Wentworth v Graham & 1 Ors

3. The Registrar lacked power to make the orders sought by the Applicant.

4. A single Judge of Appeal may review a Registrar of Appeal's decision, but not a decision of another Judge of Appeal. ORDERS Notice of Motion dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40277/00

10 December 2002 Katherine WENTWORTH -v- Geoffrey GRAHAM & 1 Ors Judgment 1 SANTOW JA:

INTRODUCTION By Notice of Motion the Applicant, Katherine Wentworth, applies to the Court of Appeal for an order that "the judgment/decision and orders made by Registrar Schell on 5 September 2002 be set aside". That application before me is one of a series of applications made by Ms Wentworth in already voluminous litigation. It has ramified from proceedings originally brought against Geoffrey Graham and William C Wentworth. Neither of them, understandably, were represented before me in the current phase of this satellite litigation. That litigation has involved now several successive applications by Ms Wentworth for particular judges to be disqualified for bias, or apprehended bias namely Ireland AJ, Ipp AJA and Brownie AJA. Her current proceeding derives from an earlier application by Ms Wentworth for disqualification of Brownie AJA on the ground of bias or apprehended bias. Ms Wentworth now seeks to challenge, by way of review, a determination by Registrar Schell of the Court of appeal on 5 September 2002. There is also a collateral challenge to Brownie AJA's exclusion of evidence which Ms Wentworth sought to tender before him. That was from individuals present in court. It was said to bear upon the presence of bias or its reasonable apprehension on the part of Brownie AJA. 2 Pursuant to Pt 61 rr3 and 4 of Supreme Court Rules, a judge of the Court of Appeal, sitting alone, has jurisdiction to review a decision of a Court of Appeal Registrar. I earlier dealt with Ms Wentworth's submission which was made on 30 September 2002 and determined by me on that date in an ex tempore judgment. Her submission raised the preliminary question whether, because the Registrar was exercising powers pursuant to Pt 51 r58 Supreme Court Rules, being the powers of a judge of appeal under s46(1) and (2) of the Supreme Court Act ("the Act"), that therefore it may be that only the Court of Appeal acting under s46(4) of the Supreme Court Act, that is sitting ordinarily as a panel of three judges, could deal with an application in such circumstances. Section 46(4) provides that "The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal or an order made or direction given by a Judge of Appeal." 3 The context was a review sought by Ms Wentworth of the decision of 5 September 2002 of Registrar Schell and the order he made. I concluded on the preliminary issue that there was no impediment under s46(4) of the Supreme Court Act or otherwise in exercising the concurrent jurisdiction conferred on a single judge of the Court of Appeal by Pt 61 rr3 and 4 to review a decision of a Registrar; see Katherine Wentworth v Geoffrey Graham & Anor (NSWSC, 5 September 2002, unreported). I remain of that view. In particular I do not consider that the definition of "appeal" appearing in Pt 51 r2(2) alters that result, being a matter raised by Ms Wentworth after I delivered that ex tempore judgment on 30 September 2002. 4 I should add that one would ordinarily expect a review of a Registrar's order or decision would proceed before a single judge of the Court of Appeal pursuant to Pt 61 r3. This is simply in the interests of sensible judicial economy. For three judges of the Court of Appeal to exercise that concurrent jurisdiction would ordinarily not be called for. It is not called for here. 5 The decision of Registrar Schell dated 5 September 2002 was in relation to Ms Wentworth's application by Notice of Motion filed 2 July 2002, in the following form: "1. That the judgement and orders made by Brownie AJA sitting as a single judge of Appeal, dismissing the Notice of Motion of the plaintiff filed 12.6.02, returnable 18.6.02, be set aside. 2. That the judgment on admissibility of evidence of Brownie AJA of 6/6/02 as noted at page 42 of the transcript of 6/6/02 be set aside. 3. That Acting Justice Ipp is disqualified for apprehended bias 4. Such further and other orders as the Court deems fit 5. Costs" 6 What then transpired is recorded at paras 2 and 3 of Registrar Schell's decision, quoted below: "2. When the motion was called on for hearing on 12 August 2002 I made the following announcement:- The motion will not be listed before any Judges of the Court except, if the claimant wishes it, Brownie AJA and Ipp AJA on the further hearing of the summons before them . The substantive relief sought in the motion (and in the earlier motion of 12 June 2002) raises matters which the High Court and the High Court alone may address. Whether the High Court would be likely to do so at this stage of the part-heard proceedings in this court is a matter on which the claimant should take her own advice. 3. The claimant insisted that, pursuant to the provisions of section 46(4) of the Supreme Court Act 1970, an entitlement existed for her motion to be heard and urged that I refer the motion for consideration by the Court." 4. At that stage the opponents to the proceedings indicated they did not wish to be heard on the motion. They were excused from attendance and took no further part in these proceedings." 7 The factual circumstances are recounted at paras 5 to 14 of Registrar Schell's decision including the various procedural steps taken by Ms Wentworth as the claimant in the proceedings which followed, culminating in two judgments by Brownie AJA on 6 June 2002 whereby Brownie AJA declined to recuse himself and excluded certain affidavit evidence said to bear upon apprehension of bias. These paragraphs, for convenience, I quote below. I will thereafter elaborate on those aspects of the proceedings as are relevant to the review: "5. To adequately deal with the claimant's application it is necessary to briefly summarise the proceedings from which the motion is brought. 6. In 1996 the claimant commenced proceedings in the Equity Division of the Supreme Court. Those proceedings were later transferred to the Common Law Division where, following amendments to the statement of claim and motions challenging the competency of the action, a hearing took place before Ireland J on 31 May - 3 June 1999. On 31 March 2000 Ireland J dismissed a motion by the claimant that he be disqualified for bias, and thereupon delivered a reserved judgment dismissing the statement of claim and amended statement of claim on the basis that no cause of action had been disclosed. 7. The claimant then instituted appeal proceedings, culminating in the filing on 14 August 2000 of a summons seeking leave to appeal against the decision and orders of Ireland J. The summons was fixed for hearing on 7 November 2001 before Brownie AJA and Ipp AJA, the Court being constituted pursuant to the provisions of section 46B(1)(a) of the Supreme Court Act 1970. At the commencement of the hearing the claimant asked Brownie AJA to disqualify himself for apprehended bias, a request which was declined. The hearing of the summons proceeded and, following extensive argument, judgment was reserved. 8. During the course of deliberations the Court became concerned about one of the propositions which had been raised during argument, and caused the parties to be notified that the case be listed for directions on 19 November 2001. When Brownie AJA assembled on that date the claimant filed a notice of motion [of 19 November 2001] seeking orders:- 1. That Justice Brownie is disqualified for apprehended, actual or ostensible bias and prejudgment. 2. Such further and other orders as the court deems fit. 3. Costs. The motion was adjourned until 3 December 2001 when the claimant requested that Brownie AJA not sit by himself but that the Court be constituted by two judges. The Court, constituted by Brownie AJA and Ipp AJA, reconvened on 4 December 2001 and, following directions concerning material to be relied upon in relation to the motion, the matter was listed for further directions before the registrar. 9. Subsequently, the matter was listed for further directions before Ipp AJA on 17 May 2002 and then for the hearing of the outstanding motion on 6 June 2002. At the commencement of the hearing the claimant sought that Ipp AJA remain in court while Brownie AJA considered the application to recuse himself. Ipp AJA determined that he remain and indicated the extent of his proposed participation in a short judgment. The claimant thereupon objected to Ipp AJA remaining in the court and asked that he leave, insisting that Brownie AJA alone determine the motion. Brownie AJA gave judgment declining the claimant's request. 10. During the course of the motion hearing the claimant sought to introduce into evidence affidavits from herself and other deponents setting out their apprehension as to the demeanour and conduct of Brownie AJA during the hearing of the summons proceedings on 7 November 2001. Brownie AJA ruled that such evidence be rejected. Ipp AJA, to the extent that it was a matter for him, agreed. This ruling is the subject of paragraph 2 of the current notice of motion. 11. At the conclusion of argument on 6 June 2002 Ipp AJA retired from the Court and the proceedings were adjourned part-heard before Brownie AJA on 18 June 2002. 12. On 12 June 2002 the claimant filed a notice of motion seeking orders:- 1. That Acting Justice Ipp is disqualified for apprehended bias. 2. That the judgement (sic) on admissibility of evidence of Brownie AJA as noted at page 42 of the transcript of 6/6/02 be set aside. 3. Such further and other orders as the Court deems fit. 4. Costs. The motion was listed on 18 June 2002 when the claimant indicated an expectation that the matter would have been before a bench of three judges, as the motion was brought pursuant to the provisions of section 46(4) of the Supreme Court Act 1970. For reasons outlined in a judgment, Brownie AJA ordered that the motion be dismissed pursuant to Part 13 rule 5 of the Supreme Court Rules. This order is the subject of paragraph 1 of the current notice of motion. 13. During the hearing of the motion filed on 12 June 2002, the claimant requested that the part-heard hearing of the motion seeking the disqualification of Brownie AJA be vacated. That application was refused. Following further addresses the Court adjourned, directions having been given for the filing of supplementary submissions by the claimant on or before 30 August 2002 and replies by the opponents within 21 days thereafter. 14. Aside from the current notice of motion, the status of the proceedings is that judgment in the summons for leave to appeal is reserved, while the motion that Brownie AJA be disqualified stands adjourned pending the filing of additional submissions. It would appear that directions have not, as yet, been given concerning the proposition mentioned in paragraph 8 above." 8 I have put above in square brackets the date of the notice of motion referred to in para 8.

