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 [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: 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. 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] 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. ********** Endnotes 1. Waterhouse v Independent Commission Against Corruption (No 2) [2016] NSWCA 133. 2. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13]. 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: 15 June 2016