Klewer v Dutch [2000] FCA 509 (28 April 2000)

Last Updated: 28 April 2000

FEDERAL COURT OF AUSTRALIA

Klewer v Dutch [2000] FCA 509

ADMINISTRATIVE LAW - prerogative writs and orders - whether Federal Court has accrued jurisdiction under s 39B of the Judiciary Act 1993 (Cth) to issue writ of certiorari - whether writ of prohibition can be issued to prevent enforcement of decision found to be made with bias - whether remedy of prerogative writs available after conviction entered - conviction by magistrate of offence under s 1347 of the Social Security Act 1991 (Cth) - magistrate had presided in a number of cases in which applicant was a party and had decided them adversely to applicant on issues of credit - whether magistrate should have acceded to request that he disqualify himself for apparent bias where prosecution of applicant involved proof of fraud.

Judiciary Act 1903 (Cth) s 39B

Social Security Act 1991 (Cth) ss 11(4), 13, 1066-D1, 1347

Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 considered

R v Murray & Cormie [1916] HCA 58; (1916) 22 CLR 437 cited

Coward v Allen (1983-4) 52 ALR 320 cited

Ex parte Malouf; Re Gee (1943) 43 SR(NSW) 195 cited

Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 followed

Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261 cited

Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 76 ALR 173 cited

New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 131 ALR 559 referred to

LUCY PATRICIA KLEWER v

JENNY DUTCH AND MICHAEL DORING

NG 453 OF 1998

HILL J

SYDNEY

28 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 453 OF 1998

BETWEEN:	LUCY PATRICIA KLEWER Applicant
AND:	JENNY DUTCH First Respondent MICHAEL DORING Second Respondent
JUDGE:	HILL J
DATE OF ORDER:	28 APRIL 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be allowed.

2. The first respondent be prohibited from giving effect to the orders made by the second respondent on 6 February 1998 and in particular, but without limiting the generality hereof, that the applicant make restoration in the sum of $4,698.40.

3. The orders of the second respondent referred to in Order 2 be set aside.

4. The first respondent pay any out of pocket disbursements incurred by the applicant and properly allowable on taxation (if any).

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 First Respondent MICHAEL DORING Second Respondent

JUDGE:	HILL J
DATE:	28 APRIL 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant, Mrs Lucy Klewer, has applied to the Court, invoking the jurisdiction of the Court under s 39B of the Judiciary Act 1903, to seek judicial review of a decision of Mr Doring, the second respondent, a magistrate, of a decision given by him at the Local Court in Coffs Harbour, New South Wales, that she had breached s 1347 of the Social Security Act 1991 ("the Social Security Act"). Mrs Klewer was also ordered to pay to the Department of Social Security the sum of $4698.40 which it was found had been overpaid to her as a rental allowance under the Social Security Act together with costs. She seeks to have that decision quashed. She alleges that Mr Doring ("the Magistrate") was guilty of constructive bias and should have stood aside and not heard the case against her. She submits also that there was no evidence before the Magistrate which would have supported the conviction.

2 The first respondent, Ms Dutch, ("the Officer") is an officer of the Department of Social Security. She was, according to the records of the Department of Public Prosecutions, the officer in charge of an inquiry into the alleged breach by Mrs Klewer of the Social Security Act and the informant in the proceedings before the Magistrate. Mrs Klewer seeks an order that Ms Dutch be restrained from taking steps to recover from her the amount the Magistrate ordered her to repay.

3 The Magistrate submits to any order as should be made in the application, other than an order as to costs. He, properly, has not participated in the hearing.

4 The application is opposed on two grounds. First, it is submitted that Mrs Klewer has not made out either a case of constructive bias or of no evidence. Secondly, it is submitted that even if she has, this Court has no jurisdiction to grant the relief sought or even if it did it should not exercise that jurisdiction as a matter of discretion.

5 This is the second occasion upon which the present matter has been before a single judge of this Court. On the first occasion, the matter came before Whitlam J, who in a brief ex tempore judgment dismissed the application, on the basis that it was misconceived. Mrs Klewer appealed to a Full Court. As a result, it would seem, of material which had come to light between the hearing before Whitlam J and the appeal, the first respondent consented to the appeal being allowed on the basis that the application would be heard again by a single judge of this Court. The Full Court did not consider the merits of the appeal and expressed no view as to the correctness or otherwise of the decision of Whitlam J. At the hearing before me Mrs Klewer was unrepresented. Mrs Klewer claims to be aggrieved by the decision, not merely because she was convicted, but also because she is enrolled in a law course at university and the conviction could affect her career in the law.