Matters for Review 9 It must be steadily borne in mind that the only application properly before me is that, by way of review, I set aside the judgment/decision and orders made by Registrar Schell on 5 September 2002. That directs consideration to what Registrar Schell determined, against the background of the proceedings from which the motion before Registrar Schell was brought. The first matter to be noted is that what the applicant sought from Registrar Schell was that he as a Registrar of the Court should set aside the judgment and orders made by a Judge of the Court of Appeal, namely Brownie AJA sitting "as a single Judge of Appeal". Similarly, the Registrar was asked to set aside the judgment on admissibility of evidence of Brownie AJA (as noted at page 42 of the transcript of 6 June 2002). And, finally, the Registrar had before him an application to have Ipp AJA disqualified for apprehended bias. Such an application could not be on the basis that a Registrar of the court would have had power to make such orders. Clearly he did not. There is no basis in the powers conferred upon a Registrar to make any such orders. Indeed it would be highly incongruous were it otherwise; that is, for a Registrar to have jurisdiction to review the decision of a judge of this Court. 10 However, as the earlier recording of what transpired before the Registrar at para 12 makes mention, when the Claimant's notice of motion of 12 June 2002 was before Brownie AJA, the Claimant indicated an expectation that the matter would have been before a bench of three judges of the Court of Appeal. This, it appears, was on the basis that the motion was brought pursuant to the provisions of s46(4) of the Supreme Court Act 1970. Section 46(4) must be understood in the context of the whole of s46 of the Supreme Court Act which I quote below: "46. Powers of Judge of Appeal (1) A Judge of Appeal may exercise the powers of the Court of Appeal:

(a) to give any judgment by consent or make any order by consent, (b) to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules, (c) to dismiss an appeal or other proceedings on the application of the appellant or plaintiff, or (d) to deal with costs and other matters incidental to the matters mentioned in paragraphs (a), (b) and (c).

