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. On 2 March Ms Wentworth filed motions that I disqualify myself for apprehended bias or pre-judgment. I heard these motions sitting alone on 21 August and dismissed them on 9 October. Ms Wentworth has now sought a review of my decision by a Full Court of this Court. I sat alone to hear the motions that I disqualify myself but in truth I was sitting as a member of the Full Court. I did not sit as a single Judge under s 46 of the Supreme Court Act. Yesterday Mr Justice Stein refused a similar application that he disqualify himself and today Ms Wentworth has filed in Court an application to review that decision also. There is no precedent in this Court, elsewhere in Australia, or in England, for a Court of Appeal to review a decision of one of its own members to refuse to disqualify himself or herself. In fact there is persuasive authority to the contrary. In The Queen v Watson; ex parte Armstrong (1976) 136 CLR 248 at 266 the majority justices said: It was submitted on behalf of the husband that the wife's proper remedy was to appeal to the Full Court of the Family Court. As to that submission no more need be said than 2 UNREPORTED JUDGMENTS that an appeal lies only from a decree (s 94(1)) which means a "decree, judgment or order" (s 4(1)) and a judge who simply continues to sit after it has been submitted that he is disqualified does not thereby make a decree. No doubt an appeal could have been brought if the learned judge had finally given judgment in the matter. In Barton v Walker (1979) 2 NSWLR 740 Samuels JA, giving the principal judgment of the Court comprising Reynolds JA, Glass JA and himself, said at 7T49-S0: The reasonable apprehension of such a suspicion (that is of bias) is wholly inimical to the proper administration of justice. That principle is not in issue. What is in question is whether a judge of the Supreme Court, which is a superior court of record and of unlimited jurisdiction, will entertain a motion that he should disqualify himself from commencing or completing a case before him on the ground that such a suspicion may reasonably be said to exist. Counsel were unable to refer us to any case in Australia or in England in which such a motion had been made. I cannot myself either find or recall one. It is of course not uncommon for a judge to disqualify himself on the ground of some past or present association with a party and to arrange without notice to either party for another judge to sit in his place ... But the fact that there is an informal practice which requires the individual judge to determine his own disqualification and which is seen to work well does not of itself entail that no parallel formal procedure can be invoked. ... It is, however, to my mind, a matter of real difficulty to conceive of an order directed by the judge to the judge forbidding himself to hear the case; at least in the absence of statutory regulation. Moreover, there would appear to be no way of enforcing such an order, since committal or sequestration of property (Pt 42, r 6 (2) (a) and (b)) can hardly be regarded as appropriate remedies to be enforced against a judge for disobedience of his own order ... The further difficulty encountered is that of the judge acting as judge in his own cause. How does the judge deal with assertions of fact which he knows to be incorrect? They might not bechallenged by the party not moving. How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate? The problems are compounded when one comes to consider the case of the collegiate court. Suppose a challenge is made to one judge of the three rostered to hear the case. How is the matter to be dealt with? Does that judge hear the "motion" and make an "order" which may affect the Court's business, something which he will ordinarily have no power to do? Or do his colleagues determine the application and make an "order" which binds him, something which they would ordinarily have no power to do? Or is another division of the Court to be assembled to decide the matter? In the Supreme Court of the United States where disqualification for interest is not wholly uncommon the decision is for the individual justice alone ... These considerations, in my view, clearly show that a motion to disqualify a judge of the Supreme Court is not cognisable. The present informal practice is sensible and adequate. His Honour continued at 751 after referring at some length to the United States authorities: What emerges from these authorities is that even where an interlocutory procedure has been established for disqualification on the ground of actual bias, the public interest in the expeditious administration of justice is seen to militate against interlocutory appeals (or their equivalent) where all questions at issue may be determined upon an appeal after final judgment. But in the end this first question is determined by what was said by the majority in Watson's case. His Honour then set out the passage from Watson's case I have already quoted and continued: Nor does he make an order ... if he announces that he will sit or gives reasons for deciding to do so. I do not consider that any order was made in the present case from which an appeal can be brought. UFQGERS v WENTWORTH; WENTWORTH v ROGERS; WENTWORTH v ROGERS (Handley JA) At 758 his Honour concluded: Accordingly a party must take suspicion of bias as a ground of appeal after judgment. He cannot summarily disqualify