The reference to Mr Zelvic should have been to Mr Zobec.
45 The first quoted statement by Ms Vukic was, in our opinion, totally justified by the statements by her Honour to Ms Vukic, that she should be quiet unless she was objecting. The passage we have quoted is punctuated by two observations by her Honour which we find disturbing, particularly in view of what had just happened. Her reference to "spectacular silence" was, in our opinion, totally unnecessary. It indicated, as clearly as may be, that her Honour was of the view that Ms Vukic had heard what was said but was not commenting.
46 The statement, "How very convenient", was also totally uncalled for. It gives the strong impression of being both sarcastic and disbelieving. There was no reason for Ms Vukic to be listening to what Mr Zelvic (sic) said, and indeed her Honour, if she was relying on that in asking her question resorted to a question about "words to the effect". The two statements taken together, together with her Honour's order to Mr Damjanovic to "shut up", all would have indicated, in our opinion, to a reasonable bystander, and certainly indicate to us, that her Honour was far from holding the scales pending a determination of the proceedings. For the matter to be dealt with in that way by a Judge shows, at least on the face of the transcript, little attempt to maintain the proper decorum of either the Court or herself, such as to allow a proper ventilation of the issues before an apparently impartial tribunal. It should also be noted that before the passage to which we have referred, her Honour had asked Mr Spehar to translate what he had heard Mr Damjanovic say, notwithstanding that he was not the Court interpreter and was a party with a position adverse to Mr Damjanovic.
47 Subsequently, her Honour was asked to give judgment in that matter. She did so on 10 August 2000 and, after setting out the factual issues and the pleadings, said, at p 3:
"Ultimately, there is a confined debate of fact into whose hands the cheque was placed. It is determined exclusively by a question of credibility. The question is: do I believe Miss Debrodt who says she is the one who received the money, signed a document representing that fact and says that she was not accompanied? That is directly contradicted by Mr Damjanovic.
I have had the advantage of having heard and seen Mr Damjanovic give evidence for the earlier part of today and yesterday on these proceedings and others . I do not believe Mr Damjanovic. I do believe Miss Debrodt". (Our emphasis)
48 This judgment was given at a time when Mr Damjanovic's case in chief, including, of course, his evidence, on the various forgery issues, had been closed. However, it was clear that there was still evidence to be called from the defendants, and that there may have been a case in reply in which Mr Damjanovic, at least arguably, would have given evidence.
49 Her Honour's finding in the case against Ms Ivancic was based upon her decision that she did not believe Mr Damjanovic. That conclusion was reached because, as she said, she had had the advantage of hearing and seeing him give evidence, not only on 10 August 2000, but also on 9 August 2000, and not only in the proceedings against Ms Ivancic, but also in others, i.e. the part-heard forgery proceedings.
50 Accordingly, her Honour was stating that her disbelief of Mr Damjanovic was based, not merely on the evidence he gave in relation to the claim against Ms Ivancic, but also upon the evidence he had given in the forgery proceedings. Thus, at a point of time when those proceedings were part heard, her Honour was making a finding, namely that she did not believe Mr Damjanovic based, at least in part, upon what he had said in the part heard forgery proceedings. That finding did not relate to some evidentiary or interlocutory issue: it was dispositive of the Ivancic proceedings.
51 In our opinion, the situation would have been sufficiently susceptible of giving rise to an apprehension of bias against Mr Damjanovic if her Honour had confined her observations to the evidence he had given in the proceedings brought against Ms Ivancic. However, she included what she had gleaned from the evidence Mr Damjanovic gave in the part heard forgery proceedings, where credit was to be of vital importance, and what she had observed of him in those proceedings. The question which then arose was whether there might be an apprehension of bias, created in the reasonable bystander, by reason of that judgment, in relation to the forgery cases, such that her Honour should not have continued to hear them. This is a somewhat discrete point, but it is one which, in the circumstances of this case, can be viewed against the other conduct of her Honour about which complaint is made.
52 In Ex parte Schofield; re Austin (1953) 53 SR (NSW) 163, Herron J said:
"In my view, the learned magistrate should not have proceeded to judge the several complaints against the police sergeant by two citizens, when he had only just before entering in the case used the strongest possible language to show that they were, in his opinion, unworthy of belief. I think that the circumstances under which he heard these several complaints and dismissed them could give rise to a suspicion in the mind of a passer-by that the cases had been pre-determined by the Court and that a fair hearing was not able to be obtained".
