ROGERS v WENTWORTH SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA, HANDLEY JA and BROWNIE AJA 5 October 1994 [1994] NSWCA 268 Priestley JA. WENTWORTH: We understand from Mr Rogers" solicitors that Mr Rogers will not be appearing today, and nor will his solicitor. PRIESTLEY JA: I imagine you are referring to a letter dated 27 September 1994. That is not completely clear to me, although it seems fairly clear. What I mean is we will have the matter called outside the court. (Matter called three times outside the court: no appearance.) Handley JA. WENTWORTH: I seek to hand up further copies of correspondence between Mr Russo and Khan & MacLean dated 27 September 1994, 28 September 1994, 4 October 1994, and a further letter of 4 October (handed up). Your Honours will note the signatory on the last letter is an employed solicitor. HANDLEY JA: A Young is the junior partner? Priestley JA. WENTWORTH: That is right, the new partner. PRIESTLEY JA: I will have this marked as Exhibit A, a bundle of letters dated 27 September 1994 from Khan & MacLean, a letter of the same date from Khan & MacLean, a letter dated 28 September 1994 from Khan & MacLean, a letter dated 4 October 1994 from Russo & Partners and a letter dated 4 October 1994 from Khan & MacLean. WENTWORTH: Your Honours will note on the letter of 28 September the defendant notes they intend to file a notice of ceasing to act, and we are unaware if that has been done. PRIESTLEY JA: I think the substantial thing is it appears that Mr Rogers is on notice of these proceedings being listed today and he has been called. He is not here. There is no reason why the proceedings should not go forward. WENTWORTH: We would say that the notice of motion which is filed returnable today would also be in the same category. PRIESTLEY JA: When I say the proceedings should go forward, they are the proceedings listed for today. You seek to add to them. I will see what those prospective additions consist of. WENTWORTH: I think it is necessary because of the interlocking of various matters. We think the notice of motion, so far as the court is concerned, should be dealt with today because it would complete the matters. PRIESTLEY JA: We will have a look at it. Handley JA. WENTWORTH: It was filed on 27 September. HANDLEY JA: What relief do you claim in this notice of motion? WENTWORTH: That the cross-claim be dismissed, the cross-claim for malicious prosecution. HANDLEY JA: That is something that would have to be dealt with in the Common Law Division. 2 UNREPORTED JUDGMENTS Priestley JA. Let us have a look at the document first. (Handed up.) WENTWORTH: I seek to put argument to the court. PRIESTLEY JA: Looking at the four substantive requests in the notice of motion, I do not think I run any risk of the other judges disagreeing with the view that this Court cannot entertain 1 today. I will come back to that. Then, I think it follows from that, that 2 is a separate matter. 2 is really a summons requesting an extension of time for leave for filing of an application for leave to appeal. WENTWORTH: If that be necessary, when we are in the midst of an appeal. PRIESTLEY JA: The third one does not seem to me to be necessary in that Mr Rogers has a summons presently before the court and he is not here to support it. In the ordinary event, since it is listed for today and he knows that, the ordinary event would be that it be dismissed. You do not need 3. WENTWORTH: We are asking for costs on a special basis. PRIESTLEY JA: When something is dismissed, then the question of costs arises. I do not see how we could embark upon 4 today, even if you have all the evidence here. WENTWORTH: That is our problem. PRIESTLEY JA: Mr Justice Handley, being more careful in expression than me, in regard to 4 thinks we should make it clear not only that we cannot deal with it today, but that it is not a matter for us to deal with in any event. It is a first instance matter. WENTWORTH: This Court is determining what costs are to be paid. The arrangements that Mr Rogers is entering into are arrangements in order to defeat a judgment. We would say this Court has jurisdiction to grant interlocutory relief on the basis sought. It is in the form of a Mareva injunction. We would understand, from your Honours" judgment, delivered the other day that your Honours would be making an order in my favour for at least half costs. It is clear from the correspondence and from the affidavit of Mr Russo that Mr Rogers has entered into arrangements by which he seeks to divest himself of half his property to his wife, secondly to enter into a mortgage arrangement with his wife over the half which he retains and a deed between his wife and the Legal Aid to give priority for any claims over any remaining property to the Legal Aid Commission, and then to go bankrupt. We either have a situation here where the court, in protecting its own process, does not allow arrangements such as this, which have been entered into since April, so that whatever orders this Court made would be quite otiose. PRIESTLEY JA: Could I suggest this. There is no particular reason for doing the notice of motion before or after the appeals that are listed today, the applications for leave, but since we came on to the Bench intending to deal with the matters that we knew were before us, I suggest we might get on with those first and, when they are completed, whether or not we deliver judgment straight away, we will hear what you have to say in support of the notice of motion. WENTWORTH: One of the orders sought in my appeal is an order in relation to the costs before Maxwell J. Two matters were heard by Maxwell J. We thought the court would be in difficulty in making an order unless it determined what the malicious prosecution cross-claim was. The reason why we brought the matter before the court today is so that this Court — because of matters raised in correspondence, where it is said costs of the Maxwell matter could not be determined by this Court until the malicious prosecution suit. We will be putting URJ ROGERS v WENTWORTH (Priestley JA) 3 to the court there has been a non-prosecution, and there is no intention of prosecuting and your Honours would be free to make the order in relation to the costs of the Maxwell J trial. PRIESTLEY JA: First of all in regard to Mr Rogers" application for leave to appeal, that has been adjourned until today, in effect, part heard, and there is nothing on behalf of Mr Rogers or by Mr Rogers to support his application. What is your submission? WENTWORTH: That no leave to appeal should be granted to Mr Rogers and that his summons should be struck out with costs and I would ask for costs on an indemnity basis. PRIESTLEY JA: On what basis do you seek costs on an indemnity basis? WENTWORTH: That the summons from the outset had no chance of success, that it was based on a contention which was not sustainable and should never have been filed, and wasted the time of the court. PRIESTLEY JA: We will not rule on these things as we go along at least at the moment. We may need to reserve briefly to put our thoughts in order on all the applications you have before us today. WENTWORTH: We would say it is vexatious in that it sought relief quite beyond the relief in relation to the percentages which this Court found and the court, having found against the defendant in relation to that, the defendant has, as it were, thrown up his hands. We say in those circumstances the court is entitled to take the view that the summons should be dismissed, that leave should not be granted, and if leave is not granted, we say that founds the separate costs order sought. The failure of Mr Rogers to appear either in person or by a solicitor or by a solicitor's agent when there is no, as far as we are aware, notice of ceasing to act on the record by his solicitors is a disregard of the system of administration of justice in this State and if he files process and does not appear to support it, that the court should impose a penalty. The plaintiff has had to prepare and appear. We would ask the court to express its concern in that way. PRIESTLEY JA: Moving to your appeal, we have dealt with one issue in the appeal and held you should have had a judgment between $3,000 and $6,000. What further submissions do you wish to make in regard to your appeal? WENTWORTH: The appeal was amended and re-filed on 20 July. That appears from page 44 of the appeal book. I would be seeking any relief in that appeal in so far as the court has not determined it. The relief — if I can go to the orders, page 49. We would say that order 1, the relief that is sought, the court has not determined in my favour. Order 2 is the one about which we have problems in relation to the malicious prosecution. We would submit, under Part 52 rule 24 that the whole of my costs be paid by the defendant for the whole of the proceedings before Maxwell J and jury in 1985 and the whole of the proceedings before Sully J to include the interlocutory proceedings that his Honour conducted in April in determining, as he did, on 8 April, to sever the proceedings. PRIESTLEY JA: What costs order did he make? WENTWORTH: That was reserved. I did have a copy of his Honour" judgment delivered to you yesterday. I refer your Honours to page 24. PRIESTLEY JA: When an order of that kind is made, there is subsequently a trial and there is no reference to the earlier proceedings, the rules provide, don't they, that these costs would be dealt with pursuant to the general order for costs? 4 UNREPORTED JUDGMENTS WENTWORTH: That would be correct. I am just making certain, because there were various other costs orders reserved. If that be the principle, I would ask for the principle to apply. PRIESTLEY JA: That is my memory. Do you happen to know what the rule is?WENTWORTH: Part 52 rule 11 is, follow the event; Part 52 rule 12A (read). I would ask that all costs reserved in these proceedings and in the Maxwell trial, and there were substantial interlocutory costs in relation to that trial as well — PRIESTLEY JA: In one sense you do not need an order. If, for example, you persuaded the court to allow you the full general costs orders that you ask, then those interlocutory costs orders would be embraced by that and you would not want any order otherwise. On the other hand, if you were to lose, in the sense that the court did not order more than half costs in your favour, this rule would mean that you get half costs on these various interlocutory applications, and then you would need an order, so that is what you seek? WENTWORTH: Yes. PRIESTLEY JA: There is a problem in that assuming, and this is not a forecast but it is a possibility, that you do not get the full costs order that you are asking for, we would then wait to consider whether we should order otherwise in regard to each of the interlocutory proceedings where no cost order had been made. I do not think we have before us the details of all those interlocutory matters. WENTWORTH: No you do not. We would have to schedule those for your Honours. That would be something that could be done on paper. PRIESTLEY JA: It might be more efficient, really, to wait and see what costs order we come up with before we deal with the interlocutory matters. WENTWORTH: The severance application was a major application argued by Queen's Counsel. It was successful. As an example, we would ask for full costs. Handley JA. Am I right in thinking an order for costs was made in your favour without strings attached in relation to the first appeal? WENTWORTH: Yes. HANDLEY JA: They have now been taxed? WENTWORTH: No. HANDLEY JA: One thing is clear, we are entitled, and indeed bound, to decide what should be the order for costs of the second trial in relation to your proceedings for assault and battery. You have got an order in your favour at the moment for half costs involving the exercise of a particular discretion. As a result of your success on the first leg of this appeal, you do not need that exercise of discretion but you now will be asking us to exercise another discretion. Apart from other matters in relation to the malicious prosecution case, the judgment that you sent up yesterday from Sully J, page 23, order 3, says (read). I was not aware Sully J had made such an order until I glanced at these orders this morning but, in the absence of a date being fixed by the court for the hearing