(2) A Judge of Appeal may exercise the powers of the Court of Appeal:

(a) to make an order or give any direction concerning the institution of an appeal or other proceedings in the Court of Appeal, or (b) to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings.

(3) Subsection (2) does not authorise a Judge of Appeal to grant or refuse leave to appeal to the Court of Appeal. (4) The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal, or an order made or direction given by a Judge of Appeal. (5) Subject to subsection (4), a judgment, order or direction given or made by a Judge of Appeal is to have effect as a judgment, order or direction of the Court of Appeal, whether or not the judgment, order or direction is within the powers of the Judge of Appeal under this section."

11 In argument before me, the claimant, Ms Wentworth, again sought to rely upon s46(4). This was on the basis, as I understand the claimant's submission, that s46(4) did apply to Brownie AJA's original determination to exclude the evidence earlier referred to. It was then argued that he was in error in the longer of his two judgments delivered on 18 June 2002 and revised 24 June 2002. In that longer judgment he adopted the following reasons, which can be expressed as a series of propositions:

(a) That in holding that this evidence was inadmissible (Ipp AJA to the extent that it was a matter for him, agreeing), he (Brownie AJA) was exercising a power conferred not by s46(2) of the Supreme Court Act but by s46B(1)(a) of the Act; that is to say, he was determining an application for leave to appeal in course of which a ruling on evidence was made. But such a ruling did not constitute an exercise of power within s46(2), there being "no order or … any direction concerning the institution of an appeal or other proceeding in the Court of Appeal" nor any order or direction "in any appeal or other proceedings";

(b) The leave application in which the evidentiary issue arose was heard by Ipp AJA and Brownie AJA. What was being determined was leave to appeal from a decision of Ireland AJ dismissing the Claimant's Statement of Claim and Amended Statement of Claim (against whom the Claimant had first, unsuccessfully, sought disqualification because of alleged bias or apprehended bias);

(c) Brownie AJA makes clear that to the extent he was asked to disqualify himself on the ground of bias, he and he alone would determine that question and indeed did so by declining to recuse himself. 12 In the shorter of the two judgments, being the 3 page judgment delivered on 18 June 2002 and revised 24 June 2002, Brownie AJA deals with the applicant's notice of motion filed 12 June 2002 (incorrectly described in that judgment as 12 July 2002) para 1 of which seeking the Court of Appeal order that Ipp AJA be disqualified for apprehended bias. He observed that "there is no reason why, if and when the matter is re-listed before Ipp AJA, he cannot deal with the matter there and then on an oral motion." 13 Brownie AJA then states in the shorter judgment that "the real point to the motion is paragraph 2 which asks the Court of Appeal to set aside the judgment on admissibility of evidence which I made on 6 June 2002". This was in circumstances where, according to Brownie AJA, he "was sitting as a member of the Court of Appeal pursuant to the provisions of s46B(1)(a) of the Supreme Court Act". 14 Finally, he concludes in that latter judgment that, "whilst sitting on the application I disqualify myself for bias, as I see it at the moment, I was dealing with a question that concerned me and me alone" and that "Ipp AJA was sitting in court with me consequent upon an earlier request of the Claimant", which "request was later varied". 15 Brownie AJA then re-states (page 2 of the shorter judgment) that "I was sitting as a member of the Court of Appeal constituted pursuant to s46B(1)(a) and I gave a decision" being, it can be taken, a decision denying leave to appeal. That led to his further determination that there was at that point no further appeal against that decision by a differently constituted appeal bench, and in particular one constituted pursuant to s46(4), being ordinarily a bench of three Appeal judges. He thus concluded that the applicant's notice of motion of 12 June 2002 should, pursuant to Pt 13 r5, be dismissed as "technically" an "abuse of process". 16 I have set out this reasoning of Brownie AJA because it provides the background to Registrar Schell's decision not to refer any of the determinations by Brownie AJA and in particular those the subject of the notice of motion of 2 July 2002 to the Court of Appeal constituted under s46(4) of the Act. Ms Wentworth seeks that I set aside the decision of Registrar Schell on the basis, inter alia, that

(a) the determinations by Brownie AJA were a nullity being vitiated by bias or reasonable apprehension of bias; and

