Waterhouse v Independent Commission Against Corruption

[2016] NSWCA 116

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Waterhouse v Independent Commission Against Corruption [2016] NSWCA 116
Hearing dates:	16 May 2016
Decision date:	19 May 2016
Before:	Simpson JA
Decision:	(1)   The Notice of Motion of 10 May 2016 is dismissed. (2)   The applicant is to pay the respondents’ costs of the proceedings.
Catchwords:	PRACTICE AND PROCEDURE – Notice of Motion – 15 substantive orders sought in relation to pending application for leave to appeal – additional order sought that costs be paid on indemnity basis – no legal or other basis for orders sought – Notice of Motion dismissed
Legislation Cited:	Crimes Act 1900 (NSW), s 316 Independent Commission Against Corruption Act 1988 (NSW), s 11
Cases Cited:	Waterhouse v Independent Commission Against Corruption [2014] NSWSC 424 Waterhouse v Independent Commission Against Corruption (No 3) [2015] NSWSC 261
Category:	Procedural and other rulings
Parties:	Martin Otto Waterhouse (Applicant) Independent Commission Against Corruption (Respondent)
Representation:	Counsel: In person (Applicant) P Herzfeld (Respondent)     Solicitors: Waterhouse Solicitors (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	2015/113041

Judgment

1. SIMPSON JA: The subject of the present proceedings is a Notice of Motion filed on 10 May 2016 by the applicant, Mr Martin Waterhouse, in which he seeks 15 substantive orders relating to a pending application for leave to appeal. That application is fixed for a hearing, concurrently with any appeal for which leave is granted, on 1 June 2016. There is, accordingly, a degree of urgency in the determination of the Notice of Motion.

Chronology

2. In January 2012 the applicant lodged with the Independent Commission Against Corruption (“the respondent”) a detailed complaint, alleging (put briefly) a criminal conspiracy to pervert the course of justice between the Supreme Court of NSW, the respondent, and other institutions. He requested the respondent to investigate the complaint. The respondent declined to do so.

3. In March 2013 the applicant commenced proceedings in the Supreme Court, seeking, by way of judicial review of the decision of the respondent, a variety of declarations and orders, including an order that the respondent “initiate a thorough investigation and public inquiry to gather evidence” into his complaint. On 24 February 2014 the applicant filed in the Supreme Court proceedings a Notice of Motion, in which he sought orders that the Supreme Court judge assigned to hear his claim, and all permanent members of the Supreme Court, be disqualified, by reason of apprehended bias, from hearing his claim, and a declaration that the Supreme Court of NSW was not the appropriate forum for determination of the matters raised in the Statement of Claim (as amended). (The last is somewhat curious, since it was the applicant himself who invoked the jurisdiction of the Supreme Court.)

4. On 2 April 2014 Garling J dismissed the Notice of Motion: Waterhouse v Independent Commission Against Corruption [2014] NSWSC 424. On 2 April 2015 his Honour dismissed the Amended Statement of Claim, giving reasons: Waterhouse v Independent Commission Against Corruption(No 3) [2015] NSWSC 261.

5. The applicant sought leave to appeal against the 2014 and 2015 orders of Garling J. He named the respondent as first respondent, and the Attorney General of NSW as second respondent. He filed a draft Notice of Appeal in which he identified four grounds, each of which nominated numerous sub-grounds. He also filed a Notice of Motion, seeking a declaration that all members of the Court of Appeal were disqualified from sitting on the leave application. This was essentially the same declaration he had sought in the Notice of Motion dismissed by Garling J.

6. The applications were heard by a Bench constituted by Basten and Emmett JJA and Sackville AJA on 10 September 2015. On 30 September, by majority, the Court made orders. The Court ordered that the Attorney General be removed from the proceedings. It referred the application for leave to appeal on four of the sub-grounds to a court constituted for the purpose of hearing the application concurrently with any appeal and directed the applicant to file a revised draft Notice of Appeal limited to those four sub-grounds. It otherwise dismissed the application for leave to appeal. (Sackville AJA dissented; his Honour would have dismissed the application.) The Court dismissed the Notice of Motion by which the applicant sought a declaration that all members of the Court of Appeal were disqualified.

7. Following a hearing before the Registrar on 22 February 2016, in accordance with the determination of this Court, the Registrar fixed 1 June 2016 for the concurrent hearing of the application for leave to appeal, and (if, and to the extent to which, leave were granted) the appeal. Contrary to the applicant’s request, he allowed one day for the hearing. He directed the applicant to file and serve submissions in support of the Notice of Motion by 29 March 2016.

