Consideration of the appeal
17 We will describe the principles that are applicable where it is alleged that excessive judicial intervention during a trial has resulted in a miscarriage of justice, before turning to the facts of this case.
18 In Jorgensen v Fair Work Ombudsman [2019] FCAFC 113, the Full Court held at [93], applying Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, that where an appeal involves allegations of bias or denial of procedural fairness due to excessive judicial intervention along with other substantive or discrete grounds, the appeal court should first deal with the issues of bias or procedural fairness. That is because those grounds, if made out, would strike at the validity of the trial and require the matter to be remitted for retrial.
19 In R v T, WA (2013) 118 SASR 382 at [38], Kourakis CJ identified three grounds upon which excessive judicial intervention in a trial by judge alone may result in a miscarriage of justice:
(i) the questioning unfairly undermines the proper presentation of a party's case (the disruption ground);
(ii) the questioning gives an appearance of bias (the bias ground); and
(iii) the questioning is such an egregious departure from the role of a Judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground).
20 In Jorgensen, the Full Court elaborated upon these grounds as follows:
99 The first ground, which Kourakis CJ referred to as the "disruption ground" is made out where the interventions unfairly undermine the proper presentation of a party's case: see also Ellis v R [2015] NSWCCA 262 at [65]. In Michel v R [2009] UKPC 41; [2010] 1 WLR 879, Lord Brown described this ground as involving interventions that prevent a party from doing himself or herself justice in the giving of his or her evidence. It may, however, also apply to interventions which occur in the course of submissions: see Jones v National Coal Board [1957] 2 QB 55 at 63-64.
100 The second ground is where the questioning or interruptions give an appearance of bias…
101 The third ground, which Kourakis CJ referred to as the "dust of conflict" ground (an expression coined by Lord Greene MR in Yuill v Yuill [1945] 1 All ER 183 at 189), is made out where the questioning or intervention is "such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance".
21 In R v T, Kourakis CJ at [39] explained the "dust of conflict ground" in terms of compromising the capacity of the judge to adjudicate. His Honour observed that the ground is based on an objective standard and measured by an assessment of the degree to which the departure from a judge's traditional role compromises the judicial capacity to objectively evaluate the evidence.
22 A ground that the trial was conducted unfairly ("the disruption ground" and "the dust of conflict ground"), is distinct from a ground of apprehended bias, the former turning largely upon whether the litigant has had a proper opportunity to advance his or her case: RPS v R (2000) 199 CLR 620 at [11]. However, the grounds may overlap.
23 In Galea v Galea (1990) 19 NSWLR 263, Kirby A-CJ (with whom Meagher JA agreed), in a passage reflecting the overlapping nature of the grounds, set out the following principles at 281-282:
1. The test to be applied is whether the excessive judicial questioning or perjorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside.
2. A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached.
3. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and "into the perils of self-persuasion".
4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion.
5. It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions.
…
(Citations omitted.)
24 In Jorgensen, the Full Court emphasised at [102] that there are entirely proper reasons why a trial judge might intervene and ask questions of a witness or test the submissions being made. In Michel v R [2010] 1 WLR 879; [2009] UKPC 41, Lord Brown at [34] gave the following summary of the sorts of interventions by a trial judge that are proper and permissible, and those that are not:
Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.
25 In Johnson v Johnson (2000) 201 CLR 488, the High Court observed at [13]:
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. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case". Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(Citations omitted.)
26 This passage from Johnson v Johnson applies equally where a party is self-represented. It is a part of the judicial function of deciding cases to question and challenge the submissions being made. After all, a judge must be able to understand the competing arguments and their consequences in order to decide which is the correct or preferable argument. The questioning and testing of submissions may legitimately be vigorous and robust. However, it must be balanced by the requirements of procedural fairness. Procedural fairness requires that each party be allowed a reasonable opportunity to present their case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]; Sullivan v Department of Transport (1978) 20 ALR 323 at 343.
27 The proceeding before the primary judge was not a trial but an interlocutory application in which no oral evidence was given. Nevertheless, the principles concerning excessive judicial intervention in trials without a jury are relevant to the conduct of such an application.
28 We will turn to the present case. The respondents concede that Mr Gambaro was denied procedural fairness. Their concession reflects the "disruption ground". For the reasons that follow, we consider that both the "disruption ground" and the "dust of conflict ground" are established. In view of those findings, it is unnecessary to consider the apprehended bias ground, except to mention that the primary judge's comments made after Mr Gambaro had been removed from the courtroom and in the reasons for judgment may reflect a recognition that his Honour's conduct gave rise to an apprehension of bias.