6 Mrs Klewer submitted, first, that there was no evidence before the Magistrate upon which her conviction could be based. However, it was Mrs Klewer's principal case that she had been a party to a number of cases which the Magistrate had heard, not to mention that she had lodged a complaint against him to the Judicial Commission, and that on each occasion on which she had appeared before him he had not accepted her evidence and had found against her, especially on the basis of credit. Yet, despite applications made to the Magistrate that he disqualify himself he had refused to do so and had proceeded with the prosecution against Mrs Klewer and convicted her.

7 Although logically the question of jurisdiction should be determined before the merits of the application are examined, the case proceeded in reverse order to this and I am content to consider the matter in the way it was dealt with in argument.

The no evidence submission

8 The transcript of the proceeding before the Magistrate could not be located, despite attempts by the Local Court to do so. In these circumstances it is simply not possible for me to deal with this submission, even if it were open for me to do so on an application for judicial review. Accordingly I propose in these reasons only to deal with the primary issue of apprehended bias.

The proceedings before the Magistrate

9 Since at least 1991 Mrs Klewer claimed to be a sole parent entitled to a sole parent's pension under the Social Security Act. She claimed also to be entitled to rental assistance under s 1066-D1 of that Act which provides, relevantly, that:

"An additional amount to help cover the cost of rent is to be added to a person's maximum basic rate if:

(a) the person is not an ineligible homeowner ..."

10 The expression "ineligible homeowner" is defined in s 13 of the Social Security Act. Additionally, s 11(4) of that Act provides that for the purposes of that Act:

"(a) a person who is not a member of a couple is a homeowner if:

(i) the person has a right or interest in the person's principal home; and

(ii) the person's right or interest in the home gives the person reasonable security of tenure in the home; and

(b) a person who is a member of a couple is a homeowner if:

(i) the person, or the person's partner, has a right or interest in one residence that is:

(A) the person's principal home; or

(B) the partner's principal home; or

(C) the principal home of both of them; and

(ii) the person's right or interest or the partner's right or interest in the home gives the person, or the person's partner, reasonable security of tenure in the home ..."

11 In August 1991 Mrs Klewer lodged a claim for a sole parent pension. She had six children born between 1977 and 1988. She claimed to be separated from her partner, Mr Tom Klewer, and to obtain no assistance from him. Apart from a small sum in the bank, she had no assets. She claimed to be paying rent of $165.00 per week to live in Ocean Parade, Coffs Harbour. The name of the landlord does not appear on that application. Mrs Klewer disclosed that she was in receipt of Austudy. At least at some time, she was studying legal subjects.

12 In March 1994 Mrs Klewer signed a sole parent review form which disclosed that she lived at 7 Ringtail Close Boambee 2452, and was paying rent to Mr T Klewer, whose address was shown as in care of the RAAF Base at Amberly. In response to a question in the form as to whether she owned the home jointly with any of listed relatives who stayed regularly at that address she answered "no". Subsequent review forms completed in June and December 1994 by Mrs Klewer disclosed no alteration in respect of these matters.

13 At a hearing before the Administrative Appeals Tribunal to which reference will later be made Mrs Klewer deposed that her husband had agreed to purchase a property and take out a mortgage (approximately $95,000) to finance the purchase in order to provide a roof over the heads of Mrs Klewer and her, by that time, seven children. She said that her husband had insisted that she pay to him an occupancy fee of $140.00 per week and produced a document signed by him to this effect. In fact the property was purchased in the joint names of Mr and Mrs Klewer (Mrs Klewer was, presumably at the bank's request, both a joint transferee and joint mortgagor, albeit that some bank documents referred to her as guarantor) and Mrs Klewer made repayments on the mortgage of amounts in excess of the $140.00 per week said to be paid as an occupancy fee.

14 On 22 July 1996 a delegate of the Secretary of the Department of Social Security formally wrote to Mrs Klewer alleging that she had been overpaid rent assistance because she was a part owner of the property she claimed to have rented and was thus an ineligible home owner not entitled to rental assistance. The delegate demanded that she repay the amount overpaid, then nominated as $5004.20. The discrepancy is not explained, but presumably is also not relevant to the present proceedings. She was advised that if she disagreed she had a right to appeal to the Social Security Appeals Tribunal.

15 It would seem that Mrs Klewer did appeal and, the decision being adverse to her (by majority, according to Mrs Klewer's statement from the bar table), she then appealed to the Administrative Appeals Tribunal. That Tribunal, by a senior member, Mr Allen, on 7 August 1997, giving oral reasons subsequently reduced to writing, confirmed the decision of the Social Security Appeals Tribunal. There was no appeal lodged, so far as the evidence discloses, against the decision of the Administrative Appeals Tribunal.

16 In the meantime Ms Dutch swore an information for the prosecution against Mrs Klewer to which the present proceedings relate on 18 December 1996. The allegation was that Mrs Klewer was in breach of s 1347 of the Social Security Act. That section provides relevantly:

"A person must not knowingly obtain:

(a) payment of a social security payment under this Act or of fares allowance; or

(b) payment of an instalment of a social security payment under this Act;

for which the person is not eligible, or which is:

(c) not payable at all; or

(d) only payable in part."

