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. She relied on speeches (Ex C) made when I was sworn in as a Judge on 30 January 1990 when reference was made to my contacts with the Attorney General, my association with Meagher JA, and my involvement in Bar Council affairs. She relied on a news item from "The Sydney Morning Herald" of 27 July 1993 relating to my involvement in Australians for Constitutional Monarchy, where for a time I was associated with the Honourable David Yeldham QC (Ex D), and another article (Ex E) from the same newspaper of 27 June 1989 reporting the decision of the Bar Council to open the common dining room to guests who were not barristers or judges. This included remarks attributed to me and a reference to Miss Wentworth which was not attributed to me. Exhibit F comprised extracts from Bar Council minutes and correspondence from 19 June 2 UNREPORTED JUDGMENTS 1987 to 22 November 1989 relating to her litigation with Mr Rogers and an application by the Attorney General that she be declared a vexatious litigant. The minutes of 9 July 1987 record: "The Acting President adverted to the letter from Burbidge QC of 19 June which was considered at the last meeting. After discussion IT WAS RESOLVED to hold the matter over until the meeting scheduled for 23 July 1987 with a view to the Bar Council writing to the Attorney-General to suggest he should commence proceedings to have Miss Wentworth declared a vexatious litigant". I was the Acting President referred to. I have no recollection of speaking on the motion, and having minimal knowledge of the litigation at that time I don't think I did. I also have no recollection of voting on the motion and may not have done so. I did not write to the Attorney General. The minutes of the meeting of 23 July record: "Handley QC reported that the Attorney-General is taking steps to have Miss Wentworth declared a vexatious litigant". I have no recollection of the source of my information, but it did not involve any communication between myself and the Attorney General. Proceedings by the Attorney to have Miss Wentworth declared a vexatious litigant were commenced shortly afterwards, but were dismissed by Roden J in 1988. Miss Wentworth tendered a copy of her statutory declaration to the Royal Commission into the New South Wales Police Service which I read but declined to receive as an exhibit. It became MFI 2. It did not refer to me in any way. She also tendered part of the Commissioner's report which referred to this declaration without identifying Miss Wentworth. I read it. It did not refer to me in any way and I declined to receive it in evidence. It became MFI 1. She relied upon the judgment of this Court in Wentworth v Rogers of 22 July 1987 in which I did not appear as counsel. Its relevance escapes me. She relied upon my decision in Wentworth v Rares of 6 August 1990 which was unanimously affirmed by a Full Court on 25 September. The matter was back before me on 27 September when I declined to disqualify myself on Miss Wentworth's application and confirmed my earlier orders. Further proceedings followed before Mahoney JA, Samuels JA, Needham J and the Full Court (Priestley and Clarke JJA, Hope AJA 13 December 1990, u/r) which were adverse to Miss Wentworth. I cannot see how my involvement in those proceedings could disqualify me. Miss Wentworth referred to an occasion when I agreed to review the papers in an application by her for special leave to appeal to the High Court. My unrefreshed recollection is that this involved a claim by the Legal Aid Commission to the benefit of the costs order made by Roden J in her favour. I informed Miss Wentworth that if I thought the case "had legs" I would appear for her pro bono in the High Court. I received the papers on a Friday, reviewed them over the weekend, and on the Monday informed her that in my opinion the case had no legs and I declined to appear. During this hearing Miss Wentworth claimed that I had "dumped her' at short notice. She stated that Mr R Conti QC appeared for her on the application a few days later. Special leave was refused. Miss Wentworth's recollection was significantly different from mine. The true position was not established. Miss Wentworth claimed that the decision of the Bar Council not to take disciplinary action against the barrister Mr Graham, who featured in Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, during the time I was President, indicated bias on my part against her. My reasons for supporting the decision to URJ ROGERS v WENTWORTH (Handley JA) 3 take no such action until after the new trial ordered by the Court of Appeal were explained in my letter to her of 22 November 1989 which is part of Ex F. Others may disagree with these reasons but, with due respect to Miss Wentworth, I cannot see how they demonstrate bias or pre-judgment on my part. Most of this pre-1998 material was obviously known to Miss Wentworth long before February this year, eg, my letter to her of 22 November 1989. The internal Bar Council material had been in her possession since 1991 or 1992 (T (4) 88). Prior to February this year I had sat in Wentworth v Wentworth (Samuels, Priestley and Handley JJA, 3 March 1992, u/r); Wentworth v Wentworth (1994) 35 NSWLR 726 (Mahoney, Handley and Powell JJA); Wentworth v Wentworth (Priestley, Handley and Powell JJA, 9 June 1995, u/r); Rogers v Wentworth (Priestley, Handley JJA, Brownie AJA, 12 September 1994, u/r); Rogers v Wentworth (Priestley, Handley JJA, Brownie AJA, 5 May 1995, u/r); as a single judge in an attempt to resolve claims for consequential relief following the decision in Wentworth v Wentworth (1995) 37 NSWLR 703; and in Wentworth v Wentworth on 23 June 1997 (40031/97) when I granted an ex parte interim Mareva injunction in favour of Miss Wentworth, and with Stein JA in Wentworth v Wentworth (40031/97, 40392/97) on 14 July 1997 to hear two summonses for leave to appeal. No objection was raised to my participation in any of these proceedings. Miss Wentworth relied on my conduct during the directions hearings of the claims for consequential relief following Wentworth v Wentworth (1995) 37 NSWLR 703 (T (4) 96-7), where she said I had dealt with her in a prejudiced matter on the basis of "no money for Wentworth and that's the basis on which... all of these decisions had been made". Mr Wentworth sought restitution of monies paid to Miss Wentworth under orders of Santow J, which had been set aside on appeal, and so called "restitution" for other losses suffered as a result of complying with those orders. Miss Wentworth had various cross-claims. In the course of attempting to resolve these issues I expressed the view that the claim for restitution of monies paid was covered by the decision in Production Spray Painting and Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659, while the claim to recover other losses was excluded by the principles discussed by D M Gordon QC, "Effect of Reversal of Judgment on Acts Done Between Pronouncement and Reversal", (1958) 74 LQR 517. Eventually I remitted the proceedings to the Equity Division without making any substantive order. It seems that my pre-judgment arose from referring to a recent decision of the Court of Appeal which upheld the right of a successful appellant to restitution. The pre-judgment principle has never been applied, and could not properly be applied, to pure questions of law. The second group of matters relied on occurred principally, but not exclusively, in these proceedings. Her submissions make it necessary for me to refer to the course of the hearings before myself and the Full Court. During the week before the hearing I received requests, through my associate, from Miss Wentworth and Miss Lydiard, counsel for Mr Rogers, for me to conduct a directions hearing on Friday 13 February to facilitate the hearing by the Full Court. The principal matters before the Court initiated by Miss Wentworth were - (1) A motion dated 30 June 1997 to re-hear a summons for leave to appeal from the judgment of Sperling J of 10 September 1996 (orders being made on 26 February 1997) who set aside an ex parte order dismissing Mr Rogers' 4 UNREPORTED JUDGMENTS cross-claim for malicious prosecution (cross-claim). Leave to appeal had been refused by Beazley JA and Clarke AJA on 12 June 1997; (2) A summons dated 11 September 1997 by Miss Wentworth and Mr Russo for leave to appeal from the costs orders made by Sperling J on 28 August 1997 in the same proceedings. The principal matters initiated by Mr Rogers before the Court were - (1) A motion of 11 July 1997 (40402/94) seeking inter alia to restrain Miss Wentworth from filing any interlocutory application in those proceedings without the leave of a judge (vexatious litigant application); (2) A motion (stay of proceedings application) of 1 August 1997 (40108/97) seeking inter alia to stay proceedings on the costs orders made by Sully J and this Court following the trial of Miss Wentworth's action for assault (jury verdict). The directions hearing lasted four hours and I made a number of orders. Miss Wentworth had foreshadowed an application that the vexatious litigant application be remitted to the Common Law Division. 