Makucha v Sydney Water Corporation

Mr J W Stevenson SC/Mr A Bouris - First Respondent Ms E Bayley - Second Respondent Solicitors:

Mallesons Stephen Jaques - First Respondent I V Knight, Crown Solicitor - Second Respondent File Number(s): CA 2010/25631

Judgment 1BASTEN JA : Mr Makucha (the applicant) is currently engaged in proceedings in the Equity Division brought by Sydney Water Corporation. On the first day of the trial, Mr Makucha invited the trial judge, Sackar J, to state whether he was Jewish or a member of a Masonic lodge. Quite properly, his Honour declined to do so. 2The trial apparently continued for some two weeks from 7 March 2011 and thereafter, apparently sporadically, over the ensuing months. On 5 August 2011, almost five months to the day after the original application, the applicant issued proceedings in this Court seeking prohibition against the trial judge and his replacement by a judge who was not Jewish and who had not undertaken to abide by Masonic oaths and obligations inconsistent with his or her role as an officer of the Supreme Court. On the same day, Mr Makucha filed a notice of motion seeking a "stay" of the proceedings before the trial judge, pending the hearing of his summons. 3Although the proceedings were only commenced last Friday, the matter has come before the Court as a matter of urgency, because the trial was due to resume this morning before Sackar J. On one view, the motion requires consideration of the circumstances in which this Court would have power to grant a stay of proceedings in the Equity Division, absent any appellate proceedings in this Court. Such an application would invite a consideration of the operation and interplay of sub-ss 61(1) and (4) of the Supreme Court Act 1970 (NSW) and s 67 of the Civil Procedure Act 2005 (NSW), matters which were not discussed in the course of the hearing in this Court. In theory, a similar question could arise in respect of a summons seeking to invoke the supervisory jurisdiction of this Court. However, at least in the present circumstances, that is not so. It is sufficient for present purposes to refuse the stay on the basis that the relief sought in the summons is unavailable. In the result, it is appropriate to dismiss the summons as not disclosing any reasonable cause of action or basis for relief, pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1). There are three reasons why that relief is appropriate, if not inevitable. 4First, the Supreme Court, and each of its judges exercising the jurisdiction of the Court, is immune from judicial review: see Aronson, Dyer and Groves, Judicial Review of Administrative Action (4 th ed, 2009) [2.60]-[2.65], [12.60]; Barton v Walker (1979) 2 NSWLR 740 at 755. There is authority for the proposition that the immunity flows from the Court being "the superior court of record in New South Wales": Supreme Court Act , s 22. Further, it has plenary jurisdiction to administer justice in New South Wales: s 23. That principle may not extend to the exercise of federal jurisdiction, arising under the Constitution, but there is no suggestion of federal jurisdiction being exercised in the present proceedings. Nor is there said to be any constitutional limitation on the power of the trial judge. 5Secondly, no relief could issue would, even if the proceedings were being conducted in a court amenable to the supervisory jurisdiction, because no factual basis has been shown to support a grant of relief in the nature of prohibition. Even were it sufficient for the applicant to make out a reasonably arguable case, that has not been done. 6In substance, the applicant's claim depends upon at least a reasonable apprehension of bias on the part of the primary judge. (For a recent restatement of the relevant principles applicable to such a claim for relief, see British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 85 ALJR 348.) The concern articulated by the applicant as to a judge who was Jewish (or perhaps an observant Jew, reliance being placed upon statements in the Torah said to be inconsistent with acceptance of intellectual property rights) or a Mason (on the basis that such a person would not disbelieve the word of another Mason) rested on a perceived inability of such a judge to adhere to the obligations of the judicial oath and decide the proceedings impartially (without fear, favour or affection) and according to law. 7The applicant sought to tender material supportive of the assumptions underlying these claims. That material was rejected as irrelevant in the circumstances of the case. The reason for rejecting such material was that the underlying premise was not made good, there being no shred of evidence to suggest that the trial judge adhered to any such tenets, whether religious, social or moral. The only factual basis proposed by the applicant was his Honour's refusal to answer Mr Makucha's questions as to whether he was Jewish or a Mason. 8Circumstances arise from time to time when a judicial officer is aware of circumstances which may cause him or her to doubt whether it is appropriate to hear a particular case. If confident that it is inappropriate, the judge may recuse himself or herself, though, if the matter has already been listed, that would usually involve an explanation to the parties. In other circumstances a judge may inquire as to whether a party (or more than one party) has objection to him or her sitting in particular circumstances which are disclosed to the parties. There may also be occasions on which a party seeks to remind a judicial officer of some aspect of the case, or the officer's past associations, for example, which may give rise to a difficulty. Sometimes a party will accept an indication from the judge that there is no difficulty; in other cases there will be an application to recuse. Whenever a party takes objection to a judge sitting, it is for that judge to determine whether he or she should continue to sit or should accept recusal as the appropriate course. 9There is, however, no basis in principle or judicial practice which warrants a party questioning a judge as to his or her circumstances or beliefs. Should that occur, the proper course, and indeed the only proper course to be taken, is that adopted by the trial judge in the present case, which was to refuse to answer such questions. That being so, the refusal to answer such questions cannot give rise to a reasonable apprehension of bias. For that further reason, the application must fail. 10Thirdly, there are discretionary reasons which would preclude relief in the present case, were the other objections put to one side. The first consideration is the contestable nature of the application. Except in a clear case, the undesirability of discontinuity, disruption and delay will usually outweigh the harm to be done by allowing a matter to proceed to a conclusion, at which point issues of bias may be raised as grounds of appeal: see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at [5] (Hodgson JA) and [35]-[36] in my judgment, Bell JA agreeing. 11A second factor is that the applicant has already delayed in seeking relief. He suggested that the five month delay in coming to this Court was caused by lack of resources within which to assess the appropriateness of such a course. While due allowance should be made for such practical considerations in the case of a litigant in person, that must be weighed against the objective circumstances. Importantly, these include the availability of an appellate procedure in respect of a final judgment at trial. 12Despite these considerations, Mr Makucha contended that there is a serious issue to be tried as to whether it is appropriate for a person who has taken a Masonic oath to act as a judge of this Court, at least if it can be shown that such an oath is contrary to or inconsistent with the judicial oath of office. To allow such a proposition, plausible on its face, to stand without comment or response is to invite, at least in Mr Makucha, a degree of disillusionment. 13One answer to this proposition (and there are many) is that fitness for judicial office (which is what, at its heart, the proposition puts in issue) is rarely if ever a matter to be tried in the Court. Indeed, it is precisely because such issues do not arise for determination by the courts, that Parliament established a mechanism for dealing with complaints seeking to raise a concern about the ability or behaviour of a judicial officer: Judicial Officers Act 1986 (NSW), s 15. To make that point is not to suggest that such a complaint would have any substance in the present case; it is merely to say that seeking to raise the matter in the course of a trial involves a fundamental misconception as to the role of a trial judge. The proceedings in this Court continue that misconception in respect of the role of the appellate jurisdiction.