Wentworth v Graham & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

IPP JA BROWNIE AJA

Monday 20 October 2003 KATHERINE WENTWORTH v GEOFFREY GRAHAM & ANOR Judgment 1 THE COURT: On 29 August 2003 this Court made orders in the following terms: "(1) Within 21 days from delivery of this judgment, Miss Wentworth is to show cause in writing, by way of affidavits (if she wishes, particularly to deal with the possible inferences to which we have referred), and written submissions, why orders should not be made as follows: (a) Save for the purposes of prosecuting the leave to appeal that has been or may be granted to her, Miss Wentworth is restrained from bringing any interlocutory application in these proceedings without first having obtained the leave of either Ipp JA or Brownie AJA; (b) For the sake of clarity, it is to be noted that the order in (a) applies to the foreshadowed application to set aside the 'determinations, judgment and orders of 17 [sic - 13] May and 4 June 2003', as well as all other interlocutory applications in these proceedings; (c) Leave pursuant to (a) is to be sought by written application setting out the full basis on which leave is sought and the full basis of the claim for the relief the subject of the proposed application, and by written submissions; (d) No oral hearing will take place in regard to such applications for leave; (e) if leave is granted, no oral hearing will take place in regard to any application made pursuant to such leave; all further hearings in these proceedings will be by way of written submissions alone. (2) Miss Wentworth is restrained from making any application in these proceedings that either Ipp JA or Brownie AJA disqualify himself, unless such application is based on cogent fresh evidence". 2 On 18 September 2003 Miss Wentworth applied for an extension of time until 9 October 2003 to answer the notice to show cause. In that letter she stated that Mr Walker SC would prepare submissions on her behalf and those submissions would be filed on that date. On 19 September 2003, however, Miss Wentworth filed extensive written submissions that were obviously prepared by her without any involvement by Mr Walker. 3 Despite the fact that Miss Wentworth had already filed written submissions, solicitors acting on Miss Wentworth's behalf (by letter dated 26 September 2003) repeated the application for an extension of time for the filing of submissions until 9 October 2003. On 26 September 2003 the Court granted that extension. Miss Wentworth did not file any further written submissions by 9 October 2003 but on 13 October 2002 supplementary written submissions were filed. These were said to have been "drawn with the advice of Mr Bret Walker SC". 4 We shall deal firstly with the submissions filed by Miss Wentworth on 19 September 2003 ("the September submissions"). 5 In the September submissions Miss Wentworth argued that this Court did not have jurisdiction to make the proposed orders (set out in paragraph 1 above). She referred to ss 46(2)(b) and 46B(1)(b) of the Supreme Court Act 1970 and argued that these sections prohibited the making of the proposed orders. These submissions are entirely without merit. There is nothing in those sections that precludes the Court from making orders of the kind contemplated. 6 The Court has inherent power to protect its process from abuse: Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 320; Grepe v Loam (1888) 37 Ch D 168. In Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113. the Master of the Rolls, Lord Phillips (in delivering the judgment of the Court of Appeal), said: "The power to protect its processes from abuse is vested in every court. The starting point is the judgment of Baron Alderson in Cocker v Tempest (1840-41) 7 M&W 501: '[T]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it no so, the court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion.' Clear modern restatements of the principle are to be found in the extracts from the speeches of Lord Morris of Borth-y-Gest in Connelly v DPP [1964] AC 1254, 1301 and Lord Diplock in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909, 999 which Lord Woolf CJ quoted in Taylor v Lawrence [2002] EWCA Civ 90 at [52]-[53]; [2002] 3 WLR 640. In the former Lord Morris said that a court must enjoy the powers necessary to enable it to act effectively within its particular jurisdiction in order, among other things, to suppress any abuses of its process. In the latter Lord Diplock said that it would be conducive to legal clarity if the use of the two expressions, the inherent power and the inherent jurisdiction of the court, was confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice. The following year, in Hunter v Chief Constable of West Midland Police [1982] AC 529, 536, Lord Diplock said that the circumstances in which abuse of process can arise are very varied, and that it would be most unwise to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty to exercise this salutary power".

Lord Phillips went on to say: "A court's overriding objective is to deal with cases justly. This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases). This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications. They thereby divert the court's resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit".

