Wentworth v Wentworth: Estate of George Neville Wentworth

[1999] NSWSC 557

CITATION:	Wentworth v Wentworth: Estate of George Neville Wentworth [1999] NSWSC 557
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	3748/89
HEARING DATE(S):	7 June 1999
JUDGMENT DATE:	7 June 1999
PARTIES :	Katherine Wentworth (P) Peter FitzWilliam Neville Wentworth (D)
JUDGMENT OF:	Hunter J

COUNSEL :
SOLICITORS:	Ms K Wentworth in person (A) Ms D Pinch (R)
CATCHWORDS:
DECISION:	Inspection by applicant of documents under subpoenae refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HUNTER J

MONDAY 7 JUNE 1999

3748/89 KATHERINE WENTWORTH v WENTWORTH: ESTATE OF GEORGE NEVILLE WENTWORTH

REASONS FOR JUDGMENT
1    There is before the court an application to reopen proceedings which were the subject of a judgment by Santow J of 9 April 1999 (the costs proceedings) which followed upon his judgment of 6 February 1998 (the bias proceedings) in which Katherine Wentworth was the plaintiff. 2    In the bias proceedings, Santow J found that in the taxation of costs in proceedings in which Ms Wentworth was a party, the taxing officer, B R Howe (Howe), had acted in a way that gave rise to a reasonable apprehension of a possibility of bias on the part of Ms Wentworth, as a result of which his Honour published draft orders which were in the following terms:

“1. Subject to order 2, the determinations of Taxing Officer Howe made in the taxation of the Plaintiff’s Bill of Costs filed 21 February 1992, including the reconsideration of the taxation and any costs orders made in relation to the taxation, be set aside.
2. The Interim Certificates issued by Taxing Officer Howe on the dates listed below, to the extent they cover the amounts paid thereunder by the Defendant to the Plaintiff, are not set aside but declared severable from the rest of the taxation.”

3    In the costs proceedings, Ms Wentworth sought orders for costs which included an order against Howe in relation to whom the finding was made by Santow J in the bias proceedings. The principles upon which Santow J acted are to be found at page 15 of the judgment in which reference is made to Sirros and Rajski. 4    In applying those principles, His Honour concluded as follows:

"My judgment of 6 February 1998 has no finding of any deliberate contravention of the rules of natural justice. There is likewise no finding that the taxing officer deliberately acted beyond power. There is furthermore no finding of actual bias but only a reasonable apprehension of the possibility of bias. Thus any analogy based upon the tort of misfeasance in public office to justify a cost order against Deputy Registrar Howe would not be justified, even were there no immunity. And as I have earlier concluded, there is immunity.
I am satisfied that the findings made in my judgment of 6 February 1998 are not such as to justify any order for costs against Deputy Registrar Howe whether review costs or, to the extent capable of being made, any non-review costs. No order for costs could in any event be made in relation either to the Court of Appeal or contrary to its determination. That conclusion follows whether the level of protection of his derivative immunity is taken to be that applicable to an officer of a superior court or an inferior court such as a magistrate at common law, though the former is considered the appropriate level."

5    In reaching that conclusion, I note his Honour's reference to what he described as "an alternative approach to ascertaining the level of immunity" in the case before him. It was expressed in the following way:

"An alternative approach to ascertaining the level of immunity in a derivative context lies in identifying the public interest or basis of principle underpinning judicial immunity and then asking: what level of immunity is necessary to serve that interest or basis of principle in the context in which the question of immunity arises. That interest or basis of principle has been expressed in the following ways:
(i) “to preserve the integrity, independence and resolve of the judiciary, and to ensure that justice may be administered by such judges in the courts, independently and on the basis of their unbiased opinion - not influenced by any apprehension of personal consequences”; Rajski v Powell per Kirby P at 528.
(ii) to give “effect to the particular public interest in securing the utmost freedom to those who preside over judicial proceedings, subject only to the constitutional or other remedies for removal from office.” Mann v O'Neill per Gummow J at 239-240.
(iii) permitting civil liability attaching to persons involved in civil proceedings “would impede enquiry as the truth and justice of the matter and jeopardise the 'safe administration of justice'": Mann v O'Neill per Brennan CJ, Dawson, Toohey, Gaudron JJ at 213; whilst the overriding consideration in respect of whether or not an absolute privilege against defamation will attach is 'whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern” ( Mann v O'Neill at 212 citing Lincoln v Daniels [1962] 1 QB 237 per Devlin LJ at 255-256).
(iv) to prevent harassment of judicial officers by vexatious litigation by litigants not able to accept the finality of decisions against them: McC at 916; Rawlinson v Rice (1998) 1 NZLR 454 at 464"

6    In relation to the present application before Santow J, by which Ms Wentworth seeks to re-argue the costs proceedings, two subpoenae have been issued on her behalf, directed, respectively, to the Director General of the Department of the Attorney General of New South Wales and to the Crown Solicitor, seeking the same material, namely:

" 1. Letter to Mr Bruce Howe, Deputy Registrar, on or about 27 April 1999 seeking his comments on complaints particularised in document as provided to him by the State Crown Solicitor on or about 27 April 1999.
2. Letter of response by Mr Bruce Howe, Deputy Registrar, setting out his comments on the complaints referred to in the letter of 27 April 1999 as particularised, received by the Crown Solicitor in the first or second week of May 1999, on or about 12 May 1999"

7 Written submissions have been presented on behalf of the Crown and Ms Wentworth has presented oral submissions, which boil down to the proposition that the documents so subpoenaed are relevant (in the sense that that term is used in discoverability and inspection of documents under the Supreme Court Rules) in relation to two issues she seeks to raise before Santow J, namely:

(1) that his Honour had no due regard to the bad faith element in considering the immunity question in refusing the order for costs against the taxing officer; and

(2) that his Honour's determination, which, in substance, invalidated the taxation proceeding that had proceeded thus far, except for some interim certificates, should be reviewed to consider what Ms Wentworth has referred to as the flow-on effect in relation to the outstanding costs issues between her and the other relevant parties in the principal proceeding.