17 The matter was heard by the Magistrate initially on 7 August 1997, when the prosecution evidence was given and after an adjournment was concluded on 5 (or perhaps 6) February 1998. At the hearing Mrs Klewer was represented by counsel.

18 So far as appears from a letter dated 23 February 1999 written by the barrister, Mr Roser, Mrs Klewer's case was that she did not know that she was not entitled to receive rental assistance and that her husband had told her that if she did not pay the rent into the joint account from which the mortgage payments were made by him he would remove her from the home and find alternative tenants. He asserted to her that because it was his income which was taken into account by the bank in granting a loan, the property was his. Although she knew that her name was on the title she also believed that her husband could and would make good these threats if she did not pay the rent of $140 per week. According to the letter from Mr Roser, Mrs Klewer had given sworn evidence to this effect, and had also sworn that she had truthfully answered the questions in the periodic review forms.

19 Mrs Klewer was convicted but released on a self-recognisance in the sum of $2,000 to be of good behaviour for two years pursuant to s 20(1)(a) of the Crimes Act 1900 (NSW) and ordered to repay the amount of the overpayment by a reparation order pursuant to s 21B of that Act. The proceedings sheet prepared by the Director of Public Prosecutions notes the sections breached to be ss 1350 and 1437 of the Social Security Act and the case to be one of fraud.

20 According to Mrs Klewer on 24 July 1997 her counsel had made an application to the Magistrate that he disqualify himself on the ground of "perceived bias". A further application to that effect was made to the Magistrate on 7 August 1997. A further ground, if not for disqualification, at least for an adjournment of the case on 7 August 1997 was that the hearing before the Administrative Appeals Tribunal seeking a review of the decision requiring her to repay rental assistance said to have been overpaid was to take place on the same day on which Mrs Klewer was required to be present at the prosecution. These applications were refused and, according to Mrs Klewer the Magistrate proceeded to hear the prosecution case on that day in her absence.

21 According to Mrs Klewer a further application was made by her counsel on 5 February 1998 that the Magistrate not proceed to hear the case on the ground of perceived bias. That application was likewise unsuccessful, this time it would seem (and it is common ground) on the basis that he was part heard in the matter, presumably because he had taken the prosecution evidence at the hearing in August 1997. Of course, if there were apprehended bias, the fact that he was part heard would be irrelevant, it being better to abort the hearing, even at that late stage, rather than proceeding with a hearing which was legally flawed. Be that as it may, on 5 February 1998 the Magistrate proceeded to hear the prosecution and find against Mrs Klewer as has already been noted.

22 Mrs Klewer then brought proceedings in the Supreme Court of New South Wales seeking an order in the nature of prohibition from that Court restraining the Secretary of the Department of Social Security and the Magistrate from proceeding further or taking any steps upon the conviction and an order that the conviction be quashed. That proceeding was dismissed for want of jurisdiction, on the ground that the Federal Court had exclusive jurisdiction to grant judicial review or relief in the nature of prerogative writs involving decisions made under Commonwealth enactments. It would seem that Mrs Klewer believed that judicial review was the proper procedure to appeal the decision of the Magistrate. In this she was misconceived. Her affidavit evidence suggests that she believed she had appealed to the Supreme Court under s 112 of the Justices Act 1902 (NSW). She states, in her written submissions, and I have no reason to disbelieve her, that she believed that, thereafter, the only avenue she had for redress of her conviction was an application to this Court under s 39B of the Judiciary Act 1903 (NSW). No doubt she came to this belief as a result of her application to the Supreme Court being unsuccessful on the ground that that Court did not have jurisdiction. The confusion probably arose from her failure to understand the difference between an appeal and an application for judicial review.

The history of proceedings involving Mrs Klewer and the Magistrate

23 The evidence discloses a quite remarkably long list of proceedings involving Mrs Klewer that were heard by the Magistrate. In an affidavit sworn on 5 August 1997 but filed in Court, Mrs Klewer said that she had appeared before the Magistrate on several occasions as plaintiff or defendant. She said that in each case she had given evidence and that in "almost all cases such magistrate did not accept my evidence".

24 This statement might be thought to suggest that there were some cases where the Magistrate had in fact accepted her evidence or at least found for her. However, neither of these propositions appears to be the case. In oral testimony Mrs Klewer listed all the cases in which she had been involved and over which the Magistrate had presided. In none was she successful, whether as plaintiff or defendant. However, as will be seen in at least one, no question of credit initially arose, the Magistrate having decided the matter on a question of law. The ruling was subsequently set aside by the Supreme Court of New South Wales and the case decided upon credit. The account which follows covers the cases in respect of which there was some evidence before me. In addition there was oral evidence from Mrs Klewer that she had been involved in another case concerning her children being removed (whether by her or from her is unclear). The matter involved the Department of Community Services and whether there was a lawful reason for the removal. Mrs Klewer again lost, although it is unclear whether any question of credit was involved, and accordingly I put this matter out of consideration.

