Wentworth v Rogers

[1988] HCATrans 210

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S75 of 1987

B e t w e e n -

KATHERINE WENTWORTH

Applicant

and

GORDON JOHN ROGERS

First Respondent

LEGAL AID COMMISSION OF

NEW SOUTH WALES

Second Respondent

Application for special

leave to appeal

Wentworth(?)

WILSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 SEPTEMBER 1988, AT 2.38 PM

Copyright in the High Court of Australia

SlTll/1/RB 1 16/9/88

MS K. WENTWORTH:	I appear in person in this matter, Your Honour.
MR J. SLATTERY:	May it please the Court, I appear for the

first respondent in this matter. (instructed by

Phillips Fox)

MR M.F. GRAY, QC:  May it please the Court, I appear with my

learned friend, MR P.A. JOHNSON, for the second

respondent, the Legal Aid Cormnission. (instructed

by the Crown Solicitor for New South Wales)

MS WENTWORTH: This is an application for an adjournment of

this matter, Your Honour.

WILSON J:  Can I ask what is the attitude of the respondents

to the application for an adjournment.

MR SLATTERY:  Your Honour, on the part of the first respondent

it is opposed.

MR GRAY:  Similarly on the part of the second respondent.

WILSON J: Thank you. Yes, Ms Wentworth.

MS WENTWORTH:	Your Honours, I would hand up to Your Honours some ex.tracts from the LEGAL SERVICES COMMISSION ACT
1979, now known as the LEGAL AID ACT and the
amendment of that Act, the LEGAL AID COMMISSION
(AMENDMENT) ACT 1987. It might be easier perhaps for
Your Honours to follow.

WILSON J: Which sections do you draw our attention to,

Ms Wentworth?

MS WENTWORTH:  To start with, section 57, Your Honour. Perhaps

if I start with section 56, Your Honour, because

section 56 is the section of the LEGAL AID ACT,

Your Honour, which entitles a person who is

dissatisfied with a determination of the Cormnission

to appeal to the Legal Aid Review Cormnittee.

WILSON J: Yes.
MS WENTWORTH:	Going to section 57, Your Honours, 57(a)(i) and (ii)

then deal with that matter and the provision at the

end of section 57 is that once section 57 (a)(i) or (ii)

have been complied with, then -

the court or tribunal shall adjourn the

proceedings to such date on such terms

and conditions as it thinks fit.

This is a piece of State legislation but I put to

the Court that it is effective and binding upon this

Court and on all federal courts, Your Honours. The

LEGAL AID COMMISSION ACT was amended in 1987 to vest

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in the New South Wales Legal Aid Commission all the

authorities of the Commonwealth and to merge with the

New South Wales Legal Aid Commission the Australian

Legal Aid Commission and its powers, authorities and

execution of its duties with the State of New South

Wales. That provision, Your Honours, was a new

provision of a section 72A within the group of

papers that I have given you and, Your Honours, I have marked it up. It is six pages into the AMENDMENT ACT,

Your Honours.

Reading section 72A, it sets out the Commonwealth/

State agreement or arrangement which has been entered

into. This Act was assented to on 27 March 1987 and

that agreement between the States and the Commonwealth

took place on or about 23 April 1987. The result of

the co-operation and agreements between the State and

Commonwealth, when one goes back to the beginning of

the Act and Schedule 1, the Australian Legal Aid

Office is defined. That is the first page of the

effective provisions of the Act, Schedule 1:

"Australian Legal Aid Office" means that part
of the Community Affairs Division of the

Attorney-General's Department of the

Commonwealth that is designated the Australian

Legal Aid Office and that operates in New

South Wales.

Variations then are made through the New South Wales

Act, Your Honour, continuing through Schedule 1.

