Wentworth v Rogers & Anor [2007] HCATrans 629 (26 October 2007)

Last Updated: 1 November 2007

[2007] HCATrans 629

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S500 of 2004

B e t w e e n -

KATHERINE WENTWORTH

Applicant

and

GORDON ROGERS

First Respondent

TONI ROGERS

Second Respondent

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 26 OCTOBER 2007, AT 10.15 AM

Copyright in the High Court of Australia

MS K. WENTWORTH appeared in person.

MR R.M. LOVAS: May it please the Court, I appear for the second respondent. (instructed by Dorrough Smart)

HIS HONOUR: Yes, thank you. Before we begin, I should say I have a certificate from the Deputy Registrar, Mr Grey, which reads as follows:

I have been advised by the First Respondent (Gordon Rogers) that he will not be attending Court on 26 October 2007. The First Respondent has however advised me that he will be adopting any submissions made by the Second Respondent (Toni Rogers). I enclose a copy of an email from him to this effect.

The email that is enclosed addressed to Matt Grey, Deputy Registrar, High Court of Australia, Wentworth v Rogers & Another (S500/2004), omitting the addresses and like material, reads:

I refer to the abovementioned matter and your letter of 9th October 2007.

I am unable to be present but I adopt the submissions made on behalf of Mrs Toni Rogers.

Gordon Rogers.

There is attached to that email a reply:

Dear Mr Rogers

Noted, thank-you.

Matt Grey

15/10/07

Ms Wentworth, it is, I think, your summons of 27 September, is that right?

MS WENTWORTH: Yes, your Honour.

HIS HONOUR: Do you read in support of that summons, first an affidavit of Salvatore Russo filed on 27 September2007?

MS WENTWORTH: Yes, your Honour.

HIS HONOUR: And do you also read a further affidavit of Mr Russo filed on 24 October 2007?

MS WENTWORTH: Yes, your Honour.

HIS HONOUR: Is there any objection to my receiving any part of those affidavits, Mr Lovas?

MR LOVAS: No objections, your Honour.

HIS HONOUR: Yes, thank you. Yes, Ms Wentworth, I have also received, or there is on the file, a written submission from you being the written submission of 25 October 2007. Mr Lovas, you have, I assume, seen that document, have you?

MR LOVAS: Yes, I have, thank you, your Honour.

HIS HONOUR: Yes. That is the material I have, Ms Wentworth. Yes, you proceed.

MS WENTWORTH: I should correct paragraph 13 of that written submission, your Honour. It should refer to the International Covenant on Civil and Political Rights.

HIS HONOUR: Yes, thank you. Yes, Ms Wentworth.

MS WENTWORTH: Your Honour, this application is for an adjournment of one matter of four which are listed for hearing on the same day being 16 November in which I am the applicant in each matter. Your Honour, I have now managed to retain counsel in three of the matters out of the four and I will be representing myself at this stage in the fourth matter, as set out in the written submissions and I do not wish to - - -

HIS HONOUR: The fourth matter to which you refer which as at present you intend to represent yourself is which one, Ms Wentworth? Is that S500?

MS WENTWORTH: No, your Honour, that is S22.

HIS HONOUR: I see.

MS WENTWORTH: It is a matter in relation to costs orders made by the Court of Appeal and the matters in that have already been tested in this Court previously and the respondent’s arguments were rejected in this Court in that matter. Notwithstanding that, your Honour, the Court of Appeal decided that what this Court had to say was irrelevant and therefore that matter should be fairly straightforward, one might have thought. Your Honour, the other three matters comprised the matter which is the subject of the present application and two other matters which are being run together.

The two matters which are being run together, S76 of 1997 and S210 of 1999 in this respect relate to each other in that S210 of 1999 is in relation to the costs ordered in respect of S76 of 1997. It is an extensive matter. We thought we had counsel who is familiar with the matters up until very recently when that counsel died, your Honour. We have now managed to retain further counsel in those two matters. They are being run together in the same set of appeal books and in S210 of 1999, the costs matter, Mr Russo is the second plaintiff, costs having been ordered against him as the solicitor on the record.