53 In Reg v Watson ex parte Armstrong (1976) 136 CLR 248, the majority of the High Court (Barwick CJ, Gibbs, Stephen & Mason JJ, Jacobs J dissenting) found that prohibition should issue against the trial Judge, who, on an interlocutory hearing, had said, inter alia:
"If one of the parties does not put in issue his capacity to meet a reasonable order, or even a quite generous order by the Court, and it says they have that capacity to meet it, and if, secondly, the Court accepts that admission, because the Court may not and I certainly would not in this case accept any admission without corroboration on either side - let me say on this point, in amplification of what I have said, it might assist you in handling this matter, I propose to conduct this case having regard to the inadequacies of both sides of the case upon the basis I will not find in my own mind that I am satisfied on either side unless there is corroboration of a particular matter. That will mean that there will be no great value to either counsel in cross-examination of credit because credit is a non event in this case".
54 Objection was taken to what his Honour said.
55 At p 258, the majority recognised that the bias being alleged was "by reason of some pre-determination he has arrived at in the course of the case".
56 At p 262, their Honours said:
"The view that a Judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial, and that if a Judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct in principle".
57 At p 263, they continued:
"It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision".
58 At p 265, they continued:
"It was said that there was no bias because the Judge had formed an equal distrust of both parties. The formation of a preconceived opinion that neither party is worthy of belief amounts to bias in the sense in which that word is used in a number of the authorities already cited. To form such an opinion is to predetermine one of the issues in the case, and may operate unfairly against one party, even though both are discredited. A prejudice against the credit of both parties will not necessarily damage both parties equally. It will prove more damaging to that party who wishes to establish a fact by means of his or her own unsupported evidence. A party who believes, on reasonable grounds, that the Judge has decided, in advance, to disbelieve her evidence cannot have confidence in the result of the proceedings, even if the Judge has decided to reject the evidence of her adversary as well".
59 In Livesey v New South Wales Bar Association (1983) 151 CLR 288, the presently applicable test was laid down. The facts of that case are so well known as to require no repetition in this judgment. At p 299 in the joint judgment of the Court, Mason, Murphy, Brennan, Dean and Dawson JJ, it was stated:
"What is in issue in the present case is the appearance and not the actuality of bias by reason of prejudgment. The reasonable observer is to be presumed to approach the matter on the basis that ordinarily a Judge will so act as to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of prejudgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant Court".
60 At p 300, their Honours said:
"It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgment, if a Judge sits to hear a case at first instance after he has, in a previous case, expressed clear views about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact . The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular Judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the Judge to refrain from sitting ". (Our emphasis)
61 In Vakauta v Kelly (1989) 167 CLR 568, the facts of which are once again well known such as to require no repetition, Brennan, Deane and Gaudron JJ, in dealing with the failure by counsel appearing at the hearing to object to certain observations made by the trial Judge, said, at p 573:
"The appellant's failure to object to the comments made in the course of the trial cannot, in our view, properly be seen as a waiver of any right to complain if comments made about Dr Lawson in the judgment itself would, in the context of those earlier comments, have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer".
62 Dawson J was of the view that the remarks made by his Honour did not, of themselves, constitute circumstances giving rise to a reasonable apprehension of bias. He made clear that a party, troubled by such remarks, could not sit by to see the outcome of the proceedings before objecting, and he said that:
"Where a party, being aware of his right to object , waives that right there will be little danger of the appearance of injustice ". (Our emphasis)
63 Notwithstanding the view to which his Honour came about the original remarks, he considered that what was said in the judgment, taken with those remarks, led to a reasonable apprehension of bias.
64 Toohey J dealt with the matter at some length and, at p 585, in relation to a "fair-minded observer", said:
"But, in this regard, the public perception of the judiciary is not advanced by attributing to the reasonable or fair-minded observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case. Such an observer, on being told of the litigation in the present case and then being told of his Honour's remarks, is unlikely to conclude that his Honour was showing no bias against the appellant's potential witnesses and in turn against the appellant's case as to the extent of the respondent's disabilities. On the contrary, the observer is likely to conclude that his Honour would approach the assessment of damages with a strongly held opinion that the evidence of the appellant's medical witnesses (which he had not heard) would almost certainly be loaded against the respondent and therefore be worthy of little credence".
65 At p 587, his Honour continued:
"There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred , should not be capable of waiving the right later to object to the Judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the Judge to withdraw from the case. It may be enough that counsel made clear that objection is taken to what the Judge has said, by reason of the way in which the remarks will be viewed ". (Our emphasis)
66 In Australian National Industries Limited v Spedley Securities Limited (in liquidation) & Ors (1992) 26 NSWLR 411, the majority of this Court followed the approach propounded in Livesey. A written submission was made by Mr Cohen that Rolfe AJA had, by referring to this decision at an earlier mention, in some way denied the respondents procedural fairness. This submission was not repeated orally and was withdrawn.