04 directed Miss Wentworth to file and serve any further affidavit in support of this application by 1pm on Monday 16 February. (It should have referred to 40402/94.) O6 provided that "any procedural application by Miss Wentworth" should be dealt with by the Full Court as soon as possible on 17 February. Miss Wentworth submitted that my attitude to the vexatious litigant application during the directions hearing and in the Full Court demonstrated pre-judgment. In particular she submitted that I had shown an inappropriate eagerness to have this application brought on ahead of other matters. The transcript demonstrates however that what I thought should be given priority was her application for remission to the Common Law Division. At an early stage during the hearing before the Full Court on 17 February, I said (T4) - "On Friday I thought we should decide the disposition of your application under the inherent jurisdiction that Miss Wentworth be restrained, in some way, from filing further interlocutory proceedings in Mr Rogers' cross-claim Miss Lydiard?" The "disposition" referred to was the application by Miss Wentworth that the vexatious litigant application be remitted to the Common Law Division. This was made clear, if not clear already, by the following exchange (TS) - "Handley JA: I think it is your application that that matter be dealt with otherwise than by this Court in the hearing commenced today? Wentworth: Yes". See also T 6, 7, 9. At T 11, I said - "You can take it Miss Lydiard we are all too familiar with the general outline of that chronology and that some of us have been involved in it as minor actors at some stage". However I was the only Judge with such knowledge. Shortly afterwards the Court adjourned. On resumption I said (T 13) - "... Ms Lydiard the Court is not convinced... that it would be a particularly useful exercise today to spend more time on this vexatious litigant application". I then called on Miss Wentworth on her notice of motion to reconsider the decision of this Court of 12 June 1997. With justification she protested that this was contrary to my directions and Sheppard AJA said (T 13) - "You came to Court on the basis you wanted this vexatious litigant application (remitted) to the Common Law Division and I think we have some sympathy but we need to make further enquiries. We need to move to the next matter". URJ ROGERS v WENTWORTH (Handley JA) 5 He then said (T 14) - "You may not agree with this but the way through this problem, so that eventually the litigation can come to an end in the public interest... Wentworth: I could not agree more. Sheppard AJA: Is the disposal of the (cross) claim for malicious prosecution. That must be disposed of one way or the other and you claim a lot of reasons that it is barred or estopped and there are arguments that will have to be looked at and there is the question of whether or not the previous Court of Appeal order can be overridden by us, or should be, but eventually the (cross) claim either is disposed of because of the reasons you claim or it needs a hearing. Wentworth: I agree entirely". I then said - "The main thing to do is something that will achieve the release of these monies (I think this should have read the hearing or perhaps the disposal of the main issue) as soon as possible and as efficiently as possible and that is not going to be a long hearing on declaring you a vexatious litigant, that may be a justifiable move but it is not going to advance - - Wentworth: It is not even a sustainable application. Handley JA: We can talk about the costs matter but the fundamental thing is how and in what circumstances is the malicious prosecution... Wentworth: That is entirely the matter which we had anticipated and wanted to be heard immediately but I am non plussed now. Handley JA: Yes. I made a mistake: I endeavoured to sort things out and at that stage I failed to see the wood for the trees quite as clearly as I now see it, encouraged no doubt by my brethren". That, for all practical purposes, was the end of this part of the case. The matter resurfaced momentarily towards the end of the third day. At T 183 I said - "Miss (Lydiard) we see no utility in... any court, Master, Common Law Judge, or this Court spending any time on your vexatious application. Not to say the application is vexatious, but it seems to be part of the guerilla warfare this Court is anxious to bring to an end, so that either your client goes to trial on the malicious prosecution action, subject to other matters, or else he doesn't go to trial. That's the issue on which everything should turn rather than further interlocutory applications. Justice Sperling could have heard this trial within the 37 days. We don't propose to embark on the hearing of that vexatious litigant application". T 184-5 records the following - "Wentworth: Could I just ask this? In relation to the determination that your Honours just made in relation to the vexatious litigant - Handley JA: We have not made a determination. We are saying it should not be heard. We are not saying it wouldn't ultimately succeed, not saying bound to fail. We are saying it's not a (useful) exercise to make use of the Court's time. Wentworth: I have this problem. It's on foot. Your Honours have given a clear indication to the defendant that it is not a matter that should proceed. Your Honours it would be the usual thing in that case that your Honours dealt with it in some way. Handley JA: This is just part of the guerilla warfare. We are not going to summarily dismiss it because we can't, we are not going to hear it because we shouldn't, we are not going to grant it because we can't without a long hearing. 6 UNREPORTED JUDGMENTS It will be left like a lot of other cases that are left that are eventually swept away by the final decision of the proceedings. Wentworth: I have an application on to strike it out. Handley JA: We're not going to hear that either. Wentworth: Just a flat refusal to hear the application? Handley JA: It will be stood over to a date to be fixed". Further material relied upon by Miss Wentworth appears at T 191-2 which need not be set out. At T 193, in response to a submission by Miss Lydiard about the vexatious litigant application, I said - "We understand that problem. We'll be seeking to deal with it, depending on our conclusions and orders on the matters that we have heard - this litigation will come to a sudden halt or there will be a situation which will be that the cross-claim will go to trial". Miss Wentworth's lengthy submissions based on the vexatious litigant application, and my supposed attitude towards it, have no foundation in fact. She relies on the whole of the transcript for the three days of the hearing before the Full Court to show pre-judgment by me on many points, and constant interruptions by me which prevented her from properly presenting her submissions. At T 21-22 there was a discussion between Miss Wentworth and the Court as to the effect of the jury's verdict. She submitted that the verdict established by res judicata that she had reasonable and probable cause for all her criminal charges against Mr Rogers. At T 22 I said - "There's no doubt that the cause of action, or causes of action that you had for damages are now merged in the jury's verdict and the judgment of the Court pursuant to it but when it comes to issue estoppels, that's another matter". Miss Wentworth continued her submissions and members of the Court, including myself, commented on the relevance of Sully J's directions to the jury (123-4). After the lunch adjournment, I said (T 29) - "In the end you will have to persuade us that there is some reason why we should take a different view from that taken by Justice Beazley and Justice Clarke... ". At T 29-30 I commented that a 1977 letter from a Mr John Hegarty Was "very much on the edge, if not outside it" of relevance to the application for leave to appeal from Sperling J and I made the same comment about a 1977 order of the Family Court. At T 31 I made the same comment about the details of what had occurred before Bruce J on 17 October 1994 when proceedings were adjourned, Mr Rogers not being represented. At T 35 I said - "This is not an appeal I think you appreciate that. We are not doing an appeal from Justice Sperling, nor from Justices Beazley and Clarke". T 37-39 contains a discussion between Miss Wentworth and myself in which I sought to limit submissions seeking to challenge rulings by Sperling J on evidence. At T 39 I asked her to pick her best example which she identified as a ruling of 12 April 1995 disallowing cross-examination of Mr Rogers