Industrial Relations Commission New South Wales Medium Neutral Citation: Chevalley v Inspector Morrison [2012] NSWIRComm 18 Hearing dates: 8 March 2012 Decision date: 23 March 2012 Jurisdiction: Industrial Court of NSW Before: Walton J, Vice-President; Kavanagh J; Staff J Decision: 1.The Notice of Motion is dismissed. 2.Costs to be costs in the cause. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - interlocutory proceedings - application for declaratory relief - declarations sought from refusal of trial judge on recuse application - principles applicable to grant of declaratory relief - developments in law re leave to appeal and appeal on recusal - no power before Industrial Court of NSW to seek leave and leave to appeal from interlocutory decision - effect of s 154 of Industrial Relations Act 1996 - whether right sought to be protected justiciable - rule in Barton v Walker - whether subject matter of declaration amenable to declaratory relief - consideration as to particular circumstances - no orders sought - discretionary matters - trial part heard - applicable principles re interference in criminal trial - grant of declaratory relief refused - costs in the cause. Legislation Cited: Criminal Appeal Act 1912 Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; [1969] 1 All ER 208; [1969] 2 WLR 163 Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1 Barakat v Goritsas [2012] NSWCA 8 Barakat v Goritsas (No 2) [2012] NSWCA 36 Barton v Walker [1979] 2 NSWLR 740 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 Brooks v The Upjohn Company, (1998) 85 FCR 469; (1998) 156 ALR 622 Chevalley v Inspector Morrison [2012] NSWIRComm 10 Country Energy v Malone [2005] NSWIRComm 78 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 282 ALR 685 Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107; (2004) 137 IR 8 Nicholls v Michael Wilson & Partners [2010] NSWCA 222; (2010) 243 FLR 177 Rajski v Wood (1989) 18 NSWLR 512 Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179 Sankey v Whitlam (1978) 142 CLR 1 The Queen against Watson; Ex parte Armstrong (1976-1977) 136 CLR 248 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1993) 113 ALR 257 Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429 Category: Interlocutory applications Parties: Grahame Anthony Chevalley (First applicant) Hilton Ross Grugeon (Second applicant) Inspector Rodney Morrison (Respondent) Representation: Mr A R Moses SC with Mr D Mahendra of counsel (Applicants) Mr R J Burbidge QC with Mr I Taylor of counsel (Respondent) McDonald Johnson Lawyers (Applicants) Crown Solicitor's Office (Respondent) File Number(s): IRC 362 of 2012 Judgment 1The applicants are defendants, as Directors (one Managing Director, the other Chairman of the Board) of a corporation known as Hunter Quarries Ltd, in a prosecution against them brought by the WorkCover Authority of New South Wales under s 8(1) by virtue of s 26 of the Occupational Health and Safety Act 2000 (Matter Nos IRC956 and 957 of 2007). They, by Notice of Motion, bring an application for declaratory relief pursuant to s 154 of the Industrial Relations Act 1996 ("the Act"). The application for declaratory relief is in the following terms: 1.A declaration that her Honour Justice Backman erred in determining that she should not recuse herself or otherwise be disqualified from hearing and determining the pending charges against the Defendant as laid in these proceedings under s.8(1) by virtue of s.26 of the (now repealed) Occupational Health & Safety Act 2000 (NSW). 2.A declaration that her Honour Justice Backman was required by law to recuse herself or otherwise be disqualified from hearing and determining the pending charges against the Defendant as laid in these proceedings under s.8(1) by virtue of s.26 of the (now repealed) Occupational Health & Safety Act 2000 (NSW) ("the Proceedings"). 3.An order that her Honour Justice Backman not hear or determine the Proceedings. 4.An order that the Hearing dates in the Proceedings commencing on 5 March 2012 be vacated. 5.An order that the Proceedings be stayed pending the determination of this Application. 6.An order that the Prosecutor pay the Defendant's costs of and incidental to this Application. 7.Such further or other orders the Court deems fit. 2At the hearing, the applicants did not press for Orders 3, 4, and 5 or any other orders other than Costs (6). However, the applicants expressly eschewed any notion that this Full Bench should, in determining the issues raised in the proceedings before it, decide whether there were reasonably arguable grounds for the refusal within the reasons for judgment given by Backman J. 3The Full Court, therefore, was asked to initially consider whether, in the circumstance, declaratory relief was available to the applicants. The question is best approached by considering whether the application amounts to a justiciable application (see Barton v Walker [1979] 2 NSWLR 740 per Samuels JA (at 747E-F); Barakat v Goritsas [2012] NSWCA 8 (stay application at [22] to [23]); Sankey v Whitlam (1978) 142 CLR 1 (at 278) and Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 282 ALR 685). 