Wentworth v Graham & Anor [2003] NSWCA 226

New South Wales Court of Appeal

CITATION : Wentworth v Graham & Anor [2003] NSWCA 226 HEARING DATE(S) : 11/08/03 JUDGMENT DATE : 29 August 2003

JUDGMENT OF : Ipp JA at 1 DECISION : Application dismissed.

CATCHWORDS : PRACTICE AND PROCEDURE - Application for judge to disqualify himself on grounds of bias. D Katherine Wentworth (Claimant) PARTIES : Geoffrey Graham (First Opponent) William Charles Wentworth (Second Opponent) FILE NUMBER(S) : CA 40277/00 Claimant: In Person COUNSEL : First Opponent: N/A Second Opponent: N/A SOLICITORS : Claimant: In Person First Opponent: O'Hara & Company

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40277/00

IPP JA

Friday 29 August 2003 KATHERINE WENTWORTH v GEOFFREY GRAHAM & ANOR Judgment 1 IPP JA:

The grounds on which disqualification is sought 2 These reasons concern an application by Miss Wentworth that I disqualify myself, on the grounds of bias, from continuing to sit as a judge in her application for leave to appeal from a decision of Ireland J. 3 The grounds of the application have not been articulated in a systematic form. It is therefore necessary to extract the grounds from Miss Wentworth's oral submissions and her written submissions that were filed on 18 August 2003. In her written submissions she, in substance, repeats and expands the allegations she made orally and adds a ground (to which I refer as "the fifth ground") that she has not advanced previously. 4 On 6 June 2002 Miss Wentworth argued that Brownie AJA should disqualify himself on the grounds of bias. In that application Miss Wentworth relied on conduct on the part of his Honour that she alleged took place on 7 November 2001 when I was present and also on conduct that she alleged occurred on other days when I was not present. 5 By an extempore judgment, delivered in the course of the hearing on 6 June 2002, I decided that I would remain in court, sitting with Brownie AJA, while Miss Wentworth made submissions concerning what she asserted took place on 7 November 2001 while I had been present. I said that, upon completion of the argument as to those submissions, I would leave the court for argument to continue, before Brownie AJA alone, in regard to Miss Wentworth's allegations about the conduct of his Honour which, she asserted, occurred on other days when I was not present. In that judgment I said that I might comment on Miss Wentworth's submissions concerning the conduct of Brownie AJA in regard to those matters which, she asserted, occurred while I was present in court. 6 On 26 February 2003 I delivered a judgment concerning Miss Wentworth's application regarding Brownie AJA in which I made certain comments about Miss Wentworth's submissions. Miss Wentworth asserted in her oral submissions that by making those comments I manifested an intention to: "… give evidence in a disqualification application of material matters which arose in the disqualification application of a different judge of the court and, as such, is precluded by law and is something which is so procedurally unfair, inappropriate and wrong as founds an application for disqualification on that basis alone". 7 Miss Wentworth's first ground is that, merely by remaining in court while submissions were made to Brownie AJA concerning his disqualification based on his conduct while I was present, and in giving a judgment commenting on what had occurred in my presence, I demonstrated bias against her. 8 The second ground concerns paragraph 9 of my reasons for judgment of 26 February 2003 in which I said that certain allegations made by Miss Wentworth against Brownie AJA (relating particularly to what was said to be conduct on his part whereby she was humiliated and demeaned) were "false and mischievous". 9 On 11 August 2003, at the hearing of this disqualification application, Miss Wentworth said: "The allegations as to the matter which Mr Justice Brownie found matters amusing, and was laughing with his tipstaff, snickering behind his hand, openly laughing at the plaintiff at the Bar table, exchanging glances and laughing together with Mr Van Aalst, in other words humiliating and demeaning a plaintiff before this Court by conduct out of control and unbecoming was observed not only by the plaintiff but was observed by other witnesses in the court. But what was not observed by, or who it was not observed by was Justice Ipp. The allegations are that those antics occurred on 29 November and 3 December. The record demonstrates that Justice Ipp was not in court on either of those days and a statement that the claimant's allegations are false and mischievous is in itself false and mischievous, malicious and defamatory and deliberately so". 10 Miss Wentworth said in her oral submissions that I knew that my statement was false because it was made about her submissions as to conduct on the part of his Honour that took place when I was not present. 11 She repeated this allegation in her written submissions. In paragraph 67 of those submissions she said: "When the plaintiff requested that he leave the Court Ipp JA refused to do so, stating that he intended to remain throughout the whole of the hearing of the bias application in respect of Brownie AJA, which application covered two days when Ipp AJA was not in Court, namely 29/11/01 and 3/12/01 and did so remain throughout the whole of the hearing [see trans 6/6/02 pp 1-62] and Ipp JA on 6/6/02 delivered a judgment stating his intention to remain in Court for the whole of the hearing over the protests and objections of the plaintiff". 12 In paragraph 93 she said that it was "quite wrong" for me to say that the only matters dealt with on 6 June 2002 were matters that had occurred while I was in court on 7 November 2001. She asserted that I "must be aware that it is wrong". 13 In paragraph 65 she asserted that it was "quite wrong" of me to "contend" as I did on 13 May 2003 (in a directions hearing on that date) that my judgment "delivered on 26 February 2003 dealt only with the claims of misconduct of Brownie AJA on 7 November 2001 …". 14 Thus, the second ground is based on the allegation that, in my judgment of 26 February 2003, I knowingly, deliberately and maliciously made a false statement concerning Miss Wentworth's submissions relating to the conduct of Brownie AJA, namely, that her submissions were "false and mischievous". This allegation is based on two propositions. Firstly, the allegation that on 6 June 2002 she had made submissions to Brownie AJA and me that, in substance, dealt with his Honour's conduct on days other than on 7 November 2001 (that is, on days when I had not been present in court). Secondly, the submission that, in my judgment of 26 February 2003, I dealt with Brownie AJA's conduct that had taken place on those days when I was not present in court (and in respect of which I had no personal knowledge). 15 The third ground concerns statements I made to Miss Wentworth during a directions hearing on 13 May 2003 and the hearing on 11 August 2003. 16 In the direction hearing on 13 May 2003 I attempted to explain to Miss Wentworth that my judgment of 26 February 2003 was intended to and did in fact deal only with Miss Wentworth's allegations that Brownie AJA had misconducted himself on 7 November 2001. In that directions hearing I also stated that, on 6 June 2002 while I was in Court with Brownie AJA, Miss Wentworth had made submissions only as to the conduct of Brownie AJA while I was in Court on 7 November 2001. 17 On 11 August 2003 I said to Miss Wentworth: "Miss Wentworth, you made submissions about Justice Brownie's conduct, submissions to the effect that he was laughing, jeering at you, while I was sitting in court, when you well knew that you were then at that stage, whilst I was in court, only to deal with matters that occurred when I was present. You made those submissions when I was present. On that basis those submissions were made on the basis that that conduct of Acting Justice Brownie had occurred when I was present. You well know that".