on the underlying merits of the cross-claim. At T 41 she said that Sperling J had brought down a couple of other rulings relying on that one "so it compounded the error further", and I said - "Tf there is error it is reasonably fundamental on its own and if there is no error then the fact it is repeated does not make it any worse. So I think that in order to keep these proceedings within some reasonable bounds we will for the time being hold you to the judgment of 12 April". URJ ROGERS v WENTWORTH (Handley JA) 7 Miss Wentworth then returned to the ex parte hearing before Bruce J on 17 October 1994 (T 41-42) and I said (T 42) - "We really cannot grant leave on issues like that. They are marginal to the question of whether this cross-claim ought to go to trial... Miss Wentworth I think it is time you came to grips with the earlier judgment of the Court of Appeal and of Sperling J of 10 September and his ruling on evidence of 12 April". Miss Wentworth then raised disqualification objections to Justices Beazley and Clarke and I indicated that they could only be raised in the High Court. At T 43 she said that she was about to read an affidavit in support of a submission that those Judges were disqualified. Discussion followed (T 43-47) during which I said (T 44), "The Court is of the view that this matter has to be ventilated, if at all, in the High Court". At T 47 Miss Wentworth sought to read another affidavit which had not been before Sperling J, or Justices Beazley and Clarke, and at T 48 I said, "I do not think we should receive that sort of material direct... the time has come when you should start telling us what is wrong with these two judgments". Miss Wentworth still sought to read the affidavit and I said - "Miss Wentworth I do not think we want to open this affidavit and have it read. That will provoke objections and rulings and will waste time. If Sperling J made a mistake on 12 April that can be demonstrated on the face of his reasons". At T 49 I said that she might read that affidavit as part of her submissions but the Court would not take it as part of the evidence. Miss Lydiard said that she objected to it and I said, "Now Ms Wentworth can we start". She then referred to my direction about filing an affidavit the previous Friday and I said - "Miss Wentworth, the time has come for you to tell us what is wrong on matters of substance with the decisions of Beazley JA, Clarke JA and Sperling J. If you would tell us at least that will stop the skirmishing and start the main exercise". Miss Wentworth then developed her challenge to the evidentiary ruling of 12 April 1995. At Miss Lydiard's request the Court later added the rulings of 13 and 28 April. Miss Wentworth complained that I was prepared to allow this on Miss Lydiard's application when I had earlier refused the same application by her. I said that the Judge would be wrong to allow the proceedings before him to become a mini trial (T 51). Miss Wentworth agreed but said "this is near the outset". It then appeared that the hearing which lasted 37 days had commenced on 23 March. I asked Miss Wentworth to identify the errors of principle and the following exchange occurred - "Wentworth: At the outset the Judge said we had to prove that there was no bona fide belief in the defendant as to the merits of his application and when we tried to do that by cross-examination we were stopped. Either that was relevant or it was not. The Judge could not have it both ways, because otherwise he errs in principle. There was no evidence provided by Mr Rogers by way of affidavit as to the genuineness of his cross-claim or the merits and no evidence by him. Handley JA: I know the first trial miscarried quite seriously, but the fact remains that a jury, albeit at mistrial, thought there was something in this cross-claim and awarded a lot of money. This is not a case which comes, to the Court cold, far from it. This case has been prosecuted to a jury verdict, fully acknowledging the serious extent of the mistrial all those years ago, and then of course Sully decides the case should not be stayed in April 1994. It is not hard in this situation to form the view that it would be quite extraordinary if this was 8 UNREPORTED JUDGMENTS not a case where Mr Rogers had some genuine belief in its merit. Why would anyone think that this was brought for some improper collateral purpose? It may be misconceived. Wentworth: Is your Honour taking into account matters you should not? Handley JA: I have Sully J's decision to refuse the permanent stay. Wentworth: Indeed, I think that is all. For you to say Mr Rogers might have some belief in the merits of the case seems to me to indicate some sort of formation of a pre-judgment which I would find extremely serious... (52 A) Handley JA: At the top of p4 Sperling J says what I have stated. Wentworth: With respect that takes into account only the application for the stay and that is where his Honour failed in principle. Handley JA: What I am doing is reading what may be the central plank of his Honour's reasons. Wentworth: Yes". Miss Wentworth relied strongly on these remarks of mine as evidence of pre-judgment. It then being late, the Court directed its attention to the further hearing of the proceedings, and the following matters in the transcript (T 54) are also relied upon by Miss Wentworth. The Court had announced, after a short adjournment, that it was available to sit on the Thursday and Friday of that week, but Mr Russo was in some difficulties and he and Miss Wentworth wished to discuss these difficulties outside the Court. The transcript (T 54) records the following - "Handley JA: Thank you for that. You and Mr Russo withdraw and I think five minutes ought to be plenty. (Miss Wentworth and Mr Russo did so and in their absence I said to Miss Lydiard) Is there any urgency on this stay application? Lydiard: No, it is in the process of being assessed at this stage. Handley JA: You can renew it on Thursday or Friday as advised. I will tell Miss Wentworth that when she comes back... (Miss Wentworth and Mr Russo returned) In your absence I ascertained from Miss Lydiard there is no need for the stay application to be further dealt with this afternoon. Miss Lydiard wanted to say something about the vexatious litigation... (T 56) Miss Wentworth: Miss Lydiard made an application for a stay, I gather that must have been dealt with why we were outside. Handley JA: She said there was no need to worry about it between now and Friday. Wentworth: I'm grateful to be told that. Handley JA: I said I was going to repeat it. I thought I did". Miss Wentworth complained about this episode (T (4) 57-8) but I can see no basis for complaint. The hearing was adjourned until 19 February. The transcript for that day records the following (T 57-8) - "Handley JA: Over the adjournment the Court has looked at the affidavit of Miss Wentworth of 12 February 1998 which was referred to as KW 2 which includes material about counsel and about Justices Beazley and Clarke. The Court ruled on the last occasion that it would not act on this material which it had not had a full opportunity to read. Having had a full opportunity to read that material, the Court will make an order under Pt38 r8 that the affidavit be taken off the file. I will direct that one copy of the affidavit be put in a sealed envelope and contained in the court URJ ROGERS v WENTWORTH (Handley JA) 9 records marked 'Not to be opened without the leave of the Judge'. The other affidavits will be returned to Ms Wentworth at a convenient time. Ms Wentworth you were addressing us on Wednesday - Wentworth: Is there some particular reason that your Honours feel it is not a matter for publication? Handley JA: It's scandalous. Wentworth: In what way? Handley JA: We've ruled we won't act on it. Wentworth: The Judge has already acted for Mr Rogers. That can hardly be said to be scandalous. It's a positively normal application made in any bias application. Handley JA: We will get on with the case now. Wentworth: I want my objection registered and the order that your Honour has made and I would like the basis of the objection noted that the affidavit set out two things: (1) that Justice Beazley - Handley JA: We are not going to hear argument. Your objection has been noted and we do not propose to take up time allowing you to develop the nature of your objection. We have ruled that we weren't going to act on that material and we have made that order and now we have two days for this case and we intend to finish it". At T 58 Miss Lydiard, with Miss Wentworth's consent, handed up a schedule relating to the cross-examination of Mr Rogers about admissions which included further evidentiary rulings of Sperling J of 13 and 18 April. At T 63 the following is recorded: 'Handley JA: Now, in relation to your challenge to the rulings of 12", 13", 28". Wentworth: Yes your Honour. What his Honour appears to have