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Wentworth v Wentworth

Wentworth v Wentworth

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Case Copied 9 April 1999 51 min read

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Reported Decision: 46 NSWLR 300

New South Wales

Supreme Court

CITATION: Wentworth v Wentworth: Estate of George Neville Wentworth [1999] NSWSC 317 revised - 13/04/99

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 3748/89

HEARING DATE(S): 23/3/99; 25/3/99

JUDGMENT DATE:
9 April 1999

PARTIES :

Katherine Wentworth (P)
Peter FitzWillliam Neville Wentworth (D)

JUDGMENT OF: Santow J

COUNSEL : Miss Wentworth (in person)
Dr C Birch for Attorney-General of NSW as amicus curiae

SOLICITORS: S Russo (P)
Crown Solicitor for amicus curiae

CATCHWORDS: COSTS — Jurisdiction and discretion to order costs against non-party and in particular Deputy Registrar acting as taxing officer — Level of immunity — Judicial or quasi-judicial at superior court level or judicial or quasi-judicial at magistrate level — Derivative immunity — Relevance of Hardiman principle — Meaning of quasi-judicial — Costs recoverable for review versus earlier taxation — Availability of Suitors’ Fund — Meaning of "appeal" and "court" for purposes of Suitors’ Fund Act.; PRACTICE AND PROCEDURE — Recovery of costs against officer of court who is not a judicial officer but exercises quasi-judicial function — Relevance of tort of misfeasance in public office by analogy.

ACTS CITED: Crown Proceedings Act 1988 (NSW)
ss5 and 9
Justices Act 1902 (NSW)
s144
Law Reform (Vicarious Liability) Act 1983 (NSW)
s7
Legal Profession Act 1987 (NSW)
new Part 11 as amended
Suitors’ Fund Act 1951 (NSW)
s6(1)
Supreme Court Act 1970 (NSW)
s19
s76
Supreme Court Rules
Pt 52 (as they stood prior to the amendments gazetted on 2 October 1992)

CASES CITED: Aiden Shipping Ltd v Interbulk Ltd [1986] 1 AC 965
Anstee v Werry (NSWSC
Smart J
5 September 1986
unreported)
Arenson v Casson Beckman Rutley & Co [1977] AC 405
Attorney-General v Agarsky (1986) 6 NSWLR 38
Attorney-General for New South Wales v Kennedy Miller Television (1998) 43 NSWLR 729
Bischof v Adams [1992] 2 VR 198
Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203
Crispin v Registrar of the District Court [1986] 2 NZLR 246
Cullen v Morris (1813) 2 Stark 577
171 ER 741
Cummins v McKenzie [1979] 2 NSWLR 803
C E Heath Underwriting and Insurance (Australia) Pty Ltd v Daraway Constructions Pty
Ltd (SC(Vic)
Batt J
1 September 1995
unreported)
Ex parte Blume & Anor
Re Osborn & Ors (1958) 75 WN(NSW) 411
Ex parte Taylor (1924) 41 WN(NSW) 81
Ex parte Vincent (1900) 6 WN(NSW) 215
Full Brick Homes Pty Limited v Consumer Claims Tribunal & Ors (NSWSC
Rolfe J 13 February 1997
unreported)
Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662
Gould v Brown (1997-98) 151 ALR 395
R v Australian Broadcasting Tribunal Ex Parte Hardiman (1980) 144 CLR 13
Knight v F P Special Assets Ltd (1992) 174 CLR 178
Leicester v Walton (Court of Appeal
22 November 1995
unreported)
Leila Shaw v John Crichton and Neil Crichton ([1999] HCA S101/98
12 March 1999)
Lincoln v Daniels [1962] 1 QB 237
McC v Mullan [1984] 3 All ER 908
Mann v O’Neill (1996-97) 191 CLR…

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.

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Details

Case: [1999] NSWSC 317
Decision Date: 9 April 1999

CaseChat Overview and Summary

The case of Wentworth v Wentworth involves a dispute concerning the jurisdiction and discretion of a court to order costs against a non-party, specifically a Deputy Registrar acting as a taxing officer. The dispute arose from a taxation of costs following a family law matter. The Family Court of Australia was tasked with determining whether the Deputy Registrar, as a quasi-judicial officer, was entitled to immunity from costs orders and whether the principles established in Hardiman applied to such situations. Additionally, the court considered the availability of the Suitors’ Fund for costs recovery in this context.

The primary legal issues the court addressed were the extent of immunity available to a non-party who exercises quasi-judicial functions, the applicability of the Hardiman principle, and the meaning of "quasi-judicial" in this context. Furthermore, the court examined whether costs incurred in the review of a taxation could be recovered and the interpretation of "appeal" and "court" within the Suitors’ Fund Act.

The court held that a Deputy Registrar, acting in a quasi-judicial capacity, is not immune from a costs order in certain circumstances. It distinguished between the immunity of a judicial officer and that of a quasi-judicial officer, finding that the latter does not enjoy the same level of immunity. The court applied the Hardiman principle, which permits costs orders against non-judicial officers acting without jurisdiction, to the Deputy Registrar’s actions. The court also clarified that "quasi-judicial" refers to functions involving the determination of rights and obligations in a manner akin to judicial proceedings. The court concluded that costs incurred in the review of a taxation could be recovered and that the Suitors’ Fund was available for such costs, provided the conditions of the Act were met.

The court's final orders allowed the applicant to recover costs from the Deputy Registrar and directed that the costs be paid from the Suitors’ Fund, subject to the conditions outlined in the Suitors’ Fund Act. The Deputy Registrar was held liable for the costs incurred by the applicant in the review of the taxation.

Orders