Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Makucha v Sydney Water Corporation (No 2) [2011] NSWCA 249
• Hearing dates: 22 August 2011
• Decision date: 22 August 2011
• Before: Basten JA

Decision

1. Motion to stay the proceedings in the Equity Division pending determination of the application for leave to appeal refused.

2. Applicant to pay the costs of the motion for a stay.

[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.]

• Catchwords: JUDGES - disqualification - apprehended bias - allegation based on supposed religious beliefs of judge - need for strong case where interlocutory intervention sought - whether proper for judge to rule on own recusal; PROCEDURE - civil - motion to stay trial proceedings pending appeal - apprehended bias - alleged conduct of judge during hearing - prospects of success on leave application - disadvantages of granting and refusing stay
• Cases Cited: Caperton v AT Massey Coal Company Inc 129 S Ct 2252 (2009); Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; Johnson v Johnson [2000] HCA 48; 201 CLR 488; Lee v Cha [2008] NSWCA 13
• Category: Procedural and other rulings
• Parties: Paul Makucha - Applicant; Sydney Water Corporation - First Respondent; Justice Sackar - Second Respondent
• Representation: Counsel: Mr Makucha in person; Mr J W Stevenson SC/Mr A Bouris - First Respondent; Solicitors: Applicant - self-represented; Mallesons Stephen Jaques - First Respondent; I V Knight, Crown Solicitor - Second Respondent
• File Number(s): CA 2010/25631

Judgment

1 HIS HONOUR : The matter comes before the Court today pursuant to a summons seeking leave to appeal from a decision of Justice Sackar sitting in the Equity Division in proceedings between Sydney Water Corporation and Mr Paul Makucha. Mr Makucha's application includes an application for a stay of those proceedings pending determination of the application for leave in this Court.

2 In support of the application, Mr Makucha has tendered, as an annexure to an affidavit, which may or may not have been properly sworn but is not objected to, a transcript of the evidence of the proceedings before Justice Sackar of 18 August 2011, together with a copy of his Honour's judgment of that date. The judgment and the proceedings on that day relate to the opening given by Mr Makucha as a defendant, it being apparent that the plaintiff in the proceedings below, the Corporation, had completed its case.

3 At the commencement of the hearing on that day, his Honour indicated that he was prepared to hear Mr Makucha without interruption. He also indicated, in answer to a question from Mr Makucha, that he, Mr Makucha, had absolute privilege in respect of what was said in the opening address: Tcpt p 1398. The opening address then proceeded over a period of time until senior counsel for the plaintiff took objection to a statement that had been made in relation to a solicitor and the apparent irregularity of a procedure in which the solicitor was involved, Tcpt p 1405-1406.

4 Shortly thereafter, his Honour stopped Mr Makucha in his opening and delivered a short judgment to which I have referred, indicating that he was not going to permit Mr Makucha to open further and requiring him to proceed with his case, which no doubt involved either Mr Makucha himself giving evidence, producing witnesses or tendering documents in support of his defence.

5 The reason, as Mr Makucha has explained this morning, for the application for leave to appeal is at least in part, and perhaps procedurally, the consequence of a ruling which I made on 8 August of this year indicating that the writ of prohibition, or orders to that effect, were not available against a judge of the Supreme Court. There is of course a power for an aggrieved party to seek leave to appeal against a judgment of a judge of the Court and that includes an interlocutory judgment.

6 It is established by authority in the High Court as well as in this Court that a refusal to recuse oneself is not a decision which attracts the appellate jurisdiction of the Court. However, as indicated by Hodgson JA in Lee v Cha [2008] NSWCA 13 at [2]-[3], it is usually possible for an applicant who seeks to challenge a refusal to recuse to identify an interlocutory order from which leave to appeal may be sought.

7 The documents in this case are by no means clear as to their purpose and scope. However, I am prepared to assume for present purposes first, that there is an adequate interlocutory judgment and order or direction given by Sackar J on 18 August that Mr Makucha not proceed further with his opening and, again, although the summons is unclear on this point, I would be prepared to assume in the way that Mr Makucha has argued the case this morning that he wishes to challenge that decision on the basis of a reasonable apprehension of bias.

8 The principle which he seeks to apply has not been the subject of discussion in court today, but it is that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); see also Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [13]; Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [112], discussed and applied by this Court in Lee v Cha [2008] NSWCA 13 at [39]-[44].

9 Mr Makucha's complaint, in effect, is that there is something inappropriate in the judge who is sought to be recused being required himself or herself to determine the recusal application. That, Mr Makucha suggests, is a failure to accord due process because the judge is not likely to be an impartial assessor of his or her own capacity to bring an impartial mind to the proceedings. He has referred me to discussion in the US Supreme Court decision of Caperton v AT Massey Coal Company Inc 129 S Ct 2252 (2009) in which a judge's failure to recuse himself was overruled.

