Wentworth v Graham

[2003] NSWCA 226

CITATION:	Wentworth v Graham & Anor [2003] NSWCA 226
HEARING DATE(S):	11/08/03
JUDGMENT DATE:	29 August 2003
JUDGMENT OF:	Ipp JA at 1
DECISION:	Application dismissed.
CATCHWORDS:	PRACTICE AND PROCEDURE - Application for judge to disqualify himself on grounds of bias. D
PARTIES :	Katherine Wentworth (Claimant) Geoffrey Graham (First Opponent) William Charles Wentworth (Second Opponent)
FILE NUMBER(S):	CA 40277/00
COUNSEL:	Claimant: In Person First Opponent: N/A Second Opponent: N/A
SOLICITORS:	Claimant: In Person First Opponent: O'Hara & Company

CA 40277/00

IPP JA

Friday 29 August 2003

KATHERINE WENTWORTH v GEOFFREY GRAHAM & ANOR

Judgment

1 IPP JA:

The grounds on which disqualification is sought

2 These reasons concern an application by Miss Wentworth that I disqualify myself, on the grounds of bias, from continuing to sit as a judge in her application for leave to appeal from a decision of Ireland J.

3 The grounds of the application have not been articulated in a systematic form. It is therefore necessary to extract the grounds from Miss Wentworth’s oral submissions and her written submissions that were filed on 18 August 2003. In her written submissions she, in substance, repeats and expands the allegations she made orally and adds a ground (to which I refer as “the fifth ground”) that she has not advanced previously.

4 On 6 June 2002 Miss Wentworth argued that Brownie AJA should disqualify himself on the grounds of bias. In that application Miss Wentworth relied on conduct on the part of his Honour that she alleged took place on 7 November 2001 when I was present and also on conduct that she alleged occurred on other days when I was not present.

5 By an extempore judgment, delivered in the course of the hearing on 6 June 2002, I decided that I would remain in court, sitting with Brownie AJA, while Miss Wentworth made submissions concerning what she asserted took place on 7 November 2001 while I had been present. I said that, upon completion of the argument as to those submissions, I would leave the court for argument to continue, before Brownie AJA alone, in regard to Miss Wentworth’s allegations about the conduct of his Honour which, she asserted, occurred on other days when I was not present. In that judgment I said that I might comment on Miss Wentworth’s submissions concerning the conduct of Brownie AJA in regard to those matters which, she asserted, occurred while I was present in court.

6 On 26 February 2003 I delivered a judgment concerning Miss Wentworth’s application regarding Brownie AJA in which I made certain comments about Miss Wentworth’s submissions. Miss Wentworth asserted in her oral submissions that by making those comments I manifested an intention to:

“… give evidence in a disqualification application of material matters which arose in the disqualification application of a different judge of the court and, as such, is precluded by law and is something which is so procedurally unfair, inappropriate and wrong as founds an application for disqualification on that basis alone”.

7 Miss Wentworth’s first ground is that, merely by remaining in court while submissions were made to Brownie AJA concerning his disqualification based on his conduct while I was present, and in giving a judgment commenting on what had occurred in my presence, I demonstrated bias against her.

8 The second ground concerns paragraph 9 of my reasons for judgment of 26 February 2003 in which I said that certain allegations made by Miss Wentworth against Brownie AJA (relating particularly to what was said to be conduct on his part whereby she was humiliated and demeaned) were “false and mischievous”.

9 On 11 August 2003, at the hearing of this disqualification application, Miss Wentworth said:

“The allegations as to the matter which Mr Justice Brownie found matters amusing, and was laughing with his tipstaff, snickering behind his hand, openly laughing at the plaintiff at the Bar table, exchanging glances and laughing together with Mr Van Aalst, in other words humiliating and demeaning a plaintiff before this Court by conduct out of control and unbecoming was observed not only by the plaintiff but was observed by other witnesses in the court. But what was not observed by, or who it was not observed by was Justice Ipp.
The allegations are that those antics occurred on 29 November and 3 December. The record demonstrates that Justice Ipp was not in court on either of those days and a statement that the claimant’s allegations are false and mischievous is in itself false and mischievous, malicious and defamatory and deliberately so”.

10 Miss Wentworth said in her oral submissions that I knew that my statement was false because it was made about her submissions as to conduct on the part of his Honour that took place when I was not present.

11 She repeated this allegation in her written submissions. In paragraph 67 of those submissions she said:

“When the plaintiff requested that he leave the Court Ipp JA refused to do so, stating that he intended to remain throughout the whole of the hearing of the bias application in respect of Brownie AJA, which application covered two days when Ipp AJA was not in Court, namely 29/11/01 and 3/12/01 and did so remain throughout the whole of the hearing [see trans 6/6/02 pp 1-62] and Ipp JA on 6/6/02 delivered a judgment stating his intention to remain in Court for the whole of the hearing over the protests and objections of the plaintiff”.

12 In paragraph 93 she said that it was “quite wrong” for me to say that the only matters dealt with on 6 June 2002 were matters that had occurred while I was in court on 7 November 2001. She asserted that I “must be aware that it is wrong”.

13 In paragraph 65 she asserted that it was “quite wrong” of me to “contend” as I did on 13 May 2003 (in a directions hearing on that date) that my judgment “delivered on 26 February 2003 dealt only with the claims of misconduct of Brownie AJA on 7 November 2001 …”.

14 Thus, the second ground is based on the allegation that, in my judgment of 26 February 2003, I knowingly, deliberately and maliciously made a false statement concerning Miss Wentworth’s submissions relating to the conduct of Brownie AJA, namely, that her submissions were “false and mischievous”. This allegation is based on two propositions. Firstly, the allegation that on 6 June 2002 she had made submissions to Brownie AJA and me that, in substance, dealt with his Honour’s conduct on days other than on 7 November 2001 (that is, on days when I had not been present in court). Secondly, the submission that, in my judgment of 26 February 2003, I dealt with Brownie AJA’s conduct that had taken place on those days when I was not present in court (and in respect of which I had no personal knowledge).

15 The third ground concerns statements I made to Miss Wentworth during a directions hearing on 13 May 2003 and the hearing on 11 August 2003.

16 In the direction hearing on 13 May 2003 I attempted to explain to Miss Wentworth that my judgment of 26 February 2003 was intended to and did in fact deal only with Miss Wentworth’s allegations that Brownie AJA had misconducted himself on 7 November 2001. In that directions hearing I also stated that, on 6 June 2002 while I was in Court with Brownie AJA, Miss Wentworth had made submissions only as to the conduct of Brownie AJA while I was in Court on 7 November 2001.

17 On 11 August 2003 I said to Miss Wentworth:

“Miss Wentworth, you made submissions about Justice Brownie’s conduct, submissions to the effect that he was laughing, jeering at you, while I was sitting in court, when you well knew that you were then at that stage, whilst I was in court, only to deal with matters that occurred when I was present. You made those submissions when I was present. On that basis those submissions were made on the basis that that conduct of Acting Justice Brownie had occurred when I was present. You well know that”.

Miss Wentworth replied:

“That’s not the case at all and I will take you back to 6 June when your Honour said that you wished to sit in relation to matter and that the transcript reveals that you would sit in relation to matter which occurred on 7 November and 7 November only”.

She went on to say:

“After I had completed my submissions in relation to 7 November, I asked your Honour to leave the Court. Your Honour refused to leave the Court”.

She proceeded:

“I then went on to make submissions in relation to the affidavits, which related to the hearing on 29 November and 3 December”.

I said:

“That is quite wrong”.

And I later said:

“You are wasting time and you are making allegations again that are not true”.

These responses on my part resulted in Miss Wentworth saying:

“[I]t is clearly demonstrable from the record that what your Honour is saying from the bench is wrong, is inappropriate and quite fundamentally demonstrates bias”.

18 The following exchange then occurred:

“IPP JA: I left the court on that day after you had finished your own submissions about what occurred when I was present.
CLAIMANT: I beg your pardon. You did not.
IPP JA: All right. Carry on”.

19 My statements in the exchanges to which I have referred constitute the third ground on which Miss Wentworth seeks that I disqualify myself. This ground is amplified by paragraphs 124, 125 and 126 of Miss Wentworth’s written submissions in which she asserts the following:

“124. It is submitted that the contention is made only to support of the personal defamatory attack of Ipp JA made at para 9 of the judgment of 26/2/03, which is made to support his wrong statement made in Court and as recorded on the transcript on 13/5/03.
125. It is submitted that each of these matters are sufficient to disqualify Ipp JA and he should hold himself permanently disqualified from hearing any further matter of the plaintiff having demonstrated such hostility and dislike all unfounded.
126. The plaintiff pointed out to Ipp JA on 11/8/03 that on 6/6/02 she was raising matters relating to times when he was not in Court on that day, but Ipp JA said that that was untrue and false and abused and threatened the plaintiff in a way which was completely unjudicial particularly as the record shows that what the plaintiff was putting foreward [sic] was true and recorded in the transcript of 6/6/02 as set out ante”.