8. On 7 December 2015 the applicant filed a revised draft Notice of Appeal, limited to the four sub-grounds which had been referred by the Court.

9. On 12 February 2016 the applicant filed a further Notice of Motion, seeking 19 separate orders. Yet again he sought orders that “each and every collegiate member” of the Court of Appeal be disqualified from dealing with the matter. He sought a declaration that the “appropriate forum” for dealing with the matters raised in the appeal was:

“… a ‘specially arranged’ appeal court or panel of appeal justices who are beyond political influences of Australian politicians and politics and who cannot be found to have any self-interest in the outcome of the proceedings or any other apprehension of bias according to law”.

He sought an order that the President of the Court of Appeal exercise her “inherent power” as the “chief administrative officer of the Court of Appeal” to request the Attorney General to make the “special arrangements” to which he had previously referred. He also sought an order that the Rules limiting the length of submissions be dispensed with, and various other orders and declarations (some of which had been the subject of determination by Garling J or by this Court), including, for example, orders compelling the respondent “to expedite the investigation and public inquiry” of his complaint. A sample of the orders sought in that Notice of Motion follows:

“11 An order pursuant to section 65(2) of the Supreme Court Act or in the nature of mandamus that [the respondent] immediately take steps and do all things necessary to make ‘special arrangements’ under part 5 section 53 of the ICAC Act for the investigation and conduct of the public inquiry…and for that purpose

12 An order pursuant to section 65(2) of the Supreme Court Act or in the nature of mandamus that [the respondent] immediately request the Attorney General to ask Chairman of the International Commission of Jurists to nominate two of its non-Australian members. One for appointment as an acting ICAC Commissioner to conduct the public inquiry and to determine the matters referred to in section 13(2) of the Act. The other to be appointed as the counsel assisting the inquiry and to oversee the investigation and gathering of evidence to be put before the public inquiry … and for that purpose.”

10. On 3 March 2016 the Registrar of the Court of Appeal ordered that the Notice of Motion of 12 February be stood over for hearing on 1 June 2016 (in conjunction with the concurrent hearing of the application for leave to appeal and any appeal for which leave were granted). He directed the applicant to file and serve written submissions, of no more than 5 pages, by 29 March.

11. It appears that, in the course of preparing an affidavit in support of the Notice of Motion, the applicant read the transcript of the hearing before Basten and Emmett JJA and Sackville AJA. He formed the view that the transcript as provided did not accurately record the exchanges that had taken place between himself and the Bench. On 25 February he sought access to the recording. On 3 March the Registrar advised him that the Court would not release the recording, but would make it available to him, together with facilities to enable him to listen to the tape recordings. This was not satisfactory to the applicant, who advised that he wished “to forensically check the copy supplied to me for any editing”. On 8 April 2016 the applicant listened to the tape recording, which, he acknowledged, was in accordance with the transcript, but which he maintained did not accurately reflect what had taken place in the court. He concluded that the tape recording had been edited. He contacted the Reporting Services Branch, Client Services of the Attorney General’s Department (“RSB”), referring to s 316 of the Crimes Act 1900 (NSW) and s 11 of the Independent Commission Against Corruption Act 1988 (NSW).

12. On 10 May 2016 the applicant filed another Notice of Motion, seeking, in all, 16 orders (of which one was for costs to be paid on an indemnity basis). By proposed Order 1 he sought that the orders of the Registrar of 20 [sic – 22] February 2016 (the order fixing 1 June as the hearing date) and 3 March 2016 (that the 12 February Notice of Motion be listed for hearing on 1 June 2016) be vacated. By proposed Order 2 he sought that the 12 February Notice of Motion be heard concurrently with the application for leave to appeal and any appeal that was permitted. More significantly, by proposed Order 3 he sought that both the Notice of Motion and the application be dealt with and be tried by way of “special arrangements” (which he did not specify); by proposed Order 4 he sought listing for the Notice of Motion and the application for leave to appeal as a special fixture of “2 weeks plus”, to “continue without undue interruption until completed”; by proposed Order 5 he sought expedition of the hearing; by proposed Orders 6 and 8-10 he sought procedural directions for the preparation of the material for the hearing; by proposed Order 7 he sought that the Attorney General be joined “as a respondent party to represent the Supreme Court on the hearing of the Notice of Motion” of 12 February. By proposed Orders 11-15 he sought various orders concerning provision of the tape recording of the Court of Appeal hearing. By way of example, by proposed Order 11 he sought:

“An order that RSB Client Services provide to the Applicant a CD copy of the original unedited voice recording of the hearing before Justices Basten, Emmett and Sackville on the 10th September 2015 on or before the 25TH May 2016.”