1. 1 October 1994 - proceedings instituted by Mrs Klewer

25 The first occasion on which Mrs Klewer appeared before the Magistrate was a private prosecution brought by Mrs Klewer against a neighbour in which Mrs Klewer apparently alleged that the neighbour was erecting a structure (a retaining wall, it would seem) partly on her property upon which, she alleged, the neighbour had trespassed. The Magistrate found for the neighbour on the ground that the land was not fully enclosed. There is no transcript of the proceeding in evidence and it is not clear whether the Magistrate found against Mrs Klewer on the basis that he did not believe her evidence, or only on the legal issue of whether the land was fully enclosed, or partly on the one basis and partly on the other.

2. 22 June 1995 - the charge of assault brought by Mrs Klewer

26 The next proceeding before the Magistrate upon which Mrs Klewer relies to show bias or ostensible bias was in June 1995.

27 It seems that some time before 18 March 1994 Mrs Klewer's driving licence had been cancelled. Precisely what the circumstances were in which this happened are unclear. It had, according to the evidence she gave before the Magistrate, something to do with driving an unregistered vehicle in 1992, and non-payment of a penalty imposed for that infringement. She learned this in February 1994 when she undertook a random breath test and produced her licence with an incorrect address on it.

28 In March 1994 she was driving home in her car with two of her children from John Paul College when she was followed by a police vehicle. She drove into a car park of a shopping centre, apparently to buy some bread and was followed by the policeman who asked her whether she was driving without a licence. She said that she did not want to answer the question. Her son, however, gave the policeman her particulars. The policeman then went to his car to do a radio check on the licence. On his return he told her that her licence had been cancelled. She explained, according to her evidence that she had been to the Road and Traffic Authority and the local police station concerning her licence and that there had been some obvious errors which she hoped would be sorted out. She explained that she had two sleeping children in the car and others at home alone and reminded him that she only lived "up the road". She then attempted to drive off and was followed by the policeman with sirens and flashing lights blazing.

29 Mrs Klewer stopped her car about a kilometre away from the shopping centre. There was a short conversation, the policeman drew a baton, raised it according to Mrs Klewer about a metre, whereupon on her version of events he rushed her, knocked her over and told her that she was under arrest for driving with a cancelled licence. On the ground the policeman grabbed, so Mrs Klewer said, one of her arms and put that behind her back kneeling on the middle of her back and attempting to twist the other arm. She complained that he would break her arm, to which he replied: "I don't care about your arm". Mrs Klewer was handcuffed in front of her two children who were crying, another matter the policeman indicated, according to Mrs Klewer, to be of indifference to him. He dragged her then into his car "roughly" according to Mrs Klewer and she was ultimately driven to the Coffs Harbour Police Station - the children being left behind. After she was charged and released at the police station, Mrs Klewer went to hospital. She had, she said, gravel embedded in her elbows and shoulders, rib injuries, chest pain, abrasions and bruising. She was subsequently visited by a doctor whose evidence clearly supported the injuries Mrs Klewer said she suffered, and who quite vehemently denied suggestions put to him that they had been self-induced.

30 Mrs Klewer was cross-examined and a no case to answer submission was put, but rejected by the Magistrate. As a result the policeman gave evidence, quite inconsistent with that of Mrs Klewer. According to his evidence Mrs Klewer's licence had been cancelled as a result of a fine default. His evidence was that Mrs Klewer was hysterical. She had sworn at him saying that if she had a gun she would kill him. He said that he had left his baton in the police car and that he had arrested her while she was upright, fastening her left elbow behind her back with a "wrist lock" grip. She had continued to struggle and the policeman said on oath that he thought he was going to be overpowered. So he had "manoeuvred her to the ground" and handcuffed her.

31 According to the policeman his concern was for the children. He led Mrs Klewer to his car (she was still screaming) and had not pushed her into the car. Rather she had "hopped into the car". Mrs Klewer he said, however, had continued to scream and swear at him. He had then waited in the car until reinforcements arrived to look after the children (he had placed them in the other car) and then had driven her to the police station, while another policeman had driven Mrs Klewer's car to her home with the children. Mrs Klewer's aggression had, so the policeman said, continued at the police station where she had to be forcibly placed into a dock and the door shut on her. By contrast the policeman remained at all times "cool, calm and collected".

