Klewer v Director of Public Prosecutions (NSW)
[2019] NSWCA 253
•14 October 2019
Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Klewer v Director of Public Prosecutions (NSW) [2019] NSWCA 253 Hearing dates: 14 October 2019 Date of orders: 14 October 2019 Decision date: 14 October 2019 Before: White JA Decision: (1) Order that the applicant be referred to the Registrar for referral to a barrister on the pro bono panel for legal assistance, such legal assistance to be by way of:
(a) provision of advice in relation to the applicant’s summons filed on 2 July 2019, including advice as to the appropriate form of amendment to that summons;
(b) preparation of written submissions for the hearing of the summons and appearing for the applicant on the hearing of the summons in the Court of Appeal.Catchwords: CIVIL PROCEDURE – application under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) for referral to Pro Bono Panel – no issue of principle Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Supreme Court Act 1970 (NSW), s 84
Vexatious Proceedings Act 2008 (NSW), ss 4, 8, 14, 16Cases Cited: Application of Klewer [2019] NSWSC 525 Category: Procedural and other rulings Parties: Lucy Klewer (Applicant)
Director of Public Prosecutions (NSW) (Respondent)Representation: Counsel:
Solicitors:
Self-represented (Applicant)
E Daley (Respondent)
File Number(s): 2019/204934
Judgment
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HIS HONOUR: On 2 July 2019 the applicant filed a summons seeking leave pursuant to the Vexatious Proceedings Act 2008 (NSW) to institute proceedings in this Court for judicial review of her conviction in the Local Court on 9 August 2018 on charges of common assault and stalk and intimidate with intent to cause fear of physical harm.
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On 5 February 2010, Harrison J had made orders under s 84(1) of the Supreme Court Act 1970 (NSW) that until further order, the applicant shall not, without leave of the Court, institute any legal proceedings in any court. His Honour ordered that any legal proceedings instituted by the applicant before the making of order 1 should not be continued without leave of the Court.
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On or about 2 November 2018 the applicant filed an appeal in the District Court against her conviction in the Local Court. JusticeLink records show that on 26 November 2018 his Honour Judge King of the District Court ordered that:
"The conviction appeal is dismissed and all orders of the magistrate are confirmed. Leave from Supreme Court required to bring this action. Leave has not been obtained."
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On 12 December 2018 the application filed a summons in the Common Law Division seeking leave under s 14(2) of the Vexatious Proceedings Act to appeal to the District Court from her conviction. It is unnecessary to consider whether in the timeframe for seeking leave to appeal out of time provided by the Crimes (Appeal and Review) Act 2001 (NSW) that application could have had any substantive effect, even if granted. But in any event, on 10 May 2019 that application was dismissed (Application of Klewer [2019] NSWSC 525). No appeal arises from the order refusing leave.
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I am presently dealing with a notice of motion filed by the applicant on 25 September 2019 in which she seeks an order for pro bono legal assistance under Div 9 Pt 7 of the Uniform Civil Procedure Rules 2005 (NSW). Rule 7.36 relevantly provides.
“7.36 Referral to a barrister or solicitor (cf SCR Part 66A, rule 4; DCR Part 28C, rule 4)
(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.
(2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.
...
(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.”
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The respondents to the applicant's summons for judicial review are the Director of Public Prosecutions and the District Court. The Attorney General has filed a notice of motion seeking an order that he be joined as a third respondent. That application is consented to and I have made the order sought. In support of that application, the solicitor with the carriage of the matter has deposed that the present application raises an important question about the operation of the Vexatious Proceedings Act with implications beyond this particular case.
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Ms Daley, who appears today for the Attorney, has identified that it is an important question whether or not leave was required by the applicant to appeal to the District Court from her conviction in the Local Court. Ms Daley refers to s 8(9) of the Vexatious Proceedings Act, which provides:
“8 Making of vexatious proceedings order
...
(9) A vexatious proceedings order does not stay, or prohibit a person from instituting or conducting, any criminal proceedings that are taken by the person in connection with or incidental to criminal proceedings against the person, except as expressly specified in the order.”
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Presently, the applicant's summons for judicial review challenges only the orders of the Local Court and not the order of the District Court dismissing her appeal on the ground that leave to bring the appeal was required under the Vexatious Proceedings Act. There has been no hearing as to the merits of that appeal.
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The first question is whether the applicant needs leave under s 14 of the Vexatious Proceedings Act to bring this application for pro bono assistance, and if so, whether leave should be given.
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In De Varda v Austin [2018] NSWCA 263, Beazley P said about a summons seeking pro bono assistance:
“[37] Next, a question arises as to whether the applicants required leave under the Vexatious Proceedings Act to file their 9 October 2018 notice of motion. Order 1 seeks a referral for pro bono assistance. In my opinion, order 1 is not a proceeding ‘of the kind to which the order [under the Vexatious Proceedings Act] relates’. The position is the same in respect of order 2, which relevantly seeks a stay of the proceedings until the applicants obtain legal counsel.”
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I do not decide this question. Under s 4(d) of the Vexatious Proceedings Act, a "proceeding" includes an interlocutory proceeding or application, I will assume without deciding that the present interlocutory application for pro bono assistance is a proceeding to which the Vexatious Proceedings Act applies, and its filing would be the institution of a legal proceeding within the meaning of the order made by Harrison J. Assuming without deciding that leave is required, leave should be given. I am satisfied of the matters in s 16(4).
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The application for pro bono assistance is not vexatious and for reasons which follow, it has, at least, prima facie grounds. The Attorney General recognises that the substantive summons, at least once it is amended appropriately, will raise an important question about the operation of the Act. I understand that the Attorney's position is likely to be that the applicant did not need leave under the Act in order to bring her appeal to the District Court from her conviction in the Local Court.
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It is, however, possible that some substantive legal argument will need to be advanced on the hearing of the applicant's summons for judicial review and it is, in any event, desirable that the applicant has legal assistance in formulating the proposed amendment to her summons. I am satisfied the applicant is without means. Her attempts to obtain legal assistance through other schemes have not been fruitful. I propose to make an order as follows subject to anything either party may have to say as to the form of the order, namely:
Order that the applicant be referred to the Registrar for referral to a barrister on the pro bono panel for legal assistance, such legal assistance to be by way of:
provision of advice in relation to the applicant’s summons filed on 2 July 2019, including advice as to the appropriate form of amendment to that summons;
preparation of written submissions for the hearing of the summons and appearing for the applicant on the hearing of the summons in the Court of Appeal.
[Discussion between his Honour and the parties regarding any further orders to be made.]
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I make that order.
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Amendments
21 October 2019 - Amendment to title of judgment.
Decision last updated: 21 October 2019
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