Wentworth v Graham & Anor [2003] NSWCA 229 (29 August 2003)

New South Wales Court of Appeal

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Wentworth v Graham & Anor [2003] NSWCA 229 (29 August 2003)

Last Updated: 2 September 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: Wentworth v Graham & Anor [2003] NSWCA 229

FILE NUMBER(S):

40277/00

HEARING DATE(S): 11/08/03

JUDGMENT DATE: 29/08/2003

PARTIES:

Katherine Wentworth (Claimant)

Geoffrey Graham (First Opponent)

William Charles Wentworth (Second Opponent)

JUDGMENT OF: Ipp JA Brownie AJA

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Claimant: In Person

First Opponent: N/A

Second Opponent: N/A

SOLICITORS:

Claimant In Person

First Opponent: O'Hara & Company

CATCHWORDS:

PRACTICE AND PROCEDURE - VEXATIOUS LITIGANTS - The inherent power of a court to restrain a person from making unwarranted and vexatious interlocutory applications without leave - History of unmeritorious satellite litigation - Repeated refusal to accept rulings - Repeated refusal to limit oral argments to time periods allotted by the Court - Repeated applications for judges to disqualify themselves on grounds of apprehended bias - Proper conduct of hearings in the courtroom - Frequent and intemperate displays of rudeness and discourtesy, and scurrilous and baseless allegations - Form of orders. D

LEGISLATION CITED:

DECISION:

(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.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40277/00

IPP JA

BROWNIE JA

Friday 29 August 2003

KATHERINE WENTWORTH v GEOFFREY GRAHAM & ANOR

Judgment

1 THE COURT: This is a judgment of the Court delivered of its own motion. It will be delivered at the same time as judgments will be delivered by Ipp JA and Brownie AJA in relation to applications made by Miss Wentworth asking each to disqualify himself. By those judgments Miss Wentworth's applications will be dismissed as being devoid of merit.

2 In Commonwealth Trading Bank v Inglis [1974] HCA 17; (1974) 131 CLR 311 Barwick CJ and McTiernan J said at 320 that:

"[T]here is an inherent power of the court to control the bringing of applications in the course of an action of which the Court is seized for the purpose of preventing a party abusing the process of the court".

Their Honours held that, as part of this inherent power, a court may restrain a person from making unwarranted and vexatious applications in an action which is pending in the Court concerned, without the leave of the Court.

3 In Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113, the Master of the Rolls, Lord Phillips, said at [3]:

"[T]he courts are facing very serious contemporary problems created by the activities of litigants like Mr Bhamjee who are bombarding them with applications which have no merit at all. ... It is also [the case] that the court is having to divert the skilled attention that ought to be paid to cases of real merit which warrant early hearings to cases which have no merit at all".

4 The courts in this State are facing the same kind of problems to which the English Court of Appeal referred. There is a need, in this State, for courts to take appropriate steps to prevent the persistent making of hopeless interlocutory applications that unnecessarily take up the time of the court to the prejudice of the community in general and of other litigants in particular.

5 Attached to the reasons for judgment of Ipp JA in the application made to him to disqualify himself is a chronology of applications and other proceedings in this case. The chronology makes disturbing reading. It records the extent of the satellite litigation initiated by Miss Wentworth stemming from her application for leave to appeal against the judgment of Ireland J (which application was first heard on 7 November 2001) with which this Court is still concerned.

6 During the course of this litigation, Miss Wentworth has repeatedly refused to accept rulings that have displeased her, has attempted to reargue them immediately and then again later on, and she has repeatedly refused to limit her oral arguments to the time periods allotted by the Court. All the satellite litigation initiated by her has been dismissed as being devoid of merit. Miss Wentworth falls within the category of litigants the subject of Bhamjee v Forsdick (No 2).

7 There are other matters to which we would draw attention.

8 In mid-2002 Miss Wentworth applied to the Registrar for orders that various orders made by Brownie AJA be set aside, that Ipp JA be disqualified for apprehended bias and that the judgment on admissibility of evidence of Brownie AJA be set aside. This application failed.

