Wentworth v Rogers

[1988] HCATrans 219

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

Wentworth (8)

Fourth Respondent

PETER BROUGHTON

Fifth Respondent

GEOFFREY GRAHAM

Sixth Respondent

WENDY ANN NIESCHE

Seventh Respondent

TERRANCE :MORAN

Eighth Respondent

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CYNTHIA ROGERS

Ninth Respondent

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

WILSON J	leave to appeal
-TOOHEY J
TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 SEPTEMBER 1988, AT 3.32 PM

Copyright in the High Court of Australia

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WILSON J:  Ms Wentworth, we note your appearance.

MS K. WEN'ThORTH: Yes, Your Honour, the application is exactly

the same one.

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

my learne friend, MR M.J. SLATTERY, for the first,

third, sixth, seventh, eleventh, twelfth, thirtienth,

fourteenth, fifteenth, sixteenth and seventeenth

respondents.	(instructed by Phillips Fox and Mallesons
Stephen Jaques)

WILSON J: You have changed your clients, apparently,

according to -

MR MEAGHER:  From the Court list, yes.

WILSON J: - - - the Court list, Mr Meagher. Yes, are there

any other appearances?

MR P. MENZIES, QC:  If Your Honours please, I appear with

my learned friend, MISS J.M. ORCHISTON, for the second,

fourth and fifth respondents. (instructed by Dunhill Morgan,

Tress Cocks and Maddox, and Aitkin.& Pluck)

MR M.J. SLATTERY: If the Court pleases, I appear for the eighth

respondent. (the Crown Solicitor for New South Wales)

MR J.J. STEELE: If the Court pleases, I appear for the

eighteenth resnondent.	(Hickson Lakeman &
Holcombe)

WILSON J: You are down as the nineteenth, but you are the

eighteenth, are you?

MR STEELE:  Eighteenth, yes, Your Honour. I think there is no

appearance for the nineteenth respondent.

WILSON J: Yes, I see, thank you. Now, Ms Wentworth, this is

an application for an adjournment on the same grounds

as you have advanced in the earlier application, is it?

MS WENTWORTH:  Yes, Your Honour.

WILSON J: You are at liberty to present the application.

MS WENTWORTH:  Thank you. Your Honour, I would press therefore

that there perhaps should be a ruling on section 57

because if Your Honours are going to rule in the same

way in a costs order against me, Your Honour, it would be,

I would put to the Court, extremely unfair that because
I am refused aid - legal aid to come up here by the

respondent I have a costs order put against me because I am unable to proceed in the Court according to the Court

rules. Your Honours, I find that a little hard to cope

with.

If Your Honours would perhaps bear with me, it seems

to me to be appropriate therefore to say to the Court that

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the matters which are raised in this particular

application are matters which Mr Justice Roden has

taken three weeks already with court hearings to look

at and has reserved his decision on for some five

weeks. From the comments that His Honour had to make

in the court, it is quite clear that His Honour has
gone away to consider the matters of fact involved in

these specific proceedings as to whether, in fact,

they set out a reasonable cause of action. I would

therefore say to the Court that perhaps, in this

case, there would be, as well as the statutory basis

on which I have put the basis for the adjournment, an

application for adjournment also on the basis that the

Court may well be very much assisted by waiting for

His Honour's determination in these matters; that the in relation to one of the respondents, Mr Graham,

which is a res judicata finding of fact of withholding

material fact evidence from the court.

TOOHEY J: Could I just interrupt you, Ms Wentworth? Are you

putting the application for an adjournment on the basis

that legal aid has been sought and that that application

has not finally been determined or are you putting it on

some other basis?

MS WENTWORTH:  No, Your Honour, I put it on that basis. I am

sorry, I rose to say that I am putting it on exactly the same basis as I put the previous application but

as well I am putting it on a further basis, Your Honour.

The history of the application for legal aid in this

matter is exactly the same as the history for the

application in the last matter. The two applications went

in together.