20 The fourth ground concerns an order that I made at a directions hearing on 8 July 2003 in regard to the hearing of the application for the disqualification of Brownie AJA and myself that was listed for hearing on 11 August 2003. In that directions hearing I ordered that written submissions be filed by Miss Wentworth by 7 August 2003 and I further ordered that the oral hearing (at which the opponents were not to be present – and in fact were not present) would be limited to one hour.

21 In the course of her submissions on 11 August 2003 Miss Wentworth said:

“[T]he forcing position that your Honour is taking indicates bias, … in a bias application the applicant is to be given proper opportunity to present the application. By limiting time to one hour for an application in respect of bias, not only of yourself, but also Mr Justice Brownie, you have made it impossible for this hearing to proceed in an orderly and productive fashion. There is a denial of procedural fairness, denial of natural justice and those two matters by themselves constitute bias and I ask you to disqualify yourself on that basis, your Honour”.

22 This argument is repeated in paragraph 162 of her written submissions.

23 The fifth ground is raised for the first time in Miss Wentworth’s written submissions. This ground alleges that various actions on my part were “threatening” to Miss Wentworth, were “oppressive” to her so as to make her fear for her safety, that I “harassed” her, “continuously threatened” her, and was “rude and bullying to her” and “sarcastic and rude”.

24 In paragraph 68 she said:

“During the hearing on 6/6/02, both Ipp JA and Brownie AJA were rude, threatening to and offensive to the plaintiff and their conduct towards her was oppressive offensive and threatening and as a result the plaintiff feared for her safety”.

25 In paragraphs 95, 96 and 97 Miss Wentworth said:

“95. On 6/6/02, the plaintiff was harassed, oppressed and vexed by Ipp JA and Brownie AJA as demonstrated by transcript references [6/6/02 pp 12.55; 13.45; 43.15 and 60.50]. It is submitted that each and everyone of these threats was unsustainable and improper and had no foundation or basis in law and were made for the purpose of harassing and oppressing and vexing a plaintiff before the Court in an attempt to prevent her from putting her case.
96. Ipp JA on 6/6/02 continuously threatened the plaintiff with contempt of Court. This followed the overt threat as recorded on the tape and p.42 of the transcript of 7/11/01 by Brownie AJA similarly.
97. Ipp JA was as well rude and bullying to the plaintiff as demonstrated by transcript references {T 12.5; 12.25; 12.41; 12.55; 29.45-30.10].”

26 In paragraph 112 of Miss Wentworth’s written submissions (which were also in relation to the hearing on 6 June 2002) Miss Wentworth said:

“@29.45 – 30.16 Ipp JA was extremely sarcastic and rude to the plaintiff who stated she found his comments offensive and asked him to disqualify himself on the basis [that] the comment was disgraceful unfounded and that there was not the slightest reason for it and asked Ipp JA to apologise and withdraw it which he refused, the plaintiff renewed her application that Ipp JA was disqualified stating she was being subjected to overt abuse from the bench and that she could not see much reason in continuing”.

The first ground

27 Miss Wentworth submitted:

“There is no basis for any separate judge in a Court of Appeal to deliver any comment, which I think is the word used in paragraph 2, in respect of the conduct of a different judge of the court whether that conduct be in court or out of court, that is specifically precluded on all principles. There is no possible basis for the delivery of the judgment of 26 February 2003 …”.

28 In regard to this ground, I merely reiterate what I stated in my extempore reasons for judgment of 6 June 2002. Miss Wentworth’s submissions in this application ignore what I there said.

29 While I accept that another judge might come to a different view as to the merits of the procedure which I adopted, the mere fact that I came to the conclusion that I did and proceeded to act in accordance therewith does not demonstrate any bias on my part. I reject this ground. I consider it to be devoid of merit.

The second and third grounds

30 For reasons that will become apparent, the third ground is related to the second ground and I shall deal with these two grounds together. In view of the seriousness of the allegations that Miss Wentworth makes under these grounds, it is necessary for me to explain in some detail precisely what occurred.

31 On 7 November 2001, Brownie AJA and I commenced hearing the application for leave to appeal from the decision of Ireland J. This hearing commenced at about 10.50 am and, virtually solely by reason of the length of Miss Wentworth’s submissions, lasted until 4.20 pm. The presiding judge, Brownie AJA, had pointed out to the parties that the practice in this court was to afford parties to applications for leave to appeal 20 minutes each for their submissions. Miss Wentworth said, however, that she would be unable to put her submissions in that time and she was afforded great latitude.

32 On 19 November 2001, Miss Wentworth filed a notice of motion asking Brownie AJA to disqualify himself on the grounds of bias. After a series of directions hearings before Brownie AJA (in some of which Miss Wentworth asked that I be present when the actual hearing took place), the hearing of that disqualification application took place on 6 June 2002.

33 When that hearing commenced on 6 June 2002, Miss Wentworth expressed the wish that I remain in Court while argument took place. She asserted that Brownie AJA’s conduct was different while I was present and for that reason she wished me to be there. My initial reaction was that this was a matter between Miss Wentworth and his Honour, and my presence was unnecessary. I pointed this out to Miss Wentworth, but she persisted in her request that I be present. I said to Miss Wentworth that it was arguable that:

“[I]n a case where at least partly the bias or perceived bias is said to be perceived from the conduct of a judge in circumstances where another judge was present, … it might be helpful, should the matter be taken further to another Court, to have the comments of the other judge.
I know that in this case you have on occasions, when I have not been present, asked that I be present and I think that you have mentioned that to my associate apart from saying that in open Court. Originally I declined to be present but after I had understood that you wished me to be present and after Mr Justice Brownie AJA made it plain to me that he had no objection, I thought I would be present”.

34 The following further exchange took place:

“CLAIMANT: Your Honour, do I understand from what you have said you intend to give reasons, if appropriate, after Justice Brownie has given reasons in respect of whether Justice Brownie would or would not disqualify himself, is that what I understand?
IPP AJA: No, partly, as I have read your written submissions and as I understand them you are asking Mr Justice Brownie to disqualify himself for a number of reasons. One of those reasons concerns what happened when I was present in the course of submissions that you were making.
CLAIMANT: Yes.
IPP AJA: Other reasons concern matters of which I have no knowledge. I do not propose to say anything about those matters of which I have no knowledge. However, when it comes to what occurred when I was present I anticipate that it is likely that I will have something to say and I may, in the course of argument this morning, should I be here, I may possibly have some comment or question of you which a judge ordinarily makes in that kind of debate as to the submissions you are making. I don’t know whether I will or not and I don’t know whether I will or not give written reasons, but I may. I do not intend to say anything about those issues of which I have no personal knowledge but should I stay I do intend to consider whether I should give reasons or make written comments in regard to those matters of which I have personal knowledge. So that is my position and I am now giving you opportunity; fully advised of my attitude, do you want me to stay or not”.

35 Miss Wentworth then took the position that she wished me to stay but she did not wish me to make any comments. Argument took place on this issue and I then delivered an extempore judgment (referred to in my judgment of 26 February 2003). In that judgment I said:

“In deciding what course to take I bear in mind that Miss Wentworth’s application that Brownie AJA recuse himself is partly based on the conduct of his Honour in Court on 7 November 2001 while presiding over a two-judge bench of the Court of Appeal of which I was the other member”.

I pointed out that the decision whether Brownie AJA should disqualify himself or not was a matter for him alone. I said, however:

“Nevertheless, it seems to me that, for reasons that are self-evident, any appellate court would wish to have the views of a judge who was present when the conduct complained of occurred. The judge would be well placed to express an objective view about the events concerned and I can see no reason why those views would not be of value”.

I concluded:

“In these circumstances, I think it appropriate that I remain in Court, at least while argument takes place about the events that occurred while I was present. I also think it appropriate that I participate, as a member of the Court, in the debate in Court in the usual way. Once argument has concluded on those issues, I shall leave the courtroom. Brownie AJA will hear the remainder of argument sitting alone.

Moreover, at the conclusion of the entire argument on the question whether Brownie AJA should recuse himself, and after receipt of his Honour’s reasons for whatever decision he makes, I shall, if moved to do so – and without in any way attempting to impinge upon his Honour’s decision – comment in writing and express an opinion on the issues that have been raised”.

