Klewer v Walton

[2003] NSWCA 308

CITATION:	Klewer v. Walton [2003] NSWCA 308
HEARING DATE(S):	14 October 2003
JUDGMENT DATE:	14 October 2003
JUDGMENT OF:	Meagher JA at 1; Hodgson JA at 2
DECISION:	Application for leave to appeal dismised with costs.
CATCHWORDS:	PROCEDURE - Adjournments - Unrepresented litigant involved in other proceedings - Request for adjournment in late communication to other party - No communication to or appearance in court - Adjournment refused. - EVIDENCE - Hearsay - Previous written statement by witness called by party - Leave to cross-examine sought and refused - Whether an error vitiating decision.
LEGISLATION CITED:	Evidence Act 1995 ss.38, 43, 45, 60, 106, 192
PARTIES :	Lucy Klewer - claimant Ian Walton - opponent
FILE NUMBER(S):	CA 41127/02
COUNSEL:	No appearance for claimant Mr. P. See for opponent
SOLICITORS:	The claimant is self-represented Hannigans, Casino for opponent

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC10266/02
LOWER COURT JUDICIAL OFFICER :	Master Harrison

CA 41127/02
SC 10266/02

MEAGHER JA
HODGSON JA

Tuesday 14 October 2003

KLEWER V. WALTON

Judgment

1 MEAGHER JA: The Court has made its decision. I will ask Hodgson JA to give the first judgment.

2 HODGSON JA: There was listed for hearing before the Court this morning an application for leave to appeal from a decision of Master Harrison delivered on 6 September 2002. When the matter was called, there was no appearance by the claimant, who is unrepresented.

3 However, Mr See of counsel for the opponent told us that his solicitor had received a facsimile message from the claimant dated 12 October 2003, which the solicitor had seen for the first time in his in-tray this morning. This facsimile concerned another case. However, at the bottom there appeared a PS in handwriting to the effect that, in relation to the matter in the Court of Appeal listed for hearing on 14 October, the claimant requested that there be consent to a five-week adjournment. The claimant in this note said she had university exams on 18 November, and that 4, 11 and 25 November were suitable. It requested a response by facsimile by “tomorrow pm”. The message concluded to the effect that the claimant was still in the District Court Sydney all week. The solicitor having seen this message only this morning had not yet responded to it.

4 Mr See told the Court that his instructions were to oppose any adjournment. The opponent was ready to proceed in the matter. He indicated that the opponent relied on the written response which was with the Court papers.

5 The proceedings in this Court arise out of the claimant’s private prosecution brought against the opponent for assault and other offences, which was heard by a local magistrate, Mr O’Keefe, on 10 December 2001. On that day, the magistrate dismissed this prosecution.

6 The claimant appealed to the Supreme Court of New South Wales under s.104 of the Justices Act, claiming that the magistrate had made an error of law in refusing…