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. [16] The plaintiff then sought to have the witness declared hostile because he may be a witness in a case where she is the defendant and she perceived that there was a conflict of interest. On 28 April 2001 Sergeant Levey made a statement in proceedings which have been taken by the police against Lucy Klewer. At p11 of the transcript the Magistrate asked the defendant's legal representative whether he had any objection to Sergeant Levey recounting the conversation he (Sergeant Levey) had with the defendant Mr Walton by telephone. The defendant had no objection. That conversation is recounted at para 8 of Sergeant Levey's statement. The transcript reads: "Q. Can you give us the conversation? A. I phoned Mr Walton in relation to the matter of the boys, and there was also conversation about the behaviour of Mrs Klewer in the office, and that she had to be ejected from the office due to her swearing and her yelling out, which could be heard right across the school. Q. Now this, about Mrs Klewer being ejected from the office, are you talking about the office at the school, is that the case? A. Yes. INFORMANT: Q. Can you describe "eject" - the way you described what you now say "ejection", those words you used - that Mr Walton used at the time, what were the actual words? A. The words - at no time did Mr Walton say that he touched you or used any force on you. Q. I'm asking what words he used in that conversation? A. That conversation was in March of this year, the exact words he used I can't recall, however at no stage did he say to me that he touched you or used any force on you. INFORMANT: Q. Okay. Your Worship, if he can't recall can I seek to show him the statement to refresh his memory? BENCH: Yes. INFORMANT: Q. Para 8? A. Yes. Q. Can you tell the Court what words he used? A. No, that, that paragraph there is a, a sentence in brackets, which doesn't use any first person. Q. Can you, can you say what's in brackets please? O'CONNOR: Object. INFORMANT: It, it relates to -- BENCH: Well he can only refresh his memory from that, and you're asking him to say what Mr Walton said. INFORMANT: That's right. BENCH: And that's - he's now refreshed his memory, he's had a look at it and he can read - ask him again. Q. Now that you've looked at that statement do you recall what Mr Walton said to you? A. No your Worship, it's still the same. They're along the lines of that she had to be ejected from the office due to her behaviour, and at no time do I recall him saying that he had to touch her or use any force on her. INFORMANT: Your Worship he's lying under oath. BENCH: This witness is your witness, and you -- INFORMANT: He's a reluctant witness your Worship. BENCH: --you can't, you can't cross-examine him, you - and he's given his evidence, and that's where we're at. Anything further from the witness? INFORMANT: Not at this stage your Worship." [17] Para 8 (with the exception of a sentence in parentheses) of that statement states that he (Sergeant Levey) "later made a telephone call to Mr Ian Walton at John Paul College Coffs Harbour. I made inquiries with Mr Walton in relation to the incident involving the young person Robert Klewer. Mr Walton also informed me of an incident between staff at the College and Mrs Lucy Klewer." [18] The critical last sentence of para 8 reads: "...(That she had to be physically removed from the Office area due to he (sic) yelling abuse at staff and using foul language which could be heard all around the school)." (the critical sentence) 8 It will be apparent that O'Keefe SM declined to permit the claimant to cross-examine Sergeant Levey as a hostile witness pursuant to s38 of the Evidence Act. Section 38 of the Evidence Act provides as follows: " 38. Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. Note: The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7. (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and (b) the party is a witness in the proceeding." 9 It is also relevant to note that were s38 applicable, it would give rise to the Court having to give leave. In that event the mandatory requirements of s192 of the Evidence Act would be applicable which I quote below: 192. Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence." 10 It is not disputed by the opponent, a concession properly made, that there is nothing to indicate that O'Keefe SM took into account the matters mandatorily required in s192(2) beyond perhaps the implicit recognition of the importance of the evidence in relation to which the leave to cross-examine Sergeant Levey as a hostile witness arose. 11 In considering whether s38 applies, it is also common ground that s38(1)(c) is potentially applicable, that is to say if it be the case that Sergeant Levey as the witness for Ms Klewer "has, at any time, made a prior inconsistent statement". 12 However, s38(1)(a) needs briefly to be considered. That could only have application if the witness had actually given the relevant evidence and as Master Harrison correctly points out he was not permitted to do so in the case at hand. Thus as s38(1)(b) could not apply, the only potentially relevant subparagraph is subparagraph (c) of s38(1). 13 The earlier quoted passage from Master Harrison's judgment indicates that while Sergeant Levey had given a statement in the second set of proceedings in terms of paragraph 8 quoted above, he did not recall Mr Walton saying that he, that is Mr Walton, "had to touch her or use any force on her"; see quoted transcript at paragraph 16 of Master Harrison's judgment. 14 The question that thus emerges is whether a statement to the effect that Ms Klewer had to be physically removed from the office area due to her "yelling abuse at staff and using foul language..." when not also alleging that the physical removal was by Mr Walton, amounted to a prior inconsistent statement. Inconsistency must of course be judged by reference to the allegations the subject of the relevant proceedings, namely an allegation that Mr Walton had assaulted Ms Klewer. As a matter of common sense it is not easy to reconcile a statement that Ms Klewer had to be physically removed from the office area of the school, whether by Mr Walton or someone else, with Mr Walton having assaulted Ms Klewer, though it is conceivable that both propositions might coexist as a matter of fact. That is to say it is conceivable that Mr Walton might have first assaulted Ms Klewer but that she was later physically removed from the office area due to her yelling abuse at staff and using foul language. 15 Master Harrison affirmed the magistrate's decision and thereby upheld the magistrate's decision declining to grant leave pursuant to s38 of the Evidence Act. That decision of Master Harrison is in an area where she was reviewing a discretionary determination by the magistrate. But it is importantly a discretionary determination wherein there is nothing in his reasons to indicate that he had taken into account the matters in s192 of the Evidence Act. 16 Applying the test that Registrar Schell applied to Ms Klewer's application for an extension of time, I could not conclude that the appeal she seeks to lodge is inevitably futile and doomed to failure this being the threshold which the parties have accepted as the correct one. In saying that I do not of course reach any conclusion as to the merits of either the leave application, in what is a matter of discretion, and of the appeal beyond that limited proposition. I have earlier set out such basis as might be arguable in relation to the potential application of s38 of the Evidence Act. 17 Clearly Ms Klewer will need to satisfy the necessary matters to establish that she should be given leave to appeal and I express no view as to her prospects in that regard beyond that limited proposition earlier stated. 18 Accordingly in reviewing the order of Registrar Schell dated 3 February 2003 I make the following orders: ORDERS (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. ********** Last Modified: 06/05/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.