Attorney General in & for the State of New South Wales v Klewer (No 2)

[2009] NSWSC 454

CITATION:	Attorney General in & for the State of New South Wales v Klewer (No 2) [2009] NSWSC 454
HEARING DATE(S):	11 - 15 May 2009
JUDGMENT DATE :	15 May 2009
JUDGMENT OF:	Harrison J
EX TEMPORE JUDGMENT DATE:	15 May 2009
DECISION:	Application for adjournment refused
CATCHWORDS:	ADJOURNMENT – application by defendant for indefinite stay of proceedings -application based upon medical condition of the defendant – defendant suffering from stress related condition made worse by court appearances and legal proceedings - whether defendant fit to appear and respond to proceedings taken against her by the Attorney General seeking orders pursuant to s 84 Supreme Court Act 1970 that she be declared a vexatious litigant – whether defendant’s obligation to care for her disabled adult son was a further relevant circumstance supporting the application – medical evidence suggested defendant fit to appear and respond to proceedings – application refused
CATEGORY:	Procedural and other rulings
PARTIES:	Attorney General in and for the State of New South Wales (Plaintiff) Lucy Patricia 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

15 May 2009

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

JUDGMENT – EX TEMPORE

1 HIS HONOUR: These proceedings were listed to commence here in Coffs Harbour before me on 11 May 2009. Two weeks were set aside for the hearing. In the events that occurred the defendant, Mrs Klewer, brought forward an application to adjourn the proceedings upon the basis that she was medically unfit to respond to them or to continue to appear in them. That motion was therefore dealt with as a preliminary matter.

2 The events of the week commencing 11 May 2009 require some elaboration for reasons that will become apparent. In advance of referring to what occurred this week however, I note that Mrs Klewer's application for an adjournment was originally based on an affidavit sworn by her, which annexes certain material. It seems to me to be logical to refer to that material first.

3 In support of what she refers to as her current medical condition disabling her from attending court and representing herself in a highly involved and lengthy matter, Mrs Klewer annexed a report of Dr J Wenman dated 2 April 2009. That report is clearly one prepared by Dr Wenman for the purposes of these proceedings, if not the present application. It is addressed directly to me and is in the following terms:

"I write regarding Mrs Lucy Klewer ... who has been under my care for some time and whom I last saw on 30 March 2009. At that time she had been complaining of continuing chest, central chest pain, the underlying cause of which is uncertain but considered to be either due to oesophageal spasm or coronary artery spasm according to her cardiologist, Dr Waites. In any events the stress of her impending court case has created increasing episodes of the central chest pain and I am concerned at her fitness in being able to attend court".

4 Also annexed to Mrs Klewer's affidavit is a report from Dr Hodges dated 24 April 2009. That report is in the form of a letter addressed to Dr Ward. It seems to me to be unnecessary to refer to all of the terms of that letter. It is sufficient to note that Dr Hodges, apparently having examined Mrs Klewer and taken note of her complaints (which I will simply describe as of a gynaecological nature), referred her for further investigation as required.

5 Paragraph 4 of Mrs Klewer's affidavit is in the following terms:

"I can confirm that the condition reported in Dr Wenman's report attached to this affidavit and prior affidavit, that is chest pain and spasms brought by significant stressors such as this court matter, continues to afflict me. I have been admitted to the local hospital for such condition and associated fainting spells on 3-4 occasions in the last 2 months. Documentary evidence of this needs to be obtained from Coffs Harbour Base Hospital. I am now being also investigated for uterine cancer as per annexure B. Appointment for this 25 May 2009".

6 I pause to observe that annexure B referred to by Mrs Klewer in that paragraph is the report from Dr Hodges to which I previously referred.

7 Mrs Klewer relied upon a letter dated 5 May 2009 from Kathy O'Leary, the medico-legal administration officer at the Coffs Harbour Health Campus. The material that it contains amounts to a confirmation of presentations by Mrs Klewer at that hospital between 19 June 2007 and 21 April 2009. That document falls into the category of "documentary evidence" of the sort referred to by Mrs Klewer in paragraph 4 of her affidavit, which I just quoted. As earlier noted, the events of this week have to some extent and with some significance overtaken Mrs Klewer's earlier presentations to the hospital, including even the one as recently as 21 April 2009. No other material in Mrs Klewer's affidavit or annexed to it deals directly or inferentially with her medical condition. However, Mrs Klewer relied upon other material to which it is necessary to have regard.

8 The principal item in that respect is the report from her former general practitioner, Dr Andrew Duguid. His most recent report is dated 19 September 2008. Significant reference to that report has been made in the course of these proceedings and indeed in this application. At the risk of some repetition I think it is important to set out its relevant terms. It is addressed to Mrs Klewer and is said to be in reply to a letter from her dated 15 September 2008 requesting a medical report. It has five numbered paragraphs and they are as follows:

"(1) Ms Klewer is at present not able to effectively defend long and complicated matters due to her medical problems and resulting symptoms.

