Wentworth & Anor v Rogers [2007] HCATrans 701 (16 November 2007)

Last Updated: 26 November 2007

[2007] HCATrans 701

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S76 of 1997

B e t w e e n -

KATHERINE WENTWORTH

Applicant

and

GORDON JOHN ROGERS

Respondent

Office of the Registry
Sydney No S210 of 1999

B e t w e e n -

KATHERINE WENTWORTH

First Applicant

SALVATORE RUSSO

Second Applicant

and

GORDON JOHN ROGERS

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 NOVEMBER 2007, AT 11.18 AM

Copyright in the High Court of Australia

__________________

MR D.L. WILLIAMS, SC: May it please the Court, I appear with my learned friend, MR R.C. BEASLEY, on behalf of the applicants in both matters. (instructed by Russo and Partners)

HAYNE J: I have a certificate from the Deputy Registrar in these two matters and, as it happens, also in another matter, but in these two matters that he has been advised by the respondent in each of the matters that he will not be attending Court nor will he be represented on today.

Mr Williams, is it convenient if we deal with matters S76 and S210 together?

MR WILLIAMS: It is, your Honour, and that was indeed going to be my application. My further application was going to be, in light of that, that I have 40 minutes to address to your Honours, if necessary, upon the combined matters.

HAYNE J: Why should we extend it as long as 40, Mr Williams?

MR WILLIAMS: It is because the way in which the papers have been prepared, which your Honours have had, has not provided the focus and clarity that ordinarily the Court gets from applicants in cases such as this. What I suspect may have happened is that the key points that are raised in those various arguments and appeal points are rather obscured because of the way in which they are expressed and I will seek to do what I can about that.

HAYNE J: Mr Williams, two things. First, we have of course all of us read the papers. The second thing is this. What we are minded to do is that the yellow light should come at 25, the red light at 30 and we will then consider where we are up to but if initially you were to order your affairs on the basis that we will proceed in that fashion and then at the 30 minute mark we will see where we have got to and what, if anything, then should be done about it.

MR WILLIAMS: Thank you, your Honour.

HAYNE J: Yes, so yellow light at 25, red at 30.

MR WILLIAMS: Thank you, your Honours. Leaving aside costs for the moment, there are four points that I will be seeking to address on; first, apprehended bias, second, the effect of a general verdict of a jury in a case such as this, thirdly, the wider case of abuse of process and, fourthly, what we claim is a serious miscarriage of justice which has occurred in connection with the findings that the applicant, Ms Wentworth, misled the Court on the ex parte application.

May I say this by way of opening in relation to apprehended bias. There are a large number of apprehended bias applications that were made by Ms Wentworth. I will not be seeking to ask your Honours to grant special leave in connection with each and every one of them and I will not be seeking to uphold each of the matters that were put in support of those applications. My focus will be far more confined.

Your Honours, if the applicants are right in connection with the apprehended bias applications, ordinarily that would mean that the orders in the Court of Appeal refusing to grant leave would be set aside and that might give rise to a new leave application. In this application we seek to take the matter further by the focus on the underlying matters. It is true that we do not have a judgment of the nature that your Honours normally would have in considering an appeal but, through the three judgments that the Court of Appeal have made, or the various Courts of Appeal have made – that is, the 1997 Court of Appeal judgment, such as it is, it is a small one, the 1998 Court of Appeal judgment and the costs judgment – are most, though not all of the matters, that would need to be dealt with are raised.

Your Honours, I wish to go first of all to what we claim is the serious miscarriage of justice that has occurred in connection with the irregularly obtained judgment finding. The submission that we would make about that is that Justice Sperling and the two Courts of Appeal, to the extent that they have considered those matters, overlooked a critical piece of evidence that motivated Justice Loveday in granting the orders that he did and that is a letter of 23 September 1994 in which the position of Mr Rogers was comprehensively set out.

What seems to have been overlooked in the earlier judgments is that the conversation about which there is some issue, the conversation which was the subject of the letter allegedly withheld from Justice Loveday, preceded the statement of position in a formal way by the solicitor for Mr Rogers on 23 September. That matter has been overlooked and lost and, as a result of it, the findings that have been made about Ms Wentworth misleading the Court have been made, in our submission.

May I, hopefully with the assistance of the chronology that we provided yesterday, try and make some sense of how this came about. Your Honours will know that so far as the procedural history is concerned Mr Rogers was acquitted of the criminal charges in July 1985, then there was the first proceedings before Justice Maxwell in December 1985, then in March 1987 the Court of Appeal set aside the findings at the first trial and ordered a new trial, then the second trial occurred before Justice Sully in 1994.

