Wentworth v Rogers

[2002] NSWSC 1198

CITATION:	Wentworth v Rogers [2002] NSWSC 1198
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 13494/01; 13492/01
HEARING DATE(S):	30/10/02
JUDGMENT DATE:	16 December 2002
PARTIES :	Katherine Wentworth - First Plaintiff Salvatore Russo - Second Plaintiff Gordon John Rogers - Defendant
JUDGMENT OF:	Barrett J

COUNSEL :	First Plaintiff in person Ms V Culkoff - Second Plaintiff Mr P J Beazley, Solicitor - Defendant
SOLICITORS:	First Plaintiff in person Russo & Partners - Second Plaintiff Beazley Singleton - Defendant
CATCHWORDS:	PROCEDURE - courts and judges generally - apprehended bias - application that judge set aside judgment and orders because of failure to disclose matters alleged to ground reasonable apprehension of actual bias - application that judge disqualify himself from hearing particular future proceedings because judge's statements on fact and law in earlier proceedings alleged to ground reasonable apprehension of prejudgment
LEGISLATION CITED:	Legal Profession Act 1987 Legal Profession Regulation
CASES CITED:	Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 Brown v DML Resources Pty Ltd [2001] NSWSC 250 Re JRL; Ex parte CJL (1986) 161 CLR 342 Kartinyeri v Commonwealth (No 2) (1998) 72 ALJR 1334 Lawal v Northern Spirit Ltd [2002] EWCA Civ 327 Locabil (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 Rogers v Wentworth (unreported, NSWCA, 9 October 1998) Wentworth v Rogers [2002] NSWSC 709 Wentworth v Rogers [2002] NSWSC 921 Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 Wentworth v Wentworth (unreported, NSWCA, 21 February 1996) Wentworth v Wentworth (unreported, NSWSC, 10 July 1997)
DECISION:	See paragraphs 27 and 35

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BARRETT J

MONDAY, 16 DECEMBER 2002

13492/01 – WENTWORTH v ROGERS & ANOR
13494/01 – WENTWORTH & ANOR v ROGERS

JUDGMENT

Introduction

1 By a further further amended summons filed on 24 July 2002, the plaintiffs sought:

“1. An Order in so far as it is necessary that the Plaintiffs be granted leave to appeal against part of the determination of the costs assessor Ian Dwyer in costs assessment number 91247/00.
2. An Order that the determination of Ian Dwyer, Costs Assessor, in costs assessment number 91247 of 2000 at paragraph 4(b)(x) that Ms Lydiard and Ms Preston of counsel and Mr Licardy, solicitor were acting on a no win no pay basis and not a Pro-Bono basis and that Mr Licardy was not appointed by the Law Society as a pro bono Solicitor but that he was retained by the Applicant throughout on a no win no pay basis, be set aside.

3. In lieu of the determinations by Ian Dwyer, Costs Assessor, as set out in paragraph 2 a declaration that the Defendant was represented pro bono and was not entitled to any costs for his legal representation.

4. Such other Orders as the Court deems fit.
5. Costs.”

2 These orders were sought in relation to assessments of costs made by a costs assessor pursuant to Division 6 of Part 11 of the Legal Profession Act 1987. That Act contains two sections dealing with appeals to this court against decisions or determinations of costs assessor. Section 208L allows a party dissatisfied with a decision of an assessor “as to a matter of law arising in the proceedings” to appeal as of right to the court. Section 208M provides a more comprehensive avenue of appeal by way of new hearing with a right for fresh or additional evidence to be adduced. Appeal under s.208M is available only with the leave of the court.

3 When the plaintiffs’ further further amended summons came before me on 1 August 2002, the hearing was, by consent, confined to the question whether leave to appeal under s.208M should be granted. In a judgment published on 15 August 2002 (Wentworth v Rogers[2002] NSWSC 709), I refused leave. The plaintiffs afterwards sought re-opening, which I refused: Wentworth v Rogers[2002] NSWSC 921.

4 At that point, therefore, the plaintiffs did not have access to the avenue of appeal arising from s.208M but continued to have available to them the s.208L right of appeal on a matter of law. Arrangements were made on 15 October 2002 for the proceedings to come back before me on 30 October 2002 for the plaintiffs to pursue the course available to them under s.208L. On 23 October 2002, however, there was filed, ostensibly on behalf of both plaintiffs, a notice of motion seeking the following orders:

“1. That Barrett J be disqualified for apprehended bias.
2. That the judgments of Barrett J on 15 August 2002 and 4 October 2002 be set aside for bias.”

5 When the matter was called at 10 o’clock on 30 October 2002, Ms Culkoff of counsel announced an appearance for the second plaintiff, Mr Russo; while the first plaintiff, Ms Wentworth, appeared in person as she had done on the previous occasions. Mr Beazley, solicitor, appeared for the defendant.

6 Ms Culkoff addressed matters relevant to s.208L, confirming that there were two questions of law arising, one under s.184(4) of the Legal Profession Act and the other under clause 26IJ of the Legal Profession Regulation. She indicated that the second plaintiff had no submissions on those questions beyond those contained in written submissions dated 29 July 2002 previously filed, although she did expand on them slightly by adding some page and paragraph references. Ms Culkoff concluded by saying:

“I have nothing further to submit other than just to clarify, Miss Wentworth will be putting on an application for bias. The affidavit that she will be relying on incorrectly makes reference to it being filed on behalf of the second plaintiff. I believe Miss Wentworth will correct that, but I wish to make it clear to your Honour that there is no application on by the second plaintiff for bias. I have nothing further.”

