The bias of the trial judge
96 The plaintiffs made it plain that they were not submitting that the trial judge had contravened any principle pursuant to which the court should assist litigants in person (which the plaintiffs were during the days on which Mr Budd represented them). The plaintiffs also made it plain that they were not alleging only apparent bias, but to some degree actual bias. In this they were more candid than most parties in their position. They said that because of the apparent bias and the actual bias they had not had a fair trial. They submitted:
"… the ordinary observer of the trial would have had a reasonable apprehension that the trial judge was not bringing, and ultimately could not bring, an impartial and unprejudiced mind, to the resolution of the issues.
There was continuing, excessive, judicial intervention: much of her Honour's comments were not only impolite, and uncomplimentary, but were pejorative, denigratory, belittling, depreciating, cynical, sarcastic, and derisive.
Annexed to these submissions is an extract of 'Observations, Interventions and Comments by her Honour during the trial (annexure 'A'). Whilst any one, or a number of the instances, standing alone, may not lead to the view that the judge was not impartial, it is submitted that cumulatively, they lead, inexorably, to that conclusion."
97 To the complaints in Annexure "A" should be added the complaints in Ground 4 of the Notice of Appeal ("her Honour visited upon the Plaintiff procedural requirements and constraints which were in the circumstances unfair").
98 It is not proposed to go to the particular passages complained of in view of their very great number. To some extent the plaintiffs complained of excessive intervention in the oral evidence of Mr Budd during his second period in the witness box while he was unrepresented; and in the oral evidence of Mrs Holding while the unrepresented Mr Budd was cross-examining her. To some extent the plaintiffs complained of questions or observations addressed to the unrepresented Mr Budd revealing scepticism about the plaintiffs' case, or the consistency of some particular step he wished to take with that case. To some extent the plaintiff complained of remarks revealing a lack of faith in Mr Budd's credibility. To a large extent they complained about attempts to ensure that Mr Budd complied with procedural and evidentiary rules relating to cross-examination while he was questioning witnesses called by the defendants. And the plaintiffs said of a great many of the trial judge's observations that they could be characterised by the adjectives set out in the second paragraph of the submissions quoted in paragraph [96] above.
99 The submission should be rejected for the following reasons.
100 First, in Vakauta v Kelly (1989) 167 CLR 568 at 572, Brennan, Deane and Gaudron JJ said:
"Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her."
101 The plaintiffs submitted that that did not apply here. For some reason which is not entirely clear, the plaintiffs were not represented by counsel or solicitors for some days when the trial resumed in July. New counsel (who was junior counsel on the appeal) was then briefed. The plaintiffs submitted that they lacked legal representation throughout the period during which the statements complained of were made. That is true of most of them, though a few were made to the new counsel who appeared for the plaintiffs on 12 July. However, that does not answer the difficulty. If Mr Budd had considered that the trial judge was actually biased, or that he was being treated in a denigratory, cynical, sarcastic and derisive way, he would no doubt have passed that perception on to counsel who appeared on 12 July. Counsel had access to the transcript, and made good use of it in preparing substantial submissions very speedily between some time after 4 July and 10 July. Counsel did not protest at the statements made in his presence of which complaint is now made. Nor did he make any protest about the statements recorded in the transcript of which complaint is now made. In the circumstances waiver has taken place.
102 Secondly, the circumstances of the trial must be remembered. As the trial judge said, it was "a very strange case". It was contemplated that it would be finished in the week allocated in March 2000. In fact the vagueness of the evidence called, the lack of creditworthiness of Mr Budd, the unreliability of Mrs Holding, the lack of relevant documents, the complexity of the pleadings and the complication of the issues that grew up out of seemingly simple facts ensured that it did not. It is significant that no complaint of judicial misconduct is made in relation to anything that happened in March. But by July, when the plaintiffs were not legally represented, it became imperative for the trial judge to seek to ensure that the case finished with reasonable expedition. Proceedings for some time took the unsatisfactory form of Mr Budd cross-examining Mrs Holding on conversations they had had years earlier. It was understandable that the trial judge might have become increasingly concerned about keeping the case on the rails. At the best of times trial litigation is a tense and tiring process. It is apparent from the very short time that judgment was reserved that the trial judge must have been working very hard on the case during the days in early July in relation to which complaint is principally made. The trial judge had to keep Mr Budd, unskilled as he was in court procedures and the formulation of questions, under control. To the extent that the trial judge's statements did merit the characterisation which the plaintiffs gave them, they were not made without considerable provocation, and the trial judge may well have felt it was necessary to be extremely blunt towards Mr Budd in order to ensure that the messages she rightly wished to convey were received.
103 Thirdly, the plaintiffs have considerably exaggerated the phenomena of which they complain. Many of the trial judge's criticisms were entirely justified. While she asked many questions of Mr Budd in his last appearance in the witness box, quite a number were necessitated by the fact that it fell to the trial judge to elicit his evidence in chief. And while she made many interventions while Mr Budd was cross-examining Mrs Holding, the trial judge was entitled to seek to shorten longueurs, reduce repetition, ensure fairness and precision in the formulation of questions and curtail rambling arguments about admissibility. Many of her observations actually assisted the plaintiffs by enabling the evidence to be more sharply focussed. A reading of the whole transcript reveals that the trial judge was not at any stage going to conduct the trial merely by sitting back and letting the parties conduct the case without any intervention or restraint at all. Her technique is a common modern technique, and a not unacceptable one, particularly in a busy trial court under pressure from crowded lists. Many of the observations complained of were not directed to the plaintiffs' side alone. There were numerous other observations not referred to directed to perceived deficiencies in the behaviour of Mrs Holding or that of counsel for the defendants. If all the trial judge's statements had been uttered while counsel for the plaintiffs were present (as a fraction were), there would be no ground for complaint: trial litigation often calls for plain speaking, directness and, sometimes, asperity. The absence of counsel for the plaintiffs cannot alter the outcome.
104 Fourthly, so far as the trial judge raised problems with Mr Budd in argument on 4 July, she was acting in the plaintiffs' interests rather than the reverse. Mr Budd asked for a 24 hour adjournment on the ground that he had engaged a barrister to help him with submissions. She granted a significantly longer adjournment and devised a procedure by which the counsel to be briefed would be able to have access to all the transcript. For the rest of that day (Black 3/525-563) she proceeded to highlight possible problems in a clear and vigorous way so that the new counsel would be able to grasp them more easily and deal with them: in that period she made many of the statements now complained of. The course she adopted was far juster and far more likely to achieve a result favourable to the plaintiffs than to sit in silence without alerting Mr Budd, and the counsel later to appear, of what might be troubling her. In Vakauta v Kelly (1989) 167 CLR 568 at 571, Brennan, Deane and Gaudron JJ said:
"Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge with preconceived views about the general reliability of the evidence of a particular medical witness discloses the existence of such views in the course of the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case …. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated."
105 Finally, there are other matters indicating that the trial judge was not biased, and matters indicating to a reasonable observer that she was not apparently biased. Not only did she grant the plaintiffs a longer adjournment than they requested, and put in place a regime enabling the plaintiffs' new counsel to represent their interests effectively, she also granted them leave to reopen their case on 12 July despite the difficulties this might have caused the defendants. She permitted a late amendment to the Further Amended Ordinary Statement of Claim despite its gross improbability and the want of evidence in support of it. She explained many procedural matters to Mr Budd. She stated frankly the numerous deficiencies in Mrs Holding's evidence, and the less numerous deficiencies in her commercial behaviour.
106 The submissions directed to criticism of the behaviour of the trial judge fail.