of the rogers" cross-claim which, as far as I know, has not been done, there is no lack of prosecution for that cross-claim in the period since Sully J made these orders on 8 April. It seems to me at the moment what is required is an application to the Common Law Division — it would not have to be Sully J, I do not believe — to fix a date for trial or to, in some way, fix some date for some purpose — it might be discovery or something — to trigger any right to move. WENTWORTH: I read the affidavit dated 27 September 1994 together with correspondence. At paragraph 9 of that affidavit Mr Russo sets out a conversation with Mr McLean. There had been ongoing discussions about consent to the URJ ROGERS v WENTWORTH (Priestley JA) 5 malicious prosecution claim being dismissed. It says, "Our client will not pursue and will give you no consent.' We would say the clearest intention is expressed — he won't consent to the cross-claim being dismissed, but his client won't pursue it. We say we should not be bound by the refusal of Mr Rogers to apply for a date. HANDLEY JA: I do not mean he is the only person who could get a date. WENTWORTH: I can understand what your Honour is saying. That would, in some way, create a problem I would have thought, for me, if I was to do that. Priestley JA. It seems to me, consistently with what has been said, that there is a live matter in the Common Law Division, namely, the malicious prosecution claim. The claimant has indicated he is not going to go on with it. That indication has no immediate legal effect. There is still a live claim there, and the way to bring it to an end is in that jurisdiction, and you need to make use of orders 3 and 4 that Sully J made previously and, if Mr Rogers adheres to his intention of doing nothing further, I would not have much doubt about what would happen when you get the matter before a judge in the Common Law Division. If he should change his mind, then I do not think he has done anything, as yet, which would preclude him from doing so. WENTWORTH: We say we can go back one step because of the orders the Court of Appeal made in 1986 and 1987 where the court — PRIESTLEY JA: Allowed your appeal? WENTWORTH: Yes, that is reported in 8 NSWLR, page 410, the orders. The situation we would say is this Court, having remitted a matter back to a division, it not having been dealt with in the division, we would say it is an appropriate application to this Court that the court can deal with that matter to remit and determine that; instead of remitting that matter back to the Common Law Division, as the court then constituted did, the matter could be permanently stayed. Wewould say there are intervening events which would recommend themselves to the court to take that particular procedure. We think the situation which arose in the 1986 appeal, remitting the two matters back, was properly dealt with by Sully J in severing the two claims and the reasons, which emerge from the argument that Queen's Counsel put to the court — were really order 4 was made for this reason. The judge was expressing the view that really, depending upon the outcome of the claim of the applicant, that the cross-claim should not be allowed to proceed until such time as proper arguments had been put to a court that there was some basis for it. We would say the basis for any claim for malicious prosecution, by the determination of the jury on 22 June, has now gone. That was the basis of order 4, and that was the reason for making that order, so that, before the cross-claim could be set down, his Honour was requiring that argument be put to the court as to why the malicious prosecution should or should not proceed, foreshadowing if the action for damages were successful, that that certainly would be one reason that the court would take into account in either allowing the cross-claim to proceed, or not. His Honour, when he made these orders, had no views as to what the jury would do. He did have solid views, which he sets out in his judgment — particularly page 14 — (read). That was the reason he made the order. PRIESTLEY JA: I think we follow that. I want to keep an orderly note of what is going on. I will have recorded that the affidavit of Mr Russo dated 27 September 1994 is read by Miss Wentworth in support of her notice of motion dated and filed 27 September 1994, and there is a clear link between some of the matters mentioned in the notice of motion and some of the matters dealt with in 6 UNREPORTED JUDGMENTS your notice of appeal, but let us return to going through the matters in your notice of appeal, and making sure we have got your argument on that evidence. WENTWORTH: Perhaps I should return, then, to the orders at page 50. Those are the orders, 1 and 2, that I say should raise half costs to full costs. Order 4, we would say that that order should indeed be made in view of the fact the appellant/ respondent is simply not here. Your Honours have dealt with order 5, and that order is now lost to me. Brownie AJA. We have simply said the judgment is for more than $3,000. WENTWORTH: I think your Honours went further than that and specified, as to Part 52 rule 24, in so far as it applied to matters in the Common Law Division and Commercial Division, it would not be considered to apply. I am sorry to have lost that point because I thought it was a good one. Part 52 rule 24(1)(d) (read). BROWNIE AJA: I am sorry, I see that. Priestley JA. We did rule against you on that argument. WENTWORTH: 5, I cannot now get. Alternatively to order 5, in accordance with rule 24B(2), (3) and (5) should not apply in respect of the proceedings. If I take your Honours to rule 24B(read). I do have case law that says that is not a preclusion in relation to the fact you must make that application at the commencement of proceedings. You can make it at any time. PRIESTLEY JA: The rule within which your judgment falls now is one which says you shall get half of the whole amount, and subrule 4 says, in a case to which 3 applies, if it appears to the court (read). You are relying on 24B in addition to that subrule 4, are you? WENTWORTH: Yes. PRIESTLEY JA: I take it you are relying on subrule 4? WENTWORTH: Yes. Order 7 that we seek is in relation to the taxation or assessment of costs. Normally, under Part 52 rule 9A, the costs would be taxed and we would ask that the costs be sent with expedition to an assessor. The problem — and there is an intermediate problem with the state of costs in this Court because of the new Act — is, if costs were incurred prior to coming into force of the new sections, they are still the subject of taxation. If they are made after 1 July, then they go to an assessor. Handley JA. Made or incurred? WENTWORTH: Incurred. If the orders are made prior to 1 July and incurred, they go to taxation. If costs are incurred prior to 1 July, orders made after, they still go to taxation and the delay there is 15 months. If they relate to matters after 1 July and orders made after 1 July, they go to an assessor. Priestley JA. The new regime is wholly prospective. Is there any rule saying the court may order that what should be taxed under the old system may be under the new system? Handley JA. Assessed. WENTWORTH: We would say the court has power to order that under section 23 and we have a precedent from an order of Santow J in relation to a section 8 matter, which is coming before this Court soon. Priestley JA. Did he give reasons for making the order? Did he explain what power he was exercising? URJ ROGERS v WENTWORTH (Priestley JA) 7 WENTWORTH: I do not think so, is my recollection. I do not think he was referring to any particular rule, or power. I think it was more a matter of justice and I think part of that was based on the fact that the last taxation in that matter was still proceeding after 92 days of hearing before a taxing Master. That is causing me grave hardship. PRIESTLEY JA: Your argument is there is a general power of the court under section 23, and there is a precedent for it having been done, but you are not in a position to refer us to any particular head of power to do it)WENTWORTH: Not at the moment. If I find a head of power, could I give you that reference. There may be some reference in the interlocutory speeches in changes for the rules. I am not aware at the moment. Mr Russo points out to me that the delay which has been occasioned in the estate matter, in the taxation of costs, has been as a result of manipulation of the court process by the defendant. Evidence was given in those proceedings that Mr Wentworth had paid Mr Rogers" costs in these proceedings and we anticipate the same performance in these proceedings if this matter is allowed to go to taxation, and we would anticipate that Mr Wentworth will fund those applications. We thought perhaps he would be here today. PRIESTLEY JA: That is your full argument in regard to the head of relief 7. Coming down to 8, is there a rule that relates to that? WENTWORTH: Part 52 rule 24(5) — 5B (read). We would say that is wide enough to cover whether it be half, three-quarters or whole costs. We seek to put submissions in relation to that. PRIESTLEY JA: That request is made in regard to the trial before Maxwell J? WENTWORTH: Yes. PRIESTLEY JA: That request applies to all the costs orders in respect of which you are asking us to make orders? WENTWORTH: Yes. PRIESTLEY JA: I think we ought understand it in a general way. I think we should ask what material, in particular, do you rely on in support of that order? WENTWORTH: Could I deal with the matter in this way. It seems to me that the earlier orders are matters of law and I would seek to put short submissions as to case law in respect of those and deal with those. Once those are dealt with, it seems to me that the other matters may be easier to clarify. Handley JA. I see that the dates in 24.5 are not the same as the dates in 24.3. WENTWORTH: The amounts are different too. HANDLEY JA: Your case, in the events that have happened, falls within 24(5)B — that is the time brackets? WENTWORTH: Yes. HANDLEY JA: You did not recover more than $7,500. WENTWORTH: Normally under that rule we would say, unless there is a special order, costs of only one counsel would be allowed. HANDLEY JA: Speaking for myself, it seems to me — I would at the moment, without having heard you, think you ought to get costs of two counsel before Maxwell J because there was the cross-claim there, but it does not follow from that that you ought to get the costs of two counsel before Sully J. WENTWORTH: That raises a further problem. The court might decide that it should treat the costs of the two parties differently. Is that a preliminary matter on which the court feels it should rule? Priestley JA. Well, I do not think so. 8 UNREPORTED JUDGMENTS WENTWORTH: Alternatively, do your Honours want me to argue each of the trials separately? PRIESTLEY JA: It may be that we will consult in regard to one thing after we hear you on it, and this comes up under order 2. Order 2 really raises two separate matters. One is whether we should order that your costs be greater than half in relation to Sully J's order. The other raises the question of the first trial's costs and I think we are tentatively of the view that before the order of the court that the costs of the first trial abide the result of the second trial can be implemented, both aspects of what comprised the first trial must be completed. 