Going to the next page noting at section 8 which is marked up (3):

Section 8(1)(bl)-

2 persons nominated by the Attorney-General

of the Commonwealth;

Then at (4):

Section 10(2)(gl) -

provide officers and agencies of the

Commonwealth concerned in the provision

of legal aid with such statistical and
other information as they may reasonably

require;

And, Your Honours, the amendments continue on

through the Act. The next page, section 37(l)(c):

1\fter "Minister of the Crown", insert "for

New South Wales or the Commonwealth".

Section 37(l)(d):

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After "Crown" wherever occurring, insert

"in right of New South Wales or of the

Commonwea 1th ii •

We then come to the crucial section, 72A.

Section 72A provided that:

The State may from time to time enter into

an agraement or arrangement with the Commonwealth

for or with respect to -

(a) the operation of the Commission;

how money are to be spent, priorities to be observed;
at (d), transfer of staff; over the page, (e), the
sharing of operational costs and (f), the taking

over, possession and use by the Commission of

offices, et cetera, and (2) sets out any problems with

inconsistency.

Your Honour, the merger day is then set out at

the bottom of that page at Part 5 and that took

place, as I have just informed Your Honours, in

April 1987. Going over to the next page, Your Honours, the Schedule, ".Am::mdm:mts to the Legal Aid Commission
Act 1979 Relating to the Merger", and then sets out

the provision of legal aid provided by the Australian

Legal Aid Office is defined at the beginning of the

Act.

Paragraph 20.(2):

Where, before the merger day, the Australian

Legal Aid Office was performing services on

behalf of a person by way of legal aid, then,

as from that day, the services shall, so far

as is necessary, continue to be performed on

behalf of the person by the Commission.

And down to clause (5), Your Honours:

For the purposes of subclause (4), the

Commission shall be deemed to stand in the place

of and shall have all or any of the rights, carrying out of the services referred to in
duties and obligations of the Australian Legal

that subclause before the merger day.

Now, what I am putting to Your Honours is that the

clear legislative intention is that all ..... co-operation

of the Commonwealth duties are now taken over by the

State Commission in accordance with the agreement for

merger and that therefore the terms of the main Act,

as to section 57, should be taken to be understood to

refer to all federal courts as well as State courts.

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Quite obviously, Your Honours - and I suppose it becomes even clearer - there is an amdenment to

section 47 of the Act and that provides that an

exclusion can be applied to costs which are awarded

in the Family Law Court. It has now become

section 47(4)(d) - it is the exclusion of -

the Commission may decline to pay the whole,
or such part as it determines, of those
costs and those costs or that part which
the Commission has declined to pay shall be

paid by the legally assisted person -

and it then goes on to include:

an action brought under the FAMILY LAW ACT

1975 of the Commonwealth.

WILSON J: What is the relevance of this, Ms Wentworth?

MS WENTWORTH:  Your Honour, I am simply trying to put that the

effect of section 57 is effective as against
federal courts and the High Court, as well as against

State courts, Your Honour. It is a provision for

a statutory adjournment when 57(a)(i) or (ii) have

taken effect, and the situation is at the moment that

the Legal Aid Review Committee has before it matters

for determination.

Now, to support the argument further, and I

think that it follows through, there has been also

cross-vesting legislation set up in 1987 and endorsed

and assented to in 1988, which means that State courts

may send matters over to federal courts and federal
courts may send matters over to State courts, and

that each court is vested, basically, with the

jurisdiction of the others to deal with matters,

except in respect of certain prescribed matters such

as appeals in certain circumstances and in respect

of the Trade Practices Commission in certain

circumstances.

It appears that when one looks at the AMENDMENT

ACT to the Legal Aid Commission the cross-vesting provisions set out both as Commonwealth .and State

legislation that the intention now within the Legal

Services Commission is that section 57, in its

statutory provision for an adjournment, would apply

to federal as well as to State courts. That is the

point which I was raising before Your Honours.