Those matters, your Honour, are complex. They, in particular, involve a determination which will go to the substance of the administration of justice insofar as the determinations of jury trials are concerned and they have been now outstanding, your Honour, for matters which are probably not applicable in this application, for some time. I can simply put on the record, your Honour, that negotiations between the parties to settle matters failed and as a consequence the matters now before the Court must all proceed.

Your Honour, the matter which is the subject of this application is quite separate from the other matters. It concerns section 37A of the Conveyancing Act (NSW) and the disposition of property by the first respondent to the second respondent just prior to a retrial of the damages claim in circumstances which the claimant applicant says should have resulted in the dispositions being set aside but which the court did not concur with. It is also a matter which is complicated and lengthy. Your Honour will see that there are three appeal books filed in that matter. I think I saw them being brought onto the Bench for your Honour.

Your Honour, that matter again involves a pleading which will affect the administration of various Acts in various States in relation to the application of section 37A of the Conveyancing Act and, as well, the matters which inherently this Court will need to pronounce on and that is whether a resulting trust and the implications of a resulting trust by way of contributions to the purchase of property can be in any way affected when the parties are husband and wife. That is an important matter, your Honour, and it should receive full attention obviously of the Court.

For me to try to brief counsel on each and all of those matters and to appear myself in S22 on the same day, your Honour, would be extremely oppressive. I have high blood pressure and after being advised by the Registrar that it was the intention of the Court to set all four matters down on the same day I have been attempting to control that blood pressure and that is the subject of the certificates which are annexed to the two affidavits.

HIS HONOUR: There are two of those documents, are there not, Ms Rogers, one I think of September and one of October, is that right?

MS WENTWORTH: Yes, your Honour. I am sorry to be pedantic, but I am Ms Wentworth.

HIS HONOUR: Ms Wentworth. It is too soon after the Perth sitting, Ms Wentworth. I am so sorry.

MS WENTWORTH: Thank you, your Honour. I am extremely sensitive to that, your Honour, and I apologise.

HIS HONOUR: I am not at all surprised and forgive me for it. It was a slip on my part which should not have occurred.

MS WENTWORTH: Thank you, your Honour. Your Honour, the two annexures are annexure C to the affidavit of 27 September 2007 and annexure A to the affidavit filed on 24 October 2007. Perhaps I should take your Honour to those.

HIS HONOUR: Yes.

MS WENTWORTH: Your Honour, both certificates are by my general practitioner, Dr Andrew Hollo. The first certificate of 25/9/2007, your Honour, sets out the blood pressure the doctor has measured and his view of that and the certificate of 18/10/2007, your Honour, sets out blood pressure that he measured on that day and his view of that. I have not been in the interim able to contain blood pressure within reasonable limits. These four matters being put down together are just, from my point of view, causing me great stress and I find that is oppressive, your Honour, and that is the reason for this application today.

I should also say, your Honour, that a further reason, which is set out in the submissions, is that the two matters which are running together, S76 of 1997 and S210 of 1999, will involve a matter which is extremely sensitive to the administration of justice in the circumstances of sworn evidence of a judge’s associate as to statements made about me personally by judges of the court and, your Honour, that is a matter which the Court is going to have to grapple with. The statements were personally pejorative. The statements involved one judge stating that I was mad and the second judge describing proceedings in the Court of Appeal as having sport with Ms Wentworth.

Your Honour, those matters will come up in the determination of this Court in the applications for leave as to whether they constitute a basis for leave to be given on the basis of a contention of bias on the part of those judicial officers. In those circumstances, your Honour, it would be extremely hard for the property matter, which is extremely important to me and I have no doubt to the first and second defendants, to go forward on the same day on which those other matters in the Court of Appeal are being considered.

It would, I think, confound the principles, your Honour, in the international covenant to which to Australia is a signatory and it would also, I think, confound the principles in Chapter III of the Constitution in that the judicial process needs to be unaffected in any way by matters which would affect the exercise of that judicial power.

