WENTWORTH v RARES and ORS

In that context the matter came before a single judge of this Court who stood it over to enable Miss Wentworth to take such other proceedings to vindicate her view of the compromise as she might consider proper. She commenced proceedings in the Equity Division.

The matter came again before a single judge of this Court sitting by dint of the provisions of s46 and he took the view that the question of fact, namely whether there had been a settlement entered into and, if so, what its terms were, ought to be decided in this Court by a single judge and not in the Equity Division.

One reason for that was, of course, that there was no power in the Equity Division to stay an appeal in the Court of Appeal or to make any other orders which might influence the conduct of proceedings in this Court.

Miss Wentworth disputed that that single judge had power to make such orders and in particular to direct that the issue of fact be tried in this Court.

Her objection came before a Full Bench of this Court over which I presided, and we decided that the orders made were not made without power and we dismissed Miss Wentworth's motions contending that the orders were invalid or without force.

The matter again went before a single judge for mention and finally came before Mahoney JA on 23 October. His Honour was then sitting as the single judge of the Court who would be seized with the task of embarking upon the determination of the question of fact then outstanding, in the context of which the proceeding had come before him.

Miss Wentworth, however, maintained her objection as to Mahoney JA's power to hear that part of the proceeding and to embark upon the inquiry which he proposed to undertake.

After some debate Miss Wentworth indicated that she did not propose to pursue her motion, upon which the learned judge inquired why he should not then dismiss it, which he then proceeded to do. He gave ex tempore reasons for doing so and in the course of those reasons he said this: "The question of fact remains outstanding, whether there was the agreement which Miss Wentworth has alleged and if there was, what the terms of it were."

He then went on to explain that it was with a view to endeavouring to have that matter determined that Handley JA considered the motion and made the orders which Miss Wentworth unsuccessfully challenged before the Full Bench as I have related.

In due course, according to what I think I may say is the normal practice, the transcript of that judgment as transcribed by the court reporter, came back to the learned judge and he, as the practice is, went through it for reasons, amongst others, to see whether he could render it into slightly more felicitous terms and remove any grammatical solecisms and correct any inaccuracies.

So far as I am aware in the time that I have been on the Bench, which is now becoming a very long time, it has always been the practice for judges who deliver an ex tempore judgment to review the judgment when it arrives from the Court Reporting Branch in order to make corrections if, as sometimes happens, the court reporter has not correctly transcribed what the judge recalls having said, or in order to correct other mistakes which were made when the ex tempore judgment was delivered.

There are a number of conventions which I think are very clearly understood. Of course, it is not admissible for a judge, having delivered an ex tempore judgment which results in order A, then to produce another version which results in order non A, nor indeed is it considered legitimate to alter the whole thrust of the judgment by variations made after it has been delivered. The whole of this matter is very well dealt with, if I may say so, by the English Court of Appeal in Bromley v Bromley (1965) at 111.

After the revised judgment was available, which, of course, is required to be authenticated by the associate and then released, Miss Wentworth ascertained from the Court Reporting Branch what record there was of the ex tempore judgment and, comparing the two, found a discrepancy which was this. In place of the sentence which I have read a moment ago the revised judgment said this:

The question of fact which arose in the context of that motion was" - and there was a colon instead of a comma and it continued - "whether there was the agreement" et cetera, as before.

Miss Wentworth then took out a motion challenging the orders made by Mahoney JA and founding for a reason which I confess I do not really understand, upon what is said to be a discrepancy of weight and importance, which again I do not perceive. In support of the motion she sought leave, and obtained it, to serve subpoenas on the Chief Court Reporter and on Mr Justice Mahoney's associate for production, in the Chief Court Reporter's case, of the shorthand note book and the court reporter's draft of Mahoney JA's ex tempore judgment. That subpoena has been served and answered and those documents are before the Court.

