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1. I have had the benefit of reading the judgments of Elkaim J and Charlesworth J in draft. I agree that the ground of actual bias must be rejected. However, I agree with Charlesworth J that the ground of apprehended bias is made out. I agree with her Honour’s reasons for reaching that conclusion and make the following additional remarks.

2. I acknowledge at the outset that the case would have been a difficult one over which to preside at first instance. Both the appellant and her McKenzie friend were at times argumentative or emotional. Each had English as a second language and each was managing various medical issues throughout the trial. The fact that the McKenzie friend was legally trained armed him with the capacity to participate in the proceedings as a lawyer would and yet he was not formally in that role; the line between affording him a free rein forensically and keeping the proceedings in check must at times have been a difficult one to draw. The course of the evidence was also riddled with complexities. There were lengthy debates about the scope of the pleadings and the admissibility of evidence; defendants were called as witnesses for the plaintiff, blurring the line between evidence-in-chief and cross-examination; witnesses sought to be interposed and the matter went over part-heard multiple times.

3. Those difficult circumstances inform the content of the condition of the primary judge’s judicial power that it be exercised in “the absence of the actuality or the appearance of disqualifying bias”: Isbester v Knox City Council [2015] HCA 20 at [55] (Gageler J); see also [20] (Kiefel CJ, Bell, Keane and Nettle JJ). I have been mindful of that principle in determining the factual question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision her Honour had to make. It is appropriate to attribute the fair-minded observer with a measure of understanding of the increasing frustration the judge must have experienced as the case dragged on.

4. That said, as Charlesworth J has explained, the blame for the extraordinary course this hearing took at first instance cannot be laid exclusively at the feet of the appellant or her McKenzie friend. It is clear from a review of the transcript that several forces were at play. Argumentativeness was most certainly not the exclusive domain of the appellant and her McKenzie friend. The primary judge and the respondents’ counsel were at times similarly disposed. As the number of hearing days ticked over, the dynamics of the trial deteriorated and the growing disproportion of the resources being expended to the interest at stake appears to have become banal.

5. In addition to the matters relied upon by Charlesworth J, the following matters have contributed to my conclusion that the primary judge displayed the appearance of disqualifying bias. In part this is a matter of overall impression, based on my reading of the parts of the transcript specified by the appellant in support of this ground. Apart from expressly deferring to counsel for the respondents in the manner explained by Charlesworth J, there are instances where the primary judge simply appears to have automatically sided with counsel and shown animus towards the appellant or her McKenzie friend.

6. It is difficult to explain that conclusion when it is based on a reading of pages and pages of transcript over many days of hearing. While individual instances might appear trivial, I hope the following three examples drawn from the material relied upon by the appellant make the point.

7. The first comes from the judge’s conduct of the bias application itself (pages 5851-5872 of the transcript). In my respectful opinion, a fair-minded lay observer might reasonably have apprehended a lack of impartiality from the language and tone of the primary judge’s exchanges with the McKenzie friend as he outlined the basis for the application. The transcript gives the clear impression that her Honour was hostile to the McKenzie friend and approached the allegation of bias with a measure of disdain.

8. One of the submissions made in support of the bias application was that the primary judge had permitted counsel for the respondents to “take over the control of the proceedings”. By way of example, the McKenzie friend contended that counsel had taken numerous objections to the appellant’s evidence-in-chief, which the judge had upheld, only to have the evidence admitted during his cross-examination. He submitted that, in the result, the appellant had not been allowed to give full evidence. The point may not have had great force; regrettably, counsel frequently cross-examine in material to which they have previously objected. The point is the manner in which the primary judge responded. Her Honour started by asking why the matter could not be addressed in re-examination. The McKenzie friend responded by noting that there had been objections to his re-examination on the basis that his questions did not arise from the cross-examination. The primary judge asked: But did you then point out that those particular issues raised this problem that you’ve now identified?

9. The McKenzie friend responded by conceding that he could not remember, to which the primary judge responded: Okay. So I’m biased because you didn’t ask appropriate questions in re-examination. That’s where this is going apparently.

10. Three observations may be made about that last remark. First, it was clearly sarcastic. Sarcasm is corrosive of the appearance of impartiality. Secondly, it twisted the submission in a manner that was quite unfair. The McKenzie friend frankly acknowledged that he did not recall whether he had dealt with all the relevant points in re-examination. The judge’s remark assumed that was disingenuous and, on that basis, accused the McKenzie friend of blaming her for something that was his fault. Thirdly, in the course of that exchange, the primary judge overlooked the real argument that was being made. Whether or not that argument had merit is beside the point. A fair-minded lay observer might reasonably apprehend her Honour was not engaging with the grounds for the bias application in an impartial way.

11. The second example comes from an exchange concerning the fact that one of the respondents’ witnesses would be unavailable on a morning when his evidence would otherwise have continued (pages 8972-8978). On the strength of that indication by counsel, the McKenzie friend had assumed the judge would not sit that morning and had organised medical appointments for himself. The primary judge’s alleged differential treatment of the respective positions of the two men (not seeking evidence of the unavailability of the lawyer but demanding evidence of the unavailability of the McKenzie friend) is the subject of ground of appeal [5] addressed by Charlesworth J below.

12. My point here is a different one, emerging from the same extract of transcript. The primary judge was critical of the McKenzie friend for having assumed Court would not sit the day the witness was unavailable. In the course of that exchange, her Honour stated (regarding the witness) that she had taken counsel’s word that there were “things that needed to be done”, adding that she thought there was “some sort of family commitment aspect”. The appellant interrupted, apparently speaking directly to counsel, and said “I have heard what you have said and it’s a conference” (in other words, a work commitment, not a family commitment). After the next adjournment, the primary judge asked the McKenzie friend to pass on to the appellant (who was evidently not yet back in the courtroom) “that (a) eavesdropping; and (b) starting to produce the results of that eavesdropping in court are simply completely unacceptable.”

13. Counsel for the respondent then clarified that the reason for the absence from Court was indeed a “personal professional commitment”, as the appellant had in effect stated during her interruption. The primary judge accepted that she had misunderstood but repeated her rebuke of the appellant for seeking to “tell such stories in Court”. Following a further adjournment, the McKenzie friend explained that the appellant had not been eavesdropping. He reported her account that the statement that the witness had to attend a conference was made when the witness was sitting in the witness box speaking loudly to his own counsel, and that was how she had heard the remark. Counsel did not contradict that account. However, not yet ready to abandon scepticism, the primary judge nonetheless rebuked the appellant again, saying “Ms Gindy, if that was said in the Court from the witness box to somewhere else (scil: someone else) then obviously it would be on the transcript and you could have pointed that out”. The McKenzie friend then explained that the remark was made when the judge was not on the bench, meaning it would not be recorded on the transcript. At that point, counsel for the respondents rose to note that time was “running away”, reminding the judge that she was “here to hear evidence”. The judge responded: I accept that, Mr Walsh. It did seem to me appropriate to make the point to Ms Gindy about who was or was not misrepresenting anything”.

14. So far as the transcript reveals, Ms Gindy had not accused anyone of misrepresenting anything. She had simply corrected the judge’s misunderstanding that the witness’s scheduled absence later that week was for a family commitment. The only accusations during that exchange were those made by the primary judge who, having no basis for doing so, accused Ms Gindy of eavesdropping and telling stories and unfairly rebuked her for not pointing to a non-existent piece of transcript. When the true position was made clear, instead of apologising or at least accepting responsibility for the misunderstanding, the judge took the opportunity to have the last word, still maintaining the suggestion that it was Ms Gindy who had done something wrong. She had not.

15. The third example arises from the second and is simply a point about differential treatment. Charlesworth J has dealt below with the time when the appellant left the courtroom. As set out in her Honour’s judgment, that followed an exchange in which the primary judge took it upon herself to require the McKenzie friend to apologise to counsel for saying that counsel had “reconstructed something”. It is difficult to tell from the transcript whether the McKenzie friend’s remark was an accusation of deliberate dishonesty; it does not read that way. My point is that the primary judge was quick to seize on a perceived criticism of counsel, and to require an apology for his benefit. However, two months later, the primary judge herself made serious accusations against Ms Gindy which proved to be unfounded but those accusations were allowed to pass without Ms Gindy being afforded the same courtesy.

16. For those reasons in addition to the reasons stated by Charlesworth J, I agree with the orders proposed by her Honour. ELKAIM J:

17. This appeal is concerned with two judgments: Gindy v Capital Lawyers Pty Ltd (No 1) [2021] ACTSC 303 and Gindy v Capital Lawyers Pty Ltd (No 2) [2021] ACTSC 304. For present purposes they will be referred to as the bias judgment and the liability judgment respectively.

18. The bias judgment arose from an application by the appellant that the primary judge should have abandoned the hearing because she had displayed actual and/or apprehended bias against the appellant. Her Honour refused the application on 12 July 2018. The reasons were given on 17 December 2021.

19. The liability judgment was delivered on 17 November 2021. Judgment was entered for the respondents. Her Honour gave very long reasons (738 pages) following a very long trial (88 days over two years) and then a very long period elapsed during which the decision was reserved (almost three years).

20. The explanation for this triumvirate of lengthy occurrences seems to have arisen, at least in significant part, by the approach taken to the litigation by the plaintiff. Her Honour had allowed the plaintiff’s husband, Mr Elmaraazey, to act as a McKenzie friend to the plaintiff. Mr Elmaraazey had some legal training and her Honour no doubt thought his involvement would assist the plaintiff, and the Court, in dealing with the proceedings. Her Honour observed at [14] in the liability judgment: Ms Gindy was, strictly speaking, unrepresented, but her case (including, apparently, the drafting of the pleadings and, certainly, the preparation of the voluminous submissions) was, in effect, conducted on her behalf by her husband, Mamdouh Elmaraazey, as her “McKenzie friend”, pursuant to orders made in September 2016, some months before the hearing of her claim began.

21. Her Honour then continued, from [16]: 16. Mr Elmaraazey’s legal training, and Ms Gindy’s relative lack of legal knowledge and her volatility, meant that there were some benefits in having Mr Elmaraazey assisting Ms Gindy in conducting the case. However, there were also disadvantages. 17. More material about the plaintiff, and about the McKenzie friend, his role in the trial, and his role in any further proceedings in this court, is at Appendix A.

22. In Appendix A her Honour listed the disadvantages arising from Mr Elmaraazey’s involvement in the proceedings. Commencing at [3396], her Honour observed: 3396. Mr Elmaraazey’s questions were often convoluted, and it was common for Ms Gindy to need one of Mr Elmaraazey’s questions repeated several times before she understood it well enough, or could remember it for long enough, to attempt an answer. Mr Elmaraazey, like his wife, spoke good but accented English, but on occasions in court they seemed to have difficulty understanding each other (these may have been strategic misunderstandings, but might have indicated only that the couple did not routinely communicate in English in their private lives). 3397. As well, Mr Elmaraazey at various points seemed to be either unsure of how to extract relevant information effectively (assuming that was his aim) or unsure of what information he sought to extract at all. For instance, in connection with a claim that Mr Crabb had failed to claim some of the expenses incurred by Ms Gindy as a result of her compensable injury, Mr Elmaraazey began a process of showing Mr Crabb (possibly relevant) receipts and asking whether he had claimed them from Comcare. Unsurprisingly, seven years after the event, Mr Crabb could do little better than either “I believe I did” or “I can’t recall doing so”, which as far as I could see proved nothing. Despite the fact that the documents showing the relevant claims were in evidence, it did not seem to have occurred to Mr Elmaraazey that a more useful approach would have been to compare the claim documents with the various receipts, and question Mr Crabb only about the receipted expenses that had not been claimed. 3398. A charitable view of Mr Elmaraazey’s approach would have been that he simply didn’t understand how to extract, or rely on, evidence to prove a case; a less charitable view was that this approach reflected a combination of intentional time-wasting and a need to be the centre of attention. After I directed him to pursue the possibility that Mr Crabb had failed to claim recoverable expenses by identifying the failures and questioning Mr Crabb only about them, Mr Elmaraazey did not refer to this issue again. 3399. Mr Elmaraazey made extremely long written submissions, few of which were helpful either to Ms Gindy’s case or to me in preparing this judgment. Some of them were more or less incoherent, while others were positively misleading.

23. Then, from [3405], her Honour concluded: 3405. There is no doubt in my mind that Mr Elmaraazey’s participation as the McKenzie friend substantially extended the hearing (and the time required for preparation of the judgment). On the other hand, it is quite likely that, if Ms Gindy had been required to conduct the case on her own (with or without Mr Elmaraazey sitting beside her), she would not have been able to put her case in a way that she (or perhaps more significantly an independent observer) could have accepted as involving a fair hearing of her claims. That would have been particularly unfortunate given that her claims were made against defendants who were members of the local legal profession. 3406. On balance, therefore, it seems to me that permitting Mr Elmaraazey to act not only as a McKenzie friend, but as perhaps the most extreme form of such a supporter, was the only feasible way of giving Ms Gindy a genuine opportunity to put her claims before the court and avoiding a perception that the legal system had closed ranks to protect its own. On the other hand, it is unfortunate that permitting Mr Elmaraazey that involvement was not accompanied by a serious attempt at case management by the Supreme Court well before Ms Gindy was even allocated a trial date. 3407. However, I express the view, for what it’s worth, that Mr Elmaraazey should not again be permitted to conduct a case in the ACT Supreme Court, on his own behalf or in any other capacity, without being subjected to the most extreme form of case management.

24. Although her Honour acknowledged the benefit to the appellant of having a McKenzie friend, her Honour clearly felt that Mr Elmaraazey’s involvement had ultimately been counter-productive and largely the reason for the length of the trial and the length of time needed to produce a reasoned judgment.

25. Notwithstanding the observations made by the primary judge, this Court gave Mr Elmaraazey leave to act as a McKenzie friend on the appeal. The leave was attended with a specific condition that it would be withdrawn if his involvement was causing undue delay in the running of the appeal. The Court had little choice but to give Mr Elmaraazey the leave. The appellant was entitled to have her appeal heard. Without any disrespect to her, she would simply have been incapable of pursuing the appeal without assistance. No reason to withdraw the leave arose during the appeal hearing.

26. Mr Elmaraazey’s involvement in the appeal was unquestionably of benefit to the appellant. The matter is not simple and his assistance to the appellant was substantial. Nevertheless, there were aspects of the presentation of the appeal that did not assist its efficient progress. Mr Elmaraazey certainly raised a number of complaints which had a prima facie attraction, but lacked the evidence, or at least his highlighting of the evidence, to substantiate the complaints. The grounds of appeal, and the submissions in support, are all examples of a meandering and often irrelevant approach to what could and should have been an attempt to identify and substantiate errors allegedly made by the primary judge. As will be seen below, on some occasions his submissions were simply confused and untenable.

Background to the litigation

27. The appellant had retained the first respondent in respect of three distinct matters. They were summarised by her Honour at the commencement of her reasons: Laila Gindy took action against her former solicitors, Capital Lawyers Pty Ltd and two of their principals, Paul Crabb and David Chen, seeking damages for negligence (and various other failings) in their performance of duties owed to her under several retainers. Those retainers related to three different matters (dealt with in this judgment, although not in the pleadings, by reference to the chronology of the defendants’ involvement with Ms Gindy’s legal matters): (a) Ms Gindy, who had been employed by a Commonwealth agency known as Questacon, was successful in a compensation claim against the agency’s workers’ compensation insurer, Comcare. That claim had been conducted on her behalf by her husband, then practising as a solicitor. In July or August 2010, after Mr Elmaraazey ceased to practise, Ms Gindy engaged Capital Lawyers to act for her in various matters arising from the AAT determination that she was entitled to compensation (the Comcare matter). (b) In September 2010, Ms Gindy suffered personal injury in a motor vehicle accident, and engaged Capital Lawyers to act for her in proceedings against the other driver for damages in respect of that injury (the MVA matter). (c) When Ms Gindy fell into arrears in her mortgage repayments in respect of the family home, the lender threatened to foreclose on the loan and sell the property to meet the outstanding amounts; in February or March 2011, Ms Gindy engaged Capital Lawyers to advise her in connection with the threat of foreclosure (the foreclosure matter).