Your Honour, I would submit that federal judicial power must be exercised in accordance with the essential requirements of the traditional judicial process. In support of that, your Honour, I would read onto the record the following cases: Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27; Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR 501; Boilermakers’ Case [1956] HCA 10; (1956) 94 CLR 254; R v Quinn [1977] HCA 62; (1977) 138 CLR 1 at 7; Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1 at 71; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460 at 496; Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 150; Leeth v The Commonwealth [1992] HCA 29; (1992) 174 CLR 455; Kruger v The Commonwealth [1997] HCA 27; (1977) 146 ALR 126 at 161. Specifically Chapter III is based on the assumption of traditional judicial procedures, remedies and methodology.

Your Honour, if you put four matters which are different but in which the applicant is the same down for hearing on the same day within applications for leave to appeal it could well be considered by the Court within the circumstances of those principles to breach traditional judicial procedures, remedies and methodologies. Your Honour, I would submit that it would breach the rules of natural justice for me to have to attempt to deal with four completely different matters on the same day, whether or not I have counsel retained in some of them.

Your Honour, the essential requirements of the traditional judicial process, the application of the rules of natural justice are a feature of the judicial procedure which is an essential feature of judicial power, quoting Re Nolan; Ex parte Young and Harris v Caladine. The judicial process is structured in such a way as to assist persons before the court to deal with matters which are in contention between them and it is not a function of judicial process or procedure, your Honour, to put one party at such a disadvantage that they are quite unable to properly present matters to the court and it is not a function of the court to cause a litigant before the court
by putting so many matters with different principles involved down for hearing on the same day that the litigant feels entirely oppressed and suffers a physical disability as a result of that action.

That, your Honour, would be a clear breach of proper judicial process and nature justice and as such, your Honour, I would ask the Court to split the matters in the way in which I have asked, that is, the two oldest matters, the 1997 and 1999 matters, to proceed on the 16th. Your Honour, I have failed to say that there is no apparent necessity on the part of the Court to list all of these matters on the same day. They are, apart from 76 and 210, unrelated, are different, so that, your Honour, returning to what I was saying, I would ask the Court to list the two older matters on 16 November.

As I have not put on an application to adjourn S22 at this point, I am in the hands of the Court in relation to the listing of that matter on 16 November. But in relation to the matter which is the subject of the present application, that is, S500, your Honour, I would ask for that to go over for a very short time, perhaps to the next leave application date, so that it can be dealt with separately and so that I am able to deal with it in a proper and appropriate fashion with the Court and the counsel representing me, your Honour.

I have not received any indication from the first or second respondent that that would in any way disadvantage them and, your Honour, as such, when the Court is considering an adjournment, I accept that the disadvantage of the respondents is a matter that the Court must take into account. There is no evidence before the Court of any disadvantage this first and second respondent would suffer as a result of a short adjournment of this matter until the next leave application or even the one after that. Your Honour, I think those are the matters I - - -

HIS HONOUR: Ms Wentworth, am I correct in understanding you to say that counsel has been retained in matter S500 and it is intended that oral argument in S500 should be presented by counsel on your behalf?

MS WENTWORTH: Yes, your Honour.

HIS HONOUR: Yes, thank you. Yes, Mr Lovas.

MR LOVAS: Your Honour, our position is that the application is opposed but with a proviso and the proviso is that we would have no objection to the matter being dealt with in chambers on the papers but, in all events, we just want it dealt with.

On the evidence, in my submission, the circumstances the applicant finds herself in are entirely self-inflicted and that is the weightiest
consideration your Honour should bear in mind. In these proceedings, unlike some of her others, she has always been represented. In the Court of Appeal below she was represented both by a solicitor on the record and by senior and junior counsel and her counsel in this matter in the Court of Appeal was not Mr Officer. It has always been her intention, according to the evidence, to have counsel in these proceedings. She now says, contrary to the evidence of only a few days ago, that she has retained counsel but there is no explanation as to why it has taken this long.

Nevertheless, that having been achieved, the matter can now proceed without any stress on Ms Wentworth. The appeal books have been completed, the submissions and lists of authorities have been exchanged, the arguments have been presented, or at least exchanged. Any counsel can now pick these books up and run with it. There is no evidence as to any reason why, particularly now that counsel has been retained, that that cannot be achieved. The evidence does not point to any need for Ms Wentworth to play a role in the preparation of the hearing any more than any other litigant who is no longer a witness.

