Klewer v Attorney-General (NSW) - [2010] NSWCA 219

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219

FILE NUMBER(S):
2006/262000

HEARING DATE(S):
23 August 2010

JUDGMENT DATE:
29 September 2010

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

JUDGMENT OF:
McColl JA Campbell JA Sackville AJA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2006/262000

LOWER COURT JUDICIAL OFFICER:
Harrison J

LOWER COURT DATE OF DECISION:
5 February 2010

LOWER COURT MEDIUM NEUTRAL CITATION:
[2010] NSWSC 9

COUNSEL:
Applicant in person
K E Oliver (Respondent)

SOLICITORS:
Applicant in person
I V Knight, Crown Solicitor (Respondent)

CATCHWORDS:
VEXATIOUS LITIGANT- order made under s 84(1) of the Supreme Court Act 1970 that the applicant not institute any proceedings without leave – application for leave to appeal against the order – whether leave required under the Vexatious Proceedings Act 2008 to institute the leave application – whether leave to appeal required - leave to appeal refused.

LEGISLATION CITED:
Supreme Court Act 1970, ss 84, 101
Vexatious Proceedings Act 2008, ss 4, 5, 6, 8, 9, 13, 14, 15, 16, sch 1
Uniform Civil Procedure Rules 2005, Part 7, Div 9

CATEGORY:
Principal judgment

CASES CITED:
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170
Attorney General (NSW) v Klewer (No 2) [2009] NSWSC 454
Attorney General (NSW) v Klewer (No 3) [2010] NSWSC 9; 264 ALR 535
Attorney General (NSW) v Spautz [2000] NSWSC 45
Bole v Horton (1673) Vaugh 360; 124 ER 1113
Bristol-Myers Squibb Co v F H Faulding & Co Ltd [2000] FCA 316; 97 FCR 524
Commonwealth Bank v Heinrich (No 2) [2003] SASC 436
Conde v Gilfoyle and Anor [2010] QCA 109
Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423
Kay v Attorney-General [2000] VSCA 176; 2 VR 436
Niemann v Electronic Industries Ltd [1978] VR 431
Osborne v Rowlett (1880) 13 Ch D 774
Pedler v Hunters Hill Municipal Council [1976] 2 NSWLR 411
Shaw v McGinty (Attorney-General) [2006] WASCA 231
Valassis v McCabe [1999] NSWCA 423

TEXTS CITED:
R Cross and J W Harris, Precedent in English Law (4th ed, 1991)

DECISION:
1. The applicant is granted an extension of time to file an application for leave to appeal against the orders made on 5 February 2010.
2. The application for leave to appeal against the orders made on 5 February 2010 is dismissed.
3. The applicant is to pay the respondent's costs of the application.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA2006/262000
McCOLL JA
CAMPBELL JA
SACKVILLE AJA
29 September 2010

LUCY PATRICIA KLEWER v ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES

Judgment

THE COURT

Ms Klewer (“the applicant”) seeks leave to appeal from orders made by the primary Judge (Harrison J) on 5 February 2010: Attorney General (NSW) v Klewer (No…

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: [2010] NSWCA 219
Decision Date: 29 September 2010

CaseChat Overview and Summary

The applicant, Mr Klewer, sought leave to appeal against an order made by the Supreme Court of New South Wales under section 84(1) of the *Supreme Court Act 1970* declaring him a vexatious litigant and prohibiting him from instituting proceedings without leave. The Attorney-General (NSW) was the respondent. The appeal was heard by McColl and Campbell JJA, and Sackville AJA.

The primary legal issue before the Court of Appeal was whether leave was required under the *Vexatious Proceedings Act 2008* to institute the application for leave to appeal against the vexatious litigant order. A secondary issue was whether leave to appeal itself should be granted.

The Court determined that the *Vexatious Proceedings Act 2008* applied to applications for leave to appeal against orders made under section 84(1) of the *Supreme Court Act 1970*. Consequently, the applicant required leave under the *Vexatious Proceedings Act 2008* to bring his application for leave to appeal. The Court found that the applicant had not demonstrated sufficient grounds to warrant granting leave to appeal, and therefore dismissed the application.

The Court of Appeal granted the applicant an extension of time to file his application for leave to appeal, but ultimately dismissed the application for leave to appeal and ordered the applicant to pay the respondent's costs.

Orders

Orders of the court

1. The applicant is granted an extension of time to file an application for leave to appeal against the orders made on 5 February 2010.

2. The application for leave to appeal against the orders made on 5 February 2010 is dismissed.

3. The applicant is to pay the respondent's costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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