Klewer v Director of Public Prosecutions (NSW) (No 2)

1. [1]

   BELL P: On 29 October 2018, Ms Lucy Patricia Klewer (Ms Klewer) was convicted of a stalking offence by the Local Court of New South Wales (Local Court) at Coffs Harbour and was directed to enter into a Community Correction Order for 8 months pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to commence on 29 October 2018.

2. [2]

   On 2 November 2018, Ms Klewer filed in the District Court of New South Wales (District Court) a Notice of Appeal from her conviction in the Local Court.

3. [3]

   On 26 November 2018, Ms Klewer appeared in person before Judge King SC of the District Court, sitting in Coffs Harbour. The transcript of that appearance is set out in full below:

4. [4]

   The reference in the above transcript to a decision of Justice Harrison is a reference to a decision of Harrison J, sitting in the Common Law Division of this Court delivered on 5 February 2010: Attorney General in and for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9 (the 2010 proceedings). In that decision, Harrison J made the following orders:

5. [5]

   Notwithstanding the passage of the Vexatious Proceedings Act 2008 (NSW), these orders were made pursuant to s 84(1) of the Supreme Court Act 1970 (NSW), as the application for the orders that were ultimately made was commenced in 2006: see Sch 1 cl 3 of the Vexatious Proceedings Act. In 2006, s 84(1) of the Supreme Court Act provided that:

6. [6]

   The effect of Sch 1 cl 3(2) of the Vexatious Proceedings Act was that Harrison J’s order made in the 2010 proceedings was “taken to be (and to have effect as if it were)” a “vexatious proceedings order” made under the Vexatious Proceedings Act.

7. [7]

   It is against this background that a summons filed in this Court by Ms Klewer on 2 July 2019 falls to be considered. The respondents to that summons are the District Court of New South Wales and the Director of Public Prosecutions (NSW). The orders sought in the summons were as follows:

8. [8]

   Prayer 1 presupposes that leave was required to institute the proceedings in this Court. As shall be seen, that is a matter upon which Basten JA differs from both Simpson AJA and me.

9. [9]

   In relation to prayer 2, the summons stated that “[t]he decision to be reviewed was the convictions of the Local Court which was not dealt with by the District Court.” The ground identified was as follows:

10. [10]

    An affidavit of Ms Klewer dated 28 May 2019 was filed together with and in support of the summons.

11. [11]

    For completeness it should be noted that, prior to the filing of the summons in this Court, Ms Klewer unsuccessfully sought leave pursuant to s 14(2) of the Vexatious Proceedings Act to institute proceedings by way of appeal to the District Court from her Local Court conviction. This application was determined by Fagan J of the Common Law Division of this Court on the papers. His Honour refused to grant leave in a decision published on 10 May 2019: Application of Klewer [2019] NSWSC 525. There is no application for leave to appeal from that decision. As will be explained, Ms Klewer’s application to Fagan J for leave was unnecessary.

Vexatious proceedings orders and criminal proceedings

1. [12]

   Section 8(7) of the Vexatious Proceedings Act provides that:

2. [13]

   Prior to amendments made in 2018, which are noted and considered further below at [20]ff, s 4 of the Vexatious Proceedings Act, which contained a definition of “proceedings”, did not make clear whether or not “proceedings” extended to criminal proceedings. Section 5(1)(d) of the Vexatious Proceedings Act, however, provided that the word “institute”, in relation to proceedings, included “for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.”

3. [14]

   Sections 14(1) and (2) of the Vexatious Proceedings Act provided (and still provides) that:

4. [15]

   In Viavattene v Attorney General (NSW) [2015] NSWCA 44 (Viavattene) and Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 (Potier), this Court raised various questions as to the application of the Vexatious Proceedings Act to criminal proceedings.

5. [16]

   Both decisions were conveniently referred to by Payne JA in Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 at [29]-[32], where his Honour said, under the heading “Interlocutory applications in the course of defending criminal proceedings”:

6. [17]

   Section 22(1) of the Vexatious Proceedings Act required the Minister “to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.” Such a review was undertaken and in May 2017, a report on the review was published and tabled in the New South Wales Parliament: see New South Wales Department of Justice, Report on the Statutory Review of the Vexatious Proceedings Act 2008, (May 2017) (the Report).

7. [18]

   The Report made reference to the decisions in Viavattene and Potier, stating at paras 3.33-3.34 that:

8. [19]

   Recommendation 4 of the Report was as follows:

9. [20]

   In 2018, the Vexatious Proceedings Amendment (Statutory Review) Act 2018 (NSW) was passed. In the words of the Attorney General of New South Wales (the Attorney), delivering the Second Reading speech, the Bill “implements all recommendations” from the Report. The Attorney stated (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 November 2017 at 58) that:

10. [21]

    Later in his speech, the Attorney stated that Schedule 1[4] of the Vexatious Proceedings Amendment (Statutory Review) Act addressed issues relating to s 8 of the Vexatious Proceedings Act, noting (at 59) that:

11. [22]

    Section 8(9) of the Vexatious Proceedings Act, as inserted by the Vexatious Proceedings Amendment (Statutory Review) Act, provides as follows:

12. [23]

    Clause 7 of Sch 1 Pt 3 of the Vexatious Proceedings Amendment (Statutory Review) Act provided that s 8(9) of the Vexatious Proceedings Act extends to vexatious proceedings orders in force immediately prior to the commencement of that subsection. As has been noted at [6] above, Harrison J’s order in the 2010 proceedings was deemed to be such an order, with the consequence that s 8(9), passed some 8 years after that order was made, nevertheless applies to it.

