Makucha v Sydney Water Corporation (No 3)

[2012] NSWCA 25

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Makucha v Sydney Water Corporation (No 3) [2012] NSWCA 25

Hearing dates:

27 February 2012

Decision date:

27 February 2012

Before:

Basten JA at 1

Decision:

1. Stand over (1) the notice of motion of 20 February 2012 filed by Sydney Water seeking to strike out the summons and (2) the notice of motion of 24 February 2012 filed by Mr Makucha seeking an extension of time and other orders, to a date to be determined, after the filing of the foreshadowed notice of appeal.

2. Reserve the costs of today as costs in the summons, that being the only proceeding before the Court.

3. Discharge the order of the Registrar requiring the filing of white folders in relation to the application for leave to appeal.

4. Grant liberty to apply in respect of order 1.

[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:

APPEAL - civil - application to strike out summons seeking leave to appeal against interlocutory order - whether summons to be rendered otiose by appeal against final judgment - whether application to strike out should be stood over

Category:

Procedural and other rulings

Parties:

Paul Makucha - Applicant
Sydney Water Corporation - Respondent

Representation:

Counsel:

Mr Makucha in person
A Bouris - Sydney Water Corporation
Solicitors:

Applicant self-represented
Mallesons Stephen Jaques - Respondent

File Number(s):

CA 2010/25631

Judgment

1. BASTEN JA : Proceedings between Mr Paul Makucha and Sydney Water Corporation ("Sydney Water") were maintained in the Equity Division of this Court through much of 2011, the matter being heard by Sackar J. On 22 December 2011 final orders were made. Mr Makucha has filed a notice of intention to appeal against the judgment and orders made on that date.

1. On 21 August 2011 Mr Makucha filed a summons seeking leave to appeal against an interlocutory order of Sackar J and a motion seeking a stay of any further proceedings before him. The stay was dealt with last year and was not granted. The application for leave to appeal, based primarily on an alleged apprehension of bias, remains undetermined. Directions have been given on more than one occasion for the filing of a white book in relation to that application, but that course has not yet been taken. If an appeal is to be filed against the final judgment it may well be that the application for leave to appeal is rendered otiose, because the matter which was sought to be raised by way of leave will be available to Mr Makucha as a ground of appeal as of right.

1. Before the Court today are two notices of motion. First, there is a notice of motion dated 20 February 2012 filed by Sydney Water seeking to have the summons of 21 August 2011 struck out. There is an affidavit of Mr Brent Michael read in support of that motion.

1. If the summons is to be rendered otiose it may be necessary to dismiss it in due course. But that is not known. If no appeal is filed, then the motion to strike out the summons may yet have some substantial purpose. If however, an appeal is filed against the final orders made, then it will be sufficient that the summons stand over to be listed together with the appeal which will be heard in due course.

1. Because the fate of the proposed appeal is as yet unresolved I do not propose to dismiss, or take any other step, in respect of Sydney Water's motion of 20 February, other than to stand it over.

1. Secondly, there is a notice of motion filed by Mr Makucha last Friday, 24 February 2012, seeking 11 separate orders. Mr Makucha read an affidavit of the same date in support of that motion. Objection has been taken by Sydney Water to all but four paragraphs (1,2,8 and 22) of the affidavit. The primary objection was to the relevance and materiality of the allegations; in the alternative it was said that the material was in the form of a submission. I do not propose to reject any parts of the affidavit on those bases, it being an interlocutory application. I do, however, accept that paragraphs 15 and 16 of the affidavit contain scandalous material which should not be allowed to stand in their present form and I reject those two paragraphs. That is not to say that factual findings in accordance with those paragraphs may not eventually be made if proper evidence tendered in that regard, supports such findings.

1. Dealing with the orders sought by Mr Makucha in his recent notice of motion, little has been said in relation to orders 8 to 11 which concern the conduct of the Attorney General as a model litigant and orders for damages and costs. It is not necessary to deal with those proposed orders. No evidence or argument was directed to them, in support or otherwise.