36 After I had delivered my reasons for judgment, I said to Miss Wentworth:

“So Miss Wentworth I would be grateful if we could at least start with those events and we should divide the hearing so that firstly you deal with the events of 7 November. We would then ask Mr Molomby [counsel for the opponent] to make whatever submissions he wishes, if he wishes to make submissions in that respect, you would reply on that and I would … leave and you would then have the opportunity to deal with whatever other matters you wish to deal with as regards your application”.

37 I do not think that these remarks admit of any misunderstanding. Miss Wentworth responded by saying:

“I find [the decision to remain in court] oppressive, harassing, unpleasant, unjudicial and biased”.

38 Her basic complaint was that, while she wished me to remain in court, she did not want me to make any comments or participate in any way. She then asked me to disqualify myself. I refused saying:

“[I]n my opinion nothing that has transpired should give rise to a reasonable observer that there was any bias on my part”.

39 Brownie AJA remarked:

“Miss Wentworth, we therefore invite you to deal now with the events of 7 November, as Mr Justice Ipp suggested. When we have finished with that then the Court will adjourn, be reconstituted by me alone, and I can then deal with whatever else you want to submit”.

40 His Honour thereby reinforced the clarity of the procedure that the Court had required Miss Wentworth to adopt. There could have been no doubt whatever on the part of Miss Wentworth that the argument, thereafter, was to be divided into two parts. Firstly, as to what occurred on 7 November 2001 and, secondly, as to what occurred on other days when I was not present. When the second part of the argument took place, I would leave the court. It was obvious to me at the time that Miss Wentworth understood what was to occur and, as is confirmed by the transcript of the hearing, she put her arguments accordingly.

41 Miss Wentworth then asked Brownie AJA to disqualify himself. His Honour said:

“Miss Wentworth, you are not entitled to ask a judge to disqualify himself or herself every time you get an adverse judgment”.

42 Argument then took place as to whether, in her application to Brownie AJA, Miss Wentworth could tender evidence of:

(a) A tape recording of the proceedings on 7 November 2001;
(b) Tape recordings of hearings in regard to which I was not present (but on which Miss Wentworth wished to rely later when making her submissions as to Brownie AJA’s conduct in relation to those occasions); and
(c) Affidavits dealing with his Honour’s conduct in court on 7 November 2001 and on other occasions.

43 As I have stated, the evidence referred to in the previous paragraph concerned material that related not only to 7 November 2001 but also to other days when I was not in court. This occurred because the same arguments as to admissibility applied to all the material concerned, and it was taken for granted that there was no point in splitting the argument. As is shown by the transcript, the arguments on 6 June 2002 that concerned evidentiary material going beyond 7 November 2001 did not touch on the detail of the conduct of Brownie AJA. It was only the admissibility of the material that was discussed. On this basis, for example, Miss Wentworth tendered the transcripts of 7 November 2001, 29 November 2001, 3 December 2001 and 4 December 2001. The point to be made is that the transcripts of the proceedings on the days that I was absent were referred to only to the extent that they were relevant to legal arguments as to admissibility.

44 After the luncheon adjournment, Brownie AJA said:

“It seems to us, on reflection, that to the extent that there are tape recordings which were taken by the Court Reporting Branch of the proceedings before today that they are part of the court records and they do not need to be tendered and any party is entitled to rely on them and there is no need to take any steps to collect them for the purpose of today’s oral hearing but the court will take steps to procure them.
Today we have pen reporters and I myself do not remember what happened on the other dates. If there are transcripts we will treat them as part of the court record and there is no need to tender them”.

45 Brownie AJA then asked Miss Wentworth whether she wished to say “anything more about the question of admissibility of evidence”. A discussion ensued as to how long that would take. Brownie AJA suggested that Miss Wentworth should be able to complete her submissions in another 20 minutes as “it seems to be a limited question of pure law”. Miss Wentworth said:

“I consider that oppressive, unfair and grossly transgressing my rights before this Court”.

His Honour replied:

“I encourage you to concentrate on the one point”.

46 Miss Wentworth proceeded to make submissions about the admissibility of the affidavit evidence and referred to certain legal authorities. She then said:

“There is no way that the recording of a transcript can indicate the things which are in the affidavits. In order to show that, I think I really need to take you briefly to what is sought to be shown by the affidavits so that, since you want to do this in one matter, is that an acceptable course”?

47 Brownie AJA then referred to the affidavits which he had before him. These included affidavits which dealt with events that did not occur on 7 November 2001. Miss Wentworth referred to affidavits of Frieda Joan Martin of 2 December 2001 and 12 December 2001.

48 Brownie AJA asked Miss Wentworth to list the affidavits she wished to tender and she did so (see transcript p 40). Brownie AJA asked her to state, shortly, the subject matter of the affidavits. Miss Wentworth said:

“The subject matter of the affidavits is what the deponees [sic] of the affidavits observed of her conduct in court which does not appear in the transcript. To that extent it is basically précising it. The further matters which are deposed to is the way in which your Honour approached dealing with me in the court and the way in which your Honour approached dealing with Mr Van Aalst, Mr Graham and Mr Wentworth in the Court.
Thirdly, they go to the totally different sort of conduct that they observed – they are all factual matters about things they heard and saw and, particularly, things that they heard and saw that are not in the transcript in relation to when Ipp AJA was in court and the very different approach your Honour then had to him on 4 December. In particular the affidavits go, really, to your conduct which is probably conduct which does not and cannot appear on the transcript”.

49 Brownie AJA said:

“Can I just go back to the fundamental question about admissibility at this stage. Is there anything more useful you can say about that”?

Miss Wentworth then said that she sought to read the affidavits. Brownie AJA then asked if she could state the content in brief.

50 Miss Wentworth explained that her affidavits set out the “stress, anxiety and distress” that Brownie AJA caused her and the way in which his conduct affected her presentation of the case. She said that the affidavits of certain deponents “set out their apprehension that the matters were not being dealt with by your Honour in a fair and even handed fashion”.

She said:

“That is the purpose for which the affidavits are sought to be relied upon. Does that assist your Honour? In other [words] to deal with that, your Honour needs to have a list of all the affidavits which are, in fact, filed and before the Court. Some of the material which I have referred to – your Honour has not given me an opportunity to list the affidavits I rely upon”.

51 Brownie AJA then said to Miss Wentworth that if she wished she could read onto the transcript a list of the affidavits she relied on. She mentioned some affidavits and eventually agreed that a complete list had been given to his Honour. He then said:

“Is there anything further you want to say on legal principle as to whether or not material of this kind, that is the affidavits you have mentioned, are admissible at this stage”?

Miss Wentworth replied in the negative.

52 Mr Molomby then made a brief submission that the material was not admissible.

53 It is now necessary to pause for a moment to deal with arguments put by Miss Wentworth concerning the discussions to which I have referred relating to the affidavit evidence that Miss Wentworth wished to tender that related not only to 7 November 2001 but to other days when I was not present. She appears to contend that the discussion concerning those affidavits proves that on 6 June 2002 argument took place concerning the conduct of Brownie AJA on the occasions covered by those affidavits, that is, on occasions at which I was not present. Thus, in paragraph 128 of Miss Wentworth’s submissions she says:

“Ipp JA was clearly aware that matters other than matters relating to 7/11/01 were being dealt with or if he did not he had an obligation to do so as a judgment was being delivered with which he agreed, that affidavits dealing with matters re the conduct of Brownie AJA on 7/11/01, 29/11/01 and 3/12/01 were the subject of a solemn judgment of the Court”.

54 This argument is specious. I have explained that reference was made to the transcripts of proceedings other than those on 7 November 2001 and affidavits dealing with events other than those that occurred on 7 November 2001 for the purpose of determining their admissibility in regard to the disqualification application that Miss Wentworth was making against Brownie AJA. For the sake of convenience, the admissibility of all the affidavits and all the transcripts was dealt with together. No distinction was made between any of the affidavits or transcripts. That was because the different factual material contained in the different affidavits and transcripts had no bearing on the legal issue of admissibility that was being debated.

55 On 6 June 2002, no argument took place as to whether, as a matter of fact, the affidavits were true and correct. Moreover, when discussing the admissibility of the affidavits and transcripts, Miss Wentworth did not advance any argument that Brownie AJA should disqualify himself by reason of his conduct, described in those affidavits and transcripts.

56 Miss Wentworth has argued that the references to the transcripts and affidavits relating to proceedings other than those of 7 November 2001 prove that on 6 June 2002 she argued that Brownie AJA should disqualify himself by reason of his conduct on days other than 7 November 2001. Typical of her statements in this respect are paragraphs 113 to 128 of her written submissions. It is sufficient for me to quote paragraphs 127 and 128 of her written submissions. These state:

“127. Immediately after the plaintiff detailed the affidavits she relied on and what they contained Brownie AJA on 6/6/02 @ 42.55 delivered a judgment stating that the affidavits were inadmissible. Ipp JA was in Court and agreed with the judgment.
128. Ipp JA was clearly aware that matters other than matters relating to 7/11/01 were being dealt with or if he did not he had an obligation do so as a judgment was being delivered with which he agreed, that affidavits dealing with matters re the conduct of Brownie AJA on 7/11/01, 29/11/01 and 3/12/01 were the subject of a solemn judgment of the Court”.