10 It is the case that, both in the United States, as I understand it, and certainly in this country, recusal decisions are made by judges themselves. Those decisions can ultimately be challenged on appeal in the normal way, by a challenge to the final order, if in fact it is adverse to the party who sought to have the judge recuse himself or herself. It is also possible, in circumstances where proceedings have got to a stage where it might be thought that the test for recusal is satisfied but the judge declines to take that step, to bring an interlocutory appeal. However, as this Court stated in Lee v Cha , this Court should not intervene unless it is clearly established that the point has been reached where the fair-minded observer might think that the trial judge might not adopt such an approach regardless of what transpired during the remainder of the trial: [2008] NSWCA 13 at [91]. It would be necessary for this Court, on the leave application, to be satisfied that there were reasonable prospects of success in that regard in order for leave to be granted to bring an interlocutory appeal.

11 The difficulty with that course in the present case is obvious and both parties have adverted to it in the course of submissions this morning. The proceedings in the Equity Division have already continued for some nineteen or twenty days; this may be the twentieth day. It is expected that the proceedings will be completed within a further five days. There is therefore a significant disadvantage to intervening in the proceedings at this stage. Not to do so would not in any way preclude Mr Makucha raising the issue which he seeks to raise once an order has been made, if it is adverse to his interests. On the other hand, to intervene at this stage in circumstances where it may be that the result would not ultimately be challenged, is to ensure that at least nineteen or twenty days, and possibly as much as eighty per cent of the hearing, has proved futile.

12 Mr Makucha states that he should not be prejudiced by that factor being taken into account against him on the present application, because he had sought to raise the question of apprehension of bias at an early stage in the proceedings before the primary judge. Although it is not clear from the material before me as to how and in what circumstances that happened, I accept his assurances that it was raised on a number of occasions and I am certainly aware from the matter which was before me on 8 August as to the circumstances in which it was raised on at least one occasion in clear terms at an early stage of the proceedings. That being so, it is nevertheless true that the application to stay the proceedings so that it can be dealt with on appeal does come at a late stage in the hearing of the matter below. That might well be a factor which would affect the assessment of the matter by a bench considering the application for leave to appeal in a manner which would work detrimentally against the grant of such leave. It is also a matter which must be taken into account in my assessment of whether it is appropriate to grant a stay.

13 There is a sense in which the grant of a stay to allow an application for leave to appeal against an interlocutory judgment to proceed is in practice similar to an application for prohibition. The ultimate result may not be the same but the purpose, to stop the trial, at least temporarily, would be achieved. On the other hand, the question is to be assessed as it stands at the present. If a stay were granted today, the trial would have to be adjourned, but if leave were refused, the trial would then be able to proceed. I take that factor into account.

14 In the circumstances, I am not willing to grant a stay. I understand the concern that Mr Makucha has about the process by which the judge is asked to determine his own recusal. I also understand the circumstances upon which that matter is sought to be raised and indeed has been raised. I accept, although I do not know the detail, that the case is about intellectual property and that it is the combination of that circumstance and matters understood to have been put to the trial judge in respect of the religious beliefs of some people in relation to intellectual property that is the cause of the concern. Nevertheless, having read all the material which has been put before me today and bearing in mind the material of which I was aware on 8 August, I think the prospects of success on the leave application are not strong. It therefore is not a case in which this Court would be likely to intervene because, as I indicated before, for that step to be taken it must be clearly established at an interlocutory stage that intervention is appropriate.

15 Further, given the facts in relation to the balance of convenience, it is reasonably clear that the balance favours the matter proceeding to a final determination rather than its interruption at this stage to allow an application for leave to proceed, which may or may not be successful. Nevertheless, the application for leave to appeal will of course remain before this Court and it will be dealt with in due course, if events have not otherwise overtaken it.

16 It should be understood that the reasons I have expressed are based entirely on the material available to me today and are not intended to indicate any support for, or disparagement of, the likelihood of ultimate success in respect of the application for leave to appeal; nor do I intend to comment upon the substantive issues arising from the matters which have been raised.

17 In the course of the judgment I have referred to an "apparent irregularity" in relation to a particular document. I did so meaning that the claimed irregularity or alleged irregularity was that which was apparent to me from the course of the transcript at the relevant page, to which I had been taken. It follows that I did not intend to express any view as to whether or not there was such an irregularity. Indeed, I could not do so: I have neither seen the document nor heard any of the evidence.

18 The Court will make the following orders.

1. Motion to stay the proceedings in the Equity Division pending determination of the application for leave to appeal refused.

2. Applicant to pay the costs of the motion for a stay.

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Decision last updated: 24 August 2011