Waterhouse v Independent Commission Against Corruption (No 2)

[2015] NSWCA 362

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362

Hearing dates:

On the papers

Decision date:

23 November 2015

Before:

Basten JA, Sackville AJA, Emmett AJA

Decision:

(1)   Dismiss the applicant’s notice of motion filed on 12 October 2015.

 

(2)   Order that a revised draft notice of appeal be filed, in accordance with order (5) made on 30 September 2015, no later than 4pm on 15 December 2015.

 (3)   In the event the applicant fails to comply with order (2) above, so much of the application for leave to appeal as was not dismissed by the orders made on 30 September 2015 will stand dismissed.

Catchwords:

PRACTICE AND PROCEDURE – application to re-open orders granting the applicant leave to appeal on a limited basis – review of post-judgment directions by Registrar – whether applicant entitled to a hearing in open court – scope of reasons in refusing leave to appeal – limiting time for oral submissions – whether arguable basis for re-opening – whether the Court granting leave acted under misapprehension as to the facts or relevant law – Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 61; Pt 6
High Court Rules 2004 (Cth), rr 41.10.1, 41.11.1, 41.11.3
Judiciary Act 1903 (Cth), s 78
Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:

Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300
Collins v The Queen (1975) 133 CLR 120
De L v Director-General, New South Wales Department of Community Services [No 2] (1997) 190 CLR 207
Independent Commission Against Corruption v Kinghorn [2015] NSWCA 342
John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324
Kiama Constructions v Davey (1996) 40 NSWLR 639
Roy Morgan Research Centre Pty Ltd v Commissioner of State of Revenue (Vic) (2001) 207 CLR 72; [2001] HCA 49
La La Land Byron Bay Pty Limited v The Independent Liquor and Gaming Authority [2015] NSWCA 254
Russell v Russell (1976) 134 CLR 495
Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd [No 2] (1990) 21 NSWLR 200
Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300.

Category:

Consequential orders (other than Costs)

Parties:

Martin Otto Waterhouse (Applicant)
The Independent Commission Against Corruption (Respondent)

Representation:

Counsel:
Applicant self-represented
Ms A Mitchelmore (Respondent)

  Solicitors:
Applicant self-represented
Crown Solicitor’s Office (Respondents)

File Number(s):

2015/113041

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2014] NSWSC 424;
[2015] NSWSC 261

Date of Decision:

2 April 2014;
2 April 2015

Before:

Garling J

File Number(s):

2013/86239

Judgment

1. THE COURT: On 30 September 2015 the Court delivered a judgment addressing three applications. [1] First, the Court considered an application by Mr Martin Otto Waterhouse (“the applicant”) that the members of the Court recuse themselves. Secondly, it considered a notice of motion by the Attorney General for New South Wales seeking to be removed from the proceedings. Thirdly, it addressed an application for leave to appeal from two judgments of Garling J delivered in the Common Law Division.

   1. Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300.

2. Order (1) dismissed the applicant’s notice of motion; order (2) required the applicant to pay the respondents’ costs of the motion. Order (3) removed the Attorney General as a party and order (4) required that the applicant pay the Attorney’s costs of that motion. On 12 October 2015 the applicant filed a notice of motion seeking to have orders (2), (3) and (4) set aside.

3. With respect to the application for leave to appeal from the judgments of Garling J, the Court directed the applicant to file a revised draft notice of appeal including limited grounds only and permitting the inclusion of specified proposed orders relevant to those grounds. Subject to those limitations, the application for leave to appeal was referred to a concurrent hearing. The application for leave to appeal was otherwise dismissed. The applicant’s motion of 12 October 2015 sought to set aside order (8) otherwise dismissing the application for leave to appeal and sought to vary orders (5)-(7) which imposed the limitations and referred the application (so limited) to a concurrent hearing, so as to reinstate all of the appeal grounds (which covered some 30 pages of the draft notice of appeal), other than ground 3(i). The motion also sought to reinstate all the proposed orders. In substance, the motion sought to reagitate the whole of the matter disposed of on 30 September 2015 with the exception of the applicant’s recusal motion, and so much of the orders as were favourable to the applicant.