57 Miss Wentworth ignores, whether deliberately or not I am unable to say, the fact that the “solemn judgment of the Court” relating to the “affidavits dealing with matters re the conduct of Brownie AJA on 7/11/01, 29/11/01 and 3/12/01” dealt only with the admissibility of the evidence and not the truth or otherwise of their contents.

58 Brownie AJA proceeded to deliver extempore reasons for judgment, rejecting the affidavit evidence that Miss Wentworth sought to tender. I stated that, to the extent that my views might be relevant, I agreed.

59 The following exchange then occurred:

“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.
BROWNIE AJA: Miss Wentworth, we are of the provisional view that that statement of yours is in contempt of court. Would you like to reflect on it? If you wish, we will withdraw to give you time to consider it.
CLAIMANT: I withdraw it, your Honour. It is an appropriate situation.
BROWNIE AJA: Might an apology also be expected?
CLAIMANT: I might reflect on that. I withdraw the statement.
BROWNIE AJA: May I continue where I was before you made that statement. I was inviting you to address the court, as you wish, about the events of 7 November, as to which Ipp AJA says it may be that he should say something.
What I propose to do then is to invite Mr Molomby to respond, for you to reply, and then the court will adjourn to enable the court to be reconstituted by myself alone”.

60 This exchange reveals the general attitude that Miss Wentworth adopted towards Brownie AJA and myself. It also again shows the concern of the presiding judge, Brownie AJA, to ensure that Miss Wentworth should deal with the events of 7 November 2001 so that, once that aspect of her argument had been concluded, I could leave the court.

61 That part of the tape recording on which Miss Wentworth relied was then played. This concerned statements made in Court on 7 November 2001 while I was present. Brownie AJA asked, “What is next”? Miss Wentworth replied:

“CLAIMANT: … I understand from what your Honours have said that Ipp AJA wishes to make some statements about 7 November because he was here. Is that a correct understanding, your Honour?
IPP AJA: I said I may”.

62 Later, Miss Wentworth sought to hand up a copy of a judgment that had been delivered on 5 May 1995. The following was then said:

“BROWNIE AJA: While that is being looked at, is this a question that concerns Ipp AJA?
CLAIMANT: I understand Ipp AJA wished to be present to deal with matters that occurred on 7/11.
IPP AJA: Only matters that related to the conduct of Brownie AJA which you say gave rise to perceived bias. I am not going to comment on this draft judgment you have just been given or will soon be given. I am really interested in what you have to say about the passage in the tape which you played. As I understand it, that is the issue on which you rely other than the material which has nothing to do with me, which occurred when I was not there.
CLAIMANT: Leaving aside when you were not there, you were here when this application to Brownie AJA to disqualify himself took place.
IPP AJA: I am not going to comment on that.
CLAIMANT: Do I understand what your Honour is saying is you will be selective about what you will or will not comment about in relation to the matters that occurred on 7 November? Is that what I understand?
IPP AJA: Your application to an extent rests on submissions you make about the behaviour of Brownie AJA in court. I intend to consider whether or not to comment on that once I have heard all the submissions. The judgment his Honour gave is not part of his behaviour in court on which I have [ever] proposed to comment. That is simply a matter dealing with issues of which I know nothing. For that reason, I will not comment upon them.
But, as I have heard your submissions, you have complaints about his Honour’s conduct derived from what occurred in the course of the exchange which we have heard on tape. It is that matter on which I may comment. That is all.
CLAIMANT: Only the matters in relation to the tape? What about the rest of his conduct in court on that day?
IPP AJA: If there is other conduct that day I may comment on it, but I did not understand, maybe wrongly, that you had any other complaint. I thought it was only the passage on the tape. If I am wrong about that, I will hear what you have to say about that and determine what I shall do.
As to the merits of his Honour’s judgment, that has nothing to do with me.
CLAIMANT: On the day his Honour set these matters out in some detail in written submissions commencing at page 10, paragraph 130. The matters which I raise in relation to 7/11 are those matters from paragraph 130 to paragraph 144”.

63 There are three comments to be made about this exchange. Firstly, there can be no doubt that Miss Wentworth understood perfectly well that I intended to comment only about matters in relation to which I had personal knowledge, and no other matters. Secondly, Miss Wentworth well knew that while I was in court on that day (6 June 2002) she was required to deal only with what had occurred on 7 November 2001. Thirdly, Miss Wentworth made clear that her complaints about the conduct of Brownie AJA about which she asserted I had personal knowledge did not only involve a particular passage in the proceedings on 7 November 2001 (dealt with in my judgment on 26 February 2003), but “the rest of his conduct in court on that day” and, in particular, the matters from paragraph 130 to paragraph 144 of her written submissions.

64 I pause to note that in those written submissions Miss Wentworth asserted, amongst other things, that on 7 November 2001 Brownie AJA had been “sarcastic and rude” to her (para 133) and was “generally rude” (para 138).

65 Miss Wentworth then complained about the order that the Court had made to the effect that she should deal firstly with the events that she alleged had taken place in my presence and, later, after I had left the court, with other matters. This appears from the following exchange:

“IPP AJA: We have asked you to deal with your application in a certain way. That is to say, deal with paragraphs 133 to 144 first. When you have finished with that you can deal with everything else.
CLAIMANT: This is dealing with matters in a piecemeal fashion which does neither justice to me or the court and makes the application nonsensical”.

66 Again, these remarks show that Miss Wentworth was acutely conscious of the need, while I was present in court, to deal only with matters that she said had occurred in my presence, and that I was considering whether to comment on those matters alone. This is confirmed by paragraph 83(a) of her own written submissions in which she states:

“The exchanges made several things crystal clear:
(a) Ipp AJA only intended to remain in court whilst matters were dealt with at which he had been present on 7/11/01 and then leave.”

67 Immediately after Miss Wentworth had complained that she had to deal with matters “in a piecemeal fashion” she said the following:

“An application was made for Brownie AJA to disqualify himself. He was terse during the hearing and by the time we get to page 12.5 it is submitted Brownie AJA had reached a point where he had determined to be sarcastic and rude to me. I found the conduct offensive”.

Page 12.5 was part of the transcript of the proceedings of 7 November 2001.

68 Miss Wentworth then referred to certain matters that she had been putting to Brownie AJA and me on 7 November 2001 and said:

“Without apparently the slightest care and without having said anything on that point … Brownie AJA out of left field, as it were, as far as I was concerned, without any reason, simply started to mock”.

69 Miss Wentworth then referred to an “extremely humiliating statement” that Brownie AJA had made which she described as “offensive and rude”. It is plain from the context that Miss Wentworth was referring to what had occurred on 7 November 2001 while I was present.

70 Later, Miss Wentworth said:

“At that particular point there was not the slightest question that it was appropriate for Justice Brownie to respond and to yell at me in the way that he did commencing at page 41, the point where I say “Could I clarify that?”, at point 46 and following down to the bottom of the page and at the top of page 42, in circumstances where I am apologising, I was further yelled at at 42.4, and I then put on the record, that I was distressed, dismayed and put in terrorem by the conduct of the judge and no litigant in this Court should have to be in a situation where they are abused, threatened or yelled at by somebody on the Bench”.

71 The page references to which Miss Wentworth referred were the page references of the transcript of the proceedings of 7 November 2001. It is quite obvious that Miss Wentworth was referring to the conduct of Brownie AJA while I was present.

72 Miss Wentworth then sought to tender the “transcript of evidence of 11 March 2002 in the matter of Rajski v Carson”. Argument then took place on this question and Miss Wentworth tendered transcripts of proceedings over which Brownie AJA presided which did not concern her at all. I said:

“Can I just say this has nothing to do with me, I can’t comment on that. You can deal with his Honour later on that”.

Miss Wentworth replied:

“Your Honour I understand the difficulty, that was one of the difficulties that I asked your Honour not to sit”.

73 Miss Wentworth proceeded to make submissions of a general nature concerning the attitude of Brownie AJA to her. The following exchange then occurred:

“CLAIMANT: … I had no way of knowing what Justice Brownie was likely to do when he said to me ‘I will need to consider what to do with you’. I consider that an absolutely overt threat to my liberty.
IPP AJA: I beg your pardon, overt threat to?
CLAIMANT: My liberty. Having strayed into that particular area, having yelled at me and having behaved in a way that no man has any right to behave before a woman and behaving in such a way as it really would indicate some sort of situation of domestic violence; it was a violent, aggressive, angry thing to do, and it was a threat to me in terms which I took seriously”.

