Klewer v Dutch [1999] FCA 173

FEDERAL COURT OF AUSTRALIA

Klewer v Dutch [1999] FCA 173

LUCY PATRICIA KLEWER v JENNY DUTCH and MICHAEL DORING

NG 453 of 1998

WHITLAM J

3 FEBRUARY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 453 of 1998

BETWEEN: LUCY PATRICIA KLEWER

Applicant

AND: JENNY DUTCH and MICHAEL DORING

Respondents

JUDGE: WHITLAM J

DATE OF ORDER: 3 FEBRUARY 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 453 of 1998

BETWEEN: LUCY PATRICIA KLEWER

Applicant

AND: JENNY DUTCH and MICHAEL DORING

Respondents

JUDGE: WHITLAM J

DATE: 3 FEBRUARY 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE) 1 The applicant is aggrieved by her conviction in the Local Court at Coffs Harbour on 5 February 1998 in respect of an offence under s 1350 of the Social Security Act 1991. She has commenced this proceeding purporting to rely on s 39B of the Judiciary Act 1903 to seek prerogative relief in respect of that conviction. The first respondent is an officer of the Commonwealth who laid the information alleging that the applicant had committed an offence. The second respondent is the magistrate in the Local Court who heard and determined the information. 2 Mrs Klewer says in her affidavits in support of the present application that she has several convictions on her record resulting from findings made against her by the second respondent. The applicant was represented by counsel in the hearing before the second respondent, about which her application today is concerned. It is accepted that her counsel made applications to the second respondent on 24 July 1997, 5 January 1998 and again on 7 August 1998 that he should disqualify himself on the grounds of a reasonable apprehension of bias. The second respondent did not accede to those submissions and proceeded to hear the case. At the end of the first day of the hearing on 7 August 1997, the matter was adjourned, evidently on the application of the applicant's counsel, to a date to be fixed. The case resumed on 5 February 1998 when the applicant gave evidence and was convicted. 3 The applicant has the misfortune in the proceedings today to represent herself and she has acted for herself throughout this proceeding. In her address she has canvassed the question of whether the evidence before the second respondent was sufficient to support a conviction. However, I think the applicant perceives that that is not the question before me, nor could it possibly form the basis of any of the relief she seeks. 4 Her case today initially appeared to rest on two matters: first, what may be broadly called bias and, second, unfairness in the second respondent hearing the case on 7 August 1997, on which date the applicant herself needed to be in Sydney for a hearing in the Administrative Appeals Tribunal. 5 Ultimately no case was developed in relation to the second of those matters, it being conceded by the applicant that she was represented by counsel at the hearing in the Local Court. Whilst it is unusual for a prosecution to proceed in the absence of a defendant, there is nothing before me to suggest that, in the instant case, the fact that the applicant was excused from attendance on the first day occasioned any unfairness to her. 6 In relation to the bias point, counsel for the first respondent has reminded me of the well known authorities on this question, all of which have been referred to with approval by members of the High Court, most recently in Webb v The Queen (1994) 181 CLR 41. The particular passage, however, that is of relevance to the appearance of bias in the present case is in Livesey v New South Wales Bar Association (1983) 151 CLR 288 where Mason, Murphy, Brennan, Deane and Dawson JJ said (at 300) that a judge must not sit: ". . . in a case such as the present where . . . a fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact." Counsel for the first respondent submits that there is no evidence before the Court which could lead me to form any view about a reasonable apprehension of bias by reason of the kind of prejudgment identified in that statement. Indeed, in her address in reply, the applicant accepted that she could not point to any specific findings on her credit by the second respondent (even though I am left in no doubt that she has a quite strongly held feeling that the second respondent will not change what she described as his attitude towards her). I accept the submission that there is no material whatsoever in evidence which could make out any ground of a reasonable apprehension of bias. 7 The orders that the applicant seeks are directed to the first respondent who laid the information and the second respondent who heard the case and recorded the conviction. Whilst I am conscious that the applicant is a lay person acting for herself, I think she understands that the first respondent, the officer of the Commonwealth, has exhausted her functions in laying the information and that the second respondent, the magistrate, has already recorded the conviction. The terms of the applicant's conviction were that she enter into a self-recognisance requiring (inter alia) that she be of good behaviour for two years. Obviously she remains affected by the requirements of that recognisance. However the relief she seeks, which is in the nature of prohibition, is entirely inappropriate. In addition, even if the exercise of a discretion in respect of prerogative relief were enlivened, it would have to be considered against the statutory backdrop of the measures available to the applicant under ss 112 and 122 of the Justices Act 1902 (NSW). 8 The applicant has not made out a case for the relief that she seeks. The case is utterly futile. In my view, it is a shame that the applicant has been diverted in her energies into maintaining proceedings under the Judiciary Act 1903 which are plainly misconceived. The applicant has now had her day in Court. The application will be dismissed with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice .