analysis the test of what is vexatious is not one to be decided solely by reference to her subjective intentions. I re-emphasise that from my point of view it is extremely regrettable that Ms Klewer did not attend to these submissions in her own best interests with the same determination and apparent single-mindedness that she brought to the commencement of the proceedings in the first place.

319 This is revealed and emphasised when the transcript of her submissions in Coffs Harbour is examined. Ms Klewer concentrated on several matters there apart from the main issues in the proceedings. One of those was her persistent attempt to have me re-visit her earlier unsuccessful application to adjourn the proceedings on medical grounds, which had proceeded before me during the whole of the first week of the hearing: see Attorney General in and for the State of New South Wales v Klewer (No 2) [2009] NSWSC 454. Following my refusal to return to that issue, an exchange occurred between Ms Klewer and me that included the following:

"HIS HONOUR: The effect of what I said Mrs Klewer is that I'm not prepared to adjourn the matter further on medical grounds and that--

DEFENDANT: In that case, I'll have to ask you to disqualify yourself your Honour.

HIS HONOUR: Umm.

DEFENDANT: Because I've never come across such an unreasonable person who has got expert proof staring at him at the face and you ignoring it. You sought for me to get supporting medical evidence. You've got it. You're rejecting it. You have got no medical knowledge. Dr Wenman does. You're making a mockery out of his opinion. I'm going to ask you to get off this case, you're not suitable to deal with this case your Honour. You haven't been suitable to deal with this case from day one. You have made deliberate mistakes in the last judgment of, I think in relation to the motion I filed on 31 March. You have conducted yourself in a way that a reasonable person would say that you are being totally unfair, totally unreasonable and that anybody would form the view that that's going to be of mindset if the hearing was to continue you your Honour. You have got no, no - you have shown me in no way that you are a fair minded judge. You have shown me in no way that you are going to be impartial in these proceedings. You have shown me in no way that you listen to what I'm saying, that you listen to my evidence, that you give any weight to the evidence and what you've done today your Honour is just a perfect example how unsuitable you are. Please withdraw from this case your Honour because I'm not going to put my life in the balance just because of your convenience. You've got a very poor attitude your Honour and I find you, I find you extremely difficult and I find you quite impractical and I find you not as a person suitable to be a judge of the Supreme Court. You're not your Honour. I could get a man off the street who could give me a better, better, better judgment than you have your Honour, based on common sense approach. You don't even have the common sense approach. You're willing to put my health at risk because it fits your schedule. Your Honour these - you can't have a situation happening to fit your schedule. You have to prioritise first and people's welfare is of utmost important and if someone standing here today not before, but today you've learned that its potentially fatal condition that can develop during these proceedings due to the stress that I'm under.

And that stress is exacerbated by your attitude, his attitude, the nature of the material before the court and the fact that I could stress myself out to the max and at the end of the day it's not going to make one shred of difference. You probably already got a Judgment printed somewhere in relation to this matter, you've already formed the view that regardless what I say, it's not going to make any difference whatsoever. So your Honour I seek that you withdraw."

320 In the events that have occurred, therefore, there has been no effective contradictor of the Attorney General's submissions. I have come to the conclusion in all of the circumstances, for the reasons that follow, that Ms Klewer has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings within the meaning of those expressions in s 84. It is unnecessary to consider every proceeding commenced by Ms Klewer to arrive at this conclusion.

321 Many of the proceedings commenced by Ms Klewer were disposed of either because she withdrew them or they were dismissed when she failed to attend at the hearing. This result occurred on 12 February 1996 in relation to the proceedings against Ms Brown-Paul for offensive language, on 27 June 1997 in proceedings against Mr Malcolm for an AVO, and on 12 March 2003 and 16 June 2003 in proceedings against Casey Carter and Michael Carter. Ms Klewer also withdrew her complaint against Alison Dykes on 19 April 2005. On 23 October 1998 Ms Klewer discontinued proceedings commenced in this Court against One Tel Pty Ltd and Magistrate Pugsen. Proceedings commenced in this Court against Mr Malcolm and Magistrate Evans were discontinued on 12 February 1999. Ms Klewer also discontinued the proceedings commenced against the Coffs Harbour City Council on 14 August 2006.