9 Undeterred, Miss Wentworth applied to Santow JA. On 10 December 2002, his Honour dismissed her application. Still undeterred, Miss Wentworth proceeded to the Court of Appeal. There, on 23 April 2003, she commenced by asking that all three members of the bench disqualify themselves. All these applications failed. She then applied for relief setting aside the orders of Santow JA and the Registrar. This application failed.

10 On 13 May 2003, the Court ordered that leave to appeal against the judgment of Ireland J be granted to Miss Wentworth to a limited extent on certain particular grounds, only. We did not finally determine the application as we thought that we might not have fully understood certain of her arguments. We thought that she should be given an opportunity to further explain herself. We ordered that within seven days she formulate new grounds of appeal in regard to other issues that she might wish to agitate. She then sought leave to refer to further authorities in relation to the other grounds of appeal. This application was not then dealt with. No mention was then made of any disqualification application.

11 On 14 May 2003, Miss Wentworth requested an extension of time to file the reformulated grounds of appeal and, on 16 May 2003, this was granted.

12 On 4 June 2003, we delivered our reasons for judgment in regard to our refusal to grant leave to appeal in relation to the remaining issues raised by Miss Wentworth (as explained in the hearing of 13 May 2003) and gave her leave to make further submissions in relation to the new grounds of appeal that had been foreshadowed earlier. Those further submissions were to be filed within seven days.

13 After we had delivered our judgment on 4 June 2003, Miss Wentworth filed a notice of motion on the same date seeking that Ipp JA and Brownie AJA disqualify themselves for apprehended bias. At that stage the application was said to be based substantially on what was said in the reasons for judgment of 26 February 2003. That is, more than three months after delivery of those reasons.

14 Thereafter, Miss Wentworth requested further extensions of time for filing reformulated grounds of appeal in the leave application and these were granted. The reformulated grounds of appeal and the written submissions were only filed on 18 August 2003.

15 On 23 June 2003 the Registrar heard the return of the notice of motion by which Miss Wentworth sought the disqualification of Ipp JA and Brownie AJA. During the hearing, the Registrar said to Miss Wentworth:

"On 13 May this matter was last before their Honours for argument. Can I just inquire why was not the notice of motion brought at that time"?

16 One might think that this was a fair question. The Registrar was inquiring why the disqualification application had not been raised before us on 13 May 2003, having regard to the fact that it was based largely on the judgment of 26 February 2003.

17 The Registrar did not then have the transcript of the proceedings on 13 May 2003 and told Miss Wentworth this. Miss Wentworth replied to the Registrar by saying that on 13 May 2003 she did not get an opportunity to do anything about the disqualification application because Ipp JA had said that he "did not propose to enter into any further debate".

18 As appears from the transcript of the directions hearing on 13 May 2003, Ipp JA then explained, in brief and summary form, what he has set out in his reasons for his judgment delivered today in relation to paragraph 9 of his judgment of 26 February 2003. Miss Wentworth indicated that she wished to take Ipp JA up on his reasons for making the statement that appears in paragraph 9. Ipp JA refused to enter into a discussion on this topic, saying that he did not propose to enter into any further debate on the issue.

19 On that day, the Court then went on to deal with directions necessary to enable it to deal with the remaining issues concerning the application for leave to appeal and, in particular, the reformulated grounds of appeal which had been the subject of orders previously made. There was considerable debate about this. This discussion was followed by an application by Miss Wentworth for costs (which was unsuccessful).

20 Nothing that Ipp JA had said to Miss Wentworth about not wishing to enter into any further debate about paragraph 9 of his judgment of 26 February 2003 prevented her from raising the disqualification application with him. An inference is open that Miss Wentworth misled the Registrar. We make no concluded finding as to this issue as Miss Wentworth has not had the opportunity of dealing with it.