done in the judgment of 12 April and followed by this judgment of 13 April and 28 April where he keeps referring back to it is to determine the case should be limited as far as any evidence went - Handley JA: We know what he did. We are interested in whether the reasons that he exposed for doing it demonstrate error. Wentworth: I would find this much easier if I could proceed in my own case. I get a little thrown by judges jumping at me. If your Honour would be good enough to let me proceed, I will satisfy your Honour". At T 68 Miss Wentworth referred again to admissions made to Mr Graham and Mr Hegarty in 1977 and the following is recorded - "Handley JA: Miss Wentworth we really have to try and focus. We must finish this case by Friday afternoon. The exercise we are on at the moment is looking at Justice Sperling's ruling. You have embarked on that process and that does not require us to concern ourselves with Mr Hegarty. This error can be demonstrated on the face of Mr Justice Sperling's rulings? Wentworth: Yes, your Honour, p4. Handley JA: Thank you". Miss Wentworth relies on another observation of mine at T 74 - "At the moment I have to say to you I see nothing wrong with a person seeking to get a verdict not in the expectation that it will ever be paid in cash but in the hope or the expectation that it will be available as a set-off against existing claims for damages, debt or costs". 10 UNREPORTED JUDGMENTS At T 80 Miss Wentworth raised the question of my remarks on the previous Tuesday at T 51 about the bona fides of Mr Rogers' belief which have already been quoted - "T have to raise something now which your Honour said on Tuesday and it has concerned me for the last 48 hours. I must say this. Your Honour made a statement from the bench that the jury must have thought there was something in it because look at the amount of money they awarded him. We didn't have the transcript and I had waited to get the transcript - Handley: I don't think we have to go into this, Miss Wentworth. All I was saying is that at the moment I find it difficult to see how a judge would summarily dismiss a claim that has been to trial, has gone to the jury...". Discussion followed (T 80-1) and at T 81 the following is recorded - "Handley JA:... so what one is left with is this case got to the jury and if it is run again it will get to a jury on the same evidence and it is therefore rather difficult to say that it should be summarily dismissed. But your point on the onus of Mr Rogers, that is a separate point". (This was a reference to Miss Wentworth's submission that Mr Rogers had an onus to demonstrate that his case had merit in order to succeed in his application to set aside the ex parte order of dismissal.) At T 84 I referred to the fact that on 6 March 1987 this Court had ordered a new trial of Miss Wentworth's action for trespass and Mr Rogers' action for malicious prosecution (Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, 410) and said - "Can I expose my thinking on this. It is perhaps a rash thing to do but the general principle is that an acquittal cannot be challenged anywhere... this action for malicious prosecution is hedged around with restrictions but however tainted the criminal (acquittal) was it remains an acquittal and that element of the cause of action for malicious prosecution is incontestably established. However on the question of reasonable and probable cause, the whole merits, as it were, of the criminal guilt of Mr Rogers in a properly conducted trial will be before a jury... not in a direct or indirect attack on the acquittal, which must be accepted as conclusive, but on the issue of reasonable and probable cause. You may have had reasonable and probable cause for prosecuting Rogers and despite the fact that he was acquitted by the jury after (his) trial the Court in a civil case for malicious prosecution... will go straight to the question of the existence of reasonable and probable cause. The acquittal will be there, it will be taken as read and all of these matters will arise on the question of reasonable and probable cause and, of course, they will also come in on malice. If you have reasonable and probable cause then I think you will win even if there was malice. I am not even sure that malice is not a euphemism for the absence of reasonable and probable cause. That is where all these matters will arise. Is that right? Wentworth: That is precisely the position that Mr Hall, in a much more learned fashion than I, raised before Sully J... ". At T 86 I said on the same topic - "Sully J who thought the acquittal was sufficiently tainted to warrant a separate trial did not think it was so tainted that there should be a permanent stay and another judge has also held that there should not be a permanent stay or a summary dismissal. That is the point which I was seeking to concentrate your attention on and focus my own thoughts". URJ ROGERS v WENTWORTH (Handley JA) 11 Miss Wentworth also relies on T 89 where, following a submission by her that Sperling J had erred in finding that Mr Rogers had not appeared before Bruce J or Loveday AJ because of a mistake, I said that a finding of fact of that nature, however important to the parties, was not normally a matter which would attract the grant of leave to appeal. At T 92, after Miss Wentworth had made further submissions based on the acquittal of Mr Rogers being tainted, I said - "Sully J, I think, did the right thing. He thought this acquittal had been obtained in such circumstances (that) it should not be before the jury in your assault case and I can well understand why Sully J did that and other judges would do it. It would be unfairly prejudicial but it cannot be avoided in that way in a malicious prosecution case but the merits can all hang out in relation to malice and absence of reasonable and probable cause. Wentworth: If it cannot be before the jury in a civil case and the assault case, it cannot be before a jury in the mal pros because it is tainted and if it cannot be before a jury in the mal pros, the mal pros cannot commence much less proceed. I seem to be having a continual string of comments from your Honour and the bench that 'when this trial proceeds'. I think that is about the seventeenth time you have continually said 'when the trial proceeds' and that will be able to be shown. Handley JA: I did not say 'when the trial proceeds' I should have said 'if the trial proceeds'. Wentworth: Your Honour has demonstrated and it will be shown on the transcript such a mindset that the trial will be proceeding I wonder whether you wish me to continue? Handley JA: I wish you to continue. Wentworth: I will trust that from here on in perhaps the pre-judgment that appears to have been made will be wiped from your Honours' minds. Sheppard AJA: There is no pre-judgment. I think you may have an oversensitive ear when judges speak, otherwise we'll be quiet and say nothing and then we will not find out what we should find out. Wentworth: I am most grateful because I can then hear what it is your Honour wants to hear but from my point of view I am hearing something which is making me extremely unhappy as to the fact that what I am trying to do might already have been determined. Sheppard AJA: Nothing has been determined". Contrary to Miss Wentworth's recollection, the transcript contains no statement by myself, or any other judge, about what will happen "when" the malicious prosecution action against her proceeds. At T 92 I merely said that the merits "can all hang out". Earlier at T84-5 I used the word "will" more than once but the references were hypothetical. Miss Wentworth's immediate reaction to my comments on those pages did not suggest a perception of pre-judgment. On T 97, after further submissions based on the events of 17 September 1994 before Bruce J, I said - "We have to forget about the 17". Nothing happened, except an adjournment. If Mr Rogers or his counsel or solicitor turned up on the 24" his case would be no better and no worse because he was not there on the 17". This was followed by further submissions about findings of fact made by Sperling J which caused both myself and Sheppard AJA to state that findings based on credit were not grounds for leave to appeal. Further submissions on factual matters followed and at T 1011 said, "It is just after 3. I think we are getting to the stage of... hearing the same thing for more than the second time. I 12 UNREPORTED JUDGMENTS think that unless there is something fresh on this you might go on to the question of disclosure or the general verdict as you see fit". Further factual submissions followed, including one based on delay, and at T 104 b I said, "That really is a nothing point, I'm afraid. He (Sperling J) does not say there is no delay. He said there was no serious delay. That is a question of fact and degree on which we could not conceivably grant leave to appeal". There