Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300 Hearing dates: 10 September 2015 Decision date: 30 September 2015 Before: Basten JA and Emmett JA at [1]; Sackville AJA at [57] Decision: (1) Dismiss the applicant's notice of motion filed on 19 August 2014. (2) Order the applicant to pay the costs of the first and second respondents of his motion of 19 August 2014. (3) Order that the Attorney General be removed as a party from the proceeding. (4) Order that the applicant pay the costs of the Attorney with respect to the Attorney's motion for removal. (5) Direct the applicant to file a revised draft notice of appeal limited to grounds 3(ii) and (iii) (first sentence only) and 4(v) and (vii) and proposed orders 1, 3, 4 (subject to deletion of "was prima facie made in bad faith and for improper and illegal purposes" and all the words after "procedural fairness"), 5, 23 and 24. (6) Refer the application for leave to appeal to a court constituted for the purpose of hearing the application concurrently with the appeal, subject to the limitations identified in order (7) below. (7) The grounds upon which leave to appeal may be granted, and if granted the appeal considered, are limited to those identified in order (5). (8) The application for leave to appeal be otherwise dismissed. Catchwords: APPEAL – application for leave to appeal – refusal of relief by way of judicial review – whether arguable case that refusal of respondent to investigate complaint unreasonable – whether arguable case of constructive failure to exercise jurisdiction – whether trial judge arguably erred in dismissing judicial review application on grounds not relied on by respondent – failure of applicant to place relevant material before appeal court – whether leave application should be referred for concurrent hearing on limited grounds BIAS – apprehended bias – judicial review of refusal by the Independent Commission Against Corruption to investigate complaint – allegations of conspiracy involving politicians and retired judicial officers to cover up corruption – application that all judges of the Supreme Court of New South Wales recuse themselves – whether fair-minded observer might entertain doubts about the ability of the Court as a whole to deal impartially with application for judicial review CONSTITUTIONAL LAW – notice of constitutional matter – no issue of operation or interpretation of Constitution arising – whether notices required in case of bias allegations – Judiciary Act 1903 (Cth), s 78B PRACTICE AND PROCEDURE – joinder of State Attorney General – orders sought relating to constitution of the Court – relief not granted Legislation Cited: Constitution (Cth), Ch III Independent Commission Against Corruption Act 1988 (NSW), ss 10, 20 Judiciary Act 1903 (Cth), s 78B Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), rr 1.22, 1.23 Cases Cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Hagan v Waterhouse (1991) 34 NSWLR 308 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 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 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 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA and EMMETT JA: The applicant, Martin Otto Waterhouse, has sought leave to appeal from two judgments of Garling J delivered in the Common Law Division. The first, delivered on 2 April 2014, rejected an application that he (and all other judges of the Court) be disqualified from hearing his application for judicial review of a decision of the Independent Commission Against Corruption ("ICAC"). [1] The second judgment, delivered a year later on 2 April 2015, dismissed his application for judicial review of a decision of the ICAC to decline to investigate a complaint lodged by the applicant with the Commission on 24 January 2012. [2] A summons seeking leave to appeal was filed on 30 June 2015. Apprehension of bias (a) issues 1. On 19 August 2015, the applicant filed a motion seeking a declaration that all members of this Court were disqualified from sitting on the leave application. He raised three issues for determination. First, he submitted that all members of the bench as presently constituted should recuse themselves, on the basis that the issue to be resolved involved a challenge to the integrity of the Supreme Court by way of political interference in the constitution of the Court to deal with the alleged fraudulent mismanagement of the estate of the applicant's father, Charles Otto Hercules Waterhouse, who died in 1954. Complaints by the applicant and his mother (since deceased) were dealt with by Kearney J in Hagan v Waterhouse, the principal judgment being delivered on 28 November 1991. [3] If, as was contended, all members of the Court had an interest in protecting the reputation of the institution, with the result that all were affected by a reasonable apprehension of bias, the applicant submitted that it would be necessary to appoint judges from interstate, or preferably overseas. 