In my submission, the failure to explain in evidence the failure to obtain counsel to date bears against the application. The medical evidence that your Honour has read, I did not object to it, but I do ask your Honour to bear in mind on assessing its weight that all it should be read as is the doctor restating the opinion of the patient as to why her condition is as it is. It does not present itself as any higher than that.

Your Honour, it is now just short of three years since these proceedings commenced. For reasons that the respondents do not know and do not understand, this special leave application has been overtaken by many others filed subsequently – not Wentworth matters, just general matters – seems to have lagged in the list for reasons we do not understand. That in itself is a prejudice. In my submission, all of this can be resolved, if it has to be vacated, they are to be dealt with on the papers. The principal consideration, your Honour, is a balance of convenience one. They are my submissions, your Honour.

HIS HONOUR: Yes. Yes, Ms Wentworth.

MS WENTWORTH: Your Honour, I just want to correct a couple of things that Mr Lovas said. The obtaining of counsel in matters 76 and 210 has only taken place recently. I think Mr Lovas seemed to be under the impression that it was in this matter. There is nothing put forward, or any prejudice, which is being suffered by Mr Lovas’ client or the adoption of his submissions by Mr Rogers for this matter to go over for a short period. Your Honour, on the balance of convenience there has been nothing raised by Mr Lovas which would in fact bring the balance of convenience over of the respondents.

Your Honour, the submission that on the evidence that the circumstances are self-inflicted, one might have thought a submission which your Honour could judicially properly ignore, as being inappropriate. Your Honour, the proceedings which I am seeking to have listed later are the later of all the proceedings and, your Honour, certainly all of these matters have lagged in the lists for a very long time, but bearing in mind that 76 and 210 have lagged in the list respectively for 10 years and eight years, your Honour, a slightly different situation from the three years. There is nothing pointed to by Mr Lovas which would show any prejudice whatsoever by this matter being adjourned for one month or even two months, your Honour, and as such I can only say that the adjournment should be granted.

Your Honour, Mr Lovas also made a submission that submissions and lists of authorities have been exchanged. That is simply not correct, your Honour. There are no submissions that we have received from Mr Lovas of any nature. There are the documents which are in the application books, but as to any submissions in 500, or any lists of authorities, your Honour, we have received nothing from Mr Lovas and nor, indeed, have we provided anything to the solicitor for the second respondent and nor have we provided submissions or list of authorities to the first respondent.

That submission which was made by Mr Lovas is a reason for allowing the matter to proceed on the basis that a litigant would have no further input into a matter I find astonishing and I have no doubt the Court would find it strange. Litigants have a detailed interest in the matters which are being put before the Court. In the circumstances, your Honour, I have particular interests, being legally qualified, as to what it is that counsel is putting forward on my behalf, your Honour. I can assure you I have a close interest in any matter which goes before any court and I have input as to each and every matter of mine in which I am represented. Those are - - -

HIS HONOUR: Just before you sit down, Ms Wentworth, there are three matters I raise with you that seem to me to emerge from the submissions put against the application you make. If I list them and then if you would be kind enough to deal with them as you see fit of course. Number one was, I took the submission to be or to include the proposition that the fact of pendency of the application undetermined is itself prejudice, that is, there remains unresolved litigation. That is point one.

Point two, it was said that if the matter is adjourned, it should then be dealt with on the papers as now many applications for leave are dealt with and in that regard, though counsel did not refer to it, may I draw to attention what was said in reasons of Justice McHugh and myself in a matter of Muir v The Queen [2004] HCA 21; (2004) 206 ALR 189 where at page 191, paragraph [8] this was said:

In this, as in all other applications for special leave, the written submissions are the primary vehicle for persuading the court that there is a point appropriate for the grant of special leave. There are undoubtedly cases in which oral argument may assist the court, but very rarely will that be so where the applicant is not represented. In the present case, the point which Mr Muir seeks to argue in an appeal to this court –

and I do not complete the quotation, was then identified and the opinion was expressed that “Oral argument” of that “application for special leave would not assist”.