1. Draft of judgment of 23 October 1990 - I leave out some words - as transcribed by the Court Reporting Branch.

2. Any memos, memos of telephone conversations, correspondence or notes relating to alteration of the draft judgment.

3. Judgment as certified by you as associate to Mr Justice Mahoney.

I should emphasise, of course, that as Miss Wentworth has said and quite rightly, if I may respectfully say so, the judgment delivered in open court is in a public proceeding. It may not be quite accurate to describe it as a public document, but nonetheless it is a formal statement which is always transcribed by

the court reporter, the essence of which is transcribed by others and which may be, in most courts that is, noted by anyone present who wishes to do so.

The judgment certified by the associate is also a public document and the two are always available for comparison, both of them being available to scrutiny either by reading or by hearing. I add, I see no reason why a subpoena should not be served on the Court Reporting Branch to produce the draft which the court reporter has taken from what the judge orally said so that there will always be means available to compare what it is contended that the judge said on the occasion judgment was delivered, and the certified judgment which may contain variations or revisions.

As to the subpoena served upon Mahoney JA, that is the matter which is really in contest. It has been contended by Mr James that a judge is not compellable to produce documents which have been involved in the performance of his duties as a judge, including drafts of judgments. Secondly it is put that there is a public interest immunity also which covers the situation. In Zanatta v McCleary (1976) 1 NSWLR 230 at 238 and 239 I endeavoured to express the principle which I think is correct. At 239 I said this:

"A judge of a court of record cannot be compelled to testify to the considerations which led him to his decision or to the manner in which he has exercised his judicial powers."

I think there is no significant difference between a prohibition upon a judge's being called to testify and his or her being required to produce in documentary form those considerations which have been involved in the act of judgment. It is a principle, I would have thought, clearly justified by grounds of common sense and policy and this is particularly so so far as the second paragraph of the subpoena is concerned.

As it turns out, of course, the matter is of little relevance because the record of the oral judgment and the certified judgment are available; and, indeed, in an affidavit Miss Wentworth has set out the difference between the two upon which she relies. She proposes to challenge Mahoney JA's order dismissing her motion, which of course she may do, and in that proceeding no doubt she may make such use as she thinks worthwhile or possible of the discrepancy between the two documents, the record of the ex tempore judgment and the record of the judgment certified by the associate.

For present purposes I confine my view to the fate of the subpoena. As I have said, I do not think Mahoney JA is compellable to produce the documents which are sought in the subpoena.

I might add - and Mrs Bennett has pointed out - that Pt40 r2 of the rules of the Supreme Court seems to contemplate a procedure such as that to which I have referred. The recent decision of this Court in Palmer and ors v Clarke and ors (1989) 19 NSWLR 158 turns essentially upon two factors, neither of which exists here. First the fact that the judge on one day gave a judgment and made orders and on a subsequent day appeared to undertake a further judgment or a completion of the first judgment. The point was that it was the first judgment which was the material judgment in the case, and that was defective for want of reasons. The second element in the case, absent here, was, of course, the particular construction of the District Court Act and Rules.

As Miss Wentworth has pointed out, the correct procedure no doubt is for counsel who appears for the judge, which he is entitled to do for someone who is served with a subpoena, to seek to set aside the document, having justified the

failure to produce the documents called for. There is no motion to set aside the subpoena but in my experience an application of that sort is commonly made without any formal originating process.

Accordingly the order I will make which most simply disposes of the matter is to set aside the subpoenas served upon Mahoney JA and his Associate, as they were indeed separate subpoenas, for the reasons which I have already expressed.

(Miss Wentworth and Mrs Bennett addressed his Honour - see 14 to 17 of transcript)

The orders I will make are these: I stand over to 12 December Miss Wentworth's motions of 6 November, two of them, and Mr Rares' motion of 19 November and I reserve the costs of today to the hearing of those motions.

I note that the appeal, Wentworth v Rares, has been set down for 12 December and, to the extent that it may be necessary, I fix it myself for that day, thus affirming the prior order.