were then further factual submissions, and the following was recorded at T 107 - "Handley JA: Miss Wentworth - Wentworth: Could I please finish - Handley JA: I have to intervene and say you are avoiding or not facing up to the principal question here which is the non disclosure of Mr McLean's letter of middle of October. All the rest of it is what I have described earlier as dross. They are matters which a single judge can take into account in your favour and if he didn't take them into account in your favour we apply the same rules to other people we would not give you leave to appeal. The critical matter here is the non disclosure of the letter to Russo of middle October and if you can displace that you have a real chance if you don't displace that then you have no chance. Wentworth: I am endeavouring to displace it. If you allow me to do that I would be grateful - Handley JA: This is not going to help you at all. Wentworth: The crux of the matter is set out in letter of 23 September. I was taking your Honour to the paragraph - Handley JA: This letter is not going to help you dispose of a non disclosure of Mr McLean's letter to Russo of middle October. Wentworth: There was no non disclosure. Handley JA: Well then deal with that. Wentworth: I am trying to. Handley JA: No you're not. You are entitled to go until 5 o'clock tonight and at the end of that time your time is up. If you waste time dealing with the dross you will not have an opportunity to deal with the gold". At T 109 I pointed out the lateness of the hour and said that Miss Wentworth had very little time left to deal with issue estoppels created by the jury verdict and the earlier decision of Beazley JA and Clarke AJA to refuse leave to appeal. Miss Wentworth asked that the matters be adjourned to the next day because she was tired and the Court agreed to sit at 9.30. At T 120 I gave a direction that she conclude her submissions on the current matter by 10.15. The hearing continued the following day and at T 125-6 Sheppard AJA and myself intervened to remind Miss Wentworth of her time limit and the need to focus on significant issues. At T 127 she was making submissions about the cause of action estoppel and merger by judgment consequent on the jury's verdict and I twice intervened in an attempt to focus her attention on the question of issue estoppel. At T 131 I again intervened to say that the Court was getting repetition and she should move on to the reopening of the earlier Court of Appeal decision. At T 133 I informed her that her time was up on res judicata, that she had gone past 10.15, and that the Court was already giving her an indulgence. The transcript then records the following (T 133-4) - "TI really find it's very difficult when in this complex matter which Justice Sheppard says he wants to be satisfied on - Sheppard AJA: I have been trying to get you to come to this since Tuesday. Wentworth: I understand that your Honour. That is why I'm finding it very difficult to be cut off. URJ ROGERS v WENTWORTH (Handley JA) 13 Sheppard AJA: I think I understand the problem. You have put it as succinctly as it can be put. I follow it. I have to consider it. I will do my best to do that. Wentworth: Paral84 at p90 - Handley JA: You are being stopped on res judicata. Your time is up. Would you move on to reopening the decision of the Court of Appeal. Wentworth: Your Honour decided this is the most important part of the case. You have heard me for 15 minutes. Handley JA: That is a result of your decision as to how you use your time. We told you last night you had until 10.15. Would you now please move on. Sheppard AJA: We have been begging you all day yesterday to try to get to this point and the other point. You just took no notice of us. Wentworth: I have been endeavouring to get to this point. I apologise for being slow, but it is purely because I am constantly interrupted by the bench. Not by your Honour and not by your Honour - Handley JA: By me? Wentworth: Yes. Handley JA: Yes indeed. Wentworth: I find it is astonishingly difficult. You interrupted me for one hour and a half yesterday. It is really very hard to put something in an orderly fashion. Every time I get to a point which is crucial you stop me. There has to be a reason for that. Handley JA: Will you now please move to the principles that you indicated in relation to reopening the earlier decision of this Court. Wentworth: Yes. Firstly one has to go to the judgment of the Court and the way in which and the terms in which they are couched. If your Honour would like to take in hand the affidavit you decided you would lock up in an envelope - Handley JA: No Miss Wentworth, that was not to be locked up. We have already ruled on that. We ruled on that on the first day. Wentworth: I am using it because it is convenient. That is where I have those judgments. Handley JA: You may use it as an aide memoire but we are going to take your oral submissions". Her submissions concluded at T 140 B. The Court then withdrew to consider the course it was going to take, and on return I said - "Ms Preston, we would like to hear you on issue estoppel. The Court would like any assistance you could give us on elucidating the reasons of the earlier Full Court on 12 June. You heard what Miss Wentworth said and some comments from the bench. We would like to know if there is anything you wish to add or refer us to on the events leading up to 24 October 1994 that has not already been raised: something new. If there are any particular matters you wish to draw our attention to that have not been raised by Miss Wentworth or have not been referred to by the Court. That is the scope of it. We will be reserving our decision". Miss Preston concluded her submissions at T 143 and Miss Wentworth then began her reply. At T 144 and 145 I intervened to state that her submissions were not in reply. T 146 records the following - "Handley JA: This is getting out of hand, we are reviewing a decision of 12 June 1997. We are not going to take more material in reply when we have heard you for a day plus in chief. This is not in reply. We are going to finish more of these cases today than just one. Wentworth: It is in reply. 14 UNREPORTED JUDGMENTS Handley JA: It is not in reply and will not be entertained. Wentworth: It is in reply to the matters of 11 October. Handley JA: Have you anything further to say in reply. Wentworth: Yes I do. Handley JA: It must be strictly in reply". At T 147 I said - "Miss Wentworth the Court considered what we should deal with now is your application for leave to appeal, however that is expressed, from the cost order of Sperling J of August 1997". At T 148 I said - "Obviously if we were to (decide) in your favour with the previous proceedings, this cost order would fall. We don't want any re-run of the first case on this case. This case has to be dealt with on the basis that the first decision stands. That is the hypothesis that Sperling J made. Any other basis is unreal because we don't have an attack on the costs order, it should be an attack on the principal order. The principal order looks after itself, it either stands or falls. We would be assisted and you would be assisted in your own interests if you focussed on either errors of principle in Sperling J's approach on the cost order, assuming his first judgment was correct, that is September 1996, or any new errors of fact or law, not just transferred errors from the reasons of September 1996". At T 152-3, Miss Wentworth attempted to address the Court on behalf of Mr Russo, and on a number of occasions I, and on one occasion Stein JA, informed her that she could not do that. The following was then recorded - "Handley JA: Miss Wentworth you made a submission a moment ago that an order should not have been made against Mr Russo personally. You are not in a position to make that submission. Wentworth: I am - Handley JA: I direct you not to say anything more on behalf of Mr Russo directly. Please let us get on with the issues and focus. Wentworth: I am finding what you are doing is making my task virtually impossible. Handley JA: Your task is to address us on behalf of Yourself". At T 155-7 Miss Wentworth made submissions based on the refusal of Sperling J to entertain a second application that he disqualify himself from making costs orders. I, and to a lesser extent Stein JA, sought to have Miss Wentworth direct her submissions to the costs order of 28 August, and not to the decision to refuse to entertain the motion of 8 July. Finally, immediately before the luncheon adjournment, I said (T 157) - "We will adjourn now and the Court is unanimously of the view that you not make any further submissions based on Sperling J's refusal to entertain your second application that he disqualify himself made by a notice of motion of 8 July. We will of course continue to hear you on your challenge to the rest of that judgment". The proceedings