RAJSKI vy SCITEC COMMUNICATIONS SYSTEMS LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and PRIESTLEY JJA 6 April 1988 [1988] NSWCA 125 JUDGES bias reasonable apprehension of — apprehension of predetermination of issues in summons for leave to appeal from interlocutory orders — Livesey v New South Wales Bar Association (1983) 151 CLR 288, 300 referred to by Kirby P — withdrawal of one Judge — whether other Judge who participated in earlier proceedings on almost identical issues should withdraw — held (per Kirby P) In the very special circumstances of the case and near identity of the issues raised in each, necessity not requiring that he should sit, he would withdraw; (per Mahoney JA) For reasons particular to this case he determined not to sit. ORDERS 1. Summons referred to Registrar to relist it before a Court to be constituted in due course. 2. The costs of all parties of the proceedings this day to be costs in the summons, including the costs of persons who appeared in answer to a subpoena. Kirby P When the Court assembled this morning one of the claimants, Dr Leszek Rajski, objected to the participation in the Court of Mahoney JA. As developed in argument, the basis for the objection was, relevantly, that his Honour, having participated in the judgment of the court in Rajski & Ors v Scitec Corporation Pty Limited 16 June 1986, Court of Appeal, unreported [1986] NSWJB 115, where issues were raised and determined by the Court which are almost identical to the issues which would be raised by the present summons, a reasonable observer might apprehend that his Honour had prejudged the question now for determination. I pointed out to Dr Rajski that I too had participated in the judgment of June 1986 to which he referred. Although I reached a conclusion in that case different to Mahoney JA, if the objection to his Honour were valid it would apply equally to myself. Mahoney JA has now indicated to me that he does not intend to sit further in this summons. Necessity does not require that I should sit to constitute the Court. In the very special circumstances of the two summonses, the apparent near identity of the issues raised in each and the withdrawal of Mahoney JA, I have formed the view that I too should not sit further in the present case. Cf Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300. ORDER Accordingly, the summons cannot proceed before the Court as presently constituted. No other Judges of Appeal are available today or tomorrow to hear it. I would therefore propose that the summons be referred to the Registrar to re-list it before the Court, differently constituted, in due course. The costs of all parties of today's proceedings, including the costs of persons who appeared in answer to subpoenas, should be costs in the summons. Mahoney JA For reasons particular to this case, I have determined not to sit.I agree with the orders proposed. 2 UNREPORTED JUDGMENTS KIRBY P: The orders which I have indicated are the orders of the Court.