28. The litigation was summarised by the primary judge from [5]: 5. The Amended Statement of Claim relied on breach of contract and negligence. 6. It also pleaded breach of trust, breach of fiduciary duty, negligent misstatement, misrepresentation, unconscionable conduct, and misleading or deceptive conduct (at [27] below). 7. In each of the three complaints, the Amended Statement of Claim pleaded: (a) a retainer between Ms Gindy and two of the defendants, including a term that “the defendants would use all reasonable care, skill and diligence in and about the performance of the retainer; (b) that the defendants owed Ms Gindy a duty of care requiring them to use all reasonable care, skill and diligence in the provision of professional services to her; (c) that the content of the duty of care was affected by Ms Gindy’s disability, which meant that she was not in a position to properly chase her entitlements; (d) that the defendants had failed to use all reasonable care, skill and diligence as required; (e) and that Ms Gindy suffered loss and damage. 8. In each of the three complaints, the Amended Statement of Claim also set out other specific terms of the relevant retainer, and claimed breaches and loss and damage. 9. Despite Ms Gindy’s occasional outbursts claiming fraud by the defendants, neither the pleadings nor the evidence raised any real possibility that the asserted failures by the defendants were other than negligent.

29. There are more than 100 grounds of appeal (subject to interpretation of the numbering system). The first 49 grounds attack the primary judge’s impartiality, usually combined with assertions of procedural unfairness and effectively collusion with senior counsel for the respondents. The balance of the grounds is an assortment of often overlapping complaints relating to the Comcare matter, the MVA matter and the foreclosure matter.

30. The degree of overlapping and confusion of principle makes it impractical, if not impossible, to deal with each ground separately. It was accepted by the parties that if the appeal succeeded on any ground in the bias or procedural unfairness category, the matter should be remitted for re-hearing without further consideration of the remaining categories. These reasons will deal with the bias and denial of procedural fairness grounds in one category.

Bias and procedural unfairness

31. The appellant’s attack encompassed both the bias judgment and the liability judgment. In respect of bias, the appellant said there had been both actual and apprehended bias. The test for apprehended bias was re-stated by the High Court in Charisteas v Charisteas [2021] HCA 29; 393 ALR 389, from [11]: 11 Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed. 12 As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice". 13 Ordinary judicial practice, or what might be described in this context as the most basic of judicial practice, was relevantly and clearly stated by Gibbs CJ and Mason J in Re JRL; Ex parte CJL in 1986 by adopting what was said by McInerney J in R v Magistrates' Court at Lilydale; Ex parte Ciccone in 1972: "The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined." 14 In this matter, what is said might have led the trial judge to decide the case other than on its legal and factual merits was identified. It comprised the various communications between the trial judge and the wife's barrister "otherwise than in the presence of or with the previous knowledge and consent of" the other parties to the litigation. Indeed, given the timing and frequency of the communications between the trial judge and the wife's barrister, it cannot be imagined that the other parties to the litigation would have given informed consent to the communications even if consent had been sought, and it was not. The communications should not have taken place. There were no exceptional circumstances. 15 A fair-minded lay observer, understanding that ordinary and most basic of judicial practice, would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. The trial judge's impartiality might have been compromised by something said in the course of the communications with the wife's barrister, or by some aspect of the personal relationship exemplified by the communications. Accordingly, there is a logical and direct connection between the communications and the feared departure from the trial judge deciding the case on its merits. 16 In their reasons the majority in the Full Court recognised the principle of judicial practice. Their Honours accepted that once a trial has commenced, private communication between a judge and counsel for one of the parties, without the knowledge and consent of the other parties, is so obvious a departure from the norms of judicial and professional conduct that it will usually be sufficient to establish the first limb in Ebner v Official Trustee in Bankruptcy. Nothing that was said in the passage in Magistrates' Court at Lilydale extracted above, in guidelines or in a leading text on judicial ethics limits the period necessary to avoid communication to after the commencement of the trial. In any event, whilst communication here was halted while evidence was taken, it was resumed before final submissions and continued over the lengthy period of 17 months when the written reasons for the judgment on the question of recusal and the judgment on the settlement of property were reserved. 17 Focusing on this latter period, the majority in the Full Court reasoned that the trial judge and the wife's barrister were aware of some of their obligations, by not communicating during the course of the trial, and the trial judge may be taken to have failed to appreciate that the same strictness applied at other times. According to the majority, the hypothetical observer would understand that the trial judge mistakenly held such a view but would not consider his lack of disclosure to be sinister. 18 This reasoning is erroneous. The apprehension of bias principle is so important to perceptions of independence and impartiality "that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined" (emphasis added). No prediction by the court is involved in deciding whether a judge might not bring an impartial mind to bear. No question as to the understanding or motivation of the particular judge arises. (Citations omitted).

32. The test for actual bias sets a higher bar. The appellant has a significant hill to climb. This is evident from the decision of the Full Court of the Federal Court of Australia in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun). Wilcox J, at page 123, referred to three requirements: First, the fact that a decision-maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias. There will be actual bias only when preliminary views are incapable of alteration. Second, any particular matter relied on as showing actual bias must be considered in the context of the whole hearing. Third, it is not enough that the decision-maker displayed irritation or impatience or even used sarcasm.

33. By way of observation at this stage, it is not surprising that in a case lasting 88 days infected with obfuscation and irrelevance injected by the appellant and Mr Elmaraazey, that the primary judge would not be at least irritated from time to time. It is a credit to the primary judge that she was able to maintain her composure and willingness to listen to the plaintiff’s case.

34. It is correct to say that some of the comments made by the primary judge seemed, at least at first sight, to be inappropriate and unfair to Mr Elmaraazey and the appellant. Mr Elmaraazey said that on “hundreds” of occasions the primary judge removed him from the Court. For example, at transcript page 6309 the following exchange took place: HER HONOUR: Mr Elmaraazey are you going to be quiet, or are you going to leave the room? MR ELMARAAZEY: (indistinct)?... Leave the room.

35. When this exchange occurred the appellant was in re-examination and one would have expected that Mr Elmaraazey would have been concerned to put appropriate questions to her.

36. The above quoted exchange is not, however, to be looked at in isolation. An examination of the transcript of the hearing immediately prior to the exchange indicates continuing interruptions by Mr Elmaraazey concluding in her request to him: Mr Elmaraazey, please be quiet.

37. He ignored the request prompting the above quoted exchange.

38. Later on the same day, her Honour explained why she had asked him to leave the room: Now I will simply say this, at this stage, I asked Mr Elmaraazey to leave because he would not be quiet while Mr Walsh was speaking. (Transcript, page 6316.21).

39. Returning to Sun, North J at page 134, said this: Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: Wannakuwattewa v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, North J, No va 45111994, 24 June 1996) and Singh v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Lockhart J, No 902196, 18 October 1996). The courts have rarely found actual bias to exist. That is principally because, at common law, a reasonable apprehension of bias suffices to disqualify a judicial officer. Where actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias. Another reason is that actual bias is usually difficult to prove. Rarely will the judicial officer expressly reveal actual bias. However, several New Zealand licensing cases do provide some examples of express actual bias. For instance, in Isitt v Quill (1893) 11 NZLR 224, the decision of a Licensing a Committee to refuse to renew certain licences was overturned because the Committee members had made pledges in their election campaign to refuse all licences. See also the judgment of Stout CJ in Re O'Driscoll; Ex parte Frethey (1902) 21 NZLR 317. Where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances.

40. In relation to procedural fairness, Sackville AJA said the following in Amaca Pty Ltd v Doughan [2011] NSWCA 169 at 62: The general principle is that a party is entitled to a fair trial at which he or she has the opportunity to put the case to the court: Jones v National Coal Board [1957] 2 QB 55, at 67, approved in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, at 145. There will be a denial of a fair trial if a party is deprived of an opportunity to deal with a material issue that is resolved adversely to that party. This is a factual inquiry, which requires the party complaining to demonstrate that unfairness has occurred in the particular circumstances of the case: Seltsam v Ghaleb ([2005] NSWCA 208; 3 DDCR 1), at [160], per Basten JA. The bias judgment st

41. On 5 July 2018 (the 51 day of the hearing) the primary judge commenced dealing with an application by the appellant that her Honour should recuse herself from the trial. Somehow, but probably because of the already established manner in which the appellant’s case was being presented, the application went over four days.

42. Commencing at [4], the primary judge set out the background to the bias application. In essence she referred to a number of insinuations that had emanated from the plaintiff or Mr Elmaraazey to the effect that she had displayed a bias against them. Her Honour, at [6], refers to an exchange between her and the plaintiff and Mr Elmaraazey. It is a measure of her Honour’s patience that she dealt with the conversation in a polite and measured manner.

43. Her Honour, after the above-mentioned conversation, allowed the plaintiff until the following day to marshal details to ground any application to recuse herself. Her Honour, at [9], recorded the allegations as follows: On Day 52, Mr Elmaraazey in oral submissions identified the following matters that Ms Gindy said indicated bias on my part: (a) That Ms Gindy believed I had pre-judged her case before hearing the evidence, because I had referred on a couple of occasions to the apparent belief of Ms Gindy and Mr Elmaraazey that there was a conspiracy against both of them (the conspiracy theory claim). (b) That Ms Gindy suspected that there had been conversations between me and counsel for the defendants outside the courtroom (the private conversations claim). (c) That on a number of occasions I had made comments to the effect that counsel “will know better than I do” about a procedural matter that had arisen, and that accordingly, Ms Gindy believed, I would accept anything that counsel says or writes (the deference to counsel claim). (d) That on a number of occasions counsel had objected to having his cross-examination interrupted by Mr Elmaraazey’s objections, and Ms Gindy wondered whether there is a law against interrupting cross-examination (the cross-examination claim). (e) That counsel had taken over control of the proceedings: Ms Gindy claimed in particular that throughout her evidence-in-chief, most, if not all, of counsel’s objections on relevance grounds (whether to questions or to the tendering of evidence), related to matters that then turned out to be relevant in her cross-examination (the relevance objections claim). (f) That during cross-examination, counsel asked a question referring to Ms Gindy’s “agoraphobia”, a word which Ms Gindy did not understand (the agoraphobia claim). Ms Gindy’s complaint seemed to be: (i) that I did not ask counsel why he had mentioned this word; (ii) that therefore I must have agreed with counsel that Ms Gindy had agoraphobia; (iii) that therefore I must have prejudged her.

44. Then, at [20] her Honour observed: 20. In the absence of relevant submissions on behalf of Ms Gindy I note: (a) first that there was no attempt made on behalf of Ms Gindy to identify what might have led me to decide Ms Gindy’s case “other than on its legal and factual merits”, to identify any “interest” that I might have in the litigation, or to refer to what “a fair-minded lay observer” might have believed about my attitude to the matter; and (b) secondly that the grounds identified suggested that Ms Gindy’s concern was that I would be inclined to decide her case not on its real merits but on the basis of pre-conceptions that I had about her, about Mr Elmaraazey, about counsel, or about the merits of her case. 21. Accordingly, I considered Ms Gindy’s application to be a claim of actual bias (while being satisfied that a claim of apprehended bias could not be made out).

45. Her Honour then set out what she understood to be the grounds for the bias claim. They included a “conspiracy theory” claim, a “private conversations” claim, a “deference to counsel” claim, a “cross-examination” claim and a “relevance objections” claim.

46. Her Honour dealt with each claim and, for sound reasons, rejected each one. Some of the claims were bizarre. For example, the claim concerning private discussions with counsel was based on a confused interpretation of an exchange with counsel as set out at [29] of the bias judgment. Her Honour accepted that the appellant, as a self-represented litigant, might have interpreted the conversation to refer to an out-of-court discussion, but that did not apply to Mr Elmaraazey, whose legal background should have precluded his submissions.

47. It is noteworthy that her Honour, at [35], specifically referred to a chance meeting with counsel: I note that in discussion of this claim in the courtroom, counsel put on the record, and I confirmed his recollection, that he and I had encountered each other briefly at the ACT Bench and Bar dinner in September 2017, at which point we had greeted each other, counsel had pointed out immediately that we could not talk to each other, and we had each, separately, turned to talk to other guests.

48. The submissions made on the cross-examination claim by Mr Elmaraazey border on the bizarre. Her Honour, at [49], explained: I am satisfied that counsel’s attempts to maintain control of his cross-examination, and my attempts to control Mr Elmaraazey’s interruptions of counsel’s cross-examination, were far from excessive; counsel might even have felt that at times my attempts at control were inadequate. I am satisfied that my attempts to prevent Mr Elmaraazey subverting the proper operation of cross-examination were neither produced by, nor evidence of, actual bias against Ms Gindy.

49. The discussion regarding this claim also highlights the difficulty that faced her Honour in dealing with objections, comments and submissions coming from both the appellant and Mr Elmaraazey.

50. The grounds of appeal on this topic, and generally, often overlap and are sometimes difficult to understand. Nevertheless, it is apparent that the appellant is most aggrieved by the conduct of senior counsel for the respondents, by a perceived hostility on the part of the primary judge towards the appellant and Mr Elmaraazey and by certain actions unilaterally taken by the trial judge without reference to the appellant. An example of the latter is the amendment of the transcript without reference to the parties.

51. Because of the overlap and repetition, it is not proposed to deal with the grounds seriatim but rather to highlight certain grounds with a view to showing that the overall allegation of bias (including apprehended bias) or procedural unfairness has no foundation.

52. Ground 16A says that “[t]he trial judge erred when she refused to disqualify herself from hearing the trial on 12 July 2018”. This is presumably a reference to the bias judgment. Ground 17 then asserts that “the trial judge exhibited a lack of impartiality in conducting the trial, by reason of grounds 1 – 16A above.” The difficulty is that some of the assertions in Grounds 1–16A relate to matters that occurred after the bias judgment. For example, Ground 9A asserts that the trial judge amended the transcript after the conclusion of the hearing without the consent or contribution of the appellant.

53. The grounds of appeal in respect of bias and procedural unfairness have been put forward by reference to passages in the transcript in which the primary judge has ‘behaved’ in a manner said to establish the allegation. Sometimes large swathes of transcript are relied upon in this regard.

54. Thus, for example, to establish Ground 2, reference is made to pages 8521 to 8526 and then, somewhat chronologically distorted, to pages 8380 to 8386. Notably page 8521 (on th 21 September 2018) was the 68 day of the hearing.

55. Ground 2, in common with Grounds 3, 4 and 5, and 24 to 28 attack matters that arose in the course of the evidence of a Mr Paul Crabb. It is fundamental to the appreciation of these grounds to know that Mr Crabb was one of the defendants to the action who was, unusually, called as a witness by the appellant. Despite this, her Honour allowed Mr Elmaraazey to cross-examine Mr Crabb pursuant to s 38 of the Evidence Act 2011 (ACT).

56. The interaction between Mr Crabb and Mr Walsh is far from surprising when one appreciates that Mr Crabb was Mr Walsh’s client. There is an air about the grounds which suggests that Mr Walsh should not have had anything to do with Mr Crabb, simply because Mr Crabb had been called as a witness by the plaintiff.

57. It is perhaps even surprising that her Honour allowed Mr Elmaraazey to cross-examine Mr Crabb. Mr Elmaraazey would have known, in the context of the pleadings (in particular denials of wrongdoing by Mr Crabb), that his evidence might not be favourable to the plaintiff. Nevertheless he was called as a witness by the plaintiff and leave was given to cross-examine him. This was of considerable benefit to the appellant.

58. Further, where a witness is actually one of the opposing parties, it would be most unusual to suggest that counsel could be denied access to his own client.

59. Dealing specifically with Ground 2, the complaint seems to be that her Honour required Mr Elmaraazey to first of all point out the unfavourable evidence given by Mr Crabb before allowing him to cross-examine Mr Crabb.

60. Section 38 requires the leave of the Court before cross-examination of one’s own witness. In order to gain leave, it must follow that the basis for the leave must be put before the judge. It would be ludicrous to suggest that the application would be made in the absence of opposing counsel.

61. A similarly odd submission was made concerning the primary judge hearing the application for recusal. It was suggested that the application should have been heard by a different judge. The basis for this suggestion came from the decision of the Full Court of the Federal Court in GetSwift Limited v Webb [2021] FCAFC 26; 283 FCR 328 (Getswift) where the Court commented, at [4]: However, this appeal shows that it may be more prudent for an independent mind (or minds) to consider disqualification applications on some occasions.

62. It is not clear when “some occasions” might arise. However, in circumstances such as the present, where an application is made to a judge that the judge should step aside from the case then it is common practice that the application would be decided, at least in the first instance, by the trial judge.

