Wentworth v Graham & 1 Ors - [2002] NSWCA 399

CITATION: Wentworth v Graham & 1 Ors [2002] NSWCA 399

FILE NUMBER(S): CA 40277/00

HEARING DATE(S): 30/09/2002

JUDGMENT DATE:
10 December 2002

PARTIES :

Katherine Wentworth (Applicant)
Geoffrey Graham (First Respondent)
William Charles Wentworth (Second Respondent)

JUDGMENT OF: Santow JA

COUNSEL: Ms Wentworth (Applicant in person)
ex parte

SOLICITORS:

CATCHWORDS: PRACTICE AND PROCEDURE - review of a determination of the Registrar of the Court of Appeal - Registrar decision to dismiss an application for leave to appeal against a decision of an Appeal Judge to not recuse himself on grounds of bias or apprehended bias,

LEGISLATION CITED: Supreme Court Act 1970 s46(1) (2) and (4); s46B(1)(a)
Supreme Court Rules Pt 13 r5; Pt 51 r2; Pt 51 r58; Pt 61 rr3 and 4

CASES CITED:
Bainton v Rajski (1992) 29 NSWLR 539
Barton v Walker [1979] 2 NSWLR 740
Brooks v the Upjohn Company (1998) 156 ALR 622
Chow v DPP (1992) 28 NSWLR 593
Fitzgerald v DPP (1991) 24 NSWLR 45
Gas & Fuel Corp Superannuation Fund v Saunders (1994) 123 ALR 323; 52 FCR 48
IOOF Aust Trustees Ltd v Seas Sapfor Forests [1999] SASC 249
Kartinyeri v Commonwealth of Australia (1998) 72 ALJR 1334
R v Bow Street Magistrate; ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577
Rajski v Wood (1989) 18 NSWLR 512
Westpac Banking Corporation v Abemond Pty Ltd (SC(NSW) Santow J, 28 October 1994, unreported)

DECISION: Notice of Motion dismissed.

CA 40277/00

SANTOW JA
10 December 2002

Katherine WENTWORTH -v- Geoffrey GRAHAM & 1 Ors

PRACTICE AND PROCEDURE – review of a determination of the Registrar of the Court of Appeal – Registrar decision to dismiss an application for leave to appeal against a decision of an Appeal Judge to not recuse himself on grounds of bias or apprehended bias.

Ms Wentworth (the Applicant) sought an order setting aside a judgment/decision of the Registrar of the Court of Appeal.

The background to this application is that the Applicant has made several successive applications for particular judges to be disqualified on the ground of bias or apprehended bias. Brownie AJA and Ipp AJA were listed to hear an application for leave to appeal filed by the Applicant. The applicant sought, at different times during the course of the hearing, that Brownie AJA and Ipp AJA recuse themselves from hearing the matter. Both declined. The Applicant then filed a motion seeking to appeal against these decisions. The Registrar determined that the Applicant’s motion, seeking a review of Brownie AJA’s decision not to recuse himself from hearing a motion and his related decision to not admit evidence, would not be listed before any other Judge of Appeal, except for Brownie AJA or Ipp AJA.

The Applicant then filed a motion seeking to have the decision of the Registrar set aside.

Held:

1. The Registrar was entitled to conclude that the proper determination of the Notice of Motion before him was for him to dismiss it summarily as an abuse of process. There is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Wentworth v Graham & 1 Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWCA 399
Decision Date: 10 December 2002

CaseChat Overview and Summary

Santow JA of the Court of Appeal of New South Wales considered an application by Wentworth seeking a review of a determination made by the Registrar of the Court. The Registrar had dismissed Wentworth's application for leave to appeal against a decision by an Appeal Judge. The Appeal Judge had previously refused to recuse himself from hearing a matter on the grounds of bias or apprehended bias.

The central legal issue before Santow JA was whether the Registrar's dismissal of the application for leave to appeal was correct. This required the court to consider the merits of the application for leave to appeal itself, specifically whether there was a sufficient basis to argue that the Appeal Judge had erred in refusing to recuse himself due to bias or apprehended bias.

Santow JA applied the principles governing applications for leave to appeal and the test for bias or apprehended bias. His Honour found that the grounds raised by Wentworth did not meet the threshold for granting leave to appeal. Consequently, the Registrar's decision to dismiss the application was upheld.

The Notice of Motion filed by Wentworth was dismissed.

Orders

Orders of the court

Notice of Motion dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wentworth v Graham & 1 Ors [2002] NSWCA 399
FILE NUMBER(S):	CA 40277/00
HEARING DATE(S):	30/09/2002
JUDGMENT DATE:	10 December 2002
PARTIES :	Katherine Wentworth (Applicant) Geoffrey Graham (First Respondent) William Charles Wentworth (Second Respondent)
JUDGMENT OF:	Santow JA

COUNSEL:	Ms Wentworth (Applicant in person) ex parte
SOLICITORS:
CATCHWORDS:	PRACTICE AND PROCEDURE - review of a determination of the Registrar of the Court of Appeal - Registrar decision to dismiss an application for leave to appeal against a decision of an Appeal Judge to not recuse himself on grounds of bias or apprehended bias,
LEGISLATION CITED:	Supreme Court Act 1970 s46(1) (2) and (4); s46B(1)(a) Supreme Court Rules Pt 13 r5; Pt 51 r2; Pt 51 r58; Pt 61 rr3 and 4
CASES CITED:	Bainton v Rajski (1992) 29 NSWLR 539 Barton v Walker [1979] 2 NSWLR 740 Brooks v the Upjohn Company (1998) 156 ALR 622 Chow v DPP (1992) 28 NSWLR 593 Fitzgerald v DPP (1991) 24 NSWLR 45 Gas & Fuel Corp Superannuation Fund v Saunders (1994) 123 ALR 323; 52 FCR 48 IOOF Aust Trustees Ltd v Seas Sapfor Forests [1999] SASC 249 Kartinyeri v Commonwealth of Australia (1998) 72 ALJR 1334 R v Bow Street Magistrate; ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 Rajski v Wood (1989) 18 NSWLR 512 Westpac Banking Corporation v Abemond Pty Ltd (SC(NSW) Santow J, 28 October 1994, unreported)
DECISION:	Notice of Motion dismissed.