Wentworth v NSW Bar Association S26/1994 [1994] HCATrans 157 (7 December 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S26 of 1994

B e t w e e n -

KATHERINE WENTWORTH

Applicant

and

THE NEW SOUTH WALES BAR

ASSOCIATION

Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 DECEMBER 1994, AT 2.30 PM

Copyright in the High Court of Australia

BRENNAN J: Ms Wentworth, you are appearing for yourself, are you?

MS K. WENTWORTH: I am, I am sorry to say, Your Honour.

MR P.R. GARLING, QC: If the Court pleases, I appear with my learned junior, MS R.P. RANA, for the respondent in both motions. (instructed by Price Brent)

BRENNAN J: The first notice of motion is one dated 10 May 1994 in which you are seeking a vacation of the order refusing special leave, Ms Wentworth?

MS WENTWORTH: Yes, Your Honour.

BRENNAN J: Ms Wentworth, your time will be limited to 20 minutes in analogy with the special leave rules we adopt in this Court.

MS WENTWORTH: Your Honour, I will seek to deal with the matter in 20 minutes but I doubt that I can.

BRENNAN J: You will understand that your application is for a vacation of the order made.

MS WENTWORTH: Yes, Your Honour.

BRENNAN J: It is not a special leave application itself.

MS WENTWORTH: I know that, Your Honour. That is why I am a little concerned of the time limitation, Your Honour, it is a different application, and the rules would not - in relation to - - -

BRENNAN J: They do not apply, but we will see how we go.

MS WENTWORTH: Thank you.

BRENNAN J: If you have got any reason to have an extension then we will consider that now, but I wanted you to understand that 20 minutes is the time we think is appropriate for the presentation of this application.

MS WENTWORTH: Your Honour, I have prepared some submissions in written form, which I would seek to hand up. Your Honours, I also have notified the Court of some cases which I will be seeking to rely on, and I hand up a list of those.

Your Honour, in this matter the grounds for seeking to reopen the matter are that the applicant was not fully heard in the application for special leave to appeal. Since the application for special leave was heard special circumstances have arisen which would warrant the reopening of the application for special leave, and the Court was substantially misled by the submissions of the respondent at the hearing of the application for special leave, in that matters were put by the respondent and relied upon by him which did not represent the factual circumstances of the case.

Your Honour, the first point which I wish to make in this application is that different standards and criteria emerge as to the activities of those likely to act in a manner inconsistent with the standards of professional conduct required of a barrister. Your Honour, I would refer to the test of "suitable" that this honourable Court - - -

BRENNAN J: Just deal with that first ground.

MS WENTWORTH: Yes, Your Honour.

BRENNAN J: In what respect were you not fully heard?

MS WENTWORTH: Your Honour, the matters which I would seek now to put to the Court are those matters upon which I would ask the Court to give consideration to as matters upon which I was not heard by this Court, Your Honour.

BRENNAN J: There were written submissions and there were oral submissions?

MS WENTWORTH: In either, Your Honour.

BRENNAN J: On the previous application there were written submissions made?

MS WENTWORTH: Yes, Your Honour.

BRENNAN J: And there were oral submissions made?

MS WENTWORTH: Yes.

BRENNAN J: In what respect was the hearing not full?

MS WENTWORTH: Your Honour, the matters which were raised in the written and oral submissions did not fully cover, in substantial form, those matters which it would be appropriate for the Court to have regard to in relation to an application for special leave to appeal.

BRENNAN J: That is tantamount to saying that, "On the first application I didn't put forward certain matters and when that application fails I now want to come along and put forward other matters."

MS WENTWORTH: Your Honour, I am not seeking to put it on that basis.

BRENNAN J: But that is what you are saying, is it not?

MS WENTWORTH: Your Honour, what I am putting forward at this point is that there were matters which should have been brought to the attention of the Court in a special leave application which were not, and in that respect the Court was not fully appraised of the matters which it should have been in considering the special leave application.

I suppose one of the problems with this sort of application is this, Your Honour: it is not in the nature of an adversarial proceeding in the normal course which is as Your Honours found in 1992. An application for admission is a proceeding which is sui generis. It is not something which is necessarily curtailed within the normal procedures and rules of court. It is a matter for the Court to put together the procedures which it considers appropriate for the purposes of hearing the application and, on that basis, Your Honour, the submission is put that there were matters which this Court should have had its attention drawn to which it was not appraised of and, therefore, could not have considered in refusing the application for special leave. That is the first basis on which I make the application, Your Honour.

Perhaps I can just outline the three major bases. Since the application for special leave was heard, Your Honour, my circumstances have changed in this respect: the matters which the Bar Association raised for the consideration of the Court arose substantially out of, or almost completely, in respect of litigation in relation to what I will call the "Rogers retrial".