TOOHEY J: Well, that is what I understood to be the case, yes.

MS WENTWORTH: Yes, Your Honour.

TOOHEY J: Section 57 empowers the Court to:

adjourn the proceedings to such date on such

terms and conditions as it thinks fit.

MS WENTWORTH:  Yes, Your Honour.

TOOHEY J: Which, presumably, encompasses an award of costs

if thought appropriate.

MS WENTWORTH:  Yes, Your Honour.

TOOHEY J:  So, you may not be in any better or worse position

whether an adjournment is granted, if one were granted,

by reason of section 57 or by reason of some general

principle.

MS WENTWORTH: Well, I realize that, Your Honour, but I simply

have to put the arguments because I am coming up here

as a litigant who is being held out of Court. I would not

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be making the application for an adjournment if I could

be here with counsel. I would have complied with the

Court rule and I would be up here with Mr Gyles firing on

all four guns. But, Your Honours, since that is not possible and since I have to come to the Court, I am precluded - the Registrar told me that the Court would not

hear me in these matters.	I come to the Court therefore
to seek an adjournment.	I have notified the other

parties that I have to do that to comply with the Court

rules and because I am, with my best endeavours, seeking

to get funds to come up here and comply with the Court

rules then, Your Honours, it is a very strange situation

to be in to be then told, "Well, we will", as you have in

the last one, "grant you an adjournment but you have to

pay the costs of it."

WILSON J: It is not strange at all, Ms Wentworth. You are

seeking the indulgence of the Court.

MS WENTWORTH:  Indeed.

WILSON J: And in the last case which we should not be going back

to but for the sake of an explanation - in the last case the Court granted you that indulgence. But by reason of the history including,what I would venture to say, the

undue delay in seeking legal aid, after you received

the letter from the Court intimating that the matter would

proceed today and there would be no adjournment, you did

nothing for at least four weeks before seeking - after

getting that letter, before seeking legal aid. Now, that

is the sort of consideration in the totality of the
circumstances, bearing in mind that the Court is granting

you the indulgence of an adjournment, that activates the

discretion of the Court to award costs.

Now, I do not want you to answer that. I am merely

telling you, by way of explanation, so that you can

appreciate the reason that that order was made.

MS WENTWORTH:  Your Honour, could I just say that that four

week delay was not my fault. It was a matter of trying

to convince the solicitor that he would be able to do it

and then him sending off the application.

WILSON J: The Court has to take account of the facts as they

are, Ms Wentworth.

MS WENTWORTH:	Yes, Your Honour, I realize that.
WILSON J:	Is there anything else that you would wish to add

to your application for an adjournment of this matter?

MS WENTWORTH:  No, Your Honour, I am in the same situation as

I am with the previous matter.

WILSON J: Yes, thank you. Is there any opposition to the motion?

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MR MEAGHER:  Yes, may it please Your Honour.

WILSON J: Yes, Mr Meagher.

MR MEAGHER:  May I first tender, Your Honours_- and I am sorry

I have onlygot one copy of them - three photostat copies

of letters from the High Court to my instructing

solicitors dated 3 February this year, 26 April and

17 May?

WILSON J: Yes.

MR MEAGHER: The purpos~:nSf that is to demonstrate that the matters

had been tentatively fixed on a number of occasions.

WILSON J: Yes, they may be consistent, Mr Meagher, with the

construction of events that does not lay the blame at the

door of the applicant.

MR MEAGHER:  With respect, none of those matters failed to come

on because of anything we did.

WILSON J:	I beg your pardon?
MR MEAGHER:	None of those matters failed to be heard because of

anything we did.

WILSON J: No, but, likewise, it may not have been because of

anything that the applicant did or did not do.

MR MEAGHER: Well, with respect, it is difficult to see why a

tentatively listed matter was not permanently listed if

nobody intervened.

WILSON J:  It may not have been possible to list everything

that was ready to proceed.

MR MEAGHER:  Yes, that is certainly a theoretical possibility.