322 The Attorney General submitted in relation to these proceedings that the result suggested they were vexatious because they were so obviously untenable or manifestly groundless as to be utterly hopeless. It would have been open to Ms Klewer in these proceedings, if the facts supported her, to lead evidence that these results occurred because of some arguably beneficial compromise, which suggested that she achieved some result in the proceedings. In this way Ms Klewer could have sought to demonstrate that they were not obviously untenable or manifestly groundless so as to be utterly hopeless. Ms Klewer led no such evidence and did not otherwise suggest that she was precluded from doing so by reason of a confidentiality term in any settlement at which the parties may have arrived.

323 The proceedings against Ms Paul-Brown were obviously utterly hopeless. The words relied upon to support a charge of offensive language were nothing of the sort. In the absence of any other evidence to explain the result, the outcome in my opinion reflects recognition by Ms Klewer that the proceedings were utterly hopeless.

324 Ms Klewer's stated reason for seeking an adjournment in the first proceeding against Mr Malcolm was similar to the reason why she was unable to attend Lismore Local Court in the Paul-Brown matter. Her application to adjourn the proceedings was made four days before it was due to be heard. She failed to appear. The dismissal of the proceedings with costs in her absence is otherwise unexplained. The ultimate fate of her re-run of the same case some six months later eloquently informs the fact that it was obviously untenable and manifestly groundless.

325 The second group of proceedings against the Carters was withdrawn after Ms Klewer was advised that her appeal to the District Court was incompetent. The first and third groups of proceedings appear to have been overtaken by events in the CTTT. It is difficult to know what merit any of these proceedings may have had. It is equally difficult to characterise them as obviously untenable or obviously hopeless. There is an unsettling temporal relationship between the commencement of the second group of proceedings and the Carters' successful application to the Residential Tribunal for the return of their rental bond.

326 The complaint against Alison Dykes was withdrawn. It is not apparent what the substance of the complaint was. Ms Dykes was not apparently involved with the events in the shopping centre that formed the basis of the application for an AVO against Andrew Dykes. In the absence of any explanation from any source for the commencement of the proceedings against Alison Dykes, they would appear to have been obviously untenable and manifestly groundless from their inception.

327 Ms Klewer's summons naming as the defendants Magistrate Pugsen and the defendant that she sued in the Local Court in the proceedings over which he presided were patently doomed to fail. The so-called evidence upon which she purported to rely was expressed in terms of dissatisfaction with the result but did not bring forward any basis of legitimate challenge to it. Ms Klewer would appear ultimately to have appreciated that fact when she determined to withdraw the proceedings. These proceedings were also hopeless from their inception.

328 Ms Klewer's proceedings against Coffs Harbour City Council, with respect to Magistrate Stoddart's decision, were discontinued by her. No reason for this appears in the evidence before me.

329 With respect to the balance of the proceedings commenced by Ms Klewer it is apparent, with a few minor exceptions, that she was unsuccessful in all of them. Lack of success cannot by itself be any reliable measure of the issue of whether or not proceedings are vexatious. However, the loss of proceedings may provide some support for a conclusion otherwise arrived at about whether or not, applying the "so obviously untenable or manifestly groundless as to be utterly hopeless" approach to the issue, the particular proceedings are vexatious in fact. This must also necessarily be so having regard to the fact that the relevant inquiry is directed to the subject matter of the proceedings and not to whether they have been instituted vexatiously or to the manner in which they have been conducted.

330 In the judgment of Acting Judge Murray in proceedings 8622 and 8633 of 2002, his Honour remarked, referring to Ms Klewer:

"10. The Plaintiff also has had a long history of litigation."

331 The Attorney General made the following submission concerning Ms Klewer's approach to litigation in general, in the light of this remark:

"11. A striking feature of that 'long history of litigation' is the number and variety of the disputes that have brought Ms Klewer to law, and the corresponding number and variety of persons who have been made parties to litigation at her suit. The evidence upon which the plaintiff relies in these proceedings does not, it is submitted, present the defendant as someone who has pursued a litigious vendetta against just one or a very few persons in the obsessive pursuit of vindication in respect in respect of a single discrete grievance. It is submitted that what the evidence rather establishes is that the defendant is a person who has come to regard litigation, not as a last resort, but as a routine response to conflict."

332 The Attorney General's submissions continued in the following terms:

"12. The earliest proceeding that is relied upon by the plaintiff in these proceedings is a District Court appeal, determined in 1992, that arose from Ms Klewer's prosecution on charges of offensive language, and resisting and assaulting a police officer in the execution of duty. In finding the charges proved, but dismissing the informations pursuant to s 556A of the Crimes Act 1900, Cullen LCM was moved to remark upon the fact that a '...minor traffic infringement has snowballed to substantial proportions' and that '[t]hese are matters which have of course, as I've said earlier, been blown out of all proportion.'