A matter of relevance to an understanding of what was happening between the parties is the dispute that arose between them about the effect of the costs order that had been made in connection with the first trial. The first trial proceeded on the basis of both the assault charge and the malicious prosecution, in the second trial they were severed, but the costs order as a result of the initial successful appeal was that the costs of the first trial were to abide the costs of the second trial and a question arose as to whether it was the costs order that was capable of being enforced in circumstances where the malicious prosecution proceedings had not come on for hearing.

That is a matter that is quite central to our allegation of abuse of process and quite central to our allegation that Mr Rogers was very content to have his malicious prosecution action sitting there but not pursued because, unless and until it was pursued to conclusion and a judgment made on the view of the costs order that seemed to be predominant at the time, Ms Wentworth could not get her costs.

Your Honours, the application to have the malicious prosecution claim dismissed first came before the Court of Appeal. It came before the Court of Appeal on 5 October 1994. That was at a time when the Court of Appeal was hearing the costs appeal from the jury verdict in front of Justice Sully. On that occasion, the part heard part of the costs appeal, Mr Rogers did not appear and his solicitors did not appear.

The communications that led up to that matter are to be found in the chronology on page 5, commencing at the entry of 12 September 1994. What had happened – this is at application book 156 to 157, I do not need to take you to it at the moment – Mr Russo had written to Mr Rogers’ solicitors asking for a withdrawal of the cross-claim.

Then, the next relevant event, and this is a critical matter, was that a conversation took place between Mr Russo and Mr Rogers’ solicitors on 22 September 1994. Now, it is that conversation that was the subject of the letter that Justice Sperling said was withheld from Justice Loveday. What nobody seems to have appreciated was that such nuances as might have existed in the conversation or even dispute as to what occurred in the conversation was overtaken by the letter from the solicitors the very following day on 23 September 1994 that set out their position comprehensively.

This is a letter that is not even mentioned in the judgment of Justice Sperling. May I take your Honours to it. It is at application book page 158 to 160. It is also at 223 to 225. The solicitors are responding to Mr Russo’s letter asking for the consent to the dismissal of the malicious prosecution. This is, of course, after Ms Wentworth has won her jury verdict. The solicitors say in the third paragraph:

We have advised Mr Rogers that in our considered view his action remains alive.

This is in the context of a debate between the solicitors as to whether there is a res judicata or issue estoppel or the like. Then:

We have put Mr Rogers on notice that with this advice presumably your client –

Ms Wentworth –

will file a Notice of Motion seeking –

to say that the matter is determined. Then, the solicitors say that “we have put our client on notice that”:

you will seek to have this matter dealt with on 5 October.

That was when the matter was to come back before the Court of Appeal.

We have advised Mr Rogers that in our view the Court of Appeal will not delve into such an issue...

we have taken the instructions and the instructions are that our client will not agree to the withdrawal or dismissal of the Cross-Claim.

Then, over the page there is discussion about the costs position. The third paragraph, after discussing the quantum:

Even on that basis the costs to which your client would thereby be entitled is in Mr Rogers’ view likely to be a sum that he would have simply no capacity to meet.

Then, two paragraphs down:

In consequence he instructs us to take no further part in the proceedings and indeed in a more general sense withdraws our instructions totally.

Then reference to the process of filing An appropriate Notice and communicating with the judges of the Court of Appeal so as not to be disrespectful. Then, at the top of the next page:

He instructs us to frame a bill of costs for work done to date although he tells us that not only is he not in a position to meet those costs he is not in a position to reimburse to us our disbursements incurred.

Then, in the second-last paragraph and critically:

Apart from your client under whatever costs order she ultimately obtains and ourselves his only other creditor is the Legal Aid Commission and when your client’s debts be ascertained he proposes placing his affairs in the hands of the Official Receiver in Bankruptcy by presenting a Debtor’s Petition.

So, he is not going to be represented. He does not want to consent to the proceedings being dismissed and he plans to go bankrupt. Now, this letter was attached to Mr Russo’s affidavit before Justice Loveday. What those who have considered the matter thereafter have failed to appreciate is that the conversation that is set out in a later letter preceded this communication. So when there are questions about, “Did you put before the court this change of heart or this suggestion that the conversation was not as you alleged?” what has happened is that in the usual way in which solicitors act, had a conversation, set out a formal communication that sets out in entirety their position in a formal way and that is what happened.