1 is completed in the necessary sense, and the other one, in the way I mentioned before in my opinion, is alive, and that is the malicious prosecution claim. So that claim needs to be brought to an end, as indeed you recognised in your first request in your notice of motion. Again tentatively, and we will hear you, I think the court is of the view that that must be done at first instance, not here. It really may be best all round if you put your submissions in support of your various orders that you seek as fully as you wish. Because it is rather complicated, it seems to me you may be doing best by resources of time if we reserve and then deliver our decision on those and then, if there is anything left to be done after that, you would just have to do it. Unfortunately it is not a process that can be simplified in the way you would like to simplify it. Ican understand why you would like this Court to resolve all the matters outstanding. The best thing is probably to hear you in full, then give our decisions on the various matters that arise as quickly as possible. WENTWORTH: I realise the difficulty in convening the Bench. That was the reason we sought to bring the matters together today and I will seek to persuade your Honours that this is still a reasonable process. The simplest way of dealing with this situation is, I will seek to put submissions as to law in relation to the principles which I say should apply to the application of Part 52 rule 24(4) and (4)(a), and they are, briefly, these. Having regard to the determination of Sully J — if your Honours could perhaps go to his Honour's judgment of 24 June in relation to these costs and that is commencing at page 20 of the appeal book, at page 25 his Honour states -PRIESTLEY JA: These submissions really deal with orders 2 and 3? WENTWORTH: Yes, these are the orders that I say should raise half costs to full costs. His Honour notes that the plaintiff had reasonable grounds at the time she commenced her claim for expecting she would recover an amount in excess of $3,000. That finding having already been made, we say although he made that finding in respect of the way in which he applied rule 2A, we would say it is a finding that this Court could confidently adopt and should adopt in accordance with the principles set out in Minehan 1870 SCR 227. Handley JA. Don't you need a finding that you had reasonable grounds for thinking you would get more than $6,000? WENTWORTH: No. HANDLEY JA: Section 24(3)(c) in terms of costs is the relevant rule. Where a plaintiff recovers between $3,000 and $6,000 prima facie — I am using the words loosely — only half. When you go to (4) the question is whether the plaintiff had sufficient reason for commencing and continuing. (4)(a) (read). Isn't that the amount prescribed by the sub-rule, $6,000? WENTWORTH: The usual way of dealing with that is to take the amount which is in between the two amounts set out in the sub-rule. In either event it does not affect the matter that, on a strict reading, the amount prescribed by the URJ ROGERS v WENTWORTH (Brownie AJA) 9 sub-rule is the amount of more than $3,000 but not more than $6,000 and, on a literal reading of the rule, that is the prescription within the sub-rule as to the amount. Priestley JA. To be in excess of it. You would certainly be in excess of it if you were in excess of the larger figure? WENTWORTH: I understand what your Honour is saying. I withdraw the submission I have just made. I think that is probably correct. Taking the total of the prescription of the amount we would say, whether the amount in fact one has to be in excess of is $3,000 or $6,000, is on the principle which I have advanced, relevant. PRIESTLEY JA: 4 and 4(a) between them seem to accomplish this, that if you can bring yourself within (4)(a) then that is sufficient to ground the exercise of the discretion, but if you do not, then you may still show some other reason under 4. WENTWORTH: Yes. PRIESTLEY JA: So it gives you two strings to the bow. WENTWORTH: I think that is probably correct. We would say the qualification in (4)(a) introduced specifically in relation to a judgment of this Court, Palmer, and the court had problems with the expectations of the plaintiff, and that was then cured by this introduction of the rules (2)(a) and (4)(a). Minehan originally set out that you had to have a just expectation of a larger sum, and being entitled to that larger sum. That has notbeen replicated in any rules or any further cases, and is no longer good law. The real qualification is either that you have a reasonable expectation of getting more than the prescribed amount, between $3,000 and $6,000, or, alternatively, that there are some other reasons. The submissions will be in accordance with the case law that this was a test case, it was a matter which had not, in fact as far as we know, been tested in the courts of this State before, or in England, America, Ireland, Singapore. Handley JA. What is the issue in the test case? WENTWORTH: Damages for rape within marriage. We understand there may be a case in Texas but we have not been able to track it down. Brownie AJA. What argument can there be against the plaintiff if the jury finds there is assault which includes rape? WENTWORTH: It went back to the proposition which was incorporated into the judicial law in this State, the amendments to the Crimes Act, that it was not possible for a man to rape his wife. When the assault is of a particular nature and in a particular way. There being a principle of criminal law a man could not rape his wife, that was the correct principle, that a woman could not claim damages for the same thing. It was a test case. It needed to be established. The Crimes Act had been amended at the time this application was filed in 81 to include section 61A, that is, sexual assault legislation, which clarified the position. An application for damages for marital rape, as far as I am aware and been able to ascertain, has not been the subject of an application before the court in any of the English-speaking countries that we have ben able to look at, although there may be a Texan case. That is a primary reason for bringing the proceedings in this Court in that it is appropriate for this Court to pronounce on a new principle, on whether there is a process available to women in this State in relation to damages for sexual assault. 10 UNREPORTED JUDGMENTS Handley JA. This point does not appear on the pleadings. That does not mean it could not have been raised at the trial. Was this point raised before Maxwell J — whether, as a matter of civil law so much of your statement of claim as alleged, what I will call, normal penetration was not sustainable in law in view of the marital relationship which existed at the time? WENTWORTH: There is a problem when you say 'normal penetration'. Anal would also have been excluded to a certain extent. The answer to your question is — I can't remember. I can look at the transcript and see. My recollection is the matters were raised in committal proceedings. These civil proceedings were settled by Michael McHugh and he and I argued about the availability of this claim, before he agreed it could go forward as a test case. He was my counsel in the criminal proceedings at the time I filed the civil proceedings. He was the advising counsel in relation to the settling of the civil proceedings. It is therefore, Iwould contend, at the time these proceedings were filed — we will have to go back in time to look at what was happening — there was an acknowledgment amongst the legal profession that the real law was, until the introduction of the sexual legislation, that a man could not rape his wife. HANDLEY JA: You know the High Court decision from South Australia probably better than I do. This was only one of the allegations of assault and battery, in paragraph 1 of your statement of claim. I do not think the common law has said a husband had the right to do the other things asserted there, apart from this possible question we are now discussing. WENTWORTH: Penetration of a vagina with a dildo may, or may not, have been a case. HANDLEY JA: I cannot believe that judges of the Victorian era would have thought there was consent. WENTWORTH: I refer your Honour to The Queen v Clarence. There is not very much difference between that and a stick. HANDLEY JA: In The Queen v Clarence he was acquitted of transmitting a sexual disease. WENTWORTH: That has been the basis for all of the bad law which existed in England and this country for a long time. Back in the 1600's a man who had raped his wife with the assistance of his servant was in fact, at his request, beheaded rather than hung after being tried by a jury of 24. Priestley JA. I notice in the head-note of Fairfax v Palmer the court said that one of the factors relevant to the exercise of discretion to go beyond the half costs was the existence of complex questions of law and fact. It may be, to speak of a test case is really to speak of a case in which some complex and difficult issue — or maybe difficult — in the light of the existing law will be raised. WENTWORTH: We will say it was a difficult issue, not only in law, but also for the jury in fact. The jury come to the court as people in the community with their views of whether these matters were such as would found in damages. There are all the different problems that were associated with this trial. The fact it was the first trial of its kind in relation to these sorts of damages and, twelve years later, it still appears in this State to be the first of its kind and that makes it a case in a very special category that would only be appropriate for it to be defined by a superior court so it becomes good law for this State. There can be no question now in this State that this sort of relief is not available. URJ ROGERS v WENTWORTH (Priestley JA) 11 Handley JA. Was this 'defence' based on matrimonial relationship raised before Sully J? WENTWORTH: No, because there was a straight denial of sexual assault or anything else taking place. HANDLEY JA: The defence that is in the appeal book, page 3, is a simple denial. It does not even appear from the pleadings, except perhaps by the references in your statement of claim to 'the former matrimonial home' that on 21 January 1977 there was a marital relationship between you and the defendant. It seems to me that Mr Rogers may never have taken this point. I understand what you tell us about Mr McHugh raising this difficulty with you in relation to, what I will call, non-deviant rape. That, in any event, was only one of six or seven allegations. It does not seem that Mr Rogers ever, in legal terms, confessed and avoided — you understand in pleading you can confess and avoid, you can say —I did the assault but I was entitled to do it because I was married to the victim. He does not seem to have put on, directly or as an alternative, a defence that confessed the assault, or part of the assault, and avoided it by asserting, what I will call, marital privilege. WENTWORTH: It never arose because he denies any event happened in the text of his pleading because there was a denial that there was in fact any event. The question simply does not arise. HANDLEY JA: Yes. Priestley JA. I think it would arise because if you were making the point when your counsel was addressing the jury, he would be asking the jury to accept your version of events — my client is entitled to damages, damages for this aspect of the affair — and he could not be prevented from saying that. If he did, it would be the occasion for an argument whether the jury were entitled to give damages on that aspect of the matter. WENTWORTH: That never arose. PRIESTLEY JA: You gave us the summing-up last time? WENTWORTH: Yes. PRIESTLEY JA: We can see from the summing-up what was left to the jury. WENTWORTH: That question did not arise. There was no argument to his Honour and no submissions to the jury to that effect. As far as my recollection goes — I would like to check this — I do not think there was any argument before Maxwell J because introduced into the proceedings were documents relevant to a divorce proceeding which followed, there were documents relating to the Family Court giving injunctive relief to me immediately after this happened in fairly stringent terms in that Mr Rogers was not to further molest or assault me or approach me or approach the marital premises and similarly in relation to the children. WENTWORTH: So it was extremely stringent relief that the family law court gave. That was in evidence before the jury so the jury at all times was aware that this was a domestic relationship, this was a marital relationship. There was no question in the jury's mind and no argument by Mr Rogers at all because the question did not arise because his simple denial was nothing happened. PRIESTLEY JA: Turning to orders two and three are there any further submissions you wish to make in regard to those? WENTWORTH: Yes, very briefly. The orders reflect the grounds to a certain extent. Do your Honours wish me to take you through those grounds? PRIESTLEY JA; I think it is sufficient if you put your argument in relation to the orders. 