during the afternoon were without incident. At the end of the hearing that day directions were given for the hearing of the remaining issues (T 189-194). During this discussion the Court (at that stage myself and Sheppard AJA) declined to entertain an oral application by Miss Wentworth that the Court "deal with" Miss Lydiard and Miss Preston. The proceedings were then adjourned to a date to be fixed. I have set out most of the interventions Miss URJ ROGERS v WENTWORTH (Handley JA) 15 Wentworth relied upon, and they are extensive, but they need to be evaluated in the context of a transcript of argument which occupies 194 pages. On 27 February my associate notified the parties that the proceedings had been listed for further hearing on 10 March. Later that day she received a facsimile message from Mr Russo which sought an extension of time for Miss Wentworth to file written submissions "due to her current medical conditions". Miss Wentworth telephoned my associate a number of times during March to report that she was not well and might have to seek an adjournment (T (2) 10/3/98 p3). On 2 March she filed motions that I disqualify myself. On 9 March my associate received a telephone message from Miss Wentworth seeking an adjournment of the hearing the following day because she was unwell. I was then in Court and at 12.24 at my direction my associate sent a facsimile message to Mr Russo, which was copied to Miss Wentworth, stating that the Court expected the cases to proceed if this was at all possible, that if Miss Wentworth was too ill Mr Russo should appear on her behalf, and in any event the Court would require an affidavit from Professor Bryant that Miss Wentworth was too ill to attend Court and argue her case. During the lunch adjournment, in the absence of my staff, I took a phone call from Miss Wentworth who asked for an adjournment. I told her that the direction stood and the matter would remain in the list. Soon afterwards my chambers received a facsimile letter from Mr Russo with attached certificates from Dr Hollow and Professor Bryant. A further letter was received about 4pm with a further certificate from Professor Bryant. The matters were listed before the Full Court on 10 March when Mr Russo appeared on his own behalf, and as a matter of courtesy in all matters in relation to Miss Wentworth. Mr Rogers was represented by Miss Lydiard and Miss Preston. Miss Wentworth has relied on the transcript for that day. It records the following opening remarks by me directed to Mr Russo - "The exact nature of your professional relationship with Miss Wentworth has never been particularly clear to me and I have never had to get to the bottom of it. The Court as you would know from your own professional experience receives a number of applications for adjournments on medical grounds and the Court has to be cautious in the way it approaches these. We have decided to grant this adjournment but we will discuss the date in a moment". In answer to a question from me, Mr Russo said that Miss Wentworth's condition, referred to by Professor Bryant as an auto-immune disease, was Sjégren's Disease. I said that I had thought that "Shogun" was a Japanese General and Mr Russo said "that's exactly what I said originally". Miss Wentworth relied upon my remarks as indicating bias but I cannot see how anyone else could think this. Discussion followed about the future hearing of the cases, and at T (2) 4 I referred to the status of Sheppard AJA as an Acting Judge, and that I would shortly be proceeding on long leave to Cambridge. Further discussion followed in relation to the assessment of costs under the orders of Sully J in favour of Miss Wentworth, and under the orders of Sperling J in favour of Mr Rogers. Mr Russo said that the practical effect of the costs order made by Sperling J was that he pay the costs because Miss Wentworth was unable to do so. The following was then recorded - 16 UNREPORTED JUDGMENTS "Handley JA: I would have thought, let us assume you were successful in your appeal in 40590 and Miss Wentworth was not. That is quite a conceivable result off the top of my head but the costs would be the same in each case. If indemnity costs stand it is a joint and several order against you and Miss Wentworth. Russo: I appreciate that. Handley JA: Unless we were to reverse Sperling J completely it is likely that at least an ordinary costs order will stand against Miss Wentworth". Miss Wentworth relies upon this exchange as indicating pre-judgment on my part. She also relied upon another discussion between Mr Russo and myself at T (2) 9 about the differences between the orders made by Sully J in favour of Miss Wentworth which were final, and the orders of Sperling J in favour of Mr Rogers which were not. My remarks about the costs order of this Court referred to the order made by Beazley JA and Clarke AJA on 12 June 1997 on which Mr Rogers could proceed to an assessment. The discussion was about assessments under existing orders. The directions of the Full Court on 10 March included the fixing of a new hearing date for 27 March with a mention before me on 23 March to ascertain whether the hearing on 27 March could proceed. Miss Wentworth also relies on the transcript of this directions hearing. She and Mr Russo appeared, as did Miss Lydiard and Miss Preston. An affidavit by Professor Bryant deposing to Miss Wentworth's current medical position had previously been filed which stated that she was too ill to appear in court. Miss Wentworth relies on remarks made by me at the start of the mention (T (3) 1) as follows - "... Miss Wentworth you're here I see but you I take it don't wish to proceed with any substantive hearing on Friday... the Doctor said you weren't fit - but you're here so I just wondered if you'd been to Lourdes in the meantime, but if you wish the Court not to proceed to... hear what I'll call the global costs set-off application of Mr Rogers on Friday, I understand what your position is and I'll now ask Miss Lydiard what - Wentworth: Well your Honour if you could just give me the courtesy. The first thing that has to be - His Honour: You're getting a lot of courtesy Miss Wentworth. Miss Wentworth: I beg your pardon. His Honour: You're getting a lot of courtesy". I thought that her presence indicated a degree of recovery since Professor Bryant's affidavit. Miss Wentworth said that my reference to Lourdes was sarcastic. (T (4) 86) It was intended to refer to her partial recovery and lighten the atmosphere. It may have been unwise or even foolish, but I cannot see how it could be regarded as evidence of bias. At T (3) 3-4 Miss Wentworth protested against the directions made by the Full Court on 10 March and asserted that "the real problem" was that I was going on long leave, and Sheppard AJA's commission expired on 30 June. At T (3) 5-6 she asked me if I had gone to Cranbrook, and I said I had. She then asked me if I had been at school "with" Mr Rogers, and I said I had not. In answer to further questions I said I was a member of Royal Sydney Golf Club, but not of Colleagues Rugby Union Club, and, as far as I know, I had never met Mr Rogers in my life. I heard argument on whether the hearing on the following Friday should proceed on a limited basis, and whether the Court should require Professor Bryant to attend for cross-examination. I said that all members of the Court were disposed to accept his affidavit. Arrangements were worked out for a stay of URJ ROGERS v WENTWORTH (Handley JA) 17 execution on any costs assessment against Mr Rogers, and for a stay of proceedings on any bill of costs served by Mr Rogers, and revised dates were fixed for the filing of the outstanding written submissions. The hearing for 27th March was then vacated and I adjourned. Stein JA later conducted a number of directions hearings. In the result Miss Wentworth's application that I disqualify myself was heard by me, sitting alone, on 28 August. Miss Wentworth also relied upon the joint judgment of myself and Stein JA in Wentworth v Wentworth (5 August 1998, u/r). The Court dismissed summonses by Miss Wentworth for leave to appeal from decisions of McLelland CJ in Eq, Simos J and Hodgson J refusing to grant Mareva injunctions, and against decisions of Simos J and Hodgson J which in one case set aside, and in the other case refused to grant, an order for the examination of her brother as to his assets. The refusal of Stein JA and myself to grant leave to appeal in those cases did not demonstrate bias on my part against Miss Wentworth. The time taken to deliver the judgment was most regrettable, but the status quo was being maintained by an interim Mareva injunction that I had granted on 23 June 1997. Miss Wentworth complained that leave to appeal had been refused in one case although she had established significant errors. She said that the cases were only before the Court for leave ('"... that's all we were there