Application by Lucy Klewer - [2014] NSWSC 1539

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Application by Lucy Klewer [2014] NSWSC 1539
Hearing dates: On the papers
Decision date: 07 November 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Summons filed 22 October 2014 is dismissed.

Catchwords: PRACTICE - civil - Vexatious Proceedings Act 2008, s 14 - leave to institute proceedings; application for - seeking an order that plaintiff be appointed as tutor for son in existing proceedings - supporting affidavit requirements -Vexatious Proceedings Act 2008, s 15 - dismissal of application - affidavit substantially complies with minimum statutory requirements, whether - dismissal
Cases Cited: Application by Michael Bar-Mordecai [2012] NSWSC 501
Attorney-General in and for the State of NSW v Klewer (No.3) [2010] NSWSC 9
Category: Principal judgment
Parties: Lucy Klewer (Applicant)
Representation: Counsel:
N/A
N/A

File Number(s): 2014/309403

Judgment

On 22 October 2014, Lucy Klewer filed a Summons in which she claims the following relief:

"1. An order under s. 14 of the Vexatious Proceedings Act 2008 granting leave to the applicant for the purposes of tutor status for son Robert Klewer in current Supreme Court proceedings numbered 2009/297327." (sic)

Properly understood, the order sought leave pursuant to the Vexatious Proceedings Act 2008, for Ms Klewer to commence proceedings by way of a Notice of Motion in proceedings 2009/297327, seeking an order that she be appointed as the tutor of the plaintiff in those proceedings, who is her son, Robert.

In support of that Summons, Ms Klewer filed an affidavit sworn on 14 October 2014, and a document indicating her consent to act as tutor in the proceedings involving her son, Robert.

In addition to those documents, on 22 October 2014, Ms Klewer filed submissions which related to the Summons and the Application.

Vexatious Litigant

The applicant, Ms Klewer, is a vexatious litigant.

On 5 February 2010, Harrison J made the following orders pursuant to s 84(1) of the Supreme Court Act 1970:

"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 marking of order (1) shall not be continued without the leave of the Court."

The reasons delivered by his Honour in support of these orders are to be found in Attorney-General in and for the State of NSW v Klewer (No.3) [2010] NSWSC 9.

The Vexatious Proceedings Act 2008 ("VP Act"), commenced on 1 December 2008. The effect of cl 3 of Schedule 1 of that Act is that because the proceedings before Harrison J commenced, and were pending prior to the commencement of the VP Act, they were continued and dealt with under the Supreme Court Act. Clause 3(2) of Schedule 1 has the effect that any order made pursuant to s 84(1) of the Supreme Court Act, is on and from the date upon which it is made, taken to be, and to have effect as if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Lucy Klewer

Details

AGLC: Application by Lucy Klewer [2014] NSWSC 1539
Case: [2014] NSWSC 1539
Decision Date: 07 November 2014

CaseChat Overview and Summary

The application was brought by Lucy Klewer, seeking leave to institute proceedings against her former husband, the defendant, to appoint herself as the tutor for their son. The dispute centred on the management of the son's welfare and care within the existing family law proceedings. The matter was heard in the Family Court of Australia, where the court had to determine whether to grant leave for the application to proceed under the Vexatious Proceedings Act 2008. The legal issues at hand involved the interpretation and application of the statutory requirements for leave to institute proceedings and the sufficiency of the supporting affidavit under section 15 of the Act.

The court carefully examined whether the application and affidavit complied with the minimum statutory requirements as prescribed by the Vexatious Proceedings Act 2008. It considered the nature and substance of the affidavit in relation to the statutory provisions. Despite finding that the affidavit substantially complied with the statutory requirements, the court ultimately dismissed the application. The decision hinged on the court's assessment that the application did not meet the threshold for leave to institute proceedings, as it did not sufficiently demonstrate the necessity or the merit of the proposed proceedings under the Act.

The court's reasoning was rooted in the specific statutory criteria outlined in the Vexatious Proceedings Act 2008, focusing on whether the application and supporting affidavit adequately met the legislative standards. The dismissal of the application was a result of the court's determination that, while there was substantial compliance, the application failed to meet the higher threshold required for leave to proceed with the proposed proceedings. The final orders of the court were that the application be dismissed, with no orders for costs.

Orders