Klewer v AttorneyGeneral for NSW

[2002] HCATrans 84

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  Nos S70 and S71 of 2001

B e t w e e n -

LUCY PATRICIA KLEWER

Applicant

and

NEW SOUTH WALES ATTORNEY‑GENERAL

Respondent

Applications for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH, 2002, AT 3.22 PM

Copyright in the High Court of Australia

MS L.P. KLEWER appeared in person.

MS S. NORTON, SC:   If the Court pleases, I appear with my friend, MR P.N. KHANDHAR, for the respondent, to both.   (instructed by the Crown Solicitor for the State of New South Wales)

GUMMOW J:   Yes, Ms Klewer.

MS KLEWER:   Yes, your Honours.  Apart from what I have already filed in so far as a summary of argument ‑ ‑ ‑

GUMMOW J:   You understand that these decisions – one seems to be in 1997 and one in 1998, is that right?

MS KLEWER:   Yes.

GUMMOW J:   Well, that is some time ago.

MS KLEWER:   Yes.  Your Honours, what had occurred:  I attempted to file an appeal to this Court after those decisions and the Registry advised me that it would be appropriate to appeal to the Court of Appeal and I done that and the matter was dealt with on 30 October and at that time the Crown had argued that we were in the wrong jurisdiction.  So, after that, I commenced with an application in this Court, and they are arguing we are in the wrong jurisdiction.  They could be right because the decisions were made under 474D which is not a judicial decision. 

However, I feel that, you know, it is probably the only Court that can give me leave to appeal those lower court decisions.  We have tried the Supreme Court of Appeal and it was not a situation whereby it could have been dealt with in that court.  I am not aware of, you know, perhaps, that court could have looked at the application in a way that, you know, would have given it jurisdiction in that court.  So, that is all.

GUMMOW J:   Now, there were proceedings in the Court of Appeal, were there not, and they were dismissed, were they not, on 2 February 2001.

MS KLEWER:   I withdrew - - -

GUMMOW J:   You withdrew the Court of Appeal applications?

MS KLEWER:   I withdrew because the Registrar – it was never dealt with before a judge, I believe.

GUMMOW J:   Yes, the Registrar did it, I think.

MS KLEWER:   I have a got a copy of correspondence which I sent him on the day where I withdrew because of the Crown’s argument – and he seemed to have agreed with that argument that there was no jurisdiction in that court.  It seems to me like I had the right to appeal those decisions.  However, I seem to be stopped whichever way I turn – whichever way I go.  What I would suggest, perhaps:  if I cannot appeal in this Court against the decisions of Sully and Newman, perhaps I can be given leave to appeal against the decisions of the District Court because of the lapse of time and there is no remedy in the Supreme Court, that it would only leave me this Court.  That is all I can say.

GUMMOW J:   Thank you.  Yes, Ms Norton?

MS NORTON:   I am not quite sure – I think from what was just said by Ms Klewer that she now concedes that this Court does not have jurisdiction to hear an appeal from the decisions of Justice Sully and Justice Newman under section 474 of the Crimes ‑ ‑ ‑

GUMMOW J:   Yes.  I think she was foreshadowing a remolded application to deal with the initial District Court proceedings.

MS NORTON:   Yes.  In those circumstances, it would seem that if there was any appeal from the District Court decisions, which are now quite old – I would have to check the dates – it would be a matter that should have gone to the Supreme Court and the only matter that was ever taken to the Supreme Court was this appeal to the Court of Appeal from the decisions of Justice Sully and Justice Newman under section 474D.  I do not believe this Court would have jurisdiction to hear an appeal direct from a District Court decision.

GUMMOW J:   Not unless there is federal jurisdiction involved.

MS NORTON:   And they were not federal offences.

GUMMOW J:   No.

MS NORTON:   So, I cannot see that there would be any jurisdiction.

GUMMOW J:   I think that is right; it sounds right.

MS NORTON:   Unless there is anything else I can help you with.

GUMMOW J:   Thank you.  Yes, Ms Klewer, anything you want to say in reply?

MS KLEWER:   No.  No, there is nothing I can add.

GUMMOW J:   Yes.  I think what Ms Norton pointed out to us is probably right.  Each application that is made out of time and which needs an extension of time enjoys  insufficient prospect of success, in our view, having considered the papers, to warrant a grant of special leave to appeal.  Accordingly, in each matter, the extension of time required is refused.

The Court will now adjourn to Tuesday, 19 March at 1.30 pm at Brisbane.

AT 3.28 PM THE MATTERS WERE CONCLUDED