12 UNREPORTED JUDGMENTS WENTWORTH: Your Honours, in relation to Fairfax v Palmer, in that particular case the whole of the costs were awarded and there is a wide discretion in the court to do that and some of the principles which are set out in Fairfax. v Palmer I would adopt. PRIESTLEY JA: That is referred to in the notes as Rules, Supreme Court Practice at page 3130 which mentions what you said before, that it was apparently in response to Fairfax v Palmer the new rule was introduced. WENTWORTH: Yes. That comes out at page 300, about point C. The next point which I would raise in respect of this is that the verdict of the jury can be vindication and that is another matter that the court should take into account in relation to the considerations of A. The amount which the jury has awarded is indeed small, but the verdict of the jury I would say vindicates the claims that I had made and made consistently since 1977 against Mr Rogers. And there is no necessary mathematical correlation between the gravity in this case and the defamation. The situation I would say is similar to that, in that this court should not view the small amount of damages which was awarded as being in any way demonstrative of any triviality of the events charged, but should be looked at in a different light, that the jury necessarily was trying to determine matters many years down the track, and the most important factor that they determined was the fact that they determined, as to the whole of the jury, liability. I would seek to tender, it is on the court file, the questions for the jury which were posed by his Honour Mr Justice Sully in respect of this. They are handwritten questions. PRIESTLEY JA: Were there many of them? WENTWORTH: No, just one page. They were marked and left with the file. Basically what his Honour asked the jury is this. "Could you please assist the court by (1) do you think that you would be able to reach unanimous agreement upon (a) the question of liability dealt with in the third section of the summing up, (b) the question of damages in the fourth section of the summing up. (2) If the answer to (a) is no ... (reads) ... on the question of damages. Now what the jury answered in response to this question, do you think you would be able to reach unanimous agreement upon the question of liability, the answer is yes, and can you reach unanimous agreement as to the question of damages, the answer is no. The third question says, 'See below'. I cannot read what is 'see below'. PRIESTLEY JA: Could you hand up the document? WENTWORTH: The jury's verdict was a majority verdict as to damages and unanimous verdict as to liability. PRIESTLEY JA: You say there is a further question that has not come out? WENTWORTH: If your Honour looks down the left hand side of the sheet, those are the answers and you see 'see below' and I cannot read that. What happened your Honour was the jury, having been asked those questions, the Judge got them back in and the jury said they wanted guidance as to damages because they could not agree at that stage, and the question then arose as to what they should be told, and his Honour said he could not really tell them very much at all. Traise that because it emerges this jury did not know two things which the case law says they should have known. They did not know they only had a limited amount of time which they could consider their verdict, so by the time they went URJ ROGERS v WENTWORTH (Handley JA) 13 back out at quarter past the hour, they had only until twenty five to the following hour to come back in with a verdict as to damages, which his Honour declined to tell them about so they deliberated in an afternoon, and then they were sent home. At the end of the four hours he declined to tell them about that. Both the counsel asked the judge to come back on the bench and they asked him to come back on the bench, by the time he directed them they had until twenty five to one to determine damages. PRIESTLEY JA: This would be in the transcript. WENTWORTH: Yes. We are on Wednesday 22 June. "The Jury went out twenty five to three yesterday (reads).' PRIESTLEY JA: All the material you are referring us to now occurred on 22 June? WENTWORTH: Yes. PRIESTLEY JA: Within the court papers there will be a transcript for that day. WENTWORTH: Yes, if the court had that it would assist. Handley JA. I take it his Honour's questions about the majority were the questions he left with them at five past twelve on the Wednesday. WENTWORTH: Yes. HANDLEY JA: Presumably he had not left those questions with them the previous day. WENTWORTH: He gave them these — I think your Honour is correct. It is at page 88 of the transcript in relation to the questions, so the questions went to the jury on 22 June early in the morning after both counsel had asked the Judge to draw the jury's attention to the four hour rule and tell them about the six hour rule and page 88 he says that he is sending them out questions. So your Honour, that does occur in fact after the four hours has elapsed, the four to six hours has come up, there is a short adjournment, again the jury is out and the jury comes back in. (Reads from transcript). Is it possible to seek some guidance on the amount of damages'. The jury was then brought back in at 11.45 and that was within the three quarters of an hour of the six hour time limit, so he asked them, in particular, 'What would you like to know', and the foreman says, 'We would like to know ... permit me to do that'. The jury then retired at 11.50 to continue considering their verdict. Mr McAlary then addressed his Honour and said, 'It would be appropriate for your Honour to point out to the jury ... so told', and Mr Milne disagrees with that and then there is various argument and his Honour then says, 'I intend to wait until twenty five to one ... achieve that'. So right up to this the jury is still under the impression it has come to a unanimous verdict as to liability, and it is under the impression it has to come to a unanimous verdict in relation to damages. HANDLEY JA: Wasn't it unanimous on damages? WENTWORTH: Not so far as we know. HANDLEY JA: His Honour says at page 95, "Ladies and gentlemen ... A. Yes'. WENTWORTH: I understand that but they had been given a very specific direction that they could reach a majority verdict. HANDLEY JA: They were told that but it seems to me they reached it, having been told they could reach a majority verdict, in the end they reached a unanimous verdict on damages. 14 UNREPORTED JUDGMENTS WENTWORTH; Your Honour, that may well be the case but it seems to me to be quite equivocal because of the sequence of events. HANDLEY JA; The Judge's question 'Is that the verdict of you all' and the shorthand writer has recorded, 'Yes'. WENTWORTH: I understand that, your Honour. That follows the question, "Madam Foreman, has the jury agreed upon a verdict? Yes we have ... is that the verdict of you all? Yes. ... $2,000'. It does seem to me to be slightly equivocal. Priestley JA. What is the point you make out of this? WENTWORTH: The only reason I am raising these matters, the jury at no stage was advised in accordance with the principles set out in Palmer if they reached a certain verdict, a cost penalty would arise. Handley JA. A jury in a criminal case is not told what the punishment would be. WENTWORTH: That is a little different. Priestley JA. You say Palmer raises this? WENTWORTH; I think it is Palmer. Mr Justice Samuels at page 309 says, 'It was suggested ... honestly thought', etc. His Honour Mr Justice Kirby says he thinks it is appropriate the jury in fact be told that there is a problem. Brownie AJA. Page 307. WENTWORTH: Yes, 306 and 307, starting between F and G. The matter of vindication is raised and it is possible the jury here — I am sorry, it is 307. 'It is at least arguable ... in the present case'. Handley JA. What about the third member of the court? WENTWORTH: Yes, Mr Justice Glass just agrees with Mr Justice Kirby. Priestley JA. It was a rather guarded agreement. His Honour was specifically not agreeing with everything that the President was saying. He does not make it particularly clear what his reservation extended to. WENTWORTH: It is difficult within three and a half lines to find out. PRIESTLEY JA: As a rule juries ought to be instructed about the costs consequences of particular sizes of verdicts. WENTWORTH, I simply have to read it when the President makes a statement such that — it would be difficult for counsel or a litigant to cavil with that. In the simple terms of reading the judgment, one would have to say there must be a foundation for saying juries should at least know the rules. Both senior counsel kept telling his Honour it was important the jury understand the four hour rule and the six hour rules. PRIESTLEY JA; What about this particular point? Did your counsel ask the Judge to direct the jury in accordance with the rules about the amounts of verdicts and the costs consequence? WENTWORTH: Not at all. The matter was not raised by either counsel at any time, your Honour. Handley JA. The practice of the Common Law Division as far as I might know about it, has not followed the view of Justice Kirby but has always followed the view expressed by Justice Samuels. WENTWORTH: That may well be the case. I do not know what the general practice is and I cannot find any other judgment that makes any sense about it. URJ ROGERS v WENTWORTH (Handley JA) 15 Priestley JA. I will have the documents marked as exhibits. It is not appropriate to call them exhibits but we will have marked as exhibit B the questions framed by Mr Justice Sully, one, two and three which have been found in the papers, and a photostat of the papers which have writing on them, what appears to be the foreman's answers to the questions, together with the request for guidance on the amount of damages, and additionally as exhibit C we will have marked the transcript of what was recorded at the trial on 22 June 1994. WENTWORTH: I was going to raise the principle of vindication which clearly arises, and I would say the vindication to my reputation which emerges from the jury's verdict has given me, and I am entitled to say, much more satisfaction than money for the following reasons which are a matter of, I would have thought, notoriety in the community. I have been before the courts for a long period seeking to reverse determinations which were made in the Maxwell trial and as a result of the Maxwell trial and the Ward trial, I would say the quite gross miscarriages of justice which the Court of Appeal on 6 March 1987 adverted to at least in part in its determination to grant the appeal have now been the subject of vindication before a jury in a way which could not be compensated by money. The claim that was made as to marital rape as I say was a test case, and the way in which the trials were conducted by the defendant's counsel resulted in, I would say, the statement which his Honour Mr Justice Sully makes and categorises them and I think, if your Honours would go to the judgment of 8 April at page 10, the judge is going through some of the statements which were made by Alec Shand for Mr Rogers before a jury at paragraph 15, and the statement that his Honour makes at the bottom of the page, "The effects of these lines of cross examination ... revulsion'. His Honour goes on to say, "The point is now taken ... of the respondent'. His Honour then goes on to the effects of that acquittal in the reference I previously read at page 14. Because of the way in which the trials were conducted, I have indeed suffered at the hands of the media and indeed it might well be said in the attitude of the community and of the courts, a loss of reputation which could not be compensated forin money. The overflow of that is seen presently in a refusal to admit me as a barrister. Those matters raised by the Bar Counsel being virtually completely contained in matters arising out of this litigation. Therefore the vindication before the jury is very similar to that which their Honours advert to in Fairfax v Palmer. PRIESTLEY JA: I am not indicating any view I want you to realise, and I am sure you do realise, the vindication approach is usually one taken in regard to defamation cases so the court will have to consider whether that approach is equally applicable to your case. WENTWORTH: I would say that is very much an approach the court should look at in my case, internally within the conduct of the trials the result of them was to set it out to insinuate into the minds of the jury and the community at large that I was a person of bad reputation who was making allegations which were, in some way, not sustainable and were unfounded and that as a result of the statements that were made by counsel to the court that I was — to repeat some of them — Handley JA. Did your counsel ask for full costs before Justice Sully? WENTWORTH: Yes your Honour. 