7 The first plaintiff then proceeded alone with the applications in the notice of motion filed on 23 October 2002 and the remainder of the day was spent on those applications. At 4 o’clock, I reserved my decision. These reasons deal with that notice of motion.

The first plaintiff’s first claim

8 The first part of the first plaintiff’s case involves an assertion by her that it was improper for me to have heard and determined the application on which judgment was given on 15 August 2002 and likewise to have heard and determined the application for re-opening in which judgment was given on 4 October 2002. Her present application for the setting aside of both judgments appears to be based on Part 40 rule 9 of the Supreme Court Rules, the contention being that, because of certain matters in which she says that I was involved as a legal practitioner, I was prejudiced against her and incapable of bringing to bear objective, dispassionate and unbiased judgment. Furthermore, the first plaintiff says, I failed to advert to those matters when the proceedings first came before me (or at all) and failed to disqualify myself from hearing them when, in her submission, I ought properly to have taken both those steps. As a result, she says, both the judgment of 15 August 2002 and the judgment of 4 October 2002 were irregularly obtained and should be set aside.

9 There is a question whether a judge sitting at first instance may (or, at all events, should) consider setting aside a judgment already delivered by him or her when an unsuccessful litigant afterwards alleges that, because of bias, the judge should not have heard the proceedings in the first place; or whether the appropriate avenue of challenge by that litigant is by way of appeal against the judgment said to be affected by the supposed bias. In that connection, I note the following observation of the Court of Appeal (Kirby P, Hope and Samuels JJA) in Wentworth v Rogers (No 9) (1987) 8 NSWLR 388:

“First, as to the allegations of bias and prejudice, these were of various kinds. The appellant conceded that the only Court which could set aside the order made on 3 October 1986 was
the Court as presently constituted. But that concession, rightly made, demonstrated the difficulty which she faced. Her most grievous contention (and the one most serious for the administration of justice) was that the Bench was prejudiced against her. Despite the appellant's contention that it
was more appropriate to bring the proceedings back to this Court (for it to set aside its order and rehear the matter) the very allegation of bias demonstrates the undesirability of such a course. If the appellant alleges bias, her proper remedy is to seek relief by appeal upon that ground. This she could have done
by seeking special leave to appeal to the High Court. In the nature of the contentions advanced, therefore, it is appropriate that the appellant should be required to take that course, rather than to have this Court consider setting aside its own orders and rehearing the matter, particularly on such a ground.”

10 In Wentworth v Rogers(No 9), the Court of Appeal proceeded to deal with the question whether it should set aside its earlier order on the grounds of bias. The approach thus taken was the subject of the following observations of a differently constituted Court of Appeal (Priestley and Clarke JJA and Grove AJA) in Wentworth v Wentworth (unreported, NSWCA, 21 February 1996):

“As to the category of criticism involving bias and prejudgment, the Court said that if the plaintiff alleged bias her proper remedy was to seek relief by appeal upon that ground (at 395).
However the Court did not then dismiss the application on that basis. It considered the merits of the other matters raised by the plaintiff and found that there was nothing in them to warrant the Court in entertaining the application to set aside the earlier order.
In other words, the Court heard the application to its conclusion and dismissed it on its merits. By continuing with the hearing of the application after the complaint of bias the Court was refusing to disqualify itself and finally dealing with the substance of the motion. If the High Court were to think that there had been bias or the appearance of bias in the Court's dealing with the original order or the subsequent application to set aside the original order, then that would furnish a good ground of appeal. If the High Court did not take such a view and if no appeal were successful on any of the other grounds of criticism, then the Court's original order would stand, and the Court's order dismissing the motion to set aside the original order would also stand as an order on the merits of that application to set aside.
The difference in the procedure followed by Young J in the present case is that he decided nothing concerning the points raised by the plaintiff's two notices of motion; what he did in substance was to disqualify himself from the hearing of those two notices of motion.

We think that the appropriate course would have been either, following what this Court did in Wentworth v Rogers (No 9) , not to disqualify himself and to decide the notices of motion on their merits, or, to disqualify himself and leave the notices of motion to be dealt with by another judge.”

11 I spent a full day hearing the first plaintiff’s claims in the notice of motion filed on 23 October 2002. In light of the Court of Appeal’s statement in the last paragraph of the above extract from Wentworth v Wentworth as to the “appropriate course”, I proceed to deal on its merits with the claim by the first plaintiff that I was precluded by bias from determining the applications upon which I gave judgment on 15 August and 4 October 2002 and that the judgments were therefore irregularly obtained and should be set aside.

12 The first plaintiff filed in court on 30 October 2002 an affidavit affirmed by her on that day. Although it was filed in 13494/2001, I directed, by consent, that it be evidence also in 13492/01. Mr Beazley objected to all but paragraph 1 on the grounds of lack of relevance and to various other paragraphs on the basis that they were in the nature of submission. There is also a substantial hearsay content. I nevertheless admitted the whole of the affidavit on this interlocutory application, observing that I would treat as submission the parts that seemed to me to be submission. The affidavit was read by the first plaintiff.