29 The extent and nature of the primary judge's interventions went well beyond the legitimate ends of seeking to clarify, understand and test Mr Gambaro's case. The primary judge's interventions both undermined the proper presentation of Mr Gambaro's case and represented such an egregious departure from the role of a judge presiding over an adversarial hearing that it unduly compromised his Honour's capacity to objectively evaluate the evidence.
30 It was a feature of the hearing that Mr Gambaro's submissions were interrupted so frequently that he was given no real opportunity to develop his case. The interruptions began almost as soon as Mr Gambaro commenced his submissions and continued throughout the hearing until the primary judge directed his removal from the courtroom.
31 The pattern of the hearing was that Mr Gambro was usually not permitted to say more than a few words before the primary judge would interrupt with a statement or question, or a series of statements or questions. On some occasions, Mr Gambaro was permitted to say one sentence and was interrupted during his second sentence. On no occasion was he permitted to complete more than two consecutive sentences. It may be seen from the transcript that, for example, when his Honour questioned Mr Gambaro as to his basis for asserting that certain documents existed, his Honour's interruptions gave him no opportunity to develop his answer.
32 It will often be entirely proper for a judge to interrupt the submissions being made. A judge has responsibilities for the efficient and timely disposition of proceedings. A judge may interrupt submissions for reasons including questioning a statement made or attempting to move a party on from submissions that are irrelevant or unduly repetitious. However, many of the primary judge's interruptions appear to have been made merely to harangue Mr Gambaro into agreeing with propositions raised by his Honour, so that the questioning often resembled a cross-examination. For example, when Mr Gambaro was attempting to address one such proposition, his Honour interrupted to say, "You're saying that you don't agree that such a conclusion is absurd?". And later, "Do not change the subject. You answer my question." But, even under cross-examination, a witness is allowed a proper opportunity to answer the questions. Mr Gambaro was given very little opportunity to answer the questions he was asked in the course of his attempts to make submissions upon his application.
33 Early in the hearing, Mr Gambaro interrupted his Honour while attempting to answer a question. The primary judge responded with unnecessary force and severity, saying:
Do not ever interrupt me. Do not ever. You've been told many times when I talk your mouth goes closed. You do not ever interrupt me or you will be cited for contempt. I'm not putting up with your rubbish.
While displaying acute sensitivity to Mr Gambaro's interruption, the primary judge appears to have had little insight into the effect of His Honour's own interruptions upon the ability of Mr Gambaro to present his case.
34 The primary judge was frequently aggressive, rude and overbearing. For example, early in the hearing, his Honour said, "What is so important that you would risk the wrath of the court in trying to tell me that there is something more important. Tell me what it is." His Honour said, "You've had more than enough lenience in my court, Mr Gambaro, and I'm sick of it". Later, his Honour said, "Do you understand how absurd that seems?". And later, "And I've asked you for the proof of how it is that I should know that it exists otherwise you are simply wasting this court's time."
35 On four occasions his Honour threatened to have Mr Gambaro charged with contempt of court or accused him of having committed a contempt. The first was when his Honour said, "You do not ever interrupt me or you will be cited for contempt." The second was when his Honour said, "How do you know that it exists and if you tell me because any place should have something like this you will be in contempt." The third was when his Honour went on to say, "No, you answer my question or you will be in contempt". The fourth was when his Honour said, "And - no, you are getting security because you are going to be removed from my court right now because you have failed to answer my question and you are treating this court with contempt."
36 Section 17 of the Federal Circuit Court Act 2001 (Cth) confers upon the Federal Circuit Court the same power to punish contempts of its power and authority as is possessed by the High Court of Australia in respect of contempts of the High Court. In Lewis v Ogden (1984) 153 CLR 682, the High Court observed at 688 that in order to constitute contempt, the words or conduct in the face of the court must be such as would interfere, or tend to interfere, with the course of justice. Further, the High Court observed at 693, that the contempt power is exercised to vindicate the integrity of the court and of its proceedings; and is rarely, if ever, exercised to vindicate the personal dignity of a judge.
37 It is impossible to see how Mr Gambaro's occasional interruption of the primary judge, his giving of a particular answer to his Honour's question, his refusal to answer a question when threatened with a contempt charge if he gave the answer he wished to give, or his mere failure to answer his Honour's question could amount to conduct that would interfere, or tend to interfere, with the course of justice. In Magistrates' Court of Victoria v Robinson (2000) 2 VR 234, Brooking JA, referring to threats to deal with an advocate for contempt, said at [12]:
The magistrate behaved like a bully and, worst of all, threatened the solicitor with instant committal for contempt of court if he persisted in his application. What Martin J once called the immensity of the power to commit (in Morriss v Withers [1954] VLR 100 at 104) makes the abuse of that power in the present case deplorable. It cannot be said to be mitigated by any stress that the magistrate was under or any justifiable irritation. The magistrate was continuing to behave as he had behaved up till then, although now his behaviour became worse. He refused to hear a party, and moreover in a criminal proceeding, and did so by using his contempt power as an instrument of oppression.