Miss Wentworth’s reference to his Honour’s statement “I will need to consider what to do with you” concerned a statement made by his Honour on 7 November 2001 (see transcript 42.10 of that date). Thus, the comments made by Miss Wentworth concerned the alleged conduct of Brownie AJA in my presence on that date.

74 I said to Miss Wentworth:

“Miss Wentworth it is now 4 o’clock. Your matters take up a considerable amount of time of this Court and other people in the community all need judges to sit on their cases. I do not want to have to spend another day on this case if it can be avoided. A lot of time has been spent in these kinds of discussion. You have heard what Mr Justice Brownie has ordered as to the conduct of this case. Please try and finish by 4.15”.

I draw attention to this passage, as it shows, amongst other things, that by 4.00 pm I was still in court, sitting with Brownie AJA, and Miss Wentworth was still busy making her submissions about what occurred while I had been present on 7 November 2001.

75 Miss Wentworth then said:

“[T]he terms of his Honour’s judgment of the 7 November 2001 not only do not deal with the inherent problem but show that his Honour had a mind set which was steadfastly against me.
He was expressly angry that I had raised the matter and from there on in he acted in such a way, commencing at page 12.5 which one normally only sees in the bull ring when there is a bull fight and there is baiting and there are sticks stuck in the back of an animal who is likely to urinate on itself in fear so that it is unable to do anything except to respond, and that's what was being done to me in the Court, and the threat that I was being subjected to was part of the course of conduct which was designed to make me fearful and designed to stop me from conducting my proceedings in any orderly fashion and succeeded, I might add, for when I put that on the record at a later date it provoked giggles of mirth from Justice Brownie together with Mr Van Aalst and with his Tipstaff and that is what the observers in Court saw and that is what disgusts the public and that is what brings the administration of justice into disrepute.
As to the paragraph I have set out, paragraph 138, that is what I have just dealt with”.

76 There can be no doubt whatever that at least up to the sentence that commences “I might add, …” these assertions related to alleged conduct on the part of Brownie AJA that occurred while I was present in court on 7 November 2001. Apart from the reference to “his Honour’s judgment of the 7 November 2001”, the reference to “page 12.5” is a reference to the transcript of 7 November 2001.

77 When I read the sentence that commences “I might add, … ”, I thought that it also dealt with what occurred on 7 November 2001. Miss Wentworth says that it does not. I would make the following comments. Firstly, I accept that the reference “giggles of mirth from Justice Brownie together with Mr Van Aalst and with his Tipstaff,” when looked at alone, does appear to concern an occasion when Miss Wentworth “put that on the record at a later date”. But regard must also be had to the last sentence of the passage I have quoted, namely: “As to the paragraph I have set out, paragraph 138, that is what I have just dealt with”. This sentence plainly means that Miss Wentworth’s remarks concern what occurred on 7 November 2001, as paragraph 138 – according to her – concerns only that occasion. Secondly, the words “what the observers in Court saw and that is what disgusts the public and that is what brings the administration of justice into disrepute” are ambiguous in that it is not clear whether they refer to 7 November 2001 or some later date. Again, however, they must be read with the last sentence of the passage concerned. The reference to paragraph 138 indicates that what preceded that sentence gives content to paragraph 138 and occurred on 7 November 2001.

78 Very shortly after Miss Wentworth had made the above remarks, Brownie AJA called upon Mr Molomby, for the opponents, to reply. Mr Molomby made some brief submissions.

79 Miss Wentworth responded. She referred to her submissions as to bias involving what had occurred on 3 December 2001 (when I was not present) and said:

“[I]t’s not a matter that concerns Justice Ipp”.

80 The following exchange occurred:

“CLAIMANT: I received nothing but statements from this Court that the Court is having sport with Miss Wentworth and I consider and I apprehended that was being done by Justice Brownie on the 7th – I see you smiling -

BROWNIE AJA: I was not smiling at all, Miss Wentworth.

CLAIMANT: - on the 7 November 2001 and on the day subsequent in the application for bias was a form of sport, that's why I used the categorisation as bull baiting. Bear baiting, bullfighting, it is a case of pushing, as was attempted to do with Mr Rajski, pushing a litigant before the Court to a point where they are put into jeopardy of their liberty”.

81 I then warned Miss Wentworth that she was “travelling very close to the line”. The following exchange then occurred:

“BROWNIE AJA: In any event is there anything more you want to say that-is in reply to the submissions of Mr Molomby? We seem to have travelled at the moment a long way beyond reply.

CLAIMANT: Yes, the reasonable observer, linked to what was just put before the Court in relation to the conduct on the 7/11, would definitely determine that there was a mind set, this is the reasonable observer as well as the party, that there was a mind set on the part of the Court to do certain things which could not be altered by reason of submission or by any submission whatsoever and once that situation is reached and that mind set is in place then neither the public nor the party before the Court, nor any reasonable observer could be confident that there would be any administration of justice between the parties in a fair and even-handed fashion and as such it is submitted that alone the matters raised on the 7 November 2001 are so serious as should result in the disqualification of Justice Brownie, but that there are further matters which will now need to be dealt with on another occasion which, in combination with the matter of 7 November 2001 and in extension of those matters, are so serious as should lead to the disqualification of Justice Brownie. Now it is 20 past 4 and I am precluded from continuing.
BROWNIE AJA: I am sorry, I missed the last point?

CLAIMANT: It is 20 past 4. I understand I am precluded from continuing?

BROWNIE AJA: No. Have you finished responding on what Mr Molomby said on the topic of the - ?

CLAIMANT: Yes, of the 7 November.

BROWNIE AJA: Justice Ipp will now retire from the Court. Is it appropriate to fix a date for the further hearing of the matter now?

CLAIMANT: As far as I am concerned yes, your Honour, I wish the matter to be dealt with.

BROWNIE AJA: I am available next week and the week after and not thereafter until October. Could you perhaps between you pick a date which is at least not inconvenient , if not most convenient?

MOLOMBY: We have reached as between us on the 18th, if that is suitable to the Court?
BROWNIE AJA: Yes. The further hearing of the matter is adjourned until the 18 June. On that occasion I will sit alone. The Court will adjourn”.

The Court then adjourned.

82 In the above-quoted exchange, Miss Wentworth submitted:

“[A]lone the matters raised on 7 November 2001 are so serious as should result in the disqualification of Justice Brownie”.

It is at that stage, namely, at about 4.20 pm on 6 June 2002 that, in response to a question by Brownie AJA, she agreed that she had completed her submissions as to what had taken place in my presence on 7 November 2001. She went on to say:

“[T]here are further matters which will now need to be dealt with on another occasion”.

Brownie AJA observed that I would retire from the Court and a date would be fixed for the further hearing of the matter, when the other matters, concerning conduct of Brownie AJA that occurred when I was not present, would be dealt with.

83 On 11 August 2003, Miss Wentworth contended, in aggressive and affronted voice, that on 6 June 2002 – after she had completed her submissions in relation to what occurred on 7 November 2001 – she asked me to leave the court and I refused. She said that thereafter, on 6 June 2002, she put her argument as to what occurred in my absence on 29 November 2001 and 3 December 2001. As I have pointed out, her written submissions assert that:

“It is quite wrong for Ipp JA to contend, as he did on 11 August 2003, that he thought the hearing on 6 June 2002 was dealing only with the conduct of Brownie AJA on 7 November 2001 at a time when he was in Court”.

84 The material to which I have referred above establishes, however, that, in fact, Miss Wentworth asked me to leave the court shortly after the hearing commenced on the morning of 6 June 2002 and before she had made any submissions that Brownie AJA should disqualify himself on the grounds of bias displayed on 7 November 2001.

85 The transcript of the proceedings on 6 June 2002 (and in particular the material to which I have referred above) also establishes that, after I had delivered my extempore judgment explaining my reasons for staying in court, argument continued for the rest of the day until 4.20 pm only in connection with what Miss Wentworth said occurred on 7 November 2001 (apart from, as I have explained, issues concerning admissibility of evidence and other matters relating to Brownie AJA’s conduct concerning persons other than Miss Wentworth). No argument took place as to whether Brownie AJA should be disqualified on grounds other than those relating to what had occurred on 7 November 2001. It was only after argument as to what had occurred on 7 November 2001 had been completed that I left the court (the Court in fact then adjourned, as the proceedings for the day were completed).

86 The Court reconvened on 18 June 2002 to continue to hear Miss Wentworth’s disqualification application against Brownie AJA. I was not then present. Brownie AJA then sat alone and heard Miss Wentworth’s submissions about his conduct on days when I was absent.

