Attorney General for NSW v Klewer - [2003] NSWCA 295

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 2001
MASON P
MEAGHER JA
DAVIES AJA
Wednesday 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 expressed the view that she would not obtain a fair hearing of any matter in the Local Court at Coffs Harbour. However, the basis upon which his Worship proceeded on 31 July 2001 was that, as he regarded himself as having commenced the Social Security matter, he would continue with that matter but would transfer all other matters to the Downing Centre, Sydney so that they could be dealt with by other magistrates. His Worship said:-
“Application is made by Ms Klewer in relation to charge matters on 15 February 2001 and in relation to summons matters on 5 April 2001, that the matters be transferred to Sydney. That application is on the basis, that I am presently part heard in relation to a matter involving Ms Klewer and it would not be possible for me to proceed to hear these matters. As I understand it, the other Magistrates in this area are also unable to hear matters and there are two alternatives therefore, that the matters either be transferred to Sydney, or that the matters be left for hearing here and arrangements made for a Magistrate or Magistrates to attend to hear the matters. I am aware that there are other matters as well that need disposing of, in addition to these charge matters and summons matters.
An arrangement which would involve a Magistrate coming to Coffs Harbour, is not likely to be able to dispose of all matters and it’s likely that it would then involve arrangements on a number of occasions to have Magistrates come to Coffs Harbour to hear matters. I appreciate the costs involved in transferring the matters to Sydney, but it appears to me that having regard to what Ms Klewer has set out in relation to her reasons for transfer to Sydney, that justice must not only be done, but be seen to be done and I really don’t see any alternative but to transfer the matters to Sydney as requested.”
In early October 2001, Deputy Chief Magistrate Jerram transferred the matters back to Coffs Harbour from the Downing Centre, it being inconvenient to hear them in Sydney.
On 5 December 2001, counsel for Mrs Klewer sought an order that the hearing of the Social Security matter be conducted by a magistrate other than Magistrate Rheinberger and that the venue of the hearing be other than Coffs Harbour. Counsel said, inter alia, that his client had lodged a complaint with the Independent Commission Against Corruption detailing allegations against individuals, named and unnamed, in the Coffs Harbour Court system and in the New South Wales Police Service at Coffs Harbour, and that the complaint alleged that there was a climate of hostility and bias which prevented Mrs Klewer from receiving a fair hearing at Coffs Harbour. Counsel referred to the judgment of Hill J in Klewer v Dutch.
Magistrate Rheinberger dismissed the application. His Worship commenced by saying:-
“Application is made to me on behalf of the defendant for me to disqualify myself on the basis of apprehended bias. That application is based upon the defendant having made a complaint to the Independent Commission Against Corruption about me and persons at the courthouse and Police in the local area and about Mr Reimer. I understand it is also based upon the fact that I have had previous matters involving the defendant.”
His Worship then summarised the several matters which previously had come before him involving Mrs Klewer. He expressed his view that there was nothing in those proceedings which justified him to recuse. I need not deal with the details of those earlier proceedings. I agree with Levine J that the view which Magistrate Rheinberger took in respect of them was correct.
His Worship then went on to say:-
“There are a number of other matters before the Court and Miss Klewer had asked me to disqualify myself in relation to those matters and asked that the matters not be fixed before Mr Reimer and I did transfer those matters to Sydney. I did disqualify myself in relation to those matters and I had taken the view, in relation to this matter, that I am part heard and that whilst part heard in this matter it was not appropriate for me to embark upon any hearing involving matters with Miss Klewer and that to transfer the matters to Sydney would expeditiously dispose of the matters.
…
In my view I had taken those steps to ensure that Miss Klewer’s matters were dealt with expeditiously and by a person who could not be claimed to be biased. It does not appear to me that, in relation to my involvement with Miss Klewer, having regard to the fact that it is my responsibility to administer this Court, that there could be any perception of bias.
The additional question arises as to whether the fact that she has made complaint to the Independent Commission Against Corruption should affect the matter. It does not appear to me that the making of such a complaint should affect the situation. As far as I am aware that complaint is based upon my dealings with her in this Court.
I should perhaps add that although I would take the view that there is no apprehension of bias, if I had not been part heard in this matter I would have acceded to her request to try and arrange for another magistrate to hear the matter on the basis that I think it is good policy for a magistrate not to hear a matter if a complaint is pending against him in any tribunal involving that person. However, I do not believe that it raises, in this case, any apprehension of bias and because I take the view that I am part heard I do not propose to disqualify myself in relation to this matter.”
