Attorney General in and for the State of New South Wales v Klewer

[2009] NSWSC 368

CITATION:	Attorney General in and for the State of New South Wales v Klewer [2009] NSWSC 368
HEARING DATE(S):	6 May 2009
JUDGMENT DATE :	8 May 2009
JUDGMENT OF:	Harrison J
DECISION:	1. The defendant's application for a referral for legal assistance is dismissed. 2. The matter will proceed to hearing in Coffs Harbour commencing at 10.00am on Monday 11 May 2009.
CATCHWORDS:	ADJOURNMENT - hearing imminent – defendant's application for referral for pro bono legal assistance – UCPR Part 7 Div 9 – whether grant of application would necessitate adjournment – whether application made in a timely way – previous certificate issued – no explanation of why defendant no longer represented – not in the interests of the administration of justice – no referral ordered – no adjournment granted – hearing dates confirmed.
LEGISLATION CITED:	Supreme Court Act 1970 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005 Vexatious Proceedings Act 2008
CATEGORY:	Procedural and other rulings
PARTIES:	Attorney General in and for the State of New South Wales (Plaintiff) Lucy Pamela Klewer (Defendant)
FILE NUMBER(S):	SC 11569 of 2006
COUNSEL:	K G Oliver (Plaintiff)
SOLICITORS:	I V Knight, Crown Solicitor (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

8 May 2009

11569 of 2006 Attorney General in and for the State of New South Wales v Lucy Pamela Klewer

JUDGMENT

1 The hearing of these proceedings is due to commence on 11 May 2009 in Coffs Harbour with an estimate of two weeks. The matters that remain to be determined during that time are first, the issue of the defendant's health and whether or not she is capable of appearing in court to respond to the proceedings and secondly, the hearing of the plaintiff's claim against her if her health permits. The matter was mentioned before me on 6 May 2009 on the defendant's application for court appointed referral for legal assistance in accordance with UCPR Part 7 Div 9 (formerly Part 66A of the Supreme Court Rules). It appears to be accepted, or if not accepted it is apparent, that the making of an order of the type sought by the defendant would necessitate an adjournment of the proceedings and the loss of the time set aside for their disposal. The giving of a decision in the matter therefore acquired some urgency. It was for that reason that I indicated on 6 May 2009 that the application was refused, that the hearing dates were confirmed and that I would publish my reasons on 8 May 2009.

Background

2 The proceedings were commenced in 2006. The plaintiff sought orders under s 84 of the Supreme Court Act 1970, which provided for an application to be made with respect to a person who is said to be a vexatious litigant. The section was then in the following terms:

" 84 Vexatious litigant

(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.

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

(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."

3 Since the repeal of that section the equivalent provisions are to be found in the Vexatious Proceedings Act 2008 to which it is presently unnecessary to refer in detail.

4 The proceedings were originally listed before me on 17 March 2008 for hearing. They had earlier come before me in the Duty Judge list on 7 December 2007 on the application of the defendant to dismiss the plaintiff’s summons. On that occasion the defendant appeared in person. My judgment delivered on that date records that I dismissed that application. However, when the matter came before me for hearing on 17 March 2008, the defendant appeared by telephone hook-up. She made an application for an adjournment. That application was refused. The transcript records that I said the following:

"The remarks that I have recorded will in due course be transcribed and will form the basis of the view that I have taken. I formerly dismiss Ms Klewer's application further to adjourn these proceedings, and propose to deal with them now in her absence. I will arrange through my associate to have a copy of the transcript of my remarks prepared in hard copy and forwarded to her by facsimile or by some other appropriate means as soon as possible."

5 The defendant thereafter took no further part in the proceedings and they continued in her absence during the course of the remainder of 17 and some part of 18 March 2008. At the conclusion of the hearing I reserved judgment. However, before any judgment was delivered, and on the defendant's application, the matter was subsequently listed for mention by telephone hook-up. This took place on 20 March 2008. The purpose of the mention was to permit the defendant to make what was in effect an application to resume the hearing of the matter so as to permit her to defend the plaintiff's claim. It was appropriate in the circumstances to accede to that application. The defendant however indicated that she would not be able to attend court in Sydney on any occasion in the (then) foreseeable future because of her medical conditions. The defendant informed me at that time that she could provide medical evidence in support of that contention. In those circumstances, I adjourned the matter for further mention to 27 March 2008. I indicated to the defendant that she should support any further application that she may decide to make for an adjournment on medical grounds with appropriate evidence from her medical practitioner(s).