(2) Ms Klewer's ability to communicate with the court is significantly affected by her current symptoms including chest pain, dizziness, syncope, dyspnoea, bladder dysfunction, abdominal pain, anxiety, poor memory, poor concentration.

(3) Ms Klewer's medical conditions are worsened by periods of increased stress including involvement in complicated legal matters which has resulted in Ms Klewer being admitted to hospital and undergoing extensive specialist assessment and investigation.

(4) Ms Klewer suffers from recurrent blockage in the ears, left worse than right, due to Eustachian tube dysfunction and audiogram by specialist ENT surgeon in March 2008 show hearing in the left ear to be below the limit of normal; there was also a small high frequency hearing loss in the right ear. These problems could cause difficulties with hearing on the telephone.

(5) My recommendation is for Ms Klewer's symptoms and medical problems to continue be fully investigated and fully assessed and Ms Klewer to continue to undertake the appropriate management and follow up review for the problems. I am not in the position to direct the court in any other matter."

9 My attention was also drawn to a report of Charles Lucas dated 22 September 2008. Mr Lucas is a psychologist who reports having seen Mrs Klewer on 17 September 2008. Apart from relating a history in what appear to be uncontested and unexceptionable terms, Mr Lucas reports as follows:

"Additionally, you detailed a significant number of legal stressors within your life, some of which, such as the disputes with the police and the attack while you were resident in the Mental Health Unit, have been resolved legally at least, but not necessarily emotionally. You also described a current dispute concerning a past neighbour's dog, which began in 2001 and is still continuing. You also mentioned in relation to the legal issues, that you have been arrested three times and typically, you represent yourself in these proceedings which involves considerable background work and obvious anguish and stress. In fact, in further relation to this, you related to me that in the past you have made suicide attempts including 'many overdoses with alcohol and sleeping tablets'."

10 Mr Lucas proceeds effectively to diagnose a condition suggestive of an adjustment disorder of a combined type including both anxiety and depression at a moderate level. He suggested that the adjustment disorder is both developed and maintained by the impact of the significant psycho-stressors within Mrs Klewer's life and he expressed little doubt that her emotional condition can intensify still further in response to an increase in the frequency and depth of the stressors. I note that this opinion and diagnosis appear to be consistent with some others of the medical profession who have expressed opinions about Mrs Klewer's condition. I will return to these later in these reasons.

11 Next, Mrs Klewer relied upon a document dated 28 September 2008, prepared by Rafei Ahmad at the emergency department of the Coffs Harbour Health Campus. It is in terms directed to Dr Duguid and is relevantly as follows:

"Lucy Patricia Klewer presented to the emergency department at Coffs Harbour Health Campus on 28 September 2008 at 16:30. The presenting problem was central chest pain for one and a half hours at rest, recent angiogram states has vasospasm.

The following investigations were undertaken in the department:


Lipase
Urea Creatinine and electrolytes
CRP
Troponin-T
Full blood count
Chest X-ray


The diagnosis was chest pain.

Thank you for seeing this patient with central chest pain. Troponin-T and ECG was unremarkable. She had an angiogram done a few weeks ago. Kindly review her symptoms, which is possible reflux."

12 With some minor exceptions, that would ordinarily have amounted to the whole of the medical evidence upon which Mrs Klewer relied in this application. However, in circumstances to which I will now refer, events of this week in a significant and relevant way overtook or at least augmented that material. This occurred as follows.

13 At approximately 9.25am on 11 May 2009 the registry was notified by facsimile, apparently from the Coffs Harbour Base Hospital, that Mrs Klewer was currently there and being cared for in the emergency department. The information received was that she had been there since 6am and had seen a doctor for chest pain. The court was informed that she was also receiving medication and awaiting results of blood tests. It would appear as well that Mrs Klewer had been informed that it would be against medical advice to leave the hospital until the results of the tests were recovered.

14 Notwithstanding that somewhat pessimistic communication, Mrs Klewer attended the court, and at approximately 10.30am on Monday the present application commenced. Mrs Klewer produced as evidence in further support of her application, what was a then highly current medical report in handwriting from Dr Paul Spillane, the staff specialist with the North Coast Area Health Service. I referred to the terms of that document during the course of the morning of 11 May 2009, but it is critical to a determination of the present application and I note that its terms are as follows:

"Ms Klewer presented to the ED overnight with recurrent atypical chest pains. These symptoms have been investigated in the past and no cardiac cause has been demonstrated. Today her pathology tests and ECGs have been unremarkable and I am happy that her symptoms today are not consistent with cardiac ischaemia. She is being discharged now and in my opinion should be able to attend her court hearing but this will be left up to her".

