Wentworth v Rogers [2000] NSWCA 368

New South Wales Court of Appeal

CITATION : Wentworth v Rogers [2000] NSWCA 368 FILE NUMBER(S) : CA 40962/98 HEARING DATE(S) : 8 December 2000 JUDGMENT DATE : 15 December 2000

Katherine Wentworth PARTIES : v Gordon J Rogers JUDGMENT OF : Handley JA at 1

LOWER COURT JURISDICTION : Application for disqualification LOWER COURT N/a FILE NUMBER(S) : LOWER COURT N/a JUDICIAL OFFICER :

COUNSEL : Miss Wentworth in person No appearance for opponent SOLICITORS : Miss Wentworth in person No appearance for opponent

Herijanto v Refugee Tribunal [No 2] (2000) 74 ALJR 703 Zanatta v McCleary [1976] 1 NSWLR 230 CASES CITED: Kaycliff Pty Limited v Australian Broadcasting Tribunal (1989) 90 ALR 310 Vakauta v Kelly (1989) 167 CLR 568 Webb v The Queen (1994) 181 CLR 41 DECISION : Application for disqualification dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40962/98 CLD 19228/82 HANDLEY JA

15 December 2000 Katherine WENTWORTH v Gordon J ROGERS

JUDGMENT

1 HIS HONOUR: When the hearing of this motion for review resumed on Friday 8 December, Miss Wentworth renewed her application that I should disqualify myself from further participation in its hearing and determination. Her application was largely based on the matters raised by her on an earlier application in associated litigation between the same parties and dealt with in my decision, refusing to disqualify myself, of 9 October 1998. Those matters call for no further comment from me. 2 Since that decision I have continued to sit on cases involving Miss Wentworth as and when rostered to do so. The fact that I, and the Judge or Judges who have sat with me, have found against Miss Wentworth in those cases provides no ground for me to disqualify myself. 3 The present application was, however, supported by new material in the form of an affidavit by a former Associate of a Judge of this Court in which she deposes to overhearing private conversations between Judges of this Court, including myself, in which derogatory remarks were made against Miss Wentworth. I would disqualify myself immediately if the allegations about myself were true, or if I thought that I might have said such things in the past. 4 When Miss Wentworth tendered the affidavit in open Court, I immediately denied having said any such thing but, as she correctly submitted, my denial cannot settle the question which depends upon the view of a "fair-minded observer". 5 The legal questions raised by the tender of this affidavit have not, to my knowledge, received judicial consideration in any jurisdiction with which I am in any way familiar. In particular there is no authority dealing directly with the admissibility of evidence of this nature. 6 Evidence dealing with any aspect of a Judge's decision-making process has been held to be inadmissible. See Herijanto v Refugee Tribunal [No 2] (2000) 74 ALJR 703, 704. In Zanatta v McCleary [1976] 1 NSWLR 230 this Court declined to receive affidavit evidence from a barrister and a solicitor who deposed to a conversation with a trial Judge after he had given judgment, which was said to show that he acted in grounds which had not been proved in evidence before him. The Court held that the evidence was inadmissible principally for reasons of public policy. Samuels JA said at 239 that a Judge of a Court of Record cannot be compelled to testify to the considerations which led him to his decision, or to the manner in which he has exercised his judicial powers. 7 He continued: "… if, as I think, the Judge of a Court of Record is not compellable to testify to the considerations which led him to his decision, and if, indeed, his own evidence is not to be received upon such matters … I cannot see that they can be proved by evidence of his statements out of Court. It is … the subject matter of the evidence which is objectionable rather than the mode of proof … such evidence is not admissible, if its purpose is to show the process of reasoning or the factors taken into account in coming to the decision". 8 In Kaycliff Pty Limited v Australian Broadcasting Tribunal (1989) 90 ALR 310 statements by the husband of the Chairperson of the Tribunal were relied upon in support of an application that she should disqualify herself. The Full Court of the Federal Court said at 320-1: "Although we have found no authority directly bearing on the point, it appears to us that statements made outside and without the authority of a court or a tribunal by persons who are not its members cannot, in general, disqualify it from proceeding … we think there are dangers in accepting the doctrine that statements of that kind can prejudice the right or effect the duty of a Judge or Tribunal member to sit". 9 The conclusion to be drawn from those cases is supported by authorities dealing with disqualification for bias. The High Court has repeatedly said that the test for ostensible or apprehended bias depends on the perception of "a reasonable and intelligent lay observer" or of a "fair-minded observer" (emphasis supplied). See Vakauta v Kelly (1989) 167 CLR 568, 573, 584, 585 and Webb v The Queen (1994) 181 CLR 41, 47, 51, 52. The test is to be applied to the conduct of the Judge in court or otherwise in public. The test is not that of the reasonable and intelligent lay eavesdropper or the fair-minded eavesdropper. As Deane J said in Webb v The Queen (above) at 73: "The material objective facts include, of course, any published statement … of a person concerned" (emphasis supplied). 10 The material objective facts must also, in my view, include any other public conduct of the judicial officer. The affidavit in question deals essentially with matters which occurred in private and for the reasons given the affidavit is not admissible. It will be Marked for Identification "2" and left with the papers. 11 This application is made in proceedings to review an earlier decision of Fitzgerald JA and myself refusing leave to appeal from an interlocutory decision dealing with a question of costs. The question involves the construction of two orders of this Court in the light of the relevant surrounding circumstances. The Court, which is exercising appellate jurisdiction, is not called upon to decide any question of credit, or to exercise any broad discretion. 12 In these circumstances I decline to disqualify myself. ******