2. Secondly, the applicant submitted this application raised a matter arising under Ch III of the Constitution, or involving its interpretation, so that the Court could not deal with the issue until appropriate notices had been given to the Commonwealth and State Attorneys General, pursuant to s 78B of the Judiciary Act 1903 (Cth). Although the applicant submitted that it was his claim that gave rise to the obligation to give notice, he conceded that he had taken no steps in that regard, pending a direction by the Court. 3. Thirdly, the applicant raised a specific concern in relation to one member of the Court, Emmett JA, which will be separately addressed by him. (b) Judiciary Act s 78B notices 1. It is appropriate to deal first with the submission that the Court should not proceed until notices have been given under s 78B of the Judiciary Act. Where a party considers that such notices are required, the obligation lies on that party to file and serve a notice of a constitutional matter, in accordance with the Uniform Civil Procedure Rules 2005 (NSW), rr 1.22 and 1.23. However, failure of a party to take such a step, although it may have consequences for the costs of proceedings which are delayed, does not exonerate the Court from its obligation to comply with the Commonwealth law. The question is whether such notices were required in the present case. 2. In support of his contention that they were, the applicant relied upon the statement by Gaudron J in Ebner v Official Trustee in Bankruptcy, [4] to the following effect: "[79] It is not in issue that the underlying principle which, on occasions, requires that a judge disqualify himself or herself is that courts must act impartially and must also be seen to act impartially. These are requirements embedded in the common law and in all developed legal systems. In my view, they are also required by Ch III of the Constitution. [80] … Impartiality and the appearance of impartiality are so fundamental to the judicial process that they are defining features of judicial power. … [81] … Because State courts are part of the Australian judicial system created by Ch III of the Constitution and may be invested with the judicial power of the Commonwealth, the Constitution also requires, in accordance with Kable v Director of Public Prosecutions (NSW) [5] , that, for the maintenance of public confidence, they be constituted by persons who are impartial and who appear to be impartial even when exercising non-federal jurisdiction." 1. Section 78B is not engaged merely because a court is exercising federal jurisdiction, which derives from Ch III of the Constitution. Rather, the statutory obligation to give notice arises only where there is an issue in dispute in the proceedings involving the operation or interpretation of the Constitution. There is no such issue in the present case. As Gaudron J further noted in Ebner, "[t]he test for the appearance of bias was formulated in a series of cases decided by reference to common law principles and without regard to the role of Ch III of the Constitution." [6] There is no dispute as to the test to be applied; nor is there, for example, any suggestion that a state law purports to apply a less rigorous test. 2. To the extent that the applicant's argument would engage s 78B of the Judiciary Act in every case where the court was invited to rule on actual or apprehended bias, or possibly any other aspect of procedural fairness, on the part of a state or federal court, such a construction would extend the concept of "a matter arising under the Constitution" beyond the meaning which a purposive and contextual approach to the section would require. Accordingly, the applicant's submission that s 78B notices were required should be rejected. (c) disqualification of court 1. The first issue, namely whether all judges of the Court are disqualified from considering a matter going to the legality of an exercise of power by the ICAC engages the same issue as that sought to be raised before the primary judge and rejected by him. The determination of this application requires an understanding of the nature of the substantive proceedings brought by the applicant. 2. Although the amended statement of claim, which was the originating document before the primary judge, was not before this Court, the primary judge noted the essence of the claim in his recusal judgment as alleging a "confederacy" involving, amongst other bodies, the Supreme Court, the Attorney General's Department and the ICAC, "with the alleged extended common criminal purpose of, inter alia, covering up and keeping covered up an alleged Supreme Court judge fixing and perversion of justice by the former Premier of New South Wales, Neville Kenneth Wran, and the former bookmaker William Stanley Waterhouse and his bookmaker son, Robert William Waterhouse and his daughter Louise Waterhouse and also necessarily their own institutions and personnels [sic] many and diverse alleged criminal and corrupt acts in doing so." [7] 3. The applicant's allegations extended beyond the completion of the equity proceedings in 1992. He recounted