New South Wales Court of Appeal CITATION : Wentworth v Graham & Anor [2003] NSWCA 240 HEARING DATE(S) : 11/8/03 JUDGMENT DATE : 29 August 2003 JUDGMENT OF : Brownie AJA at 1 DECISION : Application dismissed. CATCHWORDS : PRACTICE AND PROCEDURE - Application for judge to disqualify himself on grounds of bias. 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 40277/00 BROWNIE AJA 29 August 2003 KATHERINE WENTWORTH V GEOFFREY GRAHAM & ANOR Judgment BROWNIE AJA : 1 By notice of motion filed 4 June 2003 Ms Wentworth sought, amongst other things, an order that I be disqualified for apprehended bias. The grounds upon which she makes that application are spelt out in her written submissions dated 18 August 2002, which I will treat as a reference to 18 August 2003. Most of the grounds relied upon are no more than a reargument of propositions already ruled upon, and I will deal with them in the sequence in which they were first raised. 2 The case first came on for hearing on 7 November 2001, upon which date Ms Wentworth submitted that I should be disqualified for reasons of apprehended bias arising from the terms of my reasons for judgment given in the case Wentworth v Rogers , Court of Appeal, 5 May 1995, not reported. I declined to disqualify myself. 3 Ms Wentworth subsequently reargued that question, at considerable length, and I gave judgment on that application on 26 February 2003. At [10] – [17] I dealt with the detailed submissions then advanced. Correcting in [10] of that judgment a reference [60]-[32], so that it now reads as it should then have read, [60]-[72], I said then: 10 When this application was first listed, on 7 November 2001, the claimant asked me to disqualify myself, on the ground of apprehended bias, and I declined to do so, giving short oral reasons. She has now renewed that application. The matter is dealt with at pages 38-43 of the transcript of 18 June 2002 and at [60] - [72] of the written submissions of 30 August 2002. 11 The application is founded upon what I said in Wentworth v Rogers, Court of Appeal, 5 May 1995, not reported. On that occasion I said, amongst other things: - "The principal question now outstanding relates to the decision of Sully J that Mr Rogers pay half only of Ms Wentworth's costs. His Honour took the view that the proper amount for which judgment should be entered was $2,680. Since the proceedings had been commenced between 31 October 1980 and 31 March 1983, and the amount of the judgment was less than $3,000, R24(2)(c) of Pt 52 applied, so that Ms Wentworth was not entitled to payment of her costs unless, it appearing to the Court that she had sufficient ground for commencing or continuing proceedings in the Court, the Court made an order for payment. His Honour examined the circumstances and concluded that at the time she commenced the action Ms Wentworth had sufficient reason for expecting that she would have received an amount in excess of $3,000; and he concluded that she was therefore entitled, without more, to one half of her costs, by force of R24(3)(c)(i). He then examined whether, within the meaning of R24(4) and (4A), she was entitled to the whole of her costs, or to more than half of them, and he concluded that she was not .......... Sully J rejected a submission that, since the plaintiff had reasonable grounds for expecting that she would recover more than $3,000, then, without more, she was therefore entitled to more than half her costs. He held that subR(4) gives the Court a discretion, when this factual basis is established, but there must be something more shown before a plaintiff is entitled to say that the discretion should be exercised in his or her favour. He then referred to the basic rationale of R24, of encouraging the litigation of claims in the District Court or the Local Court, when a given claim was within the jurisdiction of one of those courts, and the claim was capable of being justly and efficiently disposed of there. He said that he did not regard the present case as one where the Local Court was appropriate, and listed the considerations which, in his view, demonstrated that Ms Wentworth had not made good her claim to more than half of her costs: 1. The nature of the case: there was a vigorous conflict between the parties, but the issues to be resolved were "uniformly straight forward", and fundamentally a trial of credit as between Ms Wentworth and Mr Rogers, although there was some other evidence. 2. ............. 3. The verdict of the jury, for $2,000 in 1994, contradicted the plaintiff's reasonable expectation in 1982 that she might recover more than $3,000 .......... As to the first of the three considerations listed by Sully J, Ms Wentworth pointed out that, after discharging the jury his Honour paid tribute to the two senior counsel who had appeared for the respective parties at the second trial, and had done so without fee, saying that the trial had been "a difficult piece of litigation". This was said to have been inconsistent with what his Honour said, two days later, when giving judgment as to costs. I do not accept that this has been shown to be so: a piece of litigation can be "difficult" in various ways, including its being particularly hard fought, or its posing difficult questions of fact to decide, difficulties of an evidentiary kind, or difficult tactical questions for the advocates involved, without it following that the successful plaintiff ought to recover more than half of his or her costs, if he or she sues in this Court when the District Court would otherwise be appropriate. Additionally, what his Honour said was directed to a wholly different topic to that now in issue, and it should be seen in that context. The second of the considerations listed is not in issue now, but the third one is. According to Ms Wentworth's submissions, the verdict of the jury meant that the jury accepted her version of the facts, which had been in dispute. I do not consider that this inference can be drawn, from the material now before us. In her Statement of Claim, Ms Wentworth asserted that Mr Rogers "assaulted and beat the plaintiff by throwing her to the ground and kicking her, pushing her down, procuring the family dog to attack her, inserting a large rubber dildo in her vagina, inserting his penis in her anus and then inserting his penis in her vagina while the dildo was still inserted therein"; and that appears to have been her case at all times. The jury assessed her damages at only $2,000, and it is difficult, on that limited information, to draw the inference for which Ms Wentworth contends, that the jury accepted her version of the facts, in its entirety. During the course of the argument about costs, Sully J said: "The verdict of the jury clearly reflects I should have thought the directions given to the jury that proof of any one of the six nominated methods of assault set out in paragraph 1 of the Statement of Claim would be sufficient to entitle the plaintiff to a verdict of some kind. I should think it reasonable to infer that the verdict of the jury conveys a finding that the defendant did something to the plaintiff by way of an assault: I suspect by beating her and by sooling the dog on to her but did not do any of the more horrific things she alleged..." Later, when giving judgment on the costs question, he said: "In my opinion, it cannot be denied that the verdict of the jury conveys unmistakably that the jury did not accept, simply and without qualification, the horrific description given by the plaintiff of the acts to which she was allegedly subjected by the defendant." In my view, a verdict assessing at only $2,000 damages for an assault involving non-consensual sexual intercourse, either vaginal or anal, would be perversely inadequate. Nobody sought that finding, but the comment underlines the difficulty involved in accepting the submission now advanced. Ms Wentworth submitted, at another point, that it is not permissible to go behind the verdict of the jury, citing McDonnell and East Ltd v McGregor (1936) 56 CLR 50, but, in effect, she now asks us to do that, and to infer that the jury did accept her case, in its entirety. To this point then, it has not been shown that Sully J erred in exercising his discretion. However Ms Wentworth advanced other submissions not advanced before his Honour. First, ........ Secondly, it was said that Ms Wentworth was justified in suing in this Court in order to obtain vindication of her assertions, and she referred us to certain publicity relating to the proceedings, although formally there is no evidence as to this. Additionally, she referred to the seriousness of the matter from the point of view of both parties, the fact that the jury's verdict was unanimous, and to the course of the litigation. However, what I have said as to the measure of the damages awarded means that, in my view, she has not been able to show that her assertions were vindicated, except as to a relatively minor physical assault, that she has not shown that her serious allegations against Mr Rogers were made good, and neither the fact that the jury's verdict was unanimous, or the course of the litigation, is sufficient to justify the overturning of Sully J's exercise of discretion, whether considered alone or in conjunction with the other matters raised…." 