13. [24]

    Section 8(9) was not the only amendment to the Vexatious Proceedings Act which sought to clarify the extent to which the Vexatious Proceedings Act affected criminal proceedings. One of the further amendments made was to s 4 of the Vexatious Proceedings Act, whereby the definition of “proceedings” was amended to make it clear that proceedings included “criminal proceedings”, as follows:

14. [25]

    Notwithstanding these amendments, the term “criminal proceedings” was left undefined in the Vexatious Proceedings Act. The key question for present purposes is whether or not an appeal to the District Court against a conviction in the Local Court is a “criminal proceeding… taken… in connection with or incidental to criminal proceedings” against Ms Klewer, for the purposes of s 8(9) of the Vexatious Proceedings Act. In my opinion, it is.

15. [26]

    Such an appeal is certainly a proceeding instituted “in connection with … criminal proceedings against the person”, namely, the relevant person who is the subject of a vexatious proceedings order. Further, when read in conjunction with the definition of “institute” in relation to proceedings under s 5(1)(d) of the Vexatious Proceedings Act (see [13] above), referring as it does to “criminal proceedings” and the “taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings”, the carve out effected by s 8(9) from a blanket vexatious proceedings order prohibiting the institution of such proceedings should be understood to extend to appeals from criminal convictions.

16. [27]

    It is appropriate to characterise an appeal to the District Court from a conviction recorded and penalty imposed by the Local Court as a “criminal proceeding”. Such an appeal involves an exercise by the District Court of its criminal jurisdiction. In that context, s 9(2) of the District Court Act 1973 (NSW) provides that:

17. [28]

    Section 166 of the District Court Act, which falls within Part 4 of that Act, provides:

18. [29]

    Part 3 Division 1 of the Crimes (Appeal and Review) Act 2001 (NSW) provides for appeals to the District Court against convictions and sentences imposed by the Local Court. Section 18(1) of that Act, in providing that “[a]n appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19”, makes it plain that the appeal comprises a rehearing of the criminal charge(s). The proceedings in which that rehearing occurs have the character of “criminal proceedings”. So much is also consistent with the observation by Basten JA in Patsalis v State of New South Wales (2012) 81 NSWLR 742, [2012] NSWCA 307 at [47] (Patsalis) that “[a]s a matter of principle, where an appeal lies by statute from a local court conviction to the District Court, the appeal would be classified as a criminal proceeding.”

19. [30]

    The purpose of the Vexatious Proceedings Act would also not be furthered by requiring a person the subject of a vexatious proceedings order to first have to obtain leave from an authorised court under s 14(2) of the Vexatious Proceedings Act in order to appeal from a conviction or sentence. To require such leave would, in my opinion, substantially qualify the important, albeit statutory, right of appeal conferred on a person convicted of a criminal offence by ss 11 and 12 of the Crimes (Appeal and Review) Act.

20. [31]

    The Vexatious Proceedings Amendment (Statutory Review) Act effected in s 8(9) an amendment to the Vexatious Proceedings Act which recognised, subject to any specific and express restriction built into a vexatious proceedings order, the importance of allowing a person “to fully defend” him or herself from criminal charges, to adopt the Attorney’s language from the Second Reading speech (see [21] above). In this context, the observations of Kirby P (with whom Campbell and James JJ agreed) in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 692 are worth recalling:

21. [32]

    Whilst greater clarity would have been provided had s 8(9) of the Vexatious Proceedings Act in terms included reference to the bringing of appeals from conviction and sentence, that section should, in light of the Report (to which regard may be had, pursuant to s 34 of the Interpretation Act 1987 (NSW) and the purpose of the legislation, be read as carving out from the scope of a vexatious proceedings order the institution and prosecution of an appeal against conviction and sentence.

22. [33]

    In written submissions filed in this Court by the Attorney, it was put that:

23. [34]

    Unsurprisingly, submissions filed on behalf of Ms Klewer adopted the Attorney’s submissions and supported the relief he urged upon the Court.

24. [35]

    In my opinion, Harrison J’s vexatious proceedings order made in the 2010 proceedings against Ms Klewer, given effect as if it had been made under the Vexatious Proceedings Act, did not require her to obtain leave to pursue her appeal against her conviction and sentence in the Local Court.

25. [36]

    It follows that King SC DCJ was in error in summarily dismissing Ms Klewer’s appeal by reason of the vexatious proceedings order and the failure of Ms Klewer to obtain leave prior to instituting that appeal. Further, as noted at [11] above, it follows that the application to institute proceedings by way of appeal made to Fagan J in 2019 was unnecessary, and his Honour’s refusal to grant such leave does not preclude Ms Klewer from pursuing her appeal in the District Court.