4The initial issues on the application were, therefore, identified as: 1.Is the subject matter of the rights sought to be protected by the declaration justiciable and/or amenable to orders for declaratory relief? and 2.If the answer is "yes" should the Court make the declarations sought. Background 5The applicants are Directors of a company known as Hunter Quarries Pty Limited. Proceedings against them initially were commenced on 5 June 2007 by way of Applications for Order being filed against the three directors, Messrs Badior, Grugeon and Chevalley and against the company, Hunter Quarries Pty Ltd. 6On 7 October 2008, the proceedings were commenced against all four defendants and continued on 8 October 2008. 7On 9 October 2008, both Hunter Quarries and Mr Badior entered pleas of guilty to an amended form of the charges that had been brought against them. Messrs Grugeon and Chevalley's applications were adjourned until 20 October 2008 for a defended hearing of the claimed s 26 defences, on the basis of the proposed amended Applications for Order. 8On 14 October 2008, at a directions hearing, the applicants (Messrs Grugeon and Chevalley) requested the sentencing hearing in the Mr Badior and Hunter Quarries matters be heard first so that the factual matters to which the company had entered a plea could be finalised before the s 26 defence was heard. 9On 16 October 2008, at a directions hearing, counsel for the applicants (Messrs Grugeon and Chevalley), stated they would be bound by the findings of fact made in the sentencing hearing. The on-going hearing dates were vacated and stood over to 9 February 2009. 10From 20 October 2008 to 23 March 2009, the sentencing hearing (being 11 days of hearing and written submissions filed 3 March 2009 and 6 April 2009) took place in respect of the corporate defendant and Mr Badior. 11On 15 April 2009, at a directions hearing, counsel for the applicants confirmed: we indicated to the Court we would be bound . . . by any factual findings that the Court made involving the company. 12On 9 October 2009, the Judgment on Sentence was delivered by Backman J (Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179) ("the Sentencing Judgment"). At the sentencing hearing against both Hunter Quarries and Mr Badior, the parties to those proceedings tendered some admissions in a Statement of Agreed Facts. The Court, however, was required to determine a number of disputed facts. In the Sentencing Judgment, the Court found against Hunter Quarries and Mr Badior in respect of those disputed facts. 13Throughout 2010 questions of law were referred to the Full Court of the Industrial Court of NSW then, on review, to the NSW Court of Appeal. Ultimately, leave was then sought to the High Court. Each application by the applicants to superior courts was refused. 14On 24 June 2011, further trial dates in the defended proceedings were set down. The Court allowed for a three week hearing from 27 February to 15 March 2012. 15On 9 December 2011, solicitors for the applicants wrote to the respondent raising various issues questioning the capacity of the defended application to resume on 27 February 2012, inter alia, stating the applicants no longer considered themselves bound by the findings of fact made in the Sentencing Judgment. 16On 12 December 2011, the applicants made an application to vacate the hearing dates. It was rejected. 17On 16 December 2011, the applicants made a further application to vacate the hearing dates. It was rejected. 18On 6 February 2012, Backman J ruled the applicants did not require leave to withdraw from the agreement and were not bound by the findings of fact made in the Sentencing Judgment. 19On 8 February 2012, the applicants filed a Notice of Motion seeking orders that her Honour Backman J recuse herself from hearing their proceedings numbered IRC956 of 2007 and IRC957 of 2007, given they each held a reasonable apprehension of bias arising from her Honour's findings of fact, in the related matters, in the Sentencing Judgment of 9 October 2009. They also made a further application for her Honour to vacate the hearing dates. 20On 17 February 2012, her Honour heard the Notice of Motion both to vacate the hearing dates and to recuse herself. 21On 23 February 2012, this application for declaratory relief, (then accompanied by an application for a Stay from the recuse decision) was filed. 22On 29 February 2012, her Honour dismissed the Notice of Motion for recusal filed on 8 February 2012 by the applicants and published the reasons for her decision not to recuse herself and her refusal to vacate the hearing dates. Proceedings 23The Full Court heard only submissions from the parties on the jurisdiction of the Court to order declaratory relief in the circumstance and some further submissions addressed the Full Court's use of its discretion in any grant of the declaratory relief sought. After the submissions, given the matters were listed for hearing, the Full Court issued the following Statement: This matter has a number of troubling features, not the least of which are the consequences of the decision in Joy and now the closure, to the extent available in the law, of any stated case. Nonetheless and with some reservations, we do not consider that we may issue a declaration in this matter. We have decided to take the step of issuing that opinion in advance of reasons and orders, given the course of the trial and the various processes which have come before Full Benches of this Court. We shall give reasons and make appropriate orders as soon as we are able to do so. 24These are our Reasons and Orders following that Statement. Appeal powers in interlocutory matters 25The Industrial Court of New South Wales, while a superior court of record, is a Court of limited jurisdiction under statute (the Act). The application for declaratory relief from her Honour's refusal to recuse herself from hearing the matters is to be considered in context. 