for. There is no suggestion that we were there for anything else". T (4) 89). However the transcript of the hearing on 14 July 1997 at p2 records Miss Wentworth as saying, "The first application I make is I be granted leave to appeal and the application for leave to appeal be treated as the appeals and the appeals be granted instanter... the applications for leave to appeal - it may be a useful use of the Court time to hear those as the appeals". There is nothing unusual in an appellate court declining to interfere despite error if that error did not affect the result. As we said in our judgment (p14) we had heard full argument from her and she had invited the Court to treat the hearing of the summonses as the hearing of the appeals. Miss Wentworth also complained about the direction for the entry of the orders forthwith. This was intended to achieve finality, so far as that was possible, but the orders were interlocutory and subject to revision in a proper case. Miss Wentworth has often treated an adverse decision as the occasion for an application for review rather than appeal, and a court which has determined a proceeding can discourage an application for review. The present application has arisen in unusual circumstances. The proceedings are in an appellate court comprising three judges with myself presiding. Almost all relevant cases have involved trial judges or the equivalent, including appellate judges exercising original jurisdiction as in Livesey v NSW Bar Association (1983) 151 CLR 288. Grassby v The Queen (1989) 168 CLR 1, which involved a Judge of the Court of Criminal Appeal, appears to be the solitary exception, although a number of Judges in this Court have stood down in proceedings involving these parties. The application was made after the third day of hearing and I had previously sat on a directions hearing, although Miss Wentworth raised questions of pre-judgment on the second and third days of the hearing. The proceedings involve a second challenge to interlocutory orders of Sperling J. The proceedings before him were but the latest rounds in a litigious saga going back many years. When a new trial was ordered by this Court in Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, experienced senior counsel appearing for Miss Wentworth did not seek judgment in her favour on the cross-claim. It is therefore evident that there was a case to go to the jury on the cross-claim. In 1994 Sully J refused to order a permanent stay of the cross-claim. In 1996 18 UNREPORTED JUDGMENTS Sperling J again refused to order a permanent stay. In 1997 Beazley JA and Clarke AJA dismissed Miss Wentworth's summons for leave to appeal from Sperling J. The procedures of this Court require Judges to read the judgment under appeal and the written submissions of the parties before the hearing. This makes particularly relevant the principle stated in The Queen v Commonwealth Conciliation and Arbitration Commission ex parte Angliss Group (1969) 122 CLR 546 at 553-4: "Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it". As has been said, appellate judges go into court with open but not empty ones. The appellate character of the proceedings is also relevant for other reasons. Sperling J heard oral evidence, including extensive cross-examination, and made findings of fact. Findings of fact by trial judges are binding on this Court subject to the narrow exceptions allowed by Abalos v Australian Postal Commission (1990) 171 CLR 167. Such cases are "pre-judged" so far as this Court is concerned unless arguably within those exceptions. A similar principle applies where the appellant challenges a discretionary judgment. These cases are also "pre-judged" so far as this Court is concerned subject to the principles which authorise interference with the primary judge's exercise of discretion. This was explained by Jordan CJ in In re the Will of Gilbert (1946) 46 SR (NSW) 318 at 323: "\.. there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge... to a Court of Appeal". Another bench of this Court has already dismissed a summons by Miss Wentworth for leave to appeal from the substantive decision of Sperling J. Their order was interlocutory and had not been entered so this Court retained the power to review it, but an applicant is not entitled to a rehearing as of right. The relevant principles were stated in Smith v NSW Bar Association (1992) 176 CLR 256 at 265: "The power is discretionary and,... it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review. And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal.... these considerations may tend against the reopening of a case The effect of these principles was to confine the relevant issues of fact and law in the proceedings before the Court within relatively narrow limits. Miss Wentworth either did not understand these limits, or wished to ignore them. It URJ ROGERS v WENTWORTH (Handley JA) 19 was my duty as the presiding judge to endeavour to keep her arguments within the limits of relevance. If the proceedings challenging Sperling J's substantive orders had been conducted by competent counsel they would probably have lasted no more than two hours whatever the outcome. The fact that they have already lasted for nearly three days demonstrates not only Miss Wentworth's tenacity and the absence of pre-judgment but also the anxiety of all members of the Court that she receive a fair hearing lest some substantial point in her favour, hitherto overlooked, is missed. However this cannot be an open-ended process. Miss Wentworth has legal training and considerable forensic experience. The Court must attempt to balance the interests of the other party, the Court and other litigants, by ensuring that there is no undue or unfair concentration of scarce resources on this case. The relevant principles were explained by Mahoney JA in Wentworth v Rogers (22 July 1987, u/r, at p24-p25): "... that an application may be brought by a party does not mean that all applications which are brought must be seen to have substance or must be heard at length. The Court has the duty to examine each case put before it to determine whether it has any substance. If, after an appropriately careful examination, the Court is satisfied that the application has no substance, it will dismiss it. It has both the right and the duty to ensure that the resources of justice are available to the whole of the community and are not wasted. In order to determine whether an application has substance, it is not necessary that it be heard at length... What will be required to ensure that the Court understands the application and the justice of it will depend on the application. In some cases these will be plain beyond argument; in others, little argument or explanation will be warranted. And in such cases, no sensible person would doubt that justice was being done because the court reduced the argument to an appropriate length... If, after an appropriately careful consideration, the court is satisfied that the application brought before it, whether it be by a litigant in person or a lawyer, has no substance, it is not obliged to listen to the litigant or the lawyer interminably". See also Gamester Pty Ltd v Lockhart (1993) 67 ALJR 547. These principles apply, not only to proceedings as a whole, but to particular issues within a proceeding. It was my duty to endeavour to confine Miss Wentworth's arguments within proper limits of time, relevance and sustainability. If those limits had been strictly enforced, the proceedings challenging Sperling Js substantive orders would have concluded, regardless of the outcome, within the first day. Miss Wentworth's submissions overlooked this "big picture" and focussed on particular incidents in many of which I was only attempting to do my duty. A substantial number of the interventions complained of were of this character. Some of my interventions reflect a firm view that some point was irrelevant or unarguable. This Court, for example, is bound to "pre-judge" legal principles established by decisions of the High Court. Other interventions, even in dogmatic terms, made after argument reflected judgment and not pre-judgment. An appellate judge who has read the judgment under challenge, the appellant's written submissions, and heard the appellant's oral argument at sufficient length, is entitled to form and express a view that a point is not a good one, and encourage or direct argument to the next point. Other interventions were of a tentative character, made in order to be tested by further argument, or by comments from other members of the Court. Such interventions contribute to the fairness of the proceedings. The High Court said in The Queen v Watson ex parte Armstrong (1976) 136 CLR 248 at 264: 20 UNREPORTED JUDGMENTS "During the course of argument a judge will often follow the common, and sometimes necessary, course of formulating propositions for the