13 The affidavit consists of 63 paragraphs. Its content falls into two parts, disregarding paragraph 1 in which the deponent identifies herself as a party to the proceedings. The first part, being paragraphs 2 to 45 contains assertions by the first plaintiff relevant to the application for an order setting aside the judgments of 15 August 2002 and 4 October 2002. Those assertions concern my career before my appointment as a judge and references to certain events over a period of some twenty years in which, she says, I was involved in ways that were adverse to her interests. Paragraphs 2 to 45 read as follows:

2. In mid October 2002 I was advised that Barrett J had been a partner at Allen Allen and Helmsley at a time that they had been acting for me, had been an in house counsel for Westpac and had then become a partner at Malleson Stephen Jacques.
3. I have examined the Law Almanac and obtained the following information in respect of Reginald Ian Barrett (now Justice Barrett of the Supreme Court).
4. RI Barrett was admitted practice as a solicitor on 17/3/1967,
5. RI Barrett was at Allen Allen and Helmsley from 1980/81 until 1988.
6. In 1989 and 1990 RI Barrett is not listed in the NSW Law Almanac in NSW city suburban or country solicitors.
7. In 1991 RI Barrett is listed as being at Allen and Helmsley .
8. In 1992, 1993, 1994, 1995 RI Barrett is listed as being at Westpac Banking Corporation at 60 Martin Place.
9. On 1/5/1995 RI Barrett went to Mallesons and is listed as being at Mallesons 1996.
10. RI Barrett became a judge in 2001.
11. In 1980-81 my sister D A Wentworth nee Evans and I employed Paddy Jones of Allens to act for us against WC and GN Wentworth as Trustees of the WC Wentworth Settlement, of breach of trust. WC and GN Wentworth were represented by Keith Mason QC. In the proceedings the Trustees swore falsely in their pleadings being defence to statement of claim and in affidavits in support of their case.
12. As a result of false swearing and false pleading, the Trustees entered into settlement with me and my sister in 1981.
13. Westpac Banking Corporation were involved in the settlement to provide funding for the Trustees to settle.
14. I found out in 1981 that Westpac were represented by another partner at Allens and I had a substantial falling out with our solicitor Paddy Jones over the conflict of interest. Mr Jones confirmed that one of his Partners at Allens was representing Westpac in the settlement negotiations and finalization of the agreement.
15. Paddy Jones said to me words to the effect ‘Its all above board, we have what are called Chinese walls in solicitors offices to prevent a conflict of interest’. I had forgotten this until I was reminded in mid October 2002, that RI Barrett was employed at Allens as at 1980/81 and although I thought he looked familiar, in 2002, I was unable to place him. I had seen him in 1980.81 at Allens, and I believe that RI Barrett was the Partner at Allens in 1980-1981 who had the conduct of the Westpac matters.
16. I am advised and verily believe, that RI Barrett, according to media reports, was involved with the Westpac letters scandal which resulted in Paddy Jones leaving Allens.
17. I believe that RI Barrett was the solicitor at Allens handling matters with K. Mason for the Trustees as at 1980/81 in conflict of interest with my employment of Paddy Jones at that firm.
18. In the period of mid 1981, on 17 June 1981, my matrimonial home was sold pursuant to orders of the Family Law Court by Trustees, for $380,000 and I was to receive half of that amount. The sale finalized on or about 21/9/81, when I received about $175,000 some $22,000 being withheld at that time by the Trustees for sale, Alex MacIntosh, from distribution.
19. Pursuant to the settlement of the litigation with the Trustees of the WC Wentworth settlement in mid 1981, my sister and I were each to receive about $250,000 from that settlement to be funded by Westpac for the Trustees, organized by Allens. I believe that RI Barrett was involved in organizing those monies.
20. I contracted to purchase a unit for $250,000 and paid a $25,000 deposit on it in about mid July 1981 as I was expecting the two settlements by about August 1981. Westpac was my bank and was aware of the funds coming in at all times.
21. Notwithstanding, Westpac, in August 1981 then cancelled all of my access to funds, in the full knowledge that I had had to vacate my home.
22. I believed at the time and still believe that this was done on the instigation of the Trustees, WC and GN Wentworth, to-gether with the partners at Allens, RI Barrett and in collusion with Paddy Jones, our solicitor, who had demanded that my sister and I advance funds to Allens in respect of legal fees or that otherwise he would prevent the settlement from occurring. My sister and I believed that he would do that, and we paid Allens for legal fees, which resulted in my having no funds left in credit with Westpac, as at August 1981.
23. I believe that it was the intention of the members of Allens and Westpac, with the Trustees, to send my sister and myself bankrupt to prevent the completion of the agreement in the Trustees litigation.
24. My sister and I sacked Paddy Jones and Allens for conflict of interest and took the rest of the litigation with the Trustees involving our children to Sly and Russell.
25. Allens, including P. Jones and RI Barrett were at all times aware that the grant of authority as a bank for the Bank of NSW had been made to D’Arcy Wentworth and vested in his executor in succession, which was GN Wentworth and WC Wentworth.
26. In the period that RI Barrett was in house counsel for Westpac, I was pursued by Westpac for monies which they wrongfully claimed as being owed by me to them pursuant to a mortgage I had over my unit. This was a further attempt to alienate my property and to send me bankrupt by Westpac as advised, I believe, by RI Barrett.
27. The mortgage had arisen as a result of litigation against me in 1985 by G.Rogers my ex husband for malicious prosecution, in a case described by the Court of Appeal on 6/3/87 as being a grave miscarriage of justice because of the withholding of material evidence by the pivotal witness, my ex solicitor in Family Law matters G. Graham, supported by the perjury of WC Wentworth, pursuant to whose lies, the Court had acquitted G. Rogers of rape and buggery charges in mid 1985. G. Rogers had obtained a judgment in 1985 for $571,000 and had obtained a judgment in 1985 for $571,000 and had successfully applied to freeze all of my assets.
28. In 1987, after the Court of Appeal set aside the judgment, at first the Court of Appeal refused to unfreeze my assets and from 1986 to mid 1987, G.Rogers and his legal advisors, G. Graham and WC Wentworth and others lobbied the Attorney General to have me declared a vexatious litigant. Many of the applicants to the AG were represented by Mallesons in particular, by a Mr Raftesath, a partner. Mallesons had previously acted against me representing the Woollahra Council in about 1980-84.
29. On 17/7/87 on the advice of K. Mason, by then the Solicitor General, the Attorney General, determined to make application under s.84 to have me declared a vexatious litigant and on the application of K. Mason for the AG and others, represented by Mallesons, Needham J granted orders injuncting me from taking action against various persons.
30. In March 1988 when Parliament was prorogued, K. Mason as solicitor general, representing the Attorney General, added to the particular in the claim by the Attorney General against me, and the added particulars were claims of a criminal nature. On application to the new Attorney General, John Dowd, by John Hatton MLA and Roger Gyles QC, The Attorney General, withdrew the particulars added by K. Mason.