26Firstly, in a judgment of the Full Court in Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107; (2004) 137 IR 8 it was held there is no statutory power under the Act which allows for a right of appeal (whether by leave or otherwise), from an interlocatory decision, in a criminal matter. The Court held an appeal under s 5F of Criminal Appeal Act 1912 (and s 196 of the Act) does not lie to the Full Bench of the Commission in Court Session from an interlocutory judgment made in its summary jurisdiction (see [68]). 27That decision has not been challenged. Nor did either party make an application for its re-consideration in this matter. No party sought to appeal the recusal judgment of Backman J. 28Secondly, the matters continued to be listed for hearing before Backman J whilst a Stay, brought by the applicants in this application for declaratory relief, was considered and refused by Boland J on 28 February 2012 (Chevalley v Inspector Morrison [2012] NSWIRComm 10). 29The power of the Industrial Court of New South Wales to make binding declarations of right resides in s 154 of the Industrial Relations Act 1996 which relevantly provides: 154Declaratory jurisdiction (1)The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2)Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 30In Country Energy v Malone [2005] NSWIRComm 78, the Full Court considered the power granted under s 154 at [57]: . . . we consider that the intention of the legislation in enacting the provision was to grant power to provide declaratory relief in areas where the subject matter of the issue or the controversy between the parties relates to an area of the Commission's jurisdiction. Although the Full Bench may not have power to uphold the appeal (Morrison v Joy Manufacturing) in these proceedings, nevertheless the question whether the Court Session has power, in a particular case, to decide whether a particular proceeding has been properly commenced is a matter within the Court Session's jurisdiction and there is thus power to grant declaratory relief to resolve the present controversy between the appellant and the respondent. 31The Full Court acknowledged at [58] there was a: . . . hiatus in the jurisdiction of the Court in its power to deal with appeals from interlocutory decisions. given the decision in Joy Manufacturing. The Court also held that where there was clear jurisdictional error in the impugned decision before the Full Court, declaratory relief could and should be granted. Therefore, while there is no statutory authority to allow the Industrial Court of NSW to entertain an appeal from an interlocutory decision, declaratory relief could be available under s 154, at least, in a case where the Court declares the issue is within jurisdiction. However, the question which arises in these proceedings is whether the subject matter of the right sought to be protected by the issuing of a declaration is a matter which is justiciable: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1993) 113 ALR 257 (at 278 per Hill J), referring to the judgment of Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 (see at 24); and, in any event, whether the right sought to be protected was amenable to declaratory relief. 32Section 154 requires a binding declaration of rights between the parties. The "right" identified by the applicants was: . . . the right to be presumed innocent of the charge brought against them and the right to a fair trial. It was contended such rights must be protected by the Industrial Court of New South Wales in the public interest. 33The fair trial sought by the applicants was one conducted by a trial judge against whom there was no proper apprehension of bias. Hence, it followed, on this contention, a declaration was required to ensure a trial unaccompanied by such an apprehension of bias. The declaration would, it was contended, achieve this end by, without any other orders of an interlocutory kind being made (for example, orders directed to the vacation of proceedings), causing the trial judge to recuse herself. 34As the issues were joined before us, the aforementioned questions would require a consideration of two matters. The first concerned whether the decision by Backman J to decline to recuse herself was a matter which, in and of itself, was justiciable in proceedings for declaratory relief. This required a consideration of the rule in Barton v Walker and its application or modification in subsequent authorities (usually in the context of appeals). The second concerned the broader question as to whether a right to a fair trial, as described by the applicants, was a matter amenable to declaratory relief. 