6 When the matter came before me by telephone hook-up on 27 March 2008 I made orders standing the matter over until 16 June 2008 for further mention. I required the defendant to provide all or any medical reports upon which she proposed to rely by no later than 13 June 2008 and I indicated that I would give consideration to the further listing of the matter when I had had an opportunity to consider the opinions of the defendant's medical practitioners when their reports were available.

7 The matter came before me as scheduled on 16 June 2008. At that time I stood the matter over to 1 September 2008 for the continuation of the hearing upon the basis that the plaintiff would recommence its case afresh. In this respect it is to be observed that the case had proceeded before me on 17 and 18 March 2008 upon the basis of tendered documents and written submissions supplemented by oral submissions. The oral submissions were transcribed. All of this material was made available to the defendant for her consideration well in advance of the date proposed for resumption of the hearing on 1 September 2008. That date was also chosen with a view to ensuring that if the defendant wished or needed to apply for an adjournment upon the basis of her medical condition she would be able to do so with the benefit of medical reports from practitioners that she was due to see before then. The last of the scheduled medical appointments was in July 2008. I indicated that if the defendant intended to make an application to vacate the hearing date, she should do so by way of notice of motion together with supporting affidavits attaching any medical opinions upon which she intended to rely.

8 The matter next came before me on 27 August 2008 on the defendant's application to vacate the hearing date. This occurred again by telephone hook-up. The application was refused. I made orders dismissing the defendant's motion and ordered that costs be costs in the proceedings. I confirmed the hearing date for 1 September 2008.

9 On 1 September 2008 the defendant was represented by Mr Kennedy of counsel who appeared by phone hook-up on her behalf. He informed the Court that he had no instructions to appear on the hearing of the matter but had only instructions from the defendant to apply for an adjournment. The orders that I made on that occasion were as follows:

"(1) Direct the defendant to file and serve affidavits from such medical practitioners as she may be advised in support of an application further to adjourn the hearing of these proceedings.

(2) All such affidavits should be served on the plaintiff and delivered to my Associate by no later than 29 September 2008.

(3) I will stand over these proceedings in anticipation of an application by the defendant for an adjournment of the substantive hearing to Friday 17 October 2008 at 10.00am.

(4) I direct that in the event that any of the deponents of the affidavits referred to in order 1 are required for cross examination by the plaintiff, that such notice of that fact be given to the defendant and to those deponents by no later than 1 October 2008.

(5) I grant leave to the plaintiff to issue subpoenas for the production of documents and for the attendance of any such deponent to give evidence to be served no later than 3 October 2008.

(6) I will dispense with the filing and serving of a formal notice of motion by the defendant and will deem the service of any affidavits contemplated by order 1 as in aid of an application by the defendant for an adjournment of the substantive proceedings on medical grounds.

(7) I reserve costs."

10 The matter came before me on 10 October 2008 and was adjourned on that day for one week until 17 October 2007. On that occasion I made the following orders:

"(1) I will list these proceedings for hearing commencing in the Coffs Harbour Local Court on 11 May 2008 with a preliminary estimate of two weeks.

(2) I will direct the defendant to serve upon the plaintiff any medical or like reports or evidence in support of her medical condition no later than four weeks before the commencement of proceedings on 11 May. I note in that regard that will permit the defendant as much opportunity to glean and to assemble medical material upon which she may wish to rely in aid of her application that these proceedings no longer continue.

(3) I will re-list the matter for mention on Friday 13 February 2008 at 9.30am in order to hear from the parties with respect to any further or other directions that they or either of them may require or desire in anticipation of the hearing later next year."

11 I pause to observe that my decision to remove the proceedings from Sydney to Coffs Harbour was for no purpose other than to suit the convenience of the defendant and to accommodate the defendant's local medical practitioners whose attendance in Sydney would have been disruptive and potentially oppressive to them in all of the circumstances. The defendant would appear initially to have embraced this proposal but she later changed her approach to it. So much is evident from correspondence that was sent to the Court by the defendant. It is sufficient for present purposes to observe that I dealt with what I treated as an application by the defendant to vacate the hearing of the proceedings in Coffs Harbour when I made the following orders in chambers on 16 February 2009 following a brief mention on 13 February 2009:

"(1) The date of hearing on 11 May 2009 in Coffs Harbour of the defendant's notice of motion dated 9 October 2008 be confirmed.

