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

1. 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.

1. 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 and notice of motion filed on 21 August 2011 be dismissed. By notice of motion filed on 7 March 2013, Sydney Water seeks a like order in respect of the notice of motion filed on 31 January 2013 and the points of appeal filed on 4 March 2013.

1. The documents filed by Mr Makucha all relate to proceedings brought against him and other defendants in the Equity Division of the Supreme Court by Sydney Water. Those proceedings were determined by a judgment of Sackar J delivered on 13 December 2011, that is after the filing of the summons seeking leave to appeal and the notice of motion of 21 August 2011 and before the notice of motion of 31 January 2013 and the points of appeal of 4 March 2013. So far as Mr Makucha is concerned, Sackar J granted in favour of Sydney Water certain injunctive and declaratory relief and an order for the payment of a substantial sum as equitable compensation.

1. The first two documents filed by Mr Makucha in the Court of Appeal were filed while the Equity Division proceedings were in progress and undetermined, while the third and fourth documents concern proceedings in which judgment had been given at the time they were filed.

1. In advancing its first notice of motion (the notice of motion concerning the summons seeking leave to appeal and the notice of motion of 21 August 2011), Sydney Water makes the principal point that the objective of those applications was to bring about intervention by this Court in the trial process then under way before Sackar J and that, since that trial has concluded and the proceedings have been determined, there is no further utility in those applications. Indeed, Sydney Water says that that point was made in the course of a directions hearing on 20 February 2012 but Mr Makucha said, "No, the appeal must go on".

1. In any event, the foundation on which the applications of 21 August 2011 were advanced by Mr Makucha appears to be the same as that on which the appeal against Sackar J's final orders is propounded by means of the points of appeal of 4 March 2013. The desirable course is accordingly to move direct to a consideration of the points of appeal and the question whether, as Sydney Water contends, the appeal proceedings are frivolous or vexatious or disclose no reasonable cause of action.

1. I turn, therefore, to the points of appeal - or, more accurately, to such of them as are extant following orders of Hoeben JA of 15 March 2013 by which large parts were struck out as scandalous and embarrassing.

1. The surviving points of claim are, in various respects, deficient in form. Given, however that they have been prepared by a litigant in person, I do not intend to deal with those aspects. The preferable course is to accept that the points of appeal document is intended by Mr Makucha to initiate an appeal and, on that footing, to address the substance of the complaints the points of appeal advance. These fall under three headings.

1. First, there is a contention that Sackar J is not a judge of the Supreme Court because he did not, upon his appointment, swear the necessary oaths. It follows, Mr Makucha says, that all judicial acts purportedly performed by Sackar J are nullities, including the several orders he made in favour of Sydney Water and against Mr Makucha in the Equity Division proceedings

1. Second, it is said that what the points of appeal refer to as the "de facto doctrine" does not avoid the consequence of nullity.

1. Third, there is an apparent contention that the proceedings in the Equity Division should have been by trial by jury (or perhaps that proceedings in the Court of Appeal should be).

1. Mr Makucha's contention that Sackar J was not, at relevant times, a judge of the Supreme Court is based solely on the fact that the transcript of proceedings on the occasion of Sackar J's swearing in as a judge does not set out the words of the oaths that a person appointed a judge is required by law to swear, being the oath of allegiance and the judicial oath. A copy of that transcript forms the Annexure "C" to an affidavit of Mr Makucha sworn on 24 February 2012. That Annexure "C" was tendered by Sydney Water on the hearing of its notices of motion and admitted into evidence. The transcript commences:

"SACKAR J: Chief Justice, I have the honour to announce that I have been appointed a Judge of this Court. I present to you my Commission.

(Commission read)

(Oaths of office taken)."

1. The transcript thus does not, in terms, set out precisely what transpired in open court at the time referred to by the notation:

"(Oaths of office taken)."

1. Mr Makucha maintains that this is evidence that the required oaths were not taken and that an essential element of the due and valid judicial appointment process was lacking.

1. Counsel for Sydney Water submitted, by contrast, that the words appearing in the transcript warrant an inference that the required oaths were administered and sworn. That submission must be accepted. The notation in the transcript indicates that oaths of office were taken by Sackar J. Given the context, the irresistible inference is that those oaths were the oaths required by law to be administered and taken on the particular occasion. On that basis, the ground of appeal concerning absence of necessary swearing has no substance.

1. Let it be assumed, for the sake of argument, that, contrary to the conclusion I have just stated (and contrary to the weight of the evidence, as I have described it), there was some defect in the process of swearing of oaths by Sackar J or indeed that the required words were not spoken in the manner necessary to constitute the swearing of oaths. Given the whole of the context, judicial acts of Sackar J would then be made secure by the principles concerning to de facto officers explained by Sir Owen Dixon in his paper "De Facto Officers" (1938) 1 Res Judicatae 285; and this would be so despite any requirement to vacate office imposed by s 11(1) of the Oaths Act 1900.

