New South Wales Court of Appeal CITATION : Wentworth v Graham & 1 Ors [2003] NSWCA 88 HEARING DATE(S) : letter dated 13 March 2003, submissions dated 14 March 2003 JUDGMENT DATE : 17 April 2003 JUDGMENT OF : Santow JA DECISION : I dismiss Ms Wentworth's application that I withdraw or amend my judgment of 10 December 2002. CATCHWORDS : PRACTICE AND PROCEDURE - application to withdraw judgment - whether judgment proceeded on a misapprehension of fact or law - whether any misapprehension warranting the exceptional step of setting aside or amending the judgment LEGISLATION CITED : Supreme Court Rules Pt 20 r 9; Pt 42 r 12 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 De L v Director General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207 CASES CITED : Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 Wentworth v Woollahra Municipal Council & Ors (No 2) (1982) 149 CLR 672 Katherine Wentworth (Applicant) PARTIES : Geoffrey Graham (First Respondent) William Charles Wentworth (Second Respondent) FILE NUMBER(S) : CA 40277/00 COUNSEL : Ms Wentworth (in writing) SOLICITORS : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40277/00 SANTOW JA 17 APRIL 2003 Katherine WENTWORTH -v- Geoffrey GRAHAM & 1 Ors Judgment 1 SANTOW JA: INTRODUCTION On 10 December 2002, I delivered judgment dismissing a Notice of Motion dated 19 September 2002. It was brought by Ms Wentworth seeking a review of Registrar Schell's decision to dismiss her earlier Notice of Motion dated 2 July 2002. By the latter Notice of Motion Ms Wentworth sought a review of decisions by Brownie AJA, whereby he dismissed her earlier Notice of Motion dated 12 June 2002 seeking (i) the disqualification of Ipp AJA, and (ii) the setting aside of Brownie AJA's judgment dated 6 June 2002 (whereby Brownie AJA declined to admit certain evidence from third parties said to bear upon whether Brownie AJA should have disqualified himself). 2 Ms Wentworth has by letter dated 13 March 2003 and accompanying submissions sought, inter alia, that I withdraw that judgment, elaborating her reasons. I am not aware of any Notice of Motion to that effect. However, I shall treat that letter and submissions, as amounting to an application in those terms. I ignore those parts of the letter and submissions that are simply abusive or irrelevant. In those submissions, dated 14 March 2003, Ms Wentworth has sought to identify what she regards as errors in the judgment of 10 December 2002 that require or justify its withdrawal or amendment. In the proceedings before me Ms Wentworth appeared in person. The Defendants, having sought from Registrar Schell to be excused, did not appear. There was therefore no contradictor. Principles applicable 3 The power to vary or withdraw a judgment, or otherwise to reopen a matter following judgment, is reserved for those exceptional cases which warrant such a course. The power is discretionary. There is a heavy onus on the applicant to establish that such a course is justified. 4 There is provision in the Supreme Court Rules for the Court to amend a judgement. Pt 20 r 9 is the statutory codification of the slip rule. It is not relevant to the present application. Likewise the power to amend for events following judgment at Pt 42 r 12 is not applicable. More relevant to the current matter is Pt 40 r 9. This rule permits the Court to set aside or vary a judgment or order before entry of the orders. 5 There have been a number of High Court cases which have considered the discretion to reopen: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29; Wentworth v Woollahra Municipal Council & Ors (No 2) (1982) 149 CLR 672; Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; De L v Director General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207. From those cases the following can be regarded as settled. 6 First, to enliven the jurisdiction to reopen, the applicant must establish that the Court has "proceeded on a misapprehension as to the facts or the law" (per Mason CJ in Autodesk (supra) at 302). Furthermore, this misapprehension "cannot be attributed solely to the neglect or default of the party seeking rehearing" (per Mason CJ at 303). As was said in Smith v New South Wales Bar Association (supra) "what must be considered is the question to which the error was relevant and the significance of that question to the decision reached" (per Brennan, Dawson, Toohey and Gaudron JJ at 266). 7 Second, the power to reopen must not be exercised for the purpose of re-agitating arguments already considered by the Court. Nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects as well as it might have been put. 8 "The public interest in the finality of litigation will not preclude the exceptional step of reviewing or re-hearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law" (Autodesk per Mason CJ at 302). If the applicant fails to provide "good reason", then the principle of the finality of litigation applies to preclude the court re-considering its own judgment. 