32 The policeman gave evidence (which appears to have been admitted without objection) that afterwards Mrs Klewer had threatened to kill him. She had, he said, been ultimately charged with driving without a licence, resisting arrest and unlawful use of a telephone service in connection with the threats. She was convicted of these matters and as at the time of the hearing before the Magistrate had appealed all convictions to the District Court. There is no evidence as to the outcome of these appeals.

33 Another policeman, who had arrived on the scene, presumably as a result of a request for back up assistance, gave evidence that Mrs Klewer was screaming and yelling obscenities when he arrived.

34 The Magistrate indicated that he did not think it was necessary for him to hear addresses on the issue he had to decide, namely whether the policeman had used excessive force in what otherwise was the carrying out of his duty to arrest. The Magistrate noted that the doctor's evidence was consistent with the injuries which Mrs Klewer alleged she had suffered, but that this evidence did not confirm and was not corroborative of how precisely those injuries were occasioned. The substance of the Magistrate's decision is to be found in the following passage (at 70 of the Local Court Transcript):

"It is, of course, a classic case of oath against oath. The Doctor and Sergeant Fuller really play no part or any significant part. So it's a case where I need to attempt to carefully assess these two witnesses, the two principal witnesses, the evidence, the conflicts et cetera and I guess as a matter of common sense in trying to assess the evidence of the witnesses ... to put all the evidence back into the context, the circumstances, the background.

If Constable Martin's evidence is accurate the informant was completely uncooperative ...

The Constable, of course, was there carrying out his job ...

So far as the informant it would seem, in fact, that she'd been having some frustration so far as her licence previously been taken from her... really it's open to suggest the circumstances were quite conducive to her becoming frustrated and upset ...

It's open to suggest that she'd been warned not to drive at the shopping centre or she would be arrested... [in fact this had been denied by Mrs Klewer]

I have in mind all the evidence, I have in mind the conflicts, I have in mind that the matter should be put back as I have already said into it's [sic] circumstances as they're existing. The context is the term I used earlier and I now relate that to the onus of proof.

As I said at the outset I need to be satisfied beyond reasonable doubt, that is I need to be satisfied that the incident was and I'm talking now about Hulberts Road, that the incident was as described by the defendant [sic, informant] that what the Constable did in arresting her was to use unreasonable force... The defendant [sic, informant] has not satisfied me of that....

If, and I'm [sic] say if one proceeds on the basis of Martin's evidence being the correct evidence within the context of Martin's evidence there was no unreasonable force, but as I say my first decision relates to the onus that needs to be met by the informant."

35 I might add that a perusal of the transcript and the way evidence was rejected from Mrs Klewer and accepted from the policeman, particularly evidence suggesting that the Constable was frightened of Mrs Klewer, who was hardly of heavy build, raises some disquiet over the way the case was handled. However, that is not the issue here. Perhaps what matters is that if Mrs Klewer's case was accepted, corroborated in part as it was (although the Magistrate thought otherwise) by the doctor's evidence which one would have thought was quite cogent on the question of unreasonable force, she would have been successful. Clearly the Magistrate, unless he erred as a matter of law, did not accept her account and must be taken to have rejected her on credit, at least at the criminal standard of proof.

3. The proceedings of 20 October 1995 - the Police against Mrs Klewer -

assault

36 The next occasion when Mrs Klewer appeared before the Magistrate was on 20 October 1995 following the laying of an information that Mrs Klewer had injured a Mrs Luxford, a secretary apparently working with the Department of Community Services. Mrs Luxford alleged that Mrs Klewer had come to the office for an appointment some three quarters of an hour late. There was, at the least, a verbal altercation. Mrs Klewer seemed to think she was "getting the run around". Her request to see a Mr Brennan and to use the phone for a STD call were refused. According to Mrs Klewer she threw a bell (the bell was on the counter to permit callers to gain attention) at the door. Mrs Luxford claimed that the bell was thrown at her and hit her on the nose. Mrs Klewer claimed that Mrs Luxford had scratched her nose with her nails. The matter was reported to the police and a prosecution brought. Although Mrs Luxford had said she went to a doctor thereafter and obtained a medical certificate she did not produce it and the case proceeded without that evidence.

37 It was Mrs Klewer's case that she had no intention of hitting Mrs Luxford. Indeed she said so on oath. The Magistrate's reasons are summarised in the following passage:

"As I said the mens rea in assault may be established by recklessness. With respect to throw something such as the bell in another person's general direction is a reckless act.

The assault is established on Mrs Klewer's own evidence, and on that basis alone I would find the offence proved.

The Defendant alternatively put to Mrs Luxford in cross-examination, bell thrown at the door. Mrs Luxford immediately raised her hand and scratched her face, and later put to her there was no injury.