12 In the course of her oral submissions as to what arose from this judgment, the claimant said: (Transcript 18 June 2002, pages 40 - 43): "WENTWORTH: You will probably be quite amazed to hear those statements have been relied upon by Mr Rogers in court after court to make an application, as statements as to your belief that here you, as a judge of the Common Law Division… WENTWORTH: I read it the same way… in a fair and unprejudiced fashion;….That is what you say, "In my view", they were not vindicated. You set out the terms of the statement of claim that was sworn. You say, "In my view", those things did not happen. That is such an impugning on my credit as far as I am concerned as to make you utterly inappropriate to hear any matter of mine ever again……Your statements impugn my credit directly. I am disturbed and distressed that in those circumstances you would ever consider sitting on a bench that had anything to do with matters in relation to Mr Rogers…….Notwithstanding all of that, you are still here. I find having to come before you in circumstances where you have made statements like that, so much to my detriment, relied upon to my detriment, repeated in the Court of Appeal by Handley JA, Stein JA ..... HIS HONOUR: Would you give me references? WENTWORTH: In Wentworth v Rogers , in the judgments on 20 and 21 October 1998 in this Court; 29 October 1999 in this Court, the reliance on what your Honour said as being determinations against my credit has been the foundation of submissions to the Court by Mr Rogers of a most extensive nature. I have not brought them in ......... HIS HONOUR: It is the determination of the Court of Appeal based on them I am asking for. Surely, if all this time Mr Rogers has been making this submission repeatedly, someone has pointed out what I said? WENTWORTH: Absolutely not, quite to the contrary, everyone accepted your Honour was making adverse reflections on my credit. HIS HONOUR: Are you suggesting the Court of Appeal, the judges who were sitting in 1995, thought I was reflecting a view as to your credit? WENTWORTH: Absolutely, particularly in light of the fact you say, "in my view". HIS HONOUR: I would be obliged if you point out with precision where I find that. What is your next point?" 13 In her written submissions dated 30 August 2002, the claimant said: 65. Notwithstanding that concurrence in that earlier judgment on interest, by 5/5/95 Brownie AJA was making the statement that he did, that in his view, (not in the view of the jury or in the view of Sully J, but in his view that the verdict of $2,000 was "perversely inadequate" thereby casting aspersions of the credit of the plaintiff and in his judgment indicating thereby that he thoroughly disbelieved the assertions of the plaintiff as to the rape, and that judgment is a judgment directly in respect to the credit of the plaintiff. 66. This matter is directly related to the matter presently before the Court in that the defendants lied to the Court and then sought to curtail the civil liberties of the plaintiff for which acts the plaintiff is seeking damages, (the plaintiff relying on the finding of the Court of Appeal that the first defendant had deliberately withheld material fact evidence thereby causing a trial to miscarry, Wentworth v Rogers (No. 10). 67. During the Wentworth v Rogers proceedings, Rogers has continuously relied upon that statement of Brownie AJA in his submissions to the Court in respect of the ongoing argument as to whether the jury verdict created an issue estoppel, and the Courts in different proceedings, in the Common Law Division, The Court of Appeal and the High Court have had regard to that submission and in many cases made determinations accordingly. 68. The plaintiff provides a series of examples of the submissions of the defendant Rogers relying on the views of Brownie AJA as to the verdict of the jury, and to determinations and findings in the various Courts based upon and relying upon those submissions. 69. The plaintiff submits that on that basis alone, Brownie AJA is disqualified from hearing this matter, in particular as it has an inter-related substratum, and relates to many common issues, in the main part as to whether the plaintiff was truthful in her assertions which in terms Brownie AJA clearly disbelieves. 70. That disbelief as to the plaintiff's credit must necessarily colour the whole of Brownie AJA's consideration of the matters which he has before him and his expressed opinion as to the plaintiffs credit (or discredit which would be a more accurate way of putting it) necessarily disqualifies him from hearing any other matter of the plaintiff's. 71. It is further submitted that he has at all times been aware of the basis of the contentions of the plaintiff as to the reasons why she contends that his determination of 5/5/95 disqualifies him and that his protestations to the contrary are facile." 14 She provided copies of parts of the written submissions lodged on behalf of Mr Rogers on seven occasions and references to five judgments (listed at paragraph 72 of the written submissions). No statement in any of these twelve documents provides any support for the contention that counsel for Mr Rogers submitted that I had made any finding adverse to the claimant's credit, or that any judge took that view. 15 As she said in paragraph 67 of the written submissions, counsel for Mr Rogers relied upon what I had said in relation to the entirely different question of whether any, and if so what issue estoppel arose from the jury's verdict. 16 The credit of the claimant is not an issue on the present application, which is one for leave to appeal from a decision of Ireland J. Her credit was not in issue in the appeal on which I sat in 1995, and it was not in issue before Ireland J. One might infer that the jury took a view about her credit, but that does not mean that a judge, considering what inferences might or might not be drawn from the jury's verdict, agrees with whatever it was the jury thought about the credit of a witness or party. 17 Nevertheless, the claimant focuses attention on those passages from my reasons for judgment of 5 May 1995 commencing "In my view" and "However, what I have said". Read in their context, I do not accept that a reasonable person would think that I was referring, or intending to refer to anything other than the inferences that might be drawn from the jury's verdict, and to the considerations that arose when considering the submissions advanced to the effect that the discretion of Sully J had miscarried. The claimant asserted, in the submissions quoted at [3], that others had read what I said in the way for which she contends, but she has not made that contention good. 4 In [167] – [180] of the written submissions of 18 August 2003, Ms Wentworth argued this question yet again, without saying anything at all as to why the renewal of this argument might be justified. With some minor editing, [167] – [177] of these submissions do no more than reproduce [60] – [72] of her written submission of 30 August 2002, to which I referred in my judgment of 23 February 2003. It appears to be the case that using a word processor, she has simply "cut and pasted" from the earlier submissions, with limited editing. 5 At [178] – [180] of her submissions of 18 August 2003 she continued:- 178 In his judgement of 26/2/03, Brownie AJA without any clarification determined that there was nothing in any of the twelve material matters as supplied and set out ante a) –k) raised for his attention that would lead a reasonable person to consider him biased and rejected the contentions of the plaintiff as to the force and effect of his statements in that judgement and the use made of them by both Rogers and other Courts, as being unsustainable on the material without any reference to the contents of any of the material. [The references "ante a) –k)" are references to the 12 documents referred to at [14] of my judgment of 26 February 2003, quoted at [3] above, that is, 7 sets of written submissions made by counsel for Mr. Rogers, and 5 judgments.] 