26. [37]

    In fairness to both King SC DCJ and Fagan J, in both cases Ms Klewer proceeded on the basis that leave was required, and both judges were without the benefit of submissions which pointed out the important statutory qualification on vexatious proceedings orders effected by the 2018 amendments to the Vexatious Proceedings Act.

Leave to bring judicial review proceedings

1. [38]

   It remains to consider whether or not Ms Klewer required leave pursuant to s 14(2) of the Vexatious Proceedings Act to commence her proceedings in this Court. In my opinion, she did.

2. [39]

   These proceedings were proceedings for judicial review of King SC DCJ’s decision. They were not “criminal proceedings” within the meaning of s 8(9) of the Vexatious Proceedings Act, even though they sought judicial review of a decision that did have that character.

3. [40]

   In this context, I respectfully differ from the reasons of Basten JA (see at [72]-[77] below). To the extent that his Honour’s reasoning draws on this Court’s decision in Patsalis, the concession made by the State in Patsalis which his Honour, in that case, considered to have been correctly made, was one made in the context of the Felons (Civil Proceedings) Act 1981 (NSW). At [56] of that decision, Basten JA observed:

4. [41]

   There is a significant difference, as his Honour observed, between the Felons (Civil Proceedings) Act and the Vexatious Proceedings Act.

5. [42]

   Nor does the fact that, in Potier, the Attorney disavowed the need for a person made the subject of a vexatious proceedings order to obtain leave under the Vexatious Proceedings Act to appeal such an order, mean or dictate that leave is not required for the institution of judicial review proceedings by a person the subject of such an order.

6. [43]

   Fully accepting, as I do, the importance of principles of statutory interpretation associated with decisions such as Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 to which Basten JA refers in his judgment, the language of s 84(1) of the Supreme Court Act, the order made by Harrison J pursuant to that section, and s 8(7) of the Vexatious Proceedings Act in my opinion requires the grant of leave to bring proceedings for judicial review.

7. [44]

   I would, in the circumstances, grant leave as sought in prayer 1 of the summons in light of the reasons given at [12]-[35] above as to why Ms Klewer did not require leave to bring an appeal in the District Court.

Conclusion and orders

1. [45]

   As Basten JA in his separate reasons (at [81]-[83]) has observed, the Summons in this Court was filed out of time. I would grant an extension of time for the reasons his Honour gives.

2. [46]

   I also agree with his Honour that, to the extent that the orders sought in prayer 2 of the Summons sought relief in respect of the decision of the Local Court, no order can or should be made in that respect.

3. [47]

   For the above reasons, I would make the following orders:

   1. (1)

      Extend time for the filing of the Summons commencing proceedings in this Court up to and including 2 July 2019.

   2. (2)

      Pursuant to s 14(2) of the Vexatious Proceedings Act 2008 (NSW), grant leave to Lucy Patricia Klewer to bring proceedings 2019/204934 in this Court.

   3. (3)

      Set aside the decision of King SC DCJ of 26 November 2018 dismissing Ms Klewer’s appeal from her conviction in the Local Court of New South Wales on 29 October 2018.

   4. (4)

      In lieu thereof, remit the matter to the District Court of New South Wales for the determination of that appeal.

   5. (5)

      Otherwise dismiss the summons.

4. [48]

   BASTEN JA: In August 2018 the applicant, Lucy Patricia Klewer, was convicted and sentenced on three charges in the Local Court at Coffs Harbour. On 2 November 2018 she lodged an appeal in the District Court. On 26 November her appeal was dismissed by Judge King on the sole basis that she was the subject of a vexatious proceedings order and required leave of the Supreme Court to institute any proceedings. She did not have that leave.

5. [49]

   By summons filed in this Court on 7 July 2019 she sought judicial review of the order made in the District Court. (The filing of the summons required an extension of time which will be addressed after considering the basis of the application.) It is not in dispute that the applicant remains the subject of a vexatious proceedings order made by Harrison J on 5 February 2010.

6. [50]

   The issues raised on the summons are:

7. [51]

   Although the named respondent was the Director of Public Prosecutions, the Attorney General intervened and, by order made on 14 October 2019, was joined as the third respondent. The Director had no separate representation. The Attorney’s submissions supported an order setting aside the order of the District Court. I agree that such relief is appropriate, but not on the basis contended for by the Attorney.

8. [52]

   Counsel for the applicant, appointed on a referral to the Bar Association’s pro bono panel, proposed no amendment to the summons (a matter addressed in the referral) and adopted the submissions of the Attorney, adding no further analysis of the law.

9. [53]

   The factual, procedural and statutory background is set out in the judgment of the President and will not be repeated here. I agree that the decision of Judge King should be set aside and the matter remitted to the District Court for determination of the appeal from orders made in the Local Court.

Requirement of leave to appeal to the District Court

1. [54]

   The order made by Harrison J on 5 February 2010 relevantly required that the applicant “shall not, without leave of the Court, institute any legal proceedings in any court.” [1] That order was made pursuant to an application by the Attorney under s 84(1) of the Supreme Court Act 1970 (NSW), as then in force. Section 84 was repealed by the Vexatious Proceedings Act 2008 (NSW), which commenced on 1 December 2008. Nevertheless, the Attorney’s application predated the repeal and applications made under s 84 of the Supreme Court Act continued to be dealt with under that provision as if it had not been repealed. [2] Thus, although made after the commencement of the Vexatious Proceedings Act, the order made by Harrison J was made pursuant to the authority conferred by s 84(1) of the Supreme Court Act. The scope and effect of the order depends on the terms of that provision, and not on the terms of the Vexatious Proceedings Act.

