A long and tortuous history

Last week, judgment was given in the latest instalment ([2009] NSWSC 1038) of Wentworth v Rogers. Judges often say it but in this case when Rothman J stated in his opening sentence that:

These proceedings have a long and tortuous history

it could almost count as judicial understatement. The proceedings commenced in 1982. They are well-known, arising from an incident in 1977 when Mr Rogers (as was subsequently found by a jury after a civil trial in 1994) assaulted Ms Wentworth, his then wife – though the amount of the jury verdict suggests that not all of Ms Wentworth’s claims about the incident were believed. (Click here for a bit of nostalgia about the level of court reporting once provided by the Daily Telegraph.)

His Honour dismissed Ms Wentworth’s various applications, which were said to be in aid of the enforcement of the judgment of $2,000 for the assault and costs of $184,000. Those amounts were never paid by Mr Rogers and, Mr Rogers having since gone bankrupt on his own application (naming Ms Wentworth and the present Mrs Rogers as his creditors), it is not possible to take further enforcement action in the Supreme Court in relation to them in the face of the over-riding (Commonwealth) provisions of the Bankruptcy Act. Accordingly, Ms Wentworth’s application was fundamentally misconceived.

Which makes it all the odder that his Honour ordered that Mr Rogers (who did not appear or take part in the present notices of motion) pay Ms Wentworth’s costs of the motion. No order for costs was made in the present Mrs Rogers’ favour against Ms Wentworth.

No particular reasons are offered for this. There are some rather weasel-worded observations about the “seeming injustice” of Ms Wentworth being unable to enforce the judgment and the “the ability of the fraudulent to hide behind the bankruptcy laws,” though in his next breath his Honour adds “I do not, by that comment, find or suggest that Mr Rogers has been fraudulent.” This does not strike me as in any way a satisfactory exercise of the court’s discretion in relation to costs.

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