purpose of enabling their correctness to be tested, and as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory". In Vakauta v Kelly (1989) 167 CLR 568 at 571, the Court extended these principles saying: "Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge... discloses the existence of... views in the course of the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case... It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated". Miss Wentworth clearly is convinced that I am biased against her and have pre-judged important issues in these proceedings. No judge likes to continue sitting in such circumstances, but there is no easy way out after a three day hearing. Moreover Mason P, Meagher, Sheller, Powell and Beazley JJA have previously disqualified themselves on Miss Wentworth's application, and Priestley JA, on Mr Rogers' application, leaving only the present Bench and Fitzgerald AJA from the available Judges able to sit in proceedings between these parties. The principle of necessity is not yet applicable but that stage is not far away. The High Court has emphasised the duty of a judge to sit unless the ground for disqualification is "firmly established". See The Queen v Commonwealth Conciliation and Arbitration Commission ex parte Angliss Group above at 553. In Livesey v NSW Bar Association (1983) 151 CLR 288, 294 the Court said: "\.. it would be an abdication of judicial function and an encouragement of procedural abuse for a Judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias... a judge should not automatically stand aside whenever he is requested so to do...". In Re JRL exparte CJL (1986) 161 CLR 342, 352, Mason J said: "Tt seems that the acceptance by this Court of the test of reasonable apprehension of bias... has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour". As Dawson J said in Grassby v The Queen (1989) 168 CLR 1, 20, "The mere expression of the apprehension of bias does not establish that it is reasonably held; that is a matter which must be determined objectively". The High Court has repeatedly emphasised that the test is objective and does not depend on the sincerity of the objector. In Vakauta v Kelly (1989) 167 CLR 568, 573 the test URJ ROGERS v WENTWORTH (Handley JA) 21 was said to be the perception "of a reasonable and intelligent lay observer', or at 585, "a fair-minded observer". See also Webb v The Queen (1994) 181 CLR 41, 47, 51. The High Court has also considered the extent of the knowledge to be attributed to the lay observer. This is particularly important here where the case has a long history and the proceedings are before an appellate court. In Webb v The Queen at 52, Mason CJ and McHugh J said: "Tf public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored... the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case. This does not mean that the trial judge's opinions and findings are irrelevant. The fair-minded and informed observer would place great weight on the judge's view of the facts. Indeed, in many cases the fair minded observer would be bound to evaluate the incident in terms of the judge's findings". The latter point has particular relevance where issues have already been determined adversely to Miss Wentworth by Sully J, Sperling J, Beazley JA and Clarke AJA. In the same case Deane J said at 73: "The fair-minded observer is a hypothetical figure. While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court. The material objective facts include, of course, any published statement... of the person concerned". See also Gascor v Ellicott (1997) 1 VR 332, 343 where Tadgell JA said that "the observer whose view the court is to seek is in my opinion to be fastened with sufficient knowledge to enable a rational and reasonable view - not just a perfunctory or superficial view, to be formed". In Vakauta v Kelly at 584 Toohey J assumed that the lay observer knew in that case that the matter before the trial judge involved "an assessment based upon the evidence, lay and medical, of an appropriate amount to compensate the respondent for injuries she had suffered", and at 585 that the fair minded observer would be aware of "the nature of the litigation". In the present case the lay observer should be assumed to know that the proceedings involved a challenge by Miss Wentworth to a decision by Sperling J, made after a 37 day hearing, and a decision of Beazley JA and Clarke AJA to refuse leave to appeal, made after a 2 day hearing. It may not be right to impute to the lay observer knowledge of the principles established by Abalos v Australian Postal Commission, House v The King, and In re the Will of Gilbert. However in my view "the nature of the litigation" for present purposes should include knowledge of the broad distinction between an appeal and an application for leave to appeal. In my view a lay observer with this basic knowledge would not infer from my interventions which reflected views on issues of fact or law that I was biased against Miss Wentworth or had impermissibly pre-judged those issues. Miss Wentworth also complained about the frequency with which I interrupted her submissions and the transcript reveals a large number of such interruptions. I would not seek to support every interruption but merely say that I was 22 UNREPORTED JUDGMENTS attempting to control the length of the proceedings and to direct Miss Wentworth's submissions to issues which were arguable. The "big picture" is that despite my interruptions Miss Wentworth was heard for a very much longer time than counsel would have been. In my opinion the principles stated in Galea v Galea (1990) 19 NSWLR 263 at 278-9 by Kirby ACJ are applicable in this case: "His Honour was making his reaction to the evidence of a witness clear. But he was doing so at an advanced stage in a complex trial involving a serious conflict of facts and clashes of testimony. If every time a judge did this, and the litigant could assert that it led to a reasonable apprehension of bias, the consequence would be silence on the part of the judge. His or her thinking would then remain, sphinx-like, unknown to the parties or their representatives... In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. The judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges like witnesses are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing.... Some of the expressions of Powell J, combed over in a detailed examination of the transcript are such that, with hindsight, they could doubtless have been improved. On the other hand the right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in the context". Finally Miss Wentworth referred to the events during the short hearing by the Full Court on 10 March and the directions hearing before myself on 23 March. She complained about my refusal to grant her an adjournment on 9 March. The strict position of course was that I could not do so on the basis of a facsimile letter and a phone call. The case was listed before a Full Court and another party was involved. I was also concerned that the hearing of the proceedings be completed as soon as possible, and that an adjournment was not obtained without proper grounds. In my opinion the hypothetical lay observer would expect no less. She relied on my remarks at T (2) 4 previously referred to. The context for those remarks was the wish of Mr Rogers' lawyers to proceed with an assessment of the costs on an indemnity basis payable jointly and severally by Miss Wentworth and Mr Russo under the order of Sperling J. This order was challenged on two bases; the first was a challenge to the substantive orders, and the second to the costs orders only. The Court had heard full argument on the substantive orders and there could no longer be any question of "pre-judgment". It had heard some argument on the costs orders, but this part of the hearing was far from complete. The discussion relied on was intended to explore the utility of assessing costs under those orders which might be set aside, in whole or in part, and the various possibilities that existed. Discussion on my part was hypothetical. It was probably unwise but after three days of hearing I do not believe that it was evidence of bias or pre-judgment. URJ ROGERS v WENTWORTH (Handley JA) 23 At (4) 83 during the disqualification hearing Miss Wentworth said that earlier that day I had said "when this matter goes to the High Court if I don't stand down for pre-judgment". What I said, recorded at T (4) 7 is, "Should I decline to excuse myself, then the matter may be ventilated and appropriately ventilated in the High Court", which does not convey the meaning she suggested. In my opinion Miss Wentworth has failed to establish a firm basis for a reasonable apprehension that I have not and would not bring to bear an impartial and unprejudiced mind to the resolution of the issues in this case. I decline to disqualify myself and I dismiss the motions of 2 March.