13. The leniency of Cullen LCM did not arrest from further amplification the snowball that he had identified. In spite of the fact that the decision of the Court had been to dismiss the informations against her, Ms Klewer instituted an appeal. This may perhaps be viewed as one of several manifestations in the evidence relied upon by the plaintiff of an enduring antagonism and sense of grievance on the part of the defendant towards the police. In 2002, Judge Rolfe observed that Ms Klewer was '...obsessed about the way in which she has been treated by the police' and that it was '...unfortunate, to say the least, that she appears to have this obsession with members of the New South Wales Police Service'.

In addition to instituting appeals, which almost invariably have been wholly unsuccessful, against convictions for various offences, Ms Klewer has instituted a number of criminal and civil proceedings in which she has sought, without success, to agitate allegations of misconduct against particular police officers and her local police command generally.

14. In addition to the police, however, the persons against whom Ms Klewer has sought relief by initiating criminal and/or civil proceedings – and in most cases multiple proceedings – include:

(a) her former solicitor, Mr David Malcolm;

(b) a car dealership, Ray Benson Motors Pty Limited, from which she purchased two cars;

(c) the principal of her son's school, Mr Ian Walton, and later the diocesan authorities responsible for the school;

(d) a nurse at the Coffs Harbour Hospital, Ms Pauline Brown-Paul;

(e) the State of New South Wales, acting through its officers of the Department of Community Services;

(f) her former tenants, Michael and Casey Carter;

(g) Local Court Magistrate Rheinberger; and

(h) the Coffs Harbour City Council.

15. The above list, while not exhaustive, gives some indication of the number and variety of independent "streams" of litigation, each arising from a more or less discrete conflict into which the defendant has fallen, and which she has litigated, often through several courts and stages of appeal, with the determination and dogmatism that was observed in 1996 by Judge Freeman, and with occasional success in applications for interlocutory or interim relief, but rarely (and in none of the cases relied upon by the plaintiff) with ultimate vindication. "

16. Ms Klewer's prosecution of Constable Martin for assault is one such case. The circumstances of her arrest by Constable Martin in March 1994, and her consequent conviction on a number of charges, are briefly outlined in the judgment of Acting Judge Murray. These events gave rise to an unsuccessful appeal to the District Court against the finding of the Victims Compensation Tribunal that no act of violence had taken place in the course of the arrest, and also to a stream of criminal and civil proceedings against Constable Martin, none of which was successful.

17. The defendant's involuntary detention at Coffs Harbour Base Hospital in April 1994 also gave rise to a claim by the defendant that she had been subjected to an act of violence. When the Victims Compensation Tribunal found to the contrary, the defendant again sought unsuccessfully to re-agitate her claim in the District Court.

18. The background and circumstances to a protective intervention in June 1995 by officers of the Department of Community Services are outlined in the judgment of Acting Judge Murray ... As a consequence of these events, the defendant initiated actions on behalf of herself and her children for trespass and personal injury ... that were subsequently litigated, at every stage unsuccessfully, through all levels of the Court hierarchy from the Local Court to the High Court of Australia.

19. A side stream of the 1995 DOCS proceedings was the defendant's unsuccessful appeal against her conviction for an assault on a particular employee of DOCS, Ms Sandra Luxford. The events that led to that conviction are summarized in context in the judgment of Acting Judge Murray ...

20. Demands by the defendant's former solicitor, Mr Malcolm, for payment of an outstanding debt, prompted, from 1997, a series of applications for apprehended violence orders, none of which was granted, and one of which was specifically found by Judge Ducker not to have been made bona fide.

21. On 15 February 2001 an altercation occurred between the defendant and a neighbouring couple, Mr & Mrs Gintowt, at a nearby beach. It appears that the cause of the altercation was a dispute concerning the Gintowts' management and control of their dog and that in the course of it the defendant brandished a knife. As a consequence of this incident the defendant was arrested at her home later that day and ultimately convicted of a number of offences. A summary of the conflicting evidence concerning these events can be found in the judgment of Justice Adams dismissing proceedings that were instituted by the defendant with a view to overturning her conviction of those offences. The defendant's further application for leave to appeal [against] that decision appears currently to be dormant.