(b) were in any event determinations made which were necessarily made pursuant to s46(2) of the Act so as to permit s46(4) to be invoked thus permitting a review by the Court of Appeal, constituted ordinarily by three judges, to "discharge or vary" the judgments the subject of the notice of motion of 2 July 2002 and the orders made or directions thereby given, insofar as they are not nullities in any event. 17 Ms Wentworth attempted to put in support of these propositions that the jurisdictional basis upon which Brownie AJA purported to make the orders he did, or the judgments he delivered, was necessarily not under s46B(1)(a) but under s46(2) so rendering s46(4) applicable as a matter of right when invoked as Ms Wentworth purports to do here. 18 If I have understood the submissions of Ms Wentworth correctly, she would put in the alternative that s46B(1) applied and that, as so applicable, that section of the Act also permitted an appeal to the Court of Appeal constituted ordinarily by three judges. 19 Thus in either case it is put that the Registrar erred in failing to refer the matter to a Court of Appeal ordinarily constituted by three judges. In addition to these submissions, though in support of them, Ms Wentworth contends that the determination by way of judgment and orders of Brownie AJA constituted a nullity being vitiated by bias or as giving rise to its reasonable apprehension. 20 In considering these submissions, one matter is clear. A single judge of the Court of Appeal may review Registrar Schell's decision but not Brownie AJA's decision. It is axiomatic that there is no jurisdiction for a single judge of this Court to embark on a review of a decision by another judge of this Court, for 'no judge of this Court … is bound by the orders or decisions of a colleague of equal jurisdiction and status", per Samuels JA in Barton v Walker [1979] 2 NSWLR 740 at 750. What I am properly concerned with is simply and solely a review of the decision of Registrar Schell, recognising that Registrar Schell had to identify what had earlier occurred and its jurisdictional basis. 21 The reasoning of Registrar Schell began by noting, as I have done, Ms Wentworth's submission that Brownie AJA, both on 6 June 2002 and on 18 June 2002, was sitting as a single Judge of Appeal pursuant to the provisions of s46(2)(b) of the Supreme Court Act. Further, that s46(4) of the Act "empowers the Court of Appeal (constituted by a bench of three judges) to discharge or vary a judgment given or an order made or direction given by a Judge of Appeal" (para [16] of Registrar Schell's decision). Ms Wentworth is recorded as having further contended, "that because of Pt 51 r2(4)(b) (whereby "appeal" does not include an application for the discharge or variation of an order of a Judge of Appeal or of the Registrar) it is appropriate that "the Court" reviews the orders of Brownie AJA. 22 Finally, Ms Wentworth argued that when Brownie AJA ruled on the admissibility of evidence on 6 June 2002 he was not sitting pursuant to s46B(1)(a) of the Act but as a single judge pursuant to s46(2)(b). 23 The Registrar for reasons he explains, concluded that it was unnecessary to determine in what capacity Brownie AJA was sitting. Those reasons are contained in paras [17] to [20] of his decision and I quote those paragraphs below: "17. The substance of the claimant's motion involves consideration of the power of the Court of Appeal to review - i) a refusal by a Judge to disqualify either himself or another Judge from sitting in particular proceedings, and ii) a ruling as to admissibility of evidence. The answer to the first issue is to be found in Barton v Walker [1979] 2 NSWLR 740 where the Court of Appeal held that a refusal by a judge to accede to a submission that he disqualify himself is not itself a judgment or an order of the court. As a consequence, Samuels JA observed (at 750) "a motion to disqualify a judge of the Supreme Court is not cognisable", and (at 756) continued "The proposition that one judge of this Court has authority to declare that another is disqualified from sitting in particular proceedings seems to me, if I may say so, quite absurd. It is necessary only to point out that no judge of this Court, or of any other court, is bound by the orders or decisions of a colleague of equal jurisdiction and status". The practical effect of the decision in Barton v Walker is that a party alleging bias in a judge must take that suspicion as a ground of appeal after judgment, because until a judgment is delivered there is nothing from which an appeal may be brought. Furthermore, there is no basis upon which Brownie AJA could determine a motion that Ipp AJA be disqualified, such an application may only be determined by Ipp AJA himself. As to the second issue, Brownie AJA ruled on the admissibility of evidence during proceedings in which he was asked to disqualify himself. Those proceedings have not, as yet, been determined but even when a determination is made that aspect will not be subject to appeal. It follows that any such ruling must stand until, at the very least, judgment is delivered in the summons for leave to appeal and only then may it be subject to a challenge in any subsequent appellate action. 18. It is settled law that there is no appeal, either as of right or by leave, from a refusal by a judge to disqualify himself from hearing proceedings. Such refusal does not constitute a judgment or order of the court. Neither may such a refusal be reviewed pursuant to the provisions of section 46(4) of the Supreme Court Act 1970. 19. Rulings as to the admissibility of evidence during proceedings are not considered to be judgments or orders for the purpose of securing interlocutory relief, with very good reason. To allow each and every ruling to be subject to interlocutory relief would unduly delay and interfere with the proper conduct of proceedings and also create havoc with the system of administration of justice. The proper method of challenging evidentiary rulings is by way of ground of appeal, should such a course become necessary, when the final judgment in the proceedings is delivered. 20. The only conclusion I can reach is that the notice of motion brought by the claimant is misconceived in that the relief sought is not available at this time. To that extent the motion is an abuse of the process of the court. Pursuant to Part 13 rule 5 of the Supreme Court Rules I order that the motion be dismissed." 24 It is unavoidably necessary that I first consider the matters pertaining to the order finally made under [20] above by the Registrar. This is not for the purpose of impermissibly purporting to review the orders or decisions of a colleague of equal jurisdiction and status, being Brownie AJA in the instant case. Rather it is to deal with whether there is any basis for challenging Registrar Schell's decision on the basis that Registrar Schell was in error in concluding against Ms Wentworth's proposition that an appeal lay as of right pursuant to s46(4) from any or all of the determinations by Brownie AJA. 25 The following matters were determined by Brownie AJA. The question is whether, in each case, the Registrar should have treated that determination as one which met the description in s46(2)(b) so as to give rise to the possibility of an appeal to the Court of Appeal, namely the exercise of a power "to make any order or give any direction in any appeal or other proceeding, but not an order or direction involving the determination or decision of the appeal or other proceedings". I set out the first of these below:

First matter 26 Brownie AJA, sitting on an application that he disqualify himself by the applicant Ms Wentworth, ruled that evidence should be rejected which was sought to be introduced by the applicant from herself and other deponents setting out their apprehension as to the demeanour and conduct of Brownie AJA during the hearing of the summons proceedings (the summons of 14 August 2000 seeking leave to appeal against the decision and orders of Ireland J); Ipp AJA to the extent that it was a matter for him, agreed. 27 Clearly that decision, taken in course of an application for disqualification, is inherently part of that subject matter. An application to disqualify could only be determined by the judge whose disqualification is sought. That is so well established as to be axiomatic. Indeed that proposition was not itself directly challenged accepted by the Applicant in the proceedings before me, though she would, based on her argument, add the qualification "in the first instance". The issue is simply whether an appeal lay from that determination such that the Registrar was in error in denying the availability of such appeal. 28 The determination by Brownie AJA not to disqualify himself, and the associated determination not to admit evidence sought to be proffered in relation to that disqualification, do not of themselves constitute "any order or … any direction" as required for s46(2)(b) to apply at all. Clearly enough, were further reason needed to preclude s46(2) applying, neither determination is in any appeal". Even if either determination were embraced alternatively by the expression "in … other proceedings" on the basis that these extended to interlocutory matters of this kind, those (interlocutory) proceedings were thereby determined or decided, so as to be excluded from the scope of s46(2), by its concluding words. 29 Given the absence of any order or direction, a judicial determination not to admit evidence in a disqualification application, like the associated judicial determination, is made in a context where present authority supports the proposition that no formal application can be made for disqualification. Nor it appears does the actual decision whether or not to disqualify oneself give rise to a judgment or order in any appealable sense (though an appeal may later be achieved, but only once the non-recusing judge has handed down the substantive judgment in relation to which his disqualification was sought). Thus in Barton v Walker (supra), the matter commenced with an informal letter. Whilst later it was sought formally to move in open court for the judge's disqualification supported by an affidavit, the full court subsequently ruled that the application was one which of its nature could not be the subject of a formal application. 30 The Court of Appeal in Barton v Walker considered that the primary judge had correctly rejected both the claim that he should disqualify himself and the procedural mode adopted for that application. After referring to the informal practice normally adopted for dealing with such applications and the lack of any precedent for the making of a motion in such circumstances, Samuels JA (with whom Reynolds and Glass JA agreed) identified a number of difficulties with the submission that such an application could be made. "Some procedural backing for a motion that the judge should disqualify himself might be derived from the language of Pt 41, r11(3)(c), or Pt 34 r5(1)(c), or from the directions in Pt 26 r4(1)(c) of the Supreme Court Rules , on the footing that what is sought is an order concerning the conduct of proceedings in the Court. It is, however, to my mind, a matter of real difficulty to conceive of an order directed by the judge to the judge forbidding himself to hear the case, at least in the absence of statutory regulation. Moreover, there would appear to be no way of enforcing such an order, since committal or sequestration of property … can hardly be regarded as appropriate remedies to be enforced against a judge for disobedience of his own order. It is no answer to this problem to assert that, upon a motion of the kind in contemplation, other ancillary orders of a more regular kind might be sought and made (eg for relisting before a registrar) about which the same question of enforcement would not, or might not, arise. The fundamental conceptual difficulty, granted the possibility of the judge changing his mind, remains unresolved. The further difficulty encountered is that of the judge acting as a judge in his own cause. How does the judge deal with assertions of fact which he knows to be incorrect? They might not be challenged by the party not moving. How can the judge himself introduce evidence upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate?" (at 749) 31 Similarly, the application for a declaration was refused on the ground that no judge could be bound by the orders or decisions of a colleague of equal jurisdiction or status (at 756). 32 In the case of a collegiate court, His Honour identified additional difficulties: "Suppose a challenge is made to one judge of the three rostered to hear the case. How is the matter to be dealt with? Does that judge hear the 'motion' and make an 'order' which may affect the court's business, something which he would ordinarily have no power to do? Or do his colleagues determine the application, and make an 'order' which binds him, something which they would ordinarily have no power to do? Or is another division of the court to be assembled to decide the matter?" (at 749-50) 33 In view of these matters, Samuels JA concluded that a motion to disqualify a judge of the Supreme Court is not cognisable, describing the present practice as "sensible and adequate" (at 750). 34 On the ground, therefore, that no order is made by such a "decision", the Court held that no appeal could lie, leaving the parties to seek relief only as a ground of appeal after judgment (at 758). 35 Mahoney JA in Bainton v Rajski (1992) 29 NSWLR 539 also identified a number of problems which could arise if formal applications to disqualify could be made. First, in common with Samuels JA in Barton v Walker, he emphasised the difficulties associated with such a determination where the facts said to give rise to ostensible bias were contested. In such a case, the judge would clearly be asked to be a judge in his own cause. Furthermore, where facts were in contest, a trial of those facts might itself achieve the result that the judge would have to disqualify himself or herself on the ground of apprehended bias. Finally, allegations made to disqualify a judge might constitute a contempt of court, the allegations made in the case itself including matters which might have fallen within that category. These matters led Mahoney JA to conclude that there was no single procedural solution which would achieve justice and the appearance of justice in every case, while also promoting the interests in the efficient and cost effective administration of justice. 