WENTWORTH v ROGERS [1997] NSWCA 338

WENTWORTH v ROGERS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

BEAZLEY JA and CLARKE AJA 21 April 1997

[1997] NSWCA 338

Beazley JA. (ON APPLICATION FOR DISQUALIFICATION)

Miss Wentworth has made an application that I disqualify myself from hearing this matter.

She relies upon a matter in which I was senior counsel in 1992 called NAB v Benecke in which I was briefed on behalf of Mrs Benecke. Miss Wentworth was not a party to those proceedings nor was she a witness. I never met her during the course of those proceedings nor have I ever met her.

The issues in that case have nothing to do with the issues in this case. That matter settled and some time after the settlement Mrs Benecke made application to have the settlement set aside. That matter was the subject of a full hearing before Justice Giles in the Commercial Division and the matter was determined by his Honour. It is my recollection, although I did not follow the litigation in detail, that the matter was also the subject of an appeal to this Court and that appeal was also dismissed.

Miss Wentworth has referred the Court to a number of cases dealing with the principles upon which a judge should act in determining whether or not to disqualify herself or himself from hearing a matter. In particular she made reference to Australian National Industries Limited v Spedley Securities Limited (1992) 26 NSWLR 411. She submitted, in accordance with the principles enunciated in that case that, as she has a reasonable apprehension of lack of impartiality on my part, I should disqualify myself.

Ihave reviewed that case carefully as Miss Wentworth took the Court through it and do not consider that there is any matter raised in that judgment nor any factual matter upon which she based her application that would cause me to disqualify myself. In particular, it appears that she relies upon her assertion that I would be biased in a legal sense such that if I rejected her application I would thereby demonstrate that I had adversely dealt with her credit. I do not consider that Australian National Industries v Spedley Securities supports that proposition nor do I consider any of the other cases which have dealt with the principles governing bias by a judicial officer require me to disqualify myself on that basis.