WENTWORTH v ROGERS [1998] NSWCA 256

WENTWORTH v ROGERS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY and STEIN JJA and SHEPPARD AJA 17, 19 and 20 February 1998, 21 October 1998

[1998] NSWCA 256

APPEAL — Application for leave to appeal — Identical application dismissed by differently constituted Court of Appeal on earlier occasion — Significance of that dismissal for present application — Whether general verdict of jury for plaintiff in action alleging six separate acts of assault conclusive of issue of guilt or innocence of defendant in respect of each allegation — Significance of this matter for cross-claim brought by defendant for malicious prosecution.

Handley, Stein JJA and Sheppard AJA This application for leave to appeal was instituted by summons filed on 12 March 1997. Although the summons is described as an application for leave to appeal, the orders which are sought are orders setting aside orders or judgments of Judges of the Common Law Division. Nevertheless, we have treated the summons as an application for leave to appeal because leave is plainly required to appeal against the orders referred to in it. The matter was argued on this basis.

The origin of this matter is an incident which occurred more than 21 years ago. It concerns a proceeding commenced by the claimant, Miss Wentworth, in the Common Law Division in 1982 and a cross-claim filed by Mr Rogers for malicious prosecution. The case eventually went to trial and in December 1985 there was a verdict for the defendant (Rogers) on Miss Wentworth's claim and a verdict for Mr Rogers on the cross-claim for $571,000. The verdicts were set aside by the Court of Appeal in 1987 and a new trial ordered (Wentworth v Rogers (No 10) (1987) 8 NSWLR 398). On 8 April 1994 Sully J ordered that the cross-claim be heard separately from the plaintiff's claim and be deferred. On 22 June 1994 a jury found a general verdict in favour of Miss Wentworth for $2,000.