Lord Phillips concluded: "It is now well settled … at common law … that a court has power to regulate its affairs in such a way that its processes are not abused". 7 In the September submissions Miss Wentworth repeated an argument that she has made, unsuccessfully, at least twice before, namely, that Brownie AJA has no commission as an Acting Judge of Appeal. As Brownie AJA has explained in his judgment of 29 August 2003, the argument is without foundation. 8 Miss Wentworth then submitted in the September submissions that the joint judgment of Ipp JA and Brownie AJA of 29 August 2003 ("the joint judgment"), the judgment of Ipp JA of that date, and the judgment of Brownie AJA of that date, demonstrate bias against her. There is no doubt that these judgments are condemnatory of Miss Wentworth's conduct, but that is not a reason to refrain from making the orders. The contrary is the case. 9 Other allegations of bias are also made, but these are in essence repetitive of allegations previously made and have been dealt with in the judgments of 29 August 2003. 10 Next, Miss Wentworth contends in the September submissions that it would be procedurally unfair and a denial of natural justice if she were required to seek leave from Ipp JA or Brownie AJA (because each, she asserts, is biased against her). 11 We have expressed views in the present proceedings that her conduct has been egregious. For that reason, should different proceedings involving Miss Wentworth come before the Court, it would be appropriate that neither of us sit. But that does not mean that we must disqualify ourselves from continuing to deal with the application for leave to appeal that led to the satellite litigation referred to in the judgment of Ipp JA dated 29 August 2003 and the present hearing. 12 Regard must be had to the stage that the application for leave to appeal has reached. The history of Miss Wentworth's application for leave to appeal against the decision of Ireland J is recorded in the judgment of Ipp JA dated 29 August 2003. As is set out therein, this Court granted limited leave to Miss Wentworth to appeal on particular grounds that the Court identified. Miss Wentworth was given leave to make further written submissions in respect of the remainder of her grounds of appeal, and any new grounds that she might seek to raise. She filed those submissions on 18 August 2003. The matter has not proceeded further as the second opponent is deceased and probate of his estate has not yet been finalised. 13 Accordingly, with due regard to Miss Wentworth's ingenuity, there appear to be only three bases on which she can bring further proceedings in connection with the leave application. First, she may have to make some application to regularise the position of the second opponent once probate has been granted. Secondly, she may wish to apply yet again for the disqualification of Ipp JA and Brownie AJA. Thirdly, there is an application by Miss Wentworth, made pursuant to a notice of motion filed by her on 4 June 2003, in which she sought orders setting aside "the determinations, judgment and orders of 17 [sic-13] May and 4 June 2003 limiting the grant of leave to appeal on certain grounds". 14 As regards the probate issue and the second opponent, this is a technicality that is not likely to give rise to any issue between the parties. Miss Wentworth is unlikely to experience any difficulty in making application for an order in this connection and it is immaterial to which judge the application is made. 15 As regards any application for the disqualification of Ipp JA and Brownie AJA, no other judge could deal therewith and it is appropriate that any application for leave to bring such an application be made to the judge in respect of whom an order of disqualification is sought. 16 As regards the application for orders setting aside the orders of 13 May and 4 June 2003, Ipp JA asked Miss Wentworth to explain the ground on which such an application would be made. She replied that she was not in a position to do so. From what she has said in the past, it seems that her contention may be that we did not understand all of her arguments. Recognising that possibility, we gave her leave to make further submissions in writing. If she does intend to rely on this contention to suggest that the orders be set aside she faces obvious difficulties, not least because we have accepted that we will reconsider the matter in the light of her further written submissions. Irrespective of that, once it is sought to set aside orders made by a court, it is appropriate that the application in question be made to the court that made the orders. For that reason, we consider that any application for the setting aside of our orders should be made to us, and not to another judge. 17 In the circumstances we do not consider that it is procedurally unfair or a denial of natural justice to require the applicant to seek leave from either Ipp JA or Brownie AJA to make any further applications in the current proceedings. 18 Miss Wentworth's next argument in the September submissions is that there has been a breach of procedural fairness and a denial of natural justice in failing to give her due notice and particulars of the prospect that orders might be made in the terms contemplated. This submission is without substance. The judgment of 29 August 2003 gives Miss Wentworth ample notice, she has sought an extension of time, she was granted the extension she sought, she was out of time in filing her supplementary submissions, those submissions have been accepted. She has dealt fully with the issues. 