I think that the constitutional basis which

gives the validity to that legislation would be
found in section 5l(xxxvii) or (xxxviii) which are

sections under which States can apply to the

Commonwealth. In this case this has happened in every

State in Australia so that there will be uniform

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legislation in respect to the provision of legal aid

in respect of all matters now controlled by the States within their separate jurisdiction. The cross-vesting legislation then, Your Honour, coming

together with it has allowed wide jurisdictional

procedures to occur between both the States and the

Cormnonwealth and also interstate as well and the

provisions therefore, I would put, Your Honours,

of section 57 would apply to this Court as well as to

a State court.

WILSON J:	Do you bring yourself within them, Ms Wentworty?
MS WENTWORTH:	Yes, Your Honour.
WILSON J:	The provisions of section 57?
MS WENTWORTH:	Yes, I do.

WILSON J: That a party to the proceedings has appealed and that

the appeal has not been determined?

MS WENTWORTH:  Yes, Your Honour. And the second section is

that a party intends to appeal in accordance with

section 56. Your Honour, to make it quite clear as

to what I had done, I had lodged an appeal with the determined. A solicitor sent in that appeal. It was

not supported by sufficient documentation. I have

asked the review committee to wait until such time as

I have provided them with full documentation, searing in mind the amendment in section 56 which allows for

a period of 28 days after the date of the notice of determination of the Legal Aid Cormnission, and that

28 days will not be up until 28 September. So I am

still well within time to lodge a much fuller appeal

with the Legal Aid Review Committee and to support

it with the documentation that is appropriate.

WILSON J: Thank you. Yes, Mr Slattery.

MR SLATTERY: If it is appropriate, Your Honours, may I

briefly deal with the matter apart from section 57,

and then come to section 57?

WILSON J: Yes.

MR SLATTERY:	Your Honours, my client is the former husband of the appellant and this is one piece of a mass of
litigation which has occurred between not only the
appellant and my client, but the appellant and many other persons, as this and the following piece of
litigation - it is evidence from the appeal books
that is so.  The situation is that this application
for special leave was first filed some 15 months ago,
in July of last year. It was indicated to us that it

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was tentatively to be put in the December list of

last year and then it has been indicated to us on

subsequent occasions that it may be put in other

lists. It is now in this list and I believe in

July ot this year that a letter was sent by the

Court to the appellant saying that no adjournments

would be granted to her on this occasion.

WILSON J: Is the delay in listing, for example, the reason

it did not come on in December and subsequently

attributable to any particular party?

MR SLATTERY:  I am not sure about that, Your Honour. I do not

know the cause of it. I understand it r~snot been

formerly listed although there have been indications

given to us that it was going to be. In any event,

that would appear from the Court file, Your Honour, but

I understand that at least on one or two previous

occasions there has been an application to the Registrar

the matter not be put in the list by the appellant.

Now, there is now suggested that a recent application

for legal aid should be something which should delay

this Court's determination of the matter. Your Honours,

the first instance trial of this matter took place in

November and December of 1986. There was no

application for legal aid made then. The matter was

tried in the Court of Appeal in the first part of

1987; there was no application made by the appellant

for legal aid in respect of that. It was only over

12 months after the special leave application was

filed to this Court that it appears the appellant
thought fit to file any application for legal aid and

it is the delay that occurred in that process which

has caused the apparent problem today.

Can I say this, Your Honours, that quite apart

from section 57, there must be an end to this
litigation at some stage and it is evident from a

chronology which I can hand up to Your Honours, if

Your Honours thought it appropriate, that there have

been some 13 or 14 separate sets of proceedings

involving certainly the appellant, many of them my

client as well. They have been proceeding certainly

in full force since about 1981 and there has to be an

end from all the respondents' point of view to this

litigation at some stage. I believe there would be,

on the Court record, the letter of warning which was

sent by the Registrar to the appellant about what the

situation would be today.

Your Honour, the appellant is quite - - -

WILSON J: What date was that letter?

