ROGERS v WENTWORTH; WENTWORTH v ROGERS; WENTWORTH v ROGERS [1998] NSWCA 290

ROGERS v WENTWORTH; WENTWORTH v ROGERS; WENTWORTH v ROGERS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, STEIN JA and SHEPPARD AJA 21 October 1998

[1998] NSWCA 290

COURTS AND JUDGES — refusal to disqualify for bias — whether appellable order

The claimant filed notices of motion seeking a review by a Full Court of the Court of Appeal of decisions by Handley JA and Stein JA declining to disqualify themselves from further hearing part heard proceedings and from delivering a reserved judgment. She sought to have the Court delay delivery of the reserved judgment until the review proceedings had been heard and determined.

HELD: (1) There was an established line of authority in this Court that decisions of judges refusing to disqualify themselves were not, as such, orders susceptible to appellate review. Such decisions excluded any internal appeal within the Court of Appeal from an order of a Judge of Appeal refusing to disqualify himself. The Queen v Watson; ex parte Armstrong (1976) 136 CLR 248 at 266 and Barton v Walker (1979) 2 NSWLR 740 followed. (2) For that reason the proposed review proceedings within the Court of Appeal had no reasonable prospects of success and should be dismissed as frivolous and vexatious. (3) The Court as presently constituted had to decide these questions in order to decide whether it would defer delivering its reserved judgment. (4) The reserved judgment should therefore be delivered leaving the claimant to her right to challenge the decision in the High Court.

Handley JA. These proceedings were heard by the Court as presently constituted on 17, 20 and 21 February this year. Judgment was then reserved on the motion of 30 June 1997 to re-hear a summons for leave to appeal from the decision of Sperling J of 10 September 1986, his formal orders being made on 26 February 1997. The other proceedings were adjourned part heard to a later date, and are listed before this Court today.