2. [55]

   It is necessary, however, to address certain savings and transitional provisions in Sch 1 of the Vexatious Proceedings Act, upon which the Attorney relied. Clause 4 of Sch 1 reads as follows:

3. [56]

   A definition of “repealed vexatious litigant provision” includes s 84 of the Supreme Court Act. [3] That aspect of subcl (1)(a) is engaged in the present case. It is also true that the order made by Harrison J falls within the terms of subcl (1)(c). However, the order was not “in force immediately before the commencement of [the Vexatious Proceedings Act]”, and therefore did not satisfy par (b). The terms of par (b) are not ambiguous; if they were, however, they could be read in the context of par (a) which speaks in the past tense of an order that “was made”. That language is consistent with reference to an order made before the commencement of the Vexatious Proceedings Act. It follows that Harrison J’s order is not an “existing order” for the purposes of Sch 1 to the Vexatious Proceedings Act.

4. [57]

   Although it is not in doubt that the order was made under the previous statutory scheme, it is convenient to set out Sch 1, cl 3 in full, in order to understand the operation of cl 3(2).

5. [58]

   Despite the opening words of cl 3(1) (“[s]ubject to subclause (2)”), subcl (2) does not qualify subcl (1). Rather, subcl (1) deals with the application, while subcl (2) deals with the order made on the application. It provides that the order is taken to be a “vexatious proceedings order” within the meaning of that term in the Vexatious Proceedings Act. That is, it is taken to be an order made under s 8 of that Act.

6. [59]

   The effect of cl 3(2) is procedural and mechanical, rather than substantive. Thus the order made under the Supreme Court Act, s 84, may be “varied” or “set aside”, pursuant to s 9 of the Vexatious Proceedings Act, and may be “reinstated”, pursuant to s 10 of the Vexatious Proceedings Act. However, cl 3(2) does not itself vary the reach or scope of such an order. Nor should it be taken by implication to do so. Because a vexatious proceedings order is a fetter on the right of the person subject to the order to obtain access to justice, that fetter should not be extended by implication based on a provision which does not purport to have a substantive effect on the reach or scope of an order made in accordance with the repealed legislation.

7. [60]

   Accepting that Harrison J’s order became an order under the Vexatious Proceedings Act pursuant to cl 3(2), that provision did not expand its scope beyond its effect as an order made under s 84 of the Supreme Court Act. Accordingly, the scope of the order will depend upon its terms and the scope of the authority given by s 84 of the Supreme Court Act.

8. [61]

   As will be explained shortly, doubts have been expressed in this Court as to the scope of the power to make a vexatious proceedings order in relation to particular forms of proceeding. As a result, legislation was passed in 2018 providing that a vexatious proceedings order “does not stay, or prohibit a person from instituting or conducting, any criminal proceedings that are taken by the person in connection with or incidental to criminal proceedings against the person, except as expressly specified in the order.” [4] Whatever inference may be drawn from the amendment as to what effect a vexatious proceedings order would otherwise have had, that inference would be irrelevant in the present case. That is because the terminology of the Vexatious Proceedings Act is more detailed than was s 84, and such an inference as to the former could not affect the latter. In any event, the second reading speech by the Attorney [5] suggests that the amendments were by way of clarification rather than indication of a change in the law.

9. [62]

   It is necessary, therefore, to address the scope and operation of s 84(1) of the Supreme Court Act, which read as follows:

10. [63]

    The key passage in this provision is the identification of that which may be prohibited, absent leave of the court, namely the ability to “institute any legal proceedings in any court”. That language raises a number of questions as to its scope and operation. The apparent generality of the language may need to be read down to avoid anomalous, implausible or even absurd results. For example, for some purposes, a bail application may constitute a “proceeding”, but there are good reasons to suppose that such an application would not fall within the terms of s 84(1).

11. [64]

    Relevantly for present purposes, a question arises with respect to an appeal from a conviction and sentence in the Local Court (in proceedings brought against the person) by the person in the District Court. It is not in question that such an order can have no operation with respect to criminal proceedings brought against a person. For some purposes an appeal instituted by the defendant in the Local Court will be a separate “proceeding”. [6] Nevertheless, each statutory scheme must be examined in context. An appeal brought from the Local Court to the District Court by a person the subject of prosecution in the Local Court is governed by the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”), ss 17-19. Although such appeals are usually conducted on the basis of evidence given in the Local Court, and described as being “by way of rehearing”, such an appeal is in effect a fresh hearing in which the prosecution continues to bear the burden of proving the offence beyond reasonable doubt and the prosecutor, not the appellant, is the moving party. Accordingly, it is artificial to describe such an appeal as involving the person charged with offences instituting proceedings against any other person. Such an appeal is therefore quite different from a private prosecution instituted by the person who thus becomes the prosecutor.

