Makucha v Sydney Water Corporation (No 2) [2011] NSWCA 249

Basten JA

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.

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].

10. … [on the issue of pursuing an interlocutory appeal against a refusal to recuse] 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.

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