New South Wales Supreme Court CITATION : KLEWER v RHEINBERGER [2003] NSWSC 102 HEARING DATE(S) : 24 February 2003 JUDGMENT DATE : 24 February 2003 JUDGMENT OF : Levine J DECISION : 1. The order I therefore make is that to which I have referred, namely, that the respondent no longer hear that matter which was before him between the Department of Social Security and Lucy Patricia Klewer on 4 December 2001. I add it will be a matter for the administration of Local Courts Coffs Harbour or Sydney for it to be re-listed.; 2. I think this is a case where I cannot make any order for your expenses against the Attorney-General and I decline to do so. CATCHWORDS : Joinder of Attorney-General as contradictor - Local Court Magistrate - disqualification - exceptional circumstances LEGISLATION CITED : Supreme Court Act 1970 s23 Klewer v Dutch (2000) 99 FCA 217 Johnson v Johnson (2000) 201 CLR 488 CASES CITED : Raybos Australia Pty Limited v Tectran Corp Pty Ltd (1986) 6 NSWLR 272 Re JRL; ex parte CJL (1986) 161 CLR 342 Wentworth v Wentworth (unreported 12 September 1996) LUCY P KLEWER (Plaintiff) PARTIES : v PETER RHEINBERGER (Defendant) FILE NUMBER(S) : SC 13835 OF 2001 Plaintiff - in person COUNSEL : A Johnson (Defendant) SOLICITORS : I V Knight (Defendant) - 6 - Ex tempore - revised IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JUSTICE DAVID LEVINE MONDAY 24 FEBRUARY 2003 13835 OF 2001 LUCY P KLEWER (Plaintiff) v PETER RHEINBERGER (Defendant) JUDGMENT (Joinder of Attorney-General as contradictor - Local Court Magistrate - disqualification – exceptional circumstances) 1 On 5 December 2001 in the Local Court at Coffs Harbour there came on for hearing before Mr Rheinberger a prosecution of Ms Klewer by the Department of Society Security, the charge being, shortly stated, knowingly obtaining a benefit which was not payable. 2 On that day Mr Roser appeared for Ms Klewer, as I understand it, to make an application to his Worship that he disqualify himself from hearing that prosecution by reason of other and earlier matters with which his Worship had dealt concerning this present plaintiff before me. 3 The earlier matters with which his Worship had been concerned were unremarkable in the context of the application of the kind being made. On any view they could not found any reasonable apprehension that his Worship would not bring to bear, in accordance with the requirements of his office, the impartiality expected of him. 4 Other cases listed in the Coffs Harbour Local Court and involving the plaintiff were, as I understand it, disposed of by his Worship or otherwise dealt with administratively in the sense that they were transferred to Sydney. The social security matter was not. His Worship declined to disqualify himself. 5 By summons filed on 14 December 2001 the plaintiff has sought relief in terms of an order from this Court that Mr Rheinberger do disqualify himself. In this Court, a consenting appearance, as I understand it, having been filed for Mr Rheinberger, there is no contradictor in respect of the plaintiff's claim. 6 The Attorney-General, by an Amended Notice of Motion supported by an affidavit of Anina Cybele Johnson, affirmed 13 February 2003, has applied to the Court for orders pursuant to SCR pt 8 r 8(1)(b) that he be joined as a party or alternatively be joined as a party pursuant to s23 of the Supreme Court Act and the inherent jurisdiction of the Court or further in the alternative, that he be granted leave to appear in the proceedings as amicus curiae. 7 The least contentious and most efficient method for effecting joinder is the application of SCR pt 8 r 8(1)(b). If it can apply there would then be avoided the question as to the operation of s23 of the Supreme Court Act and there would also be avoided the limitations that can apply to the Attorney or anyone else as an amicus in terms of the tendering of evidence. 8 A case where a litigant in person is seeking to have an order made by the Court that a Magistrate disqualify himself, is a matter that requires an effective contradictor. In this regard I respectfully adopt what Santow J, as his Honour then was, said in Wentworth v Wentworth (unreported 12 September 1996) at p 8. "With Mr Howe not joined as a party, and the Defendant playing a limited role, that leaves the Court in the position where it will be forced to determine these serious allegations against an officer of the Court with no effective contradictor. This is clearly not a satisfactory situation. Indeed the Court would be in danger of putting at risk the appearance of impartiality, if the Court were thereby to play an inquisitorial role beyond that inherent in the conventional conduct of a case managed trial. Impartiality and as well as the appearance of it to a reasonable observer, is of course always important. But especially is this so in accusations concerning court officers, reinforcing the need for an effective contradictor where the factual issues are likely to be in dispute. That indeed distinguishes the situation from others where the facts are not in dispute save perhaps as to their consequences; for example whether there is a reasonable apprehension of bias". 