Waterhouse v The Independent Commission Against Corruption (No.2)

[2014] NSWSC 1515

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Waterhouse v The Independent Commission Against Corruption (No.2) [2014] NSWSC 1515
Hearing dates:	8 September 2014
Date of orders:	08 September 2014
Decision date:	08 September 2014
Jurisdiction:	Common Law
Before:	Garling J
Decision:	1. Grant leave to the defendant to file the affidavit of Roy Alfred Waldon sworn 6 August 2014 in these proceedings. 2. Order that the filing of the affidavit be deemed as compliance with r 14.23(2) and r 14.23(3) of the Uniform Civil Procedure Rules 2005, in connection with the filing of the defendant’s Defence on 11 April 2014 in this proceeding. 3. Order the defendant to pay the plaintiff’s costs of and incidental to the Motion. (4)I note that the principal decision in the proceedings is otherwise reserved
Catchwords:	PROCEDURE – civil – rule 14.23 Uniform Civil Procedure Rules 2005 - application by defendant to file affidavit – defence filed but not verified by affidavit – failure to subscribe affidavit to defence was an oversight – interests of justice for pleadings to be in correct form – plaintiff given opportunity to make further submissions – leave to file affidavit granted
Legislation Cited:	Uniform Civil Procedure Rules 2005
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	Martin Otto Waterhouse (P) The Independent Commission Against Corruption (D)
Representation:	Counsel: In person (P) Dr Galbraith (D)
File Number(s):	2013/86239
Publication restriction:	Not Applicable

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EX TEMPORE Judgment

1. This is an application by the defendant, the Independent Commission Against Corruption filed on 28 August 2014 for a number of orders, the effect of which is that it be directed to rectify an oversight which occurred at the time of the filing of the defence in these proceedings. That oversight was that the defence was not verified in accordance with r 14.23 of the Uniform Civil Procedure Rules 2005 (“UCPR’).

2. The solicitor for the defendant has indicated in an affidavit that the failure to subscribe an affidavit to the defence was a matter of oversight. I accept that is so.

3. In the particular circumstances of the dispute between the parties, it does not seem to me that the orders sought by the defendant make any difference to the real issues which fall to determined, and which will be the subject of the judgment upon which I am reserved.

4. Accordingly it seems to me that the interests of justice would require that the record of the matter, mainly the pleadings, be in a correct form, and I would be disposed to grant leave to the defendant to verify its pleading.

5. I am conscious that the plaintiff, Mr Waterhouse, appears for himself. He is a solicitor. In submissions, he has made it plain that he regards the business of verification as a matter relevant to the substance of the issues that I am to determine.

6. As I have said I am not presently persuaded of that fact, but in case Mr Waterhouse takes the view that if the defence had been verified, he would have put arguments on submissions with respect to the issues in the principal proceedings differently to the Court, which he was directed to do in writing, I will ensure that he is not disadvantaged by this late verification, by allowing him an opportunity to make any further submissions that he wishes. I will proceed shortly to make orders permitting the filing of the affidavit of Mr Waldon.

7. An issue arises as to costs. The necessity for the motion and the hearing before the court has arisen because of the failure of the defendant to have its defence verified. Whilst it is correct that consent could have been given the defendant seeks the exercise of the court’s discretion as a consequence of its own unsatisfactory conduct.

8. In all the circumstances, the proper order is that the defendant is to pay the plaintiff’s costs of and incidental to the Motion.

9. I make the following orders pursuant to r 14.23(6) of the UCPR:

1. Grant leave to the defendant to file the affidavit of Roy Alfred Waldon sworn 6 August 2014 in these proceedings.

2. Order that the filing of the affidavit be deemed as compliance with r 14.23(2) and r 14.23(3) of the Uniform Civil Procedure Rules 2005, in connection with the filing of the defendant’s defence on 11 April 2014 in this proceeding.

3. Order the defendant to pay the plaintiff’s costs of and incidental to the Motion.

4. I note that the decision in the principal proceedings is otherwise reserved.

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Amendments

02 April 2015 - Technical glitch on coversheet