Now if the latter is the situation, no injury, then is the Constable incorrect when he says he saw a small cut to the bridge of the lady's nose? If the former, well no bias - nothing such as bias is shown with respect to explain why Mrs Luxford would completely and accurately attribute the cut to Mrs Klewer and the bell. And of course Mrs Klewer accepts the possibility - no more than that, possibility - but she accepts the possibility that the bell may have bounced off Mrs Luxford and hit the door, she talks about hearing the bell hit the door.

I am satisfied to the criminal standard the bell hit Mrs Luxford, I find the assault proved on that basis, including battery."

38 Mrs Klewer was convicted and fined $250 plus court costs.

4. 6 March 1997 - Mrs Klewer v Peter Bitmead - s 85ZE of the Crimes Act (Cth)

39 Mrs Klewer brought an information against a Mr Bitmead. He had been her counsellor with the Department of Community Services. She had tried to contact him at work but was advised he was ill. He had, she agreed, asked her not to contact him at home. She, however, did so. The call followed Mrs Klewer learning that her file, which contained mental health information, had been given to a solicitor, a Mr Stidwell who happened to be a lecturer at the university at which Mrs Klewer was studying. It had been the subject of a subpoena in connection with an assault case in which it was alleged that Mrs Klewer's son had assaulted her.

40 There was a dispute as to the conversation. Mrs Klewer alleged that Mr Bitmead had told her to "fuck off". Mr Bitmead denied that he had done so and pleaded not guilty to the charge. As it happens he did not give evidence, at least on that occasion. Mrs Klewer was cross-examined and a version of the conversation put to her. One might think that if the conversation was as long as the version put to Mrs Klewer the parties to it would have spent a considerable time on the phone. Be that as it may, part of the cross-examination secured an admission that the word complained of had been used by Mrs Klewer "once in a blue moon" or "once in a while". However, she said that she found the word offensive. It was, apparently, conceded by Mr Bitmead that he had used the expression complained of.

41 The Magistrate found that Mrs Klewer in the context of the private conversation had not established a prima facie case that use of the expression would give offence to a reasonable person, that is to say on an objective basis. The decision is summarised in the following passage from the transcript:

"So, it's in that context with that test, the objective test, that I've got to turn back to the particular circumstances as outlined in the informant's evidence. And with respect I'm quite satisfied on the test that I am required to adopt that in the circumstances she outlines in her evidence that no prima facie case has been established. Accordingly the information will be dismissed."

Mr Bitmead made no application for payment of his costs.

42 Mrs Klewer appealed to the Supreme Court against the decision by way of a stated case on a question of law. The appeal was heard by Stoddart J, who gave judgment on 19 December 1997. In his Honour's view the evidence given by Mrs Klewer was such as would have been capable of supporting a conviction. His Honour remitted the matter to the Magistrate to be dealt with in accordance with law, ordering Mr Bitmead to pay the costs of the appeal.

43 There was no transcript before me as to what thereafter happened. Despite an adjournment to obtain the transcript none has been forthcoming. Mrs Klewer gave evidence that the matter came back before the Magistrate who then dismissed the prosecution. According to her evidence he did that because Mrs Klewer in her evidence had admitted using the same word at least in her home. The Magistrate found that she should not find it offensive. Mrs Klewer also gave oral evidence that at the outset of the case the Magistrate had disclosed knowing Mr Bitmead and as having some association with him. That does not appear on the transcript of the first day of the hearing which was available.

5. October 1995 - charge of remaining on enclosed land

44 There is little evidence about this matter, which was also heard by the Magistrate. It appears that five of Mrs Klewer's children were staying at a "resort" under the control, Mrs Klewer said from the bar table, of the Department of Community Services. She wished to visit them. A security guard refused her entry. She was subsequently charged with remaining on enclosed land after being asked to leave. She was convicted by the Magistrate.

6. The Judicial Commission of NSW - complaints by Mrs Klewer against the Magistrate

45 Although the evidence is rather sparse, it seems that in July 1995 Mrs Klewer lodged what she described as "an extensive complaint" against the Magistrate with the Judicial Commission of NSW. The actual complaint was not in evidence. On or around 5 August 1997, that is to say when the proceedings under the Social Security Act were to commence and when Mrs Klewer's counsel was seeking to have the Magistrate disqualify himself, Mrs Klewer complained again to the Commission. She wrote that since the time of the earlier complaint the Magistrate's attitude towards her evidence had not changed.

46 It is unclear whether the Commission took any action on any of Mrs Klewer's complaints. It seems that the Commission at some stage told Mrs Klewer that it had lost the correspondence. On 8 February 1997 Mrs Klewer forwarded to the Commission a statutory declaration together with an affidavit dated 31 July 1997 which had apparently been prepared by the barrister who had represented her in the prosecution under the Social Security Act. The correspondence makes it clear that in doing so Mrs Klewer was seeking to enlist the help of the Commission in ensuring that the Magistrate not preside on the prosecution.

