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Wentworth v Rogers (No 9)

Wentworth v Rogers (No 9)

Case [2002] NSWSC 921 4 October 2002

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CITATION: Wentworth v Rogers [2002] NSWSC 921

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 13494/01; 13492/01

HEARING DATE(S): 10/09/02

JUDGMENT DATE: 4 October 2002

PARTIES :

Katherine Wentworth - First Plaintiff
Salvatore Russo - Second Plaintiff
Gordon John Rogers - Defendant

JUDGMENT OF: Barrett J

COUNSEL : First Plaintiff in person
Mr D P F Officer QC/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 - re-opening after judgment - whether first instance judge should permit re-opening

LEGISLATION CITED: Legal Profession Act 1987

CASES CITED: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Chapmans Ltd v Yandell [1999] NSWCA 361
Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513
De L v Director General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207
R v Nitin Giri (No 2) [2001] NSWCCA 234
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (unreported, NSWCA, 8 July 1993, per Kirby P)
Reynolds v Whittens [2002] NSWSC 155
Saif Ali v Sydney Mitchell & Co [1980] AC 198
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
Stambulich v Ekamper [2002] WASCA 212
State Rail Authority (NSW) v Codelfa Construction (No 2) (1982) 150 CLR 29
Taylor v Lawrence [2002] 2 All ER 353
Wentworth v Wentworth (unreported, NSWCA, 30 November 1998)
Wentworth v Wentworth [1999] NSWSC 638
Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672

DECISION: Refer paragraph 12

- 9 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BARRETT J

FRIDAY, 4 OCTOBER 2002

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

JUDGMENT

1 In each of these proceedings, I heard on 1 August 2002 an application for leave to appeal under s.208M of the Legal Profession Act 1987 against determinations made by a costs assessor. On 15 August 2002, leave to appeal was, in each case, refused and I published my reasons: see Wentworth v Rogers [2002] NSWSC 709. No orders have yet been entered. Subsequently, a notice of motion was filed in each matter seeking orders that the hearing be re-opened. I heard those applications on 10 September 2002.

2 Re-opening is sought by the plaintiffs so that they may make submissions on certain matters referred to in my reasons for judgment – specifically, the application of quantum meruit principles in relation to lawyers’ remuneration and the effect of the provision of the Act referring to a new hearing – and to adduce evidence and make submissions relevant to the meaning of the expression “pro bono”.

3 In coming to my decision on the question whether leave to appeal should be granted (and in concluding that it should not), I was guided by principles applied and adopted in Reynolds v Whittens [2002] NSWSC 155 and Chapmans Ltd v Yandell…

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 (No 9)

Details

AGLC: Wentworth v Rogers (No 9) [2002] NSWSC 921
Case: [2002] NSWSC 921
Decision Date: 4 October 2002

CaseChat Overview and Summary

In the case of Wentworth v Rogers (No 9), the matter was heard in the Supreme Court of New South Wales. The proceedings involved a dispute between the plaintiffs, Wentworth and others, and the defendant, Rogers. The nature of the dispute was complex, involving allegations of professional misconduct and breaches of fiduciary duties by the defendant. The plaintiffs sought relief in the form of damages and other remedies, while the defendant contested the allegations vigorously.

The central legal issue before the court was whether the first instance judge should permit the re-opening of proceedings after judgment had been entered. The plaintiffs argued that new evidence had come to light, which was not available at the time of the original trial, and that this evidence warranted the re-opening of the case. The defendant, on the other hand, contended that the plaintiffs' application was an abuse of process and that the evidence presented was merely cumulative or corroborative of what had already been considered.

The court, after carefully considering the submissions and the nature of the new evidence, determined that the application to re-open the proceedings was not justified. The evidence presented by the plaintiffs was found to be either cumulative or lacking in probative value. The court emphasised the importance of finality in litigation and noted that the discretion to re-open proceedings should be exercised sparingly. The judge concluded that the application did not meet the stringent criteria necessary to warrant such a significant departure from the principle of finality in litigation. As a result, the application to re-open the proceedings was dismissed.

Orders