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. On 11 October 1994 Miss Wentworth sought an order that Mr Rogers' cross-claim be dismissed. This came on for hearing before Loveday AJ on 24 October 1994. Mr Rogers was not present. Miss Wentworth conducted the application and gave evidence. His Honour ordered that the cross-claim be dismissed. In giving brief reasons Loveday AJ indicated that he was satisfied that Mr Rogers had no interest in pursuing the cross-claim. He was satisfied that Mr Rogers had been served and given due notice of the application to dismiss the cross-claim. Loveday AJ added: "There is nothing to indicate that [Mr Rogers] has anything that he wishes to put before me in opposition to the application." Mr Rogers sought an order setting aside the ex parte dismissal of his cross-claim. Miss Wentworth countered with an application for a permanent stay of the cross-claim. The two motions were heard together by Sperling J. The hearing of the motions commenced on 23 March 1995 and occupied an extraordinary 37 hearing days. Numerous rulings on evidence were made by his Honour. Sperling J reserved judgment on 24 April 1996 which he delivered on 10 2 UNREPORTED JUDGMENTS September 1996. His Honour made an order setting aside the ex parte order made by Loveday AJ dismissing the cross-claim and Miss Wentworth's motion for a permanent stay was dismissed. Sperling J found that Mr Rogers believed that the motion for dismissal of the cross-claim would not be heard on 24 October 1994 but that the matter would be in the list for the purposes of being given a date for hearing. His Honour accepted the evidence of Mr Rogers and his then solicitor (Mr Maclean) that this was the case. In our opinion he was entitled so to conclude. Sperling J accepted Mr Rogers' evidence that he intended to pursue his cross-claim. His Honour found that Miss Wentworth had misled Loveday AJ in stating that Mr Rogers did not intend to prosecute the cross-claim. In particular, his Honour found that Miss Wentworth failed to disclose a letter dated 13 October 1994 from Mr Rogers' solicitor to Mr Russo, Miss Wentworth's solicitor, that his client intended to pursue the cross-claim when he had the funds. To the contrary of the contention of Miss Wentworth, his Honour found that Mr Rogers had not abandoned the cross-claim, intended to prosecute it and that this was his state of mind in October 1994. Miss Wentworth had also submitted that for various reasons including estoppel and admissions by Mr Rogers, the cross-claim could not succeed. Sperling J rejected these submissions. He also found that the cross-claim had not been shown to be futile. Sperling J concluded that the ex parte order should be set aside on the 'ordinary approach' (p25-p27 judgment), as well as on the special bases of 'irregularity' and 'common justice'. His Honour found there had been a miscarriage of justice before Loveday AJ in that Miss Wentworth had given incorrect and incomplete evidence as to Mr Rogers' intentions. He said: "There was, accordingly, a miscarriage of justice which cannot be allowed to stand uncorrected. That there was an irregularity is an under-statement. It was not just a matter of failure to reveal that which should have been revealed. It was a case of informing the Court that that which had occurred had not occurred." As to the common justice approach (Taylor v Taylor (1979) 143 CLR 1 at 16) Sperling J found: "Mr Rogers was not at court because his solicitor told him all that would happen is that the date for the hearing of the application would be allocated and, accordingly, there was no need for him to be there. That was a mistake - an excusable mistake in my view - but a mistake nonetheless. It was an accidental occurrence which resulted in a litigant not being at court or represented at court on an occasion when proceedings were listed for hearing." As mentioned, Sperling J also dismissed Miss Wentworth's application for a permanent stay of the cross-claim. His discussion of this application and his reasons are to be found at p38-p46 of the judgment. Miss Wentworth sought leave to appeal against the orders of Sperling J in an earlier application to this Court. This was heard by the Court of Appeal, comprising Beazley JA and Clarke AJA, on 21 April and 29 May 1997. Extensive oral and voluminous written submissions were made to the Court by Miss Wentworth, as well as on behalf of Mr Rogers. On 12 June 1997 the Court refused leave to appeal. Their Honours gave brief reasons the substance of which was as follows: "Leaving aside the order made pursuant to the judgment of Sperling J on 10 September 1996, the other orders involved the exercise of the primary judge's discretion. In the ordinary course leave to appeal from such discretionary URJ WENTWORTH v ROGERS (Handley, Stein JJA and Sheppard AJA) 3 determinations is not granted. In any event we are not satisfied that the trial judge's exercise of discretion reflected in each of the orders was outside the bounds of a proper discretionary judgment. O1 referred to in paral of the summons for leave relating to the orders made pursuant to the judgment of Sperling J of 10 December 1996, raises an important matter. However, we do not consider that it is a matter appropriate for the grant of leave. The issue should be deal with at first instance in the context of a final formulation of the issues in the proceedings - and the determination of those issues in the context of the facts proved at trial. Further, we are not satisfied that Sperling J's determination on this question is wrong." Miss Wentworth has applied for special leave to appeal to the High Court from the refusal of leave to appeal by the Court of Appeal on 12 June 1997. The special leave application has yet to be heard. Notwithstanding that to be the case, Miss Wentworth filed in Court on 11 September 1997 a further summons seeking to set aside Sperling J's orders. This requires the leave of the Court. It would be most unusual for this Court to grant leave to appeal on a second application. The grant of leave to appeal involves the Court in exercising