179 It is submitted that this is a further denigration demeaning and belittling of the plaintiff, the rape victim by this judge who says in his view nothing serious happened other than some minor fracas and that there was no rape effectively and that he never believed there was other than a minor assault by Rogers and/or a dog. 180 This view of the plaintiff, who is a victim of a major criminal offence, by this judge continuously publicly reiterated on no basis whatsoever continuously, and even by the judgment of 26/2/03, makes the unfounded inherent allegation that the plaintiff is a liar, who has made false allegations against the rapist and this attitude of Brownie AJA is biased antipathetical and prejudiced against the plaintiff and is such as it is submitted permanently disqualifies him from hearing any further matter of the plaintiff. 6 I think that I might need to restate the obvious. The issue before the Court of Appeal in the 1995 case, as previously mentioned, related to costs. Sully J, who had presided over a jury trial, made an order for costs, and Ms Wentworth appealed from that decision. The question before his Honour, and then before the Court of Appeal, concerned the proper order for costs to be made, once inferences were drawn from the jury's verdict. Sitting in the Court of Appeal, I did not see or hear any witness, and did not even have a transcript of the evidence at the trial. The submissions advanced and the judgments given related only to the inferences to be drawn from what the jury did. No sensible, informed person could reasonably have thought that I had a view, one way or the other, as to whether Ms. Wentworth, or any other witness in the jury trial, should have been believed. It was the inference to be drawn from the jury's verdict, for $2,000, that had to be considered (interest being added to the sum). 7 These circumstances, simple to understand, and restated on various occasions in the past, constitute an answer to the proposition originally advanced. However, Ms Wentworth has now made the submissions set out above. 8 At [14] – [15] of my reasons for judgment of 26 February 2003, quoted at [3] above, I dealt with this. Ms Wentworth now makes the submissions of 18 August 2003, quoted at [6] above. 9 I will therefore quote what it was that counsel for Mr Rogers said, on the seven occasions relied upon listed at [72] of the submissions of 30 August 2002 and at [175] of the submissions of 18 August 2003:- (a) "14/11/95 Common Law Division 19228/82 para 140-154 esp para 146" 140. It is submitted when there are many serious allegations and circumstances in dispute affecting or possibly affecting the element of reasonable and probable cause, specific questions must be put to the jury: Sharp v Biggs 1932 48 CLR 81 at 87. 141. The defendant because of the severance of the cross-claim has not yet had the opportunity to put before a Court evidence of the want of reasonable and probable grounds in relation to the various allegations the plaintiff made in relation to assault causing bodily harm and buggery. 142. It is submitted that the question of a want of reasonable and probable cause goes to the whole of the proceedings and to each allegation upon which the prosecution is based. 143. A plaintiff's claim for malicious prosecution is not defeated if charged with serious charges and convicted of a minor charge: See for example, Boaler v Holder (1887) 3 TLR 546. 144. It is submitted that the question of a want of reasonable and probable cause is one of degree. For example, in Birchmeier v The Council of the Municipality of Rockdale (1934) 51 WN (NSW) 201 Jordan CJ stated at 202: "There is no doubt that if a person is prosecuted in respect of several matters, it is no defence to an action for malicious prosecution in respect of one of the matters to prove that reasonable and probable cause existed for prosecuting in respect of the others; and evidence directed to this purpose only is inadmissible". 145. It is submitted that your Honour should consider that if the claim had not been severed from the cross-claim by order of Sully J on 8 April 1994, the very jury who awarded the plaintiff only $2,000 in damages could have found on the evidence in the defendant's favour on the cross-claim. 146. It is submitted that your Honour should be persuaded to make the above inference in light of the recent judgment of the Court of Appeal in this Action dated 5 May 1995 wherein Brownie AJA stated (at 5): "In my view, a verdict assessing at only $2,000 damages for an assault involving non-consensual sexual intercourse, either vaginal or anal, would be perversely inadequate." 147. It is submitted that the plaintiff's own counsel was correct in his submission to His Honour Justice Sully on the issue of costs when he stated: (Transcript – 22 June 1994 at 110): "Really one can only say that the figure reflects damage for what occurred. It is really my friend's trivial case but not his smallest coin of the realm" 148. The charges of the abominable crime of buggery and assault causing bodily harm are not trivial and if any inference at all is to be drawn from the jury's verdict it is that they did not believe that such a crimes [sic] occurred. It follows they could have found that the plaintiff did not have reasonable and probable grounds to initiate the criminal charges. (b) "April 95 Common Law Division 19228/82 paras 189-196 esp 190-191": 189. Mr Russo was aware of your Honour's judgment of 12 April 1995 ruling that you would not permit Ms Wentworth to "relitigate that application for a permanent stay without constraint" (at 3.1). 190. Your Honour further indicated in your judgment of 12 April 1995 that the only matter that you would entertain was the effect of the verdict of the jury in favour of Ms Wentworth in the sum of $2,000 (plus interest of $680 added by Sully J (at 3.2). Ms Wentworth argued that the verdict served as an issue estoppel. Your Honour therefore decided that Ms Wentworth was not entitled to cross-examine Mr Rogers in relation to asserted admissions. 191. Although it was common ground that Ms Wentworth was not precluded as a result of that hearing from raising the submission before your Honour, the submission was nevertheless misconceived. Mr Rogers' malicious prosecution relates to his acquittal in the criminal proceedings. The verdict of $2,000 in Ms Wentworth's civil damages claim could not serve an issue estoppel in relation to separate charges for which Mr Rogers was tried in the criminal proceedings and acquittal. 192. Mr Russo was also aware of your next judgment, dated 13 April 1996, wherein your Honour determined that Ms Wentworth should not be entitled to cross-examine Mr Rogers in relation to showing a course of conduct demonstrating that Mr Rogers knew from various judgments that his case was hopeless. Your Honour's reasons were essentially those which formed the basis of your judgment of 12 April 1996. 193. On 28 April 1995 your Honour gave a further judgment to be read in conjunction with the two earlier judgments of 12 and 13 April 1994. 194. Ms Wentworth did not abide by your Honour's judgments and proceeded to tender evidence and make expansive oral submissions over many days which were not relevant to the matters to be determined by your Honour on the estoppel issue. 195. Mr Russo by not properly advising Ms Wentworth as to the import of your Honour's orders through either incompetence, and/or negligence and/or disrespect for the Court has been responsible for substantial costs being unnecessarily incurred by Mr Rogers. 196. Mr Russo therefore should be liable for Mr Roger's costs both jointly and severally with Ms Wentworth for the reasons stated above and on the principles enunciated in Riv-Oland Marble Co (Vic) Pty Ltd v Settef , supra (c) "25/5/97 Court of Appeal 40108/97 pp1; paras 10-14 paras 21-23, 30-37 esp 35a)-c); and the resulting finding of Sperling J, [S16] para 37 relying on the previous submission which had been made to Sperling J." 21. His Honour in giving his reasons for the severance stated (Judgment – 8 April 1994 at 21): "In addition, I think that there is great force in the applicant's contention that she should be permitted a simple trial of uncomplicated allegations of assault, without being, as it were, swamped by a mass of evidence having nothing to do with the resolution of that simple case, but having relevance only to a cross-claim where the issues for trial, notwithstanding some factual overlap, are more numerous and quite different in nature and scope." 22. The fact that the Applicant's allegations against the Respondent were rolled into one paragraph in her Statement of Claim and a general verdict of $2,000 was delivered by the jury, does not justify a conclusion that she has successfully prosecuted the Respondent. Such a conclusion is contrary to legal principles logic and common sense. In fact it could be said that the Respondent successfully defended the larger claim. 