Those matters, Your Honour, have been the subject of a great deal of litigation and also publicity, and I do not seek to elaborate on those in this Court, except to say this, Your Honour, that I have now, by way of affidavit, in support of this application, raised for this Court's consideration the different set of circumstances in which I am now in, in that two things have happened: the two applications, mine and Mr Rogers, were severed; a jury in June determined matters in relation to my claims in my favour; and in 0ctober His Honour Mr Justice Loveday dismissed Mr Rogers' application for malicious prosecution for want of prosecution.

Your Honour, I did, on the occasion before His Honour Justice Mason, hand up a copy of His Honour Mr Justice Loveday's determination and orders. I do not know whether that has reached the file, but I have copies of those with me, and I would seek to hand those to the Court for completeness.

BRENNAN J: Dealing with this part of your application, you are seeking to introduce evidence that was necessarily not before the Court of Appeal?

MS WENTWORTH: Yes, Your Honour.

BRENNAN J: Now, the rule in this Court, in exercising its appellate jurisdiction, is that we have jurisdiction to make the order which ought to have been made by the court below on the material then before it. If there is fresh evidence that comes in then it does not come in on appeal to this Court.

MS WENTWORTH: Your Honour, I think there is authority that allows this Court, if it considers it appropriate, to consider matters which have occurred since the matter was before the Court of Appeal - - -

BRENNAN J: It can in order to frame a remedy in certain circumstances.

MS WENTWORTH: Yes.

BRENNAN J: But you are seeking, as I understand it, to say, "Even if the Court of Appeal was right on the material before it, there is now new material which shows that if they had had this material they might or would have reached a different decision."

MS WENTWORTH: It certainly would have been material that they would have had to have taken into consideration in coming to their determination, Your Honour, indeed. And I would say that it is stronger than that, that it is material of such a nature that had they indeed had it before them they would have been entitled to say, "That litigation in which Ms Wentworth has been involved is now complete. It is finished. There is a lid on that box." That now, I suppose, completes a cycle. "Those matters, about which we have made determinations against Ms Wentworth", in each case, Your Honour, "related to that particular litigation." The Court would be entitled to say, "That was extremely personal litigation. The matters which were found against the applicant were all matters in which she represented herself. That litigation is now complete."

The findings that were made against me, Your Honour, were that I was not suitable to be a barrister, in that the court said, "Looking at past conduct, we prognosticate into the future and say that we feel that her future conduct may not be such as would be suitable for her admission as a barrister."

Your Honour, since the occasion of the Rogers litigation being put to one side, I would ask this Court to exercise its jurisdiction, which it clearly has, to look at those matters and to give them the weight which the Court of Appeal, had they been before them, which they could not have been, could have given to them, in weighing up in the balance as to whether conduct, which they had found to be such as to make me unsuitable to be a barrister, would be finalised by the finishing of this particular section of litigation and that the court would therefore be quite satisfied that in the future those stresses and those matters, no longer being such as I have to deal with, would make the court confident that in the future my conduct of litigation would be such that it would serve the public and serve the due administration of justice. There are some further matters - - -

TOOHEY J: But you are really seeking to do, Ms Wentworth, now, is to bypass the courts below and invite this Court to determine questions that were before the courts below, by reference to evidence which those courts have not had an opportunity to consider.

MS WENTWORTH: Yes, in some respects, Your Honour, that is correct.

TOOHEY J: Not just in some respects, in significant respects, is there not?

MS WENTWORTH: Your Honour, it may well be that if this Court decided that those were matters that were appropriate to be considered, that this Court may do one of two things, I suppose. It may determine that it would send the matter back to the Court of Appeal for reconsideration, which is one course which would be open to it or, alternatively, it can in fact deal with the matters itself which I would ask the Court to do on appeal. They are, to some extent, limited in scope, Your Honour. I suppose that there has not been, and I cannot find any guideline for any of this, Your Honour because there does not appear to be any circumstance in any way that I can say to the Court confidently, "This is an area in which I found some sort of material which would assist you." I cannot. It simply does not exist, Your Honours.

Up until the Rogers retrial, although I had been granted a retrial, I was in a circumstance where I suppose one could say that I was being, and had been, the butt of much negative activity. Once the retrial had taken place, because of the determination of the jury and the non-pursuance by Mr Rogers of his application for malicious prosecution, Your Honour I am in a position where I can hold my head back up in the community and I can say, "That area of my life is now over. It is finished." And I am in a very different circumstance from the circumstance I was in even when this matter came up to the Court for leave to appeal in April this year.

So, Your Honours, that is a matter which this Court is entitled to give a remedy for if it considers it to be the appropriate course. I would urge on Your Honours in this case it is an extremely appropriate course. My life has been turned upside down by this litigation literally since 1977 and, Your Honours, I would say that it is reasonable and fair to say now in 1994, having completed a law course in 1991, that I be given the opportunity at this stage to puruse a career for which I have retrained. That, Your Honour, is the starting point.

If I am taken around the circle once again, of going back to the courts and going back through the Court of Appeal, et cetera, I am looking at further time and at the age of nearly 55, Your Honours, that is something which is extremely oppressive. Your Honours, I simply put to the Court that circumstances being so changed this Court is entitled to look at these matters and make a determination which would be favourable to me, and I would seek the Court's indulgence to move further on that matter. I have before the Court a lengthy affidavit, Your Honours, which goes to these matters.