4. On 19 October 2015, at the direction of the Court, the Registrar stated that the motion would be treated as an application to re-open the orders made on 30 September 2015; that the motion would be dealt with on the papers; that any further evidence in support of the application (not duplicating anything already filed) should be filed and served by 2 November 2015 and that if the Court required a response from the respondents it would advise the parties after receiving the material from the applicant. Further, the Registrar advised that the Court might consider varying order (5) made on 30 September 2015 to fix a time within which the draft notice of appeal, amended in compliance with the other orders, should be filed.

5. On 28 October 2015 the applicant swore a further affidavit, the effect of which was to put before the Court two further bundles of documents. The first bundle contained a copy of the amended statement of claim dated 27 June 2013 and the annexures thereto, filed in the Common Law Division on 27 June 2013. (The statement, with its annexures, probably exceeded 200 pages, although it was not consecutively paginated.) The second bundle of documents contained 17 separate documents of varying nature, including the transcript in this Court on the hearing of the leave application, the transcript before Garling J, various submissions before Garling J and extraneous documents which need not be identified, but which were sought to be relied on in support of the applicant’s allegations in his statement of claim.

6. More importantly, the applicant filed what were described as “Submissions on UCPR 36.16 – notice of motion 12.10.2015.” Despite the rules which limit the written submissions on a full appeal to 20 pages, the submissions on the motion extended to 30 pages and were accompanied by an annexure entitled “Stated Facts” (24 pages) and a chronology (44 pages).

Challenge to directions

7. The applicant’s submissions took issue with the directions made by the Registrar on several grounds, including complaints that the applicant had not been accorded an opportunity to address on the procedure to be adopted on his notice of motion and asserting that it was more than an application to re-open, because it sought “to correct serious errors of the Court in its judgment both as to critical facts and the application of relevant law.” He further stated that he wished “to exercise his rights to speak to the submissions at a proper hearing” and requested that the matter be relisted as a “special fixture for two days”. The applicant submitted that the matters he sought to raise should be addressed in open court.

8. There are three broad answers to these submissions. First, so far as there is a complaint of procedural unfairness, the practice of the court giving directions with respect to post-judgment motions without hearing from the parties is routine and essential for the orderly and efficient despatch of the court’s business. If, as in this case, a party seeks to have the directions varied, the court will entertain such an application. Any interlocutory directions are open to variation for good cause. Hence this response to the applicant’s request to vary the directions.

9. Secondly, and in response to the request, the Court entertained the application for leave to appeal in open court and the applicant was able to address the court orally, which he did. It is one thing to say that justice must be administered in open court; it is quite another to say that a party is entitled to address the court as often and for as long as he or she wishes. Busy courts impose time limits in the interests of ensuring that all litigants have equal access to timely justice. Such an approach is now mandated by Pt 6 of the Civil Procedure Act 2005 (NSW) and, in particular, ss 56-62. Thus, on applications for leave to appeal the Court generally requires a party to present submissions in 20 minutes. [2] Having had an opportunity to present oral submissions (in support of his lengthy written submissions) on his application for leave to appeal, the applicant is not entitled as of right to a further hearing in support of a separate application to re-open the judgment already delivered with respect to that part of the leave application which was dismissed.

   2. See also High Court Rules 2004 (Cth), r 41.11.3.

10. Thirdly, while the Court has not adopted any general rule with respect to such applications, the Court has a broad power to give such directions as it considers appropriate with respect to the conduct of proceedings (whether or not inconsistent with rules of court). [3] In doing so, it should give effect to the overriding purpose stated in s 56(1) and the objects of case management identified in s 57. The application of these principles with respect to leave applications was addressed quite recently in La La Land Byron Bay Pty Limited v The Independent Liquor and Gaming Authority. [4]

    3. Civil Procedure Act, s 61(1) and (2)(c).

    4. [2015] NSWCA 254 at [6]-[11] (Beazley P, Gleeson JA, Sackville AJA).