36 That a decision by a judge not to disqualify himself or herself is not susceptible to review by appeal, at least until judgment in the substantive proceedings has been handed down, has been criticised by Kirby P (as he then was). Thus Kirby P in Rajski v Wood (1989) 18 NSWLR 512 at 515-6 after earlier noting that "it may one day be necessary to review that holding [i.e. the decision in Barton v Walker] stated: "It seems plain that once the principal litigation commences it will take a very long time. It will thus involve substantial public and private cost. Clearly, it would be a misfortune if the principal proceedings, with the background now briefly referred to, the multitudinous issues raised and the numerous proceedings appended to it were to advance for a long time only later to be invalidated by an appellate decision that Badgery-Parker J's conclusion on the application for disqualification was wrong or, at least, not the preferable conclusion in the circumstances. Indeed, it is inevitable that the longer the proceedings endured before that issue was tested on appeal, the greater would be the inescapable practical pressure to leave the decision undisturbed." (at 515-6) 37 More recently, in Brooks v the Upjohn Company (1998) 156 ALR 622 the Full Court of the Federal Court considered that, in contrast to the case before it, the decision in Barton v Walker should be confined to cases where no notice of motion had been filed, no formal order was made and no reasons for judgment were published. It was acknowledged that such a distinction "tends to attribute considerable importance to form over substance", although it was also acknowledged that the question is in any event "a technical one of procedure where matters of form are quite often of importance." (at 628). 38 Alternatively, the Full Court expressed the view that, if Barton could not be distinguished, they would, with respect, decline to follow it. On this matter, the Court held: "The problems which Samuel JA identified in Barton … which led to His Honour characterising a disqualification motion as 'not cognizable' are, in our view, not insurmountable. For example, a disqualification order or an order refusing to disqualify might be regarded as being in its nature declaratory and self-operative in the vast majority of cases. Enforcement problems are unlikely to arise. Next was the perceived problem of a judge changing his or her mind. Disqualification orders are clearly interlocutory and the usual principles with regard to variation or recall of interlocutory orders would apply." (at 630) 39 Finally, on balance, the Full Court considered as a matter of discretion that the convenience of reviewing a decision to sit at an early stage of the proceedings outweighed the difficulties identified by Samuel JA in Barton v Walker. In the case before the Court, to have refused to entertain the application might have led to a decision given after a long hearing (four months) being overturned on appeal on the ground of apprehended bias when that matter could have been addressed at the outset. Ultimately, however, the court was able to reach its decision on the ground that other interlocutory orders had been made of a character which were appealable and provided a vehicle for review of the decision on disqualification in any event. So what went before was not necessary for the decision reached by the Full Court. 40 The solution suggested in Brooks v Upjohn of making an order on a formal application to disqualify still leaves difficulty. It is to identify the authority to make such an order operative only against the judge making the order or, if recusal arises in relation to a judge in the appeal court, then making such an order operative against a fellow member of the same court and only against that member. Similar difficulties underlie the proposition that a court cannot issue prerogative relief against one of its own judges, albeit that prerogative relief raises special issues. In that context it has been held that the court hearing an application for prerogative relief is exercising the authority vested in that judge and in all of the judges of the court as a composite institution or group. It is on this basis that it has been held that such authority cannot be exercised by one member of that institution against another. Finally, there is the possibility, not to be ignored, of a judge deciding to recuse himself or herself, and the other party seeking there and then to challenge that. If instant appeal be allowed against a decision not to recuse, consistency would require the same capacity for instant appeal against a decision to recuse. This recognises the duty of a judge not to accede to such an application to recuse save on proper cause, certainly when a case has commenced. 41 In the present case, so far only as the exclusion of evidence was concerned, no orders were specifically made by Brownie AJA on 6 June 2002. Ultimately Ms Wentworth's application of 12 June 2002 was dismissed pursuant to Pt 13 r5 as an abuse of process. The application she sought to pursue thus related to the disqualification which in turn subsumed the evidentiary exclusion. Thus even if there be a developing practice, as has been suggested, to permit a litigant to appeal then and there against a decision not to recuse, where embodied in a final or interlocutory order, and even if I were to consider the Registrar bound to permit such a course (as I do not), that would not avail in relation to challenging the exclusion of evidence. There is no order so far as the exclusion of evidence is concerned. Insofar as reliance were to be placed on the order under Pt 13 r5 that related to the application for disqualification. Clearly enough that order was in relation to the later refusal to recuse, not the earlier exclusion of evidence, though the two are clearly connected. Those authorities which might be said to support the capacity to appeal eo instanti from a refusal to recuse include Rajski v Wood (supra) at 518 though only Kirby P; Chow v DPP (1992) 28 NSWLR 593, 600-601 Kirby P. Other decisions include Gas & Fuel Corp Superannuation Fund v Saunders (1994) 123 ALR 323, 337; 52 FCR 48; IOOF Aust Trustees Ltd v Seas Sapfor Forests [1999] SASC 249 (18 June 1999), [205] Doyle CJ (Prior and Mullighan JJ agreeing); Fitzgerald v DPP (1991) 24 NSWLR 45, 52 Mahoney JA. I will deal further with that issue and its possible implications later, in relation to the order made pursuant to Pt 13 r5, dismissing Ms Wentworth's application as an abuse of process, an order repeated by Registrar Schell. 42 Summing up, the first determination by Brownie AJA could not have been made under s46(2) so as to permit discharge or variation of that determination by the Court of Appeal under s46(4) of the Act. In so concluding, I do not need to consider in the context of reviewing the Registrar's determination the possible application of s46B beyond noting that it has no application to a matter of disqualification (as indeed Brownie AJA recognised). To the extent that Brownie AJA and Ipp AJA sat together, this could only arise pursuant to s46B in the context of an application for leave to appeal, being the leave sought in relation to the summons of 14 August 2000 against the decision and orders, being interlocutory, of Ireland J. The complexity added by this satellite litigation upon which the Applicant has embarked, appears to have involved at different times both judges sitting together and then, in relation to the seeking of disqualification of Brownie AJA and subsequently Ipp AJA, each of those judges determining alone that matter, subject to what is said in [47] below. 43 I turn now to the second matter determined, which was then the subject matter of application before Registrar Schell. It can be described in terms of the end result of the two judgments delivered by Brownie AJA on 18 June 2002 and revised 24 June 2002.

