Wentworth v The New South Wales Bar Association

In the High Court of Australia, Katherine Wentworth Wentworth, appearing in person, sought to reopen an application for special leave to appeal that had previously been refused. The respondent, the New South Wales Bar Association, represented by Mr P.R. Garling SC, applied for an order pursuant to Order 39 rule 14 of the High Court Rules for confidentiality regarding certain parts of an affidavit filed by Ms Wentworth in support of her motion.

The primary legal issue before the Court was whether to grant the Bar Association's application for confidentiality over parts of Ms Wentworth's affidavit. The Bar Association argued that certain material within the affidavit, specifically paragraph 1 and exhibit KW8, was scandalous and, by extension, sought to prevent its publication to avoid a recurrence of Ms Wentworth's previous actions of annexing confidential documents to affidavits. The Court also considered the general principle that an affidavit filed but not yet read is not evidence and the inherent difficulty in striking out material in advance of a hearing, particularly for a judge who did not hear the substantive matter.

The Court acknowledged the difficulty in striking out material based on relevance or scandalousness before a hearing. Mr Garling indicated that the Bar Association would be content with an order for confidentiality over the entire affidavit and its annexures, rather than seeking to strike out specific parts. Ms Wentworth objected to this, arguing that the affidavit was a document that she was entitled to use and that its contents, consisting of public records such as transcripts and judgments, should not be suppressed. She contended that the application for confidentiality was an attempt to subvert the New South Wales Royal Commissions Act and curtail her rights as a citizen. The Court noted its impression that there was no admissible evidence to support the allegations made in the affidavit, but clarified that it was not making a ruling on admissibility, but rather proposing an order for confidentiality to preserve Ms Wentworth's right to argue for the material's relevance and admissibility before the full bench.