WENTWORTH v RARES [No 1] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and CLARKE JJA and HoPE AJA 13 December 1990 [1990] NSWCA 184 Priestley JA Miss Wentworth has argued that she should have leave to appeal inregard to the costs order made by Waddell J upon his dismissal of the contempt proceedings that she brought against Mr Rares. The matter has been argued on the footing that notwithstanding the court's decision that it has no jurisdiction to entertain an appeal against the acquittal of Mr Rares in the sense I used earlier today of the contempt charge, that it does have jurisdiction to grant leave and entertain an appeal against the costs order. That question is a difficult one as it seems to the court at the moment and the assumption being made that the power does exist is an assumption only and not a decision on the point. In order to obtain leave against the making of a costs order, a litigant must show that some error of principle or misunderstanding of fact has been made by the trial judge. In the case of an application for leave to appeal in regard to a costs order, as distinct from other kinds of orders of an interlocutory nature, because the matter is regarded as one of practice, the court much more rarely grants leave than in cases not strictly involving practice questions. Further, in leave applications of this kind the court does not usually give reasons or, at most, confines itself to very brief reasons. In the present case we are departing from that last practice to a small extent because there were two matters raised by Miss Wentworth which we think we should briefly indicate our views on and which we think were the principal matters which she relied upon in her application. The first was that she said that the decision in Degmam Pty Ltd (in Liq) v Wright (No 2) (1983) 2 NSWLR 354 showed that an order of the kind that was made in this case could only be made in circumstances such as occurred in that case where there had been a deliberate prolongation of a trial by deliberately false defences and allegations of fact. Miss Wentworth submitted that such was not this case. However, in one part of his reasons Waddell CJ in Eq said: "In my opinion what Mr Rares had said could not reasonably be thought to have any possible influence on the future conduct of the proceedings". That was in the context where the Judge had noted that the statement complained of as being the contempt was both likely to be and in fact was materially contradicted by Miss Wentworth. His Honour also noted that Hodgson J made it clear that what Mr Rares had said would not influence the decision which Hodgson J was to give later that day; since it has been the practice for a long time now that for contempt to be established whatever it is that was done must have had a real prospect of interfering with the course of justice, it appears that Waddell CJ in Eq took the view that because of the circumstances in which the statement was made by Mr Rares there was no chance at all that the future of the litigation then on foot could be influenced by the allegedly contemptuous behaviour. On that footing the 2 UNREPORTED JUDGMENTS view was certainly well open to his Honour that it was unreasonable for any person to have thought that the alleged statement could be held by any judge to be a punishable contempt. That kind of consideration seems to the court to fall within the general area of matters of which Degmam Pty Ltd was one particular instance. It is a different consideration but it goes to the court's view of litigation being unreasonably brought by a particular litigant. The second matter which needs to be mentioned is what was said by the Judge in regard to the time rapidly approaching, in his view, when the Attorney General might usefully consider making application under s84 of the Supreme Court Act to have Miss Wentworth declared a vexatious litigant at least in respect of contempt applications. He immediately followed this by referring to the litigation just concluded before him as being unjustifiable, a remark reflecting the view we have already dealt with in regard to the first point. Miss Wentworth submitted that at the time when that remark was made only two contempt proceedings had been initiated by her and that could not possibly justify a judge in a view that her institution of such proceedings was habitual and persistent. However, there was a little more before his Honour than that: his Honour mentioned that in the course of evidence before him Miss Wentworth had said that she was proposing to take further proceedings against Mr Bartos. In addition to that there was the fact that Miss Wentworth had argued before Kearney J a point concerning the compellability of Young J to give evidence in the proceedings before Waddell J concerning the contempt charge which Waddell J may have thought was an untenable argument in light of the decision of this court in Zanatta v McCleary (1976) 1 NSWLR 230. Without expressing any view whether the court agrees with the observation made by Waddell CJ in Eq, it is proper to say that at the time the remark was made there was material before him upon which it could not be said that he was making any mistake of principle or saying something so inconsistent with the law as then understood as to indicate that he was approaching the question of costs or that he would approach the question of costs otherwise than in accordance with accepted principles. The court is of the view that leave should be refused.