63. Another example of the exaggerated nature of the grounds is Ground 15, which states: The trial judge failed to disclose that she engages, during the proceedings, in regular social occasions with Mr Mark Walsh.

64. There were only two suggestions of any social engagement between the judge and the barrister. The first concerned a meeting at a formal dinner. This passage from the already quoted [35] of the bias judgment is repeated: I note that in discussion of this claim in the courtroom, counsel put on the record, and I confirmed his recollection, that he and I had encountered each other briefly at the ACT Bench and Bar dinner in September 2017, at which point we had greeted each other, counsel had pointed out immediately that we could not talk to each other, and we had each, separately, turned to talk to other guests.

65. Mr Walsh had put the encounter on the record at Transcript page 5864.12: MR WALSH: I say also, your Honour, and in this sense as an officer of the court, I have not only a duty of candour, but I’m conscious that counsel should never put oneself into evidence, but in the circumstances I feel obliged to say that I have seen your Honour at the bench and bar dinner last year when Kiefel J (sic) was the guest speaker and that your Honour and I said good evening to each other, but nothing further other than I recall saying, “I cannot talk” to your Honour, and I’ve seen your Honour at other court occasions but on no other occasion have I had any contact whatsoever with your Honour in any form of communication other than within the precincts of the courtroom.

66. Following this statement by Mr Walsh, her Honour asked Mr Elmaraazey if he wished to respond to Mr Walsh’s comments. He replied, “No responses”.

67. The appellant, as a self-represented litigant, may not have had the wisdom or experience to respond. But Mr Elmaraazey certainly did. Despite his lack of response, he now wishes take a point which he eschewed when he was given the opportunity.

68. The second encounter also arose from a dinner, this time an unknowing encounter with the barrister’s sister. Her Honour revealed the meeting to the parties in the course of the hearing. Her Honour said: All right. Okay. Let me start with one thing which I want to put on the record, but I don’t intend to do anything about it, which is that last week I was at a judges’ conference in Sydney. As part of the conference I went to dinner at a particular judge’s house and it was only some days later that I discovered that our hostess on the night, the judge’s wife, was Mr Walsh’s sister. Now, I put that on the record because I don’t want Mr Walsh knowing that he’s the only one who knows and feeling uncomfortable about that. I do not think that it has any impact at all on the progress of this matter, and as I said, I didn’t even discover that until some days after. Certainly didn’t talk about the case in the course of the dinner. So that is now on the record. Next. As you say, Mr Walsh, we should do something about the subpoenas. (Transcript page 2725.12)

69. Mr Elmaraazey then sought permission to “say something”. He did not however say anything about her Honour’s disclosure. Instead, he picked up on the subject of subpoenas which had just been raised by her Honour. Clearly, Mr Elmaraazey, and the appellant, saw no vice in what her Honour had just said about the dinner. Yet again he wishes to make much of which he did nothing at the appropriate time.

70. Perhaps more remarkable was Mr Elmaraazey’s assertion, in the course of the appeal hearing, that Mr Walsh had been present at the dinner at his sister’s residence. Returning to the passage quoted from Transcript page 2725.12, Mr Elmaraazey said the words: “[c]ertainly didn’t talk about the case in the course of the dinner”, indicated that Mr Walsh had actually been at the dinner. This interpretation cannot on any basis be strained from the words used by her Honour in her disclosure about the dinner.

71. The two incidents just described are a long distance from the assertion that the trial judge engaged “in regular social occasions with Mr Mark Walsh”. What the transcripts do indicate is that her Honour, on each occasion, was prepared to hear Mr Elmaraazey about the encounters and to offer him a fair opportunity to make submissions.

72. The balance of the allegations concerning senior counsel fit into the same fold, that of an airy allegation which lacked balance when pen was put to paper.

73. Another example of a ground of appeal lacking merit related to Ground 16: The trial judge deferred her judicial position as a judge to Mr Mark Walsh and relied on Mr Mark Walsh’s advice in conducting the trial.

74. In support of his submissions, Mr Elmaraazey relied upon the following passage in the bias judgment: 36. Ms Gindy was correct that on a number of occasions I had made comments to the effect that counsel “will know better than I do” about particular procedural matters. 37. Counsel had significant experience in substantial civil proceedings, in particular those involving claims of professional negligence; this was an area in which I had relatively limited experience. Furthermore, counsel’s submissions about procedural matters, where necessary, were supported with references to relevant legislation and authorities. 38. Mr Elmaraazey also frequently made submissions about the state of the law, whether procedural or substantive. Many of his submissions were more or less counterintuitive, but despite my best efforts, he rarely responded to invitations to substantiate his submissions, and few if any of his rare responses were convincing. 39. In those circumstances, it was to be expected that, where necessary, I would tend to rely on counsel’s advice on procedural matters. On the other hand, I note that there were a number of occasions during the proceedings on which, despite counsel’s submissions but because of the unusual nature and conduct of Ms Gindy’s proceedings and the need to ensure a fair hearing for both parties, I departed from what, as counsel made clear, would have been the conventional approach in a more conventionally-conducted hearing. 40. I reject the proposition that accepting soundly-based and apparently sensible procedural submissions from counsel with particular expertise in the relevant area is an indication that I would “accept anything that counsel says or writes”.

75. Mr Elmaraazey submitted that it was wrong of the judge to state that professional negligence was an area in which she had “relatively limited experience”. He said it was wrong of her to have drawn on the experience of counsel and that, simply by doing so, the trial judge exhibited a bias in favour of the respondents.

76. Judges will frequently seek assistance from counsel on matters in which it might be expected the counsel can provide useful information. The response from counsel to such a request is at the very essence of a barrister’s duty to the court. When counsel is opposed by a self-represented litigant, the duty of counsel extends to assisting the litigant where appropriate. It also extends to assisting the Court, in particular when called upon by the judge.

77. If a judge seeks assistance, that is a recognition by the judge that there is a matter upon which the judge would benefit from some input from counsel. It is not an admission of incompetence, and certainly not of bias, on the part of the judge.

78. It is to be noted that, in this case, the appellant and Mr Elmaraazey actually requested senior counsel for the respondents to open the case on their behalf at the commencement of the hearing. He obliged and provided an accurate history of the case [Transcript pages 2.5–3.5].

79. Her Honour recognised counsel’s assistance, at [3395]: I note, also, the assistance regularly offered by counsel (in the best traditions of the Bar) to Mr Elmaraazey, both in terms of procedural advice and help in formulating questions, and record the Court’s gratitude.

80. Yet another example of a ground lacking evidential substantiation is Ground 11: The trial judge exhibited a hostile attitude towards the appellant and Mr Elmaraazey, which in the end caused the appellant to collapse in the courtroom, carried by an ambulance and hospitalised.

81. A number of pages in the transcript (7025–7046) were said to substantiate this ground. They do not do so. They do however illustrate the argumentative approach taken by Mr Elmaraazey. Far more helpful are her Honour’s comments at [3379]: As well, Ms Gindy frequently became angry, often at lawyers acting for, or witnesses called by, the defendants, sometimes at me, and also from time to time at her husband, Mr Elmaraazey (the “McKenzie friend”); on many occasions the court had to be adjourned while court staff sought to calm Ms Gindy down. On more than one occasion court staff formed the view that help was needed, and an ambulance attended. On one occasion Ms Gindy was taken from the court precincts by ambulance, and remained in hospital during some of the following day (when the hearing had been listed to continue).

82. Other examples in the transcript include this expression of frustration by her Honour (at transcript page 8379.19): HER HONOUR: I am refusing that second application. As to the first application to extend the time to consider the transcript references, I have spent a lot of time in the last however many days trying to get you, Mr Elmaraazey, to focus on the important points in your case, trying to get you to turn up to court organised, with the right information, so that you can take the rest of us very quickly to the matters you want to raise and to why you want to raise them. Nothing has been successful. We have in fairness moved slightly faster than we did at the end of the last couple of days of the last sitting period, but we have moved nowhere near fast enough. It has been apparent to all of us - all the rest of us, that you are not going to get through to the end. It has been apparent, accordingly, that you were going to miss out inevitably on some things that may in fact be important. I have said more times than I care to think about that you should try to identify the really important things first, and come back to the other things if you have time. You have completely ignored that advice, I am not proposing to let you take any more time on this. We will resume at 2.30.

83. The continuing interruptions by the appellant can be seen in the transcript from page 8518. Here are some excerpts: MR WALSH: Your Honour, in answer to the call, I can’t compete with Ms Gindy. (Line 19) … HER HONOUR: Mr Walsh is saying he is not prepared to compete with you in the courtroom. You’re making a noise; he’s trying to talk to me. (Line 28)

84. At Transcript page 8520 the appellant apologises: MS GINDY: I’m sorry, your honour, I am sorry. I am terribly sorry. Yes, yes.

85. The abject apology is somewhat at odds with the complaints made in this Court of effective bullying and harassment from the primary judge and counsel.

86. It is not surprising that her Honour became frustrated. As Meagher JA said in Galea v Galea (1990) 19 NSWLR 263 at 283: In this matter I have had the advantage of reading indraft the reasons of Kirby A-CJ. I agree with them, and with the orders he proposes. I merely wish to add some brief observations on the second ground of appeal, viz, that Powell J by his conduct of the case exhibited a degree of hostility to the appellant such as to disqualify him on the ground of apprehended bias. I found it hard to take this submission seriously. In a series of cases the High Court of Australia has laid it down that a judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he or she might not ring an impartial and unprejudiced mind to the resolution of the questions involved in it: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Association (1983) 151 CLR 288 and Vakauta v Kelly (1989) 63 ALJR 610; 87 ALR 633; (1989) Aust Torts Reports ¶80-277. This has led to appellants, in cases otherwise devoid of merits, seizing on any acerbic utterance made by the trial judge and urging that utterance as a ground for appeal on the basis of bias. This is a tendency which is not justified by these authorities and must be resisted. Where, as in the present case, a judge is confronted by a witness who is both deceitful and evasive, there is no principle that he is not at liberty to express his measured displeasure at being trifled with. There is no principle that he must endure the ordeal with ladylike serenity. Indeed in Vakauta (at 611; 635; 68, 939) Brennan, Deane and Gaudron JJ state that to maintain a total silence in such situations “would not represent a model to be emulated”. More than that, a timely intervention serves the interest of the party leading such evidence, as it provides him with a chance to mend the damage already inflicted. In my view, if a reasonable disinterested bystander had heard the passage at arms complained of in the present case he would not have reasonably apprehended that the trial judge was prejudiced, he would only have noted that an exceptionally irritating witness had eventually succeeded in irritating the judge. (Emphasis added).

87. Comments about “an exceptionally irritating witness” could no doubt be equally applicable to an exceptionally irritating advocate.

88. Another source of complaint was the length of time (23 days) during which the appellant was under cross-examination. This does seem an extraordinarily extended cross-examination. While counsel could no doubt have shortened the exercise, the question must be viewed in the light of her Honours comments from [3377]: 3377. During the trial, Ms Gindy appeared at times to have trouble concentrating, and generally to be anxious and somewhat emotionally volatile (although of course being a party to a court proceeding is stressful for most people). For a period towards the end of the Comcare retainer (May to October 2012), she was subject to a guardianship order under which the ACT Public Advocate acted on her behalf in relation to legal proceedings (at [785] above). 3378. Some of these observations, especially about Ms Gindy’s mental and emotional state, may seem gratuitous, but (as well as being directly relevant to one aspect of her claim) they relate to matters that had a real impact on the progress of the trial and the ease with which sense could be made of Ms Gindy’s claims. For instance, quite apart from Mr Elmaraazey’s regular and frequent interruptions of Ms Gindy’s cross-examination, even the process of taking Ms Gindy’s evidence in chief was inordinately slow, including because she often seemed to struggle to remember a question long enough to answer it.

89. A ground of appeal which did cause the Court some concern was Ground 14: The trial judge failed to stop Mr Mark Walsh’s instructing solicitor, Mr Gary Weetman, from laughing and smirking at the appellant, on many occasions, during her cross-examination, including those occasions when the counsel of the respondents was waving his hand to the appellant during her cross-examination as a gesture or an indication that she is crazy, which caused the appellant considerable stress, discomfort, loss of concentration, and distraction in giving her evidence and the effective handling of her case.

90. Notwithstanding the suggestion of seemingly offensive conduct occurring on “many occasions”, only one incident was identified in the evidence. This was another example of the exaggeration often found within a ground of appeal. The single example is to be found at Transcript, pages 2957 and 2958: Nothing to do with this matter?---Mr Walsh, what he did in his cross-examination when he said it could be you imagine that he did his hand like this, the (indistinct) I have not to look at him, so I don’t get distracted. I (indistinct) and I said Her Honour thought that I am in trouble looking down but the reason I look down because when he made his hand like this, I said the best option for me is to look down. MR WALSH: I am sorry - - -?---And I answer. It is a gesture that I do use. I will put my hand down?---I must say I didn’t like it. Well, it’s merely an expressive gesture?---No, you’ve done it like this. It’s like someone crazy or imagining and I’ve said I am not imagining. I am not living an illusion. Sorry. I - - -?---And I looked down, so I don’t get distracted with the body language. I reject that, your Honour?---That’s all right. Object; I am not saying not to object. HER HONOUR: Ms Gindy, it is unfortunate - - -?---I’m sorry, your Honour. - - - that you have interpreted it that way. I - - -?---I am sorry.

• • • am absolutely sure that it - - -?---The second one your Honour when Mr Weetman laughed and he laughed. You are not in a position to make – to complain about people laughing in the course of this. All right - - -?---Yes. Don’t worry, your Honour. I think we just put that one aside right now?---Yes, don’t worry. Mr Walsh - - -?---It’s not before this court what complaint I will put. - - - would you care to ask that question again?---My complaint is going to be outside. I am sorry, your Honour. MR WALSH: Pardon? HER HONOUR: Ms Gindy, just please be quiet so that Mr Walsh can - - - MR WALSH: Who is outside, Ms Gindy?---Don’t worry.

91. After some discussion, the respondents did not dispute that there had been laughter in the Court. The fact that a solicitor, quite inappropriately, expressed mirth during cross-examination does not suggest any bias on the part of the judge. But, firstly, the judge made no condemnation of the laughter and secondly, and more importantly, her Honour made this remark to the witness: You are not in a position to make - to complain about people laughing in the course of this. All right?

92. It is also noteworthy that when this incident occurred, Mr Elmaraazey was not in Court. This is presumably the reference to the complaint being made “outside”. A witness under cross-examination is perfectly entitled to react to laughter at her expense.

93. It was pointed out that the incident occurred towards the end of the Court day, noting th that Mr Elmaraazey had left the court at 3:44pm. It was the 26 day of the trial and the frustrations felt by her Honour had presumably already surfaced.

94. It would be a step too far to suggest that her Honour’s words were an expression of bias. But did they give rise to an apprehension of bias? Would the fair-minded observer have concluded that her Honour might decide the case “other than on its legal and factual merits”?

95. The fair-minded lay observer has an understanding of at least “ordinary and most basic of judicial practice”. Her Honour should not have made the comment. But taken to have occurred at the end of the day, well into a lengthy trial, it cannot be said that the fair-minded observer would necessarily have reached any conclusion of bias.

96. Importantly, the fair-minded observer is not a person who enters a court and hears only a few moments of conversation. The observer would also have noticed that cross-examination continued apparently without further comment or complaint, suggesting the witness was not prejudicially affected by the incident. In GetSwift, the Full Court observed, at [33]: It is probably fair to conclude that the hypothetical observer today is more aware of the court processes than, say, a few decades ago. Knowledge about courts has become more accessible through the media, and the courts are more accountable in the conduct of judicial functions. It is also appropriate to conclude that the hypothetical observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment of what might occur in the process confronting a fact-finding judge.

97. Accordingly, while the exchange does not reflect well on the primary judge, it does not reach a level from which a conclusion of apprehended bias might be made.

98. As to the gesturing, this seems to be a case of misinterpretation. The appellant obviously drew a conclusion that it was suggesting that she was “crazy”. Mr Walsh immediately accepted that he had made an “expressive gesture” and her Honour appropriately said to the witness: Ms Gindy, it is unfortunate…that you have interpreted it that way. (Transcript page 2957.42– 2958.1)

99. Her Honour’s comment is sympathetic to the appellant and certainly not suggestive of any bias.

100. Finally, on the question of the gestures, they also form the basis of Ground 12. The transcript references indicate the complaint is made on the same events as are relevant to Ground 14. Why there is a need for a separate ground is unknown. Further, and again, the complaint is about a gesture “on many occasions” but only one occasion is identified.