the judge; he must fight the case through. That decision was followed by another Full Court of this Court in Radjski v Wood (1989) 19 NSWLR 512 at 517-8 by Kirby P, at 522-3 by Priestley JA, and at 524 by Hope AJA. The principle has also been applied or referred to in other cases which I need not refer to. It was also applied in the Federal Court of Australia in Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48, a decision of Davies, Gummow and Heerey JJ where, after final judgment, they reversed a decision of a trial judge who had wrongly disqualified himself. Ms Wentworth has relied on an article by Sir Anthony Mason, 'Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review', of 1 August 1998 in the 'Constitutional Law and Policy Review'. This article was published in the aftermath of the decision of Callinan J in Kartinyeri v The Commonwealth (No 2) (1998) 72 ALJR 1334 not to disqualify himself for apprehended bias and the proceedings taken by the plaintiffs to have that decision reviewed by the other judges of the Court. She has also relied upon the written submissions of Mr Spigelman QC, as he then was, and the Solicitor General for South Australia, lodged in the review proceedings. The Court has had an opportunity of considering those materials overnight and has heard further submissions on them today. The article by Sir Anthony Mason does not suggest that the course of authority in this Court following The Queen v Watson; ex parte Armstrong was wrong or that an intermediate appellate court, such as this, could refuse to follow those decisions. He was suggesting that the law ought to be different and reviewing arguments that could be addressed to the High Court on a challenge to existing authority. He was also suggesting that intermediate appellate courts could or should make different arrangements for dealing with applications of this nature so that they are heard by other judges and not by the judge in question. In my view there is a real question as towhether the existing law would permit a course such as this to be taken. No such application was made before this Court first sat to hear these cases on 17 February, and no such application was made before I heard and determined an application that I disqualify myself. It seems to me, therefore, that it is now too late to make such arrangements, even if the existing law permitted them to be made. Ms Wentworth also relied upon the reference on p 25 of Sir Anthony Mason's article to the position in the English Court of Appeal as illustrated by the proceedings in Ex parte Church of Scientology on 21 July 1978. An application was then made to a division of the Court of Appeal, presided over by Lord Denning MR, that the case should be transferred to another division of that Court because of alleged pre-judgment by him arising out of earlier decisions involving that Church. No such application was made to this Court before, or at the start of, these proceedings on 17 February and it is now too late to make such an application. The decision in The Queen v Watson; Ex parte Armstrong establishes that the decisions of Stein JA and myself refusing to disqualify ourselves are not orders and at this stage, therefore, there is nothing that could be reviewed by another bench of this Court, or even by the High Court. 4 UNREPORTED JUDGMENTS Normally, we would not, indeed could not, sit to determine whether an appeal lies from our decisions not to disqualify ourselves, but in this case we have no alternative. The Court is now in a position to give judgment in the first matter that has been fully argued in which we reserved our decision on 20 February 1998. Ms Wentworth's motions to review the decisions of Justice Stein and myself seek to prevent the delivery of that judgment. We therefore have to rule on the competency of her application to review our decisions in order to decide whether we should defer the delivery of our judgment or proceed to deliver it. If the matter had arisen as a new question we would not have attempted to determine it, but would haveawaited the decision of others, either the High Court, or perhaps a differently constituted bench of this Court. However, there is an established line of authority in this Court, extending over twenty years, following The Queen v Watson; Ex parte Armstrong which establishes that neither Justice Stein nor myself have made a judgment or an order at this stage which is susceptible of appellate review. We must follow this line of authority and any other Full Court of this Court would take the same course. In these exceptional circumstances, I consider that both Justice Stein and myself are entitled to continue to sit in these matters and to participate in delivery of the judgment. Ms Wentworth has a remedy in the High Court by application for Special Leave to appeal from our orders. Her attempt to challenge our decisions by an internal appeal in this Court is not reasonably arguable and is what the law considers to be frivolous or vexatious. I would propose that her notices of motion seeking to review my decision not to disqualify myself and the notice of motion filed in this Court this morning seeking to review the like decision of Stein JA be dismissed and that this Court should proceed to deliver judgment forthwith. Stein JA. I agree. Sheppard AJA. I also agree. Orders accordingly. Appearances for the appellant: In person with Mr S Russo Appearances for the respondent: Ms G Preston