Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sebie v Krejci (No 2) [2023] NSWCA 220 Hearing dates: On the papers Date of orders: 13 September 2023 Decision date: 13 September 2023 Before: Basten AJA Decision: Decline recusal request Catchwords: PRACTICE AND PROCEDURE – application for recusal – claim of prejudgment – no basis for claim presented – request refused Cases Cited: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Category: Procedural rulings Parties: Robert Sebie (First applicant) Ronald Jemmott (Second applicant) Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (First respondent) Representation: Counsel: M L Rose (First respondent) Solicitors: ERA Legal (First respondent) File Number(s): 2023/115895 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division / Common Law Division Citation: [2022] NSWSC 54 (Black J); [2022] NSWSC 1478 (Black J); [2023] NSWSC 162 (Ierace J) Date of Decision: 21-22 October 2022; 15 August 2022; 27 January 2022; 6 January 2023; 28 February 2023 Before: Black J; Ierace J File Number(s): 2021/303982; 2022/32115 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. BASTEN AJA: On 10 August 2023, the Court, constituted by Gleeson JA and me, dismissed an amended summons seeking leave to appeal and an amended notice of motion. 2. A day later, on 11 August 2023, two of the applicants filed a notice of motion seeking, in short, a reopening of the Court's judgment of 10 August and a stay of orders made by Black J in the winding up proceedings. For reasons given in Sebie v Krejci (No 3) that notice of motion has been determined. 3. On 30 August 2023, in support of the motion, one of the applicants, Ronald Jemmott filed submissions which, at par 8, identified the issues to be dealt with in the submissions. The (second) subpar (f) was a "formal request" that I "be recused from dealing with these proceedings, as [in] the applicants' view [I have a predetermined] stance in this matter and history of proceedings". 4. Despite the promise that the matter would be dealt with in the submissions, it was not. That may have been because it was a "formal request". 5. As is well established, the relevant test to be applied on an application for recusal on the basis of prejudgment is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). 6. The only basis for the application revealed in the submission was that the applicants hold some degree of apprehension, though on what grounds is not disclosed. There is no basis to think that a fair-minded lay observer would hold any such apprehension. Unless it is clear that this undemanding test is satisfied, it would be wrong for a judge to recuse himself or herself. In these circumstances, I decline the recusal request. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2023