(2) Any further or other application by the defendant for adjournment or summary dismissal of the plaintiff's summons be made returnable before the Court sitting at Coffs Harbour Local Courthouse on 11 May 2009.

(3) The hearing of the plaintiff's summons commencing on 11 May 2009 in Coffs Harbour with an estimated duration of 2 weeks be, subject to the determination of the defendant's notice of motion dated 9 October 2008, confirmed.

(4) Pursuant to rule 33.8 of the Uniform Civil Procedure Rules , the Registrar be authorised to deliver into the possession of the Registrar of Coffs Harbour Local Court any documents that may be produced at the Sydney registry of this Court in response to any subpoena addressed to any medical practitioner or other health care practitioner, and to make such further or other directions pursuant to rule 33.8 as the Registrar may deem necessary or appropriate:


(a) To enable the defendant to have initial access to such documents at Coffs Harbour for a period of 7 days after their production; and

(b) Subject to rule 33.9 of the Uniform Civil Procedure Rules , thereafter to enable general access to such documents, including photocopy access in accordance with Supreme Court Practice Note SC Gen 3.


(5) The plaintiff have leave (to the extent that such leave may at any time be required) to serve any subpoena addressed to any medical practitioner or other health care practitioner whose report the defendant may at any time on or after the date of these orders serve upon the plaintiff, or upon whose evidence the defendant may at any such time otherwise indicate her intention to rely, and to make such subpoena returnable before the Court sitting at the Local Courthouse at Coffs Harbour on 11 May 2009.

(6) Time for service of any subpoena in respect of which the leave granted under Order 5 is required be abridged to not later than 5.00pm on Friday 8 May 2009.

(7) A copy of this order be served together with any subpoena that may be served pursuant to Orders 5 and 6 herein."

12 In the events that occurred the matter returned to Court for a further mention by telephone hook-up on 17 March 2009. The defendant at that time sought to set aside certain subpoenas and to have the matter returned to Sydney for hearing. The defendant foreshadowed that she would no longer seek to rely upon medical reports originally tendered in support of her notice of motion to have the plaintiff's summons dismissed. I delivered a judgment at that time that will speak for itself. I confirmed the hearing of the matter would proceed in Coffs Harbour on 11 May 2009 as arranged.

Earlier events

13 This matter had earlier come before Buddin J in July 2007. His Honour's judgment published on 18 July 2007 dealt with the defendant's application for referral to the registrar for pro bono legal assistance pursuant to SCR Part 66A. Importantly for present purposes his Honour's reasons for judgment record that Simpson J had dealt with a similar application on 13 February 2007 and that her Honour had made an order in favour of the defendant that she should be given a certificate of referral to the Registrar. The plaintiff had not opposed the making of that order. His Honour's reasons also record that "[s]ometime thereafter counsel informed the Registrar that he had ceased to provide legal assistance to the [defendant]" and that his Honour knew "nothing about the circumstances that led to that state of affairs". His Honour concluded that it was in the interests of the administration of justice to make the order that was sought and he proceeded to do so.

14 The matter next came before Johnson J on 29 January 2008 as the Duty Judge on that day. His Honour's judgment included reference to the fact that on 21 November 2007 the matter had been listed for hearing to commence on 17 March 2008. By her notice of motion filed on 12 December 2007 the defendant had sought orders vacating that hearing date and, significantly for present purposes, that alternatively the matter be removed to Coffs Harbour or dismissed. His Honour's judgment is particularly instructive in many respects and should be read in conjunction with the matters to which I refer in these reasons. His Honour dismissed the defendant's application. The matter accordingly came before me on 17 March 2008 for hearing in the way mentioned earlier.

Consideration

15 A review of only the details recorded or referred to in these reasons reveals that the defendant has from time to time approached several aspects of the proceedings in different and often inconsistent ways. She has sought to have the proceedings referred to Coffs Harbour for hearing when they were listed in Sydney. She has sought to have the proceedings referred to Sydney for hearing when they were listed in Coffs Harbour. Her latest application to do so was upon the basis that the court or registry staff at Coffs Harbour held some kind of animus for her and were well known for influencing judicial officers presiding at that venue against her. It was clearly the defendant's contention that the staff at Coffs Harbour would influence my decision in this case to her disadvantage or that they would at least attempt to do so. She has variously expressed her inability to appear as the result of her ill health but the history of the proceedings reveals that her medical conditions have not always had this effect. There does not appear so far to have been any attempt to assess with certainty or confidence whether or not the defendant has or has not been fit to appear in person at any particular time. The first inquiry that I have directed will take place on 11 May 2009 is intended to rectify that situation.