16 UNREPORTED JUDGMENTS HANDLEY JA: And you got half costs? WENTWORTH: Yes. HANDLEY JA; His Honour thought that he was loosely doing you a favour by giving you half costs. WENTWORTH: Yes. HANDLEY JA: But I take it Mr McAlary would have put before his Honour these matters you are now referring us to as a reason for giving you all your costs. WENTWORTH: Well, your Honour, not entirely. The court rose just before lunch and came back at two o'clock for counsel to argue the matter of costs. Mr Milne had asked for costs for the defendant and had also raised the situation of part two rule 24. The court rose for lunch and then returned to argue the matter. My counsel had not anticipated that the situation of part 2 rule 24 would arise. I think Mr McAlary spent most of his time over the lunch hour looking at the question of percentages so that the question as to costs in relation to the application, all these matters, whilst certainly they are referred to by Mr McAlary and perhaps it might be appropriate to mark that section of the transcript. HANDLEY JA: His Honour indicates at page 28 that he thought that while thinking you should get half, he concluded that you should not, in his view, get any more. WENTWORTH; Yes your Honour. I suppose the first matter that I have to raise and convince the court of is that the Judge took into account matters in the exercise of his discretion, matters which I would say are not what he should have taken into account and therefore this court can look at the matter afresh. The matters that Mr McAlary raised before his Honour commence at page 103 of the transcript. Priestley JA. They are in the appeal papers. Page 103 is. WENTWORTH: The first question that was addressed at pages 10 and 11 of the appeal papers is the threashhold position as to whether subsection 3 is to apply to the question of interest. At page 105 his Honour is talking about circulatory of the way the rules come into force. 'All you do ... exercised', and he then goes on to set out the matters of principle as he sees it. 'Your Honours asked me the question does Mr McAlary make submissions in relation to that, and Mr McAlary's submissions seem to be more to the effect of the exercise of the discretion which has to take place in relation to that. Now your Honours, the Judge again at page 14.4 says, "There was sufficient reason to commence in this court ... one half', etc. There is then further argument by Mr McAlary and then that is the argument. Mr Milne then makes some submissions at page 15 and 16 and your Honours, the submissions made by Mr McAlary at 17 and 18 really go to the question of percentages. So there is very little argument by counsel in relation to what in fact should happen under 2A and 4A. Handley JA. What his Honour says at page 28 of the appeal book is the first of the foregoing considerations which seem to be the matters numbered one, two and three on pages 27 and 28. WENTWORTH: What his Honour has done, to trigger subrule three, he has already made a finding in relation to 2A that there was a reasonable reason for commencing the proceedings and expectation. That starts at 23 of the appeal book. Having made that determination, the bottom of page 23, he then explains URJ ROGERS v WENTWORTH (Handley JA) 17 what he means at 24, that is put in the negative and it has been criticised by the defendant as not being a positive determination. What his Honour says is, 'I am not prepared to say ... $3000'. That picks up the point your Honours raised. Your Honour said he should have considered in excess of $6,000. His Honour then makes the statement he would cavil with. This is the statement, 'It cannot be denied ... subjected by the defendant'. Perhaps I can remind your Honours of the principles which we say should apply in relation to that. It is a case in the High Court, McDonald and East v McGregor, 1936 56 CLR page 53. His Honour Mr Justice Dixon says, 'It was rejected ... judgment'. HANDLEY JA; Was that a case where the jury verdict was attacked? WENTWORTH: Yes, and what the ratio of the case basically is on appeal the court of appeal is in no better position than the Judge as first instance, and the Judge at first instance cannot reverse the finding of the jury. That is basically what the case sets out. At page 54 the court below, ' ... cannot go behind the verdict of findings', and then gives some various cases. In this case the jury has answered a number of questions, and this is page 54.6 'At the conclusion of the trial ... on the verdict'. Page 56.8, 'The jury's convictions ... plaintiff was entitled', and over at 57, "No doubt ... or to add to them'. So your Honours, that principle, I have been reading from page 543 to page 57, the principle I would say that applies is Mr Justice Sully was neither entitled to make the statement he did at page 24 of the appeal book, nor was he entitled to have regard to that and in doing that he has had regard to a matter he is not entitled to have regard to in the exercise of his discretion, and I would say that ends jurisdiction in this court to interfere with the jurisdiction. You have exhibit B and the matters set out in exhibit C. That binds this court as to what is in fact the determination and of the reasons or the going behind of the judgment, I would submit, is not a function this court can perform and his Honour Mr Justice Sully is bound by the determination of the High Court. That case is still good law and it is not for persons not involved within the jury decision to try and determine what the jury has determined or the why's and wherefore and the hows. So the responses of the jury stand alone, I would submit. There is a unanimous verdict as to liability and as to damages and that is as far as one can go. Your Honours, we then have to, having the finding as to the 'plaintiff on reasonable grounds ... excess of', and whether that is three thousand, six thousand, doesn't matter. This is page 24. His Honour, having made that finding and reiterating it at page 25, 'If, as I have already found ... in some way in the present case'. His Honour, I would submit, gets it right up until there and then gets it wrong. Having made that finding it seems to me that his Honour has automatically triggered 4A, and if he has triggered 4A in the terms in which it is set out in order to cure Fairfax v Palmer, 'It shall be taken ... by the subrule'. That is the reason for commencing or continuing proceedings in the court. If his Honour has made a correct finding as to that they your Honours, we would say, you cannot make it as to 2A and not qualify it and say it does not apply to 4A. The two sections are precisely similar. When you come to 2A and 4A, your Honours, they are precisely the same wording and we submit his Honour having made a finding under 2A must apply that under 4A and cannot come to some sort of different view for some reason which has not emerged. 18 UNREPORTED JUDGMENTS His Honour then goes off on a side wing at 26 in relation to particular policy which did not, with great respect, emerge from the legislation. His Honour seems to be reiterating what is in the commentary note practice and not making, we would say, a proper assessment of the way in which the rules should indeed operate. The rule 4A, if that has been found positively by 2A, we would say is the qualification for 4 which is the discretion which you must exercise in apportioning a greater amount. That still does not get me home on the whole of the costs but I would say it at least gets me home on an amount in excess of the amount prescribed by the subrule. That is in excess of half costs. The reason that I would say I get home on the rest of the matter emerges from the principles in some of the cases. The vindication point I have already raised. The test case I have already raised and I would say those are the matters which under 4 constitute sufficient reason for commencing in the court, leaving aside the qualification of 4A. Your Honours would have to be convinced this is a strong case for commencing in the court in order to grant full costs. The next case that relates to this I would like to take you to is Toomey v John Fairfax. Toomey is another defamation case. This is a barrister of the court who said he had been defamed by John Fairfax. At page 1 his Honour sets out the principle, he is not entitled ... Supreme Court.' This is a 1985 case. HANDLEY JA: It precedes Palmer and is picked up in Palmer. WENTWORTH: Yes. I just wanted to give you a couple of the matters not picked up in Palmer. In this case at page 5 the question for the jury is, 'Can the jury, having found ... no damages applied', and his Honour then sets out the directions to be given, and he says, 'If the jury concluded ... however small', and the jury, as I recollect the case, found on one count but not on another three. Now the court sets out the principles as to whether the plaintiff had sufficient reason to commence the proceedings in the Supreme Court and whether there was a prospect of a reasonably substantial verdict. The court says, 'A discretion ... brought'. That has gone. The cases now say that is not a matter which should be taken into account. The court finds at page 6 at the bottom, 'The plaintiff was entitled ... entitled'. That test has gone as well. His Honour at seven says, 'In my view the jury's verdict ... «. The middle of that page, 'Although generally speaking ... truthful one'. I would say in response to questions where there is a unanimous verdict as to liability, jury's answers to the questions clearly did not indicate the answer was a trivial case. And at page 8 the court finds in Toomey, the judge says, 'I am satisfied ... costs be paid'. So your Honours, that is on a basis where there is a small award. The proper principles are set out at the bottom of page 8. 'Many of the factors involved ... is important'. That is the vindication principle and in my case I would say the right at issue between the parties is vastly important. There was an absolute denial anything happened. The right at issue between the parties was the right of a wife to be treated in accordance with normal civilised behaviour regardless of whether she was married to the rapist or not, and that is a matter of such importance and the right at issue for the fifty two percent of the members of this state who are women, that this is a matter which really should be a matter determined by the Supreme Court. URJ ROGERS v WENTWORTH (Handley JA) 19 At page 9, 'The jury's decision ... correct', and the judge correctly says, 'In my view I should look to the case ... to that case'. Now in that case the Judge could not in fact define what was expected. That is different from the present case. That is defined at the bottom of page 9. The difference being, the jury did not accept the implications three out of four and rejected them. Despite that the Court found this was a proper case to be dealt with in the Supreme Court, and your Honours, I will raise it now because it is in this case at page 11 the court considers the considerations that relate to rule 24 subrule 5 in relation to counsel, the definitive statement is at point 6. (reads). In my case the defendant has initially argued by his pleading to the contrary, but I would ask your Honours, to disregard that and the defendant is not before the court. Now your Honours in relation to that further matter, if your Honours will permit me to jump because it is really the central argument I am going to put, on the very last day of the trial his Honour made some statements, page 19 of the appeal book, his Honour says, 'Before I leave this case ... " His Honour says this is a difficult case. On that basis alone I would say that determination by his Honour spontaneously at the end of the trial would without doubt leave this court to consider Part 52 Rule C. HANDLEY JA; His Honour was not asked to give a certificate to counsel? WENTWORTH: No, he was not. HANDLEY JA: But you appropriately pointed out his Honour in effect