Before I proceed with the chronology, can I just make good the proposition that Justice Sperling overlooked this letter. If you go to his Honour’s judgment at page 308? It commences at page 308 and he deals with irregularity at page 334. His Honour deals with the principles of proper disclosure on an ex parte matter. At the top of page 335 his findings are that his Honour was misled and then he goes to detail why. He says at line 30 on 335, “I need, however, to go back a little in the story. As at 12 September”. He talks about what was happening in the Court of Appeal. Then he deals over the page at 337 with the conversation said to have occurred on 22 September and makes reference to what was set out in the affidavit. Then he says:

Further correspondence ensued.

and that is the extent to which one could possibly glean any appreciation from this judgment that he is even aware of the letter of 23 September –

Then, having received a copy of Mr Russo’s affidavit of 12 October 1994, Mr MacLean wrote to Mr Russo on 13 October 1994 concerning the account given by Mr Russo in his affidavit of the conversation of 22 September.

This is the letter which is at the heart of the findings against Ms Wentworth and it is to be found at application book 226. It is at the foot of the page. Your Honours will see that the first part of it involves confirmation of:

receipt of your various correspondence as follows –

This is what Ms Wentworth was saying was one of the letters she put before Justice Loveday to assist in proving service. Here is the solicitor saying, “I received these documents”. Then he says at the foot of the page:

there is a nuance of a suggestion of impropriety on the writer’s part in the conversation quoted in paragraph 9 of the Affidavit.

Paragraph 9 of the affidavit dealt with a conversation on 22 September, the day before the letter. What the writer seems to have been concerned about is that in some way there might have been some slight suggestion of impropriety and that is when he goes on to deal with what he deals with in that letter. Then in the penultimate paragraph of the letter he says:

the writer’s recollection is the reflection of Mr Rogers’s intention that he would not prosecute the Cross Claim until he had the money to do so and that important aspect is not reflected in your Affidavit.

The very next day he writes saying, “No money to pay me, no money to pay you and the client is going bankrupt”. It is his Honour’s failure to appreciate that that was the sequence of events that has led what we claim is the miscarriage of justice. Your Honours, in connection with that point, the miscarriage, we say there were three things that caused the problem or that constituted the miscarriage. First of all, failure to consider the objective evidence which would indicate that the letter of 13 October had been before Justice Loveday, that is the handing up of the bundles of documents before Justice Bruce and then the reading by Justice Loveday. They are set out in the chronology, the relevant parts of the transcript that deals with that matter.

The final criticism that we have of this, your Honour, is the finding that Ms Wentworth gave an incorrect answer to his Honour’s question about having heard personally from Mr Rogers. That finding is in the judgment at 339 at line 25. What his Honour was doing is he was asking Ms Wentworth first about what evidence she relied up. She knows that the solicitor is going off the record or in the process of going off the record so she says:

Q. And you have not heard personally from Mr Rogers any matter which suggests that he has any interest or inclination to pursue the malicious prosecution action?

A. I have not heard from Mr Rogers at all and my solicitors have not had any response from him at all.

That was a correct answer. The Court of Appeal when later considering the matter accepted that it was a technically correct answer but suggested by reason of other matters that, well, there might have been a duty to go on and say more. That was the answer that she gave and it was right. Your Honours, I need to move on to my other points, I think.

The second issue concerns the effect of a general verdict of a jury, particularly in a matter of assault where the assault, like any assaults, is made up of a number of components. May I take your Honours to the statement of claim which is to be found at page 1 of the application books. Your Honours will see in paragraph 1 the pleading of the assault and it is constituted by the elements set out in the pleading. The jury comes back with a verdict in favour of the plaintiff in connection with that paragraph.

HAYNE J: Was that a general verdict or a special verdict?

MR WILLIAMS: It was a general verdict. The issue for special leave is, what is the effect of a general verdict in circumstances where one has a pleading like this that involves a number of different components? The Court of Appeal said that because the jury had been directed that if they found any one component proven they might find for the plaintiff, that there can be no issue estoppels at all, as we read their judgment, arising from the jury verdict. This is at page 640 of the application books. It is the paragraph from lines 15 to 35 and in particular the final line:

If one cannot say that all allegations were found, one can take nothing from the verdict because one does not know which one or ones were found.