MR SLATTERY:  I believe it was July of this year, Your Honour.

23 June. I have a spare copy, if I could hand it up

to Your Honour the presiding Judge.

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WILSON J: Thank you.

MR SLATTERY:  It is evident from the letter that it was

apparently sent upon the direction of the

Chief Justice.

TOOHEY J: At this stage, Mr Slattery, Ms Wentworth is putting

the matter on the basis that section 57 obliges the

Court to adjourn the application.

MR SLATTERY:  Your Honour, there are two answers to that: one

practical and one legal. If I can come to the

practical answer first, and there is an initial

obstacle that I must outline to the Court. I

understand there has been some correspondence between

the Legal Aid Commission and the Court - the Legal Aid Review Committee and the Court concerning the progress

of Ms Wentworth's application for legal aid at the

review committee level and because of the confidentiality

provisions in the LEGAL AID COMMISSION ACT, I simply do

not know precisely what that correspondence is, but I

believe that it is on the Court file and in order to

put this part of the argument, I would ask, firstly, if

it is on the Court file and whether I may have access

to it. But I would, I believe, need the consent of
the appellant for that purpose. But it appears to
the first respondent that the question of the bona fides

of the application for an appeal to the Legal Aid Review

Committee cannot really be properly considered on this

adjournment application without that correspondence

being considered.	So I make that application at
this stage.

TOOHEY J: What is it that precludes you from having access to

that material without an order of the Court?

MR SLATTERY: It is section - assuming it applies to these

proceedings - section 25(3) of the Act. I think the

appellant has handed up a copy of the Act.	I can
take Your Honours to it.

WILSON J: Yes, we have a copy of the Act.

TOOHEY J:. It.is the same section that was considered by the

Court of Appeal.

MR SLATTERY: Exactly, Your Honour.

TOOHEY J: For different purposes, of course.

WILSON J:  You wish to attack the bona fides of the application

for legal aid?

MR SLATTERY:	I do, Your Honour, but apart from the general matters I have outlined, I am short on precise
evidence to do that without access to this information, unless Ms Wentworth is prepareu to declare to the
SlTll/8/RB	16/9/88
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Court on what date she made the application for legal aid precisely and on what date the application for

an appeal was made.

WILSON J:  I was propusing to ask Ms Wentworth for that information

at an appropriate time, because it seemed to me to be

relevant to the correspondence that has been tendered,

the letter dated 23 June. Would you care to resume your seat for the moment, Mr Slattery, and I will ask

Ms Wentworth.

Could you tell the Court, Ms Wentworth, when you

first applied for legal aid in this matter and when

you received a decision on that application and the

subsequent steps?

HS WENTWORTH:  Your Honours, I have no objection to the Bench

having access to that information. It is the very

substance of the matter that my appeal to this Court

is based on, that the difficulty in getting evidence

in relation to grants of legal aid - - -

WILSON J:  It may be sufficient if you could simply answer the

question, give us the dates.

MS WENTWORTH:  Your Honour, I do not think that it is an

appropriate matter of information and since I am

here to argue precisely that point, to give to my

opposition. Now, Your Honours, I have no objection

to giving it to the Court and I have in fact prepared

a group of all the correspondence between myself and

the Legal Aid Commission for the information of the

Court and I am happy to hand those copies up to the

Bench, if that is satisfactory procedure.

WILSON J:  You see, you have applied for an adjournment on the

basis of an incomplete application for legal aid or

process of application of legal aid and in answer to

your application, it is submitted that there are

doubts as to the bona £ides of thea.y,lication and

that the question of when you applied may be relevant

to a consideration of that issue.

MS WENTWORTH:  Your Honour, let us just put that to rest

immediately~ As to the bona fides, the application

has been refused on the basis, by the Legal Aid

Commission, that I could not succeed against it, the

Legal Aid Commission. Now, Your Honour, that takes

me a sort of Catch 22 situation.