has given us the benefit of his views here which might well be thought to be persuasive on the question of counsel. WENTWORTH: I would hope they would be. I would say it was a difficult piece of litigation and I seek to take your honours to that phrase, "A difficult piece of litigation' would also support the application under subrule four. Because one of the reasons for subrule four triggering is if there is sufficient reasoning for commencing proceedings in the court, if it is a difficult piece of litigation. That is one of the characteristics his Honour seems in his judgment not to agree with himself. At page 27 at the top of the page, "The issues between the plaintiff ... ' etc. His Honour has already categorised this as adifficult piece of litigation. It is difficult to understand what his Honour meant. I would say his Honour, at the end of the trial, had given consideration to what had taken place before him and that when looking at the tests to apply for the triggering of subrule four, and in fact perhaps had a little too much regard for some matters set out in the practice which were not in accordance with the assessments his Honour made at the trial. I would say further that the issues at trial were indeed difficult. There were issues in relation to the admissibility of evidence in both trials. In the first trial the admissibility of evidence, particularly of Geoff Graham which founded the major basis of the appeal, the matters as to whether in the first trial Mr Justice Maxwell should or should not have made certain statements in relation to matters that the plaintiff had taken to the Attorney General for determination and assistance, there were complex issues in this trial at all times. There was a conflict of testimony at every single level and in the trial before his Honour Mr Justice Sully, things did not get any better. The plaintiff called John Hegarty, Mr Hegarty contrary to his recollection in 1981, gave different testimony before the court from that he had given in previous courts and considerably different to that he had given at the committal in 1981. 20 UNREPORTED JUDGMENTS His Honour declared Mr Hegarty hostile but surprisingly, he, when asked to admit the statement of Mr Hegarty, refused to admit it on precisely the same basis on which Mr Justice Maxwell had refused to admit the Graham documents for the reason it was too prejudicial to Mr Rogers, that having been the major reason why the court of appeal had declared a miscarriage of justice in the first instance. Those matters were drawn to the attention of his Honour Mr Justice Sully, but for some reason his Honour did not find himself bound by the court of appeal and not allowed a piece of evidence which the plaintiff knew to be critical and did not allow that to go to the jury and allowed Mr Hegarty's testimony which was not in accordance with previous testimony to therefore stand. I mention this in passing as to why, on that basis alone, which is a perfect appeal point and could have been the subject of a very simple and straight forward appeal successfully, that this matter has not been appealed. The second reason your Honours, is set out in letters of Mr Rogers. He has done whatever he can to attempt to avoid the judgment and says he cannot meet the costs orders made against him. There is no point in doing other than obtaining vindication and attempting to obtain the amounts of costs which are outstanding in this matter. For that reason, no appeal as to the quantum of damages has been lodged, that being a matter which has been the subject of extensive questioning in the community. Your Honours, his Honour Mr Justice Hunt in Toomey was asked by the parties to clarify his approach to rule 24 (3) and on 24 May 1985 he did that at page 2 of that supplementary judgment. His Honour goes on to describe the principles which he had already set out in relation to Gawler v Lindeman. 'A high proportion ... is important'. That particular principle I do press on this court that in relation to Part 52, Rule 24 is reason for commencing proceedings in the court. Page 3, his Honour says, 'I agreed with what I understood to be ... thousand dollars'. We would say that expectation is not a matter which is still a matter of test which the court applies to applications such as this. The other cases I wish your Honours to have regard to in relation to this are these. In Minehan v Clark — Priestley JA. I am looking at your list you handed in earlier. We have Minehan v Clark. What is the next one? WENTWORTH: Potts v Moran. (List of cases dealt with). WENTWORTH: The matters of discretion are so well known that I really do not think it is necessary to take the court to them. The leading case is still House v The King 55 CLR 499. I rely on the principles in House v The King. The other principle in Will v Gilbert at page 323 your Honours are clearly aware of. The matters in relation to appeals as to costs in Wentworth v Rogers number 3 I do not need to take you to that. Maiden v Maiden which is perhaps not so well known, it is an old High Court case in 1909, at page 739, 'It appears the court acted ... agreement', etc. 'I do not think the learned Judge ... either side', so in that case there was a reversal of what the primary Judge had done, and at 742, "As to primary costs ... court'. I raise that because the order is materially varied .... those are the discretionary matters that I would say allow this court to interfere with the discretionary matters. Minehan v Clark. Do IJ need to take you to that? PRIESTLEY JA: No. WENTWORTH: Potts v Moran is a case where a hundred percent of the costs were allowed. URJ ROGERS v WENTWORTH (Priestley JA) 21 PRIESTLEY JA: We will look at these cases you have particularly referred us to. We are going to reserve. WENTWORTH: Potts v Moran, I would ask you to look at 306 and 307 as to vindication. There are some principles there as to the question of vindication of character which I would say are the ones which apply here. 'The Judge at first instant ... Supreme Court'. That also is a 1976 case. In Resianos (?) that considers Fairfax v Palmer and the main determination of that case as to whether the interests form part of the award, and I assume that is a matter that is established. Page 68 is the page that refers to costs. Again it is an appeal from Mr Justice Allen. The Chief Judge delivers the determination and the reasons for judgment are set out at page 69, and the matters really come out at page 70. His Honour says, 'This case ... more effectively'. Now I am putting the opposite position to Resianos and I would ask your Honours to look at that case. The issue here is an allegation of serious crime. At the bottom of page 70 point G the Chief Judge says, 'I would not be prepared to say ... wrong doing' etc. 'It is to be inferred ... that is not the test to be applied'. I would say in this particular case, contrary to the determination there, this court is entitled to exercise your discretion differently and should give due weight to the allegations being a serious crime, and as such your Honours would determine in accordance with proper principles that the two different sets of reasons which are given, that Part 52 Rule 24 (4) is triggered, there was sufficient reason for commencing the proceedings in the court, and that over and above the reasons which are set out as to vindication, matters which had not been previously raised in the court, allegations of serious conduct, that being sufficient reason standing alone, 'The plaintiff had reasonable ... subrule'. The allegations are of serious assault, the expectation at the very lowest in relation to those allegations of serious assault would be for damages in excess of $6000 and as such, I would say that the reasonable grounds at the relevant time of expecting to recover an amount in excess of $6000, are indeed high to say the least. The fact the jury did not award them is not to be taken by this court to indicate the claims were trivial or were not such that would found a claim for damages for the higher amount, so the finding further of the court that there were reasonable grounds for instituting, is a secondary consideration which the court should take into account and not interfere with. The trial Judge, having heard the case, says there were reasonable grounds for commencing in the court and that reasonable ground was there was a reasonable expectation of a higher award. That deals with those parts of the appeal which relate to — PRIESTLEY JA: Is there any part of the appeal you have not dealt with yet? WENTWORTH: I think I have dealt with the whole lot. Your Honours asked me the provisions under the rules by which your Honours were empowered to make an order for costs. It is part 52 Rule 6 subrule 2 and particularly at D. It is really the whole of subrule 6 but the whole structure of the rule we would say would allow the court, when combining it with its jurisdiction, to order that the costs could be ascertained in such a manner that the court may direct. PRIESTLEY JA: We would like to finish this morning if we can. We have the Notice of Motion left and what you ask for in the Notice of Motion I think is much clearer now. I do not think though that the extra knowledge I have had about the case in regard to this dispels the problems I mentioned to you earlier. 22 UNREPORTED JUDGMENTS Now what I would really like you to do is to say to us now what there is beyond what you indicated before as to why we should take up (i) which is really a matter in ordinary practice in the first instance and (ii) could even involve difficulties by you in that if you got a stay there would then be an argument later on as to whether there had been a second trial. I just mention that to you. I do not think we would be disposed in any event to simply take up on this degree of notice this rather separate and substantial question. Tam only indicating these things in an attempt to shorten matters. I do not want to stop you from saying anything that is material that you have not already said. (iii) and (iv) seem to be a first instance matter. You have already indicated you do not agree and also have given reasons why you do not agree. WENTWORTH: One of the problems is this. We are met with a situation now where we are faced with somebody that is about to go into bankruptcy. Although he would be entitled to continue with malicious prosecution, he has divested himself of assets which would entirely defeat my rights under judgment. We would say that the evidence is clear enough for this court to deal with the matter where the court has delivered the matter back to another court. This court is entitled to bring a matter up from another court to deal with it. We would ask the court to sit this afternoon in order to hear us on this. It is now five to one and I would like to put some precise submissions. PRIESTLY JA: We will adjourn to five past two and we would expect it won't take very long to put these further submissions. Repetition does not help very much. WENTWORTH: There is no point eleven years later coming out with a Judgment in my favour for costs unless I get interlocutory relief to stop what is going on here, and that is what I wish to make submissions on. LUNCHEON ADJOURNMENT. SH:BB:4 UPON RESUMPTION WENTWORTH: Sorry to bring your Honours back on the bench. I will be as brief as I can. Jurisdiction founds under s 44 of the Act (read). If your Honours go to s 51 subs 4 (read). We would say the situation, the notice of motion is regularly before the court. It has been duly served. The affidavit has been read in the proceedings. The notice of motion is one which the court should take notice of. The party has filed the notice of motion. It is not for the party to ensure the matter is before the court although I endeavoured to do that last week. I am a little nonplussed to be told today the court did not have the process and did not understand it was before it today. That was one of the reasons for my enquiries to the Registry and eventually I involved your Honour Priestley JA's associate. Priestley JA. That is not your fault. The only proceeding I had in mind when your inquiries came through to me was the appeal I knew about and since I did not know about the notice of motion I did not know that was what you had in mind in asking. It is not your fault. WENTWORTH: As I say, we had expected this