87 The fact that Miss Wentworth asserts the third ground of disqualification in the light of what I have recounted is beyond comprehension. Her allegations in regard to this ground are baseless and the ground is devoid of merit.

88 I now return to the second ground.

89 Brownie AJA reserved judgment on the disqualification application and in due course he provided me with a copy of his draft reasons. His Honour’s reasons stated:

“25. As the case progressed, the claimant’s case evolved, from one of apprehended bias, to one of actual bias, said to have been demonstrated on various occasions. She says, in summary, that I ought to have disqualified myself for apprehended bias; that when I then rejected admissible evidence, I was trying to suppress evidence of my own misconduct; that I was rude and sarcastic to her, overbearing, impolite and sneering, and deliberately so, with the intention of demeaning and humiliating her; that I had a fixed mind, unable to be changed; that I spoke over her, and lost all self control; that she felt threatened, abused, distressed and anxious, in consequence of my conduct; that I smirked and exchanged glances with my tipstaff and with Mr Van Aalst (counsel for the first opponent); that I was laughing at her behind my hand, and conducting myself to her detriment for the amusement of my staff and her opponents; she also says that I was very agitated, and speaking in a harsh and unpleasant tone; and that I intended to deliberately cause harm to her, when she was in ill health.
26. I consider that each of the attacks the claimant made is quite unjustified, and record my view that the claimant set out to provoke me, perhaps with a view to attracting responses such as might ultimately justify contentions such as those I have summarised. The proposition that she was somehow cowed by me was contradicted by every aspect of her demeanour, by her tone of voice, by her body language and by the way in which she conducted her case. She repeatedly argued a point, and when a ruling was given, immediately sought to challenge the ruling and to reargue the point. She was often unnecessarily repetitive, whilst at the same time strident and vehement, and she dismissed decisions the effect of which was contrary to her case, in inappropriate and scornful language. She did not respond to questions put to her, in the course of her submissions, and she put many of her submissions in what seemed to be a deliberately provocative way.
27. She is quite right to the extent that she says that I was at times agitated, but quite wrong in saying that I found any aspect of the case amusing, or that I tried to amuse others. To the contrary, her manner of conducting the case seemed to me to be deliberately offensive and provocative, and which I found irritating, the more so as I endeavoured not to be provoked and as she seemed to be enjoying baiting me”.

90 I read the transcripts of the proceedings on 7 November 2001 and 6 June 2002. I also read Miss Wentworth’s affidavit of 18 April 2002 filed on 2 May 2002 in these proceedings in which, in referring to what occurred on 7 November 2001, Miss Wentworth stated:

“I believe that I was putting to the Court or attempting to so do, evidence in the appropriate form, and that Brownie AJA in refusing to have evidence before the Court of the opinion of a member of the public of his misconduct in the bias application was refusing proper admissible evidence.
Brownie AJA was then rude to me p. 8.15 ff by stating that I had failed to respond to his questions to me and when I stated I wished to return to the case I had been raising ‘ Goktas’ , he the [sic] said sarcastically, rudely and in a way which was unwarranted ‘you are now trying to re-open, having previously failed to respond’ and ‘you refused to answer the question which comments had no foundation in fact.
Brownie AJA’s tone was overbearing and demeaning and impolite, and sneering and his attitude conduct and demeanour which I observed was calculated to demean and humiliate me, before the Court. I do not believe that the whole flavour and context of the exchange on 7/11/02 at pp 41 and 42, or on 29/11/01 can be demonstrated on the transcript”.

91 In the course of the proceedings, Miss Wentworth filed a number of written submissions. I also glanced, briefly, at the whole of Miss Wentworth’s written submissions that she had filed in relation to the hearing on 6 June 2002. I noticed that paragraph 177 of those submissions read as follows:

“The evidence raised in the affidavits as to the conduct of Brownie AJA on 3/11/01, in particular that of Mrs Martin show the conduct of the judge to be unjudicial, prejudiced, that he was laughing at the plaintiff and then became angry and overtly hostile to the plaintiff. The plaintiff’s affidavit sets out her observations of the judges conduct in laughing and smirking and that his conduct made her feel humiliated so that she was almost unable to continue with the application. The affidavit sets out further conduct of the judge which is unjudicial, including his sarcastic and rude comments and that the conduct and demeanour of the judge was causing the plaintiff humiliation and distress”.

92 I thought that the reference to 3 November 2001 was a typographical error, and Miss Wentworth was referring to what had occurred on 7 November 2001. Miss Wentworth’s submission referred to Miss Martin’s affidavit. Miss Martin’s affidavit of 3 December 2001 deals at least partly with what occurred on 7 November 2001. Since then, Miss Wentworth has stated that there was a typographical error, but her intention was to refer to 3 December 2001. That did not occur to me. She has stated that she intended to refer to Miss Martin’s affidavit of 12 December 2001. That, too, did not occur to me. I appreciate that paragraph 177 does not fall within paragraphs 130 to 144 (to which Miss Wentworth referred as containing her allegations concerning what had occurred on 7 November 2001) but, as I was looking at the submissions, it seemed to me that she had inadvertently omitted to refer to paragraph 177. Throughout these lamentable interlocutory proceedings, I have found it difficult to follow the thread of Miss Wentworth’s arguments as she moves irregularly from one topic to another and back again. I believed, perhaps wrongly, that this was yet another example. I do not think that my misunderstanding about a typographical error and my fixing upon a wrong affidavit when the affidavit in question was not identified by date demonstrates bias on my part. I would add that paragraph 177 was, in any event, confirmatory of the other allegations that Miss Wentworth had made about Brownie AJA’s conduct on 7 November 2001, and played no material part in my judgment of 26 February 2003.

93 From the material to which I have referred it can be seen that Miss Wentworth alleged that on 7 November 2001, in my presence, Brownie AJA had acted in an appalling way. I shall list those matters that, according to her, occurred in my presence on that date.

Miss Wentworth alleged Brownie AJA had been terse with her throughout the hearing, he had been “sarcastic and rude” to her and was “generally rude”. He had made an “extremely humiliating statement” that was “offensive and rude”.

“[O]ut of left field” and “without any reason” he had simply started to “mock” her.

His conduct had caused her to become “distressed, dismayed and put in terrorem .” She referred to being “abused, threatened or yelled [at]”. She said that Brownie AJA had “behaved in a way that no man has any right to behave before a woman”. She said that his Honour had behaved “in such a way as it really would indicate some sort of situation of domestic violence”. She said “it was a violent, aggressive angry thing to do, and it was a threat to me in terms which I took seriously”.

She said Brownie AJA had acted in a way that “one normally only sees in the bull ring when there is a bull fight and there is baiting and there are sticks stuck in the back of an animal who is likely to urinate on itself in fear so that it is unable to do anything except to respond”.

The threat that she was being subjected to was part of a course of conduct that was designed to make her fearful and to stop her from conducting her proceedings “in any orderly fashion” and this had succeeded.

She said that Brownie AJA was smiling, conducting a “form of sport”, bear-baiting, bullfighting, and pushing her into jeopardy of her liberty. She said that his tone was overbearing, demeaning, impolite, and sneering and his attitude, conduct and demeanour were calculated to demean and humiliate her.

All the above were said by her, in the passages I have quoted, to have taken place in my presence on 7 November 2001.

94 I have omitted from this list the specific matters that Miss Wentworth now asserts did not occur on 7 November 2001 (namely, the statement concerning the “giggles of mirth from Justice Brownie together with Mr Van Aalst and with his Tipstaff” and the statements concerning “what the observers in Court saw,” “what disgusts the public” and “what brings the administration of justice into disrepute”). As I have noted, whether or not Miss Wentworth asserted that this conduct occurred on 7 November 2001 is open to some question. But these matters, serious though they are in themselves, are overshadowed by the aggregate weight and extravagance of the catalogue of alleged misconduct on the part of Brownie AJA, conduct that Miss Wentworth unquestionably alleged did occur in my presence on 7 November 2001.

95 I regarded those allegations as being figments of Miss Wentworth’s imagination, without any foundation and entirely false. Nothing bearing any similarity to what she alleged had occurred in my presence. I regarded the making of those allegations as a gross abuse by Miss Wentworth of the rights afforded to her as a litigant in court. Miss Wentworth’s allegations were extremely serious and potentially damaging to the administration of justice. In those circumstances, on 26 February 2003, I felt impelled, as a matter of judicial duty, to place on record by way of a judgment, my views as to their veracity.

