Attorney General for NSW v Klewer

The Attorney-General for New South Wales appealed an order of Levine J, who had set aside a decision of Magistrate Rheinberger. The dispute concerned whether Magistrate Rheinberger ought to have disqualified himself from hearing proceedings involving Mrs Klewer due to a reasonable apprehension of bias. The appeal was heard by the Supreme Court of New South Wales.

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.