101. Grounds 37 and 38 raise precisely the same complaint as Grounds 12 and 14. Although the tests are different, there is nothing about the allegations being placed in the context of procedural unfairness which gives them any more chance of success than they had as allegations of bias.

102. Ground 9 states: The trial judge provided the counsel/legal team of the respondents with the transcripts of the proceedings, in printed and electronic form, free of charge, in the circumstances where the respondents had professional indemnity insurance, and it is only the appellant who was on a disability pension and had a waiver for the cost of the transcripts.

103. The submission was that by giving the respondents a free copy of the transcript, her Honour was displaying bias because the respondents, being insured, effectively did not deserve a free copy.

104. It is not actually clear that the respondents were provided a free copy. However, even if they were, it could hardly be seen as an indication of bias. Rather it is an indication of equal treatment between parties. The only notable point in the transcript relied upon (page 2157) is the display of senior counsel for the respondents assisting Mr Elmaraazey by informing her Honour that Mr Elmaraazey had not had the benefit of a transcript.

105. A ground that had some initial attraction was Ground 9A, which states: The trial judge, after reserving judgment on 19 December 2018, and on her own initiative, corrected the transcript after listening to the audio, and made adverse findings and conclusions in her judgment against the appellant, and without giving the appellant the opportunity to be heard and make submissions in relation to those issues.

106. The normal course in relation to corrections to a transcript is that after the apparent error has been raised by the judge or the parties, agreement will be reached on what the transcript ought to have recorded. If there is no agreement, the judge will make a ruling after considering the respective submissions of the parties.

107. Her Honour dealt with the amendment to the transcript from [1408]: 1408. In s 38 cross-examination Mr Crabb gave evidence about whether he had given Ms Gindy her file: MR ELMARAAZEY: And I told him, you expect your client to go to the matter without providing her with her files?---No, I think – I'm not a hundred per cent that she had to go the next day, but my evidence back on 7272, at line 25, was "Go to the Administrative Appeals Tribunal." I notified them, and that was that she's now representing herself. Yes, but - - -?---So no, she didn't have the files that I had back in my room. And you say, "Doesn't want to attend on Friday." What was supposed to happen on Friday?---No, I've said about three times, I can't recall whether anything was happening, and my evidence on 22 August was to notify them that she was now acting for herself. (Emphasis added.) 1409. The evidence referred to by Mr Crabb as “back on 7272, at line 25” (quoted in context at [650] above) was in fact: MR ELMARAAZEY: She said that?---She said that. And I said, "Fine," she'll need to attend the Administrative Appeals Tribunal and notify them and then we parted company. 1410. After giving that evidence, Mr Crabb went on to say (also at [650] above) that Ms Gindy’s need to represent herself in the AAT was overtaken by her subsequent instructions to discontinue the appeal. 1411. Neither party identified the emphasised part of Mr Crabb’s evidence as requiring correction. However, a check of the audio recording of that evidence has confirmed that Mr Crabb had read directly from the transcript of his original evidence, and that the transcript of his re-examination should have read as follows: MR ELMARAAZEY: And I told him, you expect your client to go to the matter without providing her with her files? No, I think – I'm not a hundred per cent that she had to go the next day, but my evidence back on 7272, at line 25, was "Go to the Administrative Appeals Tribunal and notify them”, and that was that she's now representing herself. (Emphasis added) 1412. Despite the fact that Mr Crabb’s original evidence had been correctly transcribed (and that reference to that evidence would have revealed the error in the later transcript), Mr Elmaraazey made a submission based on the incorrect transcription of Mr Crabb’s quote from the earlier transcript, as follows: 16. There is no evidence that Mr Paul Carbb (sic) did “notified them” as alleged. Nothing was produced to prove so. If Mr Paul Carbb (sic) had “notified them”, why and how he did write to withdrew the appeal causing to be dismissed (See below). It does not follow that after Mr Paul Carbb (sic) “notified them”, the AAT accepts that the Defendants, not Ms Gindy, withdraw the appeal. (Errors in original, emphasis in original.) 1413. Like the submission itself, the question whether Mr Elmaraazey’s submission reflects only laziness or something even less acceptable (such as incompetence, deliberate time-wasting or actual dishonesty) needs no further consideration at this point

108. Starting with the strident comments at [1413], it must be recalled that by the time her Honour was writing her judgment she had already formed very adverse views of Mr Elmaraazey. Her comments are a reflection of those views at that time. They do not reflect any pre-determined assessment of Mr Elmaraazey, nor do they reach a concluded finding other than a criticism of the merit of the submission that had been made.

109. In respect of the transcript, it is important to appreciate that her Honour was correcting the transcript to bring it into line with earlier evidence that had been given by Mr Crabb. Mr Crabb was referring to his earlier evidence when talking about page “7272, at line 25”. Her Honour had already set out this earlier evidence at [650]. Her criticism of Mr Elmaraazey was that he had not referred, in making his final submissions, to the correct earlier evidence but rather to the later evidence where there was a mistake in the transcript. This brings into context her Honour wondering whether, in failing to use the correct transcript as the basis for his submission, Mr Elmaraazey had simply been lazy or otherwise.

110. Her Honour’s listening to the audio was to make sure that the earlier evidence had been correctly recorded. Once again, when the whole of the circumstances are revealed, the seeming vice in her Honour’s actions do not reflect any bias or procedural unfairness. Her Honour was doing no more than checking that the original words used had been correctly recorded. They had been (referring to the transcript at page 7272).

111. At literally the very end of the appeal hearing, Mr Elmaraazey endeavoured to add another complaint which he said fell under the general ambit of the allegations of bias and procedural unfairness. He referred to the inclusion in the title page of the liability judgment, under “Cases Cited”, of three reports concerning disciplinary proceedings against him by the ACT Law Society. The three matters were referred to by her Honour in discussing Mr Elmaraazey’s participation in the proceedings as a McKenzie friend. The following is said from [3390]: 3390. Mr Elmaraazey had, for some years before the events that are the subject of these proceedings, held an unrestricted practising certificate in the ACT and operated his own law firm. In July 2010, the ACT Law Society refused to renew Mr Elmaraazey’s unrestricted practising certificate, and a manager (a Mr Col Blain) was appointed to his practice. 3391. Disciplinary proceedings were taken by the Law Society against Mr Elmaraazey, and were defended, but eventually Mr Elmaraazey exhausted all his appeal rights and, during the course of the hearing of the current proceedings, he was struck off the ACT roll of legal practitioners (Law Society of the Australian Capital Territory v Elmaraazey [2017] ACTSCFC 2). 3392. In those disciplinary proceedings, which ran over 2011 to 2013, Mr Elmaraazey had been represented at certain points by Julian Burnside QC and his junior Tim Crispin. Although the fees owed to Messrs Burnside and Crispin were presumably owed by Mr Elmaraazey, Ms Gindy was determined to see that they were paid; to that end, she sought to re-direct, to Mr Elmaraazey’s legal debts, money recovered by Capital Lawyers in respect of debts arising from Ms Gindy’s proceedings and owed by Ms Gindy to third parties such as counsel, and doctors, involved in her proceedings or to Capital Lawyers themselves. For obvious reasons, Ms Gindy’s approach caused real problems for her lawyers.

112. Her Honour then set out the benefits and disadvantages of Mr Elmaraazey’s acting as a McKenzie friend. She concluded: 3405. There is no doubt in my mind that Mr Elmaraazey’s participation as the McKenzie friend substantially extended the hearing (and the time required for preparation of the judgment). On the other hand, it is quite likely that, if Ms Gindy had been required to conduct the case on her own (with or without Mr Elmaraazey sitting beside her), she would not have been able to put her case in a way that she (or perhaps more significantly an independent observer) could have accepted as involving a fair hearing of her claims. That would have been particularly unfortunate given that her claims were made against defendants who were members of the local legal profession. 3406. On balance, therefore, it seems to me that permitting Mr Elmaraazey to act not only as a McKenzie friend, but as perhaps the most extreme form of such a supporter, was the only feasible way of giving Ms Gindy a genuine opportunity to put her claims before the court and avoiding a perception that the legal system had closed ranks to protect its own. On the other hand, it is unfortunate that permitting Mr Elmaraazey that involvement was not accompanied by a serious attempt at case management by the Supreme Court well before Ms Gindy was even allocated a trial date. 3407. However, I express the view, for what it’s worth, that Mr Elmaraazey should not again be permitted to conduct a case in the ACT Supreme Court, on his own behalf or in any other capacity, without being subjected to the most extreme form of case management.

113. On one level it might be said that her Honour was expressing a very negative view about Mr Elmaraazey. On the other hand, her Honour’s comments might also be seen as a summary of her concerns about the way the matter had been conducted, going both to its length, its complexity and the reasons for the decision being reserved for so long.

114. The more important point, however, is that whatever her Honour thought of Mr Elmaraazey, that is not necessarily an indication of any bias towards the appellant. As her Honour correctly pointed out, the appellant “would not have been able to put her case in a way that she (or perhaps more significantly an independent observer) could have accepted as involving a fair hearing of her claims”.

115. Further, it is important to note that Mr Elmaraazey had had a close involvement in a number of the facts leading up to the appellant’s suits against the respondents. For example, Mr Elmaraazey was the appellant’s solicitor in the Comcare claim and he briefed a barrister on behalf of the appellant. The fees paid to counsel and to Mr Elmaraazey were part of the issues in the Comcare claim. Another issue concerned payments that had been made to Mr Elmaraazey (and others) by the first respondent for legal services provided to the appellant or to Mr Elmaraazey.

116. As stated by the respondents (in further written submissions) the “Trial Judge identified the intersection of the outstanding fees for Mr Elmaraazey’s representation in his disciplinary proceedings with the facts which informed the appellant’s claim against the respondents in the Court below”.

117. The appellant’s submission that the reference to the disciplinary proceedings was effectively gratuitous and an indication of bias accordingly falls away.

118. In summary, the overall impression is one of snippets of comments or actions of her Honour being either taken out of context, exaggerated or simply invented to suggest bias (including apprehended bias) and procedural unfairness. On closer examination these allegations dissipate, leaving the appeal on these grounds without basis.

119. I am aware that McCallum CJ and Charlesworth J are of a different view on the existence of apprehended bias. The orders to be made will return the matter for a re-hearing. Accordingly, it is not necessary for me to address the grounds of appeal not arising from the assertions of apprehended or actual bias. Suffice to say I would have proposed that in respect of the grounds considered above, that the appeal be dismissed.

CHARLESWORTH J:

120. I have had the benefit of reading the reasons of Elkaim J in draft. I agree with his Honour’s conclusion that the allegation of actual bias must be firmly rejected.

121. I have regretfully arrived at a different conclusion in relation to the allegation of apprehended bias. Whilst many of the bases for that allegation have no merit, I have concluded (among other things) that the outward conduct of the trial judge, considered in context, would be understood by a fair minded lay observer as an indication that the trial judge harboured feelings of intense personal disdain for the appellant’s McKenzie friend and an associated disregard for the appellant herself. The disdain demonstrated not only in the manner of the conduct of the hearing but in comments made by the trial judge in her Honour’s reasons for judgment, particularly comments that otherwise had no forensic relevance to the issues to be decided. On the basis of those (and other) conclusions I am satisfied that a fair minded lay observer might reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the appellant’s claims. The appellant’s contention of apprehended bias should be upheld, although not for the totality of reasons advanced by her.

122. I would allow the appeal and order that the matter be remitted to be re-tried according to law. It is neither necessary nor appropriate that I express any view in relation to the remaining grounds concerning the correctness of the judgment appealed from. The appellant is entitled to have her claims tried in a manner free from the appearance of bias. It follows that there should be orders allowing the appeal and remitting the matter for re-trial according to law.

The Bias Grounds

123. The grounds of appeal are contained in a Further Amended Notice of Appeal (NOA) dated 15 March 2022. They consist of 98 paragraphs. Paragraphs [1] to [22] raise or relate to allegations of actual and/or apprehended bias. The principal allegation that the conduct of the hearing gave rise to “actual bias and/or apprehension of bias” is made in NOA [1]. That paragraph may be treated as the first ground of appeal. I have interpreted [2] to [18] of the NOA as being mostly in the nature of particulars to the first ground and they will be referred to as such throughout these reasons. Fairly interpreted, the NOA invites this Court to consider all of the particulars said to justify a conclusion of apprehended bias both separately and cumulatively.

124. By [19] to [21] of the NOA it is alleged that the judgment of the trial judge “confirms a pre-existing actual and/or apprehended bias” by reason of all of the aforementioned particulars, that the judgment itself “shows a hostile attitude” towards the appellant and the McKenzie friend and a “lack of impartiality”. It will be necessary to consider the role that the reasons for judgment may properly play in determining the allegations of apprehended bias affecting the trial process. I have interpreted particular [19] to include a contention that the attacks on the integrity of the trial process find evidentiary support in the reasons published three years later. For reasons given below, I have accepted that contention, albeit in part.

125. In [16A] of the NOA there is an allegation that the trial judge erred in dismissing an application for an order that she recuse herself on the basis of actual and apprehended bias during the course of the trial. The reasons of the primary judge for refusing to recuse herself were not given on the day that the recusal application was dismissed. Instead, they were published some three and a half years later, on the same day as judgment in the action: Gindy v Capital Lawyers Pty Ltd (No 1) [2021] ACTSC 303 (Gindy No 1). The allegation of error affecting the judgment in Gindy No 1 amounts to an allegation st that a proper basis for the recusal of the trial judge had arisen as at the 51 day of the trial. On that day there was an outburst from the appellant (then in the witness box and under lengthy cross-examination) to the effect that the trial judge was biased and should remove herself, followed by an express recusal application made orally by the McKenzie friend on her behalf. I am also satisfied that the reasons published in Gindy No 1 disclose an appealable error in and of themselves, as appears to be alleged at [16A] of the NOA, although such a finding is not necessary for the appellant to succeed in respect of the first ground of appeal. I have rejected many of the other arguments impugning the judgment in Gindy No 1.

The Test for Apprehended Bias

126. The test for apprehended bias is sometimes referred to as the “double might” test. As explained by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (at [6]) an allegation of apprehended bias will be established if: … a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. … (emphasis added)

127. Their Honours continued: 7 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 8 The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. … (emphasis added)

128. Their Honours went on to say (at [8]) that the resolution of an allegation of apprehended bias involves two steps. First, it is necessary to identify the fact or circumstance that might lead a judge to decide a case other than on its factual or legal merits. Secondly: There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. …

129. In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507, Gleeson CJ and Gummow J observed that judicial decision-makers may sometimes approach their task with a tendency of mind or predisposition, but that of itself will not give rise to an apprehension of bias. The question, their Honours said, “is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion” (at [71]). The word “impartial” in the double might test is to be so understood – the feared deviation is that the judge might approach the task other than with a mind open to persuasion.

130. An apprehension of bias may arise by virtue of things said and done by the judge in the course of the hearing, including the expression of views from the bench. However, as the High Court emphasised in Johnson v Johnson [2000] HCA 48; 201 CLR 488, the expression of tentative opinions about matters in issue will not of itself give rise to an apprehension of bias in the requisite sense. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ there said (at [13]): 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 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 develop 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. … 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)

131. However, as Kirby and Crennan JJ said in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [112], there may be cases in which judicial interventions and observations go further than expressing proper and reasonable tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case.

132. In Vakauta v Kelly (1989) 167 CLR 568, Brennan, Deane and Gaudron JJ said (at 571): 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.

133. Their Honours were in that case concerned with an allegation of apprehended bias based on comments made by a trial judge about the professionalism and reliability of an expert witness during the course of a trial. Their Honours went on to say (at 571): On the other hand, there is an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threatened the appearance of impartial justice. In the passage in his judgment in Watson to which we have referred, Jacobs J pointed to the undoubted fact that ‘it is confidence in his own integrity which supports [a judge] not only in his judgment but in all his words and conduct’. Knowledge of his or her own integrity can sometimes leave a judge to fail to appreciate that particular comments made in the course of a trial may wrongly convey to one or other of the parties to the litigation or to a lay observer an impression of bias.

134. Among the examples discussed in Vakauta v Kelly was a case in which a judge may be concerned to vindicate the preconceived adverse views about the witness by finding contrary to whatever views the witness might express in the final judgment (at 572).