So that is point two, this point about dealing with matters on the papers. The third point that I raise for your consideration, if you wish to deal with it, is that I had understood what was said about exchange of written argument and lists of authorities to be a reference to the written papers appearing in the case of the second respondent at pages 124 to 132 of the application book in this matter, which was the summary of argument that has been filed and now appears in the application book and the reference to list of authorities I had understood, at least, to be a reference to Part V of that document which appears at application book page 132. Those are three matters if you wish to deal with them, do. If not, of course, that is a matter for you.

MS WENTWORTH: Your Honour, I would like to deal with each of the matters and I will deal with them in the order that your Honour has given them to me. Your Honour, the fact of a pending application I suppose always involves prejudice to all of the parties and, your Honour, one has to weigh that perceived prejudice against the prejudice that is experienced by one of the parties having to deal as an applicant with four matters on the same day, whether or not they are represented by counsel. Mr Lovas pointed to no other prejudice which his client claims and, your Honour, whilst Mr Rogers adopts his submission, one must understand that Mr Rogers claims no other prejudice either.

Therefore, your Honour, on the question of balance of convenience, the Court must therefore consider the other matters which have been raised for it to deal with and, in particular, the whole nature of the four matters being listed together being oppressive and a breach of natural justice to the applicant in that there is no claim made by the respondents, that if the matter in which they are the two respondents, that is 500, was delayed for a short period, that they would suffer any more prejudice than as I understand they are claiming to suffer currently on the basis that this is a pending application, which is I think the point that your Honour wanted me to address.

Your Honour, in respect of the case of Muir v The Queen, your Honour, I do not know the case. I am unaware of the determination. But from what your Honour has said, in that case one of the considerations which the Court took into account was the fact that Mr Muir was going to be unrepresented before the Court in the application and it was considered therefore that an oral application would not perhaps assist the Court in making a determination. Your Honour, in this matter, as is set out in the affidavit, I have senior counsel who will appear in this Court to deliver oral argument and I think that the Court would be greatly assisted by senior counsel’s oral argument and that, your Honour, would perhaps distinguish the reasons of the judgment in Muir of yourself and Justice McHugh.

Your Honour, in respect of the hearing of the matters on the papers, I think that that is not an appropriate procedure. I wish to have counsel represent me in this Court. I have found in the past, and after watching proceedings in this Court, that matters as they proceed in the High Court, in particular, your Honours are asking counsel questions which often clarify the.....in a way which written submissions have not in fact managed to do and, your Honour, I think that the advantage both for myself and for the Court in having senior counsel to explain the basis of the application would be of assistance and I would not wish to lose what I would see as an advantage of having senior counsel put forward matters for me.

Your Honour, in relation to the third matter, if that is what counsel is referring to, then that is what I also was referring to when I said that I had not received anything other than what was in the application books. If that is what counsel is referring to, your Honour, I - - -

HIS HONOUR: That is what I took him to be referring to at least, Ms Wentworth. He is nodding.

MS WENTWORTH: Your Honour, the Court will no doubt also be further assisted by senior counsel on my behalf putting written submissions to the Court prior to the leave application.

HIS HONOUR: That would not be in accordance with ordinary practice, Ms Wentworth. It would not be in accordance with the ordinary practice for there to be any supplementation of the written argument save by leave, but those are issues that we need not consider or address now.

MS WENTWORTH: Yes, your Honour. Thank you, your Honour. Counsel presently briefed is different from the counsel who acted in the Court of Appeal. Your Honour, Mr Russo reminds me that there can be no prejudice claimed by the defendants in relation to this matter going over for a month or so because there are no other proceedings on foot. There is nothing, except for pending litigation in this Court, that they could point to as being prejudicial. There is nothing else on foot, your Honour.

HIS HONOUR: Ms Wentworth, you speak of the possibility of the case going off for a month or so. I think that, subject to direction, realistically it would be unlikely, not to say highly unlikely that it would be able to go over to December. It would be some time next year before the matter could likely be relisted. That may not be a matter of certainty, but all I would say is that it is far from certain that it would be possible to put it off for only a month. Do you understand me?