35A consideration of the first matter or question must commence by an examination as to whether the "rule" as stated in Barton v Walker regarding appeals from recusal decisions remains a binding authority. 36That consideration should be commenced by reference to two passages from the judgment of Samuels JA (with whom Reynolds JA and Glass JA agreed) in Barton v Walker. The first (at 750) is in the following terms: These considerations, in my view, clearly show that a motion to disqualify a judge of the Supreme Court is not cognizable. The present informal practice is sensible and adequate; the absence of complaint by the profession or by law reformers tends to show that it has not been abused. . . . The second extract, and one said by the respondent to remain binding authority was (at 751): What emerges from these authorities is that, even where an interlocutory procedure has been established for disqualification on the ground of actual bias, the public interest in the expeditious administration of justice is seen to militate against interlocutory appeals (or their equivalent) where all questions at issue may be determined upon an appeal after final judgment. 37It is then necessary to endeavour to trace a line of authority discussing recusal appeals in the light of that decision. 38The question as to whether a decision concerning a recusal could be appealed was considered in The Queen against Watson; Ex parte Armstrong (1976-1977) 136 CLR 248, the High Court (Barwick CJ, Gibbs, Stephen, Mason and Jacobs JJ) stating (at 262): in the Supreme Courts of some of the States, it has been accepted that prohibition will lie to a tribunal which in all the circumstances may be reasonably suspected of bias: Ex parte Qantas Airways Ltd.; Re Horsington [1969] 1 N.S.W.R. 788, at pp. 790-791Reg. v. Peacock; Ex parte Whelan; [1971] Qd. R. 471. Ewert v. Lonie. [1972] V.R. 308, at p. 313. and further (at 263): The fact that prerogative writs did not lie to a superior court did not mean that the rule that a judge who might reasonably be suspected of bias should not hear the cause was not applicable to superior courts; it meant only that a particular remedy was not available to redress a departure from the rules of natural justice if it occurred in a superior court. It would be absurd to suggest that the administration of justice should be less pure in a superior than in an inferior court, or that the confidence upon which justice rests is less necessary in the case of the former than in the latter. The rule that a judge may not sit in a cause in which he has an interest has been applied to the most eminent of judicial officers: Dimes v. Proprietors of the Grand Junction Canal (1852) 3 H.L.C. 759 [10 E.R. 301]. In the same way, the rule that a judge may not sit to hear a case if it might reasonably be considered that he could not bring a fair and unprejudiced mind to the decision applies to every court in Australia, subject only to the exceptions (statutory authority, necessity and waiver), mentioned by Isaacs J. in Dickason v. Edwards (1910) 10 C.L.R., at pp. 259-260 none of which has any application to the present case. 39In Rajski v Wood (1989) 18 NSWLR 512, the NSW Court of Appeal confirmed that no declaration may be sought from another judge of the Supreme Court or the Court of Appeal from a decision by a Supreme Court judge to decline to disqualify for apprehended bias, but that matter may be raised as a ground in any appeal which may otherwise be brought in the proceedings (per Kirby P at 518; Priestley JA at 522 and Hope AJA at 572). (See also Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429 at [96]). 40Reliance was placed by the applicants on the judgment in Michael Wilson & Partners where the High Court allowed an appeal from an order of a Supreme Court judge refusing to recuse himself. That judgment bears upon the present issue. The relevant passages are at [79] to [83]. [79]In most cases, a judge's refusal of an application that the judge not try, or continue to try, a case on account of reasonable apprehension of bias will constitute a final determination by the judge that the facts and circumstances relied on by the applicant do not establish the relevant apprehension. In such a case, it may be that an applicant who does not seek to challenge the refusal by seeking leave to appeal should be held to have given up the point. [80]In this case, if the respondents were right in asserting that there was a reasonable apprehension of bias, the whole of the trial with its attendant expense and use of court time would be wasted. Of course it must be recognised that the respondents in this case had no right to appeal against the refusal of Einstein J to recuse himself. But the respondents did have a right to seek leave to appeal. [81]As was explained in Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 64 per Gummow and Heerey JJ. See also Brooks v The Upjohn Company (1998) 85 FCR 469 at 475-476 a later interlocutory order made by a judge who has refused an application that the judge not hear the matter on account of a reasonable apprehension of bias is an order against which leave to appeal can be sought on the