WILSON J:  You first applied for special leave back in July, I

think it was, 1987. Did you seek legal aid at that

time?

MS WENTWORTH: No, I did not, Your Honour. At that stage I

thought I would be in a position to fund counsel,

Your Honour, and I had thought, in fact, I would be in

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a position to fund counsel up until some months

ago. Now, Your Honour, I have just been in a three

week case with counsel funded by the Legal Aid

Commission in an application by the Attorney-General

in the court and legal aid was granted by the Legal

Aid Commission in that matter, and that matter ran

up until the third week in July - I am sorry, the

second week in August.	It started in the third week
in July, ran to the second week in August	I

received a letter from this Court in the last week in

June saying that they wished this matter to go on in September and, Your Honour, the application then for legal aid was made at the beginning of August. It

was some, I think, four weeks after receiving that

letter but it was all within this trial period. It

was three weeks while I was in the other court.

TOOHEY J:  When you say it was made in August, Ms Wentworth, are

you speaking of the application for legal aid or the

appeal to the review committee?

MS WENTWORTH:  No, Your Honour, I am speaking of the application

for legal aid. The preclusion from applying for legal

aid prior to that was that I had no solicitor who was

prepared to brief counsel. The solicitor that I had

in the matter in the lower court that I have just

referred to had all my papers and the matter in the

lower court has canvassed these matters that are before
the Court today, and he had not - he declined in fact
to make any application to the Legal Aid Commission to

take another case - he is a very small firm of

solicitors - until we were through the other matter.

TOOHEY J:  So it was August 1988 that the first application or

the only application for legal aid was made?

MS WENTWORTH:  Well, it has been made in respect of both matters,

Your Honour, before the Court today.

TOOHEY J: That was rejected?

MS WENTWORTH: That was rejected, Your Honour.
TOOHEY J:	Can you tell us when?
MS WENTWORTH: The rejection, I think, is 30 August. Would it	assist Your Honours to have this correspondence?

WILSON J: Yes, it may, Ms Wentworth. Have you a copy for

counsel, Ms Wentworth?

MS WENTWORTH:  No, Your Honour.

WILSON J: Perhaps we will see how far we can get without- - -

MS WENTWORTH:  I think I would like to get it myself so I can

give you the exact date.

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WILSON J: You have mentioned two dates: about four weeks

after receiving the l~tter of 23 June, which takes

us to about the end of July, and you have mentioned

August to Justice Toohey. Was it early August or

round about the end of July, is that when you first

applied for legal aid?

MS WENTWORTH:  It was the first week in August.

WILSON J:  I see, thank you. And it was rejected on- - -

MS WENTWORTH: It was rejected on the 30th. An application to

the review committee was put in immediately by the

solicitor, I think, on 31 August, and that matter

has not yet been determined by the review committee.

WILSON J:  Thank you, Ms Wentworth.

Mr Slattery, can you take it from there, your

submission?

MR SLATTERY:  I still call or ask for access to the letter

or correspondence from the Legal Aid Commission to

the Court.which relates to the progress of the legal

aid application. It may be, Your Honour, there is

material there bearing upon the bona £ides of this

application.

WILSON J: Yes. I am just not satisfied of the relevance of

what the Legal Aid Commission has said to the Court as

bearing on your opposition to this present application

for an adjournment. I am just trying to keep the

issues confined, if we can, so we do not have to

roam over a vast paddock.

MR SLATTERY:  I understand that, Your Honour. It is simply

this that we have a timetable between the time of

the filing of a special leave application up until the time the legal aid application was first made. The behaviour of the appellant in the conduct of even

the appeal to the Legal Aid Review Committee would be

relevant to the bona fides issue as well and it may

be that there is material there that indicates lack of bona fides.