31. In 1988 Roden J. threw out the Attorney Generals claim and ordered him to pay my costs which were agreed in an amount of $77,000. I had been represented on Legal Aid, but the Attorney General refused to pay me my costs and on the advice of the solicitor general, K. Mason, the Attorney General litigated against me from 1989 to 1992, when I settled with the AG.
32. RI Barrett went to Westpac in 1992.
33. In 1992 I made application for admission as a barrister which was opposed by the Bar Association, and K. Mason as solicitor General sought to and was allowed to intervene in those proceedings as an amicus only.
34. The whole of the documentation which had comprised the AG’s application under s.84 was provided by Mallesons acting for S. Rares and others to the NSW Bar Association and was the basis of its particulars provided. Mallesons were at all times intimately involved in the applications being made against me, firstly by the Attorney General and then by the Bar Association, purportedly on the representations of various of their clients.
35. K.Mason continued to act for the Attorney General, against me through the whole of my proceedings for admission including twice to the High Court and the Court of Appeal. I was not admitted, in 1994, and again in 1995 and on the advice of K. Mason, the State funded the Bar Associations costs of and in excess of $750,000.
36. During these applications from 1992 and in making application for Provision pursuant to the Family Provision Act from the Estate of GN Wentworth, my late father, from 1989, Westpac was at all times the Banker for my fathers’ Estate and to my brother, PFN Wentworth, who had inherited the whole of the estate.
37. From 1992, when opposition to my application as a barrister had commenced at Sydney RI Barrett was in house counsel to Westpac, and Westpac was seeking to deprive me of my remaining asset being my unit and to send me bankrupt. As well Westpac were involved at all times in the litigation in respect of my fathers estate and provided funds for the purchase of an annuity for me pursuant to the orders of Santow J. in 1995 under s.8 of the Family Provision Act, which orders were reversed 12 months later by the Court of Appeal, and the annuity withdrawn.
38. I believe that the involvement of Westpac was on the advice of their in house counsel RI Barrett.
39. I settled with Westpac in 1995/6.
40. RI Barrett went to Mallesons on 1/5/95.
41. There were continuing and on going representations, from 1988, and especially in 1992, to the Attorney General by WC Wentworth G. Graham (who was represented at that time by Mallesons) and others, including S. Rares represented by Mallesons, for the Attorney General to again commence proceedings against me under s.84 but these were not commenced.
42. In 1997 G. Rogers made further application against me under s.84 to the Court of Appeal which declined to deal with his application.
43. The Court of Appeal however made orders and costs orders in favour of G Rogers and confirmed indemnity costs orders made against me and my ex solicitor Russo in favour of G. Rogers by Sperling J. in 1997.
44. I made application for a stay of execution of those orders and of the orders of Sperling J and Mason P (as he had become) refused to allow the applications to be listed. I had complained to Mason J. that his refusal to allow the applications to be listed was because he was awaiting a change in the Supreme Court Act re pro bono representation (which became s.66A in April 2000) which would reflect the terms of the changes to the Federal Court Act.
45. Annexed hereto and marked with the letter ‘A’ is a copy of the letter of K. Mason of 19/4/00.”

14 By reference to the content of the affidavit set out above, the first plaintiff proceeded with submissions including the following:

“However, once a challenge is made, and the challenge is squarely before the court that the court is unable to exercise jurisdiction, then the onus of disclosure is upon the challenged judge or tribunal member. As such, I would ask your Honour to disclose such matters as are adverted to in the affidavit of 30 October 2002 which, in accordance with the matters raised therein, which I say result in my apprehending that you are not able to deal with the matters appropriately, are correct. I invite your Honour to make that disclosure.”