BRENNAN J: That is the material that you would wish the Court to consider if it were going to grant special leave and entertain an appeal.

MS WENTWORTH: Yes, Your Honour.

BRENNAN J: This is an application for - - -

MS WENTWORTH: Reopening.

BRENNAN J: Leave - reopening and vacating the previous order. Now, Justice Toohey has pointed out to you the difficulty with regard to ground b) as you have it in these notes that you have provided us with today. Have you anything to add to ground b) or are you in a position to move to ground c) now?

MS WENTWORTH: Your Honour, the matters that I wish to raise in ground b) I was only giving the Court an outline as to where ground b) - - -

BRENNAN J: Yes, but we are not going to entertain on this application the merits of what you have to say in relation to the closing of the Rogers litigation, as you call it.

MS WENTWORTH: Your Honour, I recognise that, and I am not asking you to go to the merits of the Rogers litigation. I was simply asking that the matters, which I raise in relation to the Rogers litigation, be given a little more consideration than I presently just outlined as quickly as I could. I have set those matters out, Your Honour, in further outline in the notes and in relation to the Rogers matters, Your Honour, it starts at page 11 of the notes and what I have sought to do with the notes is to direct attention to the documents which are currently before the Court, that is the appeal book with the small supplementary appeal book, which is noted as references AB and secondly the two volumes of the affidavit which are noted as references AFF.

BRENNAN J: Ms Wentworth, speaking for myself I do not propose to look at this material at all until I am satisfied that there is some basis advanced for vacating the order that was made in response to the application for special leave.

MS WENTWORTH: Your Honour, I recognise the test that Your Honour is putting to me in the terms of Smith, that is basically one of the tests.

BRENNAN J: No, it is not a question of the Smith test at all. An application was made for special leave. There were extensive written submissions. There were oral submissions. The order of the Court was made and, thus far, I have not heard a ground for the setting aside or vacating of the order refusing special leave. The first ground is said to be that there was no full hearing; the material is entirely opposed to that. There was a full hearing. The second ground is that material arose since that time. That would be no ground for reopening the decision then made. Unless you can get to first base, Ms Wentworth, you have to overcome this difficulty that there is an order already standing in the Court which dismisses your application for special leave.

MS WENTWORTH: I recognise that, Your Honour, and I am seeking to overcome that problem. Your Honour, the third basis on which I put matters to the Court are the submissions which were made by the respondent at the special leave application which, I would submit, seriously misled the Court. Those matters, I have set out in these submissions. Your Honour, I filed a second affidavit, which I trust Your Honours have, which annexes the transcript of that proceeding. Do Your Honours have that transcript?

BRENNAN J: We have copies of the transcript, yes.

MS WENTWORTH: It was annexure 1 to the second affidavit which I filed, Your Honour, and the matters which arise are set out in the affidavit, Your Honour, which I would seek to read. The matters which I would seek to take Your Honours to are at page 12.5 of the transcript. Your Honours, in outline Mr Jackson has submitted that the finding of the Court of Appeal does not set aside a finding by the primary judge that I was not of good character.

I have set out in detail the reasons in the notes why that is not a correct submission, to the Court and the way in which the Court could indeed have been seriously misled by that submission being made to it. That appears in the notes from page 15 - starting at page 14, Your Honours, at the bottom of the page, because this is in the midst of a different submission, but starting at g) His Honour Mr Justice Campbell determined that I was not of good character for two reasons, saying that I made, "grave allegations against a wide range of people," and that is the quote relied on by Mr Jackson.

Your Honour, the Court of Appeal noted in this context, and I go down to h):

that the submission made by counsel on the applicant's behalf was that she was denied procedural fairness -

and His Honour had made findings that she had made unfound allegations against unspecified witnesses and persons when it was no such part of the Bar Association's case. Your Honour, when I went through to analyse and see what in fact remained on foot as a result of the Court of Appeal's judgment, that finding certainly does not. The Court of Appeal - - -

BRENNAN J: Ms Wentworth, your time has expired, but the Court will extend that time by another five minutes.

MS WENTWORTH: Your Honour, I fear I am not able to put this case in another five minutes.

BRENNAN J: Then that will be a regrettable situation, Ms Wentworth, but you will have another five minutes in which to make good any proposition which might justify the vacation of the order dismissing your application for special leave.

MS WENTWORTH: In that case, Your Honour, I will go back to the first of the matters of not being heard, and it is this, that in my case criteria were used against me as a sole applicant for admission which have never been applied to barristers or solicitors, and within the documentation in this very application, and this has not been brought to the attention of the Court, any of the courts and it should have been, examples of behaviour by various persons and to give you one clear example, in applications to the Court of Appeal set out here in the notes, Mr Rares, within the time frame of a finding made against me that I had misled the court, seriously misled the Court of Appeal, giving an answer to it which, if my answer to Mr Justice Waddell was incomplete or incorrect in some way, the answer given by counsel, that is practising counsel, to the Court of Appeal would be so much more misleading, that that is a matter that the Court is entitled to take into account because I am being tested by criteria quite different from those criteria which are being applied to admitted practitioners.