11. Although the conduct of judicial proceedings in open court, where the public may attend, is a fundamental principle governing the exercise of judicial power, the principle is subject to exceptions. These may be provided by statute, or within limited categories, in accordance with the general law as developed by the courts. [5] Applications for leave to appeal are not routine matters attracting the full panoply of principles associated with the exercise of judicial power. For example, an applicant for special leave to appeal to the High Court has been held not to be a “party” for the purpose of claiming an entitlement to appear, pursuant to s 78 of the Judiciary Act 1903 (Cth). [6] The Court held: [7]

“In the ordinary course of litigation, criminal or civil, it is considered that a party to proceedings should have the right to present his own case. But an application for leave or special leave to appeal is not in the ordinary course of litigation. The practice of this Court in granting or refusing leave or special leave makes this clear.”

5. Russell v Russell (1976) 134 CLR 495; John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324.

6. Collins v The Queen (1975) 133 CLR 120.

7.    Collins at 122.

12. The High Court Rules now confer power on any two justices to determine an application for special leave without listing it for hearing. [8] Indeed, an unrepresented applicant still has no right to appear. [9] Further, the absence of any general obligation to give reasons illustrates the different nature of such an application. In the past, it was not the practice of this Court to give reasons for either granting or refusing leave to appeal. That practice was affirmed in Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd [No 2]. [10] In Kiama Constructions v Davey,[11] Mahoney P, albeit in the context of considering the scope of the obligation of a trial judge to give reasons stated: [12]

“A judge of a superior court and a court where decisions are subject to appeal or review ordinarily should give reasons for the orders he makes. There are qualifications and exceptions to this. Reasons, or detailed reasons, need not be given in some interlocutory or practice decisions. Until comparatively recently, the High Court of Australia did not ordinarily give reasons in leave applications. Ordinarily this Court does not give reasons, or detailed reasons, in granting or refusing applications for leave to appeal to it. Where the Court is to give reasons and what reasons are to be given will be affected by the nature of the case and, amongst other things, what has been made apparent to the parties in the course of argument of the proceedings. The imposition of inflexible rules would impede the effective, efficient, timeous and just disposal of the work of the court concerned.”

8. High Court Rules, r 41.11.1.

9. High Court Rules, r 41.10.1.

10. (1990) 21 NSWLR 200 at 215D-E (Mahoney JA) and 218C (Handley JA).

11. (1996) 40 NSWLR 639.

12.    Kiama Constructions at 640D.

13. A different approach may be required when dealing with the determination of an application for leave to appeal from a tribunal. In Roy Morgan Research Centre Pty Ltd v Commissioner of State of Revenue (Vic) [13] four members of the High Court (Gaudron, Gummow, Hayne and Callinan JJ), commented on the fact that the primary judge had given no reasons for refusing leave. [14] That practice was described as “unwarranted”, [15] primarily because the application for leave was “the first engagement of judicial power and … in respect of a controversy which is framed differently from, and more narrowly than, whatever may have been the controversy in the Tribunal.” [16] While noting that in such a case the ordinary rule was that reasons should be given, the joint judgment continued: [17]

“Those reasons need not be extensive. In appropriate cases, little more may be required than a short, perhaps very short, statement of the chief conclusions which the judge refusing leave has reached.”

13. (2001) 207 CLR 72; [2001] HCA 49.

14. Roy Morgan at [25].

15. Roy Morgan at [26].

16. Roy Morgan at [25].

17. Roy Morgan at [26].

14. Although it is now common for reasons to be given in refusing leave to appeal to this Court, the practice is, and should remain, flexible, for the reasons noted by Mahoney P in Kiama Constructions. [18]

    18.    La La Land Byron Bay at [9]-[10].

Principles relevant to re-opening

15. The reference by the applicant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) confirmed that the purpose of the motion was to “set aside or vary a judgment or order”, which involves, in common parlance, re-opening a decision which has been given. It may be assumed that r 36.16 was engaged because the application was concerned with so much of the relief sought by the applicant as had been dismissed. [19] The orders made on 30 September 2015 having been entered on that day, any application to vary or set aside those orders, as if not entered, had to be made within 14 days, [20] a time limit which was complied with by the filing of the notice of motion in the present case on 12 October.