further steps taken as a result of information obtained in 1999, which resulted in the preparation of a lengthy complaint to the ICAC, lodged on 6 October 1999. The manner in which that complaint was dealt with was said to implicate the then Commissioner and the then Premier in a further "cover up". This in turn gave rise to a complaint to the New South Wales Crime Commission in March 2001, asking it to investigate the corrupt conduct of the ICAC. In June 2001, the applicant's mother commenced proceedings by way of judicial review of the ICAC's refusal to investigate the 1999 complaint. It was then alleged that the Chief Justice, "with the connivance of the ICAC", arranged that the application for judicial review would "go nowhere". The application for judicial review was not determined before the death of the applicant's mother in February 2004. 4. In October 2006 the applicant requested the Commissioner of Police to investigate "the ICAC's corrupt cover up of the Wran judge-fixing." They too, it was alleged, became part of a conspiracy to pervert justice and cover up the corruption of the legal system. 5. On their face, most (if not all) of these allegations appear bizarre or fanciful. However, it is no part of this Court's function to form a view as to whether they are plausible, let alone valid. What appears above is merely a brief indication of the nature of the allegations which are (inappropriately) set out over some 19 pages of the draft notice of appeal. Apart from the Court's limited function, no assessment should in any event be made of allegations which, the applicant stated, are supported by 900 hundred pages of particulars set out in a document provided to the ICAC and described as a "brief". That document is not (and need not) be before this Court. Two points should, however, be made with respect to the allegations. First, in many places the applicant used the term "confederacy": given the nature of the allegations, it can mean no less than a "conspiracy" between a number of individuals in many arms of the State government. The nature of the allegations, so identified, is not irrelevant to the question of apprehended bias. 6. Secondly, although the applicant suggested on many occasions in the course of submissions that the allegations of fact contained in his pleading were to be accepted as true for the purposes of the application, that is not so. Indeed, the submission misunderstands the nature of the Court's function. It is no part of the Court's role in the exercise of the supervisory jurisdiction to accept or reject the allegations tendered to the body whose decision is under review for its consideration. 7. The legal test for determining whether there is a reasonable apprehension of bias in respect of an individual judicial officer is not in doubt. At least since the judgment of the High Court in Johnson v Johnson [8] the Court is required to ask whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the proceedings. The general principle is that each judge should assess his or her own position against that test, although the conclusion reached may of course be reviewed by other judges on appeal. Given the generic nature of the present application, it is appropriate (if unusual) that the Court deal with it on an institutional basis, although individual considerations might give rise to separate issues with respect to particular members of the Court. 8. Before engaging in that analysis, it is desirable to refer to two aspects of the reasoning of the primary judge in considering this question. First, he noted that the subject matter of the complaint comprised events which had happened "over twenty years ago and do not concern any present member of the Court." [9] The applicant submitted that that was an unduly constrained view of the allegations: the unwillingness to investigate the allegations, he said, was continuing and represented a continuation to the present time of the alleged "cover up". It should be accepted that the allegations continue up to a time shortly before the complaint was made to the ICAC in 2012, although it involved disparate individuals and not presently serving judges of the Court. 9. Secondly, the primary judge noted that the Chief Executive Officer of the Court had indicated in August 2013 that the Chief Justice did not propose to invite the Executive Council to appoint acting judges from outside New South Wales. Therefore, even had he been persuaded that the Court would be affected generally by a reasonable apprehension of bias, he considered that, as a matter of necessity, some judges on the Court would be required to sit. It is not necessary for present purposes to consider whether this is a case in which the principle of necessity should be invoked. 10. Returning to the application of the test, it is necessary to ask whether a fair-minded observer might consider that every member of the Court might fail to bring an impartial mind to the resolution of the application because of a fear of what an independent investigation of the applicant's complaints might reveal. There are grave difficulties attending any such conclusion. 