I, as a litigant in person, in 1986 am having held against me matters which practitioners, acting in courts against me, were doing in exactly the same way and they are still practising.

TOOHEY J: But Ms Wentworth, that amounts to saying no more really than that you wish to run a further application for special leave to appeal. The application was heard, was the subject of submission, was considered by the Court and refused. Now, it is not really enough to just come along and say, "Well, some of the things that were said on one side or the other were not correct." You have got to show some foundation upon which the Court can set aside the order which it previously made.

MS WENTWORTH: Your Honour, the foundation on which I raise these matters are that they are so procedurally unfair and that I have been denied such an extent of natural justice that this Court should, in the proper exercise of its function, look at the matters that I am raising and grant the special leave application so that these matters can be properly dealt with on appeal. They cannot be dealt with in a 20 minute application, quite clearly. They are much too complex. They go to the very heart of the administration of justice, and they go to the heart of the function of the officers of the Court.

BRENNAN J: You are misunderstanding the nature of the proceeding. There was a full opportunity given, so far as I can see, for any grounds for challenging the decision of the Court of Appeal on the first occasion when your application for special leave to appeal was before this Court. Counsel made that application on your behalf, and there were extensive written and oral submissions. Now, you are seeking to add to those and you want to have, as it were, a second bite of the cherry, and you are saying these are additional and important matters which this Court should undertake.

The proposition that you face, however, is that you must set aside the order first made. Unless you can demonstrate some reason for doing so, your application must fail.

MS WENTWORTH: Your Honour, one of the bases on which such an order is set aside is procedural unfairness and a wrong finding of factual matters which this Court has relied upon. Now, Your Honour, one of the things which the Court of Appeal found factually was that I had made groundless allegations against various judges. Your Honour, that factually is demonstrably wrong. There were some matters raised for consideration by proper authorities, including the police.

For any court whatsoever to say that those are groundless allegations when, they firstly have no idea what investigation has taken place, nor indeed do they know the results of those investigations, nor in fact do they know whether those investigations are ongoing, to say that those are groundless allegations, Your Honour, is factually so wrong it is not a matter which can, in any sense, be held by a court. It was not the subject of any evidence, and the Court of Appeal made various findings in relation to what it called "groundless allegations" against judges, which factually simply had no basis. There was no evidential basis whatsoever for them.

Your Honour, this Court normally, on that basis, would send the matter back for rehearing. This Court does not normally allow such procedural unfairness to stand, and when it is pointed out to the Court that there are matters of factual error which have occurred during the Court of Appeal's hearing, relying on the principles set out in Smith, that is a matter of such procedural unfairness, Your Honour, that normally special leave would be granted or, alternatively, the matter would be sent back for retrial to the Court of Appeal to consider.

Those matters, Your Honour, I would ask the Court to look at as being substantial. The court has erred in its factual findings, Your Honour, and this Court - - -

BRENNAN J: Your time has now expired, Ms Wentworth.

MS WENTWORTH: Your Honour, I have, with respect, not completed the submissions I would wish to make to the Court. I thank you for the extra time which you allowed me, but I have not, with respect, had sufficient time to raise for the Court those matters which, in its consideration, it should hear.

BRENNAN J: I understand your view. Your time has expired.

MS WENTWORTH: Thank you, Your Honour.

BRENNAN J: We need not trouble you, Mr Garling, on this motion.

MR GARLING: If the Court pleases.

BRENNAN J: Ms Wentworth has not pointed to any possible ground for vacating the order refusing her application for special leave to appeal. Accordingly, her motion seeking the vacating of that order is dismissed.

MR GARLING: I seek an order for costs of that motion, if the Court pleases.

BRENNAN J: Have you anything to say about that, Ms Wentworth?

MS WENTWORTH: Yes, Your Honour. I oppose any application for costs by the Bar Association. I have served them with the documents, but it is clear that whilst they have been given, by this Court, the right to appear and be heard that does not entitle them to costs of any application before this Court and as such, Your Honour, I rely on the principle set out in Killam v Lane and the principles which this Court set out itself, noting that these were administrative functions of the Court, and I would say to the Court that it is not appropriate that this Court order costs in favour of the Bar Association.

This is an administrative matter which the Court, in hearing it properly, need have no - the Bar Association need not attend. It is a matter for them as such, Your Honour. There should be at the very most no order as to costs made in this application.

BRENNAN J: This application invoking the judicial jurisdiction of this Court and the Bar Association being a party to that application it is entitled to its order for costs. Accordingly, the motion is dismissed with costs.

MR GARLING: If the Court pleases.

MS WENTWORTH: Is that the motion before the Court, Your Honour?