In the same case, Charles JA said at [25]:
A threat to deal with an advocate for contempt is a very serious matter. It is a "drastic and most unusual course" (Maharaj v Attorney-General of Trinidad and Tobago [1977] All ER 411). Courts must proceed very carefully before they make an order to commit to prison: Re B (JA) (An Infant) [1965] Ch 1112 at 1117-1118. Furthermore it is particularly important that the power not be misused to prevent an advocate in good faith making proper submissions to a court.
38 The power of the Court to punish for contempt is a great one, and the making of any threat to exercise the power should be approached with caution and restraint. There was no apparent justification for the threats to charge Mr Gambaro with contempt. The threats should not have been made.
39 We accept that the primary judge's conduct was intimidatory and made it difficult for Mr Gambaro to properly argue his case. That can most clearly be seen after his Honour made the second threat to charge Mr Gambaro with contempt. The following exchange occurred:
HIS HONOUR: How do you know that it exists and if you tell me because any place should have something like this you will be in contempt.
MR GAMBARO: Okay. Well, it does.
HIS HONOUR: Now, tell me how do you know that this exists?
MR GAMBARO: Well, I'm not going to answer that question, your Honour.
HIS HONOUR: No, you will answer my question or you will be in contempt.
It appears that Mr Gambaro wanted to give the answer that any workplace would be expected to create relevant documents in similar circumstances, but was threatened with a contempt charge if he gave that answer. Faced with that dilemma, he declined to answer the question. He was then threatened with a contempt charge unless he answered. He was placed in an impossible position.
40 The primary judge's description of Mr Gambaro as "truculent" was inaccurate. Mr Gambaro was polite and restrained throughout the hearing.
41 The primary judge's reasons sought to explain why Mr Gambaro was removed from the courtroom, as follows:
I should add that Mr Gambaro, on a number of occasions, simply ignored questions that I was asking him and instead choose to answer his own questions and would not answer mine. When I told him that he would have to answer my questions or he would be ordered to leave, he still refused to answer my questions, and upon being told that I would look at treating him for contempt, he simply sat down and refused to answer any more questions.
42 This passage is inaccurate. The primary judge's frequent interruptions gave Mr Gambaro no real opportunity to answer his Honour's questions. The primary judge's intimidating, aggressive and overbearing conduct eventually resulted, in our view, in Mr Gambaro being unable to answer his Honour's confusing questions. The transcript does not support his Honour's assessment that Mr Gambaro simply ignored questions, nor that there was any deliberate refusal to answer them, except in the instance when he was threatened with a charge of contempt if he gave the answer he wanted to give.
43 There was no justification for the primary judge's direction that Mr Gambaro be removed from the courtroom. The hearing continued in his absence. Mr Gambaro's application was decided in circumstances where he was unjustifiably denied the chance to be heard. In our view, Mr Gambaro was denied procedural fairness both on the basis that the primary judge's interventions unfairly undermined the proper presentation of his case and that he was unfairly removed from the courtroom during the hearing. The "disruption ground" is established.
44 Further, the primary judge's conduct, considered cumulatively, involved such an egregious departure from the role of a judge that it unduly compromised his Honour's advantage in objectively evaluating the application from a detached distance. The "dust of conflict ground" is established.
45 The respondents submit that it is open to the Court to decide the remainder of Mr Gambaro's grounds of appeal. The respondents submit that it was not held in Concrete Pty Ltd that the grounds other than apprehended bias should not be dealt with, but only that apprehended bias should be dealt with first. Further, they submit that the fact the application before the primary judge was interlocutory is a matter that may be taken into account in deciding whether to deal with the other grounds. The argument is said not to rely upon the discretion under s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth) to decline to order a new trial on the basis that no substantial miscarriage of justice has occurred: cf. Conway v R (2002) 209 CLR 203 at [6], [36], [38]; Windoval Pty Ltd v Donnelly (2014) 226 FCR 89 at [95]-[96].
46 In Concrete Pty Ltd, Kirby and Crennan JJ held at [117]:
An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias. Furthermore, if, as here, an intermediate appellate court finds the allegation made out, but grants no relief because it otherwise finds in favour of the party making the allegation, a defect in the administration of justice has been found to have occurred which, in the absence of any successful appeal on the point, will remain unremedied. Inevitably, this adversely affects public confidence in the administration of justice.