8    Objection is taken on behalf of the Crown to the inspection of these documents, essentially on the ground of relevance, and the parties are agreed, firstly, that I should read the documents so produced on subpoena and, second, determine the question of relevance in the context of the issues I have just described. I have done that.

9    I have read the material quite carefully and I am satisfied that the material is not relevant, in the sense in which I have used the term, so as to make it inappropriate that the documents should be made available for inspection by Ms Wentworth. 10    In the circumstances, as it is not intended that I should take any further part in the proceedings that are currently before Santow J, the course I will follow is to publish these reasons, to place the documents subpoenaed into the envelope from which they have come, to seal that envelope and direct that it remain with the subpoena until further order. 11    In dismissing the application to inspect the documents, I do not propose to make any order as to the costs of this application. Rather, I think the appropriate course is to reserve the question of costs so that the costs involved in this aspect of the proceedings can be dealt with at the one time by the presiding judge, presumably Santow J.

oOo

WEDNESDAY 9 June 1999

ADDENDUM TO ORDER OF 7 JUNE 1999
12    Since making the order refusing Ms Wentworth’s application to inspect the documents the subject of subpoenas issued at her instance to the Director-General of the Department of the Attorney-General of New South Wales and to the Crown Solicitor, Santow J has referred to me submissions in writing received by him from Ms Wentworth by facsimile on 8 June 1999 in which, among other things, the following submissions were made:

“12. The plaintif (sic) therefore seeks a reopening upon the question of the relevance of the documents which the Crown contended, because they went only to the conduct of Mr. Howe, that they were not relevant to the matters currently before the Court.
13. The plaintiff submits in the terms of the Court of Appeal judgement, that the judgement of 9/4/99 must be set aside, that the whole issue must be looked at afresh, because this Court must be bound by the terms of this determination.
14. The plaintiff submits that she is unable to make full submissions in respect of the costs aspects until the documents sought on subpoena are assessed by her.
15. The plaintiff seeks that the Court re-determine the relevance of the documents produced on subpoena, in the light of the determination of the Court of Appeal judgement of 31 May 1999, and seeks a proper oral hearing in respect of that matter.
16. As advised the plaintiff is on leave from to-morrow morning and will not be available for four weeks to attend Court. Accordingly the Plaintiff seeks an order that any orders consequent upon the delivery of the judgement of Justice Hunter of 7/6/99 not be entered, and that leave be granted for thoat (sic) determination to be reconsidered in the light of AG v Kennedy Miller 31/5/99 as to its effect upon the relevance of the documents produced by the Crown law officers.”

13    Upon being so informed, I caused my associate to communicate with Ms Wentworth by facsimile of 8 June 1999 in the following terms:

“Dear Ms Wentworth,

Justice Hunter has requested me to inform you that he has been provided with your request for a re-determination of the relevance of the documents produced on subpoena. As you are proposing to leave on a four week holiday tomorrow, his Honour will hear the application at 4pm this afternoon in Court 11B. Otherwise it will be necessary for you to postpone your departure to enable the hearing to take place later this week at a time suitable to you. His Honour will be unavailable in July, August and September to deal with the matter if you were to depart tomorrow without having this matter determined. His Honour has asked me to emphasise that this proposed further hearing should not be regarded as his acceptance of any entitlement to be heard orally as requested by you. Please respond by return to me on 9230 8740.”

14    Since forwarding the facsimile I have received no further communication from her. In the circumstances outlined in my associate’s facsimile, I do not propose to accede to the request in the submissions of Ms Wentworth quoted above for the following reasons:

(a) Without recourse to the decision of the court of Appeal referred to in Ms Wentworth’s submissions, having inspected the subpoenaed documents, there is no reason why my determination as to relevance should be re-examined. They contain no “material which could, rationally, affect the assessment of the probability of the existence of “misconduct” on the part of Howe as asserted by Ms Wentworth.

(b) Having considered that Court of Appeal decision, I am completely satisfied that there is nothing in that judgment that would provide a basis for an arguable case for the reconsideration of that question of relevance. For that purpose I accept the unsworn statement of Ms Wentworth that she had no knowledge of the Court of Appeal’s decision at the time of my determination.

(c) I noted in my reasons for refusing inspection of the documents of 7 June 1999, the findings of Santow J in his Honour’s judgment of 9 April 1999 that no finding of any deliberate contravention of the rules of natural justice had been committed by the taxing officer: that there was no finding that the taxing officer deliberately acted beyond power and that there was no finding of actual bias on the part of the taxing officer.

15    I consider that in those circumstances to further indulge Ms Wentworth by appointing a hearing in some four month’s time to receive oral submissions in further support of her request to reconsider the question of relevance the subject of my reasons of 7 June 1999 is totally unjustified and a thorough waste of public resources. The course I propose to follow is to communicate this addendum to Santow J and to Ms Wentworth, by facsimile in the latter case.

oOo

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