MS WENTWORTH: I do understand, your Honour. That is a matter for the Court and in listing matters for December clearly the Court would have to have consideration, if the adjournment was granted, as to whether or not this matter should be listed for December. Your Honour, even if the matter were to go over to early next year, there is no prejudice which is pointed to by Mr Lovas in the matter going over for three months, rather than one month, except that there is pending litigation. I would urge on the Court that the balance should fall squarely in favour of my application in those circumstances.

HIS HONOUR: On 20 December 2004 the applicant filed application for special leave to appeal to this Court. The application was subsequently amended and that amended application was filed in February 2005. The application for special leave to appeal as amended is an application for leave to appeal from the whole of the judgment of the Court of Appeal of New South Wales given on 25 November 2004. On 25 November 2004, the Court of Appeal ordered that the appeal in matter No 40474 of 2003 be dismissed with costs.

The appeal with which the Court of Appeal thus dealt was the appeal as ultimately formulated in the amended notice of appeal filed in that court which described the proceedings appealed from and recorded that the appellant, Ms Wentworth, appealed from the decision of Justice Howie of 9 May 2003 and the decisions of Justice Howie of 14 July 2003 and of 14 July 2003 and part of the decision of Justice Howie of 27 October 2003.

On 27 October 2003 Justice Howie had made orders in the form now reproduced at page 56 of the application book in this Court which took the following form:

1. The order for costs made on 9 May 2003 is revoked.

2. The plaintiff is to pay the defendants’ costs of the hearing before [Justice Howie] on and from 29 January 2001 including the costs of this notice of motion.

3. The plaintiff is to pay the second defendant’s costs before Sperling J in proceedings 19228 of 1982 and 11094 of 1995.

4. I make no order as to costs in respect of any other proceedings arising from paragraphs 4 and 5 of the plaintiff’s notice of motion of 11 October 1994 or in proceedings 11094 of 1995.

5. That the orders made in these proceedings on 4 September 2001 restraining the first defendant are vacated.

6. That the second defendant is relieved from her undertakings given to the Court in these proceedings on 4 September 2001.

7. That the money paid into Court in these proceedings together with accrued interest be paid out forthwith to the first and second defendants.

8. That the above orders are stayed until 23 November 2003.

That order was later amended by order made on 8 June 2004 by providing that the second order made on 27 October 2003 be amended to read:

The plaintiff is to pay the defendant’s costs of the hearing before me [Justice Howie] on and from 29 January 2002 including the costs of this notice of motion.

The primary judge, Justice Howie, had in his reasons for judgment of 9 May 2003 described the proceedings which yielded the orders I have described in the following first paragraph of his reasons of 9 May:

In these proceedings the plaintiff [Ms Wentworth] seeks to have set aside certain transactions entered into by the defendants, Mr and Mrs Rogers, in respect of a farming property near Tamworth named “Te Mata”. The plaintiff, Ms Wentworth, contends that a deed, transfer and mortgage relating to that property were entered into by the defendants fraudulently for the purpose either of ensuring that she could not obtain satisfaction of any judgment for costs or damages made in her favour in this Court against Mr Rogers or in order to give Mrs Rogers priority if Mr Rogers became bankrupt. Reduced to its essence, the allegation made by Ms Wentworth is that the acknowledgment of the indebtedness made by Mr Rogers to Mrs Rogers, set out in the deed and upon which the transfer and mortgage were based, is a sham.

By her amended application for special leave to appeal to this Court the applicant identifies 12 grounds of error in the Court of Appeal. In her summary of argument she identifies seven special leave questions as arising. In the course of oral argument this morning she identified those questions as including, but not limited to, questions about the proper construction, application and operation of section 37A of the Conveyancing Act 1919 (NSW) and its application in respect of a disposition of property by the first respondent to the second respondent immediately before the retrial of a damages claim brought by the applicant against the first-named respondent. She submitted that these were complicated and lengthy matters raising important questions about the Conveyancing Act and about resulting trusts as between husband and wife.

