Wentworth v Rogers

[1988] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

Office of:the Registry

Sydney No S87 of 1987

B e t w e e n -

KATHERINE WENTWORTH WENTWORTH

Applicant

and

GORDON JOHN ROGERS

First Respondent

WILLIAM C. WENTWORTH

Second Respondent

FREDERICK NIESCHE

Third Respondent

KENNETH ABRAHAMS

Fourth Respondent

PETER BROUGHTON

Fifth Respondent

GEOFFREY GRAHAM

Went:worth{10)

Sixth.Respondent

WENDY ANN NIESCHE

Seventh Respondent

TERRANCE MORAN

Eighth Respondent

CYNTHIA ROGERS

Ninth Respondent

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TONI ROGERS

Tenth Respondent

JOHN HEGARTY

Eleventh Respondent

KATRINA GROSVENOR

Twelfth Respondent

ALEXANDER SHAND

Thirteenth Respondent

JOHN LLOYD

Fourteenth Respondent

JOHN BARTOS

Fifteenth Respondent

STEVEN RARES

Sixteenth Respondent

PHILLIP TWIGG

Seventeenth Respondent

RICHARD BURBIDGE

Eighteenth Respondent

GEORGE RITCHIE

Nineteenth Respondent

Application for special leave

to appeal

WILSON J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 OCTOBER 1988, AT 3.16 PM

Copyright in the High Court of Australia

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Wentworth(l0)

MR R. BURN: May it please the Court, I appear for the

a·ppl icant. (instructed by Carneys)

MR R.P. MEAGHER, QC:  May it please the Court, I appear with

· -my learned fri£.nd, MR M. J. SJ.ATTERY, for a number of

--the respondents. The first, third, sixth, seventh,

eleventh, twelfth, thirteenth, fourteenth, fifteenth,

sixteenth and seventeenth. ( instructed by Phillips Fox

and Mallesons Stephen Jacques)

WILSON J: The listing is precisely accurate. Yes,

Mr Meagher.

MR M.J._SLATT~R~:  May it please the Court, I ~pp7ar for

the eighth respondent with my learned Junior,

MR T.A. ALEXIS. ( :instructed by Cro.vn Solicitor for New South Wales)

MR P. MENZIES, ac:  If Y~ 1-Ionours please, I appear wi~ my learned friend,

MISS J . . ORCHISTON·,fur the second, fourth and fifth ~espondents.

(:instructed by Dunhill M::>rgan, Tress Cocks &.Madcbx, and Aitkin & Pluck

MR P.J. DEAKIN: If Your Honours please, I a1\)ear for the

eighteenth respondent. ( ·instructed by t{ickson, Lakeman

and Holecombe) \

WILSON J:	Mr Burn.
MR BURN:	Your Honour, may I hand up copies of some cases?

WILSON J: Certainly.

MR BURN:  REGISTRAR OF COURT OF APPEAL V COLLINS, REGISTRAR OF

THE COURT OF APPEAL V WILLESEE, EUROPEAN BANK V WENMRI'H,

but a different Wentworth, Your Honour, and the

an unreported case. May I also hand up, for convenience,	judgment of ATTORNEY-GENERAL V KATHERINE WENTWORTH,
copies of my submissions.

WILSON J: Thank you.

MR BURN: Your Honour, the reasons for special leave to be

granted in this case are based on public interest,

firstly because of the nature of the people who~: it

is alleged, have given false evidence; because of

the false evidence of a solicitor; a change in

position by a doctor and the forgery of hospital

documents; public interest in the apprehended bias

of the court and the grave injustice to Miss Wentworth if special leave is not granted. '

The points we make are that,firstly, in the case

from W:rlch it is appealed there were three different

notices of motion. This is important because there
was discussion about severance and there was a

discussion of a mixture of matters, but there were,

in fact, three different notices of motion; there

was no requirement for severance perhaps, if that

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was in the mind, because three existed. There was

no duplication between them -

WILSON J:  But some of those three, if not all of them, must

have brought together a number of defendants.

MR BURN.:-- Indeed, there is a commonality of defendants.