12. [65]

    In considering the operation of s 84(1), it is also important to bear in mind the statutory effect of an appeal to the District Court from a conviction and sentence in the Local Court. Where the appeal is lodged as of right, the sentence is automatically stayed when the notice of appeal is lodged, pursuant to s 63(2)(a) of the Appeal and Review Act. It is true that the suspension only operates, where an appeal is the subject of an application for leave, when leave to appeal is granted: s 63(2)(b). However, that provision envisages that there is a right to seek leave to appeal, and makes specific provision for such cases.

13. [66]

    Where there is an appeal as of right, imposing a requirement that a person convicted and sentenced to imprisonment obtain leave from a Supreme Court judge before lodging an appeal to the District Court is likely to result in the person spending a period in custody, possibly a considerable portion of the sentence, before the statutory stay can take effect. That result is not because of anything to do with his or her conviction, sentence or the nature of the offending, but rather, if s 84(1) applies, it is because the person has on some prior occasions instituted vexatious legal proceedings. Further, applications for vexatious proceedings orders under s 84 could only be made by the Attorney General on behalf of the State. It is implausible that the State intended to put persons in a disadvantageous position in responding to criminal prosecutions brought by officers of the State, because of unrelated litigious conduct.

14. [67]

    Related issues have arisen under the Vexatious Proceedings Act, which were the subject of comment in Viavattene v Attorney General (NSW). [7] The approach to statutory construction adopted in Viavattene sought a clear expression of intention in the legislation relating to vexatious litigants, before accepting that an order could be made limiting their power to appeal from criminal convictions and sentences. A similar approach is more readily adopted in relation to s 84(1) which speaks in terms of the utmost generality without reference to specific kinds of proceedings. It is precisely such a case to which the principle stated by O’Connor J in Potter v Minahan, [8] quoting Maxwell on Statutes, applies:

15. [68]

    Section 84(1) permits a great intrusion on access to justice for affected individuals; that alone is sufficient to cast orders in the confined and targeted terms. It is of course true, as Gageler and Keane JJ explained in Lee v New South Wales Crime Commission: [9]

16. [69]

    However, access to justice is a broad underlying value of high importance, not a closely defined, particular right. The language used in s 84(1) is not carefully tailored to a specific situation; rather it effects a broad conferral of power on the Supreme Court. It should not be read down by reference to unexpressed limitations, [10] but its scope remains a matter of statutory construction. No doubt the legislature expected that it would be carefully applied by the judges of the Court, both in imposing an order and in considering a grant of leave. Nevertheless, an order can have serious legal consequences which may not be foreseen when the order is imposed, and which will have effect before any application for leave can be determined.

17. [70]

    Given the considerations noted above, in my view the general terms of s 84(1) do not warrant a broad reading. Rather, the power to make an order prohibiting the institution of proceedings should not apply to criminal proceedings where the charge was originally laid against the offender and where he or she has a statutory right of appeal to the District Court.

18. [71]

    On that understanding of the scope of the power conferred by s 84(1), the order made in the most general terms by Harrison J should be understood not to apply so as to exceed power. Accordingly, it did not apply to the appeal lodged by the applicant in the District Court with respect to her convictions and sentences in the Local Court.

Requirement for leave to commence judicial review proceedings

1. [72]

   The present proceedings are brought in the supervisory jurisdiction of this Court, as given statutory recognition in s 69 of the Supreme Court Act. That jurisdiction authorises this Court to maintain the legal boundaries of power conferred on other courts, tribunals and those exercising executive powers of the State. As explained in Kirk v Industrial Court of New South Wales, [11] that jurisdiction is constitutionally protected from an exercise of legislative power of the State to abolish or remove any inherent characteristic of the jurisdiction. That is not to say that the State cannot regulate the invocation of the jurisdiction by imposing a requirement that an applicant seek leave to proceed. However, there is no such general requirement within s 69. It is therefore a question of construction of two provisions within the Supreme Court Act in order to determine whether s 84(1) allows for the imposition of a leave requirement in relation to proceedings invoking the supervisory jurisdiction.

2. [73]

   There are various elements of the supervisory jurisdiction. In Patsalis v State of New South Wales, [12] this Court considered whether the requirement under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), that a person convicted of a serious indictable offence “may not institute any civil proceedings in any court except by leave of that court”, extended to proceedings for judicial review. Before this Court, the State accepted that it did not. [13] For reasons explored in that decision, the concession was accepted as correct. [14] Subsequently, in Potier v Attorney General in and for the State of New South Wales, [15] the Court held that, because of the breadth of the definitions of what may constitute the institution of proceedings, orders made under the Vexatious Proceedings Act require great care to ensure that open access to justice is not disproportionately constrained. The question whether such an order could extend to, or should be construed as extending to, a leave requirement with respect to a writ of habeas corpus was noted, but not determined. [16] However, and importantly for present purposes, Leeming JA noted the disavowal by the Attorney of any suggestion that the appeal brought from the vexatious proceedings order itself required the grant of leave. [17] A similar conclusion had been reached by the Queensland Court of Appeal in Conde v Gilfoyle, [18] in relation to substantially identical legislation.