1. Orders 6 and 7 are in effect applications for stays. Order 6 seeks a stay of the judgment and in particular the orders made on 22 December 2011 which require payment by Mr Makucha to Sydney Water of an amount a little in excess of $300,000, together with certain other steps to be taken by Mr Makucha or his company, Paul Makucha Holdings Pty Limited. There is no evidence tendered in relation to the prejudice which would be caused by compliance with those orders. It would not be appropriate on the material before the Court to order a stay of that judgment. Further, the orders are in a materially different form, one from the other. Accordingly I do not propose to make order 6.

1. Order 7 also in effect seeks a stay, in that it relates to access to material which is said to include personal effects of Mr Makucha located on premises at Mascot which were at one stage leased from Sydney Water. It appears to be common ground that the lease has terminated. The affidavit of Mr Brent Michael of 27 February 2012 sets out some of the background to the use of the land at the specified address and steps which Sydney Water is prepared to take to allow Mr Makucha to remove his personal effects. Sydney Water does not consent to those effects remaining for Mr Makucha's use.

1. The circumstances in which Mr Makucha seeks to retain his effects on the property and retain access to them are by no means clear to me and I do not propose to make an order in terms of order 7 at this stage. In relation to both orders 6 and 7 I will stand the prayers for relief over until they are sought to be re-agitated by Mr Makucha on the basis of evidence which would allow a proper understanding of the underlying circumstances.

1. The major issue sought to be agitated before the Court was an attempt by Mr Makucha to have the Court determine whether Sackar J was validly appointed as a judge of the Supreme Court on 1 February 2011. The matter has significance in two respects. First, the only matter before the Court is the application for leave to appeal by way of summons filed last August. If the motion is brought in that proceeding then it would await the outcome of the appeal in the manner which I have proposed, namely that the summons should be listed with the appeal if filed. If this issue is to be raised as a ground of challenge to the final judgment then again it would be available to be determined by the Court with the other matters raised in the appeal.

1. Secondly, Mr Makucha seeks to have it determined separately and apart from any other matters now before the Court and asks that all steps required in respect of other matters be stayed or rather, to use the words in proposed order 1, that the Court grant an extension of time for other matters to be dealt with.

1. As no notice of appeal has yet been filed, I do not know what other matters will be raised nor, accordingly, do I have any understanding of when the appeal is likely to be heard, how long it is likely to take and whether or not it will be necessary to address the issues that were raised before this Court last August and potentially remain available to Mr Makucha under the summons seeking leave to appeal. If an appeal is to be brought, it must be done in accordance with the rules. I decline to make an order in the form of order 1, assuming for present purposes, as I think was assumed during submissions, that it related to steps to be taken in this Court in relation to proceedings on the summons and by way of the foreshadowed appeal.

1. What I propose to do is to leave all aspects of that motion on foot so that it can be re-agitated if Mr Makucha wishes to do so at the time when this Court is appraised of what other issues are to be raised by way of appeal against the final judgment. I note that in accordance with the rules that notice of appeal is to be filed by 21 March 2012.

1. Of the other orders sought in the notice of motion, being orders 2, 3, 4 and 5, each is based on the premise that Sackar J was not validly appointed as a judge of the Supreme Court. Declarations to that effect are sought and in relation to the validity (or rather the nullity) which would then ensue in respect of his judgment of 22 December 2011. As I do not propose to list that matter for separate determination, all three notices of motion should be stood over to a date to be determined after the notice of appeal has been filed. I would reserve the costs of today as being costs in the summons, that being the only proceeding presently before the Court.

1. I also discharge the order of the Registrar requiring that the white folders in relation to the application for leave to appeal be filed by 20 February 2012. The parties have liberty to apply in respect of the further consideration of the motions.

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Decision last updated: 05 March 2012