WENTWORTH v ROGERS [2000] NSWCA 259

New South Wales Court of Appeal

CITATION : WENTWORTH v ROGERS [2000] NSWCA 259 FILE NUMBER(S) : CA 40590/97 HEARING DATE(S) : Written submissions of claimants JUDGMENT DATE : 14 September 2000

KATHERINE WENTWORTH & PARTIES : SALVATORE RUSSO v GORDON ROGERS JUDGMENT OF : Handley JA at 1; Stein JA at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT CLD 19228/82 FILE NUMBER(S) : LOWER COURT Sperling J JUDICIAL OFFICER :

COUNSEL : N/a SOLICITORS : Miss Wentworth and Mr Russo in person (claimants) Richard A Licardy & Company (opponent)

LEGISLATION CITED : Supreme Court Act 1970 (NSW) CASES CITED: Smith v NSW Bar Association (1992) 176 CLR 256 DECISION : Notice of motion of 17 November 1999 summarily dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40590/97 CLD 19228/82 HANDLEY JA STEIN JA

14 September 2000

Katherine WENTWORTH & Anor v Gordon ROGERS

JUDGMENT

1 THE COURT: On 10 September 1996 Sperling J set aside an ex parte order made by Loveday AJ on 24 October 1994 which had dismissed the opponent's cross-claim for malicious prosecution. The question of costs was reserved and after further argument Sperling J gave judgment on 28 August 1997 on that question. The claimants, Miss Kate Wentworth and her then solicitor, Mr Salvatore Russo, were ordered to pay the opponent's costs of and incidental to his notice of motion for an order setting aside the ex parte order of Loveday AJ and Miss Wentworth's notices of motion seeking dismissal of the cross-claim or that it be permanently stayed. The costs were ordered to be paid on an indemnity basis. 2 On 12 June 1997 this Court, constituted by Beazley JA and Clarke AJA, dismissed Miss Wentworth's summons for leave to appeal from the decision of Sperling J of 10 September 1996. The Court had entertained extensive argument on 21 April and 29 May and reserved its decision. 3 On 12 March 1997 Miss Wentworth filed a second summons seeking leave to appeal against various orders and decisions of Sperling J, including his orders of 10 September 1996. 4 On 11 September 1997 Miss Wentworth and Mr Russo filed a further summons seeking to set aside the costs orders made by Sperling J on 28 August 1997. The Court has treated this as a summons for leave to appeal from those orders. 5 The Court, constituted by Handley and Stein JJA, and Sheppard AJA, heard argument on Miss Wentworth's second summons before it heard argument on the third summons. 6 Argument on the second summons took place on 17, 19 and 20 February 1998. On 21 October 1998 the Court, as then constituted, delivered judgment and dismissed the claims for relief in paras 1, 2, 3, 4 and 10 of that summons. This involved the dismissal of Miss Wentworth's renewed application for leave to appeal from the judgment and orders of Sperling J of 10 September 1996. 7 The same Court heard argument on the summons for leave to appeal from the costs orders of Sperling J initially on 20 February 1998 and then on 7 December 1998. Judgment was delivered on 29 October 1999 granting leave to appeal and allowing the appeal on a question of set-off, but the summons was otherwise dismissed. On 17 November 1999 the claimants filed a notice of motion which sought an order setting aside the judgment and orders of 29 October and stays of the orders, or of the execution of the orders, of Sperling J of 28 August 1997 and of this Court of 29 October 1999. 8 The Acting Registrar of the Court made orders directing the claimants to file detailed written submissions in support of their notice of motion. They have done this by filing written submissions dated 29 November 1999, 16 December 1999 and 22 March 2000. 9 The Court, as presently constituted, the commission of Sheppard AJA having expired, has considered the written submissions and supporting material, and reviewed its reasons for judgment of 21 October 1998 and 29 October 1999. 10 The written submissions are substantially directed to alleged errors in the reasons for judgment of Sperling J of 10 September 1996, and in the decisions of this Court refusing leave to appeal from his orders made that day. They therefore re-agitate, for the third time, arguments which have already failed twice in this Court. The written submissions which are directed to alleged errors in the reasons for judgment of Sperling J of 28 August 1997, or in the reasons of this Court of 29 October 1999, contain no new argument of fact or law, and in the main repeat arguments addressed previously to this Court and rejected. The submissions based on the expiration of the commission of Sheppard AJA on 30 June 1999 are covered by s 37(3A) of the Supreme Court Act. 11 The nature of the power invoked by the claimant's application for the Court to review and set aside its decision and orders of 29 October 1999 was considered 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". 12 The High Court was considering the exercise of the power in relation to a final judgment whereas in the present case the orders are interlocutory, but in general the same principles apply although, where the order sought to be reviewed is interlocutory, the principles should be applied with additional flexibility. 13 In our judgment there is nothing in the claimants' written submissions which establishes a matter "calling for review". This Court is not bound to afford a further oral hearing to claimants seeking leave to appeal where the original application was fully heard on written and oral submissions, and where prima facie grounds for a review have not been made out over 27 pages of written submissions. 14 The notice of motion of 17 November 1999 is summarily dismissed. ******