We challenge that. We submit that a general verdict of this nature is conclusive of the matters that the jury were directed to consider, not the charge, the paragraph of the statement of claim that they were meant to consider. Now, if we are wrong about that, or if the Court of Appeal is right about that, it means that an assault victim who has suffered a rape or some other component to his or her injuries and has succeeded in obtaining a verdict from a jury about that, still has no protection from a malicious prosecution action from the perpetrator.

HAYNE J: Just to be certain about general verdict, are we speaking of the same thing? I have in mind that the jury were asked upon their return, “How do you find? Do you find for the plaintiff or the defendant?” Answer: “Find for the plaintiff.” “In what sum do you assess the plaintiff’s damages?” “X dollars.” Is that what - - -

MR WILLIAMS: Yes, page 87 of the application book.

HAYNE J: Yes, well, do not stay. So long as I understand what has happened. Yes.

MR WILLIAMS: Yes. There does not seem to be any High Court guidance on this sort of issue. There is the general principle that one gets from cases like Blair v Curran and the various cases about issue estoppel. None of them seem to deal with this issue. It is a matter of obvious public importance, in our respectful submission. If we are right about it, it meant that we should have succeeded on the permanent stay or strikeout application that was made before Justice Loveday. Justice Loveday was there dealing with more than just the irregularly obtained judgment. He was dealing with an application for permanent stay and the like.

Your Honours, I have about a minute or two of my time left. I have not dealt with bias or costs. My application is that I be extended a little further time.

HAYNE J: How long further do you seek?

MR WILLIAMS: I see five minutes for each of those topics.

HAYNE J: For each?

MR WILLIAMS: Bias and costs.

HAYNE J: Yes. You may have a further time from now of 10 minutes.

MR WILLIAMS: Thank you, your Honour.

HAYNE J: The yellow light will go at three to go, so that you know where you are at.

MR WILLIAMS: Yes. I have to fit three topics in, in fact, your Honour.

HAYNE J: Yes.

MR WILLIAMS: There was an additional abuse of process argument that was sought to be put which was not understood by his Honour correctly, that is Justice Sperling. As part of the wider abuse of process argument that was sought to be put the plaintiff was saying there was an improper purpose being visited upon her by reason of the keeping the malicious prosecution alive but not proceeding with it. In other words, the improper purpose was the intention, not of proceeding with it but keeping it there to stymie her ability to recover her costs.

That case was put and is the subject of an interlocutory judgment where his Honour dealt with the evidence of a conversation with counsel for Mr Rogers. It is referred to in the chronology in the entry of 2 May 1995 at the bottom of page 10. Counsel said:

‘We are a lodging this notice of motion [to set aside judgment] because the court of appeal can’t make its decision on costs until the malicious prosecution is finally dealt with, so that will have to wait now’ and, ‘There is no point in the court giving directions until the matter of the malicious prosecution is finally dealt with’.

The articulation of the abuse of process argument is at application book 282, line 20 to 283, line 55 before his Honour Justice Sperling. His Honour set out in that judgment – this is one of the interlocutory judgments – the arguments correctly identifying at least one of the ways in which the abuse of process argument was to be agitated but when his Honour came to his final judgment his Honour articulated the question in a different way and found that there was no improper purpose.

HAYNE J: And do we find this complaint that you now make reflected in what has happened in the Court of Appeal?

MR WILLIAMS: No, it was not dealt with.

HAYNE J: Because not advanced or - - -

MR WILLIAMS: No, it was, as I understand it, advanced and I have to say that advisedly because there are folders of submissions that have been handed up and I cannot say that I have read them all, but not dealt with in any of the judgments. Can I move on to my next point, apprehended bias. These are matters of public importance as well as going to the administration of justice. I confine myself to the challenge that was made to Justice Beazley’s sitting in the first Court of Appeal.

The challenge made to her Honour is set out in the second blue book, the bright blue book, if I can call it that. It starts at the bottom of page 9 of the transcript of 21 April. The gravamen of it was this. Ms Wentworth was assisting a private litigant, Ms Benecke, in proceedings that that litigant was involved with against the National Bank. It involved whether proceedings had been wrongly compromised without authority by her then counsel who was Justice Beazley. So we have halfway down page 10:

During those proceedings in which you gave evidence –

Justice Beazley was giving evidence for the bank against her former client –

the matter was raised before the Bench and your Honour was aware of it, that I had been assisting Miss Benecki in her proceedings; that I had expressed views about the conduct of counsel handing up consent orders for which they had no authority in terms which I think would have been reasonably said to be certainly not flattering.