96 From what I have set out above, it is apparent that Miss Wentworth was acutely aware, before I gave the judgment that was eventually delivered on 26 February 2003, that I intended therein to refer only to her allegations as to what she said had occurred while I was sitting in court. She herself says, in paragraph 83(c) of her written submissions that it was “crystal clear” that:

“Ipp AJA intended to deliver a judgment referring only to the matter that happened whilst he was in Court. On 7/11/01 and not in respect of any other matter, and with reference to no other matters and certainly not with reference to matters occurring on 29/11/01 and 3/12/01, which were the clear subject of the submissions made orally and in writing on 6/6/02, and in the affidavits which the plaintiff relied on, as being the other bases for disqualification, that is matters occurring on 29/11/01 and 3/12/01 when Ipp AJA was not present”.

97 This knowledge on her part was reinforced by the words of the judgment of 26 February 2003 itself. In that judgment I said that my comments were “intended solely for the assistance of any appellate court that might be seized of the matter in the future”. I referred to my judgment of 6 June 2002 in which I had stated that it seemed to me that such an appellate court would wish to have the views of a judge who was present when the conduct complained of occurred. In paragraph 3 of my judgment of 26 February 2003 I referred to “that part of the claimant’s application that concerns [Brownie AJA’s] alleged conduct on 17 [sic – 7] November 2001 during the hearing at which I was present” and went on to deal with “[m]y understanding of the claimant’s complaints concerning Brownie AJA, expressed while I was present in court during the course of his application made on 6 June 2002”.

98 In the circumstances, I think it fanciful to suggest, as Miss Wentworth does, that I intended to and did in my judgment of 26 February 2003 refer to matters that occurred when I was not present. That judgment was intended to and did in fact deal only with what was alleged to have occurred in my presence on 7 November 2001.

99 In her written submissions Miss Wentworth said:

“[I]t is quite wrong of Ipp JA to contend as he did on 13/5/03 that as far as he was aware his judgment delivered on 26/2/03 dealt only with the claims of misconduct of Brownie AJA on 7/11/01 when he had made directions on 4/12/01 as to the evidence to be filed as to the conduct on the following days on 29/1/01 [sic – 29/11/01] and 3/12/01 and on 6/6/02 when the matter came before the Court on the Brownie AJA disqualification application it must be quite wrong to say that Ipp JA could have been other than aware that the conduct on all three days being the subject of his own direction as to evidence on 4/12/01 was before the Court fore [sic] consideration”.

100 This lengthy flow of words appears to mean that:

(a) I must have been aware on 6 June 2002 that Miss Wentworth’s application that Brownie AJA disqualify himself concerned his conduct not only on 7 November 2001 but also his conduct on 29 November 2001 and 3 December 2001.

(b) My awareness must have stemmed from the fact that on 4 December 2001 I made directions as to the evidence to be filed as to Brownie AJA’s conduct on 29 November 2001 and 3 December 2001.

(c) Therefore, it is “quite wrong” of me to “contend” that my judgment of 26 February 2003 dealt only with claims of misconduct of Brownie AJA on 7 November 2001.

101 Of course I knew that Miss Wentworth’s contention regarding Brownie AJA concerned not only what occurred on 7 November 2001 but also on other days. I have gone to some length to show how both Brownie AJA and I made clear to Miss Wentworth on 6 June 2002 that on that day her submissions should be confined to what occurred on 7 November 2001 and the matter would then be adjourned to enable her to make submissions to Brownie AJA alone as to his conduct on other days. That fact, and the fact that on 4 December 2001 I made directions as to the evidence to be filed as to Brownie AJA’s conduct on 29 November 2001 and 3 December 2001, has no bearing on the question whether, in my judgment of 26 February 2003, I dealt only with the allegations of misconduct on the part of Brownie AJA on 7 November 2001. As I have pointed out, Miss Wentworth well knew that my judgment of 26 February 2003 was intended to deal only with what occurred on 7 November 2001 and the words of that judgment make that plain. There is no rational basis for Miss Wentworth’s written submissions to which I have referred above. They are not worthy of further consideration.

102 In paragraph 9 of my reasons for judgment of 26 February 2003 I stated:

“In paragraph 25 of his reasons, Brownie AJA summarises the allegations made against him by the claimant. In paragraph 27, his Honour refers to the claimant’s allegations that he found aspects of the case amusing and attempted to amuse others in the courtroom. His Honour states that these attacks on him are unjustified. I agree with that observation and would go further and say that the claimant’s allegations are false and mischievous. As regards the other matters of fact referred to by Brownie AJA in paragraphs 26 and 27 of his reasons, I agree entirely with what is stated therein. In my opinion, Brownie AJA gave no indication of bias of any kind against the claimant”.

103 The litany of scurrilous and baseless charges which I have listed in paragraph 94 as having been made about his Honour’s conduct while I was in court on 7 November 2001 is more than sufficient to warrant the comments about which Miss Wentworth complains, namely, that what she said about Brownie AJA in my presence was false and mischievous.

104 I reject Miss Wentworth’s assertion that what I said in paragraph 9 of reasons for judgment of 26 February 2003 was wrong.

105 I would reject the second ground on which Miss Wentworth relies. It too, is devoid of merit.

The fourth ground

106 I turn now to Miss Wentworth’s fourth ground on which she contends I should disqualify myself. This is that, by limiting oral argument to one hour for the applications against both Brownie AJA and myself, I exhibited bias.

107 Miss Wentworth has great experience in applying for judges to disqualify themselves. Attached hereto is a chronology of applications and other proceedings in this case. It will be seen that, stemming from the original application for leave to appeal, applications for disqualification have been made not only to Brownie AJA and myself but also to the three members of the Court of Appeal who sat on the appeal from Santow JA. In addition, as I have noted, throughout the proceedings Miss Wentworth has applied on several occasions for Brownie AJA and myself to disqualify ourselves. Miss Wentworth has been involved over the years in applying on many occasions for different judges to disqualify themselves. Although Miss Wentworth is an unrepresented litigant, she is a formidable one, with vast experience, particularly in the field of requesting judges to disqualify themselves.

108 As I previously have pointed out, according to the practice of the Court of Appeal, Miss Wentworth’s original application for leave to appeal should have taken 40 minutes. In fact, it has taken many hours. It has also resulted in a great deal of satellite litigation. A glance at the chronology annexed to these reasons will reveal the quite astonishing record of that satellite litigation. I think virtually all of it has been held to be without merit. The point to be made is that Miss Wentworth has taken up a great deal of time of the Court, and the other parties to the litigation (and has caused them to incur costs), in pursuing unsuccessful interlocutory procedures.

109 In proceedings before the Registrar (the transcript of which I read before a directions hearing I held on 8 July 2003), Miss Wentworth said that the material she relied on for her disqualification applications was already filed in the court. She said:

“It is within the judgments of Ipp JA and Brownie AJA and it is within the filed material in court”.

She repeated this statement to me in a directions hearing on 8 July 2003. I asked her whether there was anything new in her application in relation to Brownie AJA and she replied in the negative. These matters led me to the view that Miss Wentworth’s application for disqualification relating to Brownie AJA and myself could be disposed of relatively briefly, particularly if written submissions were filed beforehand.

110 In the course of that directions hearing I said to Miss Wentworth:

“The amount of time and cost [this application] has generated is just extraordinary and I do not propose to allow that to happen for much longer”.

I pointed out that we were on the brink of giving judgment when she made her application for disqualification. Her application for disqualification precluded the delivery of judgment. I then informed Miss Wentworth that she could have an hour on 4 August 2003 for oral argument and she could file written submissions beforehand. I told her that the written submissions should deal with all matters she wished to raise. She asked for extra time and I agreed that the hearing would take place a week later on 11 August 2003 with the written submissions to be filed on 7 August 2003.

111 Miss Wentworth did not complete her submissions on 11 August 2003 firstly, because she had failed to file any written submissions and, secondly, because she occupied much of the time in making repetitive and provocative submissions to the Court. Despite this, after the hour that had been allotted for oral argument had expired, we afforded Miss Wentworth a further seven days to make written submissions.

112 On 18 August 2003 Miss Wentworth filed written submissions some 23 pages in length. She raised much new material.

113 In all the circumstances, I am quite satisfied that Miss Wentworth has had ample opportunity to put her case properly. The fourth ground is rejected.

114 I turn now to the fifth ground.

115 Throughout the innumerable interlocutory proceedings that occurred, during which I am supposed to have continuously threatened Miss Wentworth so as to make her fear for her safety, harassed her, and been rude, sarcastic and bullying to her, she did not make these allegations. They were made only when she filed her written submissions on 18 August 2003. Not even on 11 August 2003, when she was particularly rude and insulting to Brownie AJA and me, did she suggest that I was guilty of conduct of this kind. I infer that this ground is nothing more than an afterthought.