a discretion. A second application for the exercise of that discretion will rarely succeed. The reasons for this are obvious enough. Litigation should, in the public interest, be concluded. A party who has had a fair opportunity of seeking leave and failed must accept the outcome, subject, of course, to the right to seek leave in the High Court which Miss Wentworth has done. The order refusing leave was interlocutory, not final, and was susceptible of review whether or not the order had been entered. See Buttes Gas v Hammer [1982] AC 888, 922; Reg v Home Secretary Ex parte Khawaja [1984] AC 74, 79. However, review in such a case is not a matter of right but of discretion. See Smith vy New South Wales Bar Association (1992) 176 CLR 256, 265. In the circumstances of this case, the proper exercise of that discretion requires the dismissal of the application. Here, there are no changed circumstances, and the public interest in the termination of litigation must prevail. Substantially the same case has been put to us as was put to the previous Court of Appeal. Furthermore, none of the submissions of Miss Wentworth appears to have any substance or merit and the refusal of leave by the Court in June 1997 was, with respect, the appropriate outcome. Plainly, it is in the interests of the parties (although we understand Miss Wentworth's opposition) and of the public that the cross-claim go to trial. Common justice demands it: see Taylor v Taylor (supra). Only when the cross-claim is heard and determined can the end be in sight for this litigious saga. Miss Wentworth was heard at length on a number of matters. We do not find it appropriate to mention many of these because we are satisfied that that they are without foundation. Miss Wentworth relied strongly on statements which she claimed were made by Mr Rogers not long after the assault of which she complains. These, if accepted, would be capable of being evidence of admissions made by Mr Rogers that he was guilty of the misconduct of which Miss Wentworth complains. But we cannot try that question in these proceedings nor, assuming we granted leave to appeal, could a Court hearing the appeal. The only forum for the leading of such evidence is the Court which hears Mr Rogers' action for malicious prosecution. This part of Miss Wentworth's case is misconceived, not because admissions may not have been made, but because this Court is not an appropriate forum for the trial of that question. 4 UNREPORTED JUDGMENTS We take the same view of her case based on estoppel but, in the light of the way the argument developed, we propose to deal with that matter briefly. This matter was dealt with by the earlier Court of Appeal in the latter part of the reasons which we have quoted. In order to deal with the matter of estoppel, the background needs to be mentioned. The trial which took place before Sully J was a trial only of Miss Wentworth's action. He deferred the trial of the issues raised by the cross-claim for malicious prosecution. In her case Miss Wentworth alleged a number of serious assaults which she claimed had been committed by Mr Rogers. Six allegations were particularised. These, if they occurred, were certainly very serious involving Miss Wentworth being subjected to violent, obscene and demeaning actions by Mr Rogers. But whether or not Mr Rogers was guilty of the entirety of such conduct has not been found in either of the hearings. They were not found in the earlier proceedings but that judgment was set aside. For reasons which we now develop they were not found in the second trial presided over by Sully J. It is first necessary to specify what the allegations were. It was alleged that Mr Rogers assaulted and beat the plaintiff: first by throwing her to the ground and kicking her; secondly by pushing her down; thirdly by procuring the family dog to attack her; fourthly by inserting a large rubber dildo in her vagina; fifthly by inserting his penis in her anus; and sixthly, by then inserting his penis in her vagina while the dildo was still inserted therein. Each of these allegations was left to the jury by Sully J. They were directed to decide whether any one or more of the acts of assault alleged by Miss Wentworth had been committed, and that if any one or more were found, that was sufficient to ground a verdict in her favour. The jury were not asked separate questions in relation to each allegation. They returned a general verdict in Miss Wentworth's favour for $2,000. It is not possible from the record to say whether the jury found that more than one of the allegations was established. All that can be said is that they must have found that at least one of them had been. The amount of the award is not large and is open to the interpretation that the jury found that Miss Wentworth had been assaulted but not so seriously as her allegations suggested. It is also possible that the jury found all allegations established but awarded a sum which might be thought to have been substantially too low. No appeal was brought. The only clear conclusion which can be drawn is that the jury must have found at least one of the allegations established; the record does not enable us to say which of the allegations was found to be established. Mr Rogers wishes to prosecute his action for malicious prosecution. Miss Wentworth says that he is estopped by the jury's finding from doing so, because they must be taken to have accepted each of her allegations. Unless that be the case, the estoppel upon which she relies cannot succeed. In an action for malicious prosecution, the plaintiff must prove: (a) institution of criminal proceedings by the defendant; (b) termination of those proceedings in favour of the plaintiff, if from their nature they were capable of so terminating; (c) absence of reasonable and probable cause; and (d) malice, or a primary purpose other than that of carrying the law into effect. (See the Law of Torts JG Fleming 9th ed (1998) at 674) There is no issue about those being the elements of the cause of action for malicious prosecution. URJ WENTWORTH v ROGERS (Handley, Stein JJA and