9 Where an applicant has a right of appeal, the court will be even more reluctant and cautious in the exercise of its discretionary power. Where a party has the opportunity to appeal or to seek leave to appeal against a judgment, this tends against a court reviewing its earlier judgment (Smith v NSW Bar Association (supra) per Brennan, Dawson, Toohey and Gaudron JJ at 256). The alleged errors 10 The alleged errors submitted by Ms Wentworth can be summarised as follows: (a) That the plaintiff had repeatedly appealed against refusals to recuse by a number of judges, namely, Ireland J, Brownie AJA and Ipp AJA. (b) That the plaintiff had sought to have a bench of three Judges of Appeal review a decision of two Judges of Appeal to dismiss a summons for leave to appeal. Contained in that error Ms Wentworth submits is the erroneous assumption that the summons for leave to appeal had been determined. (c) That Ipp AJA had made a determination not to recuse himself. (Ms Wentworth submits that Ipp AJA has never heard, let alone determined an application by her that he disqualify himself.) (d) That Brownie AJA had refused to disqualify himself. (e) That the Ms Wentworth sought that the Registrar deal with her Notice of Motion of 2 July 2002. Ms Wentworth maintains that she only ever sought to have the Notice of Motion dealt with by an appeals bench of three Judges of Appeal. (f) That the judgment did not address the real issues raised in her Notice of Motion concerning whether to set aside Registrar Schell's determination. (Registrar Schell dismissed the Notice of Motion that challenged Brownie AJA's dismissal of her Notice of Motion which raised issues of admissibility of evidence and contained an application to Ipp AJA that he disqualify himself.) 11 Ms Wentworth also asserts that: (a) The judgment was not and could not be a proper exercise of discretion because the facts which it was based on are in error. (b) There was a denial of natural justice and procedural fairness. (c) The statement by Registrar Schell that rulings as to admissibility of evidence during a course of proceedings are not considered to be judgments or orders for the purposes of the Court was not overturned and should have been. 12 In an application of this kind, Ms Wentworth must satisfy the threshold onus of establishing that reopening the matter is justified by reason that the alleged error was not only made, but the Court has proceeded upon it. That involves identifying the question to which the error is relevant and the significance of that question to the decision reached. Without going into each of the claimed errors identified by Ms Wentworth, I am of the view her claim to re-open does not satisfy that threshold requirement. Nor do I consider there was any denial of natural justice or procedural fairness. Ms Wentworth was given proper opportunity to present both oral and written submissions, as she did. 13 Once that conclusion is reached, I should not deal with matters that may be the subject of appeal, beyond dealing with the one passage in the judgment where I am now aware that error did lie, though corrected elsewhere. This is in order to assess whether the judgment proceeded upon it and the significance of the error in the sense explained earlier. I also need to refer briefly to a subsequent event. 14 The error is at para [15] of my earlier judgment of 10 December 2002 where the following is said: "Brownie AJA then re-states (page 2 of the shorter judgment) that 'I was sitting as a member of the Court of Appeal constituted pursuant to s46B(1)(a) and I gave a decision' being, it can be taken, a decision denying leave to appeal . That led to his further determination that there was at that point no further appeal against that decision by a differently constituted appeal bench, and in particular one constituted pursuant to s46(4), being ordinarily a bench of three Appeal judges. He thus concluded that the applicant's notice of motion of 12 June 2002 should, pursuant to Pt 13 r5, be dismissed as 'technically' an 'abuse of process'." [Emphasis added by me and not in the original judgment.] 15 The error lies in the reference to Brownie AJA being taken as having made a decision denying leave to appeal, when he had not done so. That error is made only once. Elsewhere in the judgment the position is stated correctly. 16 Thus at [56] of the judgment of 10 December 2002 it is said that "the original summons for leave to appeal from the decision of Ireland AJ should be determined without further delay or interruption from satellite litigation …". That passage clearly pre-supposes that the decision concerning leave to appeal from the decision of Ireland AJ had yet to be determined. The judgment of 10 December 2002 so proceeded. The error thus had no significance. 17 The judgment of 10 December 2002 (at [28]) referred to the "determination by Brownie AJA not to disqualify himself and the associated determination not to admit evidence sought to be proffered in relation to that disqualification". It did not elaborate that Brownie AJA was reserved on an application made 19 November 2001 for him to recuse himself. This was however a renewed application by Ms Wentworth after Brownie AJA had earlier declined to disqualify himself on 7 November 2001. 18 Since my judgment of 10 December 2002 was handed down, Brownie AJA gave judgment on that application on 26 February 2003. Paragraphs [10] and [18] record the earlier occasions where he declined applications by Ms Wentworth that he disqualify himself. At [28] he declined again to disqualify himself in relation to the renewed application that he do so, having earlier given reasons for so concluding. 19 I conclude that the result is that the judgment of 10 December 2002 does not proceed on any misapprehension of law or fact, insofar as this identified error is concerned. I am not conscious of any other error upon which the judgment proceeds, as would justify its withdrawal or amendment. CONCLUSION 20 I consider that Ms Wentworth's application to re-open has been made for the purpose of re-agitating arguments already considered by the Court. As such it is an abuse of process. I am not conscious of any good reason to believe that the judgment of 10 December 2002 has proceeded on a misapprehension of law or of fact. To elaborate further would be to explain my original reasons, when that judgment of 10 December 2002 must speak for itself. 21 I dismiss Ms Wentworth's application that I withdraw or amend my judgment of 10 December 2002. ********** Last Modified: 05/05/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.