11. First, the fair-minded observer would understand that most members of the Court (if not all) had no personal involvement with any of the matters the subject of the applicant's complaints to the ICAC. Secondly, he or she would appreciate that the judges of the Court are as rigorous in their insistence on judicial independence as members of the community, if not more so. Thirdly, however the applicant may wish to characterise the scope of his allegations, a reasonable observer would not see them as stigmatising the Court as a whole, but rather as directed against particular individuals; nor would they be seen to undermine the integrity of the work of the Court, as opposed to casting doubt on the integrity of a particular course of decision-making in relation to a particular case. 12. Finally, the issue before the Court is quite remote from any of the possible determinations of any of the outstanding complaints. Thus, as will be explained below, the principal issue in dispute is whether the ICAC, in deciding not to investigate the 2012 complaint, failed to give proper consideration to whether it involved novel allegations and whether the ICAC exercised its discretion unreasonably, according to the relevant legal standard. If the fair-minded observer considered the allegations entirely fanciful, he would not entertain doubts about the ability and willingness of the Court to address them impartially. If the fair-minded observer was concerned that there might be substance in any of the allegations and thought that judges might share that view, it is most unlikely that he or she would entertain a doubt as to the willingness of such judges to deal impartially with an allegation that the ICAC had acted unreasonably or improperly in declining to investigate the allegations. In short, there is no reason to think that the fair-minded observer might entertain doubts as to the ability or willingness of the Court as a whole to deal impartially with the alleged failure of the ICAC to consider whether to investigate the complaints. 13. For these reasons, the applicant's challenge to the members of the Court dealing with this appeal must be rejected, as must his challenge to the finding of the trial judge that he was not disqualified from sitting, on the same generic ground. Attorney's notice of motion 1. The application for leave to appeal was set down before a bench of three judges in order to determine the applicant's motion that a "special" bench should be constituted, not consisting of any judges of the Supreme Court of New South Wales. That motion having been rejected, it is convenient to deal with the Attorney's motion seeking to be removed as a party from the proceedings. 2. The only relief sought against the Attorney was an order that she take the necessary steps to enable the constitution of a special bench, including by commissioning acting justices of appeal. As no such order is to be made, the Attorney is no longer an appropriate party to the proceedings. She should, at her own request, be removed. 3. As the applicant was unsuccessful on his motion, he should pay the costs of the respondents with respect to his motion and of the Attorney with respect to her motion. Application for leave to appeal 1. The decision of the ICAC, sought to be reviewed before the primary judge, was set out in a letter of 16 October 2012, received by the applicant on 11 November 2012. Curiously, neither party sought to include it in the white book prepared for the hearing of the leave application. However, a copy was tendered in the course of oral submissions and is Ex A on the leave application. The applicant also referred to his letter of 17 December 2012 in response, which was tendered and became Ex C. Exhibit B on the leave application was a part of the transcript before the primary judge of 1 April 2014. It is convenient to deal with the issue to which the transcript had some relevance as the first issue. (a) agreement as to procedure 1. For reasons which did not become clear on the leave application, the ICAC filed a motion on 18 July 2013 seeking summary dismissal of the proceedings, or, alternatively, that the amended statement of claim be struck out. Two weeks later, the applicant filed his own motion seeking summary judgment. Matters of procedural reality appear to have dawned on both parties only when the primary judge pointed out that the amended statement of claim alleged a complaint to the ICAC raising matters of serious corrupt conduct and a failure on the part of the ICAC to investigate and hold a public inquiry. [10] As the judge correctly noted, in proceedings under s 69 of the Supreme Court Act 1970 (NSW) for judicial review, it cannot have been intended that the allegations would be proved by evidence in court, but rather that the proposed orders of the court would require the ICAC to carry out the necessary investigation and hold a public inquiry. The parties then proceeded on that basis. 