22.The stream of litigation that arose from the events of 15 February 2001 also included a civil action whereby the defendant sought unsuccessfully to obtain compensation for personal injuries alleged by her to have been sustained as a consequence of an assault alleged to have taken place during the course of her arrest. The conflicting evidence concerning the events of 15 February 2001 was consequently also examined by Judge Rolfe in his Honour's reasons for judgment in the civil proceeding. Judge Rolfe gave judgment for the defendants, and Ms Klewer's subsequent application for leave to appeal was dismissed.

23. On 7 March 2001 there occurred an altercation between the defendant and the principal of her son's school, Mr Walton. The defendant's first response to this altercation was to attempt to initiate private criminal proceedings for assault. Some time after the court registry had refused to issue a summons on the basis of her information, the defendant made a complaint of assault to the police. The police declined to prosecute Mr Walton, and instead prosecuted the defendant on charges (of which she was ultimately acquitted) of making a false complaint. From these events emerged a further stream of unsuccessful criminal prosecutions of Mr Walton in which the defendant added to the original charge of assault, two charges of making false complaints to the police. All three charges were dismissed, but the dismissal of the latter two charges was the subject further unsuccessful applications by the defendant to the Supreme Court and Court of Appeal.

24. A side-stream of consequential litigation arose in the federal bankruptcy jurisdiction as a consequence of the defendant's incapacity, or possibly her recalcitrant refusal to satisfy costs orders that had been made in favour of Mr Walton as a result of the defendant's unsuccessful criminal prosecutions. A brief summary of the background of both the criminal prosecutions and the bankruptcy proceedings is consequently to be found in the reasons published by Federal Magistrate Driver when his Honour made a sequestration order against the defendant's estate on 20 September 2005. The defendant currently remains an undischarged bankrupt.

25. A further side-stream of related litigation arose when the defendant commenced unsuccessful proceedings against the diocesan school authorities seeking relief in respect of, inter alia, the cancellation of her son's school enrolment. The circumstances of the defendant's altercation with Mr Walton were consequently again judicially examined by Justice Hall as an element of the background to this claim...

26. On 4 February 2003 the defendant's dogs escaped from her control and were later that day impounded by the Coffs Harbour City Council. As a consequence the defendant was prosecuted by the Council for offences against the Companion Animals Act 1988. The defendant, for her part, commenced proceedings alleging breaches of the same Act on the part of the Council ranger, and thereafter initiated a stream of applications, the objective of which was to secure the release or preservation of the dogs on various pretexts. Such applications were pursued in the Administrative Decisions Tribunal, the Supreme Court, the Court of Appeal and the High Court of Australia – in every instance without success..."

333 It seems to me that these proceedings commenced by Ms Klewer were clearly commenced at least with the intention of annoying or embarrassing the person against whom they were brought. In the same context, proceedings commenced for that purpose fall within the description of proceedings that are brought for a collateral purpose and not for the purpose of having a court adjudicate on the issues to which they give rise.

334 As I have already indicated, I have not been given the benefit of any helpful submissions from Ms Klewer concerning these various proceedings about whether they or any one of them had a legitimate, as opposed to a collateral, purpose. (White J was confronted with a similar approach from the defendant in Gittoes: see [113]). It will be recalled that the Court of Appeal judgment in Ms Klewer's application for leave to appeal against the decision of Judge Rolfe included the comment that Ms Klewer was "unwilling or unable to present her case in an orderly manner to answer even the simplest of questions asked of her by the Court". This was also my experience, as the very many pages of transcript will reveal. Ms Klewer could also have given evidence about whether or not she commenced proceedings for a legitimate forensic purpose but she did not do so. This may have clarified what might otherwise appear to a detached observer to be the commencement of proceedings for no good purpose, in the sense that the inspiration for the proceedings was not the achievement of the relief claimed.

335 The proceedings commenced involving David Malcolm, Ray Benson Motors Pty Limited, Ian Walton, Ms Brown-Paul, the State of New South Wales, acting through its officers of the Department of Community Services, Michael Carter and Casey Carter, Magistrate Rheinberger, the Coffs Harbour City Council, Constable Martin, Sandra Luxford and Mr and Mrs Gintowt, and the appeal following Magistrate Cullen's dismissal of proceedings against her without recording a conviction all in my opinion fall into this latter category. I consider that these proceedings were instituted with the intention of annoying or embarrassing the person against whom they were brought or a person associated or connected with an organisation against which they were brought. I consider that they were therefore also brought for collateral purposes and not for the purpose of having the courts adjudicate on the issues to which they give rise. They were by their very nature vexatious.