15 It will be apparent that Dr Spillane's opinion at that time was that Mrs Klewer should be able to attend court. In the events that occurred, that turned out to be true. Mrs Klewer would appear to have decided to attend court in the light of her then current medical condition, as she understood it.

16 The matter proceeded thereafter throughout the course of Monday. Dr Duguid was called to be cross-examined and the bulk of the evidence on that day was from him. I will return to that in due course. Towards the end of 11 May 2009 however, it became apparent that Mrs Klewer was in some distress.

17 According to my best recollection it was sometime around approximately 3.30pm on that day that Mrs Klewer, who was then seated at the bar table appearing for herself, left the courtroom and did not return for the balance of that day. I was subsequently informed that she had collapsed outside court and had been taken back by ambulance to the Coffs Harbour Hospital for further treatment. It goes without saying that the proceedings did not thereafter continue on that day.

18 On Tuesday morning 12 May 2009, despite the events of the previous afternoon, Mrs Klewer returned. She did so accompanied by a report dated 11 May 2009 from Dr Andrew Munro, the staff specialist in emergency at the Coffs Harbour Health Campus. I referred to this document in the course of the proceedings on that day.

19 At the risk of some repetition, but having regard to the contemporaneity of that document and to the matters to which it refers, it becomes imperative that its terms be included in these reasons. They are relevantly as follows:

"Lucy Patricia Klewer presented to the emergency department at Coffs Harbour Health Campus on 11 May 09 at 16.53. The presenting problems was BIBA (brought in by ambulance) chest tightness at 1400 hours relieved with Anginine.

The following investigations were undertaken in the department.

Chest X-ray.

The diagnosis was emotional crisis - acute reaction to stress.

Lucy Klewer was brought to the ED by ambulance this afternoon following an acute onset of chest and throat pain experienced whilst in court, this was her second attendance today with chest pain, she has has [sic] a significant increase in ED attendances over the last couple of months (on eight occasions since 7 April). This evening her physical examination was normal as was her chest x-ray and ECG. She is known to have no disease of her coronary arteries from a recent negative coronary angiogram.

I feel that this attendance has again been the result of stressors out of her immediate control resulting in somatic type symptoms.

She was given a low dose of anxiolytic and discharged home on advice not to drive".

20 During the balance of the day, Mrs Klewer continued to remain in court and appear for herself on this application. Dr Munro was called to give oral evidence and to be cross-examined about Mrs Klewer's presentation to the hospital as outlined in his report. I will refer to the evidence given by him in due course.

21 However, before doing so I note that on Tuesday afternoon almost on the stroke of 4.00pm, Mrs Klewer, who was then in the course of being cross-examined by Mr Oliver, indicated that she was feeling unwell. From her seated position in the witness box, Mrs Klewer suddenly collapsed, falling to her right and onto the floor of the well of the court. To the observation of all those present, the Sheriff’s Officer and a Court Officer attended to her promptly. The proceedings were immediately adjourned and in due course the court was informed that Mrs Klewer had been once again taken away for appropriate treatment.

22 Again, and notwithstanding this dramatic event, the proceedings recommenced before me on Wednesday 13 May 2009 at 10.00am. Mrs Klewer attended but expressed some concern about whether or not she would be able to remain in court during the day. As the transcript will reveal, I suggested to Mrs Klewer that she should effectively approach the matter cautiously and see how she went during the course of the morning. As it turned out Mrs Klewer was able to return to the witness box and her cross-examination continued and concluded. The day came to an end at 4.00pm when Mr Oliver's submissions in response to the motion concluded.

23 I pause again to observe that Mrs Klewer sought an indulgence from me at that time. Mrs Klewer informed me that she was then prepared immediately to commence her submissions in response to Mr Oliver. I did not accede to that application but its significance at least to my observation was that, despite a slow start that morning, Mrs Klewer had sufficiently recovered after a short time to be in the position of actually wishing to continue with her submissions beyond the normal court hours.

24 The matter resumed on Thursday 14 May 2009 shortly after 10.00am. The delay in commencement on that day is of no consequence and has no significance. Mrs Klewer continued throughout the day uninterrupted to make submissions in support of her present application. I should observe that at approximately 3.30pm a blackout occurred so that all lights and electronic equipment in the court, including sound recording of these proceedings, came to an abrupt end. I therefore adjourned the matter until the following day and indicated that the proceedings would commence at 9.00am on Friday 15 May 2009.

25 With the assistance and cooperation of all concerned, including the court staff and the court reporting branch, that is what occurred. Mrs Klewer re-attended court at that time and resumed her submissions. Those submissions continued until approximately 9.45 this morning at which time I commenced to give these reasons.

