Klewer v Walton [2003] NSWCA 138

New South Wales Court of Appeal

CITATION : Klewer v Walton [2003] NSWCA 138 revised - 4/06/2003 HEARING DATE(S) : 26/05/2003 JUDGMENT DATE : 26 May 2003

JUDGMENT OF : Santow JA DECISION : (1) The orders of Registrar Schell dated 3 February 2003 be set aside; (2) The date for filing a holding summons for leave to appeal from the decision of Master Harrison of 6 September 2002 be extended to 4 December 2002; (3) The date for filing a summons for leave to appeal be extended to a date twenty one days after today's date, namely to 16 June 2003; (4) No order is made as to costs.

CATCHWORDS : PROCEDURE - Extension of time to set aside Registrar's order dismissing notice of motion for extension of time to file holding summons or leave to appeal - Review of Registrar's order dismissing such extension - appeal futile and doomed to failure - prior inconsistent statement s38 Evidence Act. LEGISLATION CITED : Evidence Act 1995 s38; s192 CASES CITED : Gallo v Dawson 1990 64 ALJR 458 PARTIES : Lucy KLEWER (Claimant) Ian WALTON (Opponent) FILE NUMBER(S) : CA 41127/03 COUNSEL : Ms Klewer in person (Claimant) A Naylor (Opponent) SOLICITORS : Hannigans (Opponent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41127/03

SANTOW JA

26 MAY 2003 (revised 2 June 2003) Lucy KLEWER v Ian WALTON Judgment 1 HIS HONOUR: This is an application for extension of time in the first instance to set aside the order of Registrar Schell and, if granted, review of the order of Registrar Schell in which he dismissed a notice of motion by the claimant, Ms Klewer, for extension of time to file a holding summons or leave to appeal from the decision of Master Harrison of 6 September 2002. 2 The opponent notes that in relation to the first threshold matter that the claimant was some sixteen days late in the filing of her notice of motion seeking to have the Registrar's order reviewed and set aside. In all the circumstances and noting that the claimant is a litigant in person and the relative shortness of the sixteen days and the prospects in relation to the second matter, I consider that I should give the necessary extension of time. 3 Dealing now with a review of Registrar Schell's order dismissing the claimant's notice of motion, the relevant circumstances can be summarised in very brief form as follows. Registrar Schell concluded that the claimant, while having to a large extent explained the reason why she was out of time in complying with the rules for filing a holding summons, also concluded that the extension she sought should be denied. This was because he considered that, consistent with what was said by McHugh J in Gallo v Dawson 1990 64 ALJR 458 at 459, such an extension of time should not be allowed where the appeal "would be futile and doomed to failure"; see judgment of Registrar Schell of 3 February 2003. 4 That necessarily requires me to consider briefly the history of how the matter reached the point where leave to appeal was sought. The facts are somewhat complex but without I hope unduly compressing them the following appears the position. Proceedings were brought originally before O'Keefe SM on 10 December 2001. Those proceedings were a private prosecution by Ms Klewer for assault brought against the opponent, Mr Ian Walton. 5 In related but separate proceedings the opponent, Mr Walton, had brought an action against Ms Klewer for making a false accusation which can be taken to be in relation to the relevant assault. 6 In the first set of proceedings one of the witnesses for Ms Klewer was a Sergeant Levey. 7 Paragraphs 15 to 18 of the judgment of Master Harrison in relation to the subsequent appeal from the decision of O'Keefe SM sets out the circumstances, from which I quote: "[15] As previously stated, the plaintiff chose to call Sergeant Levey as her first witness. The plaintiff asked Sergeant Levey to read p8 of his statement to the court (t 4). Before Sergeant Levey could do so the defendant's legal representative objected. The Magistrate ruled that he could not read from the statement but give the best evidence, namely oral evidence. The plaintiff then asked Sergeant Levey if he was going to be a hostile witness. The defendant's legal representative objected to this question. The Magistrate pointed out that the witness had only had by that stage the opportunity to give his name and address.