116 I would add that the idea that Miss Wentworth would be “fearful” is far-fetched. She is a belligerent and argumentative person who frequently flares into loud and angry voice when she does not get her own way. She is well able to deal with any admonitions from the Bench. The fact is that she generally ignores such admonitions; they rarely have an affect on her.

117 I do not propose to go into any detail to traverse this latest round of accusations. They are not true. The transcripts of the relevant proceedings speak for themselves.

118 Miss Wentworth’s application is dismissed.

**********

Chronology

DATE	EVENT	RESULT
7 November 2001	Application for leave to appeal from interlocutory rulings of Ireland J Brownie AJA & Ipp AJA Oral application for Brownie AJA to disqualify himself on grounds of apprehended bias	Judgment reserved Application dismissed
19 November 2001	Directions hearing of bias application pursuant to notice of motion filed on 19 November 2001 Brownie AJA	Stood over until 29 November 2001
19 November 2001	Notice of motion filed by Miss Wentworth 1. That Brownie AJA is disqualified on the grounds of apprehended actual and ostensible bias and prejudgment 2. Such further and other orders as the Court deems fit 3. Costs
29 November 2001	Directions hearing of bias application pursuant to notice of motion filed on 19 November 2001 Brownie AJA	Stood over until 3 December 2001
3 December 2001	Directions hearing of bias application pursuant to notice of motion filed on 19 November 2001 Brownie AJA	Stood over until 4 December 2001
4 December 2001	Directions hearing of bias application pursuant to notice of motion filed on 19 November 2001 Brownie AJA & Ipp AJA	Stood over to registrar 7/3/02
17 May 2002	Directions hearing of bias application pursuant to notice of motion filed on 19 November 2001 Ipp AJA	Directions given for hearing of bias application pursuant to notice of motion filed on 19 November 2001
6 June 2002	Hearing of bias application pursuant to notice of motion filed on 19 November 2001 Brownie AJA & Ipp AJA Oral application for Ipp AJA to vacate the Court while Brownie AJA hears bias application Oral application for Ipp AJA to disqualify himself on the grounds of apprehended bias Further oral application for Ipp AJA to disqualify himself on the grounds of apprehended bias Extempore judgment regarding the admissibility of evidence in relation to bias application Brownie AJA and Ipp AJA	Adjourned part heard until 18 June 2002 before Brownie AJA alone Ipp AJA refuses to vacate in relation to conduct of Brownie AJA on 7 November 2001, but agrees to vacate when argument takes place as to other conduct of Brownie AJA Application refused Application refused Brownie AJA refuses to admit evidence in relation to application for his disqualification
12 June 2002	Notice of motion filed by Miss Wentworth 1. That Ipp AJA is disqualified for apprehended bias 2. That the judgment on admissibility of evidence of Brownie AJA of 6 June 2002 as noted at page 42 of the transcript be set aside 3. Such further and other orders as the Court deems fit 4. Costs
18 June 2002	Continuation of hearing of bias application pursuant to notice of motion filed 19 November 2001 Brownie AJA Oral application that Brownie AJA vacate the hearing of bias application Hearing pursuant to notice of motion filed 12 June 2002 Brownie AJA	Adjourned pending the filing of additional submissions Brownie AJA declines to vacate the court Notice of motion dismissed as abuse of process
2 July 2002	Notice of motion filed by Miss Wentworth 1. That the judgment and orders made by Brownie AJA [18 June 2002] siting as a single judge of Appeal, dismissing notice of motion of plaintiff filed on 12 June 2002, returnable 18 June 2002 be set aside 2. That the judgment on admissibility of evidence of Brownie AJA of 6 June 2002 be set aside 3. That Ipp AJA is disqualified for apprehended bias 4. Such further and other orders as the Court deems fit 5. Costs
12 August 2002	Return of Notice of motion filed 2 July 2002 Registrar Schell	Decision reserved

5 September 2002	Decision pursuant to notice of motion filed 2 July 2002 Registrar Schell	Notice of motion dismissed as an abuse of process
19 September 2002	Notice of motion filed by Miss Wentworth 1. That the judgment/decision and order made by Registrar Schell on 5 September 2002 be set aside 2. Costs
30 September 2002	Hearing pursuant to notice of motion filed 19 September 2002 Santow JA Question raised by Miss Wentworth concerning the jurisdiction of a single judge to the Court of Appeal to review the decision of a Registrar pursuant to Pt 61 r 4 of the Supreme Court Rules	Judgment reserved No impediment under s 46(4) in Santow JA, as a single Judge of Appeal, exercising jurisdiction to review the registrar’s decision of 5/9/02
10 December 2002	Judgment regarding notice of motion filed 19 September 2002 Santow JA	Notice of Motion dismissed as an abuse of process pursuant to Pt 13 r 5
31 December 2002	Notice of motion filed by Miss Wentworth 1. That the judgment and order made by Santow JA [10 December 2002], sitting as a single judge of Appeal, dismissing the notice of motion of the plaintiff, be discharged and set aside. 2. Costs
10 February 2003	Return of notice of motion filed 31 December 2002 Registrar Schell	Miss Wentworth to file submissions by 12 March 2003
26 February 2003	Judgment regarding bias application pursuant to notice of motion filed 19 November 2001 Ipp JA & Brownie AJA	Notice of motion dismissed
17 March 2003	Motion pursuant to notice of motion filed 31 December 2002 Registrar Schell	Motion fixed for hearing on 23 April 2003 Hearing for summons for leave to appeal from interlocutory rulings of Ireland J (judgment reserved on 7 November 2001) listed for continuation on 13 May 2003
17 April 2003	Judgment delivered in relation to request by Miss Wentworth that Santow JA withdraw his judgment on 10 December 2002 Santow JA	Refused to withdraw judgment
23 April 2003	Hearing pursuant to notice of Motion filed 31 December 2002 Spigelman CJ, Mason P & Handley JA Application that Spigelman CJ disqualify himself on the basis of apprehended bias Application that Mason P disqualify himself on the basis of apprehended bias Application that Handley JA disqualify himself on the basis of apprehended bias	Notice of motion dismissed Miss Wentworth can apply to Ipp AJA to recuse himself. Spigelman CJ declines to disqualify himself Mason P declines to disqualify himself Handley JA declines to disqualify himself
13 May 2003	Continuation of hearing of application for leave to appeal from interlocutory rulings of Ireland J Ipp JA & Brownie AJA Oral application for leave to refer to further authorities in relation to other causes of action	Leave to appeal granted to the extent mentioned in para 27 of Notice of Appeal Ordered that new grounds of appeal in relation to other issues be formulated by Miss Wentworth within 7 days
14 May 2003	Miss Wentworth requests extension of time to file reformulated grounds of appeal and the Opponent consents to the extension.
16 May 2003	Miss Wentworth is informed that the Opponent has agreed to variation of the order of 13 May 2003	Variation of the order of 13 May 2003 to extend the time within which the Claimant is to file reformulated grounds of appeal to within 7 days from Miss Wentworth receiving reasons for judgment in relation to the orders of 13 May 2003
4 June 2003	Judgment in relation to the grounds of appeal with regard to which leave was not granted Ipp JA & Brownie AJA	Leave given to make further submissions in relation to new grounds of appeal within 7 days (i.e. in support of original application for leave to appeal)
4 June 2003	Notice of motion filed by Miss Wentworth 1. That Ipp JA is disqualified for apprehended bias 2. That Brownie AJA is disqualified for apprehended bias 3. That the determinations, judgments and orders of 17 [sic –13] May & 4 June 2003 limiting the grant of leave to appeal to certain grounds be set aside 4. That leave to appeal be granted on all grounds as pleaded 5. Such further and other orders as the Court deems fit 6. Costs
12 June 2003	Letter from Miss Wentworth requesting a further extension of time for filing reformulated grounds of appeal
13 June 2003	The Opponent consents to extension of time for filing reformulated grounds of appeal until 27 June 2003
17 June 2003	Letter from Registrar Schell faxed to Miss Wentworth stating that the Court has granted an extension of time until 27 June 2003 for the filing reformulated grounds of appeal	Time within which Miss Wentworth is to file submissions is extended until 27 June 2003
23 June 2003	Return of notice of motion filed 4 June 2003 Registrar Schell	Referred notice of motion to Ipp JA and Brownie AJA for consideration
8 July 2003	Directions hearing pursuant to notice of motion filed 4 June 2003 Ipp JA	Directions given for hearing of notice of motion filed on 4 June 2003 written submissions to be filed by 7 August 2003
11 August 2003	Hearing pursuant to notice of motion filed 4 June 2003 Ipp JA & Brownie AJA	Judgment reserved Miss Wentworth given further 7 days to written submissions
18 August 2003	Written submissions filed

Last Modified: 09/02/2003