Makucha v Sydney Water Corporation [2011] NSWCA 234

Makucha v Sydney Water Corporation [2011] NSWCA 234

The application for a stay and the summons for prohibition failed because the relief sought against a Supreme Court judge exercising the Court's jurisdiction was unavailable by judicial review, there was no evidence capable of supporting a reasonable apprehension of bias from the judge's proper refusal to answer questions about personal religious or Masonic affiliations, and discretionary considerations including delay, disruption of the trial and availability of appeal after final judgment would in any event preclude relief.

Jurisdiction
Australia
Judgment Date
08 August 2011
Procedural Posture
Application in the Court of Appeal Seeking Prohibition Against a Supreme Court Trial Judge and a Stay of Equity Division Proceedings / Urgent Application for Stay and Summons for Final Relief; Summons Dismissed Pursuant to Uniform Civil Procedure Rules 2005 (nsw), R 13.4
Outcome
Application for stay dismissed; summons dismissed; applicant ordered to pay Sydney Water Corporation's costs in this Court.
Legal Topics
['relief in the Nature of Prohibition' 'amenability of Supreme Court Judge to Judicial Review' 'reasonable Apprehension of Bias' 'recusal' 'stay of Proceedings' 'dismissal for No Reasonable Cause of Action' 'judicial Oath and Alleged Religious or Masonic Beliefs']
['administrative Law' 'judicial Review' 'procedure' 'judges'] ['relief in the Nature of Prohibition' 'amenability of Supreme Court Judge to Judicial Review' 'reasonable Apprehension of Bias' 'recusal' 'stay of Proceedings' 'dismissal for No Reasonable Cause of Action' 'judicial Oath and Alleged Religious or Masonic Beliefs']

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Procedural Posture

Application in the Court of Appeal Seeking Prohibition Against a Supreme Court Trial Judge and a Stay of Equity Division Proceedings / Urgent Application for Stay and Summons for Final Relief; Summons Dismissed Pursuant to Uniform Civil Procedure Rules 2005 (nsw), R 13.4

Legal Issues

  1. 1 ['Whether the Court of Appeal should stay proceedings pending in the Equity Division before Sackar J.' 'Whether prohibition or replacement of the trial judge was available against a judge of the Supreme Court exercising the jurisdiction of that Court.' "Whether the trial judge's refusal to answer questions about whether he was Jewish or a Mason could support a reasonable apprehension of bias." 'Whether discretionary considerations, including delay and availability of appeal after final judgment, precluded relief.']

Ratio Decidendi

The application for a stay and the summons for prohibition failed because the relief sought against a Supreme Court judge exercising the Court's jurisdiction was unavailable by judicial review, there was no evidence capable of supporting a reasonable apprehension of bias from the judge's proper refusal to answer questions about personal religious or Masonic affiliations, and discretionary considerations including delay, disruption of the trial and availability of appeal after final judgment would in any event preclude relief.

Court Disposition

Application for stay dismissed; summons dismissed; applicant ordered to pay Sydney Water Corporation's costs in this Court.

Orders

  • ['Dismiss the application for a stay of the proceedings presently pending in the Equity Division before his Honour Sackar J, being proceedings between Sydney Water Corporation and Mr Paul Makucha.' 'Pursuant to Uniform Civil Procedure Rule, r 13.4, dismiss the summons filed by Mr Makucha on 5 August 2011.' 'Order Mr...