19 Miss Wentworth submits in the September submissions that she did not delay in seeking to raise her allegations of bias. One reason for making this submission is that we pointed out in paragraph 20 of the joint judgment that an inference was open that Miss Wentworth misled the registrar by saying that she had not brought the last application for the disqualification of Ipp JA because, on 13 May 2003, Ipp JA had said that he "did not propose to enter into any further debate". While we do not find Miss Wentworth's submissions in this regard convincing, we shall deal with the matter on the basis that she did not mislead the registrar. 20 Miss Wentworth's September submissions run to 14 pages. In these submissions she reargues matters that she has agitated several times in the past and which are dealt with in detail in the judgments of 29 August 2003. We do not propose to deal again with those. Nothing she has said persuades us that any of the findings we have made is incorrect. 21 We now turn to the October submissions that were prepared on legal advice. 22 The October submissions point out that the judgment of Sackville J in Ramsey v Skyring (1999) 164 ALR 378 at 389 "supports the present claimant's submission that any such order should be made as a very last resort". We accept this proposition. Nevertheless, in the three judgments delivered on 29 August 2003 we have set out the grounds that, in our view, require extreme measures to be taken. Neither the September nor the October submissions seek to defend Miss Wentworth's conduct described in those judgments. 23 The October submissions raise the question whether this Court has the power to move on its own motion. The submissions accept that "it will not be possible to discern a rule against a court ever moving of its own motion", but again, by inference, urge that that should be done only "as a very last resort", which, it is submitted, has not yet been reached. 24 According to the October submissions, one indication against matters having reached such an extremity is that "no opposing party has made an application for any such orders to be made". The point is properly made and we take it into account in considering whether final orders should be made in the form contemplated or in any varied form. 25 Next, the October submissions do not concede that there is power to order that submissions in support of the proposed application for leave to bring further interlocutory applications should be in writing without any oral hearing. 26 In the judgment delivered by Ipp JA on 29 August 2003 he referred to the "gross abuse by Miss Wentworth of the rights afforded to her as a litigant in court" and said that "Miss Wentworth's allegations were extremely serious and potentially damaging to the administration of justice". In the judgment delivered by Brownie AJA on 29 August 2003 he found that Miss Wentworth had deliberately attempted to provoke the Court in an attempt to bring about a situation where her application would be heard by a differently constituted bench. 27 In Commonwealth Trading Bank v Inglis at 319, Barwick CJ and McTiernan J said: "But the making of unwarranted and vexatious applications in any action which is pending in the court is, in our opinion, a matter over which there is an inherent power in the court to exercise control. There is an essential difference, in our opinion, between regulating the conduct of such an action so as to prevent the court's process from being abused, on the one hand, and impeding a particular person in the exercise of a right of access to the court, on the other hand". 28 In our opinion, Miss Wentworth has so abused the opportunity she has been given to make oral submissions to the Court that the Court, for the protection of its own process, should now prevent Miss Wentworth, in these proceedings, from making any oral submissions. Such an order will prevent the Court's process from being abused, but will not impede Miss Wentworth in the exercise of her right of access to the Court. 29 Although Miss Wentworth is a litigant in person, she has vast experience in the field, she has legal qualifications (she signed her first submissions "K Wentworth BSc Gen Dip Law"), and throughout these proceedings she has made very lengthy and detailed written submissions; in summary, she is well able to present her case in writing and has long experience in doing so. 30 The measure of requiring a litigant to make submissions only in writing, and not orally, is not novel. In Bhamjee v Forsdick (No 2) Lord Phillips drew attention (at [32]) to Taylor v Lawrence [2003] QB 528 where, he noted: "[T]his court, acting within its inherent jurisdiction, created a new procedure for those seeking to reopen a decision of the court in an exceptional case. This was to be an all paper procedure: 'The application will … be considered on paper and only allowed to proceed if after the paper application in this court so directs. Unless the court so directs, there will be no right to an oral hearing of the application'".