Was there an appearance of bias?

47 There is no dispute between the parties as to the appropriate test to be applied. The case is not one where it is alleged that the Magistrate was actually biased. The test to be applied is that discussed by the High Court in a number of cases, including R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 258-263, Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-5, Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 81-2 per Mason CJ and Brennan J, at 101-2 per Gaudron and McHugh JJ and Webb v R [1994] HCA 30; (1994) 181 CLR 41. In all the circumstances was this a case where the parties or the public might entertain a reasonable apprehension that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the issue before him. To the extent that the case was one where Mrs Klewer's credit was involved (fraud was an ingredient of the offence) would a reasonable bystander entertain a reasonable fear that the Magistrate would bring an unfair or prejudiced mind to the inquiry before him because he had in the numerous cases which preceded the present prosecution formed a conclusion about her credit.

48 With respect to the submission to the contrary I think that the answer to these questions is clearly yes. In reaching this conclusion I bear in mind the comments of Mason, Murphy, Brennan, Deane and Dawson JJ in Livesey that there will be matters of degree, particularly where the allegation is one of an appearance of pre-judgment, and that a judge or a magistrate in such a case should not automatically stand aside. However, in my view, the present is a case where the Magistrate should have refrained from sitting and acceded to the application which was made by counsel for Mrs Klewer, that he disqualify himself.

Jurisdiction

49 The issue of jurisdiction is, in the circumstances of the present case, a difficult one. First, it is clear, that the Magistrate is not an "officer of the Commonwealth" so that s 39B of the Judiciary Act 1903, when it refers to remedies of mandamus, prohibition or injunction against such an officer can not be invoked directly against him: R v Murray & Cormie [1916] HCA 58; (1916) 22 CLR 437, Coward v Allen (1983-4) 52 ALR 320 at 325.

50 It is clear that the Officer is an officer of the Commonwealth to whom s 39B can apply. However, it is submitted that prohibition can not lie against her because she fulfilled her function in relation to the relevant proceeding in December 1996 when the information on which the prosecution was based was sworn. Prohibition lies only where there is something left to prohibit: Ex parte Malouf; Re Gee (1943) 43 SR(NSW) 195.

51 While it is true that the Officer's involvement in the prosecution ceased in 1996, the order sought against her is not sought directly in relation to her swearing the information. It is sought against her to prevent her taking any steps consequent upon the conviction, that is to say recovering the money which the Magistrate ordered Mrs Klewer to repay. I see no reason why that could not be treated as a sufficient continuing involvement to support an order of prohibition. Were Mrs Klewer, for example, to default in payment under the order, there seems no reason why an informant could not take proceedings for contempt, even though the obligation to repay is, as in the present case, an obligation in favour of a third party, that is to say, the Commonwealth. I was told from the bar table that, for the moment, no steps are being taken to enforce payment by Mrs Klewer of the amount the Magistrate ordered her to repay. In these circumstances, the making of an order in the nature of prohibition will not be futile. To the contrary, it has indeed a continuing operation. Even if I were wrong on this question, I do not think, for reasons which I will set out, that it matters whether the order of prohibition could properly be made. What does matter is that it was properly applied for by Mrs Klewer, thus founding jurisdiction on this Court.

52 It is submitted, however, for the respondents that what Mrs Klewer really seeks is not an order of prohibition but an order of certiorari, that is to say, an order quashing her conviction. But, it is then said, this Court does not have jurisdiction to grant an order in the nature of certiorari - the relief provided for in s 39B of the Judiciary Act is mandamus, prohibition and injunction, not certiorari. In Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at 415, McHugh J noted that it had not yet been decided whether s 75(v) of the Constitution conferred jurisdiction upon the High Court to issue a writ of certiorari. Immediately after this comment, McHugh J noted that the High Court (and the same is true in this Court) would have jurisdiction to grant certiorari in the course of exercising its "accrued jurisdiction" to deal with the entire matter before it. It is important to set out precisely what his Honour there said at 415:

"... in my opinion, it is clear that the court has no jurisdiction to grant certiorari in a s 75(v) matter otherwise than as an incident of its accrued or expressly conferred jurisdiction. The Constitution confers no express power to grant certiorari. As Brennan CJ has pointed out, because the power to grant certiorari is merely ancillary to the jurisdiction conferred by s 75(v) of the Constitution, it does `not expand the occasions where a writ of mandamus or prohibition would issue' under that paragraph of the Constitution. The ancillary nature of the power to grant certiorari means that the power can be exercised only when it is necessary to effectuate the grant of some other aspect of the court's jurisdiction conferred by or pursuant to ss 75 and 76 of the Constitution. Accordingly, unless the prosecutor can demonstrate that he is entitled to obtain an injunction, mandamus or prohibition against the respondents or one or more of them, the court has no power to grant certiorari quashing the decision of the tribunal."