Second matter 44 An order was made dismissing pursuant to Pt 13 r5 of the Supreme Court Rules the application by Ms Wentworth of 12 June 2002 whereby Ms Wentworth sought the following orders, "(i) "that Acting Justice Ipp is disqualified for apprehended bias.

(ii) that the judgment on admissibility of evidence by Brownie AJA of 6/6/02 as noted at page 42 of the transcript of 6/6/02 be set aside.

(iii) such further and other orders as the court deems fit.

(iv) Costs." 45 Pt 13 r5 Supreme Court Rules is applicable where "in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings (a) no reasonable cause of action is disclosed;

(c) the proceedings are an abuse of the process of the court …" 46 Essentially, the reasons for that dismissal is that there was no exercise of any power under s46(2) of the Act so as to bring s46(4) into play, nor exercise of any power under s46B(1)(b) of the Act, namely an application "involving a question of practice and procedure in an appeal or other matter in the Court of Appeal (being applications that are not capable of being dealt with by a single Judge of Appeal)". 47 In the shorter of the two judgments, Brownie AJA records that in giving his earlier decision on the admissibility of evidence on 6 June 2002 he was "sitting as a member of the Court of Appeal pursuant to the provisions of s46B(1)(a) of the Supreme Court Act". Whereas "while sitting on the application I disqualify myself for bias … I was dealing with a question that concerned me and me alone. Ipp AJA was sitting in court with me consequent upon an earlier request of the claimant. That request was later varied. I put that aside at the moment. I was sitting as a member of the Court of Appeal constituted pursuant to s46B(1)(a) and I gave a decision." 48 To this, Ms Wentworth contends that:

(a) there was no basis upon which Brownie AJA could have dealt with the application that Ipp AJA be disqualified for apprehended bias, on the basis that only Ipp AJA could determine that matter.