23. The Respondent's action for malicious prosecution in relation to the criminal proceedings commenced by the Applicant, is not merged into the Applicant's cause of action in her civil damages claim as a result of the verdict of $2,000. … 30. The identity of the subject matter that is alleged to create an issue estoppel is essential. The Applicant cannot set up an issue estoppel on the basis of the general verdict because she is unable to point to which one or more of the six particulars of the alleged assault the jury believed occurred. 31. In Garett v The Queen 139 CLR 437 Murphy J stated: (at 447): "Whether proceedings are civil or criminal, if a general verdict could be based on a finding of any of two or more issues, there is no logical basis for issue estoppel on any of the issues." 32. The Applicant's motion for a stay of the cross-claim and her motion for a dismissal of the cross-claim were both dismissed (Orders 2 and 3) on the basis that the general verdict could not create [an] issue estoppel with respect to all questions put to the jury. Sperling J stated (at 20): "All that can be inferred from the jury's verdict is that Mr Rogers did one or more of the things alleged by her." 33. His Honour in response to the Applicant's submissions that he should infer from the general verdict that the jury believed all her allegations against the Respondent commented that he would not draw this inference. 34. The Court of Appeal in these proceedings have already determined that inferences can and should be drawn from the jury verdict of $2,000: Wentworth v Rogers , unreported, 5 May 1995. 35. The Plaintiff should not be granted leave to appeal to this Court on a question that the Court has already determined in the very same proceedings. a. His Honour Justice Brownie AJA quoted Sully J when he delivered judgment on 24 June 1994 (at 4.9): "In my opinion it cannot be denied that the verdict of the jury conveys unmistakably that the jury did not accept, simply and without qualification the horrific descriptions given by the plaintiff of the acts to which she was allegedly subjected by the defendant." b. Handley JA stated (at 3.3): "I agree with Priestley JA that it does not establish that the plaintiff's expectation of a greater recovery was unreasonable but with respect, I also agree with the trial judge, that the size of the verdict should not be ignored." c. Priestley JA stated (at 7.9-8): "…In each case the plaintiff obtains a verdict which the court infers is only explicable on the basis that part only of the plaintiff's case has been accepted. It seems to me that the weight the court, in considering whether the plaintiff had reason for starting proceedings in the Supreme Court, should give to the (inferred) rejection by the jury of part of the plaintiff's allegations would differ in each of the three situations." 36. It is submitted that Brownie AJA was correct in his view of the inferences to be drawn by the verdict of $2,000 when he stated (at 5.1): "In my view, a verdict assessing at only $2,000 damages for an assault involving non-consensual sexual intercourse, either vaginal or anal, would be perversely inadequate." 37. It is submitted that Sperling J was correct in making the finding in his judgment of 10 September 1996 that Loveday J's order dismissing the cross-claim should be set aside. His Honour stated (at 20.3): "Indeed, it is consistent with the result that the jury found no more than that Mr Rogers pushed the plaintiff to the ground and that the jury awarded the $2,000 by way of compensatory and exemplary damages for that assault. Indeed the amount awarded strongly suggests that the jury did not find that Mr Rogers was guilty of buggery or of assault occasioning actual bodily harm. But is unnecessary to pursue that line of thought further. The only relevant point is that Ms Wentworth cannot establish, from the result, that the jury found Mr Rogers had committed buggery and/or assault occasioning actual bodily harm." (d) "6/7/97 Court of Appeal 40108/97 pp1,18,19,22,23 esp paras 94,95,96 Sperling J, relying on the previous submissions re Brownie J." 94. The Respondent has been before three juries. In relation to the jury in the criminal proceedings and the jury in the hearing before Maxwell J the Respondent was believed absolutely. In relation to the jury before Sully J the Respondent was believed in relation to all serious allegations. This is the conclusion of this Court which has already been asked to draw inferences from the jury verdict in relation to the issue of costs: See Wentworth v Rogers , unreported, 5 May 1995: His Honour Justice Brownie AJA quoted Sully J when he delivered judgment on 24 June 1994 (at 4.9): "In my opinion it cannot be denied that the verdict of the jury conveys unmistakably that the jury did not accept, simply and without qualification, the horrific descriptions given by the plaintiff of the acts to which she was allegedly subjected by the defendant." Handley JA stated (at 3.3): "I agree with Priestley JA that it does not establish that the plaintiff's expectation of a greater recovery was unreasonable but with respect, I also agree with the trial judge, that the size of the verdict should not be ignored." Priestley JA stated (at 7.9-8): "…In each case the plaintiff obtains a verdict which the Court infers is only explicable on the basis that part only of the plaintiff's case has been accepted. It seems to me that the weight the court, in considering whether the plaintiff had reason for starting proceedings in the Supreme Court, should give to the (inferred) rejection by the jury of part of the plaintiff's allegations would differ in each of the three situations." 95. It is submitted that Brownie AJA was correct in his view of the inferences to be drawn by the verdict of $2,000 when he stated (at 5.1): "In my view, a verdict assessing at only $2,000 damages for an assault involving non-consensual sexual intercourse, either vaginal or anal, would be perversely inadequate." 96. It is submitted that Sperling J was correct in making the finding in his judgment (at 20.3): "Indeed, it is consistent with the result that the jury found no more than that Mr Rogers pushed the plaintiff to the ground and that the jury awarded the $2,000 by way of compensatory and exemplary damages for that assault. Indeed the amount awarded strongly suggests that the jury did not find that Mr Rogers was guilty of buggery or of assault occasioning actual bodily harm. But is unnecessary to pursue that line of thought further. The only relevant point is that Ms Wentworth cannot establish, from the result, that the jury found Mr Rogers had committed buggery and/or assault occasioning actual bodily harm." (e) "16/2/98 Court of Appeal 40108/97 p.15, paras 45,45": 45. His Honour Justice Brownie AJA quoted Sully J when he delivered judgment on 24 June 1994 (at 4.9): "In my opinion it cannot be denied that the verdict of the jury conveys unmistakably that the jury did not accept, simply and without qualification, the horrific descriptions given by the plaintiff of the acts to which she was allegedly subjected by the defendant." (f) "16/2/98 Court of Appeal 40402/94 pp1, 16-18,21,22,24, paras 7,8 (esp (i); 11 (esp (a)-(c))". 7. Costs order should have abided the outcome of the cross-claim a. In Wentworth v Rogers (No 10) [1987] 8 NSWLR 398 the Court of Appeal set aside the jury's verdicts at the Maxwell trial (the jury had dismissed Ms Wentworth's action and awarded $571,000 in favour of Mr Rogers in relation to his cross-claim for malicious prosecution) and made the following order (at 410): "The costs of the first trial are to abide the result of the second trial" b. When Sully J ordered costs in relation to Ms Wentworth's jury award of $2,000 plus interest, the "second trial", in relation to the cross-claim for malicious prosecution, had not been completed. His Honour did not abide the result of the "second trial" before ordering costs. The word "second trial" was in no way qualified by the Court of Appeal who contemplated the proceedings would be retried before one jury. c. His Honour Brownie AJA noted that Sully J did not properly consider the orders of the Court of Appeal in 1987. His Honour stated (at 5): "Two further matters were raised, as to costs. First, it seems to have been overlooked by all concerned, when the costs question was argued before Sully J, that the second trial was a trial only of Ms Wentworth's claim, and not a trial of the cross-claim, and that the order of the Court of Appeal of 1987, that the costs of the first trial abide the result of the second trial, referred to a second trial of both claims ." [emphasis added] d. Even without the orders of the Court of Appeal, however, it was not, with respect, a proper exercise of discretion to award costs on the civil claim without abiding the result of the cross-claim, given the significant interrelationship between the two actions. e. Although the cross-claim relates to the criminal proceedings commenced by Ms Wentworth, what transpired in the civil proceedings caused damage to Mr Rogers. Ms Wentworth continually repeated her serious allegations against Mr Rogers in defence of the cross-claim and her repeated allegations of serious sexual assault in her civil claim. Mr Rogers is entitled to damages in relation to these repeated allegations of serious sexual assault. f. At the time the Court of Appeal delivered judgment, on 5 May 1995, the cross-claim had been dismissed by Loveday AJ on the grounds of want of prosecution. Their Honours, therefore, did not have to consider the cross-claim when determining the appropriate costs orders. Certainly Brownie AJA would not have stated the following if the cross-claim was still on foot (at 6.2): "The costs of the cross-claim will be a matter for the Common Law Division, but in general, and on the material now before us, I see no reason why Ms Wentworth ought not recover the whole of her costs in relation to the cross-claim." g. It is submitted that it was open to the Court of Appeal to determine that Sully J's order as to costs was a nullity as His Honour did not have the power to award costs. h. Now that the cross-claim is on foot, Mr Rogers submits that Sully J's order affirmed by the Court of Appeal should be stayed until the hearing of Mr Roger's cross-claim. 