    19. UCPR, r 36.16(3)(b).

    20. UCPR, r 13.16(3A).

16. Setting aside or varying orders involves a qualification of the principle of finality, otherwise than by the statutory method of appeal. However, as noted by Mason CJ in Autodesk Inc v Dyason [No 2],[21] in a passage relied on by the applicant in his submissions, “the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law.” Importantly, Mason CJ continued: [22]

“However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.”

21. (1993) 176 CLR 300 at 302; see also De L v Director-General, New South Wales Department of Community Services [No 2] (1997) 190 CLR 207 at 215; Independent Commission Against Corruption v Kinghorn [2015] NSWCA 342 at [15]-[18].

22.    Autodesk at 303.

17. To that statement one may add two further notes of caution. First, there is a distinction to be drawn between the court acting upon a misapprehension as to the facts or the relevant law, on the one hand, and, on the other, the court reaching a conclusion which, in the view of the applicant for re-opening, involves a mistake. Secondly, there is a distinction to be drawn between the situation where the court misapprehends the facts, on the one hand, and, on the other, the situation where the court does not refer in its reasons to some matter which, in the belief of the person seeking re-opening, deserved express reference.

18. These distinctions are important in the present case. It is clear from his submissions that the applicant both disagrees with the reasons and orders of the Court, and believes that the failure to address particular matters followed from a failure to apprehend their significance, or from more sinister motives. However, as explained above, it is customary for leave applications to be dealt with succinctly; were it otherwise the purpose of the leave requirement would be undermined, with serious consequences for the expeditious despatch of the other business of the court.

19. The applicant’s written submissions on the present motion were extensive, indeed expansive, and discursive. For the most part they re-agitated matters which were dealt with in earlier submissions. Many points were unarguable; many points revealed a lack of appreciation of, or willingness to draw, the distinction between the original and the appellate jurisdictions of the court and the differences between applications for leave to appeal and the hearing of an appeal.

20. No purpose would be served by analysing the submissions in detail; it is sufficient to say that the Court, having read the submissions (despite their inappropriate length), is not persuaded that it misapprehended (a) the nature of the claims sought to be brought by the applicant, (b) the factual context which he asserted gave rise to legitimate claims, or (c) the legal principles upon which he purported to rely.

Further directions

21. Had the Court, on considering the written material filed by the applicant, considered it desirable to list the matter for hearing, it would have so directed. That course has proved unnecessary.

22. The Court also indicated in its directions that it would not require a response from the respondents until it had had an opportunity to consider the written material filed by the applicant. The purpose of that direction was to protect the respondent from incurring unnecessary costs. If, on a preliminary investigation, the Court had thought it necessary to obtain the assistance of the respondent, or had formed a tentative view that some part, or all, of the application might be granted, it would have invited the respondent to file a response. That course has not proved necessary.

23. As the Court foreshadowed in the directions given by the Registrar, it has considered whether to fix a time within which the notice of appeal, amended in accordance with the orders made on 30 September 2015, should be filed. To avoid further delay, it is appropriate to fix such a time.

Orders

24. For the reasons given, the Court does not propose to review the directions given by the Registrar on 21 October 2015. The applicant’s notice of motion dated 12 October 2015 must be dismissed.

25. Accordingly, the Court makes the following orders:

1. Dismiss the applicant’s notice of motion filed on 12 October 2015.

2. Order that a revised draft notice of appeal be filed, in accordance with order (5) made on 30 September 2015, no later than 4pm on 15 December 2015.

3. In the event the applicant fails to comply with order (2) above, so much of the application for leave to appeal as was not dismissed by the orders made on 30 September 2015 will stand dismissed.

**********

Endnotes

Decision last updated: 23 November 2015