WENTWORTH v GRAHAM & ANOR [2003] NSWCA 104

New South Wales Court of Appeal

CITATION : WENTWORTH v GRAHAM & ANOR [2003] NSWCA 104 HEARING DATE(S) : 23 April 2003 JUDGMENT DATE : 23 April 2003

JUDGMENT OF : Spigelman CJ at 1; Mason P at 19; Handley JA at 20 DECISION : Notice of Motion dismissed.

CATCHWORDS : PRACTICE AND PROCEDURE - Notice of Motion seeking discharge of judgment of the Court of Appeal - where application effectively seeking review of judgment - where discretion to review to be exercised in accordance with overriding purpose of Supreme Court Rules - where substantive proceedings at interlocutory stage - whether Court should exercise discretion to review judgment. LEGISLATION CITED : Supreme Court Rules Pt 1 r 3, Pt 26 r 1 Barton v Walker [1979] 2 NSWLR 740 CASES CITED : Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 Wentworth v Graham & 1 Ors [2002] NSWCA 399 Wentworth v Graham & 1 Ors [2003] NSWCA 88 Katherine Wentworth (Applicant) PARTIES : Geoffrey Graham (First Respondent) William Charles Wentworth (Second Respondent) FILE NUMBER(S) : CA 40277/00 COUNSEL : Applicant - In person First and Second Respondents - No appearance SOLICITORS : Applicant - In person First and Second Respondents - No appearance

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40277/00

SPIGELMAN CJ MASON P HANDLEY JA

Wednesday 23 April 2003 Katherine WENTWORTH v Geoffrey GRAHAM & Anor Judgment 1 SPIGELMAN CJ: The matter before the Court is a Notice of Motion taken out in proceedings 40277/00 in which Miss Katherine Wentworth is the Applicant for leave to appeal. The Notice of Motion seeks the following order: "That the judgment and order made by Santow JA on 10/12/02, sitting as a single judge of Appeal, dismissing the Notice of Motion of the plaintiff, be discharged and set aside." 2 In order to understand the proceedings now before the Court, it is also necessary to understand the Notice of Motion that was before Santow JA. That was a Notice of Motion, by the same Applicant, seeking an order that the judgment/decision and orders made by Registrar Schell on 5 September 2002 be set aside. 3 Registrar Schell dismissed a Notice of Motion by the same Applicant in which she sought, in addition to further and other orders and costs, the following substantive orders: "1 That the judgment and orders made by Brownie AJA sitting as a single Judge of Appeal, dismissing the Notice of Motion of the Plaintiff filed 12.6.02, returnable 18.6.02, be set aside. 2 That the judgment on admissibility of evidence of Brownie AJA of 6.6.02 as noted at page 42 of the transcript of 6.6.02 be set aside. 3 That Acting Justice Ipp is disqualified for apprehended bias." 4 The Notice of Motion of the Plaintiff filed on 12 June 2002 referred to in the first order of the Notice of Motion of 2 July 2002 was as follows: "1 That Acting Justice Ipp is disqualified for apprehended bias. 2 That the judgment on admissibility of evidence of Brownie AJA as noted at page 42 of the transcript of 6/6/02 be set aside." 5 In addition, orders for costs and further and other orders were sought. 6 As can be seen, there are two substantive matters in issue. The first is the determination by Brownie AJA rejecting certain claims made on a separate application for him to recuse himself. Brownie AJA and Ipp AJA (as his Honour then was) were hearing a summons seeking leave to appeal against the decision and orders of Ireland J. 7 When the Motion before Registrar Schell came before the Registrar on 12 August 2002, Registrar Schell made an announcement as follows: "The motion will not be listed before any Judges of the Court except, if the claimant wishes it, Brownie AJA and Ipp AJA on the further hearing of the summons before them. The substantive relief sought in the motion (and in the earlier motion of 12 June 2002) raises matters which the High Court and the High Court alone may address. Whether the High Court would be likely to do so at this stage of the part-heard proceedings in this Court is a matter on which the claimant should take her own advice." 8 This Court is required by Pt 1 r 3 of the Supreme Court Rules to give effect to the overriding purpose when it exercises powers given to it under the Rules, the overriding purpose being to facilitate the just, quick and cheap resolution of the real issues in such proceedings. By Pt 26 r 1 the Court may give directions and make such orders for the conduct of proceedings as appear convenient for the just, quick and cheap disposal of proceedings. 9 The Notice of Motion before the Court seeks an order, in effect, to review the judgment of Santow JA delivered on 10 December 2002 (Wentworth v Graham & 1 Ors [2002] NSWCA 399). His Honour was asked to withdraw that judgment. Whilst refusing to do so, he did make one factual correction in another judgment Wentworth v Graham & 1 Ors [2003] NSWCA 88. 10 The application for review before this Court invokes a power of this Court which is in its nature discretionary. The discretion is to be exercised in accordance with the overriding purpose identified in the Rules to facilitate the just, quick and cheap resolution of the real issues in dispute. 11 The first matter that is sought to be agitated in this Court is whether or not Ipp JA should recuse himself. In written submissions filed in this Court Miss Wentworth has indicated that she wishes Ipp JA to consider that matter, notwithstanding the dismissals of Notices of Motion issued by her. It was clear from Registrar Schell's judgment that he would refuse to list any such Notice of Motion seeking such leave before anybody else other than Brownie AJA and Ipp JA, who had carriage of the substantive proceedings, being the summons for leave to appeal. 12 Everybody seems to be in furious agreement that Ipp JA should deal with this matter. He has not, it appears, been given occasion to do so. No doubt he will, in the not too distant future, be given that opportunity. In the light of the substance of the matter, there is no basis for this Court exercising its discretion to interfere by way of review in the judgment of Santow JA in the manner sought in the Notice of Motion. 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 that case. 15 In my opinion, the matter ought to proceed as expeditiously as possible in terms of the original summons for leave to appeal being heard by the judges who sat on the matter. Notices of Motion of the kind which have been taken in these proceedings are capable of being controlled by the Court through the exercise of the inherent jurisdiction recognised by the High Court in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311. The judges who have constituted the two-judge Bench to hear the leave application will be able to deal with any other further interlocutory matters of the character that have arisen. 16 In my opinion, this Court should not exercise its discretion in such a manner as to permit the agitation at this stage of the proceedings of the two matters sought to be agitated by Miss Wentworth. The case is clear beyond argument of any character with respect to the application for Ipp JA to recuse himself. It is not much less clear, in my opinion, with respect to the decision by Brownie AJA not to admit evidence to be adduced in the recusal application before him. However, in that case also I am of the view that this Court should refuse to exercise its discretion to review the decision of Santow JA. 17 The various Notices of Motion will stand dismissed. However, Miss Wentworth can, without any difficulty, apply to Ipp JA to recuse himself, if that is what she wishes to do. As for the matter about the admissibility of evidence and the decision of Brownie AJA not to recuse himself, that is a matter that, in all the circumstances, should await any appeal that may flow from the final determination of the application for leave to appeal. 18 In my opinion, the Notice of Motion before the Court should be dismissed. 19 MASON P: I agree. 20 HANDLEY JA: I also agree. The decision of Brownie AJA of 16 June 2002 to reject evidence was a ruling in the course of hearing an application to disqualify himself. No appeal lay from his ultimate decision in that application to another Bench in this Court. No appeal could lie from any ruling on the evidence in the course of hearing it. 21 Subject to that matter, I agree with the reasons of the Chief Justice. 22 SPIGELMAN CJ: The order of the Court is the Notice of Motion is dismissed. **********