Wentworth v Graham & 1 Ors

[2002] NSWCA 399

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Bias and apprehended bias
3. › Application for disqualification of judge
4. › Whether refusal to recuse constitutes judgment or order
5. › Whether appeal lies from refusal to disqualify
6. › Supreme Court Act 1970 (NSW), ss 46(2)(b), 46(4), 46B(1)(a)
1. Practice and Procedure
2. › Court of Appeal
3. › Review of Registrar's decision
4. › Jurisdiction of single Judge of Appeal
5. › Whether single judge may review Registrar's decision under Pt 61 rr 3 and 4
6. › Supreme Court Rules, Pt 61 rr 3, 4
1. Practice and Procedure
2. › Abuse of process
3. › Summary dismissal
4. › Successive applications for disqualification of judges
5. › Whether repeated applications constitute abuse of process
6. › Supreme Court Rules, Pt 13 r 5
1. Practice and Procedure
2. › Interlocutory rulings
3. › Admissibility of evidence
4. › Whether evidentiary ruling during disqualification application constitutes appealable order

Quick Take

A judge's refusal to disqualify himself on grounds of bias or apprehended bias does not constitute an 'order' or 'direction' within s 46(2)(b) of the Supreme Court Act 1970 (NSW), and therefore s 46(4) does not provide a right of appeal to the Court of Appeal from such a refusal. The binding authority of Barton v Walker remains the governing law in New South Wales on this point, notwithstanding criticisms by Kirby P and the Full Federal Court's approach in Brooks v Upjohn. Successive applications for disqualification of judges may be dismissed as an abuse of process.