135. An apprehension of bias may also arise by virtue of undisclosed private communications occurring between the judge and a party to the litigation (or the party’s legal representative) without the consent of the other party. In a recent application of the principles to facts of that kind, the High Court in Charisteas v Charisteas [2021] HCA 29; 393 ALR 389 identified apprehended bias on the part of a judge who had participated in frequent private meetings with the barrister for a party over a period of 17 months during the course of a trial (and after judgment was reserved but not yet delivered). The High Court emphasised (at [18]) that no prediction by the Court on appeal was involved in deciding whether a judge might not bring an impartial mind to bear, and no question as to the understanding or subjective motivation of the particular judge arises. In that case, there was a lack of disclosure on the part of the both the trial judge and the barrister as to the fact, frequency and timing of the meetings. The High Court concluded that the majority of the Full Court of the Family Court erred by imputing to the fair minded lay observer knowledge and information about relations between the judiciary and the independent bar about appropriate standards of conduct: 19 The lack of disclosure in this case is particularly troubling. It is difficult to comprehend how the trial judge could have failed to appreciate the need to disclose the communications, particularly when he was dealing with the application to recuse himself on other grounds. It may give the hypothetical observer reason to doubt the correctness of the claim by the wife's barrister that their communications did not concern ‘the substance’ of the case, if the ambiguity inherent in that statement is not itself of sufficient concern. 20 The majority also reasoned that the second limb in Ebner was not made out by reference to what the fair-minded lay observer, properly informed as to the judiciary and the Bar, would think. The information included that barristers are professional members of an independent Bar who do not identify with the client; that judges are usually appointed from the senior ranks of the Bar; and that it may be expected they will have personal or professional associations with many counsel appearing before them. Informed by such matters, the majority reasoned, the hypothetical observer would be ‘able to tolerate’ some degree of private communication between a judge and the legal representative of only one party, even if undisclosed. The majority considered that the hypothetical observer would accept in this case that the judge and the wife's barrister would adhere to professional restraint in what was discussed and would accept that a professional judge who has taken an oath of office would not discuss the case at hand. 21 Once again, this reasoning is erroneous. The alignment of the fair-minded lay observer with the judiciary and the legal profession is inconsistent with the apprehension of bias principle and its operation and purpose. The hypothetical observer is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system. The hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. It would defy logic and render nugatory the principle to imbue the hypothetical observer with professional self-appreciation of this kind. (citations omitted)

136. The High Court considered it was enough that the circumstances might cause the reasonable person to suspect that the content of the communications included matters that might bear on the outcome of the trial. Whether the communications in fact included those matters was not to the point.

Objection and waiver

137. As I have mentioned, in Vakauta v Kelly the allegation of apprehended bias arose from comments made by the trial judge in the course of a proceeding. Brennan, Deane and Gaudron JJ said (at 572): 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.

138. The principle was recently applied by the Full Court of the Federal Court of Australia in AAL19 v Minister for Home Affairs [2020] FCAFC 144; 277 FCR 393, Logan, Markovic and Anastassiou JJ (at [101]).

139. A party cannot be taken to waive a right to object to conduct giving rise to an apprehension of bias where the facts giving rise to the apprehension are confirmed or revived in the published reasons for judgment. In Vakauta v Kelly itself, the failure to object to comments made by the trial judge about a witness in the course of the trial could not properly be seen as a waiver of any right to complain if the comments about the witness in the judgment 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” (at 573). Appearance and actuality are different things: it is not necessary to reach a conclusion as to what factors actually influenced the outcome: Ebner at [7].

140. Some of the matters raised on this appeal were not raised by or on behalf of the appellant at the trial as a basis for recusal, whether in support of the recusal application made on st the 51 day or at all. However, in oral submissions Counsel for the respondents expressly acknowledged that the appellant was not precluded from raising those matters on this appeal. That is a proper acknowledgment.

141. As will be seen, in the course of the trial, the appellant repeatedly asserted that the trial judge was biased and should remove herself in the most unequivocal (and not always polite) terms. Observers of the trial could have been left in little doubt that the appellant took the view that the trial judge should recuse herself. Of course it is not the subjective opinion of the appellant that is determinative, but the application of the double might test to the facts, including the facts as to how the trial had unfolded.

142. As in all cases, there existed a continuing obligation on the part of the trial judge to disqualify herself if any proper basis for disqualification arose in accordance with that test, whether or not the specific basis for recusal was expressly articulated by the appellant directly or through her McKenzie friend. That obligation is not affected by the principle that a represented litigant may be precluded from taking a point on appeal that was not taken below. In any event, in the present case, the facts supporting the allegation of apprehended bias include gratuitous criticism of the McKenzie friend expressed in the reasons for judgment about which there could be no advance opportunity to object.

Distinct aspects of the hearing rule

143. These reasons do not concern the allegation that the trial judge failed to afford the appellant procedural fairness. The rule against bias is of course one aspect of the hearing rule, but it is distinct from the requirement that a party be afforded a fair opportunity to present his or her case. The procedural fairness grounds depend for their success on proof that the trial was conducted in such a way as to work a practical injustice on the appellant. No such requirement attaches to the grounds alleging apprehended bias. As will be seen, some of the particulars contain allegations as to the practical effect of the conduct of the trial judge on the presentation of the appellant’s case. But there is no requirement to establish any such causal connection. The grounds alleging apprehended bias depend on the application of the test in Ebner. The double might test emphasises the importance that there be an appearance that justice has been done. This Court should be alert to avoid conflation of the tests applicable on the two distinct limbs of the hearing rule, especially in a case (such as the present) where the same facts and circumstances are relied upon in support of each of them.

Some Context

144. The appellant’s claim was founded in breach of contract and negligence in relation to legal services provided by the respondents, a law firm and two lawyers practising in the Australian Capital Territory. The necessity that legal proceedings have the appearance of impartiality and fairness arises in all matters, and the test for apprehended bias does not differ in a suit against legal practitioners. However, here the litigious context is one in which the appellant was justified in her expectation that the trial would be conducted with the actuality and appearance of utmost professional detachment. In Gindy v Capital Lawyers Pty Ltd (No 2) [2021] ACTSC 304 (Gindy No 2) the trial judge herself referred to the context when discussing the advantages of permitting the appellant to have the assistance of a McKenzie friend, lest a perception arise “that the legal system had closed ranks to protect its own” (at [3406]).

145. The appellant’s action was subject to case management at the pre trial stage by officers other than the trial judge. Prior to the trial, the appellant was granted leave to be assisted by her husband (Mr Mamdouh Elmaraazey) in the capacity of a McKenzie friend, not only in respect of pre trial matters but for the presentation of her case at trial.

146. The phrase “McKenzie friend” has its origins in McKenzie v McKenzie [1970] 3 All ER 1034 and reflects the Court’s discretion to allow a non-lawyer to assist a party in the presentation of his or her case. The nature and scope of that assistance is a matter for the judge to determine. There was no general right in the appellant to be represented by a legally unqualified person and a McKenzie friend has no general right of audience: Gallandin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145.

147. The McKenzie friend has legal qualifications, however, at the time of the trial (and at the time of the appeal) he did not hold a practising certificate authorising him to practise the profession of the law for fee or reward. As the trial judge repeatedly emphasised during the trial, the McKenzie friend was not a person having the “privilege” to appear as of right.

148. In light of the marital relationship, I consider that a fair minded lay observer would understand the McKenzie friend to be a person who had a personal interest in the financial outcome of the litigation. If that interest was not apparent from the marital relationship alone, it plainly became apparent in the course of the trial, involving evidence of a willingness on the appellant’s part to meet the expenses of her husband. In other words, there was a gain to be had by the McKenzie friend in a successful outcome, over and above the satisfaction of assisting his wife to succeed in her case.

149. It would not be unreasonable for the fair minded lay observer to proceed on the assumption that the trial judge well understood that connection: a financial win for the appellant would involve an indirect financial win for the McKenzie friend. That context assumes some importance when it comes to articulating, for the purposes of the second step in Ebner, the logical connection between the matters relied upon on this appeal and the feared deviation from the course of deciding the case on its merits.

150. The prior grant of leave to the appellant to be assisted by the McKenzie friend was not binding on the trial judge. It was always open to the trial judge to place conditions on the grant and to impose natural and logical consequences for non compliance with them.

151. The trial proceeded in a fashion whereby the McKenzie friend was permitted (for the most part) to participate in the trial to the same extent as that exercised as of right to an admitted legal practitioner. He was permitted to make oral submissions, to examine and cross-examine witnesses, to adduce documentary evidence, to object to the admission of evidence tendered or adduced by the respondents, to send correspondence to the chambers of the trial judge and to prepare written submissions. All of that occurred with the permission and under the supervision of the trial judge. The trial judge did not otherwise assume the responsibility the Court must ordinarily discharge in assisting a self-represented party with appropriate guidance. Her Honour expressly stated that the presence of the McKenzie friend relieved her of that responsibility.

152. The trial was originally set down with one week set aside. It ultimately consumed 88 days.

153. Remarks of the trial judge during the trial indicate that she took the view that the McKenzie friend should be criticised for initially underestimating the length of the trial. The transcript and reasons for judgment make no reference to joint responsibility of the respondents’ legal representatives to inform the Court that the time set aside for the conduct of the trial was hopelessly inadequate on any reasonable view.

154. Nine days were devoted to the appellant’s evidence-in-chief. The appellant was then subjected to cross-examination over 21 days, (although not all of them complete or consecutive). Her total time in the witness box was extraordinary by any measure.

155. The transcript of the trial and the reasons for judgment contain further direct and indirect criticisms of the McKenzie friend by which the trial judge made it plain that she considered him to be responsible for the protraction of the hearing, whether because of the points he took in the appellant’s case, or the number and nature of his interruptions to the presentation of the respondents’ case. Blame is also imputed to him for the very long delay between the conclusion of the trial and the delivery of judgment, although the reason why responsibility for that very long delay should rest with him is not explained, other than by a complaint concerning the length and nature of his written submissions.

156. The question of whether an apprehension of bias arose it is not answered merely by identifying whether the trial judge held subjective views critical of a party (or his or her representative) that were objectively justified. Rather, the issue is whether the outward conduct of the trial might lead a fair minded lay observer to apprehend that the judge might not bring an impartial mind to bear. The expression of disapproving views may give rise to an apprehension of bias whether or not the disapproval is justified. Much will turn on the words used. The test is particularly fact sensitive.

157. I consider that the fair minded lay observer would have some appreciation of the fact that the processes of the trial are within the control of the judge. The relevant lay observer may be taken to appreciate that circumstances that may give rise to a sense of frustration or annoyance on the part of the judge may well be circumstances that are within the power of the judge to avoid or ameliorate. Such was the case here.

158. It was within the capacity of the trial judge to fix conditions on the extent of the McKenzie friend’s participation and to impose consequences in the event of non compliance with them.

159. Subject to observing the requirements of procedural fairness, it was also within the capacity of the trial judge to fix a time limit for examination-in-chief and for cross-examination and to leave it to each party as to how best to use the allocated time. Again, subject to the requirements of procedural fairness, it was within the capacity of the trial judge to fix limits on the length of written submissions, to inform the parties that submissions exceeding that length would not be considered and to act in accordance with the warning so delivered.

160. To the extent that the trial judge disapproved of the conduct of the McKenzie friend (rightly or wrongly), there are few indications of the trial judge formally imposing conditions upon the grant of the appellant to be assisted by a McKenzie friend, other than in the impulsive and intemperate ways described in these reasons. It is not apparent that the trial judge informed the parties of the consequences that might follow should carefully considered conditions on the status of the McKenzie friend be breached. It is not at all apparent that time limits or page limits were fixed by the trial judge in a manner having foreshadowed consequences for non compliance, imposed in a predictable and logical manner. In that context, and in the other circumstances expressed in these reasons, I do not consider the fair minded lay observer should be attributed with an overly sympathetic attitude toward the trial judge so as to avoid a conclusion that the lay observer might form the relevant apprehension. Put another way, where the words or conduct of the judge give rise to an apprehension of bias in accordance with legal principle, that conclusion is not avoided by the circumstance that the judge had a difficult task.

Rejected Arguments

161. It is convenient at this point to identify some of the appellant’s arguments that should be rejected and so disregarded in the resolution of the first ground of appeal. There are many of them. Free transcript: NOA [9]

162. The decision of the trial judge to provide the respondents with a copy of transcript without charge is not a circumstance that could conceivably contribute to a finding of apprehended bias.

163. It may readily be inferred that the appellant subjectively considered the trial judge to have bestowed a favour on her opponents and so perceive the conduct to be “unfair”. But the test for apprehended bias is not one that depends upon the subjective feelings of a party.

164. The allegation that the appellant was in fact without sufficient funds to purchase her own copy of the transcript is not proven on this appeal in any event.

165. In addition, I do not consider that the fair minded lay observer would reason from the fact of the provision of a free transcript to a conclusion that the trial judge might not bring an impartial mind to bear in determining the issues between the parties. The reasonable lay observer may be taken to understand that there may be a degree of pragmatism in the making of such a decision, especially given the critical importance that both parties have ready access to the transcript in such a long trial involving constant revisiting of the evidence previously given. The trial judge was otherwise under no obligation to redress any financial imparity between the parties.

Alleged regular social contact: NOA [15]

166. The facts raised in these particulars are set out in the reasons of Elkaim J.

167. The nature of the contact is relevant, especially in the context of a case in which a litigant in person brings a highly contentious suit founded in professional negligence against members of the legal profession.

168. Two incidents require separate consideration. The first is an instance of contact between the trial judge and Counsel for the respondents at a professional event. The second is the trial judge’s attendance at a dinner at the home of the sister of the respondents’ Counsel.

169. The contact between Counsel for the respondents and the trial judge at a professional event was a single and unplanned instance of contact and was passing in its nature. It is not to be characterised as social contact of a kind that might give rise to a suspicion on the part of the reasonable observer that Counsel and the trial judge had discussed the proceedings. It is to be recalled that in Charisteas the relevant apprehension arose for reasons that included the frequency of the contact coupled with the failure on the part of the trial judge to disclose that it had occurred. Neither feature is present in this case.

170. As to the circumstance that the trial judge attended a dinner hosted by Counsel’s sister, I do not consider that the fair minded observer would speculate about the existence of facts contrary to those properly disclosed by the trial judge. The relevant facts were that the connection between the host of the dinner and any party to the proceedings was not known to the trial judge. Accordingly, it could not reasonably be supposed that the dinner conversation would concern the subject matter of the litigation.

Differential treatment on relevance rulings: NOA [6]

171. It is said that the trial judge engaged in differential treatment between the parties in the manner in which she ruled on objections, especially by ruling certain evidence inadmissible during the course of the appellant’s examination-in-chief (upholding Counsel’s objections), and then receiving the same material as relevant during the course of the appellant’s cross-examination.

172. The same argument was raised in support of the recusal application made in the course of the trial. The appellant relies on 15 extracts from the trial transcript, identified in a list marked MFI#B. The material provided does not disclose a pattern of differential treatment sufficient to support an allegation of apprehended bias.

173. Counsel for the respondents was entitled to object to evidence on the basis of relevance, provided that the objection was arguable.

174. It is unnecessary to consider each alleged instance separately, particularly in the absence of submissions to explain them. It is sufficient to observe that some of the extracts do not reveal an objection taken on the basis of relevance, but rather on some other basis.

Interposition of witnesses – NOA [4]

175. This particular complains of a decision of the trial judge to interrupt the re-examination of the appellant in order to interpose the examination of Mr Paul Crabb (a party). It is alleged that the interposition occurred in circumstances where the respondents did not provide proof of the asserted unavailability of Mr Crabb to give evidence at another time. It is contended that the decision to interpose Mr Crabb’s evidence interrupted the flow of the appellant’s re-examination and that the McKenzie friend was given insufficient time to adequately prepare for the examination-in-chief of Mr Crabb.

176. I do not consider the circumstances support an allegation of apprehended bias, whether considered alone or cumulatively. The circumstance that the evidence of a witness may be interrupted for the interposition of another witness is not at all unusual and is not indicative of preferential treatment of a party. To the extent that the trial judge took a differential approach to the requirement of proof for the reasons of absence I do not consider that singular instance to be sufficient to satisfy the test in Ebner.