67 In Abram v National Australia Bank Limited (Court of Appeal - 1/5/97 - unreported), this Court, after referring to the repetition of the Livesey test by the High Court in Webb v The Queen (1994) 181 CLR 41, said that the apprehension of bias was created, inter alia, by remarks made by the Judge in an earlier judgment: p 40.
68 In Johnson v Johnson (2000) 201 CLR 488, the High Court affirmed that the test to be applied in determining whether a Judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that he or she might not bring an impartial and unprejudiced mind to the resolution of the questions necessary to be decided.
69 In their joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, said, at p 492:
"It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a Judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form 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".
70 At p 493, their Honours continued:
"Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or of the ability of a particular Judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They developed to take account of the exigencies of modern litigation. At the trial level, modern Judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to Court expecting a Judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx".
71 Their Honours then referred to what had been said in the majority judgment in Vakauta about the desirability of the interchange of views and the statements by a Judge of preliminary views in order to test those views and propositions and submissions being put to him or her.
72 Kirby J came to essentially the same conclusions and, at p 504, he said:
"If the party complaining is legally represented, the submission will require explicit instructions and usually be made (as in the present case) after time for advice and reflection".
73 In the present circumstances, it would probably be sufficient justification for making the orders that we have, that the reasonable bystander might have an apprehension of bias based on pre-judgment, merely from the terms of her Honour's judgment in the Ivancic case. That apprehension would be fortified, so it seems to us, by the fact that she relied, not only upon her assessment of Mr Damjanovic's evidence in those proceedings, which she was actually deciding, although probably prematurely, but also by reference to the part heard cases before her. It is difficult to think that the reasonable bystander could have left the Court thinking other than that, notwithstanding that the evidence in the part heard cases was not concluded, Mr Damjanovic, who carried the onus in them, would, in all probability, not be believed, her Honour having determined already that he was not a credible witness.
74 But, in our opinion, one is entitled and, indeed, bound, to go beyond the terms of the judgment. The reasonable bystander would have heard her Honour tell Mr Damjanovic to, "shut up", language quite inappropriate to a judicial officer exercising judicial power in Court, or, perhaps, at all. Shortly thereafter, there was the sarcastic statement relating to the "spectacular silence" from Ms Vukic, and then the sarcastic and critical comment, "How very convenient".
75 In our opinion, the totality of this conduct, together with the terms of the judgment, was sufficient to meet the test in Livesey, such that, her Honour, in our opinion, was disqualified from further hearing and pronouncing judgment in the unfinished proceedings.
76 No application was made to her Honour by Ms Vukic, on behalf of Mr Damjanovic, or by Mr Damjanovic, for her to disqualify herself, a matter on which Mr Cohen placed reliance. Much had been said in the context of whether leave should be granted to Ms Vukic to appear on behalf of Mr Damjanovic, of the desirability of the Court being assisted by counsel or legal representatives, who are officers of the Court, and have an obligation, consistently with the duty to their clients, to assist the Court. Mr Cohen did not suggest to her Honour that, having heard all the evidence in the case involving Ms Ivancic, it would be desirable for her to reserve her judgment until she had heard all the evidence in all the cases. He did not refer her Honour to the decisions on apprehended bias arising from pre-judgment. Rather, he actively sought a judgment from her Honour.
77 Notwithstanding the significance of these cases in the conduct of litigation, they appear to have escaped her Honour's notice. So far as waiver is concerned, in these circumstances, it seems to us to be well established that there can only be waiver with knowledge of the right to object to her Honour's continuing to hear the part heard proceedings. The authorities to which we have referred make this clear. There was no evidence that either Ms Vukic or Mr Damjanovic had any knowledge of their rights to object. Further, her Honour revived the matter in her judgment, in the way to which Dawson J referred, in the findings she made about Mr Damjanovic's credibility in the forgery cases. We do not consider that either Ms Vukic, or Mr Damjanovic through her, could be said to have waived whatever rights flowed from what her Honour did by dint of any failure to ask her to disqualify herself.
Other Matters Of Concern
78 We have referred to statements made in the initial stages by her Honour in relation to Mr Damjanovic's being represented by Ms Vukic. In themselves, some of them may not have caused a reasonable bystander to entertain an apprehension of bias. To the extent to which we have referred, the view may be taken that her Honour was doing her best to protect the interests of Mr Damjanovic. However, some of the statements made and, thereafter, the frequent references to the problems, dangers and risks created by the appearance of Ms Vukic and the "folly" and "stupidity" of Mr Damjanovic's following that course, were, in our opinion, such as to create a quite different view. There seemed to be intruded into the discussion on this subject an almost threatening element, e.g. at T p 39:
"Plaintiff: I will not leave it at this. I will take it to the High Court.