8. The Effect of the severance of the civil claim from the cross-claim a. Mr Rogers was denied an opportunity to have his cross-claim heard in 1994. In these proceedings Sperling J stated in his judgment of 10 September 1996 (at 33.1): "It was only as a consequence of Ms Wentworth's application for severance, that the cross-claim did not come on for hearing in 1994." b. His Honour Justice Sully, before granting Ms Wentworth's application to sever the civil assault claim from the cross-claim (an application which was opposed by Mr Rogers), stated that if the severance was, the evidence would be limited to Ms Wentworth's version of what happened and any corroborating evidence (Transcript – 30 March 1994 at 53). c. Further, his Honour indicated that cross-examination of Ms Wentworth, the Plaintiff in the civil assault proceedings, would be limited and stated (Transcript – 30 March 1994 at 54): "It should not be permissible or necessary to go into the morays of detail that would have to be gone into on the reasonable and probable cause element on the malicious prosecution, or indeed in the malicious prosecution proceedings." d. His Honour could not see how Mr Rogers would have any complaint and stated (Transcript – 30 March 1994 at 54): "That is not going to prejudice his capacity to press on regardless later, if that is what he wants to do with the malicious prosecution proceedings where all issues will not only be put but the range of evidence admissible on those issues will be very different." f. His Honour, in giving his reasons for the severance stated (Judgment – 8 April 1994 at 21): "In addition, I think that there is great force in Ms Wentworth's contention that she should be permitted a simple trial of uncomplicated allegations of assault, without being, as it were, swamped by a mass of evidence having nothing to do with the resolution of that simple case, but having relevance only to a cross-claim where the issues for trial, notwithstanding some factual overlap, are more numerous and quite different in nature and scope." g. His Honour Justice Sully's reasons for severance governed how the civil assault proceedings in fact proceeded before him. His Honour thus should have reserved costs, at the very least, to await the outcome of the cross-claim, given the circumstances of this protracted litigation, the circumstances and rationale for the severance of the claim from the cross-claim, and most importantly, the limits placed upon Mr Rogers in his defence of Ms Wentworth's allegations. h. The fact that Ms Wentworth's allegations against Mr Rogers were rolled into one paragraph in her Statement of Claim and a general verdict of $2,000 was delivered by the jury, does not justify a conclusion that she has successfully prosecuted Mr Rogers and thus costs should follow the event. Such a conclusion is contrary to legal principles, logic and common sense. In fact it could be said that Mr Rogers successfully defended the larger claim. i. His Honour Justice Brownie AJA quoted Sully J when he delivered judgment on 24 June 1994 (at 4.9): "In my opinion it cannot be denied that the verdict of the jury conveys unmistakably that the jury did not accept, simply and without qualification, the horrific descriptions given by the plaintiff of the acts to which she was allegedly subjected by the defendant." … 11. The damage award of $2,000 a. The only proper exercise of discretion in relation to the award of $2,000 for serious allegations of rape, allegations which the jury did not believe (as found by Sully J), is to make a cost order in Mr Rogers' favour and not in Ms Wentworth's favour. b. It is submitted that Brownie AJA was correct in his view of the inferences to be drawn by the verdict of $2,000 when he stated (at 5.1): "In my view, a verdict assessing at only $2,000 damages for an assault involving non-consensual sexual intercourse, either vaginal or anal, would be perversely inadequate." c. Sperling J also concluded in his judgment of 10 September 1996 in setting aside Loveday J's order dismissing the cross-claim that (at 20.3): "Indeed, it is consistent with the result that the jury found no more than that Mr Rogers pushed the plaintiff to the ground and that the jury awarded the $2,000 by way of compensatory and exemplary damages for that assault. Indeed the amount awarded strongly suggests that the jury did not find that Mr Rogers was guilty of buggery or of assault occasioning actual bodily harm. But is unnecessary to pursue that line of thought further. The only relevant point is that Ms Wentworth cannot establish, from the result, that the jury found Mr Rogers had committed buggery and/or assault occasioning actual bodily harm." d. His Honour Sully J in awarding costs to Ms Wentworth did not consider, when exercising his discretion in her favour, that in obtaining the verdict of $2,000 she repeated her serious allegations that formed the basis of Mr Rogers's malicious prosecution action which is not yet determined. With respect, such an omission was serious and has resulted in a miscarriage of justice. e. It was a serious oversight by Sully J, with respect, that most of the costs incurred by Ms Wentworth can reasonably be considered to relate to her pursuing Mr Rogers for the more serious allegations which were rejected by the jury. f. It is submitted that the orders made on 5 May 1995 by this Honourable Court should be stayed and any part assessment should also be stayed. g. The case of Wentworth v Wentworth (unreported) 23 November 1995 is an example of how long and time consuming it can be for parties and the Court to assess a complex matter through taxation. Similar problems can arise on assessment. In that case the taxation process involved (at 2-4): (i) 175 ½ hours and involved the parties appearing before Mr Howe on 38 separate occasions; … 10 It would not have been appropriate to quote all these submissions of counsel, except for what Ms Wentworth now says at [178] – [180] of her submissions of 18 August 2003 quoted at [5] above. It is plain that counsel for Mr Rogers did not, on any of the seven occasions that Ms Wentworth relies upon, say anything faintly resembling the proposition that I expressed any view about Ms Wentworth's credit, as distinct from a view about what the jury had concluded; and I have not said that Ms Wentworth was not a rape victim, as distinct from saying that I inferred that the jury concluded that she was not. 11 I will refrain from quoting from the judgments mentioned in subparagraphs (g) – (j) of those submissions, (quoted at [5] above) but note that, as is only to be expected, no judge is recorded on any of those occasions as saying that I had expressed a view about Ms Wentworth's credit. It is quite wrong to say, as she said orally on 18 June 2002 (quoted in my judgment of 26 February 2003) that "everybody accepted [that I] was making adverse reflections on [her] credit". 12 Ms Wentworth presents as an intelligent and very experienced litigant and advocate. Her written submissions conclude with a reference to her holding the qualifications "B.Sc (Gen) Dip Law". Given the history of the debate about the allegation of my having demonstrated bias by the terms of my 1995 judgment, her restatement of this argument now, without paying heed to the earlier rulings, and the reasons given in relation to those rulings, is an abuse of the process of Court, and a waste of scarce community resources. Further, given the terms of my judgment of 26 February 2003, and particularly [14], it is very difficult, if not impossible, to see how so experienced and intelligent an advocate might have honestly made the submissions now advanced. 