Lord Phillips went on to say at [33] and [34]: "It is therefore well established on authority that: (i) This court, like any court, has an inherent jurisdiction to protect its process from abuse; (ii) The categories of abuse of process will never be closed; (iii) No litigant has any substantive right to trouble the court with litigation which represents an abuse of its process; (iv) So long as the very essence of a litigant's right to access the court is not extinguished a court has a right to regulate its processes as it thinks fit (absent any statute or rule or practice direction to contrary effect) so long as its remedies are proportionate to the identified abuse (whether it is existing or threatened); (v) One way in which a court may legitimately regulate its processes is by prescribing a procedure to be conducted entirely in writing. So far as the last of these matters is concerned, if a litigant persistently makes applications or institutes actions that are devoid of merit, then by his conduct he will have disentitled himself to the hearing that would otherwise be available as of right". 31 Applying like reasoning, we consider that Miss Wentworth, by her conduct, has disentitled her from the oral hearing that otherwise would be her right. 32 The October submissions argue: "The claimant should not be treated in advance as someone who almost certainly will trespass on the limits on court time in a species of preliminary application which is envisaged". 33 We repeat that, Miss Wentworth's past conduct requires the making of orders protective of the court's process. Full details of her conduct are set out in the judgments of 29 August 2003. It is sufficient at this stage to observe that, for example, in the hearing on 11 August 2003, when she was given one hour to make her submissions, she made no attempt to comply with that order; much of the hour was taken up with irrelevant matters involving Miss Wentworth making unfounded and very serious allegations against the members of the Court. She persisted in this behaviour despite warnings that she was wasting time. At the end of the hour the Court terminated the oral hearing at a stage when Miss Wentworth had not come near completing her argument because of her persistence in spending her allotted time on making declamatory statements having little to do with the questions before the court. 34 But it is not only the wasting of valuable court time in the course of oral submissions that is in issue here. In the joint judgment we point out that "a cursory reading of the transcripts of the proceedings, particularly that of 11 August 2003, will reveal the degree to which [Miss Wentworth] has gone in being discourteous and in making insulting and disparaging remarks." Miss Wentworth has not dealt with this aspect of her conduct in either the September or the October submissions. 35 As we noted in the joint judgment: "But there comes a time when it is no longer appropriate for judges to be impervious to improper behaviour by litigants, particularly those who make false allegations, are consistently rude, provocative, aggressive and obstructive, and who refuse to accept the decisions of the Court. Care must be taken to preserve a proper degree of restraint, decorum and respect in the courtroom, otherwise the quality of justice will degenerate and administration of justice will be harmed". 36 It is on the latter ground, as well, that we consider that an order should be made that all further applications in these proceedings be in writing. 37 The October submissions point out that proposed order 1(a) might produce confusion. We accept this criticism. It is not intended, for example, that argument on any resultant appeal be within the ambit of "any interlocutory application in these proceedings". We shall amend the order accordingly. 38 The October submissions also contend that the applications for leave should not be to Ipp JA or Brownie AJA. We have already dealt with this above and explained why we consider that of necessity the applications would have to be made to the named judges. 39 The October submissions also criticise proposed order 2 on the grounds that it could rise to difficult questions of construction which is undesirable in any order of Court which could give rise to contempt proceedings. We accept this criticism and will not make an order in those terms. The requirement for Miss Wentworth to obtain leave in writing first is sufficient to protect the process of the Court in this regard. 40 The October submissions refer to Brownie AJA's decision of 6 June 2002 refusing to allow evidence of his conduct by "independent observers". On that date Brownie AJA delivered reasons for that decision. Ipp JA stated that, to the extent that his views might be relevant, he agreed with Brownie AJA. There is no point in reiterating the views expressed therein. As Brownie AJA made clear, the rejection of the affidavit evidence was not intended to prevent Miss Wentworth from tendering the affidavit evidence on any appeal from the decision of Brownie AJA. His decision was merely that that evidence was not admissible in an application made to him for him to disqualify himself. In any event, refusal to admit the affidavit evidence is not a reason to decline to make orders of the kind contemplated. 41 In paragraph 22 of the joint judgment we stated: "An inference is open that the principal reason for Miss Wentworth pressing new applications that we disqualify ourselves is that she had difficulties in presenting reformulated grounds of appeal and making written submissions in support of them. Again, we make no concluded finding as to this issue as Miss Wentworth has not had the opportunity of dealing with it".

Neither in the September nor in the October submissions is any attempt made to rebut this inference. 42 We take that into account as also the omission to deal at all with the aspect of Miss Wentworth's conduct that we described as "her frequent and purportedly intemperate displays of rudeness and discourtesy and the scurrilous and baseless allegations that she has from time to time made against both of us". We pointed out that, "She remains impenitent about her behaviour, which is persistent". 43 Accordingly we hereby make orders in the following terms:

(1) Miss Wentworth is restrained from bringing any interlocutory application in these proceedings (that is, in connection with the application for leave to appeal) without first having obtained the leave of either Ipp JA or Brownie AJA;

(2) For the sake of clarity, it is to be noted that the order in (1) applies to the foreshadowed application to set aside the 'determinations, judgment and orders of 17 [sic - 13] May and 4 June 2003', as well as all other interlocutory applications in these proceedings;

(3) Leave pursuant to (1) is to be sought by written application setting out the full basis on which leave is sought and the full basis of the claim for the relief the subject of the proposed application, and by written submissions;

(4) No oral hearing will take place in regard to such applications for leave;

(5) If leave is granted, no oral hearing will take place in regard to any application made pursuant to such leave; all further hearings in these proceedings will be by way of written submissions alone. **********

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