As appears from the affidavits of the solicitor for the applicant, relied on in support of the present application, Ms Wentworth was told on 14 September 2007 that this matter and three other matters in which Ms Wentworth is engaged in this Court would be listed for hearing in Sydney on Friday, 16 November 2007. Ms Wentworth now applies by her summons of 27 September 2007 for an order that any listing of this matter for application for leave to appeal on 16 November 2007 be vacated and that costs be costs in the cause.

The other three matters to which reference has been made, which are matters S76 of 1997, S210 of 1999 and S22 of 2001, are described sufficiently for present purposes in the letter which is exhibit B to the affidavit of the applicant’s solicitor filed on 27 September 2007. In that letter the applicant’s solicitor said:

Matters S76/97 and S210/99 are related matters and are running together in a joint book, S210/99 being in respect of Cost Orders relating to S76/97.

S22/01 is related to S76/97 and S22/01 and should probably be heard together with S76/97 and S210/99.

Some further events relevant to the present application are also indicated in the letter of the applicant’s solicitor of 4 September 2007. That letter said, amongst other things, that:

Registrar Gray has indicated that the Court may consider setting down all four matters on the 16th November 2007. In our view and in the view of Miss Wentworth, this would not only be inappropriate but would be too significant a task for Miss Wentworth to undertake preparation whether or not she has Counsel retained in each of the above matters.

We advise that David Officer QC, who has acted for our Mr Russo and who had significant knowledge of the three matters and who was to be briefed by Mr Russo and Miss Wentworth has died and accordingly new Counsel has now to be briefed from scratch. Given the enormity of the Wentworth matter, this is not a simple task.

We understand that Miss Wentworth does intend to have Counsel briefed in each of the matters but will have a different Counsel briefed for S500/04 from the other three matters.

The basis upon which the application for vacating of the hearing date is now pressed was described by the solicitor for the applicant in his affidavit filed on 27 September 2007 as being:

I believe that the listing of all four matters on the same date is oppressive to the Plaintiff –

and the solicitor went on to describe the applicant’s statements to that effect amplifying the basis upon which it is said that the listing of all four matters would be oppressive.

Two letters from Ms Wentworth’s treating general practitioner have been exhibited to affidavits of Ms Wentworth’s solicitor and, omitting details of her particular medical conditions beyond the fact that she suffers from high blood pressure, the treating general practitioner said first on 25 September 2007 and again on 18 October 2007, in effect, that he, that is, the doctor, believed that the blood pressure was as it was because of stress connected with her worry of four matters having been listed on the same day in the High Court.

In his second affidavit, that is, his affidavit sworn on 24 October 2007, Ms Wentworth’s solicitor deposed that Ms Wentworth and he, that is, Mr Russo, had “obtained legal representation by Counsel in matters number S76 of 1997 and S210 of 1999” and that they had “had a conference with that Counsel on 22 October 2007”.

In the course of oral argument today Ms Wentworth told me that other counsel had been retained in the two matters identified, namely, S76 of 1997 and S210 of 1999, but that it was her present intention that she should appear on her own behalf in matter No S22 of 2001. She further informed me in the course of oral argument that she had retained senior counsel to appear in the matter presently under consideration, namely, matter S500 of 2004.

Ms Wentworth contended that for her to brief counsel and, as well, to appear in S22 if all four matters were to proceed on the same day would be “extremely oppressive”. It was on that account that she said that it would be hard for the property matter to go forward on the same day. She emphasised that the judicial process must go forward unaffected by matters that would affect the proper exercise of judicial power and contended that there would be a breach of rules of natural justice were all four matters to be dealt with on the same day. There would be a breach of that kind, she submitted, because of the disadvantages that would ensue, such as to leave her unable properly to present matters to the Court.

