Klewer v Rheinberger

[2004] NSWSC 91

CITATION:	Klewer v Rheinberger & Ors [2004] NSWSC 91 revised - 24/03/2004
HEARING DATE(S):	4 February 2004
JUDGMENT DATE:	25 February 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	The second defendant's Notice of Motion is stood over to the hearing of the application to vacate the interlocutory order of Dowd J. Costs are reserved.
CATCHWORDS:	Summary dismissal - apprehension of bias and other matters - no question of principle.
LEGISLATION CITED:	Supreme Court Rules 1970, Pt 13.
CASES CITED:	N/A
PARTIES :	Lucy P Klewer (Plaintiff) v Peter Rheinberger (First Defendant) Attorney General for New South Wales (Second Defendant) Magistrates of New South Wales (Third Defendants)
FILE NUMBER(S):	SC 13835 of 2001
COUNSEL:	N/A (Plaintiff) N/A (First Defendant) M Allars (Second Defendant) N/A (Third Defendants)
SOLICITORS:	In Person (Plaintiff) I V Knight - Crown Solicitor - Submitting Appearance (First Defendant) I V Knight - Crown Solicitor (Second Defendant) I V Knight - Crown Solicitor - Submitting Appearance (Third Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Wednesday 25 February 2004

13835 of 2001 Lucy P Klewer v Peter Rheinberger & Ors

JUDGMENT

1 MASTER: The plaintiff is involved in seven proceedings which are presently pending in the Local Court at Coffs Harbour. The first defendant is the only permanent Magistrate at Coffs Harbour.

2 Following an application made by the plaintiff, the first defendant transferred all but one of the seven matters to the Downing Centre. The one proceeding that was not transferred has been referred to as the Social Security charge.

3 Subsequently, (in September or October 2001), the Deputy Chief Magistrate at the Downing Centre transferred the matters back to Coffs Harbour on the basis that they were to be heard by a Magistrate from Sydney. This order has not been the subject of any challenge.

4 On 5 December 2001, the Social Security charge again came before the first defendant. He was asked by the plaintiff to disqualify himself on the basis of apprehension of bias. He declined to do so.

5 On 14 December 2001, the plaintiff commenced a proceeding in this Court. Her Summons claims inter alia the following relief:-

“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 (sic)

2) The Respondent, Peter Rheinberger transfers all pending matters involving the Plaintiff to the Downing Centre Local Court Sydney.
……………………………….”

6 Since then, these proceedings have been before the court on numerous occasions. I shall briefly mention some of those instances.

7 The plaintiff brought a Notice of Motion seeking an order that the first defendant be prevented from hearing the Social Security charge. It came before Levine J. His Honour made inter alia an order that the first defendant no longer hear that charge. Subsequently, that decision became the subject of an appeal to the Court of Appeal.

8 The proceedings came before Dowd J on 16 June 2003. By consent, his Honour made inter alia the following order:-

“i. The Magistrates of New South Wales are not to list for hearing any pending matters at Coffs Harbour Local Court involving the plaintiff until further order;
…………………………………………”

9 The appeal from the order of Levine J was heard on 1 October 2003. The judgment of the Court of Appeal was delivered on 15 October 2003. The orders made by Levine J were set aside and the application of the plaintiff was dismissed with costs. The judgment was founded on a rejection of the plaintiff’s assertion of apprehension of bias. An application for a stay of the orders made on 15 October 2003 was dismissed. There has been no appeal from the judgment of the Court of Appeal.

10 On 30 October 2003, the second defendant moved to have the Summons summarily dismissed. This application came on for hearing on 4 February 2003. It was resisted by the plaintiff.

11 It is well established that summary relief is only granted in what might be described as a clear case. The onus of demonstrating an entitlement to such relief rests with the applicant.

12 The matter raised by the first order sought by the plaintiff in the Summons has now been finally disposed of by the Court of Appeal. Any challenge to the decision of the Court of Appeal has to be made elsewhere. The plaintiff has not pursued any such challenge and apparently does not intend to do so.

13 Despite this, the plaintiff has persisted with a contention that the decision of the Court of Appeal is founded on error. The alleged error is presented as being a misconception as to the first defendant being part heard in the Social Security charge.

14 During the course of argument, I sought to bring to the attention of the plaintiff certain of the problems that beset this contention.

15 This Court is bound by the decision of the Court of Appeal. She has not taken the course of challenging the decision.

16 Leaving that matter aside, it seems to me that the submission was otherwise devoid of substance. In my view, it does not matter whether the first defendant was part heard or not. The decision of the Court of Appeal was founded on its rejection of her contention that there was an apprehension of bias. I should add that the submission was previously raised before the Court of Appeal on 1 December 2003 and rejected by Mason P. It was made abundantly clear to the plaintiff that if the proceedings had not been started before the first defendant then they ought to start and continue until completion.

17 The matter raised by the second order is the subject of the unchallenged order of the Deputy Chief Magistrate and the interlocutory consent order made by Dowd J. The second defendant’s application has been presented to the court as a summary dismissal application pursuant to Pt 13 of the Supreme Court Rules 1970. This explains how it came to be fixed for hearing before a Master. In its submissions, the second defendant has also asked for the interlocutory order of Dowd J to be vacated. This is an application which should be made before a Judge. The proceedings need to remain on foot pending inter alia the determination of such application. Accordingly, I propose to adjourn what is before me to the hearing thereof.

18 The second defendant’s Notice of Motion is stood over to the hearing of the application to vacate the interlocutory order of Dowd J. Costs are reserved.

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Last Modified: 03/26/2004