Makucha v Sydney Water Corporation

The applicant, Mr Paul Makucha, sought judicial review by way of prohibition against a judge of the Supreme Court of New South Wales, Sackar J, and the respondent, Sydney Water Corporation. The dispute concerned allegations of bias on the part of Sackar J, which Mr Makucha contended rendered him unable to impartially hear proceedings between himself and Sydney Water Corporation.

The primary legal issue before the Court of Appeal was whether a judge of the Supreme Court was amenable to judicial review in the nature of prohibition, and if so, whether the grounds advanced by Mr Makucha established a reasonable apprehension of bias. The Court also considered whether, in the circumstances, relief by way of prohibition was appropriate, or if an appeal was the proper avenue for challenging the judge's conduct.

Basten JA reasoned that while a judge of the Supreme Court is not ordinarily amenable to prohibition, such relief might be available in exceptional circumstances where a judge acts outside their jurisdiction or in a manner that fundamentally undermines the administration of justice. However, his Honour found that the allegations made by Mr Makucha, including a claim that the judge held beliefs inconsistent with his oath of office and a failure to answer questions from a litigant, did not meet this high threshold. The Court determined that the proper recourse for Mr Makucha was to pursue an appeal against any adverse decisions made by Sackar J, rather than seeking to prohibit him from continuing to hear the matter.

Consequently, the Court of Appeal dismissed Mr Makucha's application for a stay of proceedings before Sackar J and dismissed his summons seeking final relief. Mr Makucha was ordered to pay the costs of Sydney Water Corporation in the Court of Appeal.