Klewer v Trustees of the Roman Catholic Church for the Diocese of Lismore

[2004] NSWSC 444

CITATION:	Klewer v Trustees of the Roman Catholic Church for the Diocese of Lismore [2004] NSWSC 444
HEARING DATE(S):	18 May 2004, 19 May 2004
JUDGMENT DATE:	19 May 2004
JUDGMENT OF:	Simpson J
DECISION:	(i) Statement of claim dismissed; (ii) plaintiff to pay the defendant's costs of proceedings; (iii) liberty to apply in relation to order (ii); (iv) any application by Ms Klewer regarding costs should be made within 14 days of today's date.
PARTIES :	Lucy Klewer - Tutor for plaintiffs Laura M Klewer, Robert C Klewer and Ryan C Klewer Turstees of the Roman Catholic Church for the Diocese of Lismore - Defendant
FILE NUMBER(S):	SC 20543/01
COUNSEL:	Mr P See - Defendant
SOLICITORS:	Plaintiff - by facsimile Hannigans - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Wednesday 19 May 2004

20543/01
Lucy P KLEWER v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF LISMORE

JUDGMENT

1 HER HONOUR: When this matter was called on for hearing yesterday at 10am I briefly outlined what had occurred outside the Court room since the matter was allocated to my list. I do not propose to repeat that. The transcript of today’s proceedings will disclose adequately, I think, what has occurred since that date.

2 I would simply note this as a short summary. The matter in which Mrs Klewer is the plaintiff was listed for hearing to commence on Monday, 17 May 2004. No Judge was available on that day. But, during the course of Monday the matter was listed before me to commence on Tuesday 18 May at 10am.

3 It seems that the processes of the Registry brought that to Mrs Klewer’s attention, whereupon she asked that I not hear the matter and that some other judge be allocated to hear it. She was told that she would have to make an application if she wished me to disqualify myself, but she advised that she proposed to leave Sydney and return to Coffs Harbour with her daughter who, it seems, was proposed to be a witness in the proceedings.

4 The matter was called on and the defendant was represented by counsel and I was told that seven witnesses were in attendance, all of them having travelled from the Coffs Harbour area for the purpose; that being at the request of Mrs Klewer who wished them to attend for cross-examination on statements which apparently they had made and that have been served. Thereafter, I have received a number of bulky facsimiles from Mrs Klewer, including one which she specifically asked me not to disclose to the defendant and which has, therefore, not been disclosed, but which remains on the file and which I consider it inappropriate to take into account, given that the defendant is unable to deal with the matters there raised.

5 I have twice previously dealt with matters involving Mrs Klewer in which she has been the plaintiff and in each of which she has been unsuccessful. Neither of them has involved any findings as to her credibility.

6 I do not feel embarrassed in proceeding to deal with matters involving Mrs Klewer. One question which arises is whether a reasonable observer would perceive that I would fail to bring an impartial mind to bear on the matters involved in the present litigation. Having regard to the issues raised in the previous matters, I do not think that could reasonably be concluded.

7 One of the matters raised by Mrs Klewer in her facsimile communications has been her desire to seek legal advice as to whether there is any basis to seek my disqualification. That has given me some pause, but the fact is that Mrs Klewer was apparently in Sydney on Monday. She was expressly advised that if she wished to make an application for my disqualification she should do so in person on Tuesday morning. She elected to leave Sydney and to conduct all communications by facsimile messages.

8 I have to balance the wish of Mrs Klewer to receive legal advice, which seems to be limited only to one issue, against the expense and inconvenience caused to the defendant and to do that in the light of the issues raised in the proceedings, so far as I can appreciate those. As I said, there were seven defence witnesses in attendance on Tuesday morning and it may be that they were also in attendance on Monday; I do not know about that.

9 I have come to the view that this litigation should come to an end. The Court cannot impose upon the defendant the further costs and inconvenience of maintaining this litigation. Mrs Klewer has been given every opportunity to pursue the claim or to make an application in proper form for my disqualification.

10 Further, the Court itself cannot be manipulated and its processes should not be used in such a way as to deprive other litigants of their rightful place in the queue to have matters determined.

11 Accordingly, I have come to the view that the statement of claim should be dismissed and I so order.

12 I order that the plaintiff pay the defendant’s costs of the proceedings. Mrs Klewer can have liberty to apply in relation to that order. Any application by Mrs Klewer in relation to the order for costs should be made within fourteen days of today’s date.

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Last Modified: 06/07/2004