13 On 19 November 2001 Ms Wentworth raised another basis for my disqualification, namely my conduct on 7 November 2001. I do not see any profit to anyone in my now saying any more than I said in my judgment of 26 February 2003 at [24], except to note that since November 2001 Ms Wentworth has repeatedly taken the opportunity, whenever I gave a ruling against her, of immediately asserting that that ruling demonstrates further evidence of bias, and of making allegations, often in extravagant and inappropriate language, that I was further misconducting myself. I record that in my view each of these allegations is quite untrue. I note that she makes allegations on occasions, that I laughed at her, and that she makes the same allegations against Ipp JA. I was not at any stage, on any of the days upon what this matter was argued amused by any aspect of the matter, and so far as I can tell, neither was Ipp JA. 14 On 29 November 2001 Ms Wentworth sought to lead evidence from a witness who had not been present in Court on 7 November 2001, but who had read the transcript of what had been said on that day, and who had listened to a tape recording of what had then occurred. Objection was taken, and the question debated was whether evidence from that witness, as to her impression gleaned from the transcript and the tape recordings was admissible. Ms Wentworth said in substance that the witness was a "real" rather than a hypothetical member of the community, and therefore that the evidence was admissible. I asked Ms Wentworth whether there was any authority to the effect that evidence of this type was a permissible way of proving what the hypothetical observer would think, but she gave a non-responsive answer. I later brought her back to the point of the admissibility of the particular piece of evidence proffered on a number of occasions (see the transcript of 29 November 2001 at pages 5-7), but on each occasion she gave responses which deflected or were apt to deflect attention from that question. 15 When she had consistently failed to respond to the question posed, and had not proffered any real argument to the effect that the evidence was admissible I gave a ruling against her. The following exchange then took place:- "PLAINTIFF: I am sorry, that's just a further example of you trying to suppress evidence. HIS HONOUR: Ms Wentworth, there is no need to be offensive. I propose to reject [the last question asked]. PLAINTIFF: I am not being offensive. I ask you to retract that. HIS HONOUR: I will not retract it. You are being deliberately offensive. PLAINTIFF: I am not being deliberately offensive and with respect you are being offensive and your Honour is being deliberately so. Your Honour was offensive to me on the date the question of Mr Lovett arose and you are being deliberately offensive again. That is one of the examples of bias and your conduct demonstrates prejudgment and offensive behaviour again by not allowing the question. You are aware the proper way the evidence is presented is that the evidence is all put before the court. At least Justice Einstein got that right. He allowed the evidence to be before the Court. You are trying to suppress evidence of your own misconduct and that is one of the bases of prejudice. HIS HONOUR: I reject that last question. I will reject any questions along the same line. Do you have any more questions? PLAINTIFF: Your Honour is not entitled to reject the admissible evidence of a witness here prepared to give evidence of apprehended bias. I ask you to disqualify yourself on that ruling. I am asking you to disqualify yourself on proper principles. You are demonstrating prejudgment and trying to protect your conduct and by refusing to allow the evidence you are using your position improperly and injudiciously and doing it without jurisdiction. When you act unjudiciously (sic) you act without jurisdiction and I ask you to disqualify yourself because what you are doing demonstrates you are not using jurisdiction of this Court and I ask you to remove yourself from the Bench. HIS HONOUR: I decline to do so. I observe you have failed to respond to my questions to you. As to what you say about the finding in the Court of Appeal in Goktas v GIO, which supports the last question asked, I have observed, in my view, that decision is to the effect evidence of this kind is not admissible. Do you want to ask any other questions? PLAINTIFF: I wish to go back to Goktas. HIS HONOUR: You are now trying to reopen, having previously failed to respond. PLAINTIFF: Being rude does not have any effect. You have been as rude as you possibly can and even your attitude you seem to demonstrate further bias. There are three observers in the court watching what you are doing." 16 Pausing here, I note that this exchange commenced with Ms Wentworth, immediately after I had given a ruling in the circumstances just mentioned, accusing me of trying to suppress evidence. 17 A little later I asked her again to refer to the particular words of any authority which supported the proposition that the evidence in question was admissible, that is, in circumstances where the witness had not been present in Court on the occasion under consideration, but had read the transcript and/or listened to a tape recording of what had occurred. Again, she gave a response apt to deflect attention from the question asked. 18 On 3 December 2001 the case was listed before me again. On this occasion Ms Wentworth commenced by submitting that I could not properly sit alone. She said that the Supreme Court Act 1970 required Ipp AJA (as he then was) to sit with me. She had foreshadowed this application in writing in advance of the hearing, and I said that Ipp AJA and I were of the view that I should sit alone (the matter being listed on 3 December 2001 for the sole purpose of considering an application that I recuse myself). Ms Wentworth then said:- "CLAIMANT: It is a matter which is challenged and it is a matter which is relied upon to show that you are determined without any possible way in which your mind might be changed to sit by yourself to hear this application, that your determination is a further pre-judgment, that it is a further example of bias, apprehended or actual, that there seems to be in your mind a situation which has now arisen that come hell or high water you are going to sit by yourself, you are going to do what you like and you are going to determine this matter on your own. I think that probably puts it in a nutshell doesn't it your Honour? HIS HONOUR: I don't propose to respond to your abuse. CLAIMANT: There is no abuse your Honour-- HIS HONOUR: Would you please proceed with whatever evidence-- CLAIMANT: --if there was any abuse-- HIS HONOUR: --you wish to call. CLAIMANT: You're talking over the top of me your Honour-- HIS HONOUR: I am and I will continue to do so if you talk over the top of me-- CLAIMANT: I have not spoken-- HIS HONOUR: --please proceed with any evidence you wish to call. CLAIMANT: I have not talked over the top of you your Honour and I take vast offence at that statement-- HIS HONOUR: Do you have any evidence please. CLAIMANT: Your Honour I was trying to continue and if your Honour continuously interrupts me that is a further example of your Honour's inability to control yourself, inability to act in a fair and even handed fashion, inability to act in a judicial manner. Your Honour it seems to me that those sorts of matters are matters which your Honour is required to have regard to and it may well be that your Honour does not-- HIS HONOUR: Ms Wentworth I have given a ruling on this, please proceed with the evidence. CLAIMANT: Your Honour I'm making an application that you disqualify yourself for bias and in that particular application your Honour I am entitled to conduct that application in accordance with the best way that I think it is in my interests to do so. Now your Honour, I will not be threatened, I will not be coerced and I will not be bullied by you from the Bench. Now the application your Honour is one for disqualification for bias and in that respect your Honour, the litigant who is making that claim, the claimant, is entitled to be heard and to be heard courteously and properly by the judge who is presiding. I have made the application that you may not preside by yourself, you have insisted upon doing so, so your Honour the matter will now proceed before you in circumstances which are unfair, unjust and improper, and your Honour in those circumstances I feel threatened, abused, distressed and anxious, made that way by your conduct. Now your Honour I put those matters properly on record as I am required to do in this sort of application and your Honour as has been said on many occasions one need not be too sensible to the feelings of a judge in an application such as this." 19 By this time Ms Wentworth was seeking to adduce evidence from other witnesses, not just about my conduct of 7 November 2001, but also of later conduct, and was asserting that Ipp AJA ought to be present in Court when the matter was heard. It is clear that she was conscious that there was limited Court time available, and aware that the Court had fixed for hearing the balance of the application for leave to appeal from Ireland J for the following day. She persisted in conduct that meant that the matter could not be dealt with on 3 or 4 December 2001. 