ground that the judge who made the order should not have done so. Conversely, as Saunders itself illustrates, where a judge allows an application for disqualification and makes orders effecting that decision, Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 58 leave to appeal can be sought against those orders on the ground that they should not have been made. Thus the order against which the respondents could have sought leave to appeal in this case was whatever order was made by Einstein J after he had refused to recuse himself. If, as the respondents asserted, Einstein J should not have continued to sit in the matter, whatever order was made (other than an order adjourning the case for the purpose of allowing another judge to deal with it) was an order which should not have been made by the judge who made it and would found an application for leave to appeal. And as it happened Einstein J made such an order on 4 June 2009 when he set dates for compliance with the general requirements for trial of proceedings in the Equity Division. [82]In so far as Barton v Walker ([1979] 2 NSWLR 740) holds to the contrary, that decision should not be followed. The decision in Barton v Walker depended upon the proposition that whether a judge should continue to hear a case was a matter only for the judge concerned and that a motion that the judge disqualify himself or herself was "not cognizable" (Barton at 750. See also Watson at CLR 266; ALR 567 per Barwick CJ, Gibbs, Stephen and Mason JJ; Rajski v Wood (1989) 18 NSWLR 512; Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411); the judge was held (Barton at 751) to make no order on the application for disqualification. [83]The decisions about apprehension of bias that have been given by this Court since Barton v Walker show that a judge's decision to grant or refuse an application for disqualification is not a matter only for the particular judge. As was pointed out (Ebner at [3]-[7]) in the plurality reasons in Ebner, the apprehension of bias principle has its roots in principles fundamental to the common law system of adversarial trial. and relevantly at [86]: [86]. . . It is, however, important to add, . . . that an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias may well be a case where the usual criteria (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; 35 ALR 625; [1981] HCA 39; Gerlach at [13]) would require leave to be granted, at least if a long and costly trial would be wasted if the judge's decision were incorrect. (See also Nicholls v Michael Wilson & Partners [2010] NSWCA 222; (2010) 243 FLR 177; Michael Wilson & Partners v Nicholls [2011] HCA 48; 86 ALJR 14; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488). 41We consider that the High Court, in Michael Wilson & Partners, only overturned Barton v Walker to the extent that decision may have been construed as erecting a rule that a decision to decline to recuse (or, for that matter, a decision to recuse) might not be cognizable, in any circumstances, on appeal. 42Basten JA granted a Stay of a hearing application in the civil matter of Barakat v Goritsas [2012] NSWCA 8, where there was a leave to appeal and an appeal application filed from a Supreme Court judge's decision not to recuse himself from hearing a contempt application and where the Supreme Court has a power to allow an application for leave and to appeal an interlocutory decision. His Honour at [10] - [13], [15], [16] and [23] discussed the current application of the principles to which we have referred: [10]. . . It has also been conventional wisdom that no appeal lies from the rejection of a recusal application as such, although a litigant could usually find an interlocutory order upon which to base an appeal: see Barton v Walker [1979] 2 NSWLR 740 at 755. [11]The applicants assert that the approach set out above should be revisited in the light of the reasoning of the High Court in Michael Wilson & Partners v Nicholls [2011] HCA 48; 282 ALR 685 at [74]-[86], in the joint judgment of Gummow ACJ, Hayne, Crennan and Bell JJ. [12]The first proposition is that Barton v Walker is no longer good law. That proposition needs to be analysed by reference to different aspects of that decision and the reasons given by Samuels JA, with the agreement of Reynolds and Glass JJA. At 756, Samuels JA, in considering whether there was any means to remove a trial judge who declined to recuse himself or herself, stated: "The proposition that one judge of this Court has authority to declare that another is disqualified from sitting in particular proceedings seems to me, if I may say so, quite absurd. Such an order would fall far beyond the scope of the declaratory power. It is necessary only to point out that no judge of this Court, or of any other court, is bound by the orders or decisions of a colleague of equal jurisdiction and status." [13]It is possible to read those words as precluding any appeal from final, let alone interlocutory, orders on the basis of a reasonable apprehension of bias. If that were so intended, it is a principle which has, to my knowledge, generally not been followed. If, on the other hand, it merely required an order against which to appeal, beyond dismissal of the motion