Waterhouse v Independent Commission Against Corruption (No 3)

[2016] NSWCA 134

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Waterhouse v Independent Commission Against Corruption (No 3) [2016] NSWCA 134
Hearing dates:	1 June 2016
Decision date:	15 June 2016
Before:	Basten JA
Decision:	Application for recusal declined.
Catchwords:	BIAS – apprehended bias – application for disqualification of judge – application based on association with decision-maker who was a former member of the Court
Cases Cited:	Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Waterhouse v Independent Commission Against Corruption (No 2) [2016] NSWCA 133
Category:	Procedural and other rulings
Parties:	Martin Otto Waterhouse (Applicant) Independent Commission Against Corruption (Respondent)
Representation:	Counsel: Applicant self-represented P D Herzfeld (Respondent)   Solicitors: Waterhouse Solicitors (Applicant) Lea Armstrong, Crown Solicitor (Respondent)
File Number(s):	CA 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): SC 2013/86239

Judgment

1. BASTEN JA: Mr Martin Waterhouse is an applicant for leave to appeal from a judgment in the Common Law Division rejecting his claim to set aside a decision of the Independent Commission Against Corruption (“the Commission”). The application first came before this Court on 10 September 2015. By a judgment delivered on 30 September 2015, the Court (by majority) directed that certain limited questions could be addressed at a further hearing on the application for leave, once an amended draft notice of appeal had been filed. The matter came back before the Court on 1 June 2016.

2. On each occasion, I was a member of the bench constituted to hear the application. On 10 September, at the commencement of the hearing, I disclosed my prior involvement as an Acting Commissioner of the Commission for the purpose of a specific inquiry in 2003-2004. The applicant did not make a recusal application based on that disclosure. On 12 May 2016 the applicant filed a notice of motion, seeking that all members of the Court disqualify themselves and a “specially arranged” appeal court be constituted. That matter is dealt with by the Court in a separate judgment dealing with the application for leave to appeal. [1] Although the notice of motion sought to have the judgment of this Court of 30 September 2015 (and a subsequent decision not to reopen that judgment, dated 23 November 2015) set aside, it did not expressly identify any basis upon which I should have recused myself at that time. At the hearing on 1 June 2016 the applicant specifically asked me to recuse myself, though again without identifying the basis of the application.

   1. Waterhouse v Independent Commission Against Corruption (No 2) [2016] NSWCA 133.

3. Nevertheless, in a lengthy affidavit sworn on 27 April 2016, the applicant identified a number of matters which were relied upon at the hearing as a basis for a recusal application. They included (a) the circumstances in which I had performed the role of Acting Commissioner (before my appointment to the Court); (b) my professional association with former Chief Justice Spigelman and former President of the Court of Appeal, Chief Justice Allsop of the Federal Court of Australia, (c) and an alleged refusal, not recorded in the transcript, of an adjournment application.

4. The test for recusal is whether a fair-minded lay person, with knowledge of the matters relied upon by the applicant, might consider that I might not carry out my judicial functions as a member of the Court dispassionately and impartially. [2]

   2. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13].

5. I am satisfied that such a person would not reach that conclusion based on my prior conduct as an Acting Commissioner involved in an entirely unrelated inquiry.

6. While it is true that I had, in past years, a professional working relationship with the former Chief Justice and the former President, I was not on the Court at the time of the allegations involving (somewhat peripherally to the main complaints) the former Chief Justice, and the involvement of the former President in the case was limited to his representation of another member of the Waterhouse family in the litigation which gave rise to the judge fixing allegation more than 25 years ago. These matters are not capable of giving rise to the apprehension referred to above.

7. Finally, while it does not appear that I expressly made an order rejecting the adjournment application, it is correct that an adjournment application was at least foreshadowed and not acceded to. That application could have related to a possible disqualification application. Accepting those matters as fact, they could not give rise to an apprehension of bias with respect to determining the substantive issues before the Court.

8. I decline the recusal application. It follows that I would not be satisfied that there is any basis for setting aside the earlier judgments of the Court on the basis that I was disqualified from sitting.

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Endnotes

Decision last updated: 15 June 2016