Wentworth v Rogers

CITATION:	Wentworth v Rogers [2000] NSWCA 368
FILE NUMBER(S):	CA 40962/98
HEARING DATE(S):	8 December 2000
JUDGMENT DATE:	15 December 2000
PARTIES :	Katherine Wentworth v Gordon J Rogers
JUDGMENT OF:	Handley JA at 1

LOWER COURT JURISDICTION :	Application for disqualification
LOWER COURT FILE NUMBER(S) :	N/a
LOWER COURT JUDICIAL OFFICER :	N/a

COUNSEL:	Miss Wentworth in person No appearance for opponent
SOLICITORS:	Miss Wentworth in person No appearance for opponent
CASES CITED:	Herijanto v Refugee Tribunal [No 2] (2000) 74 ALJR 703 Zanatta v McCleary [1976] 1 NSWLR 230 Kaycliff Pty Limited v Australian Broadcasting Tribunal (1989) 90 ALR 310 Vakauta v Kelly (1989) 167 CLR 568 Webb v The Queen (1994) 181 CLR 41
DECISION:	Application for disqualification dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40962/98
CLD 19228/82

HANDLEY JA

15 December 2000

Katherine WENTWORTH v Gordon J ROGERS

JUDGMENT

1    HIS HONOUR: When the hearing of this motion for review resumed on Friday 8 December, Miss Wentworth renewed her application that I should disqualify myself from further participation in its hearing and determination. Her application was largely based on the matters raised by her on an earlier application in associated litigation between the same parties and dealt with in my decision, refusing to disqualify myself, of 9 October 1998. Those matters call for no further comment from me. 2    Since that decision I have continued to sit on cases involving Miss Wentworth as and when rostered to do so. The fact that I, and the Judge or Judges who have sat with me, have found against Miss Wentworth in those cases provides no ground for me to disqualify myself. 3    The present application was, however, supported by new material in the form of an affidavit by a former Associate of a Judge of this Court in which she deposes to overhearing private conversations between Judges of this Court, including myself, in which derogatory remarks were made against Miss Wentworth. I would disqualify myself immediately if the allegations about myself were true, or if I thought that I might have said such things in the past. 4    When Miss Wentworth tendered the affidavit in open Court, I immediately denied having said any such thing but, as she correctly submitted, my denial cannot settle the question which depends upon the view of a “fair-minded observer”. 5    The legal questions raised by the tender of this affidavit have not, to my knowledge, received judicial consideration in any jurisdiction with which I am in any way familiar. In particular there is no authority dealing directly with the admissibility of evidence of this nature. 6    Evidence dealing with any aspect of a Judge’s decision-making process has been held to be inadmissible. See Herijanto v Refugee Tribunal [No 2] (2000) 74 ALJR 703, 704. In Zanatta v McCleary [1976] 1 NSWLR 230 this Court declined to receive affidavit evidence from a barrister and a solicitor who deposed to a conversation with a trial Judge after he had…