26 I interrupt myself briefly to note that both Mr Oliver and Mrs Klewer have from time to time made reference to sentinel events in the conduct of cases commenced by Mrs Klewer over years past that are at the heart of the principal or substantive proceedings brought by the plaintiff against her. Many of those events were drawn upon by both parties with a view to establishing variously the presence or absence of Mrs Klewer's ability actively and meaningfully to take part in proceedings. Both sides referred to medical reports of some antiquity. They were ultimately less relevant than the recent medical opinions to which I have earlier referred that are based on events during this week including events that occurred in this very courtroom. The evidence of Drs Duguid and Munro fell into this latter category and it is to that material that I think it is important now to refer.

27 I should note before dealing with Dr Duguid's evidence, and it is a matter of no contest in these proceedings, that he had been Mrs Klewer's general practitioner until approximately March this year. It seems that she and he had a disagreement and that that disagreement deteriorated to a point where Dr Duguid commenced proceedings for an Apprehended Violence Order against Mrs Klewer. The substance of that dispute is for present purposes quite clearly irrelevant but I raise it because Dr Duguid was a doctor upon whom Mrs Klewer relied in this application and it was patent that her confidence in him was significantly adversely affected by the breakdown of their relationship. Even notwithstanding this fact, however, Mrs Klewer persisted in relying upon Dr Duguid's report of 19 September 2008 and in those circumstances it remained appropriate that he attend as required by the plaintiff to be cross-examined on his medical opinions about her.

28 It is quite obviously not possible fully to record all of the matters dealt with by Dr Duguid during the course of his evidence before me. I note that he commenced to give evidence at approximately 12.30pm and that his evidence had not finished by the end of the day. He gave the following evidence in cross-examination:

"Q. Now when you say until March 09 are you suggesting that in March 09 you ceased to have an opinion because she ceased to be under your care or are you suggesting that in March 09 your opinion changed?
A. Because she's no longer under my care and I don't know what treatment she has received in the - in the meantime.

HIS HONOUR

Q. But I think the answer to the question is that you ceased to have an opinion because you no longer had access to her as your patient--
A. Yes.

Q. --in order to be able to form one, is that the answer?
A. Yes.

OLIVER

Q. So is it your evidence really doctor that as of today you can't assist the court with any opinion as to Mrs Klewer's present capacity to defend proceedings?
A. No I'm not really - I thought I was giving advice regarding the report in September 08 and what I would say about Mrs Klewer's current medical condition would only be, you know, assuming that things hadn't changed. So I'm not really into - I don't think I'm really able to make a statement on her current health status.

Q. Assuming that things haven't changed since she ceased to be your patient is it your opinion that it would be in the interests of Mrs Klewer's health that her involvement in legal proceedings be kept to a minimum?
A. I think her physical condition deteriorates with - at high periods of stress which legal matters seems to cause her distress and I would - and my advice would be to reduce the legal matters as much as she possibly can."

29 As appears from the last answer in the passage just quoted, Dr Duguid expressed the view that Mrs Klewer's physical condition deteriorated at high periods of stress and that this was caused by legal matters. His advice was that, wherever possible, she should reduce her involvement in such matters.

30 I also note, as that passage will reveal, that as the result of the breakdown in the professional relationship between Dr Duguid and Mrs Klewer in March this year, he was of the view that he was not able to make a statement about what he described as her "current health status". Notwithstanding that statement, however, I would take it to be the position that any opinions that he expressed were at least referable to his knowledge of Mrs Klewer's condition as recently as March of this year.

31 Dr Duguid was cross-examined at some length by Mr Oliver. That cross-examination included, quite properly in my view, an approach by Mr Oliver based on information given to a Dr Gorman, upon which the plaintiff relied, which had not necessarily been available to Dr Duguid. For present purposes, this line of cross-examination commences approximately at page 62 of the transcript of 11 May 2009, and proceeds until page 66. Without descending to minute detail, the basis of the cross-examination was that Dr Gorman’s opinion, to the effect that Mrs Klewer was fit and able to attend or to participate in legal proceedings, was based upon written material that emanated from her or which had been approved by her in long running and complicated proceedings in the Federal Court in which she is unfortunately involved. It was put to Dr Duguid that his opinion might have been different about Mrs Klewer's capacities if he had been aware of this material. He gave the following answer at page 62 of the transcript:

"A. I still would've been concerned that she would've suffered those other symptoms, chest pains, dizziness, fainting, shortness of breath, which at that stage hadn't been fully investigated, so I mean that's a hypothetical situation, but I think my advice still would've been not to partake in those legal proceedings until the problems, the next stage of that exclusion that we've talked about, the pathology."

32 As an aid to understanding, I note that the series of complaints and symptoms referred to in the course of that answer are redolent of the conditions referred to by Dr Duguid in his report of 19 September 2008.