She emphasised in the course of her oral submissions that it was, as she saw it, oppressive to have all four matters on at the one time and for that reason one, namely, matter S500 of 2004, should stand out of the list, if needs be being refixed as soon as the Court could find a fixing time suitable. She submitted that the solution to what otherwise would be oppressive was to deal with the two oldest matters, those issued in 1997 and 1999, on 16 November and, if necessary, deal at the same time with matter S22 of 2001. Whether S22 of 2001 should proceed on the same day as matters issued in 1997 and 1999 was, as she put it, a matter in the hands of the Court. But, she submitted, the application in S500 should go over for a short time to the next leave date so that the case could be presented to best advantage.

Counsel for the second respondent opposed the application. He submitted that either no adjournment should be granted or, if the matter were to come out of the list of cases to be dealt with in November, the matter should thereafter proceed and be dealt with on the papers. Counsel for the second respondent pointed to no prejudice that would be suffered were the matter to come out of the list beyond the evident and obvious prejudice that is suffered as a result of the bare fact of pendency of the application undetermined.

In considering the course that is to be taken in this matter it is, in my view, important to pay attention to two considerations in addition to those that have already been mentioned. First, as Justice McHugh and I said in Muir v The Queen [2004] HCA 21; (2004) 206 ALR 189 at 191 paragraph [8]:

In this, as in all other applications for special leave, the written submissions are the primary vehicle for persuading the court that there is a point appropriate for the grant of special leave.

But as we went on to say in Muir v The Queen at the same place:

There are undoubtedly cases in which oral argument may assist the court –

This matter is presently fixed for oral hearing. The presupposition of its fixing for oral hearing is that it is a matter in which it is possible that oral argument may assist the Court in determining the application that is before it.

The second matter to be taken into account in considering what is to be done with the present application is that Ms Wentworth has, as I have earlier said, retained the services of senior counsel to deliver the oral argument that is to be advanced in the present matter. The position that then obtains is that in three of the four matters which presently stand fixed for hearing on the November motions day in Sydney in which Ms Wentworth is engaged, counsel has been retained to act on her behalf and present oral argument if called upon to do so. Ms Wentworth, as things presently stand, has the primary and immediate carriage of the presentation of oral argument in one of the four matters.

There is no reason to doubt the fact asserted on behalf of Ms Wentworth that the pendency of these matters is stressful to her and that the stress of their pendency is adversely affecting her health, that evidence being uncontradicted. Despite the fact that Ms Wentworth has counsel in three of the four matters, it is in the interests of justice that this fourth matter, S500 of 2004, not proceed to hearing at the November motions day. The fixing of this matter, S500 of 2004, on that day is vacated.

What further course should be taken in relation to the disposition of the matter in S500 of 2004 will be a matter for the Full Court to determine. In particular, the vacating of the hearing date which is sought by Ms Wentworth will leave for further consideration whether and when a further hearing date should be fixed. The costs of the present application should in my opinion be costs in the cause. The orders accordingly are - - -

MR LOVAS: Excuse me, your Honour, before your Honour makes order, would your Honour grant an order that the costs thrown away by the vacation be granted to the second respondent?

HIS HONOUR: What do you say, Ms Wentworth?

MS WENTWORTH: If that is the case, your Honour, the costs in the cause is the appropriate order in this - - -

HIS HONOUR: I am sorry, Ms Wentworth, you will just have to speak up a little. I am having a little difficulty, I am so sorry.

MS WENTWORTH: Your Honour, I have done this before. I forgot to move to the - your Honour, your Honour’s order is appropriate, that costs in the cause be the order that is made. There are no costs thrown away by the second respondent in this case.

HIS HONOUR: Yes. Do you wish to be heard in answer to that, Mr Lovas?

MR LOVAS: Whether or not there are costs thrown away will be a matter for the taxing officer, not for your Honour. The matter has been in the list some considerable time where it has not been ready for hearing. There is still no explanation as to why counsel has not been briefed till very recently. That is what has occasioned or has been a significant portion of what has occasioned the vacation. The second respondent in that regard is an innocent. They are my submissions.

HIS HONOUR: Yes. The orders will be:

1. Vacate the hearing date in matter S500 of 2004.

2. The costs of the application today are to be costs in the cause.

Yes, adjourn the Court.

AT 11.32 AM THE MATTER WAS CONCLUDED