BRENNAN J: Yes. This is the motion of 2 December, is that right, Ms Wentworth?

MS WENTWORTH: That is the correct, Your Honour. The position that I am in now is this: the Bar Association has come to this Court and made defamatory allegations as to 20 of I think 36 particulars raised which, upon the principles outlined by this Court and which this Court now currently allows to stand, would mean that there is not a member of the New South Wales Bar Association who is a suitable practitioner either in this State or in the High Court. If that is to be the test, then, Your Honours, it has to be the test not only for Ms Wentworth but also the test for the practitioners in this State.

If it is not suitable for a non-practitioner to raise matters in this Court which are groundless and unsubstantiated, then it is certainly not proper for any practitioner in this State to similarly raise such matters. So therefore, Your Honours, I would raise that for the attention of the Court before the next motion proceeds.

BRENNAN J: Ms Wentworth, the next motion you commence to address, and that is the motion which we are presently concerned to dispose of, that is your motion of 2 December 1994.

MS WENTWORTH: Your Honour, the reason that I raised it is that it goes to the right of the - members on the right-hand side of the Court to in fact participate in this particular application. I raise it on that basis.

BRENNAN J: What is the order of 25 November which you seek to have vacated?

MS WENTWORTH: The order that I seek to have vacated, Your Honour, is in relation to - there were two orders made, Your Honour. One has a part (a) and (b) - order (1) has the part (a) and (b) - and order (2).

BRENNAN J: Who made these orders?

MS WENTWORTH: His Honour Justice Mason.

BRENNAN J: Yes, I have a copy of the order that His Honour made. You seek to have this Court, a Full Court, vacate the order made by a single Justice?

MS WENTWORTH: Yes, Your Honour.

BRENNAN J: But you do not appeal against it?

MS WENTWORTH: Your Honour, I am seeking simply that the orders be vacated.

BRENNAN J: Why?

MS WENTWORTH: For this reason, Your Honour: the affidavit has not now been read in this Court and, as such, the Court is not aware or otherwise of whether there is material in that affidavit which could or should be the subject of orders such as order (1). What His Honour Justice Mason did, as he sets out in his judgment, is that he left it for this Court to determine whether there was material in that affidavit which would be such as would require the sort of order set out in order (1).

TOOHEY J: But that was really in the event that the Court was prepared to consider the reopening of the application for special leave to appeal, was it not?

MS WENTWORTH: Your Honour, I am not quite sure that that is entirely right. It did, I suppose, presuppose that the affidavit would be read. His Honour's orders certainly go to that. But it is not clear from His Honour's judgment as to whether that is the real criterion.

BRENNAN J: I understand His Honour's order to leave it to this Court to determine any question of relevance.

MS WENTWORTH: Yes, Your Honour. I think it is at the top of page 6 of His Honour's judgment. Without canvassing what it is that His Honour is referring to there, there is not, with respect to His Honour, a basis for that statement. The matters which are raised in the affidavit went specifically to the notice of motion which was before the Court and were relevant to it.

BRENNAN J: What is your view? It was not His Honour's view.

MS WENTWORTH: Your Honour, with respect, His Honour declined to deal with that, and that was why, on the application of the Bar Association which sought orders that those paragraphs be struck out, His Honour declined to make that order. In fact, His Honour pointed out to the Bar Association when they came to the Court that such matters as were relevant in an affidavit could not be scandalous. The Bar Association specifically then withdrew their application which was in terms that parts of the affidavit be struck out pursuant to Order 39 rule 14 of the High Court Rules. On that hearing Mr Garling specifically withdrew that application before the Court. His Honour then left it for this Court to deal with the matters. So there was no testing or any other matter which was canvassed in relation to order (1) which was sought.

BRENNAN J: On the application that we have heard and disposed of today, you can see that the Court took the view that there was nothing in the affidavit, having regard to the matters which you sought to raise with us and which we declined to entertain from you, which could have been relevant to the application.

MS WENTWORTH: With respect, Your Honour, the affidavit has not been read and that is the problem.

BRENNAN J: I understand from what is in the Chief Justice's judgment that the affidavit relates to certain matters which you sought to raise here as matters which had not received proper consideration, is that correct?

MS WENTWORTH: That is correct, Your Honour, and I have referred to one of those matters which were raised for consideration by the police which the Court of Appeal categorised as groundless and baseless, have not been considered evidentially by this Court and cannot have been.

BRENNAN J: That is correct, on the grounds that it was irrelevant to your application for reopening the order that was made dismissing the application for special leave.

MS WENTWORTH: With respect, Your Honour did not let me read those sections, and therefore it is not open, with respect to the Court, the sections not having been read or gone to, to make that sort of determination.

BRENNAN J: It may have been that I have misunderstood what is in the affidavit as distinct from what you have been putting to us.

MS WENTWORTH: Your Honour, that may well be the case.

BRENNAN J: Then what is your application here?