33 Furthermore, it would seem that some at least of the exclusions to which Dr Duguid referred in that answer, in the nature of pathology tests and the like, have come to light since his September report. I take it to be an uncontested proposition at present in these proceedings that subject to any further or other material that may emerge, Mrs Klewer has not yet been diagnosed with any cardio-vascular or other physical pathology capable of objective assessment by chest X-ray, ECG, blood test or similar. That fact is not to derogate from the reality of her condition or conditions. This is referred to below.

34 As the balance of Dr Duguid's evidence in cross-examination reveals, he effectively changed his opinion from the one expressed in September 2008 to one that achieved more currency upon the basis of the hypothetical propositions put to him concerning the new material. For example, he agreed that Mrs Klewer could read and comprehend documents, as this further material would tend to suggest, but he retained some concern about her chest and abdominal pains and syncope, which she was getting a great deal of the time. He did however appear to concede that upon the basis of the further information put to him, Mrs Klewer would be able variously to understand submissions and questions (presumably in the context of a court case). Even though she may suffer from symptoms of the sort of which she regularly complains, Dr Duguid thought that Mrs Klewer would be able to attend court. As he said at transcript page 65, "[s]he would get symptoms but I think she would be capable of doing it."

35 Finally, for presently relevant purposes, at transcript page 60, Dr Duguid said:

"Owing further information I would say that the attendance before court will be that - cause her deleterious affects on her health but she should be capable of doing it."

36 This last answer was among the material to which Mrs Klewer specifically drew my attention in the course of her submissions.

37 Before leaving Dr Duguid's evidence I think it is important to observe that notwithstanding the fractured relationship that I have described then extant between him and Mrs Klewer, Dr Duguid struck me as a cautious and careful witness, who gave his evidence in a hesitating way and usually by reference to his clinical records, which he had with him in the witness box. The opinions that he expressed were in the first instance favourable to Mrs Klewer's assertions that she suffered from a stress related condition of a disabling nature and only when pressed by Mr Oliver, with the benefit of the further material, did he make concessions that in any way appeared to dilute the favourable views that he originally expressed. Dr Duguid struck me as a witness giving evidence in his professional capacity to the best of his ability and without any doubt truthfully.

38 The next person to give evidence was Dr Munro. Again perhaps unfortunately in the sense that it bespeaks a reoccurrence of Mrs Klewer's condition, but fortunately for the purposes of assessing the present application, Dr Munro was able to come to court almost literally from having treated Mrs Klewer within the previous 24 hours. His evidence is therefore very important.

39 At page 91 of the transcript on 12 May 2009, Dr Munro was shown Dr Spillane's report. Mr Oliver drew Dr Munro's attention to the fact that Dr Spillane's opinion, when he examined Mrs Klewer earlier in the day for presenting symptoms similar to those described by Dr Munro, was that she would be able to attend her court hearing later that day. Dr Munro was then asked the following questions:

"Q. When you discharged her from the hospital was she in the condition of a person who in your opinion, leaving aside the time, would have been able to participate in a court hearing?
A. It was - she was. I felt, in fact I was quite frank with Mrs Klewer, that the effective management of her symptoms would be obtained if she continued to proceed with the current court process and got through this time in her life".

40 I then asked Dr Munro the following question and he replied as follows:

"Q. Sorry, can I just understand that. She would be better to have these proceedings behind her, rather than continually confronting?
A. That would be paraphrasing it perfectly".

41 In the context of that evidence Dr Munro was further cross-examined by Mr Oliver. He gave the following evidence at transcript page 92:

"Q. At that time, would she in your opinion have been capable or incapable of reading and understanding a document?
A. She would be capable in my opinion, she'd be capable of reading and comprehending the content of a document.

Q. I suppose there could be no doubt then that - and in view of what you've described about what took place in the consultation that she was capable of understanding questions that were put to her?
A. In my opinion she was quite freely capable of understanding questions that were put to her.

Q. She was also capable of communicating coherent and sensible answers to those questions was she not?
A. Correct.

Q. So at the time when she presented she was quite capable of participating in a court hearing?
A. In my opinion, correct.

Q. Are you in a position to express an opinion to the court, as to whether what me might call onsets or attacks of the symptoms that caused Ms Klewer to present to the emergency department, would render her even temporarily incapable of participating in court proceedings?
A. My qualifications are as an emergency physician, I'm not a psychiatrist. But in my opinion as an emergency physician, I would accept that she is capable of undergoing court proceedings".

42 Dr Munro was then re-examined by Mrs Klewer. In response to her question at the bottom of page 93 Dr Munro said in part:

"Your presentation yesterday related to the crisis that you were experiencing emotionally and you presented with what I have referred to as somatic form of pain, for which there was no physical cause. At no time during that interaction did I feel that you were unable to respond to appropriate questions".

