NEW SOUTH WALES COURT OF APPEAL
CITATION: Attorney General of New South Wales v Lucy Klewer & Anor [2003] NSWCA 295
FILE NUMBER(S):
40202/03
HEARING DATE(S): 01/10/03
JUDGMENT DATE: 15/10/2003
PARTIES:
Appellant: Atorney General of New South Wales
First Respondent: Lucy Klewer
Second Respondent: Peter Rhienberger
JUDGMENT OF: Mason P Meagher JA Davies AJA
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 13835/01
LOWER COURT JUDICIAL OFFICER: Levine J
COUNSEL:
Appellant: Ms M Allars
First Respondent: Mr J Carty
SOLICITORS:
Appellant: I V Knight, Crown Solicitors Office
Respondent: Michael Dampney
CATCHWORDS:
Judicial Review
Natural justice
whether reasonable apprehension that Magistrate biased
LEGISLATION CITED:
Supreme Court Rules 1970 Pt 8 r 8(1)(b)
DECISION:
Appeal allowed. Orders in para 21.
JUDGMENT:
- 1 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40202 of 2003
SC 13835 of 2001MASON P
MEAGHER JA
DAVIES AJAWednesday 15 October 2003
ATTORNEY GENERAL OF NEW SOUTH WALES v LUCY KLEWER & ANOR
JUDGMENT
MASON P: I agree with Davies AJA.
MEAGHER JA: I agree with Davies AJA.
DAVIES AJA: This is an appeal by leave from a judgment of Levine J in which his Honour made an order that the second respondent, Magistrate Peter Rheinberger, cease hearing a proceeding that had come before him in the Local Court at Coffs Harbour, a matter between the Department of Social Security and Lucy Patricia Klewer, the first respondent. In the proceedings below and in this appeal, Magistrate Rheinberger entered a submitting appearance. The Attorney General of New South Wales was joined under Pt 8 r 8(1)(b) of the Supreme Court Rules, 1970 with a view to ensuring that all matters in dispute were effectually and completely determined and adjudicated on.
The matter which was before the Magistrate was a charge brought against Mrs Klewer for knowingly obtaining a Social Security benefit which was not payable to her. In addition to the Social Security prosecution, many other matters involving Mrs Klewer were before the Local Court at Coffs Harbour. One document in evidence lists twenty-six matters in which Mrs Klewer was a party.
It appears that Mrs Klewer was well known at the Local Court. In Klewer v Dutch(2000) 99 FCR 217, Hill J found that another magistrate at Coffs Harbour ought to have disqualified himself from hearing a matter involving Mrs Klewer. That magistrate had already heard a number of matters involving her and had ruled upon her credibility. Moreover, Mrs Klewer had written to the Judicial Commission of New South Wales complaining about the magistrate and seeking to have the magistrate withdraw from hearing her cases. Hill J was of the view that, in the circumstances which he had to consider, the magistrate ought to have stood down from the hearing of Mrs Klewer’s cases. On the facts outlined by Hill J, that order was appropriate.
Mrs Klewer sought from Magistrate Rheinberger an order that all Coffs Harbour matters be transferred to the Downing Centre, Sydney. She…
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- Case
- [2003] NSWCA 295
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether there were sufficient grounds to establish a reasonable apprehension that Magistrate Rheinberger was biased, thereby necessitating his disqualification from the proceedings. This involved considering the nature of the prior dealings between the Magistrate and Mrs Klewer, as well as a complaint made by Mrs Klewer to the Independent Commission Against Corruption (ICAC).
The Court reasoned that for bias to warrant disqualification, it must be "real" and arise from conduct that creates a high probability of bias inconsistent with the fair performance of duties, leading to substantial distrust in the minds of reasonable persons. The Court referred to established principles, including the decision in *Re Polites; Ex parte The Hoyts Corporation Pty Ltd*, which emphasised that judicial officers should not recuse themselves without adequate cause. The Court found that the earlier proceedings involving Mrs Klewer did not raise a reasonable apprehension of bias. Furthermore, the complaint to ICAC was deemed insufficient grounds for disqualification, particularly as it appeared to be a general complaint about a climate of hostility rather than specific allegations against the Magistrate. The Court agreed with the reasoning that allowing complaints to investigatory bodies to automatically trigger disqualification would be a mechanism of mischief in the administration of justice.
The appeal was allowed, and the orders made by Levine J were set aside.
Orders
Orders of the court
Appeal allowed. Orders in para 21.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The point made by Mason J that a judicial officer should not recuse without adequate cause was exemplified in Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78 where Brennan, Gaudron and McHugh JJ ordered that a member of the Australian Industrial Relations Commission hear and determine a particular industrial dispute. The member had disqualified himself from sitting as a member of the Full Bench as he had tendered advice to one of the parties whilst he was in practice as a solicitor. Their Honours considered that, as the advice given was not connected with the dispute before the Full Bench of the Commission, the member ought not to have disqualified himself. Their Honours referred to The Queen v Australian Stevedoring Industry Board; Ex parteMelbourne Stevedoring CO Pty Ltd(1953) 88 CLR 100 where Dixon CJ, Williams, Webb and Fullagar JJ said, at p 116:-“But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be ‘real’. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that ‘preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded’, per Charles J, Reg v London County Council; Ex parte Empire Theatre (1894) 71 LT 638, at p 639.” Levine J agreed with Magistrate Rheinberger that the earlier proceedings concerning Mrs Klewer, with which his Worship had been concerned, did not raise any reasonable apprehension that his Worship would not bring to bear the impartiality expected of him. I agree with his Honour’s remarks and need not elaborate on them. Levine J also considered that the complaint to the Independent Commission Against Corruption provided no adequate basis for the Magistrate to disqualify himself. Levine J said:-“Without doubt no litigant whether represented or otherwise should consider that the making of a complaint to an investigatory body such as ICAC or the Judicial Commission about a Judge hearing that litigant’s case will automatically involve that Judge self-disqualifying. The reasons are obvious. It would be a mechanism of much mischief in the administration of justice if that course could be taken with such facility.” I agree with the view which his Honour expressed, particularly in the circumstances of the present case. From what counsel for Mrs Klewer said at the hearing on 5 December 2001, it appears that the complaint was directed generally to the judicial officers and staff of the Local Court at Coffs Harbour and to the New South Wales Police Service at Coffs Harbour and alleged a climate of hostility and bias rather than being directed to particular matters concerning Magistrate Rheinberger. Counsel referred to a non-criminal conspiracy against Mrs Klewer. Unsubstantiated allegations of this type made by disappointed litigants provide no basis upon which a judicial officer, who has been allocated to a particular matter, should recuse.