15 The transcript then records the following:

“HIS HONOUR: Let me say this, until the commencement of these proceedings I have [scil. had] never heard of Miss Wentworth, except for the press reports and the law reports. I was not in any way directly or indirectly involved in or I might say even aware of the existence of any of the matters concerning her which are referred to in her affidavit of 30 October 2002 as having been in progress or under attention within Allen Allen & Hemsley, Westpac Banking Corporation, or Mallesons Stephen Jaques during the time I spent with those organisations. There was nothing at all which, in accordance with the applicable standards, it was necessary or appropriate for me to disclose or declare concerning past associations at the outset of these proceedings.
Yes, Miss Wentworth?
WENTWORTH: Unfortunately a denial by the judge on the bench does not constitute any evidence in the proceedings and I am sure your Honour would not cavil with that. My apprehension is while you were at Allens and dealing with Westpac matters at Allens, that you were in fact dealing with my matters, that whilst you were with Westpac --
HIS HONOUR: Just If I can stop you there, that is an apprehension arising from what?
WENTWORTH: The apprehension, as I have set out in the affidavit, was that there was a dealing at Allens, who represented Westpac at that particular point in time, and as I understand your Honour was the --
HIS HONOUR: Which year was this?
WENTWORTH: This was 1980-81.
HIS HONOUR: Yes, I was there in 1980-81.
WENTWORTH: As I understand, your Honour was also a partner and with Westpac Banking Corporation at that time.
HIS HONOUR: I don’t want to have this develop into a dialogue of detail. I will comment on what you have just said, only to say that again that if you are referring specifically to the period 1980/81, when I was a partner at Allen Allen & Hemsley I had, to my knowledge, never heard of you, except to the extent, if any, that your name had then appeared in the press or in the law reports and that I was not involved in or even aware of any matters at Allen Allen & Hemsley involving you. I’m not sure how you wish to progress this, Miss Wentworth.
WENTWORTH: What I wish to have disclosed is whether or not in fact in 1980/81 you were the solicitor with the conduct of the matters of Westpac.
HIS HONOUR: I would say that there were 30 solicitors with Westpac [scil. Allen Allen & Hemsley] in those days, involved in working on matters with Westpac. I was one of them. The matters on which I concentrated in acting for Westpac were matters to do with Westpac’s corporate structure, stock exchange listing and perhaps some of its structured finance commercial lending to corporate borrowers. I never, except in my very young days as an articled clerk, when I used to deal with bankruptcy, I never dealt with retail customers or the affairs of retail customers or the enforcement of securities or recovery actions against customers at Westpac. That was in a different department all together, to the extent that it was dealt with by Allen Allen & Hemsley.
WENTWORTH: When your Honour moved on to Westpac Banking Corporation --
HIS HONOUR: I can help you there by saying I never heard your name within Westpac Banking Corporation.
WENTWORTH: I understand from what your Honour is saying that my fears are unfounded.
HIS HONOUR: Yes, or your apprehensions as you described them.
WENTWORTH: My apprehension is unfounded.
HIS HONOUR: Yes, your apprehension is unfounded.”

16 The first plaintiff then said that her apprehension nevertheless remained and went on to refer to events during my period of employment at Westpac Banking Corporation as its group secretary and general counsel, as to which I said:

“I never had any involvement in advising anyone at Westpac on anything to do with you and, as I have already said, I never heard your name mentioned while I was at Westpac during the period that I have referred to and when I say I have heard your name mentioned, I never heard it mentioned within Westpac in connection with the affairs of Westpac. I may have heard it mentioned in general conversations that any person in the community may have about current events, to the extent that you may or may not have been involved in current events, in the newspaper.”

17 The first plaintiff referred, in connection with Westpac, to a mediation that, she said, had involved senior executives. Later in the hearing, she said that “Mr Joss” had been involved.

18 Referring to my period as a partner of Mallesons Stephen Jaques, the first plaintiff asked:

“In your partnership at Mallesons from 1995, do I understand that there is no disclosure of any involvement in any further applications to the Attorney General in respect of a s 184 application on behalf of various clients of Mallesons?”

I said:

Again I can say that I never heard your name mentioned within Mallesons Stephen Jaques in connection with any matter that Mallesons Stephen Jaques were handling during the time that I was there and I most certainly had no involvement in any work done within Mallesons relating to you.”

19 Having set out the pertinent parts of the first plaintiff’s affidavit, as well as the applicable transcript content, I shall now deal with the extracted paragraphs of the affidavit in turn, at the same time correcting what I know to be errors of fact.

Paragraph 4 : This is correct.

Paragraphs 5 to 7 : I was an employee or partner of Allen Allen & Hemsley continuously from January 1964 to March 1991. In the course of that unbroken period of association, I practised at an Allen Allen & Hemsley office outside New South Wales from October 1987 to December 1989.

Paragraph 8 : I retired as a partner of Allen Allen & Hemsley on 31 March 1991 and, on 1 April 1991, became an employee of Westpac Banking Corporation, being its group secretary and general counsel.

Paragraphs 9 and 10 : I resigned from my position at Westpac Banking Corporation effective 30 April 1995 and, on 1 May 1995, became a partner of Mallesons Stephen Jaques, a position I held until my retirement in March 2001 prior to my appointment as a judge of this court on 19 March 2001.

Paragraphs 11 to 15 : I have no knowledge of and was never involved in any of these matters. I was unaware of their existence until I read the affidavit of 30 October 2002. I have no recollection of seeing the first plaintiff at Allen Allen & Hemsley or elsewhere in 1980 or 1981. Whether or not she saw me at Allen Allen & Hemsly in those years I cannot say. I attended the office in Sydney every weekday, except when absent on holiday or business or through illness or some other cause. I had the conduct of certain matters for the then Bank of New South Wales (afterwards Westpac Banking Corporation) at Allen Allen & Hemsley in 1980 and 1981 but these did not include anything touching upon the first plaintiff or members of her family. The types of matters to which I attended are described in the transcript extract I have already quoted. I have no knowledge of anything that passed between anyone at Allen Allen & Hemsley and the first plaintiff about the matters to which these paragraphs refer.