20 She raised for the first time, before me sitting alone, the possibility that the hearing would not finish before 31 December 2001, and suggested that since the commission then held by Ipp AJA would expire on that date, it may be that since the case could not be determined by then, the hearing would have to start afresh. Looking back now, with the benefit of hindsight, and noting the conduct of Ms Wentworth throughout this long litigation, I conclude that it is likely that, even then, she had determined to take whatever steps were available to her to abort the hearing, perhaps because she had thought that the hearing of 7 November 2001 had not progressed as well for her as she had hoped. In any event, I then referred her to the provisions of Section 37(3A) of the Supreme Court Act. Section 37 of that act provides generally for a person to be appointed as an acting Judge, or as an acting Judge of Appeal. Subsection (3A) provides:- The person so appointed may, despite the expiration of the period of the person's appointment, complete or otherwise continue to deal with any matters relating to proceedings that have been heard, or partly heard, by the person before the expiration of that period. 21 Ms Wentworth debated that question further on 3 December 2001, but then went onto other matters. She raised this topic again on 18 June 2002, so far as concerned my having a commission, but did not return to the topic again until 11 August 2003 when she again suggested that I did not have a commission. If the point about Section 37 (3A) is correct so far that it is concerned with Ipp AJA in 2001, it is equally correct so far as concerns me in 2003. I note too that the point was not raised in the Notice of Motion of 4 June 2003. 22 The question about the admissibility of the evidence of witnesses, not present on 7 November 2001, but who express opinions about what happened on that day, was later effectively subsumed within a wider question debated on 6 June 2002, namely whether evidence of any kind is admissible on the hearing before a judge asked to disqualify him or herself for apprehended bias, there being no question but that evidence of that kind is admissible on appeal or on a hearing on an application in the nature of prohibition or certiorari. 23 Once again Ms Wentworth repeatedly made submissions that were apt to deflect attention away from the question I have just mentioned and to make submissions about other topics. Ultimately, I delivered an oral judgment in these terms:- 1 "BROWNIE AJA: The debate before the Court at the moment is whether at this stage, that is to say during the course of a submission made by the claimant that I disqualify myself on the ground of apprehended bias, evidence is admissible in the form of affidavits from the claimant and from other deponents setting out, as I understand it, their apprehension as to my demeanour and conduct principally but, perhaps, not exclusively on the occasion of 7 November last year. 2 In the course of the debate, the Court has said that it will treat as part of the Court record any tape recordings which exist, taken by the Court Reporting Branch, and will treat those tape recordings as well as the transcript as being part of the Court record, so that there is no need to tender either the transcript or the tape recordings. 3 What is left for decision is a question whether at this stage, as distinct from on appeal, the evidence in the form of the affidavits I have mentioned is admissible. The claimant has submitted forcefully that it is admissible and that there is no authority which says it is not. With respect, that does not seem to me to be accurate. 4 In Barton v Walker [1979] 2 NSWLR 740 Samuels JA, with whose judgment the other members of the Court agreed, discussed the problem at 749. He referred to various aspects of it and then said: "The further difficulty encountered is that of the judge acting as judge in his own cause. How does the judge deal with assertions of fact which he knows to be incorrect? They might not be challenged by the party not moving. How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate?" 5 That statement needs to be read in the context of the claimant's written submissions of 31 May 2002. At paragraph 42 she referred to various decisions of the Court to which I will come and continued, referring to those decisions and the principles relied upon therein to submit that: "…affidavits as to demeanour and behaviour of a judge are proper and admissible as evidence in a bias application, and to the extent that Cripps JA determined in Goktas that such affidavits to supplement the transcript should not be admitted, that he was wrong and that head note wrongly reflects any agreement with that position by Meagher JA to that course or, alternatively, seeks to re-argue that point, on the basis that the determination of Cripps JA is completely at variance with all other determinations of the Court which state that admissible evidence is to be admitted and proved in the ordinary way that is by way of affidavit, sworn testimony from witnesses, exhibits in the proceedings and is at variance and contrary to the principle that all such evidence should be admitted unreservedly in the application for disqualification and that it is not a function of the judge to do other than assess such evidence as is raised and determine whether on that evidence a reasonable person or a party would entertain an apprehension that the judge was biased against that party or improperly partial to an opposing party." At paragraph 43: "It is not the function of the judge in a disqualification application to refuse to admit any evidence which is raised against him which is said to support the application, nor to allow the qualification or cutting down of such evidence by cross-examination. Evidence may be raised by an opposing party to contradict the assertions made which are raised to support the application for disqualification, but that is not a matter for the judge to either refuse its admission or to allow cross-examination on the evidence." 6 The submissions go on from there. 7 The decision in Barton v Walker has been followed by the Court of Appeal in other cases, including Rajski v Wood (1989) 18 NSWLR at 512. I note that Kirby P, as he then was, thought that the matter was not beyond further argument. However, as I read that case and other cases, the precise present point was not in issue. 8 In most of the cases to which reference has been made, evidence was admitted, either by an appellate court or by a court dealing with some application such as one for an order for prohibition, as distinct from evidence being adduced before the judge whose disqualification is sought. 9 In Rajski v Wood , as already noted, the correctness of the decision in Barton was not in question. I infer from that that his Honour thought, perhaps, the matter was arguable. In Australian National Securities Ltd v Spedley Securities Ltd (1992) 26 NSWLR at 411 a Bench of five judges sat. Mahoney JA at 436 said: "There are obvious reasons why the issue, for example, of whether a particular judge is, in fact, biased or there is an appearance of bias should not be a factual contest." 10 Meagher JA agreed with Mahoney JA. I do not think any other member of the Court expressed any view dissenting from the proposition of Mahoney JA that I have just quoted. Nor did any other judge expressly agree. That is to say, the other three left the matter silent. 11 The plaintiff has relied upon a decision of this Court in Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684. 12 She has said in the passage from written submissions which I have quoted, and additionally in oral submissions, that Meagher JA did not agree with the decision of Cripps JA. I think the last sentence of Meagher JA's reasons for judgment indicates the contrary. 13 In any event, Goktas was a case in which there was an appeal from a decision of a District Court judge on the ground of that judge's supposed bias. The evidence in question here was led before the Court of Appeal. I do not understand any of the three judges who constituted the court to have dealt explicitly with the question now under consideration, as distinct from having considered what should be done with the evidence once it was proffered on appeal. 