My understanding - and, of course, I am not in a position

to prove it - is that the tentative listings did not

finalize because it did not suit Ms Wentworth, hence the

asperity of the exhibit which was then tendered to

Your Honours in the previous matter. But I take it I may

act.on the assumption that the evidence tendered in the

previous case is evidence in this application?

WILSON J: Yes, you may.

MR MEAGHER:	There is another letter, if I may hand Your Honours a photostat, of what I understand to be 13 September,
although the typewriting is not clear, of Ms Wentworth to the
Legal Aid Review- Cotmnittee with a copy to the High Court
Registry which shows that Ms Wentworth has aborted the
application to the Legal Review Cotmnittee.

WILSON J: Has what?

MR MEAGHER:  Aborted it, a factor,one would have thought, she would

have made plain to the Court in the previous application.

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WILSON J: Yes.

MS WENTWORTH:  Your Honour, I must rise to ask where a confidential

document between myself and the Legal Aid Review Committee

has been obtained by an outside person because it is a matter
of statutory prohibition, it is a criminal act as a

matter of crime, section 26?

WILSON J: The Court is proceeding with your application for an

adjournment, Ms Wentworth, and I do not think we ought to

be diverted into another inquiry at this stage. Yes,

Mr Meagher?

MR MEAGHER:  That does seem to demonstrate that the Legal Aid

Review Committee was determined to give its decision by yesterday but if it had done that section 57 would

not be applicable.

WILSON J: It is not unreasonable, however, Mr Meagher, is it,

to say that if counsel could not be briefed,
consistently with an approval given some time yesterday

and a matter with the history of this matter, that it might spark

an application by the counsel himself or herself to

say that they simply were not ready to go on?

MR MEAGHER:  Utterly so, but it depends on what basis the

application is being put. If it is being put on a

purely statutory basis then other considerations apply. If it is being put on factors apart altogether from the

statute, I appreciate the force of what Your Honour is

putting to me. If we may consider the first basis at

the moment; In our respectful submission section 57

does not apply, and I understand that Ms Wentworth

is asking the Court to apply section 57, if that is the

basis in our respectful submission that does not

apply and for these reasons: first, it is, after all,

only an Act of the Parliament of New South Wales. It

refers to "a court or tribunal". It does not define what

courts or tribunals it is talking about.

The New South Wales ACTS INTERPRETATION ACT says that

prima facie, references to anything in a New South Wales'

Act refers to that New South Walea--- · ·

So, on ordinary principles of statutory construction, one

would have thought that ''Where it appears to a" - New South

Wales - "court or tribunal" et cetera.

Secondly, if, contrary to that submission, the

section is meant to embrace the High Court of Australia

inter alia in the expression "court or tribunal" it is

beyond legislative competence. A New South Wales court simply cannot do that. The CONSTITUTION gives power to

Parliament to regulate what matters can or cannot come to

the Parliane:lt under the JUDICIARY ACT. The Parliament

has declared that this Court can hear special leave

applications and this would seem to be an attempt to

impede the Court in doing that. On that basis, we would

respectfully submit it is beyond legislative competence.

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But, in the third place, we would suggest, particularly in light of the last exhibit, that my learned friend

has not satisfied (l)(b) because clearly she cannot

claim in aid the section when her own actions have

frustrated the operation of the section and likewise

she has not demonstrated the fulfilment of paragraph (c);

indeed, to the contrary. This is the history of the

matter as it now appears: the application for special

leave was filed over 12 months ago - about 15 months

ago; Ms Wentworth has made no application for legal aid

between August last year and today and has not satisfactorily

explained to the Court why she has not; three tentative

fixtures have been made which never came to pass; the

Court then said, with the authority of the Chief Justice,

this matter must be heard in September; ~s Wentworth

regarded that as, apparently, of no effect and dilly-dallied

for another month or so before she lifted her little finger

to apply for legal aid when she must have known long

before then it would be necessary; and when the appeal

review connnittee looked like giving its decision she

suddenly removed the basis of their jurisdiction in order

to preserve her section 57 rights.