43 I observe that the somatic form of pain to which Dr Munro refers is identical to the description given by Mr Lucas in his report of 22 September 2008.

44 Consistently with the approach she has taken throughout her presentation of this application, Mrs Klewer asked Dr Munro whether he was aware of what she described as "the enormity of these proceedings". Dr Munro replied:

"I would imagine that it would be stressful for anybody in the position of being in court".

45 Following the conclusion of Dr Munro's examination and re-examination I asked him the following question, which he answered as appears below:

"Q. The question is, whether or not her medical condition and continued attendance and involvement at any level in these proceedings is contra-indicated?
A. I don't believe attendance to the court is putting Mrs Klewer's health at risk".

46 Before Dr Munro's evidence was concluded, he dealt with one issue that to some extent had not been addressed head-on in the medical reports but which in one sense appeared to be ever present throughout these proceedings. I asked Dr Munro whether or not he had formed an opinion about Mrs Klewer's symptoms and presentation and whether or not her condition was genuine or feigned. At page 98 of the transcript, Dr Munro replied in emphatic terms as follows:

"A. I absolutely don't believe that she feigns these episodes. It is a well recognised phenomenon that physic [sic] pain can manifest as physical symptoms. It is my job as an emergency physician to ensure that those physical symptoms are not threatening to life or limb."

47 I also raised this with Dr Munro a little later as the following questions and answers on the same page reveal:

"Q. In your view the attacks with which Ms Klewer presents are genuine, at least from her point of view?
A. Correct.

Q. But that the high and low water mark of the conditions with which she presents don't, in your opinion, interfere with her ability physically to be present in court during even a stressful court case?
A. Correct."

48 The events of this week seen in the light of the medical reports prepared by Dr Spillane and Dr Munro, and in particular the evidence given in court by Dr Munro, followed an equally significant and helpful report also emanating from the emergency department of the Coffs Harbour Health Campus from Dr Amanda Harper. That report is dated 7 May 2009. Mrs Klewer also relies upon it as a contemporaneous record of her condition, its presenting characteristics and its functional effect upon her. The report contains reference to the following relevant matters:

"Lucy Patricia Klewer presented to the emergency department of Coffs Harbour Health Campus on 7 May 09 at 14:31. The presenting problem was 'gripping' central chest pain and dizziness both exactly the same as previous (3Y and 1Y duration), which came on 14:15 while patient was seated waiting to make a booking for a D & C, both investigated previously, ? oesophageal spasm, and long standing dizziness. The following investigations were undertaken in the department: chest X-ray, urea creatinine and electrolytes, calcium, phosphate and magnesium, liver function tests, troponin-T full blood count.

The diagnosis was chest pain. Lucy assured myself and the nursing staff on multiple occasions throughout her stay in the department that the symptoms she was experiencing today were in no way different to those she had experienced previously. She did however note that she had been having some discomfort in her left breast over the last few weeks and she is due for imagining of this which she promises me she is in the process of arranging.

Lucy also reports intermittent blockage of both Eustachian tubes. She has previously seen an ENT surgeon regarding the blockage of one and declined the offer of a grommet. Lucy has agreed to make contact with the surgeon again to discuss her ongoing ear blockage and emergence of her dizziness over the last year since these blockages have occurred.

Observations and examination of Lucy were not abnormal. ECG and repeat were unchanged from previous. Bloods were normal, including 8 hour troponin. Lucy declined the offer of a CXR.

Lucy ate and drank without any problems, and her symptoms had resolved by discharge. She was happy to go home to her children and promised to return if she was in any way concerned or had any recurrence of symptoms.

Lucy also raised concerns during her time in the department regarding her anxiety levels and associated symptoms (her chest pain and dizziness are apparently triggered by stress as per Doctors Wenman and Waites) and her court case due to start next week.

Thank you for catching up with Lucy regarding all of the above and managing and investigating her further as you feel appropriate. Many thanks."

49 In response to the present application the plaintiff relied upon a medical report dated 4 May 2009 prepared by Dr David Gorman. It should immediately be observed, as Dr Duguid himself described during his oral evidence and as Mrs Klewer has eloquently emphasised during the course of this application, that Dr Gorman did not have the benefit of examining her personally. To that extent, consistently with general knowledge or commonsense, Dr Gorman was at a disadvantage for this reason at least.

50 The opinion that he expressed was given upon the basis of documentary material. Some portions of his opinions are not controversial to the extent that they proceed upon the basis of what are the accepted results of tests that have taken place. That appears from the conclusions that he expressed that are partly as follows:

"It is my conclusion from reading reviews that Ms Lucy Klewer does not have any significant cardiac problems or any significant gastrointestinal problems. I believe her ongoing gastrointestinal and chest problems are related to her psychological problems (anxiety and depression).