14 But even as to that, the majority of the court seems to me to have decided the case in a manner contrary to the submissions advanced by the claimant. On that point it seems to me, with all due respect, that the judgment of Kirby P is a judgment of the minority. 15 In Goktas the court dealt at some length with statements made in judgments of the court in two earlier cases: Builders' Licensng Board v Mahoney (1986) 5 NSWLR 96 and Vakauta v Kelly (1988) 13 NSWLR 502, on appeal 167 CLR 568. Each of the cases of the Builders' Licensing Board and Vakauta dealt with the position on appeal as distinct from on an application such as that now before me for me to disqualify myself. 16 However, at pages 699 to 700 Cripps JA said, as it seems to me, that the evidence proffered in that case – that is to say, an affidavit from counsel who appeared at the trial in the District Court as to counsel's perception of the conduct and behaviour of the trial judge – ought not be received, or rather more accurately, ought not be relied upon in the Court of Appeal. 17 The claimant has referred to two other cases. First is the decision in Rogers v Wentworth , a decision of Handley JA of 9 October 1998. She agreed after a time that his Honour did not then consider the question that I have to consider now because it was not raised before his Honour. I put that aside. 18 She relied upon a further decision of Handley JA in Wentworth v Rogers , 15 December 2000. In that case, it seems to me his Honour was dealing with a different point, not with evidence proffered as to what had happened in court, and as to a perception of some witness as to what had happened then, but rather with evidence from a person as to what was said to have happened outside court. His Honour rejected that evidence and, as I read his Honour's reasons for judgment, he was dealing with the latter question and not the matter now posed for decision. 19 The claimant also refers to a decision of the High Court in Builders' Registration Board (Qld) v Rauber (1983) 57 ALJR 376, particularly at 384. However, once again, I do not read the judgments in that case as going to the present issue. They dealt rather with the evidence that was called when there was an application made to the Supreme Court of Queensland for prohibition. 20 The claimant has referred us to various statements concerning the general proposition of how evidence when received by an appellate court should be viewed. By and large, I really think there is little debate about that. The principles seem to be well established. But I repeat, the question with which we have been concerned for some considerable time now is whether evidence is admissible at this stage, as distinct from an appeal. 21 It seems to me the decision of the Court of Appeal in Barton v Walker is to the contrary, that that decision has been followed and applied by this court on other occasions, and that there is no occasion for this court, or for me sitting as a judge alone, to go beyond that case. It might be that the High Court will take a different view of the matter, but it does not seem to me that it is open to me to do so. 22 In those circumstances, it seems to me that I am bound to reject any affidavits, or for that matter documents which are tendered for the purpose of demonstrating the apprehension of either the claimant or other persons as to my demeanour or conduct in court. 23 The passage which I noted from the judgment of Samuels JA in Barton v Walker seems to me to highlight the difficulties involved in adopting that course. The claimant referred us to an article written by Sir Anthony Mason, which is entitled to great respect. But I do not think that I, or for that matter the Court of Appeal, should now go behind the judgment in Barton v Walker. 24 I propose therefore to reject any affidavit evidence or any other documentary evidence or, if need be, oral evidence going to the topic I have mentioned, that is to say, the perception or reasonable perception of any person as to my conduct or demeanour in court. 24 Ipp JA then said:- "To the extent my views may be relevant, I agree". Ms Wentworth's response to this was as follows:- CLAIMANT: I seek both of your Honours to disqualify yourselves, now that you have attempted to suppress evidence, for your misconduct, which misconduct has drawn great disgrace on the administration of justice in this State. In order to preserve your position as an Acting Justice and obtain funds from the State on an improper basis, you have now seen fit to attempt to suppress evidence of conduct which is reprehensible. 25 This statement needs to be considered in conjunction with her allegations that she has somehow been frightened by Ipp JA and/or by myself. It also needs to be considered in the circumstance that she had not responded to requests that she address the Court about the particular question I have mentioned, namely whether evidence is admissible before the judge whose conduct is in question, and it is to be remembered, after objection to that evidence had been taken. 26 However, Ms Wentworth then succeeded in bringing the matter before the Court of Appeal, constituted by Spigelman CJ, Mason P, and Handley JA on 23 April 2003. She sought, amongst other things, an order setting aside my ruling of 16 June 2002 about the admissibility of evidence. At [13]-[14]. The Chief Justice said:- 13 The second substantive matter before the Court in all of these applications concerns a determination by Brownie AJA not to admit certain evidence to be adduced before him on an application that he recuse himself. The practice of the Court would not be to allow any such matter to proceed by way of review or appeal on an interlocutory matter of that character. The position in this State is as adumbrated by the Court in Barton v Walker [1979] 2 NSWLR 740. Whether the Court should change this practice in any relevant respect with respect to other situations in which recusal applications are rejected by a judge sitting alone, will now have to be dealt with in the light of subsequent authority, not least the litigation in England involving Lord Hoffman and his failure to recuse himself in the case involving General Pinochet. 14 Nevertheless, what has happened in these proceedings, as briefly recounted above, indicates the wisdom of the general position taken by the Court in Barton v Walker . If there is a case in which the Court should change its practice in that regard, this is not the case. 27 In her written submissions of 18 August 2003 Ms Wentworth debated the topic of the admissibility of evidence before me yet again, barely mentioning the decision of the Court of Appeal of 23 April 2003, and by implication simply brushing it aside. 28 She went on to make other submissions, mostly substantially repetitive of what she had said on the point earlier. In short, she referred to related but different topics, but did not address the precise topic, namely whether evidence is admissible before the judge whose conduct is in question, as distinct from on later occasions, after objection has been taken to the tendering of that evidence. 29 The bulk of the submissions of 18 August 2003 relate mainly to the conduct of Ipp JA, and I will proceed on the basis that this is a matter for his Honour alone to decide. However, in case another Court might find it helpful if I do so, I will record that in my view about Ms Wentworth's criticisms of his Honour's conduct in Court, that is the "FIFTH/GROUND" identified by his Honour at [24] of his judgment, are quite baseless. 30 The submissions of 18 August 2003 have caused me to go back, re- reading the record of this very long drawn out application for leave to appeal from a decision of Ireland J (who was also accused by Ms Wentworth of having been biased). With the benefit of hindsight and having now re read this material, it seems to me to be clear that, from as early as 19 November 2001, Ms Wentworth has been seeking, deliberately and systematically, to procure a new hearing, starting afresh before a differently constituted Court of Appeal. 31 I was earlier inclined to categorise much of her conduct as intemperate, but having reviewed the whole record, I am now persuaded that a good part of her conduct ought to be regarded as cold blooded and deliberate. She has repeatedly and immediately challenged rulings given; she has repeatedly avoided answering questions from the bench; she has repeatedly accused each of Ipp JA and myself of bias, and of generally very inappropriate conduct as judges; and at times she has seemed to be angry, but inconsistently so. I consider that it is clear beyond a doubt that she has set out to provoke each of us, and that she had done so deliberately. 32 I decline to disqualify myself. ********** Last Modified: 09/15/2003 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.