Barakat v Goritsas

In *Barakat v Goritsas*, the applicant sought leave to appeal and a stay of proceedings in the Common Law Division of the Supreme Court of New South Wales pending the determination of that appeal. The underlying dispute concerned an application to disqualify a judge for apprehended bias, which had been refused.

The primary legal issue before the Court of Appeal was whether the applicant, having been refused an order for recusal, needed to identify a specific interlocutory order to establish a basis for a stay pending appeal. The court also considered the power of a judge of appeal to grant a stay under section 46(2) of the *Supreme Court Act 1970* (NSW).

Basten JA, applying principles discussed in *Michael Williams & Partners v Nicholls*, determined that the applicant was required to show a reasonably arguable case for leave to appeal to succeed in obtaining a stay. His Honour noted that the power to grant a stay was not confined to situations where an interlocutory order had been made, but rather extended to situations where the appeal itself had sufficient merit.

The Court of Appeal ordered that the application for leave to appeal and the appeal be heard concurrently, and granted a stay of proceedings in the Common Law Division pending the determination of the appeal. This stay was conditional on the appeal retaining its utility. The parties were also directed to approach the Registrar to fix an expedited hearing.