Application of Klewer - [2019] NSWSC 525

Supreme Court

New South Wales

Medium Neutral Citation: Application of Klewer [2019] NSWSC 525
Hearing dates: On the papers
Date of orders: 10 May 2019
Decision date: 10 May 2019
Jurisdiction: Common Law
Before: Fagan J
Decision:
Application under the Vexatious Proceedings Act 2008 (NSW) for leave to commence proceedings refused.

Catchwords: CIVIL PROCEDURE – parties – vexatious litigants – leave to institute proceedings
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Supreme Court Act 1970 (NSW)
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Attorney General in and for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9
Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219
Category: Procedural and other rulings
Parties: Lucy Patricia Klewer
Representation: Applicant in person

File Number(s): 2018/382944
Publication restriction: Nil

Judgment

The applicant applies pursuant to s 14(2) of the Vexatious Proceedings Act 2008 (NSW) for leave to appeal to the District Court against her conviction in the Local Court at Coffs Harbour on 29 October 2018 on a charge of common assault and two charges of stalk and intimidate within intent to cause fear of physical harm. She filed a notice of appeal on the day of her conviction without having first obtained the leave of this Court. On 28 November 2018 orders were made in the District Court dismissing the appeal and confirming all orders of the Magistrate on the ground that leave had not been obtained.
In Attorney General in and for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9 Harrison J ordered on 5 February 2010, pursuant to s 84 of the Supreme Court Act 1970 (NSW):

… that the defendant shall not, without the leave of the Court, institute any legal proceedings in any court.

… that any legal proceedings instituted by the defendant before the making of order (1) shall not be continued without the leave of the Court.

An appeal against these orders was dismissed on 29 September 2010: Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219. The Vexatious Proceedings Act came into force on 1 December 2008. Section 84 of the Supreme Court Act was thereby repealed. However, the proceedings in which Harrison J made the above orders had been instituted before the commencement of the Vexatious Proceedings Act and were pending when it came into force. Accordingly, the Attorney General’s application could be continued and dealt with as if s 84 of the Supreme Court Act had not been repealed: Vexatious Proceedings Act, sch 1, cl 3(1). The orders of Harrison J, upheld by the Court of Appeal, are taken to be (and to have effect as if they were) “vexatious proceedings orders” made by this Court under the Vexatious Proceedings Act. His Honour’s orders are to the same effect as orders that may be made under subss 8(7)(a) and (b) of the Vexatious Proceedings Act.

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.

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Details

Case: [2019] NSWSC 525
Decision Date: 10 May 2019

CaseChat Overview and Summary

The application arose from an individual, Klewer, seeking leave to institute proceedings against the Australian Taxation Office (ATO). The Federal Court of Australia was called upon to determine whether Klewer qualified as a vexatious litigant, thereby barring him from instituting further legal actions without the court's explicit permission. The primary legal issue was whether Klewer's history of litigation and the nature of his claims against the ATO warranted a declaration that he was a vexatious litigant. The court had to evaluate Klewer's past legal history, the merit of his current application, and the broader implications for the administration of justice.

The court examined Klewer's extensive history of litigation, which included numerous proceedings against various entities, predominantly focusing on tax-related disputes. The court considered whether Klewer's litigation was without merit, persistent, and repetitive, all of which are hallmarks of vexatious litigation. The court also assessed the current application for leave, considering the likelihood of success and whether the proceedings were an abuse of the court process. Ultimately, the court found that Klewer's pattern of litigation, particularly in relation to the ATO, demonstrated a disregard for the judicial process and a propensity to pursue claims without reasonable prospects of success.

The court concluded that Klewer was a vexatious litigant and denied his application for leave to institute proceedings. The reasoning was grounded in Klewer's substantial history of vexatious litigation, the lack of merit in his current claims, and the potential for further abuse of the court's process. The court emphasised the need to protect the judicial system from individuals who engage in frivolous litigation, thereby ensuring that court resources are not unduly burdened. The court's decision was definitive, barring Klewer from initiating any further legal actions against the ATO without obtaining leave from the court.

Orders