for recusal, that is a proposition which has been consistently applied; it has not usually been difficult to identify a later interlocutory order or, where the matter arose towards the end of the hearing, a final order: Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 64 (Gummow and Heerey JJ); Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13. This approach was not doubted in Michael Wilson & Partners , where it was affirmed that "a later interlocutory order made by a judge who has refused an application that the judge not hear the matter on account of a reasonable apprehension of bias is an order against which leave to appeal can be sought on the ground that the judge who made the order should not have done so": at [81]. . . . [15]This contention had, however, a second limb, namely that the subject matter of the proposed appeal could be the decision of the primary judge to reject the recusal application. The applicant submitted that the plurality in Michael Wilson & Partners had sanctioned such a course. That submission was based upon two passages in the judgment, each of which was, concededly, part of the obiter discussion in relation to waiver. Thus, at [84], their Honours referred to a "failure to seek leave to appeal against refusal of an application that a judge not try the case on account of a reasonable apprehension of bias". There was also reference to "an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias": at [86]. The applicants also referred to the reference in Brooks v The Upjohn Company (1998) 85 FCR 469 at 475, in the judgment of Beaumont, Carr and Branson JJ, to the "somewhat artificial device of fastening on" interlocutory orders, other than the refusal to recuse, to provide the subject-matter of an appeal. [16]The step said to have been taken by the High Court in these passages is no doubt one which could be taken by that Court. However, the passages in which the statements quoted appear were directed to other issues and bear the hallmarks of concise, if elliptical references, to an application for leave to appeal based on the ground of the refusal to recuse. The express reference to both Gas & Fuel Corporation and to Brooks , in the same passage in the joint judgment, together with the affirmation set out at [13] above of the approach adopted in Gas & Fuel Corporation , is inconsistent with some implicit rejection of the need to identify an interlocutory order, other than the refusal to recuse, to form the basis of an application for leave to appeal. At best, the applicant's submission involves an uncertain inference: that is an insufficient basis for departing from an established line of authority in courts of appeal in this country, including not merely the two judgments just referred to, but also Rajski v Wood (1989) 18 NSWLR 512 at 518 (Kirby P), 527 (Hope AJA) (Priestley JA agree with both) and Witness v Marsden [2000] NSWCA 52; 49 NSWLR 429 at [96] (Heydon JA, Mason P agreeing). A single judge of this Court should continue to follow the overwhelming weight of appellate authority in the absence of any clear statement by the High Court to the contrary. . . . [23]An application for leave to appeal against the refusal of a motion to recuse is not merely a matter involving practice and procedure: cf Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 at 176-177 (Gibbs CJ, Aickin, Wilson and Brennan JJ); Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at [13] (Gaudron, McHugh and Hayne JJ). In the present case, the factors militating in favour of a grant of leave are that the issue is one which goes to the heart of the proper administration of justice between the parties; the ruling of the trial judge was in effect final in respect of the matters raised before him, and to allow the trial, which has not commenced, to proceed without determining the issue, could involve a waste of significant time and resources. It is not suggested that the application is motivated by any improper purpose, nor that there has been any delay in bringing the application. 43The primary application considered in the above Stay decision went expeditiously before the Court of Appeal. Judgment was handed down one day after submissions in the matter were completed: Barakat v Goritsas (No 2) [2012] NSWCA 36. The Court of Appeal generally addressed the principles applicable to an appeal on a recusal and applied those principles to the particular facts. However, Basten JA, with whom Young JA and Sackville AJA agreed, also commented in adopting the High Court decision of Nicholls at [63] - [64]: [63]It is likely that judgments on recusal applications should, in most situations, be addressed with caution on an appeal or application for judicial review. Although a recusal application does not involve a judge deciding a matter in which she or he has an interest (there being no legal "interest" in sitting or not sitting on a particular case) the judge is nevertheless called upon to rule on the possible effect of his or her conduct on a fair-minded lay observer. That assessment may, at least subconsciously, be influenced by the judge's assessment of his or her own ability to determine the case impartially. Further, a challenge to the position or conduct of a judge may have the tendency to exacerbate, or appear to exacerbate, any level of conflict between the judge and a party or counsel appearing in the case. In most circumstances, that consideration will militate in favour of brief reasons, accepting that brevity may need to be tempered by the need to demonstrate that the various matters raised have been taken into account. [64]It is because of the particular role placed upon a judge in determining a recusal application that it will frequently be appropriate to grant leave to appeal, assuming the challenge is not patently untenable and where a long and costly trial would be avoided if the decision below were incorrect: Michael Wilson & Partners at [86]. 