(b) the judgment on admissibility of evidence gave rise either to an appeal as of right under s46(4) or an appeal by leave pursuant to s46B(1)(a) and that in denying either, the actions of Brownie AJA were a nullity being vitiated also by bias or apprehended bias. 49 As I have earlier pointed out, Registrar Schell being of the view that it was not necessary to determine on what basis Brownie AJA was sitting, dealt with the matter by pointing to the absence of any judgment or order insofar as each disqualification application was so determined. I have earlier cited the relevant authorities including that relied upon by Registrar Schell, namely Barton v Walker (supra). The only question which that part of Registrar Schell's reasoning requires to be answered is whether the making of an order dismissing the application of Ms Wentworth pursuant to Pt 13 r5 takes the matter outside the principle in Barton v Walker. This would be on the basis that the earlier cited authorities could be invoked to permit a litigant to appeal against a final or interlocutory order on the ground of apprehended bias, based on the order under Pt 13 r5. I should add that a useful summary of the circumstances in which the issue of disqualification has been raised by way of appeal before the case is determined is to be found in the discussion paper by Dr Melissa Perry published by the AIJA entitled "Disqualification of Judges: Practice and Procedure" at 43-4 which I quote below: "3.47 The utility of the practice of permitting an associated or later order to constitute a vehicle for determining the correctness of a decision by a judge to sit has also been acknowledged. For example, in Australian National Industries Ltd v Spedley Securities Ltd (In liq) Mahoney J stated that "there is obvious convenience in there being available a method for determining an issue of this kind before the judge enters upon the hearing of a case, particularly a long case: cf Rajski v Wood ." 3.48 Thus, where a judge is assigned to a particular case at an early stage of proceedings (such as where a court operates under a "docket" system), a dissatisfied litigant may have the opportunity to seek leave to appeal against an interlocutory order in order to seek an early resolution of the question of disqualification. Equally it has been held that, where the announcement by the judge of his or her decision on an application for disqualification is accompanied by ancillary or consequential orders, an appeal may be brought against those orders and the issue of disqualification raised in this way. The context in which the refusal to disqualify is made can therefore be critical to the question whether an appeal can lie by virtue of which the decision on disqualification can be reviewed. 3.49 The circumstances in which the issue of disqualification has been raised on such an appeal can be summarised as follows: (a) In Australian National Industries Ltd v Spedley Securities Ltd (In Liq) the appellants had, by a notice of motion, sought a direction from the primary judge that he not list the proceedings for hearing before him on the ground that he ought to disqualify himself. The primary judge refused the application and the New South Wales Court of Appeal held that it could entertain the appeal. (b) In Gas & Fuel Corporation Superannuation Fund v Saunders, the correctness of the trial judge's decision to disqualify himself in circumstances where final judgment had been reserved was raised by way of an appeal against an order by the trial judge for a retrial, together with orders as to costs and related matters. (c) In IOOF Australia Trustees Ltd v Seas Sapfor Forests, the Full Court of the South Australian Supreme Court allowed the appellants to argue that the judge erred in rejecting an application that he disqualify himself in support of its appeal against a ruling made during the trial on questions of law affecting the admissibility of evidence. At the time of the appeal, the trial had not been completed. In allowing argument on the decision of the trial judge to proceed over objection, the court permitted the appellant to rely upon the conduct of the trial judge both before and after the evidential ruling. (d) In Brooks v The Upjohn company, the Full Court of the Federal Court held that an order by the trial judge fixing the trial date would suffice. If it was necessary for such a vehicle to exist to found the appeal, and indeed even the costs order made when the judge declined to disqualify herself would have sufficed." 50 Dr Perry identified a number of factors which limit the availability of review through the vehicle of an appeal against interlocutory order. First, this option will not be available where the judge's "decision" on the request to disqualify is not accompanied by orders and subsequent interlocutory orders are not made. However, as she points out, such a discrimen makes the availability of an appeal depend on this accidental circumstance of form. Moreover, against that availability of review, there is still the absurdity of a judge making an order against himself, or indeed (if declining to recuse) directed to himself to sit, to which Samuels JA referred, quite apart from how such an order could be enforced. This also overlooks a possible further complication to which I have earlier (at [40] made reference. If appeals against refusal to recuse are allowed to be heard instantly why should there not be instant appeals against a decision to recuse? Finally, Dr Perry suggests that this option is less likely to be available in courts which, like the Supreme Court, do not operate under a docket system and in appeals where no preliminary orders may be made. 51 I consider that the capacity to entertain such a pre-trial appeal against refusal to recuse, if such there be, is not invoked merely by the consequential order on the part of Brownie AJA to dismiss the Applicant's motion as an abuse of process under Pt 13 r5. But in any event, I do not consider that the Registrar was bound to refer the matter to appeal by the authorities earlier cited, none by a majority of this Court, as against the still binding authority of this court in Barton v Walker. In particular he was at the least not bound to treat this order dismissing the Applicant's motion as sufficient basis to require the Registrar to refer the matter by way of appeal to a court of appeal, constituted ordinarily by three judges. Authorities applicable to a final Court of Appeal, as applied for example to the House of Lords in R v Bow Street Magistrate; ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 or, potentially, our High Court (see, Kartinyeri v Commonwealth of Australia (1998) 72 ALJR 1334), may reflect a greater readiness to permit immediate consideration by that Court of any "appeal". And for the High Court in Australia, unlike the United Kingdom with the House of Lords, there is no capacity for a retrial before a differently constituted bench. 52 But if one were to conclude that the Registrar did have a discretion whether or not to refer the matter to the Court of Appeal at that point, even though such referral would have been before the actual leave to appeal from Ireland AJ had been determined, there is nothing in the present circumstances to indicate that exercise of that discretion by the Registrar miscarried. Nor that this Court, on a review, should set aside its natural inhibition in what is a matter of procedure against substituting another discretionary determination for that of the original tribunal, when no vitiating error has been demonstrated; compare Westpac Banking Corporation v Abemond Pty Ltd (SC(NSW) Santow J, 28 October 1994, unreported). 53 It is important to remember that leave to appeal from the original decision of Ireland J (see para 6 of Registrar Schell's determination, quoted in [7] above) is still to be determined by Brownie AJA and Ipp AJA. I consider that that determination is the only matter which may properly proceed at this point. The other proceedings seeking to challenge Brownie AJA's refusal to recuse himself and the earlier though associated evidence exclusion, could not now be considered without abuse of process. Looking at the matter as a discretionary one, that is even assuming in Ms Wentworth's favour there were a discretion to permit an instant appeal, it can be readily seen that unlike a long trial with a judge whose disqualification is sought, "leaves to appeal" do not ordinarily take a great deal of time. Cost considerations clearly favour proceeding with that leave to appeal before any disqualification appeal is contemplated. The process here embarked upon of repeated attempts to appeal from a refusal to recuse is time consuming, potentially very costly as well as clear abuse of process. That costs are thereby at risk is not refuted by the current defendants declining to appear, given the risk for them of meeting their own costs for which cost orders may not fully compensate. Moreover, a self-represented litigant faces no cost burden (save their time) in mounting such successive applications, when there is no opposition. Furthermore, what the judge so challenged does in deciding the substantive matter before him or her, if permitted to do so before any appeal is entertained, may not be irrelevant to the utility of entertaining further appeal in relation to a refusal to recuse. Reasons given may dispel any reasonable basis for apprehension of bias. That needs to be weighed in considering cost considerations. So too the likely length of time to be taken in proceedings where recusal is sought. This should distinguish the very lengthy case from the present leave to appeal, currently still delayed. 54 Finally, I would add this, in regard to the specific attack made by Ms Wentworth upon the Registrar's exercise of discretion. The notice of motion by Ms Wentworth of 2 July 2002, insofar as it amounts to a challenge to Brownie AJA's earlier dismissal of Ms Wentworth's notice of motion of 12 June 2002 presupposed an avenue of appeal as of right pursuant to s46(4). There is no such appeal as of right, for the reasons earlier stated. The Registrar was entitled to conclude that the proper determination of the notice of motion before him was for him to dismiss it summarily as an abuse of process. It is true that, in the case of interlocutory matters which arise in the course of a hearing, two judges of the Court of Appeal pursuant to s46B may in appropriate circumstances in an interlocutory matter determine that justice requires there be an immediate determination by the Court of Appeal of the particular question so raised. But there is nothing in the present circumstances which points to the Registrar having failed properly to exercise his discretion in not referring the matter to two judges for them to consider whether to give leave to appeal, were there such a power available in the present circumstances. 55 Pt 13 r5, if it is to have any practical use, must be available for summary dismissal of applications that have no proper basis. That was the case here. 56 Finally, I consider that the overriding interests of justice require that the original summons for leave to appeal from the decision of Ireland AJ (determining that there was no cause of action disclosed) should be determined without further delay or interruption from satellite litigation of the kind rightly dismissed by the Registrar as an abuse of process.

Conclusion 57 The further Notice of Motion of Ms Wentworth of 19 September 2002 seeking review of the Registrar's determinations, is dismissed as a further abuse of process pursuant to Pt 13 r5. Repeated applications of this sort, involving successive abuses of process, are clearly a major inroad on the Court's time with the potential seriously to interfere with ongoing business of the Court. Regrettably, there is no basis for an order as to costs, since the other parties, for understandable reasons, have chosen to play no role in the current phase of these proceedings.

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