Manner of cross-examination – NOA [13]

177. This particular alleges that the trial judge failed to stop the respondents’ Counsel from “using aggressive voice and tone while cross-examining the appellant, which caused the appellant considerable stress, discomfort, loss of concentration, and distraction in giving her evidence and the effective handling of her case.”

178. As explained elsewhere in these reasons, establishing an allegation of apprehended bias does not depend on proof that the conduct complained of had a detrimental effect on the health or wellbeing of a trial participant.

179. Depending on the circumstances, the failure of a trial judge to address improper conduct of a party may create a circumstance in which an apprehension of bias may arise. However, in the present case, the factual proposition that there was an improperly aggressive tone was not established on the facts.

Alleged shutting down of proper objections – NOA [7], [16A]

180. Particular [7] is as follows: The trial judge prevented Mr Elmaraazey from objecting during most of Mr Mark Walsh’s cross-examination to the appellant which took about 21 days, some of which extended to about 6.00pm.

181. A similar complaint was advanced in support of the recusal application made in the course of the trial. At that time the argument was to the effect that the trial judge had permitted the respondents’ Counsel to control the proceedings by insisting that he not be interrupted in the course of cross-examination. Twelve transcript excerpts were relied upon in support. They are listed in a document marked by the trial judge MFI#C. Whilst they are not the only excerpts relied upon in support of particular [7], it is convenient to deal with them first, adopting the numbering from the list.

182. It is unclear what point is sought to be made by excerpt 12. In the absence of submissions is it unnecessary to deal with it further. It does not lend support to the allegation of apprehended bias.

183. The remaining excerpts show that it was common for the respondents’ Counsel to respond to interruptions to the cross-examination by complaining that the interruptions were illegitimate. Counsel commonly described the cross-examination as “my cross-examination”, a form of words that tends to convey the wrong impression that the procedure was one under the control of Counsel and not the control of the Court. However, the mere circumstance that Counsel adopted that form of words does not necessarily mean that the trial judge agreed with them or otherwise permitted Counsel to control that aspect of the proceedings.

184. Excerpts 1, 2, 3, 5, 8 and 9 involved the McKenzie friend interrupting the course of cross-examination in a manner that did not clearly express an objection to the admissibility of the evidence sought to be adduced. Excerpts 1 and 3, for example, show the McKenzie friend interrupting with the words “Can I just say this … ”. Excerpt 8 shows the McKenzie friend interrupting with the words “Sorry, sorry, let me just clarify this”. Excerpt 9 shows the McKenzie friend interrupting with the words “No. Just – just –“. Reading each instance in its proper context, Counsel for the respondents was justified in asserting that the cross-examination had been interrupted illegitimately. A legal representative objecting on a proper basis should use words that plainly indicate that an objection is being taken and the basis of the objection should be precisely and promptly indicated so that it may be ruled upon. The terse exchanges in the above examples typically occurred between Counsel and the McKenzie friend. They do not support the allegation of apprehended bias on the part of the trial judge.

185. Excerpt 7 shows the McKenzie friend interrupting cross-examination in relation to a matter that was more properly a matter for re-examination or submissions. The treatment of that objection by the trial judge does not support the allegation of apprehended bias.

186. Excerpt 10 indicates the McKenzie friend objecting to the tender of a document. Counsel complained that the McKenzie friend was interrupting during the cross-examination. Counsel’s immediate complaint had no proper foundation: it cannot be illegitimate to object to the tender of a document. Nonetheless, this example does not give rise to an apprehension of bias on the part of the trial judge.

187. Excerpt 11 shows Mr Counsel submitting to the trial judge that he perceived that the McKenzie friend was attempting to disrupt the cross-examination. The McKenzie friend complained that the allegation of illegitimate interruption was improper and submitted that Counsel should apologise for making the allegation. In and of itself, the transcript reference does not indicate whether there was a proper basis for the interruption. To my mind there nothing in that exchange that supports the allegation of apprehended bias.

188. By now it will be apparent that 10 of the 12 excerpts listed in MFI#C were not supportive of the appellant’s recusal application made in the course of the trial. That argument was to the effect that the judge had exhibited a tendency to permit Counsel to control the proceedings, including (as it was then submitted) by insisting that there be no interruption to the questioning of the appellant. Put bluntly, MFI#C does not support the proposition it was originally intended to support. To the extent that the trial judge is said to have erred in dismissing the recusal application on the particular ground raised before her at the time that it was raised (namely acquiescence to control of the proceedings by the respondents’ Counsel) that contention must be rejected.

189. Excerpts 4 and 6 are yet to be considered. Like the other examples, they are relied upon in support of the contentions raised in (at least) particulars [7] and [11] and will later be considered in that context.

Agoraphobia remark: NOA [16A]

190. Among the several bases for the recusal application at trial was an allegation that the trial judge had permitted Counsel for the respondents to humiliate her with remarks concerning agoraphobia. This allegation is to be understood in the context of the appellant’s causes of action against the respondents. They related to the conduct of her claim for worker’s compensation, being a claim founded in part on a mental illness arising in the appellant’s former workplace, including a claim founded on mistreatment by her colleagues. Against that background the appellant alleged that the respondents’ Counsel had ridiculed her during cross-examination by using the word agoraphobia in the course of questioning.

191. It has not been shown that the word was used by Counsel with a view to humiliating the appellant. As the form of questioning was not objectionable, there can be no suggestion that any failure of the trial judge to reprove Counsel gives rise to an apprehension of bias.

Other complaints

192. There are a number of other particulars relied upon by the appellant going to relatively minor instances of alleged discriminatory treatment vis a vis the parties. To the extent that a particular argument is not given express consideration in these reasons, the argument has been treated as being of little or no moment to the outcome of the appeal. The remainder of these reasons focus on the key aspects of the appellant’s case founded in apprehended bias. For the most part, they are to be accepted.

Remaining Arguments

Alleged derogation of judicial duties: NOA [16], [16A]

193. By particular [16] it is alleged that the trial judge “deferred her judicial position as a judge to Mr Mark Walsh and relied on Mr Mark Walsh’s advice in conducting the trial”.

194. A similar allegation was raised in the course of the trial, summarised by the trial judge (in a document marked MFI#A) as a complaint “That on a number of occasions I had made comments to the effect that counsel ‘will know better than I do’ about a particular [procedural matter], and that accordingly, [the appellant] believes, I will accept anything that counsel says or writes”. By particular [16A] it is alleged that the trial judge erred by failing to uphold the recusal application on that and other bases.

195. In an exchange with the McKenzie friend the trial judge openly acknowledged that she had used words to the effect that “counsel will know better than I do” a number of times to that point in the trial. That frank acknowledgment is repeated at [36] of Gindy No 1. The making of that remark by the trial judge makes it unnecessary to seek out words to that effect in the transcript. The remark itself discloses the state of mind of the trial judge in the approach that she took to an aspect of her judicial task. The test for apprehended bias is to be applied to the undisputed fact that the words were said without qualification in the course of the trial.

196. The reasons of Elkaim J correctly identify ordinary conventions in the conduct of a trial, including the expectation that Counsel be prepared to make submissions on all matters of procedure and substance, particularly so as to prevent the Court from falling into error. Counsel, of course, owe a paramount duty to the Court: Rondel v Worsley [1969] 1 AC 191, Lord Reid (at 227); Giannarelli v Wraith (1988) 165 CLR 543 at 555 – 556, 572; D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 (at [111]).

197. However, the complaint of the appellant was not about the extent to which the respondents’ Counsel endeavoured to fulfil his duty to assist the trial judge. No criticism can be directed toward Counsel in that regard. What was complained of at the time of the recusal application were repeated outward remarks of the trial judge to the effect that Counsel knew more than she did. It is necessary to assess the impression of that outward remark on the fair minded lay observer.

198. In my view, the remark is capable of being understood by the fair minded lay observer (a non-lawyer) as meaning something more than a mere expression of acceptance of submissions or approval of Counsel’s diligence. The remark contains an admission of a relative lack of knowledge on the part of the judge in respect of an aspect of the controversy exclusively under her control: the conduct of the trial. The remark cannot be smoothed over by reference to Counsel’s responsibility to assist the bench. Rather, it must be grappled with through the lens of the lay observer, and it was necessary that the trial judge so grapple with it at the time that the allegation was first made.

199. As I have said, the reasons in Gindy No 1 were not published at that time and did not follow for some three and a half years later. In accordance with the reasoning in Vakauta v Kelly, an apprehension of bias affecting the hearing may be confirmed in an evidentiary sense (and even exacerbated) by reference to reasons for judgment later published. But the opposite is not true. If there is the requisite appearance of impartiality at the time of the trial, it cannot be explained away by reference to clarifying words published years later in the reasons for judgment. Moreover, the test for apprehended bias being objective, it matters not what the trial judge subjectively intended to convey by the remarks.

200. In Gindy No 1 the trial judge failed to apply the double might test to the words actually said. Instead, the reasons for judgment seek to attribute a different meaning to them by reference to the subjective intention of the judge. In other respects, the words employed in Gindy No 1 to some extent only serve to reinforce the impression conveyed at trial by the phrase “counsel will know better than I do”. After confirming that the words were said “on a number of occasions” the trial judge went on to state that Counsel did in fact know more than she did in respect of procedural matters in light of her relative inexperience in the conduct of civil litigation of the kind before her. Her Honour said that it was to be expected (given the poor quality of submissions advanced by the appellant’s McKenzie friend) that she would “tend to rely on counsel’s advice on procedural matters” (at [39]). From the perspective of the fair minded lay observer, the idea that a judge relied on Counsel’s “advice” because she was inexperienced would be surprising, given that the role of the judge is to act as an impartial adjudicator in the controversy, including controversies turning on procedural laws.

201. It is possible that the trial judge subjectively intended to convey something other than what was actually said, both in her reference to relying Counsel’s “advice” and in her remark that Counsel knew more than she did. However, as emphasised in Ebner, the double-might test is based not on the subjective intention of the judge but on the perceptions of a hypothetical member of a public whose interests the courts are there to serve.

202. In support of the recusal application at trial it was submitted that the appellant perceived that the words of the trial judge conveyed the impression that the trial judge was in fact so reliant upon the respondents’ Counsel that she would accept everything Counsel said or wrote. That submission resembles the test for actual bias, but it is not a correct statement of the test for apprehended bias. The double might test is such that it is sufficient to show that the words, as reasonably interpreted by the fair minded observer, might cause the observer to conclude that the trial judge might be unable to bring an impartial mind to bear. The test is concerned with a fear as to how the judge might adjudicate the issues, not with how the issues were in fact adjudicated. Accordingly, it is not to the point that the trial judge in fact went on to reject some of Counsel’s submissions.

203. In my view, the fair minded observer would interpret the remarks literally, and would not be minded to disregard them as involving a mere infelicitous use of language. The perceived fact giving rise to the feared departure from the requirement of impartiality is the acknowledged degree of unquestioning deference to a party’s advocate, admitted by the trial judge to be necessitated by her relative lack of knowledge in matters of practice and procedure. The lay observer might apprehend that the trial judge might be unable to decide the many matters of practice and procedure arising in the course of the trial with the degree of independent scrutiny required of an impartial decision-maker. The appellant’s argument should be upheld on that basis.

Conspiracy remarks: NOA [16A]

204. The grounds for recusal alleged at trial included the following allegation, as summarised by the trial judge in Gindy No 1 (at [9(a)]): That Ms Gindy believed I had pre-judged her case before hearing the evidence, because I had referred on a couple of occasions to the apparent belief of Ms Gindy and Mr Elmaraazey that there was a conspiracy against both of them (the conspiracy theory claim). (original emphasis)

205. The trial judge recognised that there had been at least two references to conspiracy theories. They each arose in connection with the appellant’s submission that she should be permitted to cross-examine a compliance officer who had returned documents to the Court in response to a subpoena issued at the respondents’ request to the ANZ Bank. An issue arose as to whether the compliance officer may give evidence by telephone, a course resisted by the McKenzie friend. The events are described in Gindy No 1 as follows: 25. On Day 49, Mr Elmaraazey insisted that the ANZ officer needed to give evidence in person. After I told him that I could not see ‘a single good reason for doing any such evidence other than by telephone’, there was the following exchange: MR ELMARAAZEY: Yes, but there is one issue always about people giving evidence by telephone. HER HONOUR: Yes. MR ELMARAAZEY: Whether the witness is sitting by himself or someone assisting the witness what to say or what not to say. These things sometimes happen, you see. It's not like - - - HER HONOUR: Why on earth would it happen in this case? What you're suggesting is that ANZ has an interest in this case. MR ELMARAAZEY: Well, you see, it's - - - HER HONOUR: That they might somehow be affected by their interest? MR ELMARAAZEY: I can't predict who has interest and who hasn't, your Honour, but as a general comment - - - HER HONOUR: Mr Elmaraazey, it's Ms Gindy's case. If you don't understand it then we're all in difficulties MR ELMARAAZEY: No, it's not that, your Honour. HER HONOUR: What possible interest could ANZ have in it? MR ELMARAAZEY: Your Honour, it's not about - it's not about - - - HER HONOUR: It's about being rational, Mr Elmaraazey. MR ELMARAAZEY: I raise this point, your Honour, because it happens a lot. HER HONOUR: It's not about running conspiracy theories. MR ELMARAAZEY: No, we haven't got to that yet. HER HONOUR: I'm not so sure about that. 26. Mr Elmaraazey’s claim that the accuracy of the ANZ bank statements was in doubt seemed to depend, among other things, on the fact that Ms Gindy had had two ANZ credit cards, one after the other, and that there was no answer to the question of ‘what happened to the first on upon opening the second one?’. On Day 51, against the background of Mr Elmaraazey’s claim that the ANZ officer should give evidence in person rather than by phone because of the possibility that if she gave evidence by phone there might be someone sitting beside her telling her what to say, I told Mr Elmaraazey that the fate of the original credit card didn’t matter, saying: It is absolutely irrelevant even to any of the conspiracy theories that you have advanced about what might be going on - - - (footnotes omitted)

206. Earlier in her reasons the trial judge identified that allegations of both apprehended and actual bias had been raised. In passages that appear to deal only with the allegation of actual bias based on the “conspiracy” comments, her Honour said: 27. In short, the first reference to conspiracy had come from Ms Gindy in her discussion with Mr Crabb several years before; my subsequent uses of the word had emerged in response to Mr Elmaraazey’s suggestions that ANZ might have had unknown reasons for wanting to restrict or subvert the giving of true evidence, by the ANZ compliance officer, about Ms Gindy’s bank accounts. 28. My comments undoubtedly indicated a degree of impatience with what seemed to be inappropriate (and time-consuming) objections to the admission of business records in the absence of any rational basis for challenging the accuracy of the records. However, I rejected the suggestion that they demonstrated pre-judgment of any of Ms Gindy’s claims to the extent that those claims could be established by evidence.

207. The reasons in Gindy No 1 otherwise contain no practical application of the double might test to the matters complained of, other than a remark at [68] that the appellant “had not even offered evidence that could, if accepted, have been adequate for a finding of apprehended bias”. That is an incorrect statement. The appellant had advanced the submission that the “conspiracy remarks” were such as to give rise to an apprehension of bias. It was necessary for the trial judge to resolve that allegation according to principle.

208. It is plain from the transcript that the McKenzie friend was attempting to advanced general submissions about the disadvantages of receiving evidence by way of telephone link in circumstances where the witness could not be observed so that the rules prohibiting improper communications with a witness could not be properly supervised. The trial judge gave those submissions short shrift, first characterising them as the promulgation by the appellant of a conspiracy involving the ANZ Bank. It appears that the McKenzie friend attempted to reinforce that his submissions were in the nature of general submissions with respect of the taking of telephone evidence, but he was interrupted again by the trial judge.

209. The two remarks invoking the phrase “conspiracy theories” occurred in close proximity to each other and must be considered together. In keeping with a pattern persisting throughout the trial, the trial judge engaged directly in argument with the McKenzie friend such that the issue arising for resolution descended into a debate between him and the trial judge rather than the orderly resolution of competing submissions as advanced by each party. It was in the course of that direct exchange that the phrase “conspiracy theories” was used by the trial judge as a description of at least a part of the appellant’s case. Her Honour was not there quoting from anything said by the appellant or the respondents in the course of the trial.