2. The applicant's complaint about what happened thereafter in part reflected a misunderstanding as to the nature of judicial review proceedings. Thus, he claimed that, as on a summary judgment application brought by the defendant in a civil action, the Court should have proceeded on the basis of the truth of the allegations made in the complaint, as set out in the statement of claim. That, however, was the false premise which the judge had correctly rejected. The allegations in the statement of claim were, in simple terms, that a complaint had been made and not properly investigated. There was, perhaps, a reason why the allegations themselves should have been set out in the pleading, but that was not because their truth was in issue, but rather to establish that they differed in some material respect from the allegations in the 1999 complaint. That, as will be noted shortly, was said to be relevant to the assertion that the ICAC wrongly declined to investigate the 2012 complaint. 3. The draft notice of appeal, however, in ground 2 taken with ground 3, set out a different and separate basis of complaint about the breach of the "agreement" as to the way the trial would proceed. The ground is, in substance, that the judge's version of the complaint was deficient in that it failed to recognise that the conduct complained of dealt with events occurring after the complaint lodged in 1999. Thus, ground 2 in the draft notice of appeal set out in expansive form what properly should have been reduced to a series of succinct points of difference, namely the scope of the full complaint and the scope of the summary given by the trial judge. 4. To identify this ground as breach of an agreement (or possibly some kind of procedural unfairness) was a misconception; nevertheless, ground 3(ii) and (iii) were in the following terms: "(ii) His Honour erred in holding that the central foundation event on which the Plaintiff's case was based was about a former politician who had not been in office for 20 years, a judge who was now dead and a case the outcome of which litigation had concluded many years before. His Honour should have found that the Plaintiff's case involved serious and systemic corruption that had continued unabated for decades and which was still current, continuing and expanding. (iii) His Honour was in error when he held the ICAC's letter of 16 October 2012 was a considered logical, rational and reasonable response. He should have held in the light of the agreement and the uncontested and assumed facts contained in the Amended Statement of Claim and in the Plaintiff's letter of response dated the 17th December 2012 that the letter gave prima facie false reasons for declining to investigate." 1. Putting to one side the references to "the agreement" and to "the uncontested and assumed facts", the proposed ground appears to be that the judge failed to address the complaint that the ICAC had declined to investigate the 2012 complaint without realising that it contained allegations concerning conduct subsequent to the conduct which had been the subject of the 1999 complaint, which had not been investigated. If the letter of 16 October 2012, setting out the reasons why the ICAC did not propose to investigate the 2012 complaint could be so characterised, and that fact had not been appreciated by the primary judge, there could be an available ground of appeal. In other words, if there were new material in the 2012 complaint, not only did that need to be considered separately, but the subject of the earlier complaint might also need to be considered according to the light which might be thrown on it by new matters. One question was whether that was so; a second question was whether the ICAC had addressed those matters; a third question was whether the primary judge failed to appreciate that that was the substance of the application for judicial review. 2. This Court is presently in a difficult position with regard to those questions. Almost none of the material needed to evaluate those issues was before the Court, until (in part) it was placed before the Court in the course of the oral argument on the leave application. It will be necessary to return to that concern below. (b) obligation to investigate 1. The matter identified by the primary judge as being the focus of the submissions before him was a proposition that, given the serious nature of the allegations, the ICAC was obliged to carry out an investigation, including a public inquiry. 