3. [74]

   The application of these principles leads, in the present case, to the conclusion that leave is not required for these proceedings. These proceedings have two purposes, namely (i) to require the District Court to exercise its statutory functions with respect to the applicant’s appeal to it, in accordance with law, and (ii) to determine the proper scope of the vexatious proceedings order made in this Court. The importance of the latter purpose led the Attorney to seek to intervene. [19]

4. [75]

   In relation to the first purpose, the conclusion that the order was not so broad as to cover an appeal in the criminal jurisdiction of the District Court requires, in principle, acceptance that the order did not extend to an application in the supervisory jurisdiction to give effect to the exercise of that criminal jurisdiction.

5. [76]

   In relation to the second purpose, if, properly construed, the expansive definition of the institution of proceedings in the Vexatious Proceedings Act does not extend to an appeal from the imposition of such an order, the broad generality of the power conferred by s 84(1) of the Supreme Court Act should be similarly read down. Consistently with that approach, proceedings in the supervisory jurisdiction which seek to determine the scope of such an order should also fall outside the order itself.

6. [77]

   For these reasons, the applicant did not require leave to commence the proceedings in this Court.

Basis on which this Court can grant relief

1. [78]

   The record of the orders made in the District Court on 26 November 2018 identified three charges brought against the applicant, being one under the Crimes Act 1900 (NSW) and two under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and stated:

2. [79]

   The order was contained in the third sentence; the reasons were contained in the first two sentences. For the reasons set out above, the reasons revealed a legally erroneous failure on the part of the District Court to exercise its statutory jurisdiction. Such a failure constitutes jurisdictional error: Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia. [20] The Court has power to quash the order, thus leaving an undetermined appeal on foot.

3. [80]

   That error says nothing about the merit of the appeal; that issue is not available for resolution in this Court. The orders sought in the summons included relief with respect to the orders made in the Local Court. No order can be made in that respect.

Extension of time

1. [81]

   The summons was filed some seven months after orders were made in the District Court. The time limit prescribed by the Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1), is three months. Accordingly, the applicant requires an extension of time within which to commence the proceedings.

2. [82]

   Although the Court has power to extend time pursuant to r 59.10(2), it would not usually do so in the absence of an affidavit explaining the reasons for the delay. Given that the applicant is represented by counsel, it is surprising that no attempt has been made to amend the summons (which is in large part incoherent and misconceived), or to provide an affidavit or submissions explaining the delay. Nevertheless, it may be inferred that until the applicant received some form of legal advice following the refusal of leave by Fagan J on 10 May 2019, the question of whether leave was required was not considered. The summons was filed less than two months later.

3. [83]

   The Attorney takes no point with respect to this issue. Given that the points sought to be raised are of substance and that the applicant is entitled to the relief sought, an extension of time up to and including 2 July 2019 should be granted.

(a) refusal of application for leave

1. [84]

   The orders of this Court will require that the appeals be heard and determined by the District Court. In that context, it is desirable that some observations be made in relation to an earlier proceeding in the Supreme Court. As noted by the applicant when unsuccessfully seeking an adjournment of the District Court appeals so that her lawyer could be present to represent her, an application had already been made to the Supreme Court for leave. That application was considered and refused before the proceedings were commenced in this Court. [21] In the course of refusing leave, Fagan J noted that a defendant is entitled to appeal to the District Court as of right against conviction or sentence or both, and that an appeal is in general conducted by way of rehearing on the evidence given in the Local Court. He continued:

2. [85]

   Noting that there had been no explanation given, the judge proceeded to review the transcript of the proceedings before the magistrate. A review of those proceedings led him to conclude there was no legal or procedural defect, nor that there was any prospect of a different result if the charges were “reheard on the same evidence.” [22]

3. [86]

   Although there has been no appeal from that judgment, the conclusion that no leave was required means that the application for leave was misconceived and the reasoning and conclusions of the judge are not binding on, and are irrelevant to, the exercise of jurisdiction in the District Court. In any event, the conclusions reached lacked the benefit of submissions and legal assistance. Further, the applicant appeared unrepresented in the Local Court. It may be that she will have representation in the District Court, as she asserted in seeking an adjournment before King DCJ on 26 November 2018.

4. [87]

   Finally, it should be noted that there is at least doubt attending the validity of one of the sentences. The materials before this Court do not disclose the basis on which the magistrate distinguished between the two offences which were the subject of concurrent custodial sentences and the third offence for which a non-custodial community correction order was imposed. However, once it has been determined that a custodial sentence be imposed, even if it is to be served in the community, there is an apparent inconsistency in imposing a concurrent non-custodial order.

(b) whether appeal out of time

1. [88]

   Fagan J also noted that by the time the purported appeal was dismissed by King DCJ, the 28 days within which an appeal was to be lodged under s 11 of the Appeal and Review Act had expired. Although an extension of time could be granted under s 13 of the Appeal and Review Act, an application was required to be made within three months of the relevant orders. As sentences had been imposed on 29 October 2018, the judge noted that the three month period expired on 28 January 2019. That period had expired by the time judgment was given refusing leave. The judge concluded that, even if leave were to be granted, the applicant might be precluded from lodging an appeal against her conviction and sentence in any event. [23]

2. [89]

   These issues no longer arise. The order of this Court setting aside the judgment of the District Court judge dismissing the appeals will operate so as to leave the appeals on foot, but unresolved.

