The alleged errors
10 The alleged errors submitted by Ms Wentworth can be summarised as follows:
(a) That the plaintiff had repeatedly appealed against refusals to recuse by a number of judges, namely, Ireland J, Brownie AJA and Ipp AJA.
(b) That the plaintiff had sought to have a bench of three Judges of Appeal review a decision of two Judges of Appeal to dismiss a summons for leave to appeal. Contained in that error Ms Wentworth submits is the erroneous assumption that the summons for leave to appeal had been determined.
(c) That Ipp AJA had made a determination not to recuse himself. (Ms Wentworth submits that Ipp AJA has never heard, let alone determined an application by her that he disqualify himself.)
(d) That Brownie AJA had refused to disqualify himself.
(e) That the Ms Wentworth sought that the Registrar deal with her Notice of Motion of 2 July 2002. Ms Wentworth maintains that she only ever sought to have the Notice of Motion dealt with by an appeals bench of three Judges of Appeal.
(f) That the judgment did not address the real issues raised in her Notice of Motion concerning whether to set aside Registrar Schell's determination. (Registrar Schell dismissed the Notice of Motion that challenged Brownie AJA's dismissal of her Notice of Motion which raised issues of admissibility of evidence and contained an application to Ipp AJA that he disqualify himself.)
11 Ms Wentworth also asserts that:
(a) The judgment was not and could not be a proper exercise of discretion because the facts which it was based on are in error.
(b) There was a denial of natural justice and procedural fairness.
(c) The statement by Registrar Schell that rulings as to admissibility of evidence during a course of proceedings are not considered to be judgments or orders for the purposes of the Court was not overturned and should have been.
12 In an application of this kind, Ms Wentworth must satisfy the threshold onus of establishing that reopening the matter is justified by reason that the alleged error was not only made, but the Court has proceeded upon it. That involves identifying the question to which the error is relevant and the significance of that question to the decision reached. Without going into each of the claimed errors identified by Ms Wentworth, I am of the view her claim to re-open does not satisfy that threshold requirement. Nor do I consider there was any denial of natural justice or procedural fairness. Ms Wentworth was given proper opportunity to present both oral and written submissions, as she did.
13 Once that conclusion is reached, I should not deal with matters that may be the subject of appeal, beyond dealing with the one passage in the judgment where I am now aware that error did lie, though corrected elsewhere. This is in order to assess whether the judgment proceeded upon it and the significance of the error in the sense explained earlier. I also need to refer briefly to a subsequent event.
14 The error is at para [15] of my earlier judgment of 10 December 2002 where the following is said:
"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'." [Emphasis added by me and not in the original judgment.]
15 The error lies in the reference to Brownie AJA being taken as having made a decision denying leave to appeal, when he had not done so. That error is made only once. Elsewhere in the judgment the position is stated correctly.
16 Thus at [56] of the judgment of 10 December 2002 it is said that "the original summons for leave to appeal from the decision of Ireland AJ should be determined without further delay or interruption from satellite litigation …". That passage clearly pre-supposes that the decision concerning leave to appeal from the decision of Ireland AJ had yet to be determined. The judgment of 10 December 2002 so proceeded. The error thus had no significance.
17 The judgment of 10 December 2002 (at [28]) referred to 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". It did not elaborate that Brownie AJA was reserved on an application made 19 November 2001 for him to recuse himself. This was however a renewed application by Ms Wentworth after Brownie AJA had earlier declined to disqualify himself on 7 November 2001.
18 Since my judgment of 10 December 2002 was handed down, Brownie AJA gave judgment on that application on 26 February 2003. Paragraphs [10] and [18] record the earlier occasions where he declined applications by Ms Wentworth that he disqualify himself. At [28] he declined again to disqualify himself in relation to the renewed application that he do so, having earlier given reasons for so concluding.
19 I conclude that the result is that the judgment of 10 December 2002 does not proceed on any misapprehension of law or fact, insofar as this identified error is concerned. I am not conscious of any other error upon which the judgment proceeds, as would justify its withdrawal or amendment.