matter to go forward today. We had some discussions whether the notice of motion should be filed in the Common Law Division. We took the view this court had jurisdiction to deal with it and as the court has quite correctly indicated, the matters of the appeal and the matters raised in this notice of motion are inherently interlocked whereby it was the most expeditious use of court time to deal with it altogether. URJ ROGERS v WENTWORTH (Handley JA) 23 We understand the real problems the court may have in dealing with the notice of motion but we say a couple of things in relation to that. The process being duly served before the court being the party disadvantaged by what is happening, has a right to have that matter determined and as quickly as possible bearing in mind the remittance the Court of Appeal may of course deal with. We would say if it were to be remitted we would ask no further service of the notice of motion be necessary and that we have a notice of the solicitor ceasing to act. The matter has been duly served on Mr Rogers. He lives in Tamworth. It will be difficult and expensive to serve. We say we should not be put to that cost if it is not necessary. Handley JA. You will have to serve notice of any injunction in some fashion, certified mail or maybe there is a fax machine. WENTWORTH: We do not even known his phone number. HANDLEY JA: Then by certified mail. So at least there will have to be notice of the injunction given otherwise the injunction would be useless. WENTWORTH: That was one of the reasons we asked whether for instance, the court had received the notice of ceasing to act. The matters we would say are set out — Priestley JA. In Mr Russo's affidavit? WENTWORTH: I was going to go to the principles Walton v Gardner (1992-93) 177 CLR Handley JA. Section 23 of the Supreme Court Act? WENTWORTH: No, I was not going to go to that, I was going to go to p 392.5 to the unjust and unfair provisions which found a stay in the court, grounds for a stay of proceedings. HANDLEY JA: That depends on the use of process. How would you use that here when you want an injunction? WENTWORTH: I was going to order one first and as far as order one goes, we say the matter was regularly before the court; the case of the defendant we say is hopeless in the present circumstances and it would be unfair and unjustifiably oppressive and therefore becoming an abuse of process for these matters to proceed. It is absolutely doomed to failure, there would be no possibility — HANDLEY JA: Speaking for myself I saw what Sully J said and he declined to stop the cross-claim for malicious prosecution. He just thought it should not be heard at the same time as your case. WENTWORTH: That was prior to the determination of the jury. HANDLEY JA: I understand that. WENTWORTH: That was the reason for his fourth order. HANDLEY JA: I do not know how many days it went before Sully J and looking at all of the evidence in the District Court — we do not have that material and we should not be asked to look at it, should we? WENTWORTH: On an application for a stay that would not be entirely necessary. We would say on an application for a stay there are matters of principle supported by small amounts of evidence upon which this court could be satisfied it was an appropriate exercise of jurisdiction to permanently stay or dismiss the malicious prosecution. There was also the inquiry made where we could not get a date until 1996 — 24 UNREPORTED JUDGMENTS HANDLEY JA: I suspect that inquiry that produced 1996 would have been an inquiry about a normal case. But this case is not normal. I would be surprised if Sully J could not give you when he comes back from leave a date much earlier than that, especially as chances are it will not take two weeks at all. WENTWORTH: I do not wish to in any way indicate to the court we made inquiries as to 1996. It was a discussion with Mr Russo that led us to believe if it was to be set down it would have tobe set down, if it were seriously to be set down. It is not appropriate to go to the court to so set the matter down for trial when all we want to do is strike it out and therefore it is a half day case. Priestley JA. Can I say this on this aspect of the matter, there is reference in the correspondence annexed to the affidavit of Mr Russo, reference to your seeking from a single judge a declaration that the court's action is extant. That brings to mind there must be discussion between you and your legal advisers of the best way of bringing this matter to a head and without committing myself to anything more precise than this, it does seem obvious to me that you need to take some proceeding of the kind you are seeking to take here. By seeking your order 1 you need to take some proceeding which would bring the matter before the court. It is a matter for you to consider the best way of doing it but which will bring it before the court and at the moment it should be the Common Law Division court. You have a man who has in theory still a cross-action which on the material before us he has no intention of pursuing and there are other reasons relating to that matter also which would no doubt assist you in seeking to get a suitable order from the court of first instance. I do not want to get into the details of the best way of doing it because it is pretty tricky but there must be a way of getting it before a first instance judge so the substantial considerations you have can be taken into account and to bring the matter to a head. The only question we are considering at the moment is whether we should embark upon such a consideration. WENTWORTH: I think you have absolutely got to the centre of it. On the material before you, he has no intention of prosecuting. There is a principle that surely applies if your Honours are satisfied of that, there is a process which is regularly before you, it has been regularly served and the defendant has not even taken the trouble to come here to object to the orders sought; has made no attempt at all to defend the matter, then your Honours, is there any reason at law why the orders should not be indeed made? The court only has to be satisfied he has no intention of prosecuting or proceeding with the matter. PRIESTLEY JA: I was emphasising on the material before us you have what looks like a substantial case but I am not indicating a concluded view. WENTWORTH: That is the material. We can't get the defendant here. We cannot drag him with wild horses here to tell us what his intentions are. We cannot get him to write to us. We have his solicitors who say they will not act any further. What his intentions are we would say are duly reflected in the fact he has this notice of motion which has been served on him; he has the affidavit in support and he knows what is in that and he refuses to appear. His solicitors are not appearing. We say our interests should not be jeopardised therefore and we should be entitled to have the relief which is in the notice of motion determined by this court. If he had any intention of defending the matter he has not informed the court that it is awkward for him to come or he needs to get new solicitors. He is on notice there is to be an application today before this court that his cross-claim be dismissed with costs on an indemnity basis. URJ ROGERS v WENTWORTH (Priestley JA) 25 Anybody receiving that sort of notice of motion and knowing that application is regularly before the court and has been duly served on him, unless they accept as one would do in a default judgment or summary judgment that that order was to be made then some moves would be made to attempt to defend or intercept or stop the court from making that order. The matter has been called. He has been duly served. The matter you would say is before the court. There is no attempt whatsoever to defend. In those circumstances we would say that is inherent acceptance of the position that this man has taken. He has taken a position which a litigant is entitled to take, 'I will accept whatever orders the court makes.' We say the court can be satisfied on the material in Mr Russo's affidavit the intention of this defendant is not to prosecute in any way and he accepts the orders which are sought this day before the court. We would ask the court to make the orders. We see no reason why the court because of its jurisdiction should not indeed make those orders. This man has had full and due notice. He should be here or he should have written, rung or done something if he did not want this to proceed today in his absence. Handley JA. Maclean wrote to Russo on 23 September 'We have advised Mr Rogers ... in due time.' WENTWORTH: That was on the 23rd. This was served on the 27th and this is precisely what happened. There has been a lot of correspondence in relation to trying to get consent. HANDLEY JA: I appreciate that but he is right in saying the Court of Appeal will not delve into this issue. This is a trial about a common law claim. Sully J made those orders. WENTWORTH: In this particular case I am saying this has been done in accordance with the rules of the court. The man has been served. He has due notice of the evidence raised. He has written on the 23rd and subsequently we filed process. That process has been duly served. He has made no move whatsoever to attempt to stop the orders sought in the notice of motion being made and as such the normal way the court would deal with it is they would simply make the orders. The fact this matter has been for trial remitted back to the common law etcetera should not be matters which should trouble this court. The matter is properly before this court and your Honours can deal with it if your Honours are so minded. That is my first and primary position. I would ask those orders in fact be made. If the court is not minded to make those orders, we say the court has power to remit back under s 51(4). We would say that is not our preferred course but we would certainly say the court has power to do that. We say the court should make the orders but if not it can remit back but we say that would be oppressive for the plaintiff and should not be necessary. It will involve us in all sorts of further attempts to serve and do certain things. If your Honours are not minded to dismiss today or even if your Honours are we still need some sort of interlocutory relief in relation to order 4. The annexures in relation to that start at annexure 3 of the affidavit. I think the best thing to do is simply run through those. There is a plan of this property about four pages in. Priestley JA. You have dealt with the first order you seek. Do you still wish to press for the second order? 26 UNREPORTED JUDGMENTS WENTWORTH: We put the second order in for this particular reason; Sully J had made the orders your Honours have adverted to in relation to 3 and 4 and it seemed to us if we were going to ask for this relief we would have to seek leave to appeal against particularly order 3 'I adjourn to a date to be fixed ... ' because we were out of time although we were in the midst of the full appeal the reason order 2 is sought insofar as it be necessary to extend time for the appeal, we asked for that time to be given. PRIESTLEY JA: I follow. 