53 This Court has conferred on it jurisdiction to determine a matter arising under any law made by the Commonwealth Parliament. In the present case jurisdiction is conferred upon this Court under s 39B of the Judiciary Act 1903 to issue writs of mandamus and prohibition to officers of the Commonwealth. It may well be that just as the conferral of jurisdiction on the High Court to issue writs of mandamus and prohibition implied the conferral of an ancillary jurisdiction to grant certiorari (see Pitfield v Franki [1970] HCA 37; (1970) 123 CLR 448 and the cases referred to in Re Jarman; ex parte Cook [1997] HCA 13; (1997) 188 CLR 595 at 604ff per Brennan CJ but see R v Dunphy; ex parte Maynes [1978] HCA 19; (1978) 139 CLR 482, where Barwick CJ questioned the Court's power to order certiorari) so too the conferral of jurisdiction on this Court to issue writs of mandamus and prohibition may imply the conferral on this Court of ancillary jurisdiction to grant certiorari. For an interesting discussion of the jurisdiction to grant a writ of certiorari, see L Katz "Aspects of the High Court's jurisdiction to grant prerogative writs under s 75(iii) and s 75(v) of the Constitution" (1976) 5 TasLR 188.

54 It is no doubt also the case that once the Court has jurisdiction conferred upon it by the Commonwealth Parliament (as here under s 39B of the Judiciary Act 1903) that jurisdiction extends beyond the determination of the whole controversy between the parties of which the federal claim forms part: Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261. Hence, even if s 39B did not carry with it, by inference, jurisdiction in this Court to issue a writ of certiorari, the accrued jurisdiction of this Court would, where the Commonwealth jurisdiction was initially attracted by the application for a writ of prohibition, extend to the grant of certiorari. In principle, the fact that the application for the writ of prohibition was unsuccessful would not prevent the Court from exercising its accrued jurisdiction, so long as so to do would involve the Court determining the whole controversy or matter: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 76 ALR 173. There may be a qualification to this principle where the claim for federal relief is but colourable, but it is not necessary to consider that qualification here: cf New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 131 ALR 559 at 572.

55 It is not at all clear to me what both Brennan CJ and McHugh J meant when they referred to certiorari as being "ancillary". While often prohibition and certiorari will run in tandem in the sense that it will often be the case that the two forms of prerogative writs are applied for at the same time, strictly prohibition will lie only where there is something left to prohibit, whereas certiorari will lie only where something has been done which is to be quashed. Where both writs are sought in the one application it will usually be on the basis that certiorari is sought to quash the decision of a tribunal made in excess of jurisdiction and prohibition is sought to prevent that tribunal from continuing to exceed its jurisdiction. I see no reason in principle why certiorari could not be granted by the Court in exercising its accrued jurisdiction provided that it does so in the resolution of a matter in respect of which jurisdiction is conferred upon it by the Commonwealth Parliament.

56 The question is probably academic in the present case. Here, there is a case where a writ of prohibition should issue against the Officer restraining her from giving effect to the decision of the Magistrate. To the extent that certiorari is ancillary to a writ of prohibition, certiorari should be granted to quash the order of the Magistrate. It is necessary that the order be quashed because it will be appropriate that Mrs Klewer be tried again for the offence which is alleged against her. The outcome of this case is not that Mrs Klewer has been acquitted of that offence, it is merely that the order made by the Magistrate was infected with error by reason of the failure of the Magistrate to disqualify himself.

Discretion

57 For the respondents it is submitted that even if the Court otherwise did have jurisdiction to grant the relief sought by Mrs Klewer it should not, in the exercise of its discretion, do so because relief was available to her by way of an appeal from the Magistrate's decision.

58 There is no doubt that relief by way of prerogative writs is discretionary. In the normal case I would have not acceded to Mrs Klewer's application. However, the present is rather an exceptional case. Mrs Klewer has already made an application to the Supreme Court which was refused for want of jurisdiction. She has chosen to apply to this Court for the relief which she sought, but which was unavailable to her in the Supreme Court. The matter has been fully argued before me. It is not in the interests of justice that there should be yet another proceeding when the present litigation can be put to an end now. A considerable amount of time has passed. No doubt an appeal from the decision of the Magistrate is well out of time. In the special situation which has arisen in this Court, I would not refuse relief on discretionary grounds.

59 In the circumstances, I would order that the Officer be prohibited from giving effect to the order of the Magistrate and that that order be set aside. To the extent that Mrs Klewer may have incurred expenses, the first respondent is ordered to pay them.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated: 28 April 2000

The Applicant appeared in person:
Counsel for the Second Respondent:	R M Henderson
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	29 November 1999
Date of Judgment:	28 April 2000