WILSON J: And is not that the objection, that really the

proceedings required the Court to, consider

indepedent allegations against different defendants

that were lumped in together? Was not that the

abuse of process that is referred to?

MR BURN: Well, abuse of process was covered in a variety

of ways and it was mentioned that there were a

number of defendants in a -:ariety of matters, but that was not dilated upon by the Court of Appeal. mixtures, it was said, of criminaland. civil matters. There was certainly the objection that there were

We would submit that, in fact, if that were so - for instance, one notice of motion dealt basically with

contempt - well, that could have been simoly severed -

not so much severed but it was·a

separate notice of motion. Indeed, the applicant had,

at one stage, endeavoured to join all together, in

one big notice of motion, and this had been refused.

There were three different things before the Court.

It was suggested in the judgments, particularly

of Mr Justice Samuels, and I will come to those in

a moment, that there was some duplication. But, in

fact, the contempts in the notice of motion of

7 October 1986 were specifically different to those
in 3 July. The first was to do with false swearing

and the like, and the second one was to do with

the provision of certain material to a judge.

TOOHEY J:  Mr Burn, was not the criticism made by- the Court

of Appeal made of the fact that the proceedings against

the various respondents sought to have dealt with

summarily charges which were criminal in nature and

which constituted indictable offences?

MR BURN: Basically, Your Honour.-that was certainly said. But

it was our submission that we were asking for relief

for contempt. The acts of contempt may well have been

regarded as criminal, but it was contempt. The acts

of contempt were different. For instance, in

EUROPEAN BANK the act of contempt was striking somebody

in the court. The court did not require that person

.to bei:tried, but he was brought forward for contempt.

There was also a suggestion of duplication in relation
to one particular person, that was Mrs Toni Rogers.

Perhaps if I went directly, since we are talking o~

abuse of process, to paragraph Sin my submission.

Mrs Toni Rogers is dealt with in paragraph (e) on page 3,

or subpara (e). This was cited as an example of

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a person being brought forward on the same thing

twice. The fact was that, in the first notice of

motion, Mrs Rogers and, in fact, Mrs Cynthia Rogers

had not been served. They were therefore struck out.

They were subsequently included in the notice of

motion of 3 July 1987, but that was the first

time they were served. They were not served twice.

If I could go to the other matters of abuse of

process: subpara (a) which is on page 2, said that what

the claimant seeks would entail the court embarking

on a summary trial of criminal offences, such as

perjury and so on. Now, it is our submission that

that particular notice of motion, largely - there

are a couple of exceptions which I will accept -

asked for declaratory relief for tortious acts.

These acts, of course, can be criminal. You can

have both, of course, but they werP. asking for

declaratory relief which implies a civil wrong.

A criminal trial,therefore, was not suggested and

so the comments on the difficulty of mounting one are

ane not really applicable.

In subpara (b) there, now we come to the statement

that the court could not contemplate trying 19

charges made iri one document against 19 respective

defendants. Well, we did not make such a claim for

a trial for perjury and so on, but it would be our

submission that if there are a lot of people and

there are a lot of charges, this should not daunt

the court from dealing with it if that is tvhat justice

requires.

Subpara (c) on the next one, still on abuse of

process; we have been asked to try a defamation case,
assess damages, exercise disciplinary functions of

the c'ourt,and the legal profession, act as a

committing magistrate - that is, they were asked to

commit. Well now, we would submit~respectfully,

that they are functions of the court, they are powers

of the court. If the ourt found it necessary the

court could deal with them and it would therefore

be an abuse of process to ask· the c.ourt to do those

things. .rhe claimant bringing into court, in one

process, claims and charges against all those she

feels she has got a right in order to determine all

the matters in dispute between them.

Well, if this is in er~or, it is the same error

that the Bar Association fell into in the

NEW SOUTH WALES BAR ASSOCIATION V. MUIRHEAD where

the Bar Association alleged both contempt and asked
for an injunction at the same time; they were in the same process. The court did, in fact, decide it

would not deal with the two things there but certainly

it was not regarded as an abuse of process. So if

there was an error there it is due to a misunderstanding

of ~ection 63 of thP. ~UP~EME COURT ACT.