It is the assistance of the litigant in a proceeding in which the judge was formerly involved with a professional interest of maintaining that appropriate procedures had been dealt with. The litigant, the former client of Justice Beazley, making serious allegations against her being assisted by Ms Wentworth, all of those matters being known to the judge. That is the grounds upon which the first application to the first Court of Appeal, in our respectful submission, should have been upheld satisfying the relevant Livesey test.

It may be that your Honours take the view that if the first Court of Appeal goes for a reason such as this, it is not necessary to go further and that is because the second Court of Appeal in 1998 was heavily influenced by the fact that there had already been a first hearing. That is set out at the beginning of the judgment. In any event, we challenge a small part Justice Handley’s judgment. We submit he applied the wrong test at page 554, lines 20 to 30.

The only grounds that I seek to rely on to support this application at that time are those set out in the chronology to do with Justice Handley’s position as President of the Bar Association and its involvement in seeking to encourage the Attorney-General to take vexatious litigant proceedings against Ms Wentworth. They are set out in the chronology. The entries are those from 9 July 1987 through to 22 November 1989. That is the subject matter that they cover.

Finally, in relation to the apprehended bias applications, your Honours will have seen in the application books the affidavit of the associate, Alice de Angelis. Your Honour, the first time that that was sought to be put before Justice Handley his Honour refused to deal with any application. What had happened is before the affidavit was sworn Ms de Angelis was sitting in the court room – this is at 728 to 729 and goes over to 731 – and Ms Wentworth was refused the ability to put before the court the material from Ms de Angelis who was there present in court. I am conscious of my time. I will move to costs.

HAYNE J: The red light has not come on, yet. What is it that you want to say about this next aspect?

MR WILLIAMS: What we want to say is that the material within the de Angelis affidavit is capable of satisfying the Livesey test that a reasonable person knowing that judges or a particular judge had expressed himself in that way or the particular judges that were involved, Justice Stein and Justice Handley, had expressed themselves in such a way in connection with Ms Wentworth, calling her “mad” or having “sport” with her was sufficient to enliven the principles in Livesey. The reasonable man just might think that the judge might not be impartial.

Finally, your Honour, costs. Can I just say this in relation to Mr Russo. Mr Russo was not given notice by the judge of a proposal that he was contemplating making a costs order against him personally. He did not indicate that he was contemplating making that order on an indemnity basis and payable forthwith and he did not inform Mr Russo as to why he was contemplating such an order. The position should be contrasted with the approach in the Appeal Division of the Supreme Court of Victoria in Shire of Gibson v King. That is the procedure followed in that State. The new practice in the New South Wales Court Practice Note at paragraph 11 requires certain things. It does not go as far as Victoria.

We submit that if a judge is proposing to make a personal costs order of this nature against a solicitor then it is incumbent upon him to give notice so that that solicitor can properly deal with the application.

HAYNE J: The costs order of which you speak is the costs order by Justice Sperling?

MR WILLIAMS: The costs order of Justice Sperling for the 37-day hearing, yes.

HAYNE J: Yes, I understand. It was that costs order that was a part of the application or applications for leave, is that right.

MR WILLIAMS: Yes.

HAYNE J: Yes, I understand that.

MR WILLIAMS: Yes, that is right. The other things that we say is that there should not be a vicarious liability for anything that Ms Wentworth did in the circumstances of this case where prior to the matter proceeding it was expected that it would be a dismissal or a stay proceeding. Mr Russo did not know it was going to be a want of prosecution proceeding. Ms Wentworth, in the transcript that your Honour will see from Justice Loveday, had that put in front of her on the day as an alternative. May it please the Court.

HAYNE J: Yes, thank you. We will consider the course we will take in these two matters after we have proceeded with matter No 7.

AT 11.57 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.30 PM:

HAYNE J: In matter No S76 of 1997 the applicant seeks special leave to appeal from the whole of the judgment of the Court of Appeal of New South Wales given on 12 June 1997, from the whole of the judgment of the Court of Appeal given on 21 October 1998 and from the whole of the judgment of the Court of Appeal given on 21 October 1998 in respect of the judgments of Justice Handley of 9 October 1998 and Justice Stein of 20 October 1998.