MS WENTWORTH: My application, Your Honour, is that the affidavit as it stands should not be the subject of the sorts of orders which were made on 25 November. What His Honour was doing, which I think emerges from his judgment, was that he was making what was really in the nature of a holding order until such time as this Court made its decision as to what it intended to do. His Honour specifically left the determination to this Court as to what sections of the affidavit were to be considered relevant and which were not. Because we are in a situation where the affidavit has not been read, it has not been considered by His Honour, no determination has been made by him as to what is or is not relevant. He specifically was not required to do that because of the withdrawal by the Bar Association of their order (1).

BRENNAN J: Do you seek to have the affidavit taken off the file and returned to you?

MS WENTWORTH: Yes, Your Honour. That would be one way of dealing with it.

BRENNAN J: What do you say about that, Mr Garling?

MR GARLING: Your Honour, if that is the application, that seems to me to be an administrative matter against which we can have no objection, the affidavit not having been read or tendered to the Court.

MS WENTWORTH: Your Honour, can I just say I did seek to tender it in support of the notice of motion which was before Your Honours earlier. That is the point. I have noted and it is on the transcript that I seek to read the affidavit in support. Your Honours did not rule on that. It is a difficult procedural matter, is it not?

BRENNAN J: Ms Wentworth, as you say, it was not read. That application has been disposed of. Is there any purpose in leaving it on the file?

MS WENTWORTH: Your Honour, if it is not left on the file, then I would seek that order (1) be vacated.

BRENNAN J: Ms Wentworth, the affidavit that you have put upon the file, it is of course physically there. This order was designed to ensure that it was not given a currency.

MS WENTWORTH: That is an affidavit of this Court, yes.

BRENNAN J: Yes. Having regard to the view taken by this Court as to the issues upon which it was required to give consideration in determining the motion for the vacation of the first order, what purpose are you seeking to achieve by the present notice of motion? What is the order of the Chief Justice at the moment precluding you from doing that you wish to do?

MS WENTWORTH: Your Honour, it was pointed out to the Chief Justice at the time of the hearing - it is on the transcript - that the material matters which are in the affidavit are the subject of examination currently by a Royal Commission in this State and also by ICAC. It does not behold this Court to limit the operations of Royal Commissions. No member of this Court is outside the stretch of a Royal Commission.

TOOHEY J: But the order does not, as I read it, preclude publication of information, but rather it is designed to preclude the publication of these qua documents in the proceedings. In other words, they relate to a copy of the affidavit or any version which represents or suggests that the versions relate to documents filed in the Court.

MS WENTWORTH: Your Honour, if the document has not been read, then I would seek to withdraw it from the file and withdraw it from the jurisdiction of this Court. The Court has no jurisdiction to make the order, with respect, in relation to it as made in order (1). It would be appropriate, if the matter has not been dealt with, if it has not been read, that it be withdrawn from the file and from the record and that order (1) be vacated accordingly. That would clear one matter up. The currency or otherwise of the document - it has no currency in relation to the application which it is sworn in support of has been dismissed by the Court. So it has no currency as to order (1)(a) in any event.

BRENNAN J: What about order (1)(b)?

MS WENTWORTH: Your Honour, order (1)(b) is not without difficulty. Order (1)(b) is simply dealt with, as I advised His Honour by reswearing the affidavit in the form of a statutory declaration, taking out any words which refer to it as an affidavit of this Court and I advised the Court this process of being done, and that is the way in which it will be further dealt with. It is not a document which is before this Court in any way and cannot, with respect, be the subject of an order of this Court. That then gets around the problem of provision of information in a proper form to proper statutory authorities.

TOOHEY J: But if the order remained on foot in the form in which it is made, does it preclude you from doing anything that you might wish to do outside the context of this present application?

MS WENTWORTH: Your Honour, my problem is this, that I am not absolutely one hundred per cent sure. I do not think it does, but I do not want to be met with an application from the Bar Association, as I was in relation to this affidavit, of being dragged up here to Court, being met with an application, such as I was again, and being subjected to an order for costs. I do not think that that is either reasonable or fair, and I am simply trying in relation to this particular matter to tidy up the record. Had I been successful in my application in relation to the reopening on special leave, then the orders would have been clearer. But, Your Honour, since the application has now been refused, the affidavit has not been read. With respect, it does not formally form part of the Court file, although it has been filed. It is a difficulty.

BRENNAN J: Ms Wentworth, what occurs to me at the moment is this, that the order that was made by the Chief Justice is obviously intended to ensure that the document which has been filed in this Court in the form of an affidavit is not given a currency or an authenticity of a court document. It does not in any way limit you, as I read it, from making such use as may be consistent with that of any other documents that you may have, or copies of them. For example, if there are exhibits to your affidavit, then it may be that those exhibits can be used in whatever way those exhibits might lawfully be used. But this does not do anything to prevent you from doing that.

MS WENTWORTH: Your Honour, that is the reason for the second orders sought because of something that His Honour says in his judgment. Your Honour, it seems to me that I need to clarify these matters.

