Attorney General in & for the State of New South Wales v Klewer (No 2) [2009] NSWSC 454

New South Wales Supreme Court

CITATION : Attorney General in & for the State of New South Wales v Klewer (No 2) [2009] NSWSC 454

HEARING DATE(S) : 11 - 15 May 2009

JUDGMENT DATE : 15 May 2009

JUDGMENT OF : Harrison J

EX TEMPORE JUDGMENT DATE : 15 May 2009

DECISION : Application for adjournment refused

CATCHWORDS : ADJOURNMENT – application by defendant for indefinite stay of proceedings -application based upon medical condition of the defendant – defendant suffering from stress related condition made worse by court appearances and legal proceedings - whether defendant fit to appear and respond to proceedings taken against her by the Attorney General seeking orders pursuant to s 84 Supreme Court Act 1970 that she be declared a vexatious litigant – whether defendant's obligation to care for her disabled adult son was a further relevant circumstance supporting the application – medical evidence suggested defendant fit to appear and respond to proceedings – application refused

CATEGORY : Procedural and other rulings

PARTIES : Attorney General in and for the State of New South Wales (Plaintiff) Lucy Patricia Klewer (Defendant)

FILE NUMBER(S) : SC 11569 of 2006

COUNSEL : K G Oliver (Plaintiff)

SOLICITORS : I V Knight, Crown Solicitor (Plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HARRISON J

15 May 2009

11569/2006 Attorney General in and for the State of New South Wales v Lucy Patricia Klewer

JUDGMENT – EX TEMPORE 1 HIS HONOUR: These proceedings were listed to commence here in Coffs Harbour before me on 11 May 2009. Two weeks were set aside for the hearing. In the events that occurred the defendant, Mrs Klewer, brought forward an application to adjourn the proceedings upon the basis that she was medically unfit to respond to them or to continue to appear in them. That motion was therefore dealt with as a preliminary matter. 2 The events of the week commencing 11 May 2009 require some elaboration for reasons that will become apparent. In advance of referring to what occurred this week however, I note that Mrs Klewer's application for an adjournment was originally based on an affidavit sworn by her, which annexes certain material. It seems to me to be logical to refer to that material first. 3 In support of what she refers to as her current medical condition disabling her from attending court and representing herself in a highly involved and lengthy matter, Mrs Klewer annexed a report of Dr J Wenman dated 2 April 2009. That report is clearly one prepared by Dr Wenman for the purposes of these proceedings, if not the present application. It is addressed directly to me and is in the following terms: "I write regarding Mrs Lucy Klewer ... who has been under my care for some time and whom I last saw on 30 March 2009. At that time she had been complaining of continuing chest, central chest pain, the underlying cause of which is uncertain but considered to be either due to oesophageal spasm or coronary artery spasm according to her cardiologist, Dr Waites. In any events the stress of her impending court case has created increasing episodes of the central chest pain and I am concerned at her fitness in being able to attend court". 4 Also annexed to Mrs Klewer's affidavit is a report from Dr Hodges dated 24 April 2009. That report is in the form of a letter addressed to Dr Ward. It seems to me to be unnecessary to refer to all of the terms of that letter. It is sufficient to note that Dr Hodges, apparently having examined Mrs Klewer and taken note of her complaints (which I will simply describe as of a gynaecological nature), referred her for further investigation as required. 5 Paragraph 4 of Mrs Klewer's affidavit is in the following terms: "I can confirm that the condition reported in Dr Wenman's report attached to this affidavit and prior affidavit, that is chest pain and spasms brought by significant stressors such as this court matter, continues to afflict me. I have been admitted to the local hospital for such condition and associated fainting spells on 3-4 occasions in the last 2 months. Documentary evidence of this needs to be obtained from Coffs Harbour Base Hospital. I am now being also investigated for uterine cancer as per annexure B. Appointment for this 25 May 2009". 6 I pause to observe that annexure B referred to by Mrs Klewer in that paragraph is the report from Dr Hodges to which I previously referred. 7 Mrs Klewer relied upon a letter dated 5 May 2009 from Kathy O'Leary, the medico-legal administration officer at the Coffs Harbour Health Campus. The material that it contains amounts to a confirmation of presentations by Mrs Klewer at that hospital between 19 June 2007 and 21 April 2009. That document falls into the category of "documentary evidence" of the sort referred to by Mrs Klewer in paragraph 4 of her affidavit, which I just quoted. As earlier noted, the events of this week have to some extent and with some significance overtaken Mrs Klewer's earlier presentations to the hospital, including even the one as recently as 21 April 2009. No other material in Mrs Klewer's affidavit or annexed to it deals directly or inferentially with her medical condition. However, Mrs Klewer relied upon other material to which it is necessary to have regard. 8 The principal item in that respect is the report from her former general practitioner, Dr Andrew Duguid. His most recent report is dated 19 September 2008. Significant reference to that report has been made in the course of these proceedings and indeed in this application. At the risk of some repetition I think it is important to set out its relevant terms. It is addressed to Mrs Klewer and is said to be in reply to a letter from her dated 15 September 2008 requesting a medical report. It has five numbered paragraphs and they are as follows: "(1) Ms Klewer is at present not able to effectively defend long and complicated matters due to her medical problems and resulting symptoms.