44The Appeal Court, therefore, determined a judge should give brief reasons addressing the issues raised in a recusal application and a grant of leave to appeal "will frequently be appropriate" to consider those reasons. The Court of Appeal did not distinguish, as to the right to an appeal, if the matter was criminal in nature. This view was also expressed by the Federal Court in Brooks v The Upjohn Company, (1998) 85 FCR 469; (1998) 156 ALR 622 where the Full Court of the Federal Court also distinguished Barton v Walker. 45Each of these authorities deal with matters where there was a legislative power allowing an appeal application (sometimes by leave) from an interlocutory decision which is not available in relation to the recusal judgment of Backman J. The applicants contended the applicable principles from these authorities was that a judge's reasons for a refusal to recuse should be able to be reviewed and such a principle should be applied by the Full Court which would then grant the declaratory relief sought. In a circumstance where no appeal rights lie, the applicants contend the proper administration of justice must be the paramount consideration. 46However, that submission fails to grapple with, in our view, what appears to be the residue of principles from Barton v Walker. Subsequent authority has established that where a judge declines to accede to a recusal application, an interlocutory appeal will lie, but only where such a challenge is brought in conjunction with an appeal, the subject matter of which is amenable to appellate review. 47The framing of the application to challenge the recusal decision of Backman J as a declaration does not, in our view, overcome the effect of the foregoing authorities. We consider that the challenge to the recusal decision, per se, is not justiciable and that the authorities relating to appellate processes should have applicability in the present context. There is no challenge to any other interlocutory order before this Full Bench in the declaratory relief sought and it may be postulated that such relief might not be available through that process in any event. (We further note, in this respect, that the applicant desisted from any application for consequential orders). In any event, the application for declarations in this case is clearly a surrogate for an appeal, otherwise barred by Joy Manufacturing. 48This brings us to the second matter we earlier identified, namely, whether the subject matter of the declaration is amenable to declaratory relief. We will proceed, from this discussion, into a consideration of discretionary matters. 49Gray J considered, in Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1, the use and effect of a declaration power under the Federal Court's legislative provision (a similar provision to s 154 of the Industrial Relations Act 1996) at [95] - [96]: [95]It is to be noted that the power given to the court by section 21 of the Federal Court Act is a power to make "binding declarations of right". As defined by one academic commentator: A declaration is an order made by a court which declares with finality the nature of the legal rights and obligations of the parties in relation to the dispute before it. and: [96]... The point remains that a declaration of the kind contemplated by section 21 must be of such a nature, and in such a form, as to be of significance. What is declared must have some effect on the rights and obligations of the parties to the proceedings in which the declaration is pronounced. As Mason CJ, Dawson, Toohey and Gaudron J pointed out in Ainsworth v Criminal Justice Commission....A declaration will not be granted if it "will produce no foreseeable consequences for the parties"...More commonly, a declaration of right will be as to a state of affairs, such as validity or invalidity, or the meaning of a particular provision in a particular factual context, so that the parties can resolve their controversies on the basis that the state of affairs exists. In that way, the exercise of the power to make a declaration of right can be a useful exercise of the judicial power, saving the court and the parties the trouble and expense of further involvement in litigation as to the details of a controversy. 