9 It is apparent that this Court should have available to it the transcript of proceedings in the Local Court on 5 December 2001 where the issue of disqualification was articulated and crystallised. It is also of utility that I receive submissions from a proper and effective contradictor. It is for those reasons that pursuant to Pt 8 r 8(1)(b) of the rules I order that the Attorney-General be joined to ensure that all matters in dispute are effectively, effectually and completely determined and adjudicated upon. 10 That being so, attention is thus given to the substantive relief being sought by Ms Klewer to have Mr Rheinberger disqualified. The principles that apply to such an application flow through, for example, from Re JRL; ex parte CJL (1986) 161 CLR 342 at p 352 per Mason J, as his Honour then was, Raybos Australia Pty Limited v Tectran Corp Pty Ltd (1986) 6 NSWLR 272 and more recently in Johnson v Johnson (2000) 201 CLR 488. A judicial officer should not lightly recuse and the test of reasonable apprehension of bias is one that sets a high bar. 11 I must say that there is an aspect of this application that has troubled me in the context of those principles. It relates to some observations made by Mr Rheinberger at p 10 of the transcript of the proceedings before him on 5 December 2001. Whilst it seems clear that his Worship was quite unpersuaded, and properly unpersuaded, in relation to the various earlier matters referred to in Mr Roser's application, his Worship, in the context of being informed that a complaint had been made about him to the Independent Commission Against Corruption, said as follows at lines 20 to 30: "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". 12 I am not concerned with the outcome of any such complaint to ICAC. I am concerned with the matter of impression that the words his Worship uttered on that occasion could reasonably be taken to have given. It is unquestionably the law that merely because a case is part heard before a Judge does not constitute sufficient reason for that Judge hearing it to conclusion if those proceedings are otherwise flawed in the context of a reasonable apprehension of bias (see Klewer v Dutch (2000) 99 FCA 217). 13 As I understand it, his Worship viewed himself as part heard in these proceedings by reason of his having dealt with an application in respect of a question of duplicity. In so far as having dealt with any such application provided some basis for the view to which he came as being part heard, his Worship on the one hand rejected the fact of a complaint to ICAC as a matter affecting the situation. 14 On the other hand, his Worship curiously said in any event had he not been part heard he would have taken the same course in relation to the social security matter as he had taken in relation to all those other cases. 15 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. 16 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. 17 There is another aspect, perhaps peripheral, which seems to be tied up with the administrative affairs of the Local Court. The other matters to which I have been referring were remitted to the Local Court in Sydney. As I understand it they have been remitted back administratively to Coffs Harbour Local Court whence they came but on the basis that a Magistrate from Sydney, or more than one presumably, be the presiding judicial officer. I am not persuaded that there is sufficient material before me, first, or, second, as a matter of policy that it would be appropriate for this Court at this stage to direct the Local Court administratively to deal with matters of venue or the identity of the Magistrate. I gained the impression that Ms Klewer considers she has reasonable grounds to believe that Coffs Harbour as a centre in which the Local Court sits might not be the most congenial for the administration of justice in cases involving her. About that I can say no more. 18 Ms Klewer handed to me a document said to be submissions in support of the application she made. It has played no part in my coming to a decision as, with respect to Ms Klewer, who no doubt is aware of some phrases used in the law, it could be fairly regarded as a contentious, provocative and in parts a scandalous document. 19 The order I therefore make is that to which I have referred, namely, that the respondent no longer hear that matter which was before him between the Department of Social Security and Lucy Patricia Klewer on 4 December 2001. I add it will be a matter for the administration of Local Courts Coffs Harbour or Sydney for it to be re-listed. 20 (The plaintiff made an application for costs). 21 I think this is a case where I cannot make any order for your expenses against the Attorney-General and I decline to do so. ********** Last Modified: 02/28/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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