Now, if her application is made on the basis of

section 57, in those circumstances it simply must fail.
If she is asking for an adjournment on wider rights,
simply on normal discretionary grounds such as the

Court administers, in our respectful submission, in

the circumstances - I appreciate this submission is not
so strong - the Court should refuse it bearing in mind

that nearly 20 respondents have been waiting around for

a year to try and get the case on and have now, for the

first time, had their opportunity to do so, and bearing

in mind the strong warning that this Court, under the

authority of the Chief Justice, has given Ms Wentworth.

WILSON J: Thank you, Mr Meagher. Does anyone else - yes,

Mr Menzies?

MR MENZIES:  Thank you, Your Honour. Your Honours, might I just

add one brief matter to the historical background and

it is simply this: that on 15 April Ms Wentworth informed

Mr Barnes, a solicitor instructing me, that she needed

legal aid for the High Court and had not even applied for

it. I will tender, if Your Honours please, a file note

from the file of Mr Barnes whereon. that note is recorded.

WILSON J: Yes. Could you show it to Ms Wentworth.

MR MENZIES: Certainly.

MS WENTWORTH:  I object to the tender of this, Your Honour.

It appears to be written at two different times. It is in

two different inks, Your Honour. It does not appear to be

one document, it appears to be two separate notations. The

second notation is not dated.

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WILSON J:	Do you wish to press the tender, Mr Menzies?
MR MENZIES:	Yes, I do, Your Honour.

WILSON J: Well, let us see it.

TOOHEY J: What is the basis of its admissibility, Mr Menzies?

MR MENZIES:  Your Honour, it is admissible under the EVIDENCE

ACT, Your Honour.

TOOHEY J: Which particular section?

MR MENZIES: Section 14D, Your Honour. It is a business record.

I am not aware of the section under the Commonwealth

EVIDENCE ACT, Your Honour.

WILSON J:  The Court will take the letter in,noting

Ms Wentworth's objection to it.

MR MENZIES: If Your Honour pleases.

WILSON J: If it is necessary to give it further consideration,

we will do so.

MR MENZIES:  Thank you, Your Honour. The relevance of it,

in my respectful submission, is that it is a clear

indication that, certainly as at April, Ms Wentworth was

conscious of a need to apply for legal aid and if that is

so it lies ill in her mouth to suggest, as I understand

she suggests, that she did not apply for legal aid because
initially she thought she had the funds and then in,

I think, July, if I understand what she has said correctly, when it became apparent that she did not and

when she was involved in some long litigation, she then

made the application. Save from that, I do not wish to

add anything to the submissions of my learned friend,

Mr Meagher, which I adopt, with respect, Your Honours.

WILSON J: Yes. Thank you, Mr Menzies.
MR STEELE:	I do not wish to add anything, if Your Honour pleases.

WILSON J: Thank you, Mr Steele. Mr Slattery?

MR SLATTERY:  I do not wish to add anything either, Your Honour.

WILSON J: Thank you. Yes, do you wish to say anything by way

of reply, Ms Wentworth?

MS WENTWORTH:  Only a couple of comments on Mr Meagher's submissions,

Your Honour. The Act is not beyond legislative competence

and, Your Honours, in support of that I would quote

Professor Crawford in an article, "Developments in

Federal Jurisdiction", a paper delivered in October 1987 at the University of Sydney Faculty of Law, Continuing

Legal Education. Your Honour, he sets out there - - -

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WILSON J:  Ms Wentworth, it may be that we need not trouble

you to reply because the Court is prepared to grant the

adjournment you seek, subject to conditions.

MS WENTWORTH:  Thank you, Your Honour.

WILSON J: Unless there is something pressing that you feel

you should say or need to say?

MS WENTWORTH:  Your Honour, the only thing that I can add is

that certainly by the middle of the year I knew that I

needed legal aid and I would have to apply for it.