21 Despite the fact that Miss Wentworth had ample opportunity to apply for the disqualification of both of us after the delivery of the 26 February 2003 judgment, she did not do so until 4 June 2003. At that stage it had become obvious that, unless she could present reformulated grounds of appeal in regard to the judgment of Ireland J, she would not get leave to appeal in relation to those grounds.

22 As we have stated, such grounds and submissions were filed on 18 August 2003. 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.

23 There is another aspect of Miss Wentworth's conduct of this litigation that has caused us concern, and that is 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. Allegations of this kind, made by Miss Wentworth, are recounted in the judgments of Ipp JA and Brownie AJA delivered today. In those judgments we each express the conclusion that Miss Wentworth has made allegations against each of us that are false. A cursory reading of the transcripts of the proceedings, particularly that of 11 August 2003, will reveal the degree to which she has gone in being discourteous and in making insulting and disparaging remarks. She remains impenitent about her behaviour, which is persistent.

24 The proper conduct of hearings in the courtroom depends largely on all participants in the proceedings observing certain conventions. These conventions are substantially based on reasonable control over feelings, and respect for others and the judicial institution itself. The courtroom is a place where, not infrequently, the atmosphere becomes intense, emotions become inflamed, and patience wears thin. Sometimes things are said which may be regretted later. Nowadays, virtually all judges adopt a robust attitude to behaviour of this kind. There is a strong reluctance to resort to the remedy of contempt of court to restrain those who in the heat of litigation say things that are rude or insulting or disparaging to the presiding judicial officer. 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. Eventually, steps must be taken to ensure that the time of the court and other parties is not wasted, and unnecessary costs are not incurred in futile litigation launched by obsessive and obdurate litigants.

25 The matters to which we have referred and the conduct of Miss Wentworth described in the judgments we have delivered today lead us to the prima facie view that the time has come to make an order of the kind referred to in Commonwealth Bank v Inglis. This was foreshadowed by Spigelman CJ in the appeal from the decision of Santow JA referred to above (see Wentworth v Graham [2003] NSWCA 104).

26 In addition, we propose not to allow Miss Wentworth to make oral submissions to the Court in any interlocutory proceedings other than in relation to the arguing of her appeal pursuant to the leave that has been or may be granted.

27 On 4 June 2003 we granted Miss Wentworth leave to file within 7 days reformulated grounds of appeal, a draft statement of claim setting out the causes of action on which she intended to rely having regard to the comments that Brownie AJA had made in his judgment of 4 June 2003 (with which Ipp JA agreed), and written submissions supporting her argument that she should be granted leave to appeal on the reformulated grounds. We have noted that Miss Wentworth filed these documents on 18 August 2003. Once the position with regard to the estate of the second opponent has been clarified and an appropriate representative appointed, we will call for written submissions from both opponents. We shall then give a final judgment on the application for leave to appeal. No further oral argument will be allowed.

28 By notice of motion filed on 4 June 2003, apart from seeking orders that Ipp JA and Brownie AJA be disqualified for bias, Miss Wentworth sought orders setting aside "the determinations, judgment and orders of 17 May and 4 June 2003 limiting the grant of leave to appeal on certain grounds". That application has not yet come before us.

29 In a directions hearing on 8 July 2003 Ipp JA asked Miss Wentworth to inform him of the grounds on which she intended to seek the setting aside of the "determinations, judgment and orders of 17 May and 4 June 2003", but she said that she was not in a position to do so.

30 We find it difficult to conceive of any basis on which Miss Wentworth would be entitled to succeed in setting aside the orders we have already made. We shall not preclude her entirely from seeking such relief, but we intend to limit the freedom with which she has in the past, in these proceedings, invoked the aid of the court in interlocutory applications.

31 From her past conduct we think that, despite the judgments we have today delivered and despite the late stage that her application for leave to appeal has reached, it is likely that Miss Wentworth will continue to make applications, without merit, for forms of relief that may well include, once more, applications for the disqualification of one or both of us based on arguments that have previously been rejected. We intend to limit her freedom to do this.

32 Accordingly, we make the following orders:

(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.

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LAST UPDATED: 29/08/2003