In assessing the effect of the psychological problems on her functioning, I note the preparation of the letter from Ms Lucy Klewer to Dr Duguid dated 15 September 2008 which is a clear and well prepared letter containing a number of questions she is asking of the court.

I also note the written submissions prepared by Ms Klewer in part C2. These were prepared, I understand, on 7 October 2008. They also display that there is no problem with her cognitive function. She has prepared a complicated submission I understand."

51 The submissions apparently prepared on 7 October 2008 was the material to which Dr Duguid's further attention was drawn in the course of his cross-examination by Mr Oliver. Dr Gorman continued with his opinion in the following terms:

"As outlined above I could not identify any definite medical problems which could cause any difficulties with the court hearing.

I believe she could read and comprehend the documents - there are no medical reasons why she could not and she has demonstrated competency in the second part of 2008. Clearly, the documents you have outlined are significant in size. However, documents such as the one she produced and filed in the court on 7 October 2008 was also a long document which she composed. I did not find any medical reason why she could not look at a larger volume of documents and be able to read and comprehend them.

She will be able to understand submissions that are put to the court during the course of the hearing.

She should be able to understand questions. I understand that Dr Duguid has said that hearing problems may 'cause difficulties with hearing on the telephone'. I do not feel there would be any problems during the hearing based on this.

She should be able to communicate with the court as she did on 7 October 2008 in the submission in part C.

There is no reason why she could not attend at the court."

52 The second basis upon which the application for an adjournment is made concerns the physical, medical and associated sociological disabilities and condition suffered by Mrs Klewer's son Robert. Robert is presently 21 years of age and suffers from a number of problems including epilepsy and hemiplegia. He is to some extent dependant upon external care and Mrs Klewer is the person who has always provided it.

53 Mrs Klewer has again eloquently expressed on a number of occasions how her obligations to her son intersect with her ability to respond to and to appear in these proceedings. Of particular concern would appear to be Robert's poor memory and at least an anecdotal propensity to absentmindedness. This recently manifested itself in damage to the family home, when Robert failed properly to attend to something that he was preparing in the kitchen.

54 Mrs Klewer's affidavit annexes medical reports that relate to Robert's condition to which I should briefly refer. Annexure F to Mrs Klewer's affidavit is a report from Dr Erica Jacobson. It is dated 13 February 2009 and is addressed to Professor Somerville at the epilepsy unit of the Prince of Wales Hospital at Randwick. Dr Jacobson is herself a neurosurgeon and reported as follows:

"[Robert] has done extraordinarily well however he suffers from seizures which are well controlled on Keppra. He finds the side effects annoying and he is keen on an opinion re surgery.

After a long discussion it seems as though he suffers seizures that start as complex partial seizures with an aura of nausea followed by head turning to the left. After that he loses consciousness and most seizures progress to generalised ones. There are variations in the seizures and it is difficult to get an accurate history.

His last seizure was eighteen months ago.

His scans show left sided defects related to the removal of a tumour including changes in the left temporal region (a potential source).

I have said that it is uncommon for us to consider surgical options in such a situation especially when seizures are well controlled. They are still keen on exploring these issues. Would you please review and advise."

55 Material put into evidence by Mrs Klewer during the course of this past week, to which no objection was taken, appears to indicate, contrary to the expression of opinion by Dr Jacobson that Robert's last seizure was "eighteen months ago", that his last seizure may well have been as recent as June of 2008.

56 Part of Mrs Klewer's affidavit dealing with Robert's condition is as follows:

"(6) Son Robert's condition described in annexures 'C' and 'F', as well as earlier reports filed, also requires me to provide constant care to him, especially as a result of his mood status which can result in violence at times, annexure 'D' relates to a very recent police involvement stemming from act of violence by Robert against me. As the court can appreciate I am the only carer for Robert and his need for my care to him is more important than this case.

(7) Robert needs to be occupied and educated so that his mental state is preserved. He attends the local TAFE every Wednesday studying organic farming and I transport him to TAFE and I am enrolled in the same course with him. I assist him with note taking at TAFE and with assignments at home. This TAFE study cannot be interrupted. Annexure 'H' is proof of enrolment and course timetable."

57 During the course of the hearing this week Mrs Klewer indicated that Robert has temporarily deferred further participation in that course.

58 It is important that I also record my observations of the events of this past week. Mrs Klewer appears for herself without legal assistance. Although she has some relevant qualifications she is not a qualified lawyer and has not been admitted to practise as such. During the course of this week, in varying degrees, I have observed her to exhibit outwards signs of apparent discomfort, including clutching her chest, holding her head in her hands, exhibiting facial expressions consistent with the experiencing of pain, as well as the dramatic events of Tuesday afternoon in court, and the events of the previous afternoon, partly in court, and so I am informed, later outside court.

