Wentworth v Graham & Anor [2002] NSWCA 397

Reported Decision : (2002) 55 NSWLR 638

New South Wales Court of Appeal

CITATION : Wentworth v Graham & Anor [2002] NSWCA 397 FILE NUMBER(S) : CA 40277/00 HEARING DATE(S) : 30/09/2002 JUDGMENT DATE : 30 September 2002

Katherine Wentworth (Applicant) PARTIES : Geoffrey Graham (First Respondent) William Charles Wentworth (Second Respondent) JUDGMENT OF : Santow JA at 1

COUNSEL : Ms Wentworth (Applicant in person) ex parte SOLICITORS : CATCHWORDS : PRACTICE and PROCEDURE - Court of Appeal - Review of Registrar's decision - whether Pt 61 rr3 and 4 Supreme Court Rules is inconsistent with s46(4) of the Supreme Court Act 1970. LEGISLATION CITED : Supreme Court Act 1970 s46(1), (2), (4); s75A; s121(3) Supreme Court Rules Pt51 r58(1); Pt 61 rr3 and 4 Emmett v Hornsby Shire Council (SCNSW Court of Appeal, 21 March 2002, unreported) CASES CITED: Strata Consolidated (Australia) Pty Ltd v Bradshaw ([2000] NSWCA 225) Westpac Banking Corporation v Abemond Pty Ltd (SCNSW Santow J, 28 October 1994, unreported) DECISION : I am satisfied that there is no impediment under s46(4) or otherwise in my exercising jurisdiction to review the Registrar's decision under Pt 61 rr3 and 4 of the Supreme Court Rules, in a case such as this, which I am satisfied comes within the ambit of that Rule.

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

SANTOW JA

30 SEPTEMBER 2002 (revised 6.12.2002) KATHERINE WENTWORTH v GEOFFREY GRAHAM and Anor Judgment – ex tempore 1 SANTOW JA: At the outset of this application, Ms Wentworth, who appears ex parte, properly raised a question concerning the jurisdiction of a single judge of this Court to review the decision of a Registrar pursuant to Pt 61 r4 of the Supreme Court Rules. The question concerned whether that provision, being part of the Supreme Court Rules, was inconsistent with the jurisdiction of the Court of Appeal under s46(4) of the Supreme Court Act 1970 ("the Act") to "discharge or vary a judgment given by a judge of appeal." 2 The way in which s46(4) of the Act may come to apply arises pursuant to Pt51 r58(1) of the Supreme Court Rules. Under that subrule "the Registrar may exercise the powers of a Judge of Appeal under s46(1) and (2) of the Act." 3 On the premise that the Registrar in the present case is exercising the powers of a Judge of Appeal under s46(1) or (2) of the Supreme Court Act, it would follow that the Court of Appeal under s46(4) has jurisdiction to discharge or vary a "judgment" given by a Registrar, or an order made or direction given by a Registrar. 4 Part 61 rr3 and 4 are also upon their terms capable of application on the basis that where the Registrar does "give a direction or certificate or make an order or decision or does any other act in any proceedings," "the Court may...review the direction, certificate, order, decision or act and may make such order by way of confirmation, variation, discharge or otherwise as the Court thinks fit." I quote Pt 61 rr3 and 4 below. 3. Review (1) Where a registrar gives a direction or certificate or makes an order or decision or does any other act in any proceedings, the Court may, on motion by any party to the proceedings or application as the case may be, review the direction, certificate, order, decision or act and may make such order by way of confirmation, variation, discharge or otherwise as the Court thinks fit.