2. In that form, the submission was untenable. It is clear from ss 10 and 20 of the Independent Commission Against Corruption Act 1988 (NSW) that the ICAC has power to decline to investigate, or to terminate an investigation before completion, in respect of any complaint. That is not to say that a decision not to investigate is beyond review by the Court, but merely that such a decision is available to the ICAC in respect of any particular complaint. It follows that any challenge brought in the supervisory jurisdiction of the Court must be a challenge to the exercise of discretion with respect to a refusal to investigate the complaint. (c) challenge to exercise of discretion 1. Having held, correctly, that the primary focus of the application for review had not been made good, the judge turned to consider whether there was an alternative basis of review which might be made out, namely that there had been an unreasonable refusal to investigate. The judge accepted that the applicant had advanced an alternative argument along those lines. [11] Having set out a number of statements as to the nature of legal unreasonableness, the judge stated: [12] "One way in which the reasonableness of the conduct of the Commission in declining to investigate the 2012 Complaint can be understood, is to look at the letter which sets out the basis upon which the Commission refused to investigate further." 1. The judge stated that he had referred to and summarised parts of that letter: however, he then indicated that the reason given for declining to investigate was that an earlier complaint made in 1999 had been declined and no further material had been included which would warrant the ICAC changing "its mind." [13] The judge concluded: "Such an analysis is not on its face illogical or irrational. Nor is it on its face unreasonable in the legal sense of the word." 1. The judge then proceeded to take into account "other factors" to which the court could have regard in deciding whether the decision to decline to investigate was unreasonable. 2. There are problems with each step in this analysis. The problem with the first step is that the passage from the amended statement of claim identified by the primary judge alleged that the ICAC had, amongst other things, (a) failed to read the complaint; (b) failed to come to terms with the complaint and the gravity of the matter raised, and (c) asserted, wrongly, that there was "no evidence to substantiate any part of it", whereas detailed evidence had been particularised. 3. It is a well-established ground of judicial review, though not readily labelled by reference to conventional grounds, that a decision-maker errs if he or she fails to give proper consideration to the claim or other matter the subject of the decision. Accordingly, to state that it was rational to decline to investigate the complaint, on the basis that there was nothing new in the material provided, did not engage with what appears to have been the principal ground of challenge, namely that this was a fresh complaint including new material. The allegation may be characterised as a constructive failure to exercise the jurisdiction conferred on the ICAC. 4. With respect to the second element in the reasoning of the primary judge, the consideration of factors which might support the reasonableness of the refusal to investigate, but which were not, on the evidence, relied upon by the ICAC, was inappropriate. The fact that the ICAC does not appear to have supported its decision on those grounds means that it formed no opinion as to the merit of the grounds. Whilst such matters might be relevant to a discretionary power to refuse relief, they provided no basis for upholding the discretionary decision of the ICAC. For a court to uphold a decision not relied on by the decision-maker would amount to the court making findings for itself which may or may not have affected the decision, if addressed by the decision-maker. (d) a contingent refusal of relief 1. In considering the appropriate course with respect to the leave application, it is necessary to note what appears to have been a contingent determination that relief should not in any event be granted. Having rejected the grounds of review, the primary judge turned to the question whether the relief sought was "inappropriate". Whether that reasoning was intended to be dispositive in any circumstance was not entirely clear. If the ICAC had been under a mandatory obligation to investigate and had declined to do so, some form of relief would usually be granted. Similarly, if the decision of the ICAC not to investigate was itself flawed, relief requiring it to reconsider would usually be granted. Having noted that he was not persuaded that the decision was unreasonable, the judge continued: [14] "Any order in the nature of mandamus could only reflect the expression of the Court's opinion as to whether it agrees with the decision made, or whether it thinks that was wrong. That is an inadequate basis for the granting of the orders sought." 1. There may have been some error in the expression of this opinion, but the very purpose of mandamus is to require the respondent to perform its function according to law. Where the function has been performed once, it will commonly be the case that the authority can, by applying correct legal principle, reach the same conclusion again: the grant of an order in the nature of mandamus says nothing about the correctness or otherwise of the actual decision. Certainly such a view, if formed by the court, should not usually affect the granting of relief. (e) determination of leave application 1. There were four grounds set out in the draft notice of appeal contained in the application book, with paragraphs within each. Ground 1 was headed "Actual as well as Apprehended Bias and Unconstitutionality". The ground has been addressed: it contained no arguable basis for review of the judgment below. 