Makucha v Sydney Water Corporation - [2013] NSWCA 177

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Makucha v Sydney Water Corporation [2013] NSWCA 177
Hearing dates: 13 June 2013
Decision date: 14 June 2013
Before: Barrett JA
Decision:
1. Order pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 that the summons seeking leave to appeal filed by Paul Makucha on 21 August 2011, the notice of motion filed by Paul Makucha on 21 August 2011 and the appeal intended to be initiated by points of appeal filed by Paul Makucha on 4 March 2013 be dismissed
2. Order that the notice of motion filed by Paul Makucha on 31 January 2013 be dismissed
3. Order that Paul Makucha pay the costs of Sydney Water Corporation's proceedings in the Court of Appeal, including the costs of the notices of motion dated 20 February 2012 and 7 March 2013.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: COURTS AND JUDGES - validity of judicial acts - proceedings at first instance challenged because judge did not swear necessary oaths - no viable ground of appeal - summary dismissal ordered
Legislation Cited: Oaths Act 1900, s 11(1)
Supreme Court Act 1970, s 85(1)
Uniform Civil Procedure Rules 2005, rule 13.4
Cases Cited: Andrews v Linton (1702) 2 Lord Raym 884; 92 ER 91
Hipsley v Tucke (1676) 3 Keble 606; 84 ER 905
Hippesley v Tucke (1676) Jones T 81; 84 ER 1157
Margate Pier Co v Hannam (1819) 3 B & Ald 266; 106 ER 661
R v Lisle (1738) And 163; 95 ER 345
R v Mayor Aldermen and Burgesses of the Borough of Cambridge (1840) 12 Ad & E 702; 113 ER 980
Texts Cited: Enid Campbell, "Oaths and Affirmations of Public Office" (1999) 25(1) Monash University Law Review 132
Owen Dixon, "De Facto Officers" (1938) 1 Res Judicatae 285
Category: Principal judgment
Parties: Sydney Water Corporation - Applicant
Paul Makucha - Respondent
Representation: Mr A Bouris - Applicant
Respondent in person
King & Wood Mallesons - Applicant
Respondent in person

File Number(s): 2010/25631
Decision under appeal

Citation:

[2011] NSWSC 1411

Before:

Sackar J

File Number(s):

2010/25631

Judgment

BARRETT JA: Sydney Water Corporation is named as respondent in the following documents filed in the Court of Appeal by Paul Makucha: summons seeking leave to appeal filed on 21 August 2011, notice of motion filed on 21 August 2011, notice of motion filed on 31 January 2013 and points of appeal filed on 4 March 2013.

By notice of motion filed on 20 February 2012, Sydney Water seeks an order under rule 13.4 of the Uniform Civil Procedure Rules 2005 that the summons…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWCA 177
Decision Date: 14 June 2013

CaseChat Overview and Summary

In *Makucha v Sydney Water Corporation*, the Court of Appeal of New South Wales considered an appeal brought by Paul Makucha against Sydney Water Corporation. The proceedings at first instance had been challenged by Mr Makucha on the basis that the judge had not sworn the necessary oaths.

The central legal issue before the Court of Appeal was whether the proceedings at first instance were invalid due to the alleged failure of the judge to take the required oaths. This question necessitated an examination of the legal validity of judicial acts in circumstances where procedural formalities might not have been strictly adhered to.

Barrett JA determined that there was no viable ground of appeal. The court applied the principle that judicial acts are generally presumed to be valid, and that a failure to swear oaths does not automatically invalidate those acts, particularly in the absence of any prejudice to the parties. The court found that the challenge lacked merit and that the appeal should be summarily dismissed.

Consequently, the Court of Appeal ordered the dismissal of Mr Makucha's summons seeking leave to appeal, his notice of motion filed on 21 August 2011, and the appeal intended to be initiated by his points of appeal filed on 4 March 2013. Further, the notice of motion filed by Mr Makucha on 31 January 2013 was also dismissed. Mr Makucha was ordered to pay the costs of Sydney Water Corporation in the Court of Appeal.

Orders

Orders of the court

1. Order pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 that the summons seeking leave to appeal filed by Paul Makucha on 21 August 2011, the notice of motion filed by Paul Makucha on 21 August 2011 and the appeal intended to be initiated by points of appeal filed by Paul Makucha on 4 March 2013 be dismissed

2. Order that the notice of motion filed by Paul Makucha on 31 January 2013 be dismissed

3. Order that Paul Makucha pay the costs of Sydney Water Corporation's proceedings in the Court of Appeal, including the costs of the notices of motion dated 20 February 2012 and 7 March 2013.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Makucha v Sydney Water Corporation [2013] NSWCA 177
Hearing dates:	13 June 2013
Decision date:	14 June 2013
Before:	Barrett JA
Decision:	1. Order pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 that the summons seeking leave to appeal filed by Paul Makucha on 21 August 2011, the notice of motion filed by Paul Makucha on 21 August 2011 and the appeal intended to be initiated by points of appeal filed by Paul Makucha on 4 March 2013 be dismissed 2. Order that the notice of motion filed by Paul Makucha on 31 January 2013 be dismissed 3. Order that Paul Makucha pay the costs of Sydney Water Corporation's proceedings in the Court of Appeal, including the costs of the notices of motion dated 20 February 2012 and 7 March 2013. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COURTS AND JUDGES - validity of judicial acts - proceedings at first instance challenged because judge did not swear necessary oaths - no viable ground of appeal - summary dismissal ordered
Legislation Cited:	Oaths Act 1900, s 11(1) Supreme Court Act 1970, s 85(1) Uniform Civil Procedure Rules 2005, rule 13.4
Cases Cited:	Andrews v Linton (1702) 2 Lord Raym 884; 92 ER 91 Hipsley v Tucke (1676) 3 Keble 606; 84 ER 905 Hippesley v Tucke (1676) Jones T 81; 84 ER 1157 Margate Pier Co v Hannam (1819) 3 B & Ald 266; 106 ER 661 R v Lisle (1738) And 163; 95 ER 345 R v Mayor Aldermen and Burgesses of the Borough of Cambridge (1840) 12 Ad & E 702; 113 ER 980
Texts Cited:	Enid Campbell, "Oaths and Affirmations of Public Office" (1999) 25(1) Monash University Law Review 132 Owen Dixon, "De Facto Officers" (1938) 1 Res Judicatae 285
Category:	Principal judgment
Parties:	Sydney Water Corporation - Applicant Paul Makucha - Respondent
Representation:	Mr A Bouris - Applicant Respondent in person King & Wood Mallesons - Applicant Respondent in person
File Number(s):	2010/25631
Decision under appeal	Citation: [2011] NSWSC 1411 Before: Sackar J File Number(s): 2010/25631