Paragraph 16 : If it is relevant, I state that I did not know of the existence of the so-called “Westpac letters” until the time there was press publicity about them in, I think, late 1990 or early 1991. I have no recollection of any media reports of my having been “involved with” the creation of the “Westpac letters” or any “Westpac letters scandal”. Mr Jones retired as a partner of Allen Allen & Hemsley several years after I did. There was no occasion for me to be made aware by anyone of the reasons for his having done so and I have no knowledge of the reasons except from the press.

Paragraph 17 : This belief is in error. No basis for it is stated. None can exist.

Paragraphs 18 to 22 : I had no knowledge of these matters before I read the affidavit. The belief stated in paragraph 19 is in error. No basis for it is stated. None can exist. I had no involvement, correspondence or conversation of any kind with Mr Jones concerning the first plaintiff or any member of her family.

Paragraph 23 : I know of no basis for this belief.

Paragraph 25 : If it is relevant, I state that I have been aware for a long time that, according to historical accounts, D’Arcy Wentworth was one of the founders of the Bank of New South Wales. I have never been aware that the supposed “grant of authority” devolved in the way stated in this paragraph, assuming that it did (the significance of any such devolution being, in any event, obscure since the creation of a body corporate by the Bank of New South Wales Act of 1850).

Paragraph 26 : I have no knowledge of and was never involved in these matters. I was unaware of their existence until I read the affidavit. I never gave any such advice to Westpac. I do not recall ever hearing or seeing reference to the first plaintiff as a customer of Westpac; nor did I know, until I saw the affidavit, that she had a relationship with that bank.

Paragraphs 27 to 31 : I have no knowledge of and was never involved in these matters. I do not recall ever hearing or seeing, while I was at Mallesons Stephen Jaques, reference to the first plaintiff as a party to any dispute or litigation with a client of that firm.

Paragraph 32 : As stated above, I became an employee of Westpac in 1991.

Paragraphs 33 to 39 : Except for what I may have read in newspapers and law reports, I have no knowledge of any of these matters. I did not advise Westpac on any such matter. I ceased to be employed by Westpac on 30 April 1995, having ceased active duty on 31 March 1995 prior to taking accrued leave. I was accordingly an active employee for only the first three months of the two year period described as “1995/6”.

Paragraph 40 : This is correct.

Paragraphs 41 to 45 : Except for what I may have read in newspapers and law reports or learned in the course of the present proceedings, I have no knowledge of any of these matters.

20 As I have said, the first plaintiff returned to the matter of Westpac in the course of the hearing, commenting that “Mr Joss” had been involved in the resolution of her disputes with that bank. Mr R L Joss became the managing director of Westpac Banking Corporation in early 1993. He remained in that position for several years after my resignation on 30 April 1995. As group secretary and general counsel, I reported directly to him from the time of his appointment until my resignation. He regularly sought my advice on legal matters affecting the corporation during that period. I have absolutely no recollection of his ever having raised with me anything concerning the first plaintiff or any member of her family.

21 I turn now to the legal principles to be applied in a case such as this. They are conveniently collected in Wentworth v Wentworth (unreported, NSWSC, 10 July 1997), a case in which, as here, a party had, after delivery of judgment and the making of orders, asked that the trial judge set aside the judgment and orders. Several grounds were advanced by the applicant, one being that the judge should have disqualified himself at the outset for bias. The alleged bias arose from the fact that the judge’s son had been employed by the Attorney-General at a time when the Attorney-General was deciding whether to initiate certain proceedings against the applicant. After dealing with the circumstances arising from his son’s employment, to the extent that they may have had relevance to his own position, the learned judge said:

“The submissions of the plaintiff as to bias, particularly as contained in the Outline Submissions of the Plaintiff quoted above, are based on generalised assertions unsupported by evidence of the relevant primary facts. It is accordingly, not possible to make any specific findings of fact in relation to that material. However, having regard, inter alia, to the content of the statement made by me on 30 May 1997 as set out above, and to the other relevant circumstances of the case, I am of the opinion that, in accordance with the relevant authorities, and for the reasons appearing hereafter, I am not required to set aside my judgment of 20 December 1996 on the ground of bias, and I decline to do so.
The relevant principles relating to disqualification for bias or appearance of bias have been dealt with, inter alia, in the following passages from various judgments in the High Court:-
‘... That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. That principle has subsequently been applied in this Court ... and in the Supreme Court of New South Wales ... Although statements of the principle commonly speak of “suspicion of bias”, we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning’: per Mason, Murphy, Brennan, Deane and Dawson JJ in Livesey v The New South Wales Bar Association (1982-83) 151 CLR 288 at 293-294.
‘The problem is governed by the principle that a judge should disqualified himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues ... This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done’: per Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 351 352.
‘I accept the observation of McHugh JA in the instant case that “in the case of a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial, a conclusion that there is a reasonable apprehension that he is biased should not be drawn lightly”. In effect, that is what this Court said in Livesey . And it is true, as Clarke JA pointed out, that it is a “reasonable apprehension” with which the court is concerned. And, if it adds anything, it is such an apprehension in “a fair-minded observer”: Livesey ’: per Toohey J in Vakauta v Kelly (1988-89) 167 CLR 568 at 584-585.
‘... In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case’: per Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87.
‘When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her’: per Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal , ibid, at 100.