WILSON J:  You have got this information, that the application

for special leave was made in July 1987; that an

application for legal aid was made in the first week

of August 1988; it was rejected on 30 August 1988 and

the application for review was made about 31 August

and is not yet complete. Perhaps the only other

fact to add is that the application for legal aid was

made about four or five weeks after Ms Wentworth

received the letter from the Court fixing the date of
this application today, of the application for

special leave.

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MR SLATTERY:  Your Honour, I submit that timetable Jemunstrates

a lack of good faith in the bringing of the

application by the appellant such that she could not

rely upon section 57. The immense delay of 12 months

is only explained by her on the basis that she had

been involved in a piece of litigation concerning her

being declared a vexatious litigant. If I may refer
Your Honours, in answer to that, to - or perhaps just
state this - to the appeal book in the next matter

the appellant declares as one of the reasons for

special leave in the next matter that she was about

to be declared a vexatious litigant by the Attorney-

General and that appeal book was - that special leave

application was put, first, before the Court in

August of last year, so she has been well aware of the pending vexatious litigant proceedings for at least

12 months as well. So that there is really no

explanation for the delay that has occurred in making

this application now.

That delay is critical, of course, because

the fact the appeal is undetermined at this late stage

means that she attempts to rely upon section 57.

Your Honour,that is all I wish to say on the merits.

Now to the legal aspect for a moment.

If Your Honours look at section 57, it refers

to "a court or tribunal" in its opening words and

interestingly, those words are not elsewhere defined

Tll in the legislation.

Your Honour, the presumption is that the

legislation is designed to apply to matters within the

territorial competence of the New South Wales Parliament.

There is no separate definition of "court" whiL:h would

show any intention of the legislature to extend it to

this Court in any way and it prima facie, we say,

applies to State tribunals within the State of New

South Wales.

That is all I wish to say, Your Honour.

WILSON J:  Thank you, Mr Slattery. Mr Gray.

MR GRAY:	Your Honour, I do not want to add anything really
further to what my friend has put.  I just want to
make one point to Your Honours and that is that
section 57 in its terms is to be read, we say, cumulatively and it is for each of those matters to
appear to the court before section 57 has operation.
We would say that whilst section 57 may not bind this
Court - - -

WILSON J: What are the matters that are cumulative, Mr Gray,

accepting Mr Slattery's point about the question of

the court to which it is addressed?

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MR GRAY:	Each of paragraphs (a), (b) aud (c) are to appear
to the court before the operation of the adjournment provision occurs.
WILSON J:	So that those factors are, firstly, as has been

suggested by Ms Wentworth, subparagraph (ii) of

paragraph (a), that Lhere is an intention -

to appeal, in accordance with section 56, to

a Legal Aid Review Cormnittee and that such

an appeal is competent,

(b) that the appeal ..... is bona fide and not

frivolous or vexatious or otherwise intended

to improperly hinder or improperly delay the

conduct of the proceedings; and

(c) that there are no special circumstances

that prevent it from doing so.

MR GRAY:  Yes. So that there are each of thos~. As I

understand my friend, he is really, although I think

he might have elided a bit, there really is a double-

barrelled aspect of that, that paragraph (b) is one

but paragraph (c), the no special circumstances, is
also a matter which actually relates, I think, to the
circumstances of the application for legal aid and

the length of time, the fact that this matter had

been set down specifically for 11 August on

Ms Wentworth's application; it was taken out of that

list and she was advised by that letter of 23 June

that the matter would proceed on 16 September and

that there would be no application for an adjournment

entertained.

TOOHEY J:  Mr Gray, the "it" in paragraph (c) of section 57 is

presumably a reference to the court or tribunal.

MR GRAY:	I take that as so, yes.
WILSON J: This letter of the 23rd talks of matters being removed

from the August list and placed in the list for hearing

today, 16 September. They had already been listed

apparently in the August list.

MR GRAY: Oh yes, Your Honour. The appeal books in this matter,

I think, were done October of last year and the date -

I think it was 11 August - was the date that this

matter was set for hearing and the parties had been

notified of that. That is all that I could add,

Your Honour.