2. Ground 2, headed "Breach of the Agreement by Garling J between the Court and the Parties as to Conduct of the Trial", has also been considered. In so far as it alleged some element of procedural unfairness, that was, as has been explained, a misconception. Ground 2 does not by itself form an arguable basis for an appeal. 3. Ground 3 was headed "Other Errors of Fact". Paragraph (i), following on from ground 2, asserted a breach of an agreement and cannot be maintained. Paragraphs (ii) and (iii) have been set out above: the manner in which they might present an arguable ground of appeal has been addressed. The difficulty is in knowing whether there is truly an arguable basis of review, which depends on the Court having access to: (a) the amended statement of claim before Garling J; (b) the letter of 16 October 2012 setting out the ICAC's reasons for refusing to investigate the 2012 complaint; (c) the letter from the ICAC setting out reasons for refusing to investigate the 1999 complaint. 1. Ground 4 of the draft notice of appeal was headed "Illegality and other errors of law not otherwise pleaded". This section contained 10 paragraphs setting out specific errors alleged on the part of the primary judge. The explanation of the proper scope of judicial review provides a sufficient basis for refusing to grant leave with respect to paragraphs (i)-(iv), (vi) and (viii)-(x). That leaves for consideration, (v) and (vii). Paragraph (v) was in the following terms: "His Honour erred in holding to the effect that there was an onus on the Plaintiff to prove that the Commission, at the relevant time, had adequate funds to enable it to undertake an investigation of the kind that he submits ought to be required. His Honour should have held that in the light of the fact the Respondent ICAC had not raised it as a defence nor put on any evidence in support and had been able to fund the Obeid inquiries and the Campaign Funds inquiries that such a consideration was irrelevant." 1. For the reasons noted above, this not being a factor relied upon by the ICAC, arguably should not have affected the outcome of the review application. Whether it did or not is uncertain. 2. Paragraph 4(vii) was in the following terms: "His Honour was in error in that he misapplied the rule that mandamus will only be granted against investigative bodies in exceptional circumstances. He should have held that the uncontested alleged facts which included allegation of bad faith and illegal purposes and all the other circumstances of the case were exceptional and obliged the court to grant the compulsory orders sought by the Plaintiff." 1. In its terms, this complaint appears to be directed to the passage in the judgment identified at [40] above. For the reasons given, there was arguably error in the approach of the trial judge in this paragraph, although whether it was a material error is perhaps doubtful. 2. The situation with respect to the proposed grounds of appeal may therefore be summarised as follows: with respect to a matter which may have been an arguable error, the Court is not in a position to make an adequate assessment on the material before it, as argued on the leave application. With respect to the other two passages in the judgment which may have involved arguable error, the Court is not able to determine, without knowing the answer in relation to the first matter, whether the issues raised in the second and third matters were material, even assuming them to be erroneous. 3. In these circumstances, the preferable course is to refer the application for leave to appeal to a bench constituted to hear the matters identified above as possibly arguable, to be considered concurrently with the proposed appeal, but limited to those grounds. 4. Finally, it is necessary to identify the appropriate orders which may be sought. Order 1 sought that the "appeals" be allowed. The judgment from which leave to appeal may be pursued will be the judgment concerning the refusal of judicial review. To that extent, order 1 is appropriate. 5. Order 2 sought a setting aside of the recusal judgment: leave to appeal with respect to that judgment should be refused and order 2 will be irrelevant. Order 3 relates to the judicial review judgment and sought to have it set aside. Again, an order in that form may appropriately be sought. Order 4 commenced with the following language: "A declaration that the decision of the Respondent ICAC in its letter dated 16th October 2012 not to investigate the Plaintiff's Complaint was prima facie made in bad faith and for improper and illegal purposes, was erroneous in law, was a breach of its duties under its Act, was a failure to accord the Plaintiff procedural fairness …." 