ROGERS v WENTWORTH [1998] NSWCA 193

ROGERS v WENTWORTH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 21 August 1998, 9 October 1998

[1998] NSWCA 193

JUDGES — disqualification for apparent bias or prejudgment — judge of appellate court

The application of the established principles governing disqualification of judges for bias or prejudgment to a judge of an appellate court considered. HELD: Application for disqualification dismissed.

Handley JA These proceedings were heard by a Full Court comprising Stein JA, Sheppard AJA and I on 17, 20 and 21 February this year. They were then adjourned part heard until 10 March. On 2 March Miss Wentworth filed motions in both sets of proceedings that I disqualify myself for apprehended bias or pre-judgment. Miss Wentworth's motions were heard by me sitting alone on 28 August. I will not attempt to set out the whole background in these reasons. This would be available, if necessary, from the reasons for judgment of Sperling J of 10 September 1996.

The matters relied upon by Miss Wentworth to establish that a reasonable member of the public with knowledge of the facts would entertain a reasonable apprehension of bias, or pre-judgment on my part fell into two groups. The first group comprised matters which predate the current proceedings, the second those that occurred since.

Miss Wentworth first relies on the fact that Mr Rogers and I were at Cranbrook at the same time (Exs A & B). I was there from 1946 to 1951 and Mr Rogers from 1942 until after I left. In my last year I was in Upper Sixth, and he was in VB, the year below. She relied on what she said were my "direct denials" of knowing Mr Rogers at school as evidence of bias (T (4) 85-6) on the basis, apparently, that she had proved that my denials were false. However as I told Miss Wentworth on 23 March, to the best of my recollection I have never met Mr Rogers in my life. I certainly did not meet him with Miss Wentworth during their courtship and marriage. I cannot see how the fact that we were at the same school so long ago could possibly disqualify me.