Wentworth v Wentworth: Estate of George Neville Wentworth [1999] NSWSC 557

New South Wales Supreme Court CITATION : Wentworth v Wentworth: Estate of George Neville Wentworth [1999] NSWSC 557 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3748/89 HEARING DATE(S) : 7 June 1999 JUDGMENT DATE : 7 June 1999

PARTIES : Katherine Wentworth (P) Peter FitzWilliam Neville Wentworth (D) JUDGMENT OF : Hunter J

COUNSEL : SOLICITORS : Ms K Wentworth in person (A) Ms D Pinch (R) CATCHWORDS : DECISION : Inspection by applicant of documents under subpoenae refused.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HUNTER J

MONDAY 7 JUNE 1999

3748/89 KATHERINE WENTWORTH v WENTWORTH: ESTATE OF GEORGE NEVILLE WENTWORTH

REASONS FOR JUDGMENT 1 There is before the court an application to reopen proceedings which were the subject of a judgment by Santow J of 9 April 1999 (the costs proceedings) which followed upon his judgment of 6 February 1998 (the bias proceedings) in which Katherine Wentworth was the plaintiff. 2 In the bias proceedings, Santow J found that in the taxation of costs in proceedings in which Ms Wentworth was a party, the taxing officer, B R Howe (Howe), had acted in a way that gave rise to a reasonable apprehension of a possibility of bias on the part of Ms Wentworth, as a result of which his Honour published draft orders which were in the following terms: "1. Subject to order 2, the determinations of Taxing Officer Howe made in the taxation of the Plaintiff's Bill of Costs filed 21 February 1992, including the reconsideration of the taxation and any costs orders made in relation to the taxation, be set aside. 2. The Interim Certificates issued by Taxing Officer Howe on the dates listed below, to the extent they cover the amounts paid thereunder by the Defendant to the Plaintiff, are not set aside but declared severable from the rest of the taxation." 3 In the costs proceedings, Ms Wentworth sought orders for costs which included an order against Howe in relation to whom the finding was made by Santow J in the bias proceedings. The principles upon which Santow J acted are to be found at page 15 of the judgment in which reference is made to Sirros and Rajski. 4 In applying those principles, His Honour concluded as follows: "My judgment of 6 February 1998 has no finding of any deliberate contravention of the rules of natural justice. There is likewise no finding that the taxing officer deliberately acted beyond power. There is furthermore no finding of actual bias but only a reasonable apprehension of the possibility of bias. Thus any analogy based upon the tort of misfeasance in public office to justify a cost order against Deputy Registrar Howe would not be justified, even were there no immunity. And as I have earlier concluded, there is immunity. I am satisfied that the findings made in my judgment of 6 February 1998 are not such as to justify any order for costs against Deputy Registrar Howe whether review costs or, to the extent capable of being made, any non-review costs. No order for costs could in any event be made in relation either to the Court of Appeal or contrary to its determination. That conclusion follows whether the level of protection of his derivative immunity is taken to be that applicable to an officer of a superior court or an inferior court such as a magistrate at common law, though the former is considered the appropriate level." 5 In reaching that conclusion, I note his Honour's reference to what he described as "an alternative approach to ascertaining the level of immunity" in the case before him. It was expressed in the following way: "An alternative approach to ascertaining the level of immunity in a derivative context lies in identifying the public interest or basis of principle underpinning judicial immunity and then asking: what level of immunity is necessary to serve that interest or basis of principle in the context in which the question of immunity arises. That interest or basis of principle has been expressed in the following ways: (i) "to preserve the integrity, independence and resolve of the judiciary, and to ensure that justice may be administered by such judges in the courts, independently and on the basis of their unbiased opinion - not influenced by any apprehension of personal consequences"; Rajski v Powell per Kirby P at 528. (ii) to give "effect to the particular public interest in securing the utmost freedom to those who preside over judicial proceedings, subject only to the constitutional or other remedies for removal from office." Mann v O'Neill per Gummow J at 239-240. (iii) permitting civil liability attaching to persons involved in civil proceedings "would impede enquiry as the truth and justice of the matter and jeopardise the 'safe administration of justice'": Mann v O'Neill per Brennan CJ, Dawson, Toohey, Gaudron JJ at 213; whilst the overriding consideration in respect of whether or not an absolute privilege against defamation will attach is 'whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern" ( Mann v O'Neill at 212 citing Lincoln v Daniels [1962] 1 QB 237 per Devlin LJ at 255-256). (iv) to prevent harassment of judicial officers by vexatious litigation by litigants not able to accept the finality of decisions against them: McC at 916; Rawlinson v Rice (1998) 1 NZLR 454 at 464"