47 In Concrete Pty Ltd, Gummow ACJ similarly held at [2] that the Full Federal Court should not have permitted the respondents to present their arguments upon the inconsistent bases of apprehended bias and infringement of copyright. They were inconsistent because if the bias submissions succeeded, the remedy would be a retrial; whereas if the copyright submissions succeeded, the court would itself provide the orders which should have been made and there would be no occasion to order a retrial. His Honour considered at [3], that while the Full Court had accepted the bias submissions, it had failed to provide consequential relief; and if allowed to stand, this outcome would have "the adverse consequences for the administration of justice" identified by Kirby and Crennan JJ. However, Callinan J at [172] considered that the Full Court's error was to go on to consider the allegation of apprehended bias on the part of the trial judge after having decided the copyright issue, when the latter was sufficient to dispose of the case completely.
48 In our view, the judgment of Kirby and Crennan JJ, taken together with that of Gummow ACJ, makes it clear that grounds of apprehended bias are to be dealt with first, and if they succeed, a retrial will be ordered without deciding the other grounds of appeal. There has been some criticism of their Honours' judgments in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 at [9]-[11], [259]-[260] and Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [53], but they are binding upon an intermediate appeal court.
49 In Jorgensen, the Full Court, applying the reasoning in Concrete Pty Ltd, held at [93] that an appeal court should deal first with the grounds of bias or procedural fairness, and, if made out, the matter must be remitted for retrial: see also [161]-[162]. When the Full Court referred to procedural fairness, it was referring to a denial of procedural fairness resulting from excessive judicial intervention - what was described as "unjudicial behaviour" in Spencer v Bamber [2012] NSWCA 274 at [103]. Other kinds of denial of procedural fairness may not necessarily require a retrial where, for example, the respondent is able to demonstrate that appellant was not denied the possibility of a successful outcome because consideration of the merits of the case shows that a procedurally fair hearing would not have resulted in a different outcome: see Nobarani v Mariconte (2018) 359 ALR 31; [2018] HCA 36 at [39]; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147. However, a denial of procedural fairness where excessive judicial intervention prevents a party from properly conducting his or her case, or involves an egregious departure from the role of a judge, falls into the category of cases discussed in Jorgensen. Such conduct requires that there must be a retrial because such a miscarriage of justice strikes at the validity and acceptability of the trial and its outcome.
50 It follows that the respondents' submission that Mr Gambaro's other grounds of appeal should be decided cannot be accepted, and that the matter must be remitted for a new hearing. That the hearing before the primary judge was interlocutory makes no difference. It is not to the point to say that he could make another application for the same orders. Mr Gambaro has been denied a fair hearing. That is itself a substantial injustice. He must be permitted to have that which has been denied to him.
51 We have now had the benefit of reading the reasons of Reeves J in draft. Despite finding that the conduct of the interlocutory hearing was procedurally unfair, his Honour would withdraw leave to appeal and dismiss the appeal on the basis that there has been no substantial injustice, since Mr Gambaro could make a new application to the Federal Circuit Court for the same relief.
52 We respectfully disagree with his Honour's reasons. First, the legal error identified is a denial of procedural fairness resulting from excessive judicial intervention, and application of the reasoning in Concrete Pty Ltd requires that once such an error is found, the matter must be remitted for rehearing. Second, his Honour has said that an interlocutory judgment is to be distinguished from a final one in this context, but has not explained why, and we are unable to discern any material distinction - in either case, there has been a failure to provide a fair hearing. Third, the denial of a fair hearing is, in itself, a substantial injustice; and, as Gummow ACJ pointed out in Concrete Pty Ltd at [3], a resulting order, if allowed to stand would have adverse consequences for the administration of justice. Fourth, the injustice to Mr Gambaro would be compounded, if as his Honour proposes, the appeal is dismissed and Mr Gambaro is forced to make a new interlocutory application to seek the fair hearing he was denied in the first place. Fifth, even where there is a less serious denial of procedural fairness, an appellant has the benefit of the test from Stead and Nobarani (see [49]); but his Honour's approach paradoxically results in Mr Gambaro's appeal being dismissed in circumstances where he was clearly denied the possibility of a successful outcome. Sixth, a defining characteristic of a court is that it accords procedural fairness, necessitating that a court cannot be authorised to proceed in a manner that does not ensure procedural fairness: see, for example, Nicholas v The Queen (1998) 193 CLR 173 at [74]; Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 at [56]; Kuczborski v The State of Queensland (2014) 254 CLR 51 at [226]. However, the consequence of accepting his Honour's reasoning - that however egregiously an appellant has been treated in an interlocutory application, the appellant cannot obtain relief so long as he or she is able to bring another application to seek the same relief - is inconsistent with this basic conception of the exercise of judicial power.
53 The appeal must be allowed. The order made by the primary judge dismissing Mr Gambaro's interlocutory application must be set aside and an order made that Mr Gambaro's interlocutory application be reheard.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Greenwood and Rangiah.