‘... the premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question. References to the reasonable apprehension of the “lay observer”, the “fair-minded observer”, the “fair-minded, informed lay observer”, “fair-minded people”, the “reasonable or fair-minded observer”, the “parties or the public” and the “reasonable person” abound in the decisions of this Court and other courts in this country. They indicate that it is the court's view of the public's view, not the court's own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored. Indeed, as Toohey J pointed out in Vakauta in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case. That does not mean that the trial judge's opinions and findings are irrelevant. The fair-minded and informed observer would place great weight on the judge's view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the judge's findings’: per Mason CJ and McHugh J in Webb v The Queen (1994) 181 CLR 41 at 51-52.”

22 The central theme here is that matters must be judged according to any reasonable apprehension that would be entertained by a reasonable or fair-minded observer. The facts by reference to which such an observer would approach the present matter are, first, that I was a partner of each of two large firms of solicitors at times when other partners there were apparently engaged in representing interests opposed to those of the first plaintiff; second, that I was the most senior legal officer of a bank with several million customers at a time the first plaintiff, as a customer, was involved in a dispute with that bank having legal ramifications (although it appears that resolution of the dispute may have occurred after my employment with the bank had ended); third, that I had no involvement in any of the work done or advice given within either of the firms or the bank in relation to any such matter concerning the first plaintiff; and, fourth, that I have no recollection whatsoever of even being aware of the existence of any such matter.

23 The attributes of the reasonable or fair-minded observer and the ways of thinking he or she adopts have been the subject of discussion in a number of cases. The leading Australian judicial statements are referred to in the judgment of Pill LJ of the English Court of Appeal in Lawal v NorthernSpirit Ltd [2002] EWCA Civ 327:

“The concept of what Lord Hope [in Porter v Magill [2002] 2 WLR 37] described as the ‘fair-minded and informed observer’ was considered in the High Court of Australia in Johnson (2002) 174 ALR 655, cited with approval by Laws LJ in Sengupta v Holmes & Ors ; The General Medical Council and the Lord Chancellor’s Department intervening (transcript 31 July 2002), Kirby J stated, at para 53:
‘The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on fair understanding of all the relevant circumstances. …’
Kirby J also stated (para 52) that ‘it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence which must be won and maintained’.
Laws LJ also cited in the judgment of Bleby J in the Supreme Court of South Australia in Southern Equities Corporation Ltd v Bond [2000] SASC 450:
‘In order to determine the likely attitude of fair-minded lay observer, the judge must be clothed with the mantle of someone the judge is not. One must avoid the natural temptation to view the judicial conduct, state of knowledge, association or interest in question through the eyes of a professional judge. … one must be careful not to attribute to the lay observer judicial qualities of discernment, detachment and objectivity which judges take for granted in each other.’
In Johnson , it was stated in the judgment of Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ, at paragraph 12, that ‘the hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary and is not based purely upon the assessment of some judges of the capacity or performance of their colleagues’. It was the position of a professional judge, which was, as it was in Sengupta , under challenge. The Court added:
‘At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require the [judge] to discard the irrelevant, the immaterial and the prejudicial”.’
[The citation within that passage is from the judgment of McHugh JA in Vakauta v Kelly (1998) 13 NSWLR 502 at 527.]
In my judgment, the requirement of public confidence and the importance of the appearance of justice, are important factors in resolving the present issue. The need to consider the perception of a lay observer reflects those factors.”

24 Every judge has a past. The question in cases such as the present is whether something in that past would be seen by the reasonable or fair-minded observer as having the potential to divert the judge from deciding the case on its merits. Case law makes it plain that that observer is to be taken to bring a balanced and sensible mind to the inquiry, with a consciousness of the professional commitment of judges to act objectively and their sworn duty to act impartially, mindful also of the waste of resource and delay that can be brought about by too tender an assessment of the relevance of past associations.

25 In my judgment, the reasonable and fair-minded observer, aware of all the circumstances, would not have held, by reference to the matters in paragraphs 2 to 45 of the first plaintiff’s affidavit of 30 October 2002, any reasonable apprehension of bias on my part in the determination of the applications on which I gave judgment on 15 August 2002 and 4 October 2002. I do not lose sight of the fact that cases involving solicitors who are partners in firms give rise to more complex considerations than those involving sole practitioners such as barristers (see Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451), but the distinctions fall away once the practitioner has retired from practice and become a full time judge. The reasonable and fair-minded observer would have appreciated that, when I heard the applications and gave judgment on 15 August and 4 October, I had no connection with the firms and the bank upon which the first plaintiff’s concerns are centred and no knowledge of any of the matters raised by her, with the result that I was unaffected by anything from those sources which had the capacity to cause me to be affected by bias.

26 The reasonable and fair-minded observer would also have seen through the first defendant’s attempt to eke out some shadow or hint of bias by showing merely that I was at a particular firm or corporation when someone else within it was, according to her account, engaged in representing or pursuing interests inconsistent with her own or, at least, regarded by her as inconsistent. Coincidence of time and place assume, in the first plaintiff’s submissions, the proportions of necessary cause and effect: compare Rogers v Wentworth (unreported, NSWCA, 9 October 1998) where one party submitted that a judge should stand aside on account of bias because the judge and the other party to the litigation had attended the same school at the same time, with the judge being a year ahead of the litigant and having no recollection of having met the litigant then or at any subsequent time. The present submissions are based on flimsiness and non sequitur of the same kind.

27 I decline to set aside my judgments of 15 August 2002 and 4 October 2002. The claim in item 2 of the notice of motion filed on 23 October 2002 is accordingly dismissed.