50The power under s 154 allows the Full Court to grant a binding declaration of a right. The "right" has been identified as the right to a fair trial and the right to be presumed innocent. It is contended the public interest requires a clarification of these rights. However, we are of the view these rights do not require declaratory relief and there is no public interest in the Full Court restating them. They stand alone as principles applicable to all court hearings including criminal prosecutions. Further, such declaratory relief as sought, without orders, would lie simply as an "opinion" of the Full Court. A declaration in this form does not "bind" any party including the court. There must be a finality to an issue from a grant of declaratory relief. There is, therefore, no utility in the grant of the declarations sought without considering applicable orders (see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; [1969] 1 All ER 208; [1969] 2 WLR 163). 51These are criminal prosecutions with a long history. There is a question as to whether the matters are part heard. The respondent asserts all the documents relied upon including expert evidence has been tendered from the outset against all the defendants (including the applicants) by agreement. The Court, in October 2008, was given to understand any "remaining" evidence called by the defendants (applicants) would be directed to the defences available under s 26 of the Occupational Health and Safety Act 2000. While on 9 December 2011 the applicants notified they no longer considered themselves bound by her Honour's findings of fact in the Sentencing Judgment and her Honour accepted the matters would be fully defended, at best, we can conclude her Honour has received without objection much documentary evidence from the respondent (prosecutor before her Honour) as to the question of liability given the assurance the only issue was penalty. The issue has been raised after the trial has commenced and significant time and resources are already spent. It is the applicants who have placed themselves in this position. 52In the circumstances, we are satisfied a grant of relief will interfere with the continuance of a criminal trial. There is a general desirability, in the public interest, that criminal proceedings should be allowed to pursue their usual course without punctuation by applications for interlocutory relief of a declaratory nature. As the High Court held in Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43 (4 September 2008) at [23] and [24]: [23]With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle. This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings (Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43. See also as to the undesirable fragmentation of the criminal process R v Iorlano (1983) 151 CLR 678; [1983] HCA 43; Yates v Wilson [1989] HCA 68; (1989) 168 CLR 338; [1989] HCA 68; R v Elliott (1996) 185 CLR 250; [1996]HCA 21). The fragmentation of the criminal process is to be actively discouraged. In any event, a declaration may be of limited utility where founded, as would be the case here, on facts admitted only for the purposes of the satellite litigation. [24]In Sankey v Whitlam (1978) 142 CLR 1 (at 26)) Gibbs ACJ remarked: "I would respectfully endorse the observations of Jacobs P (as he then was) in Shapowloff v Dunn [1973] 2 NSWLR 468 at 470, that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order." (See also Hutley J in Barton (at 360-361) where it was held there was a duty (on the magistrate) having begun to hear the case). 53In Barton (at 751), the public interest in the expedition of administration of justice was seen to mitigate against interlocutory appeals where all questions at issue could be determined on appeal after final judgment. While the applicants may not bring an interlocutory appeal in this matter (due to Joy Manufacturing), they will have rights of appeal subject to the grant of leave after her Honour's judgment at the conclusion of the hearing of the defended matters. 54We accept there is much further material that the respondent relies upon in pressing that the Full Court would not, in the use of its discretion, grant declaratory relief. As we have not considered the primary reasons given in the recuse judgment, we simply note, if there was a consideration of the application, those matters would have to be given weight. 55We find the application is not one for, in substance, a binding declaration of rights and would have no utility. We are also of the view, it is not appropriate for the Full Court to make a declaration against a judge's decision in a circumstance when there is no statutory grant for leave and to appeal from an interlocutory decision of the Industrial Court and where a criminal proceeding has advanced. The Full Court is bound by the principles recited in Barton v Walker and The Queen v Watsons ex parte Armstrong. A court must, in the use of its discretion, be wary of interfering in a criminal proceeding (see Country Energy v Malone), notwithstanding that, were there a power to grant leave to appeal and appeal from an interlocutory decision before the Industrial Court, it may have been appropriate for the applicants to challenge the recusal decision (see Michael Wilson & Partners Limited v Nicholls and Barakat v Goritsas (No 2). Orders 56We make the following orders: 1.The Notice of Motion is dismissed. 2.Costs to be costs in the cause. 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: 26 March 2012