The orders of the Court of Appeal of New South Wales which were made in June 1997 and October 1998 and which the applicant now seeks special leave to challenge, related to a proceeding in the Common Law Division of the Supreme Court of New South Wales between Ms Wentworth as plaintiff/cross-respondent and Mr Rogers as defendant/cross-claimant.

Ms Wentworth’s claim was for damages for trespass to the person occasioning personal injuries. Mr Rogers’ cross-claim was for damages for malicious prosecution. Initially both claim and cross-claim were heard together. Judgments entered following that trial were set aside and a new trial ordered. The hearing of the malicious prosecution claim was severed from the trial of the assault claim. Following the trial of the plaintiff’s claim for damages for assault and the return of a general verdict for the plaintiff, judgment was entered in her favour for the damages assessed by the jury, together with interest, and the award of part of her costs.

On appeal to the Court of Appeal it was held, in May 1995, that the amount of the judgment to which Ms Wentworth was entitled, consequent upon the verdict of the jury at trial, was larger than the amount for which judgment was entered. The Court of Appeal, Priestley and Handley JJA and Brownie AJA divided in opinion about what order for costs should have been made at trial.

In October 1994 the cross-claim had been dismissed for want of prosecution. Mr Rogers did not appear at the hearing at which that order was made. In December 1994 Mr Rogers sought an order setting aside the ex parte dismissal of his cross-claim and Ms Wentworth sought an order dismissing or permanently staying the cross-claim. Those motions were heard by Sperling J.

In February 1997 Sperling J ordered that the order dismissing the cross-claim be set aside and that Ms Wentworth’s applications for orders dismissing or permanently staying the cross-claim should be dismissed. Certain other orders, the detail of which need not now be set out, were also made. In his reasons for judgment Sperling J found that Ms Wentworth had misinformed the judge who made the order dismissing the cross-claim for want of prosecution on a matter material to that application.

That finding having been made Ms Wentworth submitted to Sperling J that he should take no further step in the proceedings. In particular, Ms Wentworth submitted that Sperling J should not go on to determine what order should be made disposing of the costs of the proceedings in which Sperling J had made that adverse finding. Justice Sperling rejected that submission and made orders for costs against Ms Wentworth and against her solicitor directing payment of Mr Rogers’ costs on an indemnity basis. The finding made by Sperling J that Loveday AJ was misled is now challenged by the applicant. It was said that that finding was made on a misunderstanding. We are not persuaded that that is so.

On 12 June 1997 the Court of Appeal, Beazley and Clarke JJA, dismissed Ms Wentworth’s application for leave to appeal against the orders by Sperling J. On 21 October 1998 the Court of Appeal, Handley, Stein and Sheppard JJA, dismissed a further application for leave to appeal against the orders made by Sperling J and on the same day dismissed applications by Ms Wentworth that the court review or set aside decisions or determinations by Handley JA and Stein JA, respectively, that each should disqualify himself from further sitting in the matter.

It is these orders which are the subject of the applications for special leave to appeal. We see no reason to doubt the correctness of the conclusions reached separately by Handley JA and Stein JA that each should continue to sit in the proceedings, nor are we persuaded that it is arguable that the decisions of the Court of Appeal in June 1997 and again in October 1998 to refuse leave to appeal against the orders of Sperling J were attended by error. The arguments now advanced about estoppels said to flow from general verdicts of a jury and judgment entered in consequence of that general verdict have insufficient prospects of success to warrant a grant of special leave to appeal on this particular basis.

The application for special leave to appeal against these orders of the Court of Appeal should be dismissed.

In matter No S210 of 1999 the applicants, Ms Wentworth and her solicitor, Mr Russo, seek special leave to appeal against that part of the orders made by the Court of Appeal on 29 October 1999 by which the Court of Appeal ordered that the application for leave to appeal against the orders made by Sperling J on 28 August 1997 be dismissed and that they pay 90 per cent of Mr Rogers’ costs of the leave application. The orders made by Sperling J on 28 August 1997 directed the present applicants to pay Mr Rogers’ costs for motions heard by Sperling J on an indemnity basis.

Mr Russo says that the orders made by Sperling J were made without sufficient notice to him. The application for special leave in matter number S210 of 1999 further seeks special leave to appeal directly against those orders of Sperling J.

We are not persuaded that an appeal against the orders of the Court of Appeal, or if such an appeal is open, directly against the orders of Sperling J would enjoy prospects of success sufficient to warrant a grant of special leave. Special leave is accordingly refused.

AT 12.37 PM THE MATTER WAS CONCLUDED