(c) whether sentences stayed

1. [90]

   What is not clear is whether the sentences imposed by the Local Court on 29 October 2018 have been stayed, or steps have been taken to enforce them. The Local Court records show that the applicant was sentenced to imprisonment for 8 months with respect to one offence of common assault (sequence 1) and one offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (sequence 3). Each sentence was fixed to commence on 29 October 2018 and was ordered to be served by way of intensive correction in the community, pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”). Further, with respect to a second under s 13(1) (sequence 5) the applicant was convicted and directed to enter into a community correction order, pursuant to s 8 of the Sentencing Procedure Act. That order also specified a period of 8 months to commence on 29 October 2018.

2. [91]

   Upon lodgement of the appeal on 2 November 2018, a statutory stay on the execution of the sentences commenced pursuant to s 63(3) of the Appeal and Review Act. It may have been assumed that, upon the appeals being dismissed on 26 November 2018, the appeals had been “finally determined” and the stay automatically lifted.

3. [92]

   The execution of the sentences was not stayed by the application to the Common Law Division for leave to appeal to the District Court. However, there is a separate statutory stay effected by s 69C(2) of the Supreme Court Act from the date when proceedings seeking judicial review of an appeal against a conviction or sentence are commenced. If leave were required to commence such proceedings, the stay might not operate until leave was granted. However, if leave were not required, the stay would operate from the date of commencement of the proceedings. In the present case, the proceedings were filed on 2 July 2019. That would mean that the sentences had not been stayed for a period of a little under a month.

Orders

1. [93]

   I would make the following orders:

   1. (1)

      Extend time for the filing of the summons commencing proceedings in this Court up to and including 2 July 2019.

   2. (2)

      Set aside order made in the District Court on 26 November 2018 dismissing the applicant’s appeal from her convictions and sentences in the Local Court.

   3. (3)

      Remit the matter to the District Court for determination of the appeal.

   4. (4)

      Otherwise dismiss the summons.

2. [94]

   SIMPSON AJA: By summons filed in 2006, the Attorney General of NSW sought, against Ms Lucy Patricia Klewer, orders pursuant to s 84(1) (now repealed) of the Supreme Court Act 1970 (NSW). Section 84(1) then provided:

3. [95]

   The orders sought by the Attorney-General were to the effect that:

4. [96]

   For reasons that are not apparent from the materials before this Court, that application was not heard until May 2009, with final submissions on 18 December 2009. Judgment was given by Harrison J on 5 February 2010: Attorney-General in and for the State of NSW v Klewer (No 3) [2010] NSWSC 9. His Honour made the following orders:

5. [97]

   Between the making of the application in 2006 and the date of the orders s 84 was repealed by Schedule 2.2 of the Vexatious Proceedings Act 2008 (NSW) which came into effect on 1 December 2008. In substance the Vexatious Proceedings Act re-enacted the provisions of s 84, although in significantly different and more detailed terms. The relevant provisions of the Vexatious Proceedings Act are:

6. [98]

   The transitional provisions, contained in Schedule One, are, for present purposes, important. Clause 3 addresses the position where proceedings under s 84 had been commenced but not finalised prior to 1 December 2008. Clause 4, which I have, in the interests of brevity, not reproduced, addresses the position of orders already made under s 84. It has no present application.

7. [99]

   The application made by the Attorney General was “pending immediately before the commencement” of the Vexatious Proceedings Act. The effect of subcl (1) of cl 3 of Schedule 1 was that that application could be “continued and dealt with” under s 84. That was what happened, and Harrison J made orders essentially in the terms of s 84. The effect of subcl (2) of cl 3 was that those orders are “taken to be (and have effect as if [they] were” orders made under the Vexatious Proceedings Act.

8. [100]

   On 29 October 2018 Ms Klewer was convicted in the Local Court of a summary offence. By Part 3 Div 1 the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”) she was, subject to any restriction consequent upon the orders made by Harrison J, entitled to appeal to the District Court against the conviction. On 2 November 2018, pursuant to those provisions, she filed an appeal. The appeal was dismissed by King SC DCJ on the ground that it was a proceeding the institution of which (without leave) was prohibited by the orders of Harrison J for which Ms Klewer had not sought or obtained leave. That dismissal is the subject of the present proceedings, in which Ms Klewer seeks relief under s 69 of the Supreme Court Act. Because the subject of her application is an adjudication of an appeal of the District Court, Ms Klewer must establish jurisdictional error: District Court Act 1973, s 126. She asserts jurisdictional error in that, in dismissing her appeal without proceeding to a hearing on the merits, King SC DCJ wrongly failed to exercise jurisdiction.

9. [101]

   The two principal issues that arise for determination in the present proceedings are whether Ms Klewer required leave for the commencement of the District Court appeal against her conviction, and whether she requires leave for the commencement of the present proceedings. If she required leave to commence the District Court appeal, no jurisdictional error is demonstrated by the dismissal of the appeal. If she did not require leave to commence the District Court appeal, then jurisdictional error is established.