Her Honour: The probabilities of your succeeding in getting anywhere past this Court if you lose because of your assistant's failures are very low. It's a question for you whether you want to continue, warned of the risk or not".
79 There are further instances of this type of conduct by her Honour.
80 At T p 81, her Honour continued to make comments, which, on one view, were somewhat threatening. An Income Tax Return was tendered by Ms Vukic as Ex 17, and her Honour said:
"… be on notice as to the fact of law I have in front of me now as a matter of evidence a tax return, and in the event of something falling before me which causes me to doubt the voracity (sic) of that tax return, I do not form a view on that matter, I refer it forthwith plus the lot, to the Taxation Office, that is my duty, that is the duty that I will exercise".
81 There was absolutely no reason for her Honour to have made that remark. Of course, if subsequently material emerged which showed that the return contained false information, there may well have been such an obligation on her. But to raise the matter at the outset could only be interpreted as a very unsubtle threat of possible consequences: the type of threat under which a litigant should not be placed, without reason, by a trial Judge.
82 At T p 82, her Honour told Ms Vukic to, "bear on notice" that she would enter into no discussion on the subject, as it was a matter on which she made decisions, "other than to exercise my duty". Prima facie, one could be forgiven for thinking that procedural fairness would require her Honour to seek an explanation from whomever she thought was the appropriate person. On the same page, the following transpired:
"Her Honour: I will note it, at the end of the day that may be an issue that is relevant to costs. You might assume it does not come as a great surprise to me to discover that complaints have been made against Mr Rosier, the thing that will surprise me is that the complaint is not made about everybody at some stage.
Cohen: I apprehend that at some stage a complaint was made about me your Honour.
Her Honour: Indeed Mr Cohen I would be very disappointed if there were not".
83 In our opinion, these latter remarks were totally unnecessary, and could not have been said seriously. They were being said, as I read the transcript, in a sarcastic and critical way of Ms Vukic and Mr Damjanovic.
84 At T p 129, another somewhat extraordinary event occurred. Mr Cohen said he had been instructed that Ms Vukic was giving "coded signals" to Mr Damjanovic. Her Honour did not indicate that she had seen any such thing, notwithstanding that she was in an acutely advantageous position to do so, but, without more, she requested Ms Vukic to turn her back and face the other way, "turn your back completely please, thank you".
85 Without any enquiry of Ms Vukic as to whether she had been giving "coded signals" to the witness and if so a direction from her to desist, and without any statement of any observation that her Honour had made about Ms Vukic's activities, she took it upon herself to place Ms Vukic in an almost impossible position of having to face away from the witness and, presumably, the Bar table, and, therefore, her papers. This was repeated at T p 132:
"Her Honour: And again Ms Vukic, so that there can be no argument about who is clueing what if you would turn your back please".
86 We find this conduct extraordinary. Her Honour made no attempt to ascertain if Ms Vukic was acting in the way alleged and sought no explanation from her. The allegations were serious and would have justified her Honour, had she found them to be established, to revoke the leave for Ms Vukic to appear.
87 The respondents sought to lead some evidence that Ms Vukic had so acted. For the reasons given, this is a matter her Honour should have investigated at the trial.
88 At T p 152, Mr Damjanovic was asked whether he had signed various documents called "Ordinary Statements of Claim". Ms Vukic said she objected:
"Excuse me I object to this kind of questioning".
89 Her Honour made no attempt to ascertain what the objection was, but stated:
"Ms Vukic, if he does not know that he signed a statement of claim, we have a problem. Mr Cohen, however you may need to put that question differently. He has signed a number that are not ordinary Statements of Claim and you might put one in front of him to illustrate the point".
90 There was then a further disputatious harangue in which Mr Cohen, for some reason which does not appear clear on the face of the transcript, required production of documents, and that the leave granted to Ms Vukic be revoked. Ms Vukic said something which was "(not transcribable)", and her Honour told Ms Vukic to be quiet, and to produce the documents. After a deal of further discussion, at T p 158, her Honour said:
"Mr Damjanovic, please translate this Mr Interpreter. Be under no mistake. It is stupid to proceed in claims such as this without a lawyer".
91 This was another example of the way in which her Honour was making clear the view she took of Ms Vukic's appearing, notwithstanding the leave she had been granted.
92 At p 153, after Mr Cohen had sought "immediate judgment by direction", which her Honour declined to grant, her Honour said:
"Mr Cohen, I will not do that now but having regard to that answer, it will be my direction at the conclusion of this that a transcript of these proceedings be made available to the New South Wales Police Force".