Waterhouse v Independent Commission Against Corruption

Challenge to directions

1. 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.
2. 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.
3. 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.
4. 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]
5. 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."
6. 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."
7. 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."
8. 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]

Principles relevant to re-opening

1. 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.
2. 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."
3. 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.
4. 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.
5. 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.
6. 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

1. 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.
2. 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.
3. 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

1. 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.
2. 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

1. Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300.
2. See also High Court Rules 2004 (Cth), r 41.11.3.
3. Civil Procedure Act, s 61(1) and (2)(c).
4. [2015] NSWCA 254 at [6]-[11] (Beazley P, Gleeson JA, Sackville AJA).
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.
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. (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].
18. La La Land Byron Bay at [9]-[10].
19. UCPR, r 36.16(3)(b).
20. UCPR, r 13.16(3A).
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. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2015