It was this Notice of Motion that was the subject of the present proceedings.

13. In support of the Notice of Motion, the applicant relied upon a lengthy affidavit sworn by him on 27 April 2016, and another sworn on 4 May. In the 27 April affidavit the applicant asserted a conspiracy in which this Court was engaged, and interference in the course of justice by “fixing” an earlier proceeding in which the applicant had been involved.

Determination

14. In order to determine the issues raised in the Notice of Motion, it is not necessary to go in detail to the evidence in the applicant’s affidavit. The basis upon which Order 1 was sought was that the one day allocated to the hearing would be manifestly insufficient to enable the applicant to put his case adequately, and that a more realistic estimate of the required hearing time, as reflected in Order 4 as sought, is at least 2 weeks.

15. I am satisfied that the applicant’s position in this respect is without foundation. All that survives of the applicant’s application for leave to appeal, and his draft Notice of Appeal, are the four sub-grounds referred by the Court as then constituted for hearing. Those grounds challenge certain conclusions of the primary judge. There is no reason that those grounds cannot be disposed of comfortably within one day. The Bench hearing the application will have access to the material that was before the primary judge. It would not ordinarily go outside that material, and nothing has been advanced to suggest any departure from the ordinary process. I therefore decline to make Orders 1 or 4 as sought.

16. By proposed Order 2, the applicant seeks to have the Notice of Motion of 12 February heard concurrently with the application for leave to appeal. Such an order has already been made by the Registrar (although, curiously, that order is sought to be set aside). Since it would be superfluous, I would decline to make Order 2 as sought.

17. By proposed Order 3 the applicant seeks to have the matter dealt with by “special arrangements”. When pressed as to what he meant by this, he replied that he sought the appointment of judges from outside the state of NSW. (In the Notice of Motion of 12 February, he specified nomination by, for example, the International Commission of Jurists, and appointment in accordance with that recommendation). The applicant recognised that such a course lies outside the power of this Court, but sought a direction that the President of the Court of Appeal, as its “chief administrative officer”, approach the Attorney General or the Governor for that purpose. He recognised also that it would be inappropriate for a judge to purport to direct the President as to the discharge of her administrative functions, but complained that his attempts to contact the President to make a request had not achieved results. The application embodied in proposed Order 3 is incompetent and is refused.

18. By proposed Order 5 the applicant seeks expedition, an application that sits uneasily with the earlier application to vacate the hearing date. The hearing date allocated is just over 2 weeks away. No basis for expedition was established on the evidence. This application is refused.

19. Proposed Order 7 is an order that the Attorney General be joined as a party “to represent the Supreme Court on the hearing of the [12 February] Notice of Motion”. As was pointed out by counsel for the respondent (who was also instructed to represent the interests of the Attorney General and RSB) the Attorney General is already named as a respondent to the Notice of Motion, and is named as a respondent also to the Notice of Motion of 12 February. She has been removed, by order of this Court, from the substantive proceedings. No basis has been established for reinstating her as a party to those proceedings. The purpose of the proposed joinder of the Attorney General is stated to be “to represent the Supreme Court”. The Supreme Court is not a party to the proceedings, and is not in need of representation. Proposed Order 7 is refused.

20. Proposed Orders 6, and 8 to 10 are no more than directions for the preparation of the hearing for 1 June. At the conclusion of the hearing of the Notice of Motion, I gave directions that were acceptable to both parties. These applications are now redundant.

21. Proposed Orders 11 to 15 concern RSB. I have set out Order 11 above.

22. It will be seen that the proposed order is based upon an assumed premise – that there exists an “original unedited voice recording” distinct from that which was provided to the applicant by the Registrar. Notwithstanding the applicant’s own firm belief that the tape recording had been tampered with, there is no satisfactory evidentiary basis for a conclusion that the subject matter of this order (distinct, as I have said, from the tape recording already provided) exists. Orders 12 to 15 are based on similar unfounded assumptions of fact. I decline to make those orders.

23. The final order sought is an order for costs to be paid on an indemnity basis. Since the inevitable conclusion of the above is that the Notice of Motion be dismissed, there is no basis for such an order.

24. The orders I make are:

1. The Notice of Motion of 10 May 2016 is dismissed.

2. The applicant is to pay the respondents’ costs of the proceedings.

**********

Amendments

20 May 2016 - substitute "24 February 2013" for "24 February 2014" - [3]

Decision last updated: 20 May 2016