The principle to be applied was enunciated by Mason J in Re J.R.L.; Ex parte C.J.L (1986) 161 CLR 342 at 351:-
“The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues: Reg. v Watson; Ex parte Armstrong (1976) 136 CLR 248, at pp 258-263; Livesey v NSW Bar Association (1983) 151 CLR 288, at pp 293-294. This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’: Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1976) 136 CLR at p 262; Re Lusink; Ex parte Shaw(1980) 55 ALJR 12 at p 14; ... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”
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.
Thus, the position was that neither the previous matters which Magistrate Rheinberger had had with Mrs Klewer nor the complaint to the Independent Commission Against Corruption provided grounds upon which his Worship ought to have disqualified himself. Nor did a reasonable apprehension of bias arise from the fact that Hill J had ruled that another magistrate was disqualified from hearing further matters concerning Mrs Klewer. The factors which applied in that case did not apply to Magistrate Rheinberger. Nor did the transfer of other matters involving Mrs Klewer to the Downing Centre by Magistrate Rheinberger provide a reasonable apprehension that the Magistrate would not be impartial in the proceedings before him. The Magistrate made it plain that his hearing of the Social Security case would prevent him from dealing with the other matters in which Mrs Klewer was involved.
However, counsel submitted that a reasonable apprehension of bias arose from the Magistrate’s remarks, which I have set out. Counsel referred to the principle that the conduct must be judged from the point of view of a fair-minded lay observer. In Johnson v Johnson(2000) 201 CLR 488 at 492-493, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ expressed the principle in this way:-
“It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 …; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41.
That test has been adopted, in preference to a differently expressed test that has been applied in England cf Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done cf R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ. It is based upon the need for public confidence in the administration of justice. ‘If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision’ R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263, per Barwick CJ, Gibbs, Stephen and Mason JJ. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’ Vakauta v Kelly (1988) 13 NSWLR 502 at 527, per McHugh JA, adopted in Vakauta v Kelly (1989) 167 CLR 568 at 584-585, per Toohey J.
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge Webb v The Queen (1994) 181 CLR 41 at 73, per Deane J, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.”
Levine J did not find that a reasonable apprehension of bias arose from the Magistrate’s remarks of 31 July 2001. I agree with his Honour. Although, his Worship’s remarks were somewhat elliptical, their only possible meaning was that, as the Magistrate was part heard in relation to the Social Security case, he would transfer the other matters to Sydney to be dealt with by other magistrates. No inference could be drawn from the remarks that the Magistrate would not bring an impartial, unprejudiced mind to the matter which he retained.
However, Levine J considered that a reasonable apprehension of bias arose from remarks of Magistrate Rheinberger in the last paragraph of his reasons of 5 December 2001, which I have set out above. Levine J said:-
“I am troubled by his Worship having disposed as it were of other matters yet coming to the view represented in the elliptical paragraph of his reasons which I have cited. Exceptionally, and I cannot stress that too strongly, in that context, what his Worship said leads to the standard of reasonable apprehension to which the courts have referred being met and, accordingly, I direct that those proceedings proceed no further before him.”
In my view, the last paragraph of his Worship’s reasons raised no apprehension of bias on his part. He had already made it clear that his handling of the proceedings in which Mrs Klewer had been involved did not, in his view, raise any reasonable apprehension of bias. In this circumstance, his Worship’s remarks did not suggest that, in his view, there was any reasonable apprehension of bias. His Worship simply referred to what he regarded as “good policy”. His Worship was incorrect in that view for it is not good policy and certainly not appropriate that a judicial officer should disqualify himself just because one of the parties before him has lodged a complaint with the Independent Commission Against Corruption. A judicial officer should disqualify himself only if there are facts which raise a reasonable apprehension of bias on his or her part. Nevertheless, the reference to “good policy” did not suggest that Magistrate Rheinberger would fail to be impartial and unprejudiced in his handling of Mrs Klewer’s case. Indeed, the reference to what he regarded as good policy showed that the Magistrate kept in the forefront of his mind the need to be and to be seen to be without bias.

It follows, in my view, that the orders made by Levine J should be set aside and that, in lieu thereof, it should be ordered that the application to the Court be dismissed with costs. The first respondent , Lucy Klewer, should pay the costs of the appellant and should have a certificate under the Suitors’ Fund Act if qualified.

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LAST UPDATED: 17/10/2003