Sheppard AJA) 5 Malicious prosecution and assault (or trespass to the person) are distinct causes of action. This is not a case where there can be any question of res judicata or cause of action estoppel: see Blair v Curran (1939) 62 CLR 464 per Dixon J at 531-2; Jackson v Goldsmith (1950) 81 CLR 446 per Williams J at 460-1 and Fullagar J (dissenting) at 466; and Thoday v Thoday [1964] P181 per Diplock LJ at 197-8. What is here alleged, however, is that the finding by the jury of a verdict for $2,000 in the action brought by Miss Wentworth concludes the question of Mr Rogers' guilt or innocence of the assaults. In an action for malicious prosecution, the guilt or innocence of the plaintiff may be relevant to the issues to be tried in a number of respects. Plainly the acquittal of the plaintiff of a criminal charge by a criminal Court would mean that the proceedings had terminated in the plaintiffs favour. There was such an acquittal in the present case but that is irrelevant to the submission relied upon by Miss Wentworth which is that in the civil proceedings brought by her, the jury returned a verdict in her favour which, on her construction, means that each of the acts relied upon by her has been found by a jury against Mr Rogers. In her submission the finding is relevant to the issues in the action for malicious prosecution because, so she contends, Mr Rogers has been found to have committed each of the assaults. One of the issues in the action for malicious prosecution will be Miss Wentworth's belief in her allegations. This is part of the broader question whether she had reasonable and probable cause to institute the prosecution which she did: see Fleming (ibid at 680). If the jury's finding in the assault proceedings were interpreted as she contends it should be, her belief in Mr Rogers' guilt would be established or would tend to be established and her defence of reasonable and probable cause would be made out. Conversely, but irrelevantly for present purposes, if the proceedings had resulted in a verdict for Mr Rogers, he would have been able to say that it had been established in a civil trial that he was innocent of the assaults alleged against him. This may have been relevant to his case that Miss Wentworth could have had no belief in her allegations thus tending to establish absence of reasonable and probable cause. In order for her submission to succeed Miss Wentworth must persuade us that she is correct in her submission that the general verdict returned by the jury in the assault proceedings established that Mr Rogers was guilty of all six acts of assault alleged against him. The difficulty we have with this argument - and it would seem it was the same difficulty that the earlier Court of Appeal had - is that the case was not left to the jury as what might be described as an 'all or nothing at all' case. His Honour left the matter as one where the jury could find for the plaintiff if any or more of the acts complained of was established. Because no separate questions were asked, one does not know what the approach of the jury was. If one cannot say that all allegations were found, one can take nothing from the verdict because one does not know which one or ones were found. Miss Wentworth claimed that the matter should be looked at by accumulating the six assaults upon which she relied so that they represented "one transaction". If this were correct, the jury should have been instructed that they must find each of the allegations established before they could find a verdict in her favour but that was not the instruction they were given. On the contrary, they were told that they should give her a verdict if they found one only of the allegations proved. That is why we can take nothing from the jury's findings and no bar confronts Mr Rogers in the prosecution of his malicious prosecution case based on a finding which goes to the essence of reasonable and probable cause. 6 UNREPORTED JUDGMENTS Miss Wentworth's submissions based on estoppel must therefore fail. That is the same view of the matter which was expressed by the earlier Court of Appeal when rejecting Miss Wentworth's application for leave to appeal. The Court thought, however, that the issue should be dealt with at first instance in the context of a final formulation of the issues in the proceedings and the determination of those issues in the context of the facts proved at the trial. There is much to be said for that view and we would not wish to foreclose that approach being open at the trial. For that reason also we refuse leave. Notwithstanding that we have listened closely to Miss Wentworth's oral submissions and considered her written submissions, we can see no error in principle nor in the discretionary judgments of Sperling J which ought properly lead to leave to appeal being granted or an appeal being successful. In our view it is neither appropriate nor necessary to give further reasons for rejecting Miss Wentworth's submissions. In the result we refuse the application for leave to appeal brought against the orders referred to in paral, para2, para3, para4 and paral0 of Miss Wentworth's summon filed on 12 March 1997. Those paragraphs of the summons are dismissed. Miss Wentworth is to pay Mr Rogers' costs of so much of the summon as claimed leave to appeal against the orders referred to in those paragraphs. We direct the Registrar forthwith to enter these orders and also those made by the earlier Court of Appeal on 12 June 1997. 1. Paral, para2, para3, para4 and paral0 of the summons entitled "Summons - Application for Leave to Appeal" filed on 12 March 1997 be dismissed. 2. The applicant pay the respondent's costs of so much of the summons as claimed leave to appeal against the orders referred to in paral, para2, para3, para4 and paral0 of the summons. 3. The Registrar be directed forthwith to enter these orders and also the orders made in this matter by the Court of Appeal on 12 June 1997. The appellant appeared in person Counsel for the respondent: V J Lydiard and G M Preston Solicitors for the respondent: Richard A Licardy & Co, Woolloomooloo