WILSON J: Yes, thank you. Do you wish to say anything in

reply to what has been put, Ms Wentworth?

MS WENTWORTH:  Yes, Your Honour. Your Honour, I agree with

Mr Gray that the matters are cumulative in section 57

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and I adopt that approach, Your Honour. The reason

that the matters were taken out of the August list -

and I am not sure that they were actually formally

set down for hearing,- but I was advised by the

Registrar that they wished to set it down in August -

was that I was before the other court and that
matter had been set down until either 11 or 12 August.

It was a three-week hearing from 25 July and I advised

the Registrar that I was before the other court and he

told me at that time that the matter would then

definitely be set down for this list today. That dealt

with that matter.

The reason I am being precluded from coming up

here with counsel and being able to comply with the

requirements of the High Court Rules, 69A, is that

the respondent in this matt~r and, indeed, the

Attorney-General in the form of the Legal Aid

Commission, being my opponents are the people who have

control over whether or not I can come up to the

Court and comply with the requirements of the Rules.

Now, Your Honour, it seems to me a fairly strange

circumstance that the respondent to an action could

preclude a litigant from coming to this Court and

complying with the Rules of the Court by refusing

access to funding on the basis that the action against

them was not likely to succeed. That, Your Honours,

would be, if it were to be the situation in any State,

a most peculiar state of affairs and one that I would

have though the Court would look gravely askance at.

It is within the competence and power of this Court,
in fact, to direct certain matters in relation to the

provision of legal aid if it saw fit, so that the

matter could proceed in a proper and orderly fashion.

TOOHEY J:  Ms Wentworth, I do not know that you have explained

yet the delay between the institution of the
application for special leave to appeal in July last

year and the application for legal aid in August this

year.

MS WENTWORTH:  There were two reasons, Your Honour. The first

was that I had hoped to have sufficient funds to be

able to fund the matter myself and when I found that

I did not have sufficient funds, I then asked the

solicitor who had the conduct of this long matter that

has been before the court if he would represent me in

both of these appeals. He said that because of this

very long and complicated matter, that was all he

could do at that particular point in time and that he

would not make any application on my behalf for aid

until those matters were, as it were, settled down and

under way. So, Your Honour, he was not prepared to

act for me. All my matters and papers were with him

and on his advice, which I think is sound, it seemed

to me that the barrister and solicitor who were briefed

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in that long matter which, as I have said, canvassed

all the matters that are before the Court today, appear

for me if possible. Now, Your Honour, it is no use

going to legal aid and asking for aid unless a solicitor

is going to take the matter and then brief counsel. I

cannot brief counsel directly and I had no solicitor to

do that, until this solicitor agreed to do it at the

end of July and I have just looked - the date of this

letter to the Legal Aid Commission is 5 August,

Your Honour.

TOOHEY J:  Could I just ask you this other question: what is it

that you are seeking by way of adjournment?

MS WENTWORTH:  Your Honour, I am seeking by way of adjournment,

I would have though, until the next list and I cannot

see that that is going to cause very much prejudice to

the other side, certainly not to the Legal Aid

Commission.

WILSON J: That will be on 14 October, I think, the Court is

expecting to sit in Sydney again.

MS WENTWORTH:  In that case, Your Honour, I would think it would

probably be the list after that. Is the list after

that in November?

WILSON J:  I am not in a position to say.

MS WENTWORTH:  Because I do not know how long the Legal Aid Review Committee will take to decide the matter. To

have a look thoroughly at the matters I am putting to

it is going to require them to look at_ very

substantial documentation. It consists of some

thousands of pages. I have now set out the list of

what I wish to take up to them. It now needs to be two matters now, Your Honour - it will involve
put together and copied and taken up to them.

substantial documentation.