210. The trial judge was correct to acknowledge that the comments undoubtedly indicated a degree of impatience with what she perceived to be a time-wasting issue. However, as discussed below, whether or not the words are delivered with a degree of impatience is not to the point. The appellant’s complaint was not about the impatient tone of the trial judge, nor did it turn on whether the impatience of the trial judge was understandable. The complaint was that the content of the words gave rise to a concern that the trial judge viewed the appellant’s case as one founded in conspiracy theories.

211. If the first excerpt were to be taken in isolation I would not consider the remarks to give rise to an apprehension of bias. However, consideration of the two remarks together yields a different outcome. The trial judge expressly stated that the McKenzie friend had advanced conspiracy theories about what might be going on. Considered together, the remarks may reasonably be understood by the fair minded lay observer to mean that the trial judge had formed the view that more than one aspect of the appellant’s claims against the respondents was nothing more than a conspiracy theory. On that interpretation, I consider that the fair minded lay observer might apprehend that the trial judge might be unable to listen to the appellant’s case with a mind open to its factual and legal merits. Whilst the trial judge was correct to state that the remarks did not demonstrate actual pre-judgment, the rejection of the actual bias allegation did not dispose of the apprehended bias allegation.

212. There is nothing to suggest that the intervention of the trial judge was motivated by a desire to better understand the evidence, nor were the remarks of a kind that might give the McKenzie friend some useful information as to the preliminary thinking of the trial judge, nor were they aimed at clarifying an issue. Rather, they might reasonably be understood to mean that the trial judge had arrived at a point of significance such that she might henceforth disregard submissions from the McKenzie friend in the presentation of the appellant’s case.

The relevance of exasperation and impatience

213. It may be accepted that the fair minded lay observer would understand that the remarks of the trial judge were made in an atmosphere in which the trial judge had become impatient with the McKenzie friend. It may also be accepted that the outward expression of impatience by the trial judge in the course of the trial may be taken into account in determining the perceptions of the fair minded lay observer. In an appropriate case a tone of impatience or exasperation on the part of the trial judge may affect the range of meanings that might reasonably be conveyed by the uttered words. The trial judge, charged with the responsibility for the conduct of the trial, is entitled to express disapproval, impatience, even anger at the parties and their representatives for acts or omissions that unnecessarily prolong the proceedings. There will be cases in which the maintenance of a calm composure is neither necessary nor even appropriate, particularly in the face of repeated default or dereliction having a real impact on the judicial and administrative resources of the Court. It is not the case that a trial judge is forbidden from strongly rebuking a party or a party’s representative in cases where strong rebuke is called for.

214. However, when the patience of the judge is lost, so too might be the appearance of impartiality. That may occur in moments where the lack of decorum of the judge results in the utterance of words suggesting an associated loss of professional detachment with respect to the substantive issues to be decided. That is what occurred here. It is irrelevant that the trial judge might have chosen different words had she not lost her patience (rightly or wrongly) with the McKenzie friend.

215. Moreover, to the extent that the trial judge was impatient with the prolongation of the issue, it must be recalled that the prompt and orderly resolution of the issue was within the power of the trial judge. The trial judge could and should have ruled on the questions concerning the cross-examination of the compliance officer by hearing the parties’ submissions on the contentious points in turn, strictly limiting their time in accordance with their importance, and then making a ruling.

216. Accordingly, to the extent that the trial judge implicitly asserted that the words were somehow justified by the McKenzie friend’s conduct, each step in that reasoning must be rejected as erroneous. It is the consequence of the words (considered in context) that must be considered. Their consequence was that an apprehension of bias arose such that the trial judge ought to have recused herself, at least when called upon to do st so on the 51 day of the trial, if not before. I am reinforced in that view by the material that follows.

Exhibition of a hostile attitude: NOA [5], [9A], [11], [12], [14], [17], [20]

217. Particulars [17] through to [19] use various verbal formula to allege (relevantly) that the cumulative effect of the preceding particulars is that (among other things) the trial judge exhibited a hostile attitude toward the appellant and the McKenzie friend, and a lack of impartiality, so as to give rise to an apprehension of bias. That cumulative approach accords with legal principle: the fair minded lay observer must be taken to understand events in their proper context; the perception that might reasonably arise by reference to a singular event must be considered having regard to the conduct of the trial as a whole. However, that is not to say that the approach is one to be approached quantitatively. If an incident properly giving rise to an apprehension of bias occurs on one day of a long trial, I do not consider the incident may be ignored by pointing to the circumstance that on other days nothing of moment occurred.

218. The direct allegation of hostility is found in particular [11]. It alleges that the trial judge exhibited a hostile attitude towards the appellant and her McKenzie friend, “which in the end caused the appellant to collapse in the court room, carried by an ambulance and hospitalized”. Particulars [12] and [14] also allege conduct which is said to have had the consequence of causing the appellant “considerable stress, discomfort, loss of concentration, and distraction in giving her evidence and the effective handling of her case”.

219. For the reasons expressed earlier, a finding of apprehended bias does not depend on there being a causal connection between the conduct complained of and some detrimental effect upon the health and wellbeing of the affected party, nor does it depend on proof that the conduct in fact deprived the affected party of the opportunity to present his or her case.

220. The allegations of hostility and preferential treatment overlap. A finding of unjustified preferential treatment as between the parties may tend to support a finding that there existed a hostile attitude toward one but not the other. Exhibition of a hostile attitude toward one party may support a conclusion that the lay observer might apprehend that the trial judge might not bring an impartial mind to bear in the resolution of the issues, although whether that is so must of course depend on all of the facts and circumstances of the case.

221. The appellant relies on a number of transcript excerpts in support of particular [11] and further excerpts are said to support the conclusion that the trial judge afforded preferential treatment. The key events be considered under the following headings: (a) Cry wolf remarks – (30 January 2018); (b) Gesture and laugh – (30 January 2018); (c) The McKenzie friend leaves the courtroom – (13 July 2018); and (d) The appellant leaves the courtroom – (26 July 2018).

Cry wolf remarks th

222. On the 26 day of the trial, the trial judge heard evidence on a voir dire. In that context, the respondents’ Counsel was cross-examining the appellant. Counsel asked that the witness be shown a document, and a document was passed to her. A dispute arose as to whether the McKenzie friend should be permitted to see the document. The exchange commenced as follows: MR WALSH: Could the witness be shown this document? MR ELMARAAZEY: Can I see it please? MR WALSH: No, just please. MR ELMARAAZEY: Well, no. Why don’t I see it before she sees it? HER HONOUR: Mr Walsh is there a reason - - - MR ELMARAAZEY: That’s very strange. HER HONOUR: - - - why? MR WALSH: Well, it is - - - MR ELMARAAZEY: How is going to pass the document to the witness without seeing me – I see a copy of it. HER HONOUR: Well, quite easy to pass it to the witness. That is not the question. MR ELMARAAZEY: So why then I don’t have a copy to look at? HER HONOUR: Well, is there a reason - - - MR ELMARAAZEY: He said can you see document and then I don’t have - - - HER HONOUR: No. But you are not the witness. MR ELMARAAZEY: But you see, am I assisting Ms Gindy or not? I have to see - - - HER HONOUR: Well, that is a moot point sometimes. MR ELMARAAZEY: Well, because maybe there would be questions I have to object to, you see. HER HONOUR: Well, you will hear the questions. I mean the document is not a question. MR ELMARAAZEY: But how I hear the question without seeing the document or the question.

223. The point raised by the McKenzie friend was not without merit. He objected to the witness being shown a document with an apparent intention that she be cross-examined on it, without a copy of the document being provided to him. The McKenzie friend protested that he could not assist the appellant in cross-examination if he could not object to questions based on a document that Counsel could see but he could not. The trial judge initially responded with a comment that might be fairly interpreted as doubting the proposition that the McKenzie friend was assisting the appellant in the proceedings at all.

224. The trial judge then asked the respondents’ Counsel if there was a reason why the McKenzie friend could not see the document. The exchange continued: MR WALSH: Yes, your Honour. Forensic purpose that I want to pursue. HER HONOUR: Okay. All right. Well, as long as it is a legitimate forensic purpose I won’t ask you to explain it at this stage. MR ELMARAAZEY: No. With respect - - - HER HONOUR: Well, are you in a position to explain it to Mr Elmaraazey? MR WALSH: No, I would just like to proceed, your Honour. HER HONOUR: Okay.

225. At that point the trial judge decided that Counsel should be able to proceed with his questioning without explaining his forensic purpose for declining to provide a copy to the McKenzie friend. Despite his interruption, the McKenzie friend was not afforded an opportunity to be heard on that particular ruling. Unsurprisingly (and not inappropriately) the McKenzie friend asserted a right to be heard on whether the Court should accept Counsel’s assertion that he had a legitimate forensic purpose: MR ELMARAAZEY: No. Just hang on. HER HONOUR: Mr Elmaraazey, no look this is on a voir dire. MR ELMARAAZEY: So you – I take it that - - - HER HONOUR: No. This is on a voir dire. If there is a problem - - - MR ELMARAAZEY: No, just let me – let me finish. I take it that you accepted with respect from Mr Walsh because you said I had a forensic purpose, I can’t see the document while Ms Gindy being cross-examined about it. Am I right or wrong? That’s my point. HER HONOUR: That is correct and I am accepting Mr Walsh’s assurance as an officer of the court, that it is appropriate that he is able to cross-examine Ms Gindy about it, without - - - MR WALSH: Ms Gindy, would you please not read the document. HER HONOUR: the McKenzie friend seeing it.

226. As the trial judge addressed the McKenzie friend, Counsel was asking the appellant not to read or draw on the document and not to turn the document over.

227. The McKenzie friend continued to address the primary judge: MR ELMARAAZEY: So it’s a matter whether there is an officer of the court will decide whether the one who’s assisting the witness can see the document or not? HER HONOUR: No. MR ELMARAAZEY: That’s what you said on the transcript. HER HONOUR: No. It is a matter – a person who is an officer of the court can generally – ought to be able to be relied on to deal honestly with the court in a situation where there is a reason for not dealing with things in the public arena, in the short term. MR ELMARAAZEY: And what would happen then if that paper was being proved to be wrong and the document should have been shown. HER HONOUR: Well, if they - - - MR ELMARAAZEY: So that will raise - - - HER HONOUR: - - - if they had been done for an improper purpose, there might be some sort of disciplinary action. MR ELMARAAZEY: Well, I make a note of that. HER HONOUR: Yes, you make a note of that. It is all on the transcript. MR ELMARAAZEY: Well, I know. There is a lot on the transcript. HER HONOUR: Yes.

228. Counsel then asked for the document to be retrieved. At that point, the McKenzie friend said that he called for the retrieved document to be produced to the appellant immediately, regardless of whether it was going to be put to her. The trial judge told the McKenzie friend to sit down. He did not sit down immediately. Instead hef repeated his call for the documents. The exchange continued: HER HONOUR: Yes and if something goes wrong, we can have the argument about whether it is excluded from evidence later, okay? MR ELMARAAZEY: No, my - - - HER HONOUR: Just - - - MR ELMARAAZEY: Just - can I just say - - - HER HONOUR: No, nothing. Just - - - MR ELMARAAZEY: Okay. HER HONOUR: - - - sit down please. MR ELMARAAZEY: All right.

229. The trial judge then said this: HER HONOUR: Mr Elmaraazey, I don’t know if you are familiar with the story of the boy who cried wolf but the fact is in the last six weeks of this hearing, you have exhausted your credibility in terms of me having to take seriously every time you hop up and start arguing - - - MR ELMARAAZEY: The - I - - - HER HONOUR: And I am just getting a little bit impatient with this. We have been going for another nearly two days and we still haven’t started taking any proper evidence - - - (emphasis added)

230. The McKenzie friend replied that he rejected what the primary judge had said and that he would rely on the authorities he had handed up to support his submissions. To that, the trial judge said: HER HONOUR: I am not aware that there are any authorities about the boy who cried wolf but - - - (emphasis added)

231. I will refer to the two emphasised passages as the “cry wolf” remarks. It is necessary to ask how the fair minded lay observer might interpret them. The starting point in that analysis is that the fair minded lay observer may be assumed to have knowledge of the fable to which the trial judge referred.

232. As such, the words of the trial judge may be reasonably understood to mean that she had ceased taking the McKenzie friend’s submissions seriously because she had formed the view over the previous six weeks that his arguments were so lacking in merit that she could not trust that there would be anything of substance in any future argument he might advance. The unqualified reference to the McKenzie friend’s “credibility” being “exhausted” supports that interpretation.

233. It would also be apparent to the fair minded lay observer that the cry wolf remarks were prompted by arguments the McKenzie friend had just advanced (or at least attempted to advance) about the fairness of the procedure concerning the document passed to the appellant. Of course, the test for apprehended bias does not turn on the question of whether the McKenzie friend’s submissions preceding the cry wolf remarks should have been upheld. Rather, the present focus is on the meaning and implications of the cry wolf remarks, considered in their proper context. I nonetheless pause to observe that the arguments raised by the McKenzie friend immediately preceding the cry wolf remarks were not lacking in merit at all. They required judicial consideration and adjudication.

234. In my view, the fair minded lay observer might reasonably apprehend that the trial judge’s express and unqualified views about the McKenzie friend’s exhausted credibility might cloud her judgment in such a way that she would not be open to persuasion concerning any argument he might (to adopt her condescending words) “hop up” to make.

235. Consistent with the authorities discussed earlier in these reasons, it is not uncommon for a trial judge to parse comment on the merits of an argument before judgment is delivered. Such comments may put the parties in little doubt as to where the mind of the judge may ultimately land on an issue. But they would not ordinarily give rise to an apprehension of bias if they are expressed in a way that does not suggest that the mind of the judge is not open to persuasion with respect to the next issue, and the next.

236. The mischief in the cry wolf remarks is that they are prospective and absolute in their nature – they are not merely an assessment of submissions already made, but a clear indication of how future submissions would be approached, should the McKenzie friend “hop up and start arguing”: they would not be taken seriously. I have no difficulty concluding that the remarks, so understood, readily satisfy the double might test. It matters not that a trial judge might reasonably hold a dim view as to the skill of an advocate appearing before her. There will be cases where the formation of views of that kind cannot be avoided. However what must be avoided is the appearance that the views so formed (whether right or wrong) might have affected the judgment of the decision-maker to such a degree that she or he might be unable to bring an impartial mind to bear. The appearance of impartiality extends not only to the resolution of the final issues but to the resolution of procedural and interlocutory disputes.

237. The feared departure from the requirement of impartiality is reinforced by the circumstance that the cry wolf remarks were made immediately after the McKenzie friend made a submission (or at least had attempted to do so) that was not lacking in merit. But as I have said, the conclusion of apprehended bias arises whether or not there was merit in the submission. The vice in the comment was the asserted “exhaustion” of the “credibility” of the McKenzie friend.

238. If I am wrong in concluding that the conduct of the McKenzie friend in raising unmeritorious arguments is relevant in determining whether an apprehension of bias arose, then I would in any event conclude that the subjective views of the trial judge were coloured by her own conduct in wrongly refusing at times to listen to or rule upon properly made objections raised on the appellant’s behalf. Earlier in these reasons, I rejected the contention that the trial judge shut down objections by reference to 10 of 12 transcript excerpts relied upon by the appellant in support of the recusal application at trial. That argument was rejected for the most part because no discernible pattern of rejection could be found on particular excerpts relied upon.

239. However, the remaining excerpts on that list do indicate that from time to time the trial judge prematurely viewed the submissions of the McKenzie friend to be lacking in merit without hearing submissions or otherwise in a manner that was plainly erroneous. To the extent that it is relevant, I am satisfied that the remarks that the McKenzie friend had “cried wolf” too many times such that his “credibility” had been “exhausted” was coloured at least in part by an erroneous characterisation of some of the McKenzie friend’s prior objections or submissions. Two examples may be found in excerpt 4 and excerpt 6 listed in MFI#B

240. Excerpt 4 is as follows: MR WALSH: … And in 2010 you realised that you did not have enough money to keep your obligations to the lender up to date for each of those properties. That's correct, isn't it? MR ELMARAAZEY: No. I have to object. MR WALSH: No. I - - - MR ELMARAAZEY: Just a minute. HER HONOUR: Mr Elmaraazey, no. Sit down please. MR ELMARAAZEY: Can you ask the witness to go out because I tell you why. MR WALSH: No, your Honour. This is an interruption, with respect. HER HONOUR: No. Sit down, please. MR ELMARAAZEY: Because you see - - - HER HONOUR: Mr Elmaraazey, no. Sit down. We will have this discussion later if it needs to be had - - - MR ELMARAAZEY: It's going - - - HER HONOUR: - - - or you can have it in re-examination. Just please sit down.