336 Moreover, the number and timing of these proceedings also satisfy me that Ms Klewer has both habitually and persistently instituted them. Ms Klewer's demonstrated preferred response to conflict has been to commence proceedings in circumstances where none is warranted. This has included proceedings in the Local Court in several locations at Grafton, Lismore, Ballina, Bellingen, Kempsey and Coffs Harbour, the District Court at some of these locations and in Sydney, this Court and the Court of Appeal. I will put to one side the prosecution of applications for special leave to appeal to the High Court and matters in various tribunals. Indeed, on one view, resort to appropriate administrative tribunals is what Ms Klewer ought to have been doing to resolve minor differences, such as claims concerning rental bonds or disputes with car sales yards, rather than the institution of full-blown litigation. Ms Klewer has habitually and persistently resorted to the technique of seeking AVOs for collateral purposes and has done so with conspicuous lack of success.

337 Ms Klewer has indicated that she is currently locked in a dispute in the Federal Court over issues arising from the sequestration of her estate. The details of that proceeding have never been announced before me in anything but the sparsest detail. It appears to be uncontested, however, that the petitioning creditor was a defendant unsuccessfully sued by Ms Klewer who became entitled to an unsatisfied judgment for costs in the proceedings. For obvious reasons I have taken no account of those proceedings in forming the views I have formed.

338 With one exception, all of Ms Klewer's sixty proceedings and appeals that were not either discontinued or withdrawn by her have been dismissed. In most cases Ms Klewer has been ordered to pay the successful party's costs. This demonstrates a significant determination and resolve on her part to continue in the face of difficulty or opposition with a degree of stubbornness.

339 In all of these circumstances I find that Ms Klewer habitually and persistently and without any reasonable cause has instituted vexatious legal proceedings.

Conclusion

340 In Gittoes at [115], White J drew attention to the following important consideration:

"[115] As the grounds for making an order under subs 84(2) are established, it is necessary to consider whether it is appropriate in the exercise of the court's discretion under that section, to make the orders sought. The making of an order under s 84(2) and the consequent restraint upon what is otherwise a person's entitlement to seek redress from a Court as a matter of right, is a serious matter."

341 These comments apply equally to the orders sought by the Attorney General pursuant to s 84(1) of the Act. Subsections 84(3) and (4) are relevant in this respect. They provide as follows:

"(3) The Court may from time to time rescind or vary any order made by it under subsection (1) or subsection (2).

(4) Where the Court has made an order under subsection (1) or subsection (2) against any person, the Court shall not give that person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings."

342 These latter provisions provide a mechanism for a person in respect of whom an order pursuant to s 84(1) has been made to approach the Court in an approriate case for leave to institute or continue proceedings for which a prima facie case can be shown. Ms Klewer did not suggest that there were any current of contemplated proceedings currently falling within that class. It does not appear to me that these are provisions with the terms of which Ms Klewer could not readily deal given her familiarity with, and experience of, the Court's process.

343 The Attorney General made the following submission:

"There is a high cost to the defendants and an associated cost to the processes of the Court in the imposition on judicial resources of the applications repeatedly brought by Ms Klewer and the form and manner in which they are brought. The plaintiff submits that the institution of so many proceedings by Ms Klewer and, moreover, her conduct of those proceedings, should be a matter of the gravest concern to the Court in the administration of justice."

344 The Attorney General submitted further "that it is in the public interest, and the object of the present application is, that any pending or future litigious enterprises that [Ms Klewer] may intend to pursue in the courts of this State be subject to the supervisory jurisdiction of the Supreme Court." On this contention, as with all others, Ms Klewer made no specific or helpful submission in her own interest. I have not been told that there is any proper reason why the orders sought should not be made and I am not satisfied that there one exists. Ms Klewer's right to seek redress through the courts in a proper case, in the sense that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings, remains unaffected.

Orders

345 In these circumstances I make the following orders:

Until further order:

1. Order that the defendant shall not, without the leave of the Court, institute any legal proceedings in any court.

2. Order that any legal proceedings instituted by the defendant before the making of order (1) shall not be continued without the leave of the Court.

346 I shall if so requested hear the parties on the question of costs.

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LAST UPDATED:
5 February 2010