Katherine Wentworth (Applicant) Geoffrey Graham (First Respondent) William Charles Wentworth (Second Respondent)
JUDGMENT OF:
Santow JA at 1
COUNSEL:
Ms Wentworth (Applicant in person) ex parte
SOLICITORS:
CATCHWORDS:
PRACTICE and PROCEDURE - Court of Appeal - Review of Registrar's decision - whether Pt 61 rr3 and 4 Supreme Court Rules is inconsistent with s46(4) of the Supreme Court Act 1970.
Emmett v Hornsby Shire Council (SCNSW Court of Appeal, 21 March 2002, unreported) Strata Consolidated (Australia) Pty Ltd v Bradshaw ([2000] NSWCA 225) Westpac Banking Corporation v Abemond Pty Ltd (SCNSW Santow J, 28 October 1994, unreported)
DECISION:
I am satisfied that there is no impediment under s46(4) or otherwise in my exercising jurisdiction to review the Registrar's decision under Pt 61 rr3 and 4 of the Supreme Court Rules, in a case such as this, which I am satisfied comes within the ambit of that Rule.
CA 40277/00
SANTOW JA
30 SEPTEMBER 2002 (revised 6.12.2002)
KATHERINE WENTWORTH v GEOFFREY GRAHAM and Anor
Judgment – ex tempore
1 SANTOW JA: At the outset of this application, Ms Wentworth, who appears ex parte, properly raised a question concerning the jurisdiction of a single judge of this Court to review the decision of a Registrar pursuant to Pt 61 r4 of the Supreme Court Rules. The question concerned whether that provision, being part of the Supreme Court Rules, was inconsistent with the jurisdiction of the Court of Appeal under s46(4) of the Supreme Court Act 1970 (“the Act”) to “discharge or vary a judgment given by a judge of appeal.”
2 The way in which s46(4) of the Act may come to apply arises pursuant to Pt51 r58(1) of the Supreme Court Rules. Under that subrule “the Registrar may exercise the powers of a Judge of Appeal under s46(1) and (2) of the Act.”
3 On the premise that the Registrar in the present case is exercising the powers of a Judge of Appeal under s46(1) or (2) of the Supreme Court Act, it would follow that the Court of Appeal under s46(4) has jurisdiction to discharge or vary a “judgment” given by a Registrar, or an order made or direction given by a Registrar.
4 Part 61 rr3 and 4 are also upon their terms capable of application on the basis that where the Registrar does “give a direction or certificate or make an order or decision or does any other act in any proceedings,” “the Court may...review the direction, certificate, order, decision or act and may make such order by way of confirmation, variation, discharge or otherwise as the Court thinks fit.” I quote Pt 61 rr3…
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.
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AGLC
Wentworth v Graham [2002] NSWCA 397
Case
[2002] NSWCA 397
Decision Date
CaseChat Overview and Summary
In *Wentworth v Graham*, the Court of Appeal considered an application to review a decision made by the Registrar. The central dispute concerned the compatibility of certain Supreme Court Rules with a provision of the *Supreme Court Act 1970*.
The primary legal issue before the Court of Appeal was whether Part 61, rules 3 and 4 of the Supreme Court Rules were inconsistent with section 46(4) of the *Supreme Court Act 1970*. This question arose in the context of the court's jurisdiction to review the Registrar's decision.
Santow JA determined that there was no impediment, either under section 46(4) of the Act or otherwise, to the Court of Appeal exercising its jurisdiction to review the Registrar's decision. His Honour was satisfied that the case fell within the scope of Part 61, rules 3 and 4 of the Supreme Court Rules, and therefore the rules were not inconsistent with the Act in this instance.
Orders
Orders of the court
I am satisfied that there is no impediment under s46(4) or otherwise in my exercising jurisdiction to review the Registrar's decision under Pt 61 rr3 and 4 of the Supreme Court Rules, in a case such as this, which I am satisfied comes within the ambit of that Rule.