Wentworth v Rogers (No 1) [2016] NSWSC 283

Supreme Court New South Wales

Medium Neutral Citation: Wentworth v Rogers (No 1) [2016] NSWSC 283 Hearing dates: 21/06/10, 22/07/10, 06/08/10, 10/11/10, 25/11/10, 14/12/10, 08/02/11 Date of orders: 17 March 2016 Decision date: 17 March 2016 Jurisdiction: Common Law Before: Hidden J Decision: Motion dismissed. Catchwords: PRACTICE AND PROCEDURE – Successful proceedings by plaintiff against her husband for assault – application by plaintiff for account by defendant and his second wife for proceeds of sale of jointly owned property Cases Cited: Wentworth v Rogers [2003] NSWSC 371 Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 Category: Principal judgment Parties: Katherine Wentworth (plaintiff) Gordon Rogers (1st defendant) Toni Rogers Representation: Counsel: In person: (plaintiff) Gordon Rogers: (unrepresented) Toni Rogers: (Mr Robert Lovas) File Number(s): 1982/1055

Judgment 1. HIS HONOUR: By a notice of motion filed in 2010, the plaintiff, Katherine Wentworth, seeks orders against the defendant, Gordon Rogers, and the defendant's second wife, Toni Rogers. 2. These proceedings have a long history, as does the matter as a whole. On the first day of the hearing I raised with the plaintiff my having been a member of the Bar Council at the time her admission to the Bar was opposed. She had previously asked me to disqualify myself from a matter on that basis, and I had done so. On this occasion, however, she said that she did not ask me to disqualify myself and wished to have the matter dealt with. Later, after the hearing of the motions, she sought that I disqualify myself. It appeared to me that she had waived any such application on the first day. However, she pursued the matter at considerable length, enlarging her application to contend actual bias, not merely the appearance of it. 3. While that matter was outstanding there was a lengthy period during which there was no further contact by the plaintiff. I am aware that she has long suffered a serious illness. Recently my Associate made enquiries about her position, and the plaintiff made contact with her. She confirmed that she wanted the matters she had argued resolved. 4. Her earlier application for me to disqualify myself on the basis of actual bias, in my view, had no substance, and it is now clear that any application for me to disqualify myself has been waived. 5. I am satisfied that Mr Rogers was aware of the plaintiff's motion at the time it came for hearing, but at no stage was there any appearance by or for him. Mrs Rogers was represented by Mr Lovas of counsel. 6. The proceedings instituted in this Court are well known. On the 13 December 1982, the plaintiff filed a statement of claim against Mr Rogers seeking damages for personal injury. Eventually, on 14 June 1994, she recovered a verdict of $2,000. In 2003, Howie J dealt with an application by the plaintiff to set aside certain transactions entered into by Mr and Mrs Rogers in respect of a property near Tamworth, and in the course of that judgment he sketched the history of the proceedings: Wentworth v Rogers [2003] NSWSC 371 at [17] ff. 7. The background to the present motion is that in November 1981, Mr and Mrs Rogers jointly purchased a property in the Tamworth area known as "Te Mata". In 1981 and again in 1983, Mr Rogers executed documents purporting to provide indemnity to Mrs Rogers for costs arising from the proceedings and to charge his share in the property to the value of those costs. In April 1994, Mr Rogers mortgaged his share in the property to Mrs Rogers for $130,000 (plus interest), said to have been provided by her for legal costs. The property was later sold. 8. The plaintiff has long alleged that the documents of 1981 and 1983 were forgeries and the mortgage of 1994 was a sham, for the fraudulent purpose either of ensuring that she could not obtain satisfaction of any judgment for damages and costs in her favour in the proceedings in this Court, or to give Mrs Rogers priority if he became bankrupt: see the judgment of Howie J at [1]. 9. In a motion filed on 1 March 2010, the plaintiff seeks orders that an account be taken of Mr Rogers' interest in the property and that he and Mrs Rogers account for the whole of the proceeds of the sale of it: pars 1 and 2 of the motion. For that purpose two ancillary orders are sought: that Mrs Rogers be joined as a party to the proceedings for the purpose of the orders sought (par 17), and that she file and serve an affidavit providing a volume of supporting documents said to be relevant to the issue. 10. For the purpose of the motion Mr Lovas provided a chronology of events before and after the institution of the proceedings in this Court, with reference to source material, some of it being earlier judgments of this Court (including that of Howie J). It also notes matters which were challenged by the plaintiff. It is useful to attach that document as an annexure to this judgment. 11. Significant for present purposes are the indemnity provided by Mr Rogers to Mrs Rogers of 8 July 1981 and the confirmation of it on 30 July 1983, the purchase of the property on 4 November 1981, the mortgage by Mr Rogers of his interest to secure the loan of $130,000 by Mrs Rogers on 22 April 1994, the sale of Lot 72 in November 2001 and of Lot 71 on 23 July 2007. Of central importance is the judgment of Howie J of 9 May 2003, confirmed on appeal on 25 November 2004 with special leave to appeal to the High Court refused on 10 January 2007. 12. For the purpose of the motion the plaintiff relied on a volume of affidavit evidence and exhibits. She also furnished substantial written submissions, developed at length orally. These submissions included an examination of previous judgments referred to in the chronology. Despite all this, the matter can be disposed of shortly. 13. Although the orders sought against Mrs Rogers are of a procedural nature, it is necessary to have regard to the substance of the matter. The plaintiff seeks the orders in pursuit of other paragraphs of the motion, in an attempt yet again to impugn the dealings between Mr and Mrs Rogers in respect of the Tamworth property. That matter was decided by Howie J in 2003, in a lengthy decision which has withstood appellate challenge. I do not propose to summarise that decision, it speaks for itself. As Mr Lovas put it in written submissions, the plaintiff was already litigated and lost a claim founded on the misconceived premise that Mrs Rogers is somehow not entitled to her own half share in the property and her rights under her mortgage over Mr Rogers' half share. Mr Lovas noted a number of times since the judgment of Howie J, demonstrated in the chronology, when the plaintiff has sought to join Mrs Rogers in the proceedings and re-agitate the matter. 14. Enough is enough. The issue has been determined and cannot be revisited. I have had regard to the plaintiff's lengthy submissions, but they do not persuade me otherwise. As the Court of Appeal observed on 6 March 1987, when dealing with an appeal by the plaintiff about another aspect of her case, she "would not appear to find congenial the principle of finality of litigation": Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 at 390. 15. What I have said is sufficient to dispose of the matter. I should note the comprehensive submissions of Mr Lovas on a number of other aspects including, among other things, that the plaintiff does not have standing to make applications of this kind, that what she seeks to do is to institute a cause of action not properly raised in a notice of motion in the present proceedings, that she has no right to require Mrs Rogers to provide an affidavit, and that joinder of Mrs Rogers as a defendant is inappropriate as the present proceedings have long been brought to finality by judgment. These are all matters of substance, but I find it unnecessary to determine them. 16. I am conscious that this is a peremptory disposal of the matter, given the length of time which has elapsed since it was argued. Nevertheless, I am satisfied that the motion as a whole is no more than an attempt to re-litigate issues which have long been finally determined. 17. The motion is dismissed. The plaintiff is to pay Mrs Rogers' costs.