Klewer v. Walton [2003] NSWCA 308

New South Wales Court of Appeal

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

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 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 her leave to cross-examine a witness she had called in the case, namely one Sergeant Levey. However, as recorded by Master Harrison in paragraph 5 of her judgment, the claimant indicated that while she wanted the dismissal of the prosecution quashed, she did not want the matter remitted to the magistrate. 7 In the Draft Notice of Appeal provided by the claimant with the Court papers, she seeks orders setting aside Master Harrison's orders and setting aside the decision and orders of the magistrate, but does not seek the remission of the matter for a further hearing by a magistrate. 8 The claimant was sixteen days late in filing the application for leave to appeal. Registrar Schell refused an extension of time and dismissed the application. That decision was reviewed by Santow J on 28 May 2003, and on that date Santow J made orders setting aside the orders of Registrar Schell and extending the time for filing this application, stating that he could not conclude that the application was futile and doomed to failure. 9 The claimant has filed a summary of her argument dated 13 June 2003, and the opponent has filed a written response dated 22 July 2003. 10 In my opinion, the appropriate course is for the Court to deal with the application for leave to appeal in the absence of the claimant. In reaching that opinion, I would have regard to the following factors. 11 The matter was listed for hearing today, and there was no communication by the claimant to the opponent that an adjournment would be sought until the facsimile dated 12 October, that is last Sunday. Even if that facsimile had been brought to the attention of the solicitor yesterday, plainly preparations would have been concluded for the hearing today and substantial costs already incurred. There was no communication by the claimant to this Court by letter or otherwise, explaining her inability to attend. 12 I would comment in relation to this, that while I would recognise a difficulty faced by an unrepresented litigant who has proceedings in different courts on the same day, a person in that situation, if an adjournment is to be sought in one proceeding, should notify the other party well in advance of the date set for hearing and should in some appropriate way make an application to the court for an adjournment. The normal way to do this would be to seek a short adjournment in the other case, that is to be excused for a short period, and to appear in the Court to apply in person for an adjournment. If for some reason that is impossible, then at the very least a letter should be sent to the Court requesting the adjournment and giving the reasons, with a copy being given to the other party to the case. It is plainly quite inappropriate to seek an adjournment in the manner that has been done in this case, without any communication to the Court. 13 This matter has already involved a number of appearances in this Court with costs being incurred by the opponent. The claimant apparently does not in any event seek a new hearing of her prosecution, so the application is of little if any utility. 14 Finally, on the reasons for deciding to hear and dispose of the case today, the issues are in my opinion adequately canvassed in the decision of Master Harrison, the judgment of Santow J, and the written outlines of argument to which I have referred. 15 The point which the claimant wishes to argue on appeal arises in this way. In support of her case that she had been assaulted by the opponent, who was the headmaster of a school attended by the claimant's son, the claimant called a policeman, Sergeant Levey. Sergeant Levey had made a written statement dated 24 April 2001 in relation to a proposed prosecution of the claimant, paragraph 8 of which was as follows: 8. I 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. (That she had to be physically removed from the Office area due to her yelling abuse at staff and using foul language which could be heard all around the school). 16 In the transcript of Sergeant Levey's oral evidence the following appears: 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.