BRENNAN J: Let us deal first of all with that proposition. I will see if Mr Garling has anything to say to the contrary. Mr Garling, as I read this order of the Chief Justice at the moment, what it is seeking to do is to deny any badge of authenticity to a document on the basis that it is an affidavit of this Court.

MR GARLING: That is so, Your Honour.

BRENNAN J: Is that all?

MR GARLING: Yes, Your Honour.

BRENNAN J: So that a piece of paper which contains the same words but does not purport to be an affidavit of the Court is a matter for Ms Wentworth?

MR GARLING: With whatever risks it carries and whatever rights attach to it outside of this Court.

BRENNAN J: With whatever risks and consequences, yes.

MR GARLING: That is so, Your Honour.

BRENNAN J: Then all this means is that the document, so far as it appears to be an affidavit, is not to be used with that authority.

MR GARLING: Accompanied by documents purporting to be exhibits to that affidavit.

BRENNAN J: Ms Wentworth, does that clarify things to any extent for you?

MS WENTWORTH: Not really, Your Honour. The real problem is as emerges from some of the annexures to these matters - and it might as well be right up front - since 1977 I have provided information to various authorities, be they commissions, national crime authorities or whatever, in relation to drug activities in this State at great personal risk to myself. I am attacked for that. Your Honour, one of the things that His Honour says at page 6 and going over to page 7 gives me problems because I have annexed to the affidavit which is before the Court as exhibits KW8 and KW9, firstly, matters that were before His Honour Mr Justice Campbell and upon which the Court of Appeal sought clarification from counsel and, as well, the transcript of closed court, KW9.

Mr Garling advised the court that an order had been made by Mr Justice Campbell that the document should be treated as confidential and that it was not to be disclosed or in any way published. I asked Mr Garling to provide me with any such order made by His Honour Mr Justice Campbell, because I was unable to find any such order. I have annexed to the affidavit, Your Honour, the orders which I could find of His Honour Mr Justice Campbell - and it is annexure 2 - which related to these matters.

The two orders that I find of Mr Justice Campbell are made on 28 and 29 October, Your Honour. As far as I am aware, those are the only two orders. Mr Garling has been invited to tell me whether that is incorrect. He was counsel at the hearing. I do not know.

BRENNAN J: So far as the orders of Mr Justice Campbell are concerned, unless there is an appeal brought by special leave from those orders, there is nothing that I presently see that we can do. That is Mr Justice Campbell's order. The Chief Justice's order stands in a different position.

MS WENTWORTH: What I seek to do is to have the orders of Mr Justice Campbell vacated.

BRENNAN J: I appreciate that, but we cannot do it.

MS WENTWORTH: Your Honour, the matter should have been raised on the special leave application. This is one of the matters which was not raised.

BRENNAN J: We have been through that, Ms Wentworth.

MS WENTWORTH: Your Honour, it is a real problem for me, because it has left me in a situation where I am not sure of the status of the documents. In accordance with the Chief Justice's determination, the only order that Mr Justice Campbell makes relates to those copies of the documents which were annexed to an affidavit in exactly the same way as we are talking about the affidavit here and do not relate to any other copies of documents which I have. If that is the case, I do not have problems but if, as His Honour says at page 7:

As things now stand, disclosure or publication of exhibit KW8 would be a breach of those orders and thus a contempt of court -

I do have problems. Your Honour, once again there needs to be clarification and there needs to be a sorting out of the status of these particular documents.

TOOHEY J: But you have got two streams running side by side, Ms Wentworth. You have got orders apparently made by the Supreme Court of New South Wales by way of confidentiality provision, and those orders stand unless that court is persuaded to discharge or vary those orders or there was an application for special leave to appeal to this Court, which is really, as far as I can see, the only way in which this Court could be seized of the matter. But what the Chief Justice's order is designed to do is not to say anything about those orders, but to preclude the dissemination of material in a form that suggests it has the stamp of the High Court on it.

MS WENTWORTH: Your Honour, his orders also appear to say - and that is order (1)(b) - that, as Your Honour clearly pointed out, if I then provided those documents in a different form, there would not be a problem.

TOOHEY J: (b) says:

other versions of the affidavit or exhibits or any of them which represent or suggest that such versions or any of them are related in any way to documents which have been filed in Court.

MS WENTWORTH: That is what I am getting at, Your Honour.

TOOHEY J: But the order of the Chief Justice, again as I understand it, does not go to the material in the documents.

MS WENTWORTH: Your Honour, the reason that I come to this Court and ask for the vacation of His Honour Mr Justice Campbell's orders is because it appears to be in the same form. It does not go to the material in the documents; it only goes to their status as being annexures to the affidavit.

BRENNAN J: I think you can be assured, Ms Wentworth, that there is no jurisdiction in this Court at present which would allow us to make any order with respect to the orders made by Mr Justice Campbell. If there were some problem about the order made by the Chief Justice, then there may be some basis on which we could look at it.