1. Section 11of the Oaths Act follows a number of sections describing oaths to be tendered to and taken by various officers including, in s 8, judges of the Supreme Court. Section 11(1) is in these terms:

"If any such officer as aforesaid liable to take any such oath declines or neglects when the same is duly tendered to take such oath, the officer shall, if the officer has already entered on his or her office, vacate the same, and if the officer has not entered on the same be disqualified from so doing."

1. Section 11(1) does not have the consequence that, if a judge or other officer declines or neglects to take the required oaths when duly tendered, the office is automatically vacated. To the contrary, the section requires the holder of the office to vacate it, thus making it perfectly plain that the default does not affect the capacity of the person to act in and perform the duties of the office.

1. That brings me to the case upon which Mr Makucha placed particular and continuing reliance, namely, the 1676 decision of the Court of King's Bench in Hippesley v Tucke as reported by Sir Thomas Jones at Jones T 81 (84 ER 1157). That, however, was a case in which the relevant statute made an office vacant in default of the taking of the required oaths. Mr Makucha does not refer to any like statutory provision applicable to this case. The only provision to which he does refer is s 11(1) of the Oaths Act which, as I have said, is quite at odds with the notion of automatic vacation of office. Furthermore, Keble's report of the same case (Hipsley v Tucke (1676) 3 Keble 606; 84 ER 905), contains the following passage concerning the acts of the officer who had not taken the oaths:

"[A]s to the interests of a stranger as acts of jurisdiction they are not void, as judgments here in Westminister would not be void by any one, or all not having duly taken the oaths, these matters are collateral."

1. In any event, in her article "Oaths and Affirmations of Public Office" (1999) 25(1) Monash University Law Review 132 at 155, Professor Enid Campbell referred to the Hippesley (or Hipsley) ruling that acts of an official who has not sworn the necessary oaths are void and then said:

"Later judges were to pronounce this ruling to be wrong and there are nineteenth century decisions in which English courts clearly accepted that the de facto officer doctrine could apply in cases in which someone had failed to swear a prescribed oath of office."

1. The cases cited in connection with the first part of Professor Campbell's statement are Andrews v Linton (1702) 2 Lord Raym 884; 92 ER 91 and R v Lisle (1738) And 163; 95 ER 345. The nineteenth century decisions are Margate Pier Co v Hannam (1819) 3 B & Ald 266; 106 ER 661 and R v Mayor Aldermen and Burgesses of the Borough of Cambridge (1840) 12 Ad & E 702; 113 ER 980.

1. The grounds of appeal concerning oaths or lack of them and unavailability of the de facto officers doctrine are manifestly hopeless and, to the extent that the contentions based on oaths form part of the subject matter of Mr Makucha's proceedings in the Court of Appeal, dismissal under rule 13.4 is warranted.

1. There is then the remaining ground concerning trial by jury in the Equity Division or perhaps the Court of Appeal. Under s 85(1) of the Supreme Court Act 1970, proceedings in a Division of the Supreme Court are to be tried without a jury unless the court otherwise orders. There is no suggestion that the court otherwise ordered in the case of the proceedings between Sydney Water and Mr Makucha. There is no provision for jury trial in the case of appeals to the Court of Appeal. The ground of appeal concerning trial by jury is also manifestly hopeless and, in that respect too, dismissal under rule 13.4 is warranted.

1. The summons and notice of motion of 21 August 2011 must be dismissed because they have no continuing utility and the propositions concerning Sackar J on which they are based are devoid of legal foundation.

1. The appeal commenced by the points of appeal of 4 March 2013 must be dismissed because the propositions concerning Sackar J and trial by jury on which they are based are devoid of legal foundation.

1. That leaves the notice of motion filed on 31 January 2013. By that notice of motion, Mr Makucha seeks a stay of "all future action" by Sydney Water (presumably in reliance on the Equity Division judgment and orders) pending a response by Her Majesty the Queen to a complaint of illegal and criminal acts by judicial officers

"who have refused to swear in open court in their loud voices at their swearing in ceremonies and be recorded on the official transcript or have they committed treason as par Part 2 of the NSW Crimes Act 1900 No 40."

1. This too concerns the matter of judicial oaths with which I have dealt. No basis for any stay is shown.

1. The orders of the Court are as follows:

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.

1. I should add by way of postscript that, in the course of the hearing of Sydney Water's notices of motion, I heard and dismissed applications by Mr Makucha for recusal and adjournment based on the proposition that I am not a judge because I have not sworn the necessary oaths.

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Decision last updated: 14 June 2013