Attorney-General in and for the State of New South Wales v Klewer (No. 4) [2010] NSWSC 315

New South Wales Supreme Court

CITATION : Attorney-General in and for the State of New South Wales v Klewer (No. 4) [2010] NSWSC 315

HEARING DATE(S) : 12 April 2010

JUDGMENT DATE : 23 April 2010

JURISDICTION : Common Law

JUDGMENT OF : McCallum J

DECISION : Application dismissed.

CATCHWORDS : PRACTICE AND PROCEDURE - stay pending appeal - application for stay of decision that defendant is a vexatious litigant

LEGISLATION CITED : Supreme Court Act 1970

CATEGORY : Principal judgment

CASES CITED : Attorney-General in and for the State of New South Wales v Klewer (No. 2) [2009] NSWSC 454 Attorney-General in and for the State of New South Wales v Klewer (No. 3) [2010] NSWSC 9

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

FILE NUMBER(S) : SC 2006/262000

COUNSEL : K G Oliver (Respondent) In person (Applicant)

SOLICITORS : I V Knight, Crown Solicitor (Respondent)

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCALLUM J

23 APRIL 2010

06/262000 Attorney-General in and for the State of New South Wales v Lucy Klewer (No. 4)

JUDGMENT 1 HER HONOUR: An application has been brought by Ms Lucy Klewer for a stay of the decision of Harrison J given 5 February 2010 in these proceedings pending an appeal to the Court of Appeal from that decision. Where such an application is brought in this Court rather than in the Court of Appeal, it should ordinarily be made to the judge who heard the underlying proceedings. However, since Harrison J was on leave when the motion was returnable on 12 April 2010, I considered it appropriate to hear the application when it came before me as duty judge. Neither party opposed that course. 2 Ms Klewer sought to attend the hearing by telephone. Mr Oliver, who appeared for the Attorney-General, informed me that Harrison J had adopted a practice of permitting that to occur during the hearing of the underlying proceedings. Accordingly, the hearing before me proceeded by that process. 3 The decision in respect of which the stay is sought consists of orders under s 84(1) (now repealed) of the Supreme Court Act 1970 restraining Ms Klewer from instituting or continuing any legal proceedings in any court without the leave of the Court. The orders were based on his Honour's finding (in the terms of that section) that Ms Klewer habitually and persistently and without any reasonable excuse has instituted vexatious legal proceedings: see Attorney-General in and for the State of New South Wales v Klewer (No. 3) [2010] NSWSC 9 at [339]. 4 Ms Klewer has not yet commenced an appeal. She attempted to file a Notice of Intention to Appeal in the Registry but it was returned on the basis that it had not been filed within 28 days of the judgment and on the further basis that the applicable fee had not been proffered or sought to be waived. 5 The present application entails a conceptual difficulty which raises an interesting question. The orders made by Harrison J are apt, in terms, to preclude the institution of any proceedings without leave. The orders are: "Until further order: