WENTWORTH v THE ESTATE OF WENTWORTH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE JA 4 November 1994 [1994] NSWCA 369 Cole JA Application has been made on _ behalf of the appellant/cross-respondent,Katherine Wentworth, to vacate the hearing date of the appeal in number 40361/1994 which at present is listed for hearing on Wednesday and Thursday of next week, 9 and 10 November 1994. This litigation has along history. There was a s7 application some years ago under the Family Provision Act which resulted in an appeal to this Court and subsequently an unsuccessful application for leave to appeal to the High Court. That was followed by proceedings brought pursuant to s8 seeking an amendment or variation of the orders made in the s7 proceedings. Those proceedings were heard by Santow J early this year and concluded, as I recall, in June and July 1994. There was an application before this Court which was dealt with by me on 10 August 1994, which application was made by both parties, for expedition. The appellant in that application appeared in person. The basis of the application for expedition on the appellant's part was that some degree of finality should be achieved and that there ought to be some certainty in her life. From the respondent estate's point of view the basis of expedition was that the affairs of Mr Wentworth were seriously disrupted and that orders which had been made by the trial judge had had and continued to have a deleterious effect on his personal and business life. It is in those circumstances and having regard to the circumstances that the respondent by its appeal raises significant issues in relation tot he conduct of the trial that I determined that the matter should be given expedition and, indeed, it was given the highest category of expedition. Orders for expedition were made on 10 August. Subsequently, by arrangement with the parties and the court, the dates of 9 and 10 November were fixed. The basis of the application today is that Miss Wentworth will be without counsel on those days. Mr Russo, her solicitor, has given evidence that initially he approached Mr Hall QC who indicated, without accepting the brief, that he probably would do so. Apparently, the brief was left with him for some six weeks before it was indicated that he would not accept the brief unless junior counsel who had appeared in the s8 trial were also briefed. That junior counsel was apparently unwilling to accept a further brief as he had not been paid in respect of the previous proceedings. In those circumstances Mr Hall declined to accept the brief. Thereafter Mr Russo sought to brief a number of counsel but each, after reviewing the volume of material which was thought may be necessary to consider and, apparently, according to Mr Russo, after making an assessment of the merits of the appeal declined to accept the brief. A number of other counsel 2 UNREPORTED JUDGMENTS were sought, it was said some five or six, but each indicated that if the matter involved Miss Wentworth they would require fees to be in place up front. That, perhaps, is unsurprising. Mr Russo's evidence was that in respect of the same five counsel some $350,000 remains owing to various members of the Bar and in respect of the s8 proceedings, although counsel briefed in that matter are not pressing for them, it appears that some further $120,000 of fees remain outstanding. In those circumstances it may not be thought unreasonable that counsel who were offered this brief may consider that the prospects of being paid fees within any reasonable time would not be great. Mr Russo said when giving evidence before me that some counsel said to him that they had families to feed. Ultimately, Mr McInnes was briefed on Thursday 27 October 1994. He, apparently, spent all of the following day, Friday, in conference and in the following week, that is the current week, Miss Wentworth was engaged in litigation before Young J regarding costs of prior proceedings between these parties. On Tuesday and Wednesday she was engaged in proceedings before Master McLaughlin also in relation to costs in respect of prior proceedings between these parties. On Thursday she had the advantage of a conference all day with Mr McInnes. This morning Mr Innes ultimately returned tha brief on the basis that his other commitments would permit him only to prepare the appeal to be brought by Miss Wentworth but not to respond adequately to the appeal lodged on behalf of the estate. The reality is that many counsel are unwilling to accept a brief on behalf of Miss Wentworth because they fear they will not receive payment as is apparent from the evidence of Mr Russo. Mr McInnes has found himself unable adequately to deal with this matter and, accordingly, has returned the brief. It has been put that there may be some prospect of obtaining other counsel in the future but those counsel are not able to adequately prepare the matter or, indeed, attend on the dates fixed for hearing. That is Wednesday and Thursday of next week. It seems to me that in considering this matter, not only does the position of Miss Wentworth have to be considered but also so does the position of the estate and of Mr PFN Wentworth. It has been put by counsel for the estate of Mr Wentworth that there has been a significant obstruction to the life of that defendant. I have some prior knowledge of this matter and have at least glanced at submissions filed on behalf of the estate and Mr Wentworth. On any view there is a significant history of litigation which must have been disruptive to the lives of all parties involved in this, both Miss Wentworth and Mr Wentworth. It seems to me that it is a matter of importance that this matter be dealt with as promptly as the court is able to. It was for that reason in part that I granted expedition now some three months ago. I do not have any confidence at all that if this matter were adjourned to other dates at some time in the future there would not be some future difficulty in obtaining counsel for those dates. There is another factor which is not immaterial. This matter was given expedition at the cost of other litigants not having their cases heard. Two days have been set aside for it. In my view, it is material to have regard to the position and the state of the list. URJ WENTWORTH v THE ESTATE OF WENTWORTH (Cole JA) 3 It is well known that there are a great number of cases awaiting hearing in this court. Special steps are now being taken to try and reduce delay and backlog in this court. That could only happen, save in exceptional circumstances, where dates are fixed for hearing and those dates are adhered to and particularly is that so where both parties seek and are granted the indulgence by this Court of expedition. In those circumstances the application to vacate the hearing dates is dismissed. The applicant, Miss Wentworth is at present subject to a direction flowing from a decision of a direction of Powell JA to file written submissions by today. I extend the time for filling of written submissions on behalf of the appellant/cross-respondent, Katherine Wentworth, to 12 noon on Tuesday next. 8 November 1994. Otherwise, the notice of motion is dismissed with costs.