The first plaintiff’s second claim

28 The second proposition the first plaintiff advances on the present application is that I should disqualify myself from hearing and determining the plaintiffs’ s.208L appeal because, in determining the s.208M application for leave to appeal, I have prejudged one of the key questions to be decided on the s.208L appeal, namely, the way in which s.184(4) operated in the particular case.

29 It is necessary to say something about the relationship between the two sections. Section 208L, clearly enough, involves determination by the court of the matter of law by reference to which the appeal under that section is brought. Section 208M, by contrast, entails, at the s.208M(1) stage, a decision whether a particular appeal, which may or may not involve a matter of law as well as some matter or matters not being matters of law, is of sufficient cogency that the party wishing to bring the appeal before the court should be allowed to do so. If leave is granted under s.208M, the resultant appeal is unconstrained in that the appellant may advance matters of fact and matters of law alike in arguing that the original decision should be overturned. That being so, I saw it as both necessary and appropriate, in considering the leave question, to canvass the various aspects of the original decision I regarded as material to the possibility that that decision may have miscarried in a way warranting the grant of leave to appeal.

30 One such aspect was the meaning and operation of s.184(4) in the particular context. At paragraph 19 of the judgment of 15 August 2002, I stated my view of the purpose of s.184(4). At various other places, I expressed opinions as to the application and operation of the section. I saw this as integral to the question whether leave should be granted so that an appeal against the original decision might proceed. The first plaintiff’s submissions on this part of the present application amounted, in essence, to a wide-ranging and comprehensive critique of my judgment of 15 August 2002 in which she covered in detail the ground that would no doubt have been covered had her application for re-opening been successful. In the course of those submissions (parts of which formed the remaining paragraphs of her affidavit of 30 October 2002), the first plaintiff made clear her opinion not only that I had fallen into error in a number of ways relevant to the proper interpretation and application of s.184(4) to the circumstances of this case but also that I had, by my observations in relation to that section and its operation, compromised my ability to receive and deal with in a fully objective way such submissions as would be addressed to me on those issues in the s.208L appeal.

31 The first plaintiff’s contentions in this area are based on what Kirby P described in Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 as “the natural human desire for consistency of thought and action and the usual inclination of any human being to uphold an opinion earlier expressed if supported by grounds which seemed totally convincing to that person at the time of their expression”. Again, of course, the determinant is the reaction of the hypothetical reasonable or fair-minded observer whose characteristics have already been noticed.

32 The fact that a judge’s previous decisions on issues of fact and law may generate an expectation that he or she is likely to decide issues in a particular case adversely to one of the parties does not mean that the judge will approach that case otherwise than with an impartial and unprejudiced mind or that the previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that the judge will approach the case in that way. This is made clear in the judgment of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342; see also Kartinyeri v Commonwealth (No 2) (1998) 72 ALJR 1334. The position is even clearer where a judge makes an order ex parte on the expressed basis that he may change his mind if and when the other party exercises leave to be heard. There is, in such a case, a clear recognition that the original mindset may be altered: see Brown v DML Resources Pty Ltd [2001] NSWSC 250.

33 I consider the present case to be distinguishable. The situation is not one in which I have in other proceedings (or in some extra-judicial utterance) expressed a view of the law which might be thought to indicate a predisposition towards a particular outcome in this case. Nor have I expressed some provisional view subject to possible modification. In either of those situations, the reasonable and fair-minded observer would recognise that an objectively based decision arrived at by reference to arguments yet to be advanced in the particular proceedings would be possible. In this case, I have, for one purpose, already canvassed in some detail and expressed firm opinions about an issue between the particular parties in relation to the particular circumstances that will be one of two central issues integral to the determination of the s.208L appeal. I have done so in the course of performing the task I had to perform in relation to the s.208M application for leave.

34 The cases make it clear that judges must not accede too readily to suggestions of some apprehension of bias, given their duty to hear and determine the cases that come before them and not to encourage any party to think that the party can, by assertions of such apprehension, displace the particular judge and have the case heard by another who may be more likely to see things the way the party prefers. But even bearing that principle clearly in mind, I consider that, in the particular circumstances of this case, the reasonable and fair-minded observer aware of what transpired in relation to the s.184(4) issues at the earlier stage of the proceedings would in all likelihood be troubled by the notion that I was to hear and determine the s.208L appeal in which those issues are to be one of the two central matters in contention. There is, in the circumstances, room for an apprehension, upon assessment by the hypothetical observer, that I would not alter the views previously stated by me, as they were expressed in relation to these very parties and this very case.

35 For these reasons (and these reasons alone), it is appropriate that I disqualify myself from hearing the s.208L appeals in both these proceedings (that is, 13492/01 and 13494/01). I accordingly do so.

Other matters

36 Mr Beazley who, as I have already said, appeared for the defendant noted at the conclusion of the hearing on 30 October that there are four matters outstanding in each of these proceedings, apart from the s.208L appeal itself. These are, first, the question of costs in relation to the application for leave to appeal the subject of my judgment of 15 August 2002, second, the question of costs in relation to the application to re-open determined by me on 4 October 2002, third, the order made by me on 10 September 2002 staying until further order the order dismissing the application for leave to appeal under s.208M and, fourth, the long-standing stay on the entry of the certificate of assessment and determination of costs.

37 My present thinking is that, in the light of my decisions on the disqualification issues raised by the first plaintiff, there is no reason why I should not, in the ordinary course of events, hear and determine such application as any party may choose to make in relation to any of those four matters.

*********

Last Modified: 12/17/2002