1. There was no basis in the material before this Court to suggest that the decision was made "in bad faith and for improper and illegal purposes". Those phrases should be removed. If there had been a failure properly to consider the scope and extent of the 2012 complaint, it may have been possible to describe that as an error of law, a breach of duty under the Act or a failure to accord procedural fairness. That language may remain. 2. Order 5 sought mandamus and reconsideration according to law. That order is consequential upon establishing a basis for setting aside the decision to refuse to investigate and may remain. 3. Orders 23 and 24 sought costs and may remain. All other proposed orders should be removed. Orders 1. The Court should make the following orders: (1) Dismiss the applicant's notice of motion filed on 19 August 2014. (2) Order the applicant to pay the costs of the first and second respondents of his motion of 19 August 2014. (3) Order that the Attorney General be removed as a party from the proceeding. (4) Order that the applicant pay the costs of the Attorney with respect to the Attorney's motion for removal. (5) Direct the applicant to file a revised draft notice of appeal limited to grounds 3(ii) and (iii) (first sentence only) and 4(v) and (vii) and proposed orders 1, 3, 4 (subject to deletion of "was prima facie made in bad faith and for improper and illegal purposes" and all the words after "procedural fairness"), 5, 23 and 24. (6) Refer the application for leave to appeal to a court constituted for the purpose of hearing the application concurrently with the appeal, subject to the limitations identified in order (7) below. (7) The grounds upon which leave to appeal may be granted, and if granted the appeal considered, are limited to those identified in order (5). (8) The application for leave to appeal be otherwise dismissed. 1. SACKVILLE AJA: I have had the advantage of reading the judgment of Basten and Emmett JJA. 2. I agree with that judgment except the conclusion that the application for leave to appeal should be referred to the Court in the manner proposed in the judgment. As I am in the minority and as there is urgency in delivering a judgment (due to the impending retirement of one member of the Court), I shall give only brief reasons. 3. The draft notice of appeal is 35 pages long and seeks 24 orders, two of which relate to costs. The claims that are to be referred to the Court as part of the application for leave to appeal are for a reformulated declaration that the first respondent (ICAC) erred in law in declining to investigate the applicant's complaint and relief in the nature of mandamus. 4. An application for leave to appeal should not be granted or, having been heard, referred for a hearing concurrently with the proposed appeal, unless the applicant has made out an arguable case for the relief that is sought. While unrepresented applicants may be accorded some leeway in the presentation of their cases, they are not exempt from the requirement. The applicant in the present case is not unfamiliar with legal proceedings. Indeed, the letter of 17 December 2012, written in response to ICAC's letter of 16 October 2012 declining to investigate a number of allegations made by the applicant, is written on "Waterhouse Solicitors" letterhead. 5. As the joint judgment points out, despite the very large amount of material filed by the applicant, the Court does not have before it documentation necessary to an evaluation of whether the applicant has an arguable case on the various issues he wishes to raise. If there was material before the Court supporting the applicant's claim for declaratory relief and an order in the nature of mandamus on the basis of Ground 4(v) and (vii) of the draft notice of appeal (the grounds to be referred for further consideration), the Court was not taken to it. 6. It may well be arguable that the primary Judge went further than he needed to and that there may be some difficulties with parts of his analysis. In my view, however, that does not show that the applicant has made out an arguable case for the (reformulated) relief that he seeks. 7. In my opinion, the applicant has not presented material which demonstrates an arguable case for granting relief in respect of the ICAC's decision recorded in the letter of 16 October 2012. 8. I would refuse the application for leave to appeal. ********** Endnotes 1. Waterhouse v Independent Commission Against Corruption [2014] NSWSC 424 ("the recusal judgment"). 2. Waterhouse v Independent Commission Against Corruption (No 3) [2015] NSWSC 261 ("Waterhouse (No 3)"). 3. Hagan v Waterhouse (1991) 34 NSWLR 308. 4. (2000) 205 CLR 337; [2000] HCA 63. 5. (1996) 189 CLR 51. 6. Ebner at [84]. 7. Recusal judgment at [24]. 8. (2000) 201 CLR 488; [2000] HCA 48. 9. Recusal judgment at [35]. 10. Tcpt, 01/04/14, p 48. 11. Waterhouse (No 3) at [98]. 12. Waterhouse (No 3) at [104]. 13. Waterhouse (No 3) at [105]. 14. Waterhouse (No 3) at [115]. 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: 30 September 2015