The established requirement that an applicant must identify an interlocutory order other than the refusal to recuse to form the basis of an appeal was not changed by Michael Wilson & Partners v Nicholls [2011] HCA 48. However, following the guidance in that case, leave to appeal from a recusal decision may well be warranted where a long and costly trial would be wasted if the judge's decision were incorrect. A single judge of the Court of Appeal has power under s 46(2) of the Supreme Court Act 1970 (NSW) to stay proceedings in the trial division pending determination of an appeal, including directing that a trial not proceed.
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