3 does not arise now, does it? WENTWORTH: No. PRIESTLEY JA: So we come to 4. WENTWORTH: Order 4 is needed. Annexure C sets out — there are two properties involved — Lots 71 and 72 DP 615640 Tamworth. There is a caveat securing the Legal Aid Commission over one of those properties. Handley JA. That dates back to 1985? WENTWORTH: Yes, what was money advanced to Mr Rogers for prosecuting the civil proceedings. He was refused legal aid for the criminal. The plan three pages in, Lots 71 and 72 are set out there. What Mr Rogers then did was to transfer from his and his wife's ownership as joint tenants to the two of them as tenants in common in equal shares. HANDLEY JA: That does not strike me as being necessarily done with the intent to avoid obligations. If Mr Rogers died first which he might well do because of age factors alone as I understand it, then on a joint tenancy the whole tenancy would pass to the wife against whom you have no orders as far as I know. WENTWORTH: Perhaps if I could continue your Honour can see the position. The reason for making that transfer emerges from the next documents. The Legal Aid Commission as caveator pursuant to the caveat which I have taken your Honours to, consent to the registration of the transfer of the two of them as tenants in common and uplifts its caveat for the purposes of that being registered. The next thing that happened, although we read the dates on these documents there are reasons we would say which indicate the dates are not real. The next document is a mortgage from Gordon John Rogers and he mortgages both properties to his wife. I refer your Honours to annexure A (read). I refer to the Legal Aid Commission on the next document of 12 July and it is interesting to note it was not filed after 12 July that that particular mortgage is dated. It is not dated until after the trial. We would say it is reasonable to suppose that is a backdating which is within the three month period to avoid the problems of excess stamp duty. The next document is the mortgagor Gordon John Rogers and Toni Rogers. This is an old one dated 1990. It is interesting to note on the correspondence the solicitors for Mr Rogers note the only liability he has at the time of his letter is to the Legal Aid Commission. Brownie AJA. Where did you get that from? WENTWORTH: In one of the letters. Handley JA. The stamp date indicates it was a 1990-91 mortgage. WENTWORTH: We do not cavil with that. The mortgage is definitely to the National Bank. In answer to Brownie J, it is annexure B p 3, the second last paragraph (read). This $20,000 mortgage although it is still showing in the search which was done only in the last few weeks as having a mortgage. The Legal Aid URJ ROGERS v WENTWORTH (Handley JA) 27 Commission consented to the uplift of the caveat for the purposes of allowing that mortgage to be registered on 30 November 1990 and we consider that is probably real. Mr Russo draws my attention to the fact I did not mention to you it is Mr Maclean's signature on each of these documents of the transfer of 4 March witnessing Mr Rogers" signature. The signature on the mortgage from Mr Rogers to Mrs Rogers is by Lesley Dow, 417 — that is the address of the solicitors — Peel Street, Tamworth. One document we did not have is annexure A to the mortgage for the deed of even date. The caveat secures an interest to the Legal Aid Commission of the $120,000. That is on the letter of 12 July of the Legal Aid Commission setting out their interest. I'm sorry, the mortgage by Gordon Rogers to Toni Rogers dated 22 April is to secure a debt for 122,000. Reading these documents together and without annexure A which is the deed, the block of land has a book value of $260,000. They are indeed tenants in common, equal shares. The debt is now $130,000. The letter of 12 July 1994 allowing uplift to allow the mortgage for a further $130,000, that deals with the total interest in theproperty and $20,000 to the National Bank. We do not know if that has been repaid or not. That leaves us in this situation, these documents apart from the $20,000 mortgage to the bank which we do not cavil with, have been entered into since March this year. This matter was set down for trial initially in April and did not proceed on 28 April which was the date it was supposed to proceed. It went on on 14 June. That was because of the severance application Mr Russo reminds me. It is clear from the series of documents what has been entered into is a scheme whereby the ownership of the property in question which is the only asset Mr Rogers, according to this documentation, has now been split in equal shares between himself and his wife. He has a mortgage to his wife of $120,000, a debt to the Legal Aid Commission of $130,000 and an interposing deed whereby he secures an interest — HANDLEY JA: You do not have the ANZ mortgage at all do you? WENTWORTH: No, only National. HANDLEY JA: Does not the certificate of title indicate — the second schedule indicates there is a mortgage to the ANZ. WENTWORTH: I overlooked that. For some reason my memory is that is the mortgage we were looking at with the National Mutual. On that second schedule ZA436110 the mortgage should be for the National Australia Bank — 436109 and 436110. Your Honours will see those two top right hand numbers for the land, two mortgage documents. That is in the second schedule. That is clearly the same mortgage for the $20,000. HANDLEY JA: I see where the Registrar-General's numbers are in the top right hand corner. WENTWORTH: When one goes to the two CTs in the second schedule, for the first one Lot — HANDLEY JA: I think you have cleared it up Miss Wentworth. WENTWORTH: Mr Rogers" wife has had in the last few weeks an operation for cancer. By divesting himself of the interest and setting up an interest of tenants in equal shares, this would allow Mrs Rogers to divest herself of the interest in favour of her children. There is a further set of documents executed — HANDLEY JA: There is no evidence before us about the cancer and the operation or even the position you put about the children. 28 UNREPORTED JUDGMENTS WENTWORTH: I could give that evidence on oath to my full knowledge and understanding if that is appropriate. That may be the appropriate way of putting it to the court if your Honours wish that to happen. Brownie AJA. Are not the other parties entitled to notice of that evidence?) WENTWORTH: I would say that is a matter so inherently within their knowledge it could not be said to be evidence which they are not aware of and as such would not be something which would influence the matter one way or the other. Priestley JA. Let us assume for the moment we act upon your statement of the position as you have just made it simply for the purposes of asking what relief do you then ask for? WENTWORTH: This is something else Mr Russo and I have been discussing over lunch in view of the announced intention of this man to go bankrupt and it appears what the document demonstrates in accordance with the correspondence we have now received is there has been a total divestiture of assets, that Mr Rogers says through his solicitor on p 3, annexure B, 'When the costs ... presenting a debtor's petition.' I am not sure and I have not had time to check through the cross-vesting legislation if your Honours can give relief. We do not know how far that scheme has progressed. As far as we are able to ascertain because our notice to produce is not met today and we could ask for sequestration and ask for this chap to be brought before the court and examined about his assets, it seems we may have to ask for that relief in order for the court to be fully clear and aware as to what relief it can properly give. PRIESTLEY JA: When you say that relief, you mean the relief in par 4? WENTWORTH: Yes, if he has already gone bankrupt — he has already committed an act of bankruptcy. Handley JA. The solicitor does not say he is going to be bankrupt by 5 October. WENTWORTH: He says he cannot meet his debts. It seems to me it is very close. Priestley JA. That opens up other areas. WENTWORTH: I know that. The reason I am raising it, we have been discussing the procedural nightmare we are thrown into at the moment. We do not know whether the cross-vesting legislation gives you authority to restrain a trustee in bankruptcy if that has already occurred or in futuro. PRIESTLEY JA: We would not make any orders against the trustee in bankruptcy even if we had jurisdiction unless we knew there was one and we would not make one against the possibility he or she was going to be appointed. WENTWORTH: Our main concern is this property remain in ownership and not be dealt with in any way until such time as (a) the costs can be ascertained; (b) what moneys Mr Rogers owes me. You will see from annexure A these full costs are to the extent of some hundreds of thousands of dollars and if only for half costs it is still some hundreds of thousands of dollars and most probably to the value of the property in any event. What I want to be certain of at the end of the day is I canmeet my liabilities. It would be a strange matter after eleven years down the track he can divest himself of his assets and I can't pay my legal fees. That is not a matter of equity which this court would tolerate and the court has always been very careful in circumstances like this where people take action to defeat a judgment of URJ ROGERS v WENTWORTH (Priestley JA) 29 divesting themselves particularly when the solicitor who has been here facing this court is entering into these schemes, clearly in anticipation his client is going to lose, then we would say we are entitled therefore to relief on equitable grounds of a restraint of sale for the first matter so that we can (a) quantify and then ask the court to deal with any further disposition, divesting, alteration of entitlements etcetera as the order seeks. He has clearly we would say to the satisfaction of the court entered into agreements, transfers etcetera with the intention of divesting himself of property and we would ask for such matters to be restrained, any sales to be restrained or any clause on that property by the Legal Aid Commission or Mrs Rogers — Handley JA. How can we restrain the Legal Aid Commission or Mrs Rogers? They are not served and they are not parties. WENTWORTH: The restraints which can be put upon the property itself we would say are such as should preserve the property and allow for these matters to proceed in an orderly fashion. Nobody understands better than we do the real problems we are facing at the moment. We are suddenly met with a scheme of divestiture. We tried to meet it to seek relief from the court to stop any further divestiture and to put in vacuo the divestitures which have taken place for a period of time until the court can hear this application in full. Priestley JA. What you have been narrowing it down to towards the finish of what you are saying represents the limit of what the court can do. WENTWORTH: I think that is right. PRIESTLEY JA: The most that the court would consider, as I see it, would be making a temporary order restraining any further dealing with the property, which would expire at a certain date at which time application would have to be made either by Mr Rogers to discharge it or by you to continue it. That method would enable the court to be certain he was fully aware of what was going on, give him a chance to do whatever he wants about it and for the brief period which would be involved would protect your position as far as could be protected. WENTWORTH: We think that is appropriate. PRIESTLEY JA: That is what we will consider. It is not a concluded view. WENTWORTH: We probably cannot ask for more than that at the moment. We have come up here seeking a final order but in the interim until that is determined we would seek some interim relief for a limited period. PRIESTLEY JA: What we have in mind to do is to reserve on the matters argued on the appeal and reserving on the matters argued on the notice of motion with the exception for your request for an order under par 4. In regard to that we will retire and we will consider whether we can make an order along the lines we have been discussing. SHORT ADJOURNMENT PRIESTLEY JA: Miss Wentworth, the court has considered what we were talking about earlier and has it in mind to grant limited relief somewhat along the lines of what you and I were discussing before the adjournment. But because of various time problems and constraints, we won't be able to make the orders until two o'clock tomorrow. We will stand this matter over until 2 pm tomorrow. WENTWORTH: Can I say this, Mr Russo says I did not really defend what I wanted on the other orders. 30 UNREPORTED JUDGMENTS If your Honours were not minded to deal with the notice of motion we would seek to remit the matter to a single judge of the Common Law Division to be heard within a certain period, say within 21 days and notice to be called on on that day and we would then undertake to advise Mr Rogers through his solicitors and by certified mail of any orders the court made. PRIESTLEY JA: We did have the general position fairly substantially in mind, but Mr Russo did improve it. We will not deliver judgment on the matters I said we would be reserving earlier, tomorrow. But we will be sitting only for the purpose of making the limited order we have indicated. MATTER ADJOURNED TO 2 PM, THURSDAY 6 OCTOBER 1994. Orders accordingly. Appellant in person with Mr Russo: Solicitor No appearance for the respondent