Waterhouse v Independent Commission Against Corruption (No 2)

[2015] NSWCA 305

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 305
Hearing dates:	10 September 2015
Decision date:	30 September 2015
Before:	Emmett JA
Decision:	Refuse application for disqualification.
Catchwords:	BIAS – apprehended bias – application for disqualification of judge
Cases Cited:	Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300
Category:	Procedural and other rulings
Parties:	Martin Otto Waterhouse (Applicant) The Independent Commission Against Corruption (First Respondent) Attorney General, New South Wales (Second Respondent)
Representation:	Counsel: Applicant self-represented Ms A Mitchelmore (Respondents)   Solicitors: Applicant self-represented Crown Solicitor’s Office (Respondents)
File Number(s):	2015/113041
Publication restriction:	Nil

Judgment

1. EMMETT JA: When this application for leave to appeal was called on for hearing,[1] Basten JA announced that he had held an appointment as an Assistant Commissioner on the Independent Commission Against Corruption (the Commission) in 2003 and 2004, having been appointed for the specific purpose of an investigation into certain dealings for the Koompahtoo Local Aboriginal Land Council. Sackville AJA also announced that he had held a position as an Acting Commissioner of the Commission in about 1992 in connection with an inquiry into the State Rail Authority.

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

2. The applicant then pointed out that I am related by marriage to Sir Laurence Street, a former Chief Justice of the Court. When asked about the relevance of that fact, the applicant said that he was seeking a public inquiry into the corruption of the Supreme Court and of the Commission. He said that his complaint was essentially that the Supreme Court engaged in a serious crime of “judge rigging for politicians” and that, when that was found out and a complaint was made to the Commission, the Commission acted “in extreme bad faith, took the complaint about the judge fixings to the judge fixers and accepted instructions to cover it up”. He asserted that “the judge fixing” was done at a time when Sir Laurence Street was the Chief Justice.

3. The applicant said that he did not think that anybody would think that I “would be keen” to see a public inquiry in which Sir Laurence Street might be a person of interest in relation to the determination of “how the judge was rung in and corrupted into perverting justice”. He asserted that Sir Laurence Street was a potential witness and that he may be a serious person of interest considering that “he is a very close friend of Mr Neville Wran’s and one of the other judge fixers”.

4. Basten JA then asked the applicant whether he was making an application for me to disqualify myself. The applicant’s response was that he was moving on his notice of motion. Basten JA pointed out that the notice of motion asked that all members of the Court disqualify themselves and that there must be special arrangements for the appointment of judges from outside New South Wales, and preferably for the appointment of “international judges”. Sackville AJA subsequently asked the applicant to respond to Basten JA’s request that he address why the members of the Court should disqualify themselves and asked him to explain why the judges should do that.

5. I then asked the applicant to indicate, when doing so, whether he asserted that I was in a different position from the other members of the Court. I indicated that I had seen no reference to Sir Laurence Street in the notice of appeal or any of the other material presently before this Court. The applicant’s response was that “it’s in the complaint to [the Commission]”. I pointed out that the Court does not have that material. The applicant made no effort to put any such material before the Court.

6. In the absence of any allegation in the material presently before this Court that involves Sir Laurence Street, and having regard to the nature of the application presently before the Court, I did not consider that there was any basis shown for an apprehension of bias on my part in dealing with the present application. The matter was not taken any further by the applicant and I continued to sit with the other two members of the Court in hearing the application for leave to appeal. Clearly enough, if there were allegations involving Sir Laurence Street personally, I would certainly need to reconsider my position.

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Endnote

Decision last updated: 30 September 2015