16 The defendant has the care of her two sons whose personal circumstances, including their health, have interfered with her ability to attend to this litigation from time to time. Accommodation of the difficulties that she has confronted in this regard has been afforded to her from time to time as far as possible having regard to the need to balance the interests of the plaintiff as well. In my opinion the hearing of the proceedings in Coffs Harbour and the assessment of her fitness to attend court and to take part in the proceedings is best served by the confirmation of that place as the venue for the hearing.

17 UCPR Part 7 is relevantly as follows:

" 7.33 Objectives

(1) In the interpretation of this Division, preference must be given to a construction that will promote, and be consistent with, the purpose in subrule (2) and the statements in subrules (3) and (4).

(2) The purpose of this Division is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance.

(3) The provision of legal assistance under this Division is not intended to be a substitute for legal aid.

(4) A referral under this Division is not an indication that the court has formed an opinion on the merits of a litigant's case.

(5) Nothing in this Division requires the court to make a referral, or to consider a litigant's case for referral, under this Division.

7.36 Referral to a barrister or solicitor

(1) If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(2) For the purposes of subrule (1), the court may take into account:


(a) the means of the litigant, and

(b) the capacity of the litigant to obtain legal assistance outside the scheme, and

(c) the nature and complexity of the proceedings, and

(d) any other matter that the court considers appropriate.


(3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.

(4) If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.

(5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.

(6) A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister."

18 I refused to make an order that the defendant be referred for legal assistance. It goes without saying that the defendant and the Court would benefit from the appointment of a qualified legal practitioner to represent the defendant. However, two previous orders for such a referral were made and no satisfactory explanation has been given as to why the defendant is no longer represented in the circumstances. The defendant referred to a Mr Passmore who had acted for her at one stage but who no longer does so. It was said that he could not afford to commit himself on a voluntary basis to a long hearing. There is no evidence about this and the defendant's statement during the course of the application is all that exists to support it. Having regard to the limited circumstances in which appointed pro bono legal representatives are entitled to cease to act for someone to whom they have been referred, as provided for in UCPR r 7.39, I am not confident that the true picture of what occurred has yet emerged.

19 I also have some considerable doubt that the defendant's application is not prompted by a desire to frustrate the commencement of the hearing on 11 May 2009. In this respect I note that the hearing has been allocated and listed to start on that date since late last year. The application for referral to the Registrar was not made early or promptly. There is no way of assessing whether or not any person is or would be prepared to appear for the defendant. It does not appear to me that it is in the interests of the administration of justice to make the order for referral for pro bono legal assistance that the defendant seeks.

20 Since the conclusion of the hearing of the application it has come to my attention that the defendant has directly approached Legal Aid New South Wales in Coffs Harbour for assistance with her case. An undated letter from that office (apparently written on 6 May 2009) to the defendant was forwarded to my Associate by the defendant by facsimile on the afternoon of 6 May 2009. I will furnish the parties with a copy of the letter when these reasons are delivered. The letter is relevantly in the following terms:

"I received the bundle of documents you dropped in at 2.15pm today.

I have not had a chance to look at the documents in detail.

You will need to lodge an urgent application for Legal Aid for representation on Monday. I note that you have made an application for Aid for this matter in the past which was refused. I have been advised that you wish to lodge a fresh application on the basis that you are at special disadvantage.

*****

I don't know whether your application will be determined in time for the hearing on Monday. Given the urgency of the matter I suggest you make an urgent application for an adjournment on the basis that you have lodged an application for Legal Aid."

21 The defendant's handwritten note on the letter sent to my Associate indicates that the defendant has in fact filed an urgent application for Legal Aid as suggested. There is no apparent reason that I have been given, or other matter that I am aware of, why such an application was not, or could not have been, made much earlier and in good time for the commencement of the hearing on 11 May 2009. I will attend to any application for an adjournment that the defendant makes when and if that occurs.

22 I will hear the parties on the question of the costs of the present application at the conclusion of the hearing.

**********