So, I do not know whether four weeks will be

sufficient time. I know it does not meet every

week; I think it meets every fortnight. So I do not

know whether 10 October - but certainly by the middle

of November, Your Honour, it would be ready for the

Court to deal with.

WILSON J:  Thank you, Ms Wentworth. The Court will withdraw

for a moment to consider the action it should taken.

AT 3.21 PM SHORT ADJOURNMENT

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Wentworth(7)

UPON RESUMING AT 3.26 PM:

WILSON J: There is a basic public interest in the prosecution

of litigation without ~ndue delay. That is a public

interest that serves and has been found to serve not only the interest of the public but the interests of

litigants. The history of this particular proceeding

is not a happy one but it is unnecessary for me to

dwell upon it in detail.

The Court is prepared to grant an adjournment

but strictly on the basis that the matter will be

listed for hearing at the next sittings of the Court

in Sydney which, as I understand it, will proceed on

Friday, 14 October, so that I trust that an intimation

of the order of the Court that the matter stand over

until that date may be conveyed to the Legal Aid

Review Committee so that any decision that they are

obliged to make can be made in good time for the

applicant to consider her position and be ready to

proceed with the application by counsel on 14 October.

Ms Wentworth, I think it is necessary for the

Court to add that in the event that you are not in a

position to proceed by counsel on 14 October you need

to be prepared to face an application for dismissal

of the application for special leave for want of its

prosecution. I think it is important that you

understand that so that you can plan your circumstances.

MS WENTWORTH:  Your Honour, I understand very well. I have

come here today with that - I realize that that is

the position- - -

WILSON J: With that threat hanging over you.

MS WENTHWORTH:  - - - with that threat hanging over my head but,

Your Honour, since it is my opponents who have	completely in their gift as to whether I can come to
Court with counsel, it makes it extremely difficult.
The Rules preclude me from appearing for myself.

WILSON J:  The circumstances are extraordinary and we have

taken that into account in coming to the conclusion

that we have. I should add that we do not find it

necessary to rule on the question of whether section 57
of the LEGAL AID COMMISSION ACT has any application in
the circumstances of this case. We are granting the
application for the adjournment upon the application

of general principles.

MS WENTWORTH:  Thank Your Honour.

WILSON J: Is there any application?

MR SLATTERY:	We would apply for costs, Your Honour.	We have
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Wentworth(7)

come here today prepared to argue the case. We

certainly were notified within at least the last

week that an application was going to be made but

in view of the Registrar's letter, we took the view

that the case should be prepared to proceed today.

WILSON J:  Ms Wentworth, I do not really think you can oppose

it.

MS WENTWORTH:  Your Honour, I am here on the basis that I cannot

afford to run this action; I cannot therefore afford

to have a costs order against me. I notified the

parties; I asked them to consent to the application;
I told them precisely on what basis the application

was being made and for what purpose; we informed them by writing. I think, Your Honour, that substantially

in the interests of justice that an order for costs

should be - that the costs be borne by both sides in

the circumstances. It was certainly within the gift

of the people and there was correspondence between

myself and them and the Registrar in relation to

whether the proceedings would proceed today or not by

consent. We do realize that it is a matter entirely

for the Court but, Your Honour, the matter today could

have been substantially curtailed had there been a

reasonable attitude shown by the respondents, in view
of this extraordinary situation I find myself in.

If I could afford to wear the costs of today, Your Honour, I would be up here with counsel. That

is the position.

WILSON J:  I am sorry, Ms Wentworth, but the Court is of the

view that the first respondent has come here to

combat a hearing of an application for special leave

that has been listed, as indicated in the letter of

23 June, and in the circumstances we think that he

is entitled to an order for costs.

matter will proceed on Friday, 14 October, and the granted on the distinct understanding that the So the application for an adjournment will be costs of today are awarded to the first respondent.

l1R SLATTERY: If the Court pleases.

AT 3.32 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 14 OCTOBER 1988

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