10. [102]

    There is, in my opinion, no difference in substance between the orders made by Harrison J under s 84 and equivalent orders that could have been made under the Vexatious Proceedings Act. Accordingly, by cl 3(2) of Schedule 1 of the Vexatious Proceedings Act, the orders of Harrison J are taken to be and to have effect as if they were orders made under s 8(7)(b) and (a) thereof respectively.

11. [103]

    The first question that arises is what is encompassed in those orders, specifically whether an appeal under Part 3 Div 1 of the Appeal and Review Act against a criminal conviction (or sentence) is a proceeding of such a kind that its institution or continuation is, unless leave is given, prohibited.

12. [104]

    The answer to that question lies in subsection (9) of s 8 of the Vexatious Proceedings Act. Subsection (9) is explicit that a vexatious proceedings order does not operate to stay, or to prohibit, the commencement of “any criminal proceedings that are taken by the person in connection with or incidental to criminal proceedings against the person” unless otherwise specified in the order. In my opinion an appeal to the District Court against a conviction in the Local Court is plainly such a proceeding. On that basis alone, I conclude that Ms Klewer did not require leave before commencing the appeal. For that conclusion it is not necessary to go beyond the plain language of subs (9). The more detailed discussion in the judgment of the President, which I have had the advantage of reading in draft, strengthens that view.

13. [105]

    Subsection (9) was not part of s 8 as originally enacted. It was inserted into the Vexatious Proceedings Act in 2018, in circumstances more fully outlined in the judgment of the President. There may, therefore, be room for doubt about whether, prior to the enactment of subs (9), criminal appeals were excluded from the prohibition imposed by a vexatious proceedings order. Any such doubt was removed by the enactment of subs (9).

14. [106]

    Accordingly, jurisdictional error has been established and, subject to what follows, Ms Klewer is entitled to the relief she seeks.

15. [107]

    The second question is whether Ms Klewer requires leave to bring the present proceedings. That, too, in my opinion, depends upon the proper construction of s 8(9).

16. [108]

    What is excluded by s 8(9) from the prohibitive effects of a vexatious proceedings order is (or are) “criminal proceedings that are taken … in connection with or incidental to criminal proceedings …”. The use of the word “criminal” as it first appears in that collocation is, at first sight, puzzling, and its purpose obscure. On closer examination, however, its purpose emerges. Its use serves to distinguish between “proceedings” (in general) and proceedings that can properly or reasonably be characterised as “criminal”. It is the latter, and only the latter, that are excluded from the prohibitive effects of a vexatious proceedings order.

17. [109]

    Appeals against conviction or sentence could properly be characterised as “criminal proceedings … taken … in connection with or incidental to criminal proceedings …”. As the President has observed, they involve the exercise of criminal jurisdiction; in this case, the criminal jurisdiction of the District Court. In other words, the legislature intended to protect the appellate rights of persons subject to criminal proceedings against them by excluding the prohibition imposed by vexatious proceedings orders, so long as the exercise of those rights involved the invocation of criminal jurisdiction. By contrast, while applications under s 69 of the Supreme Court Act in respect to criminal conviction and sentence may reasonably be characterised as “proceedings … taken … in connection with or incidental to criminal proceedings …”, they would not, in ordinary language, reasonably be characterised as “criminal proceedings … taken … in connection or incidental to criminal proceedings …”. Applications under s 69 do not involve the exercise of criminal jurisdiction. The legislature did not intend the subs (9) exclusion to extend to collateral rights, in the civil jurisdiction of the courts, to call in question the criminal process.

18. [110]

    Also not to be overlooked in this context, are the important provisions of s 69C of the Supreme Court Act. Section 69C applies to proceedings in the Supreme Court for judicial review of determinations made by the District Court in appeal proceedings relating to conviction or orders made by the Local Court, or sentences imposed by the Local Court – that is, appeals under Part 3 Div 1 of the Appeal and Review Act. By subss (2) and (4) of s 69C execution of such a sentence, or any order (other than an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW)) is stayed until final determination of the judicial review proceedings. In the light of s 69C it is unlikely that the legislature intended to exclude proceedings under s 69 from the requirement that, where a vexatious proceedings order is in force, leave be obtained before the commencement of the proposed proceedings. It would be anomalous if a person whose previous history of habitual, persistent and groundless institution of proceedings (to borrow the language of s 84) had been found to justify the restrictions of a vexatious proceedings order could, nevertheless, have unfettered access to the court through proceedings that would, on their commencement and by force of statute, operate to stay orders made in the criminal justice process. The mere commencement of a proceeding under s 69, no matter how baseless, would put the criminal process into abeyance.

19. [111]

    I appreciate, as alluded to in the judgment of Basten JA (which I have also had the advantage of reading in draft) the importance of the supervisory jurisdiction this Court in relation to access to justice. But a vexatious proceedings order does not deny such access: it merely interposes a leave requirement in the case of an individual who has been shown to have repeatedly misused that access.

20. [112]

    I accordingly agree with the President that Ms Klewer does require leave to bring these proceedings. I also agree, for the reasons given by the President, that leave should be given, and that the time for commencing the proceedings should be extended. I also agree that the decision of King SC DCJ of 26 November 2018 should be set aside.

21. [113]

    I agree with the orders proposed by the President.