59 The medical opinion for all relevant intents and purposes seems to me to be unanimous about the nature and extent of the condition or conditions from which Mrs Klewer suffers. Even the report lately tendered from Mr Peter Stoker dated 30 July 2007 described her as then suffering from a pain disorder due to physical and psychological factors. It is now known that Mrs Klewer's pain is not caused by physical factors, but Mr Stoker's opinion about the relationship between pain and psychological factors appears to remain valid and corroborated.

60 I also indicated during the course of these proceedings that any attempt by Mrs Klewer to rely upon what seems to be an obvious and unchallenged fact, that she is disadvantaged by the absence of legal representation, is not a matter that is pertinent to the determination of her ability to continue to appear in these proceedings, or to attend them unrepresented. The present application is necessarily limited to her medical conditions and any impediment to her involvement in these proceedings that is caused by them.

61 As I have earlier said, the opinion of Dr Spillane in the early hours of last Monday 11 May 2009 was that Mrs Klewer was able to attend court and that in his opinion it was really up to her whether or not she did so. History records that she did so. Dr Munro, effectively in the same position 24 hours later, expressed what for relevant purposes was an identical opinion. He gave evidence with which I was particularly impressed indicating that he saw no impediment to Mrs Klewer's continued participation in these proceedings upon the basis of any condition that he observed her to have or that he accepted that she did have.

62 Mrs Klewer disputed Dr Munro's opinion upon the basis that he was connected to the hospital which she had sued in the past. She was contending that Dr Munro was biased against her because of her previous litigation with his present employer. Mrs Klewer did not challenge Dr Munro with such a proposition and it is, in accordance with normal principles, to some extent unsatisfactory to be required to accommodate such a contention when Dr Munro was not given the opportunity to respond to it. That conundrum appeared to evaporate however when Mrs Klewer quite properly conceded that if she had suggested to Dr Munro that he was biased against her he would undoubtedly have denied it. I also hasten to observe once again that Mrs Klewer is unrepresented and the niceties of forensic technique ought not to be determined in this case at a high level of scrutiny.

63 During the course of the last five days, despite some dramatic and less dramatic events involving Mrs Klewer's health, she has to my observation conducted herself before me in a way that did not appear outwardly to be adversely affected by her medical condition. The existence of this condition described by all of the medical practitioners who have expressed a view about it is not in doubt. Any suggestion that her condition has been feigned or staged for strategic purposes is no longer available as the result of the evidence of Dr Munro that I earlier mentioned.

64 I am required to determine this case upon the basis of medical evidence or other like material that casts some light upon Mrs Klewer's medical conditions and the relationship between them and her ability to come to court. Whatever view one might have about the unsatisfactory circumstance that requires Mrs Klewer to attend to these proceedings in her present condition, all of the medical opinion speaks with one voice and that is that Mrs Klewer is presently capable of being here. Dr Munro is even of the view that Mrs Klewer's condition would be better the sooner these proceedings are concluded. I hasten to observe that that is a matter of comment and observation but I do not take it into account as having any significance in the determination of this application. Mrs Klewer's appearance here during the course of this week, almost in a self defeating and contradictory way, itself supports and confirms the unanimous medical opinion that she is fit to do so.

65 So far as concerns the position or condition of Mrs Klewer's son Robert, it goes without saying that no person with even a small understanding of the circumstances as they prevail would have anything but the greatest sympathy for her and for him and for the joint position in which they find themselves. However, even accommodating the error in the report concerning the recency of Robert's last epileptic seizure and allowing for the fact that the situation is far from perfect, the material does not satisfy me that these proceedings should be interrupted or forestalled because of the pressing obligations that Mrs Klewer has for Robert in his present condition. Although again it is only a snapshot of all of the circumstances, this week presents a glimpse of the true position. While I am not, and none of us apart from Mrs Klewer and Robert is, privy to what goes on outside normal court sitting time, the proceedings this week have not been obviously delayed or disrupted by Mrs Klewer's pressing and understandable need to be available for Robert's care.

66 It seems to me in these circumstances, upon the available evidence, that I simply have no alternative but to refuse the present application for an adjournment. The effect of that is that it will be necessary to proceed with the balance of the hearing. This will commence at 10am on Monday 18 May 2009.

67 Finally I should observe that it might appear to an outsider that this application for an adjournment, lasting the best part of five days, has taken longer than similar applications might ordinarily take. However, I formed the view that the conduct of the application, amounting in effect to an application for an indefinite stay of proceedings, should in large measure be left to the parties, including in particular Mrs Klewer. Approached in that way Mrs Klewer’s appearance for herself, unaided by legal representation, did not inconvenience her more than was unavoidable in the circumstances.

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