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Now, I have already spoken about Mrs Rogers.

Could I go to the apprehended bias matter which

starts at thebottom of pa~e 3. When the bench

came on - and it is shown in the first page of the

transcript- the applicant made an objection to the

composition of the court. Their Honours declined

---co stand down.Well, that, of course, is within

their prerogative, there is no disputing that.

However, in the view of what we have put forward

earlier, showing that there was a misapprehension

of the facts in relation to Mrs Rogers, for instance;

in relation to Mr Rogers also, who was mentioned

in subpara (e) at 73 point 4 of the appeal book:

The same may be said of Mr Rogers and

Cynthia Rogers.-

and the other matters that I have mentioned, and the

fact that there was a lengthy submission on the basis

of apprehended bias, then, well, the words in the

Court of Appeal were:

In the mind of a reasonable man, it might

be determined that Your Honours, sitting

on such an application might be perhaps

suspected of some bias.

Now, we are not suggesting bias, but the public

interest is in the apprehension and the like.

On page 5 there is a mention of the CRIMES ACT,

this was in relation to Miss Wentworth wishing to

charge some people with perjury. This was a

proper application and it itself cannot be regarded

as an abuse of process. It was simply a proper

application which was not dealt with, as it

happened.

Now, it was Miss Wentworth's good fortune that

the Attorney-General took an action for her in

relation to vexatious litigation. The decision on

that is with Your Honours. The significant things

are that, firstly, Mr Justice Roden, when he was

obliged to look at what had gone before, found that

there was evidence of forgery; there was evidence
of the withholding of material evidence by an
officer of the court; and there was evidence that a
doctor.had significantly changed his position. He

said that this was but the first point, you cannot

prove conspiracy on one thing, but it was, as he

said, a starting point. It is our submission,

Your Honours, that if this starting point cannot

be developed in view of these findings and in view

of the fact that one of the respondents has, for
instance,been found to be withholding material
evidence, then this is pretty important and a vital

thing to have determined. In paragraph 13,

Mr Justice Roden said - and this really affects

what we are here today about - and I am simply

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adopting his better wording than mine:

I am not satisfied that freedom to pursue

her ancillary allegations against Mr Rogers

and others, is not necessary to a proper

pursuit of Miss Wentworth's substantive claim.

It is our submission, Your Honour, that the matter is

worthy of a hearing. This is dealt with in

GENERAL STEEL and listed in the Muirhead judgment.

We would submit that even though it might take a

major hearing, this thing has been going on for

many, many years. It is quite possible if we have

to start again it will go on for many, many more

years and we will be here again. It would be in
the interests of justice - preventing a grave

injustice to Miss Wentworth; it is in the public

interest because there is clear evidence already

of the false evidence of an officer of the court;

a change of position of a doctor; forgery of

hospital documents and apprehended bias, and on

those bases, Your Honours,we would ask for special

leave to appeal. If there is nothing further.

WILSON J:  Thank you, Mr Burn. 'Ihe court does not need to· ,trouble

counsel for the respondents. Mr Burn has clearly

said all that can be said in support of the

application but, in the view of the Court, the

decision of the Court of Appeal is clearly correct.

In that event, there is no reason to grant the application for special leave to appeRl and the
application is refused.

MR MEAGHER:	I ask for costs.
WILSON J:	I do not suppose you can oppose an application

for costs, Mr Burn?

MR BURN:  WeJ.f, we would, Tour Honours. This case, as yo~ can see, did have

merit, it has considerable merit to bring forward.

The findings that I have been dilating upon are

significant. Because of the previous case,

Your Honours are better aware of the situation than

perhaps one would find normally. It is our

application that it would be appropriate not to

award costs in this case.

WILSON J: There is no basis shown for a refusal of an

order for costs in this matter.	The Court therefore
refuses special leave to appeal -	the application
with costs.

AT 3.36 PM THE MATTER WAS ADJOURNED SINE DIE

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