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.

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…

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.

Continue reading Wentworth v Rogers

Details

AGLC: Wentworth v Rogers [2002] NSWSC 1198
Case: [2002] NSWSC 1198
Decision Date: 16 December 2002

CaseChat Overview and Summary

In the Federal Court, Wentworth brought an application against Rogers, seeking to set aside a judgment and orders made by Justice Smith due to an alleged failure to disclose matters that purportedly led to a reasonable apprehension of actual bias. Wentworth further sought that Justice Smith disqualify himself from any future proceedings, on the basis that his statements on fact and law in the earlier proceedings were said to ground a reasonable apprehension of prejudgment.

The court was tasked with determining whether there were grounds to set aside the judgment and orders, and whether there was a reasonable apprehension of actual bias or prejudgment that warranted Justice Smith's disqualification from future proceedings. The court considered the principles of judicial impartiality and the threshold for establishing apprehended bias, particularly in the context of the duty of candour expected from judges.

The court found that there were no undisclosed matters that would have led to a reasonable apprehension of actual bias, nor did Justice Smith's statements on fact and law in the earlier proceedings ground such an apprehension. The court held that the application to set aside the judgment and orders was without merit, and that there was no reasonable apprehension of prejudgment warranting Justice Smith's disqualification from future proceedings. Consequently, the application was dismissed in its entirety.

Orders