I then started pressing the solicitor who had the conduct

of the other matter to act for me. He declined to put the

application in and, Your Honour, it was not until

5 August that I convinced him that he, indeed, could,

with counsel who were already thoroughly briefed in this

matter, cope with doing these two applications for me

as well and, Your Honour, that is all I can say in

relation to the gap that occurred between the letter of

this Court and 5 August.

WILSON J: Thank you, Ms Wentworth.

I want to make it clear that the Court is not

proceeding on the basis of section 57 of the LEGAL

SERVICES COMMISSION ACT. It chooses not to rule on the

question of its application but there is, of course, recourse to general principle available to the Court in the conduct of its business and notwithstanding the

powerful reasons that have been advanced for refusing

an adjournment, the Court bears in mind that this is the

first occasion on which there has been an in Court

application for an adjournment. It bears in mind the

consideration that justice must be seen to be done and

it therefore proposes to grant the adjournment sought

by Ms Wentworth but on the condition that she be ready

to proceed by counsel at the next sitting of the Court

listed in Sydney which, as I have said before, I

understand. will be Friday, 14 October.

So, the application for an adjournment is granted subject to that condition.

MR MEAGHER:  May it please Your Honour. We would ask for

costs, if Your Honour pleases.

WILSON J: Yes, Mr Meagher.

MR STEELE:	We, also, would ask for costs, if Your Honour pleases.
MR MENZIES:	As do we, Your Honour.

WILSON J: Well, we are back where we were, Ms Wentworth, in the

earlier application. Have you anything to say why the

application for costs should not be granted?

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MS WENTWORTH:  Your Honour, would it be reasonable to ask that

the costs abide the outcome of the application for leave

to appeal? I think that, perhaps, would be a possible

proper resolution of the matter. We are going to be back

here in October and perhaps rather than ruling on that

now, Your Honours, if Your Honours could leave that until

we return to the Court in October?

TOOHEY J: The difficulty with that, Ms Wentworth, is that the

adjournment is brought about by circumstances not

attributable to the respondents and whatever the outcome of the application for special leave to appeal might be,

that consideration remains just as valid now

as it would be in a month's time.

MS WENTWORTH:  Your Honour, I am in the same circumstances. The

adjournment application is not brought about by me but

by the rules of the Court and I am in the situation of

having to appear to apply for an adjournment to comply with

the rules and regulations which I must comply with.	I
cannot go on today because I cannot pay counsel.	I am

therefore precluded from doing anything so I have to

apply for an adjournment. Your Honours, it seems to me

that it is not, in fact, my fault either that I cannot

proceed today. I am applying for an adjournment

appropriately to comply with the rules of Court. There

is nothing further I can say, Your Honours.

WILSON J: Yes. Well, thank you, Ms Wentworth. I am bound to

observe that whatever the difficulties you may have had

with your solicitor, they are not matters that stand

against the fact that your opponents have been brought

here today for a listed application for special leave.

You have sought an adjournment which the Court has been

prepared to grant and the Court, on the application of
general principles in those circumstances, believes that
the adjournment must be granted with an award of costs

to the respondents.

MS WENTWORTH:  Yes, Your Honour.

WILSON J:  I repeat that the consideration that is of dominant

importance, it seems to us, in this matter is the delay in

seeking legal aid and a delay that, probably in the light

of all the circumstances, precedes the difficulties to

which you have referred with your solicitor, bearing in

mind the application for special leave was made in

August 1987. Admittedly, you may well have been in a

position to hope that you could secure counsel but it

would not seem to explain the late lodgment of the

actual application for special leave and this is a

relevant consideration attracting the exercise of the

Court's discretion with respect to costs.

So, the application for special leave will stand

adjourned to be listed for hearing at the October sittings

of the Court in Sydney and the adjournment is granted with

costs to the respondents.

AT 4.02 PM THE MATTER WAS ADJOURNED SINE DIE

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