MS WENTWORTH: Your Honours, further I would ask that the order for the respondent pay the applicant's costs of the application be vacated.

BRENNAN J: Why?

MS WENTWORTH: The applicant came to the Court seeking orders in relation to striking out of parts of the affidavit. It then withdrew that application and relied only on its alternative order. Your Honour, I came prepared to argue clearly in relation to order (1) and, as such, it would normally be the case, I would submit, that the order should be that because order (1) was withdrawn not prior to the hearing but when His Honour pointed out to Mr Garling that that was not an order that he could get in that application, that that should be an order that each party pay their own costs.

BRENNAN J: His Honour no doubt had that in mind and made his order accordingly.

MS WENTWORTH: Your Honour, no application was made in relation to the costs of that application. I did not have an opportunity to do that. His Honour handed down the judgment two days after the hearing. It was, as Your Honours see, a printed judgment which was handed to the parties, so there was no submission made in relation to costs of the application. I therefore come to this Court and make the application here in a proper form. His Honour, as Your Honours will see from the transcript, at the end of the day reserved. That was on a Wednesday, and His Honour delivered his judgment on a Friday morning in the form which Your Honours have. So no submission was made as to costs at all.

I seek to make that application here, that that order be vacated and substituted with an order that each side pay their own costs. There was no real reason for the order being sought by the Bar Association. It has no force and effect, Your Honour. The matter should be dealt with in the ordinary way, that when there is a withdrawal at the hearing of the orders sought, particularly in the High Court, then the ordinary order would be that each side pay their own costs. With respect, I make that application.

The third order that I seek is that the order for costs made by the Court of Appeal on 14 February be vacated.

BRENNAN J: That also is the problem of the absence of any appeal from that order, so the absence therefore of any jurisdiction in this Court to make the order that you are seeking.

MS WENTWORTH: That, Your Honour, is the subject of the application to reopen the leave to appeal. Because it was not formally on the application, I have sought to bring it to the Court's attention in this form. The application for leave to appeal ought to reopen, the leave to appeal having been dismissed, Your Honour. I see that there is a lack of jurisdiction, but I would say that the Court is entitled if it sees fit to deal with orders for costs if it wishes to. It does have and has had the matter before it. It is giving consideration to the notice of motion. These matters are all in the same matter and, Your Honour, as such the Court is seized of the matter and is entitled to make such orders as it considers appropriate. I would seek that the orders for costs made by the Court of Appeal on 14 February be vacated.

I would seek further, although that is not sought here because it was part of the application for reopening, that the orders for costs made by this honourable Court in April in favour of the respondent also be vacated. Those orders, Your Honour, are extremely onerous and oppressive. In the normal course, in fairness to parties before the Court, and particularly in fairness to a party who is before the Court claiming that there is procedural unfairness, Your Honour, in an administrative matter this Court is well able to make proper orders for costs.

His Honour Mr Justice Campbell saw the force of that submission and made no order as to costs. I would ask that this Court make no order as to costs as to any of the applications that have been before it, vacate any orders for costs made against me and that further it vacate the order for costs made by the Court of Appeal against me. Those orders for costs, Your Honour, on top of refusal to allow me to work are onerous.

BRENNAN J: Thank you, Ms Wentworth. We do not need to trouble you, Mr Garling, on this motion either.

MR GARLING: If the Court pleases.

BRENNAN J: The notice of motion dated 2 December 1994 seeks a number of distinct orders. The first is that the judgment of the Chief Justice and the order made by His Honour on 25 November 1994 be vacated. Having regard to the terms in which that order has been framed by the Chief Justice, the Court sees no reason either to accede to the application that has been made for the vacation of it or to affect the operation of the order.

The second item of relief sought by the notice of motion relates to orders that have been made by Mr Justice Campbell and the Court of Appeal in respect of certain documents that were before Mr Justice Campbell and the Court of Appeal respectively and an order with respect to costs made by the Court of Appeal on 14 February 1994. The relief that is sought is that these orders be vacated. They are orders of the Supreme Court of New South Wales. This Court, in the absence of a competent appeal against the orders, has no jurisdiction to make any order vacating the orders of the Supreme Court of New South Wales.

The third item of relief which is sought by the notice of motion is further or other orders as the Court sees fit. Within that umbrella Ms Wentworth has sought to have the orders for costs made by this Court on the occasion when special leave was refused and the order for costs made by the Chief Justice on 25 November 1994 vacated. The submission is made that this is an administrative procedure. The jurisdiction that is invoked in this Court is not administrative; it is judicial. The orders for costs were properly made in litigation between parties and there is no ground shown for advancing an argument that any of those orders for costs should be vacated. Accordingly, the notice of motion stands dismissed.

MR GARLING: With respect to that notice of motion we seek an order for costs, if the Court pleases.

BRENNAN J: You would oppose that, I presume?

MS WENTWORTH: I do indeed, Your Honour.

BRENNAN J: There will no order for costs made on this application.

AT 3.40 PM THE MATTER WAS ADJOURNED SINE DIE