Klewer v Rheinberger

[2004] NSWSC 337

CITATION:	Klewer v Rheinberger [2004] NSWSC 337
HEARING DATE(S):	7 April 2004
JUDGMENT DATE:	7 April 2004
JUDGMENT OF:	Simpson J
DECISION:	Summons dismissed; Plaintiff to pay second defendant's costs of the proceedings
CATCHWORDS:	summons regarding matters in Coffs Harbour Local Court - notice of motion seeking dismissal of summons - assertion of bias - Court of Appeal decision
LEGISLATION CITED:	Supreme Court Rules Part 13 Rule 5 (1) (a), (c)
PARTIES :	Lucy P Klewer - Plaintiff Peter Rheinberger - First Defendant Attorney General for NSW - Second Defendant Magistrates of NSW - Third Defendants
FILE NUMBER(S):	SC 13835/01
COUNSEL:
SOLICITORS:	Plaintiff - in person A Johnson - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Wednesday 7 April 2004

13835/01 Lucy KLEWER v Peter RHEINBERGER

JUDGMENT

1 HER HONOUR: By summons filed in this court on 14 December 2001 the plaintiff, Lucy Klewer, claims orders as follows:

“(1) An order that:
The respondent, Peter Rheinberger, L.C.M. of Coffs Harbour Local Court be prevented from hearing any matters involving the plaintiff, Lucy P Klewer.
(2) The respondent, Peter Rheinberger, transfers all pending matters involving the plaintiff to the Downing Centre Local Court Sydney.
(3) Any other orders the Court deems fit.”

2 The proceeding before me is a notice of motion filed on 30 October 2003 by the Attorney General for New South Wales seeking orders that the summons be dismissed generally pursuant to Pt 13 r 5 (1) (a) and/or (c) of the Supreme Court Rules 1970. However, there have been a number of other proceedings in relation to the summons in the meantime. It appears that the matters to which the summons alludes are both civil and criminal matters listed in the Coffs Harbour Local Court.

3 On 31 July 2001 at the plaintiff’s request Mr Rheinberger transferred from Coffs Harbour Local Court to the Downing Centre all matters except for one, which was a social security charge. In September or October 2001 that order was countermanded by the Deputy Chief Magistrate at the Downing Centre Local Court and the matters were re-transferred to Coffs Harbour, to be heard by a Sydney-based magistrate.

4 The social security charge came on for hearing on 5 December 2001 on which occasion the plaintiff asked Mr Rheinberger, to disqualify himself. He declined to do so. That prompted an application to this Court by the plaintiff seeking an order that Mr Rheinberger be prevented from hearing that particular proceeding. That matter came on for hearing before Levine J in February 2003. Levine J made orders favourable to the plaintiff, that Mr Rheinberger be disqualified from proceeding with the hearing.

5 The Attorney General appealed against that decision. On 15 October 2003 the Court of Appeal set aside Justice Levine’s order and ordered that the magistrate proceed with the hearing.

6 The basis on which the application was made to Levine J and on which the appeal was decided, was the plaintiff’s assertion that Mr Rheinberger was biased or, alternatively, that a reasonable observer would apprehend that Mr Rheinberger was biased.

7 The Court of Appeal made clear that there was no reason for such a perception and that Mr Rheinberger should proceed with that particular matter.

8 The case made on behalf of the Attorney General pursuant to the notice of motion is that effectively the matters raised by the plaintiff in the summons have been the subject of a decision by the Court of Appeal.

9 For that reason and, having regard to the width of the terms of the summons, I pressed Ms Klewer as to the basis on which she claims the orders in the summons which are, as I said, wider than those that were before Levine J and the Court of Appeal. She told me that the reason she sought the removal of all matters and the effective disqualification of the magistrate at Coffs Harbour was to do with what she regarded as the unsatisfactory behaviour of Registry staff in Coffs Harbour.

10 The matter is complicated by this circumstance. On 16 June 2003 when the Court of Appeal proceedings were pending the plaintiff filed a notice of motion which came before Dowd J. By consent Dowd J ordered that magistrates of New South Wales not list any hearing of pending matters in the Coffs Harbour Local Court involving the plaintiff until further order.

11 The matter then came before Master Malpass on 4 February 2004 who referred to the order of Dowd J and held that he had no jurisdiction to vacate or vary those orders.

12 If it be the case that the plaintiff, contrary to her responses to me today, wishes to continue to assert bias on the part of Mr Rheinberger, that issue is concluded by the judgment of the Court of Appeal.

13 In a wide-ranging argument before me today the plaintiff appeared to challenge the basis upon which the Court of Appeal made its decision, but it is of course not open to me, or indeed to her, to challenge those rulings in this court. The issue of bias is concluded against the plaintiff.

14 The only thing remaining is whether the other orders which the plaintiff would seek to advance as being reasons for preventing Mr Rheinberger from continuing to hear matters that involve her, are the matters raised by her in response to my questions concerning behaviour of the Registry staff. In my opinion those matters are not capable of going to whether Mr Rheinberger should be disqualified from hearing such matters.

15 The second order sought by the plaintiff for transfer of pending matters falls into the same category. It can only be put forward either because of apprehended bias as to which the gate is closed, or the other matters raised by Ms Klewer in argument. They are not a basis in my opinion for a transfer.

16 The consequence of what I have said is that the plaintiff’s prospects of succeeding on her summons are negligible as they disclose no reasonable cause of action and constitute no abuse of process of the court. In accordance with Supreme Court Rules Pt 13 r 5(1) I order that the proceedings for summons be dismissed. I order the plaintiff to pay the second defendant’s costs of the proceedings.

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Last Modified: 05/03/2004