241. In this instance the trial judge refused to entertain an objection raised by the McKenzie friend without first allowing him to articulate the objection at all. It is appropriately characterised as an instance of the trial judge improperly shutting down the appellant from advancing her case.

242. Excerpt 6 is as follows: MR WALSH: May I put on the record that her Honour is being extremely patient with you?---I know she’s very – I mean your Honour very patient person and you are very patient person with me. You’re very kind. MR ELMARAAZEY: Just – no, just a minute. HER HONOUR: Please. MR ELMARAAZEY: No, just a minute. MR WALSH: Mr Elmaraazey, this is - - - HER HONOUR: Mr Elmaraazey, I do not want interruption in this. After we’ve finished this section, this particular set of questions then you can hop up and make a general comment if you still thing it’s justified. Please sit down at the moment. It is not fair of you to try and interrupt Mr Walsh’s cross-examination.

243. Here, the McKenzie friend interrupts with the words “Just – no, just a minute”. As I have mentioned, in the ordinary course, that form of words may not necessarily be understood as raising an objection to the form or content of a question. However, in my view the line of questioning that Counsel had embarked upon was obviously objectionable. In this instance, the trial judge ought to have understood the McKenzie friend as rising to advance a proper objection. The McKenzie friend was entitled to articulate an objection to Counsel asking the witness to agree with the servile proposition that the trial judge was being patient with her. Whether the trial judge was being patient with the witness is not for the witness to comment on. The power dynamics in a courtroom in the course of a trial make it a particularly objectionable question, and in the present case it could have had no proper forensic purpose. The trial judge was wrong to treat the interruption as improper and to require the McKenzie friend to sit down. The objection should have been heard and ruled upon.

244. In my view these excerpts can and should be considered in conjunction with all of the other material upon which the appellant relies in support of the first ground of appeal. The examples of the McKenzie friend being improperly shut down from making legitimate objections make it all the more difficult to comprehend the conduct of the trial judge in asserting that the McKenzie friend’s “credibility” was “exhausted”. The assessment of his “credibility” in that regard was founded at least in part on an erroneous assessment the trial judge had made of some of his submissions.

Gesture and Laugh – NOA [2]

245. On 30 January 2018 the appellant remained under cross-examination. In response to a question from the trial judge, the appellant raised a complaint about the conduct of the respondents’ Counsel. The exchange proceeded as follows: MS GINDY: …. Mr Walsh, what he did in his cross-examination when he said it could be you imagine that he did his hand like this, the (indistinct) I have not to look at him, so I don’t get distracted. I (indistinct) and I said (indistinct) Her Honour thought that I am in trouble looking down(indistinct) but the reason I look down because when he made his hand like this, I said the best option for me is to look down. MR WALSH: I am sorry - - -? MS GINDY: And I answer. MR WALSH: It is a gesture that I do use. I will put my hand down? MS GINDY: I must say I didn’t like it. MR WALSH: Well, it’s merely an expressive gesture? MS GINDY: No, you’ve done it like this. It’s like someone crazy or imagining and I’ve said I am not imagining. I am not living an illusion. MR WALSH: Sorry. I - - -? MS GINDY: And I looked down, so I don’t get distracted with the body language. MR WALSH: I reject that, your Honour? MS GINDY: That’s all right. Object; I am not saying not to object.

246. The above exchange occurred between Counsel and the appellant without interference by the trial judge. It is apparent that Counsel understood the appellant to be complaining that he had gestured with his hands during her cross-examination in a way that she perceived was intended to indicate that she was crazy, and that she had looked down when giving evidence for that reason so that she wouldn’t become distracted.

247. The following exchange followed: HER HONOUR: Ms Gindy, it is unfortunate - - -? MS GINDY: I’m sorry, your Honour. HER HONOUR: that you have interpreted it that way. I - - -? MS GINDY: I am sorry. HER HONOUR: - - - am absolutely sure that it - - -? MS GINDY: The second one your Honour when Mr Weetman laughed and he laughed. (emphasis added)

248. The appellant here raises a new complaint to the effect that that the respondents’ solicitors had laughed in the course of her cross-examination. The trial judge interrupted the appellant, although not to express concern or to seek clarification of the allegation she had just made. The transcript reads: HER HONOUR: You are not in a position to make – to complain about people laughing in the course of this. All right - - -?--- MS GINDY: Yes. Don’t worry, your Honour. HER HONOUR: I think we just put that one aside right now?--- MS GINDY: Yes, don’t worry. HER HONOUR: Mr Walsh - - -?--- MS GINDY: It’s not before this court what complaint I will put. HER HONOUR: - - - would you care to ask that question again?--- MS GINDY: My complaint is going to be outside. I am sorry, your Honour. MR WALSH: Pardon? HER HONOUR: Ms Gindy, just please be quiet so that Mr Walsh can - - - MR WALSH: Who is outside, Ms Gindy?--- MS GINDY: Don’t worry.

249. The appellant’s two complaints may be considered separately.

250. It seems to me that the complaint about Counsel’s gesture was one in which the appellant raised the issue directly with Counsel and Counsel (not improperly) sought to reassure the appellant that his gesture was not intended to convey any insulting message or to make her experience as a witness more difficult. The appellant did not act improperly by raising the issue directly with Counsel. It is apparent that she did so in order to explain her own body language in the course of a very long cross-examination so that her behaviour in looking down would not be misunderstood.

251. I do not consider it was necessary for the trial judge to say anything to Counsel about the gesture issue. The potential for misunderstanding had been resolved in a polite exchange between the appellant and Counsel. Nor do I consider the exchange concerning the gesture to give rise to an apprehension of bias on the part of the trial judge. I have not factored that exchange cumulatively with other factors in upholding the allegation of apprehended bias.

252. The appellant’s complaint about laughing by a legal practitioner in the course of her cross-examination belongs in a different class.

253. The remark of the trial judge that the appellant was “not in a position to … complain about people laughing in the course of this” was wrong, and fundamentally so. A witness in the appellant’s position has every right to complain about conduct in the course of cross-examination that might reasonably be interpreted by her as distracting or humiliating. As a witness, the appellant was entitled to raise an allegation of that kind with the trial judge having responsibility for the control of the conduct of the proceedings (including the professional conduct of practitioners before her). She was entitled to a judicial response, proportionate to the seriousness of the issue she had raised.

254. The appellant’s “position” was such that she was compelled to remain in the witness box and subjected to prolonged questioning by virtue of the powers of the trial judge. The trial judge should have expressed in unequivocal terms that laughter in the course of cross-examination, if it occurred, was wholly unacceptable. The response of the trial judge would be reasonably understood by the fair minded observer to indicate that the trial judge did not consider any such laughter to warrant any action. The words of the trial judge would be reasonably understood to mean not only that she would tolerate such conduct if it occurred, but that complaints about such conduct by the witness would be discouraged and disapproved. These conclusions do not depend on any finding as to whether or not laughter in fact occurred. The salient point is that the hypothetical observer would reasonably conclude that the trial judge was not at all concerned if it did, and that she was annoyed with the appellant for daring to raise the point.

255. The fair minded lay observer would be entitled to ask why the trial judge should have responded in that way. I do not consider the lay observer would explain away the conduct as a slip of the tongue or a mere lapse of judgment. In my view, the fair minded lay observer would understand the behaviour of the trial judge to be humiliating of the appellant. The humiliation was compounded by the failure of the trial judge to disapprove of Counsel’s rhetorical question after the appellant said that she would be making her complaint “outside”. The question “who is outside, Ms Gindy?” could serve no forensic purpose in cross-examination other than to taunt the appellant and to emphasise her isolation in a room of lawyers in her suit against lawyers. It was plain that the appellant took the view (correctly) that her complaint to the trial judge had fallen on deaf ears and that it would be necessary for her to raise the complaint to an external entity authorised to do something about it. In my view, the failure of the trial judge to correct Counsel or otherwise disapprove of the question, only served to compound the humiliation arising from the laughter complaint. Taken together, the circumstances would give rise to an impression in the mind of the fair minded observer that there existed a cosy relationship between the bench and the bar.

256. In accordance with the two step process discussed in Ebner, it is necessary to identify the circumstances that could be said to give rise to the concern that might be held by the lay observer that the trial judge might not bring an impartial mind to bear in the resolution of the issues she had to decide. They are as follows: (a) the trial judge was charged with the responsibility of assessing the credibility of the appellant; (b) the appellant complained of matters that had the capacity to affect the presentation of her case (including her demeanour in the witness box) being matters that only the trial judge could sanction or control; (c) the trial judge was dismissive of the complaints, including by failing to disapprove of conduct that on any reasonable view would compound the stress and anxiety of a witness; and (d) the conduct of the trial judge fairly indicated a cavalier attitude to the witness, whose case she had to decide, coupled with an overly forgiving attitude toward misconduct alleged against the representatives of the opposing party.

257. I do not consider it necessary to attach the adjective “hostility” to the facts and circumstances just described. What matters is whether the facts and circumstances satisfy the double might test. I am satisfied that they do.

The McKenzie friend leaves the courtroom th

258. The following exchange occurred on the 56 day of the trial: MR WALSH: I am interested in trying to avoid any misunderstanding. MR ELMARAAZEY: But none. There is none. MR WALSH: As - - - HER HONOUR: Mr Elmaraazey, please be quiet. MR WALSH: As to the - - - MR ELMARAAZEY: (indistinct) HER HONOUR: Mr Elmaraazey, are you going to be quiet, or are you going to leave the room? MR ELMARAAZEY: (indistinct)?--- MS GINDY: Leave the room. MR ELMARAAZEY: No just?--- MS GINDY: Leave the room (indistinct) leave the room and (indistinct) and see how it goes with this court. Leave the room. I thought you put the proper application for it. HER HONOUR: Ms Gindy, this is not - - -?--- MS GINDY: It (indistinct) where (indistinct) HER HONOUR: Ms Gindy? MS GINDY: (indistinct) you used to tell us, are we speaking the (indistinct) we’re not speaking (indistinct) you not getting what we’re saying. You not getting what the barrister said. HER HONOUR: Ms Gindy, I am not sure what you are saying at all. I can’t understand a word - - -? MS GINDY: It doesn’t matter, it’s (indistinct) I know that you going to rule against me and (indistinct) that’s it. Go for it. Go for it. HER HONOUR: Ms Gindy - - -? MS GINDY: You not (indistinct) saying (indistinct) he’s misleading you. He’s misleading you, Mr Walsh. HER HONOUR: All right. Well - - -? MS GINDY: What is this - this is all (indistinct) speaking English, it’s not (indistinct) what is it every time (indistinct) go out. Go out. ADJOURNED

259. It may be observed that in the above exchange it was the appellant who urged the McKenzie friend to leave the courtroom after the trial judge had told him to either be quiet or leave.

260. The appellant then continued to make submissions in the absence of the McKenzie friend. Not all of it is recorded and some parts are marked as indistinct on the transcript. The submissions as recorded are otherwise disjointed and the relevance of some of them is not immediately apparent. But other parts are perfectly clear. The appellant: (a) said that she had told the McKenzie friend to leave room because of allegations being made about his behaviour; (b) complained about the conduct of the respondents’ solicitor that she claimed had gone unchecked; (c) stated that she wanted access to the transcript; (d) stated that she re-opened her bias application; (e) complained again that the trial judge had said that Counsel knew better than her; (f) said that she would invite the McKenzie friend back, provided that he was not humiliated and threatened; and (g) complained that the McKenzie friend had been required to apologise for a slip of the tongue, but Counsel for the respondents had not been made to apologise.

261. The trial judge responded: HER HONOUR: Please sit down now. I want to say a couple of other things to you. One is I absolutely reject your condition for inviting Mr Elmaraazey back. You can either invite him back, if you want him to help you with your case, or you can leave him outside. I cannot accept a condition in the form that you formulated it, that Mr Elmaraazey is not to be humiliated et cetera. Now it is basically my obligation not to humiliate anyone in court but it is also my obligation to try and run this proceeding in some sort of vaguely efficient manner, so that one day it will actually be finished. Mr Elmaraazey regularly fails to answer my questions, he does not give direct answers, he launches in to speeches. And he regularly resists my attempts to bring him back to the point, so that we can do the genuine work that is needed to be done in this case, rather than simply filling in the time. Now if that is confining Mr Elmaraazey’s speeches in that way is inappropriately or unacceptably humiliating to him or to you, well that is unfortunate and it may be that he simply has to withdraw as the McKenzie friend. If Mr Elmaraazey can come in to the court and either focus his activities a bit better or put up with being - with my attempts to make him focus, then we can get on with it.

262. The McKenzie friend then returned and was addressed by the trial judge in the following terms: HER HONOUR: As a result of submissions made by Ms Gindy or comments made by Ms Gindy, I have pointed out to her that I am not in the business of humiliating anyone in this court but I am in the business of trying to confine what goes on in the court to what needs to be done with a view to getting this matter heard as quickly as possible and that means two relevant things at the moment. That I do not intend to let you go off into making discursive speeches - - - MR ELMARAAZEY: Me? HER HONOUR: - - - as per a few of this afternoon instead of answering particular questions that I have asked you and it also means that I will continue not to put up with you continuing to talk when someone else is talking, generally Mr Walsh, right? So as long as you are happy to conduct yourself in a way that a legal practitioner would be expected to conduct himself in the court, then we can move on satisfactorily. ..

263. I am not satisfied that these particular events support the claim of apprehended bias. The fair minded lay observer may be taken to understand that the representative of a party should adhere to standards of courtesy and respect for the Court’s procedures, including the requirement not to interrupt or disrupt the proceedings illegitimately. The trial judge was entitled to enforce those expectations, including in the most strident of terms. The fair minded lay observer may be taken to appreciate that requirements may be made of participants in the trial and consequences imposed for the failure to comply. Whether the directions and consequences are indicative of bias will depend on the circumstances of the case. Here, the trial judge had directed the McKenzie friend not to interrupt but it is apparent that her direction was ignored. The conduct of the trial judge in this instance in telling the McKenzie friend to be quiet or to leave is not an indication of hostility toward him of a kind that might lend support to an apprehended bias claim.

264. It is nonetheless relevant to observe that the appellant raised a number of matters in the absence of the McKenzie friend, including by persisting in her complaint that the trial process was affected by at least an apprehended bias.

The appellant leaves the courtroom. nd

265. On the 62 day of the trial the third respondent Mr Crabb was under examination-in-chief. The appellant was seated at the bar table. The McKenzie friend was questioning Mr Crabb about whether he might be mistaken in his belief as to whether the appellant’s signature appeared on a document. After an exchange between the McKenzie friend and the trial judge, Counsel objected on the basis that the appellant had given evidence on the topic and the questioning would amount to an unreasonable waste of time. Counsel then referred to a different exhibit to reinforce his submission and submitted “that’s as far as it ought go”. The following exchange ensued: MR ELMARAAZEY: No, well I don’t … the connection between what Mr Walsh is saying. He probably is reconstructing something - - - HER HONOUR: Mr Elmaraazey, I’m sick of this. MR ELMARAAZEY: Now, I am sick of it as well to be honest with you. HER HONOUR: Could you just apologise to Mr Walsh for that, accusing him of reconstructing? MR ELMARAAZEY: No, I won’t. MS GINDY: No. HER HONOUR: Ms Gindy, would you leave the room please? MR ELMARAAZEY: Yeah, leave the room and later on - - - MS GINDY: I am instructing him not to. HER HONOUR: I am not convinced that you can give instructions to him about how to behave as a person who has been given the privilege of audience in this court. Please leave the room. MR ELMARAAZEY: All right. Now, the - - - MS GINDY: I will leave the room forever. I’m not going to appear before you anymore. HER HONOUR: Up to you. Up to you. MS GINDY: I am leaving (indistinct) - I am not coming back until you (indistinct). Give me my bag. I’m going home. I will leave the car and go home by taxi. I am not coming back until you [re]move yourself. MR ELMARAAZEY: (Indistinct) MS GINDY: No. Not a liar like that. I’m not in this. MR ELMARAAZEY: (Indistinct) MS GINDY: No. Do what (indistinct) HER HONOUR: All right. We’ll adjourn, please. Madam Sheriff, if we could just adjourn please. MR ELMARAAZEY: Yes, we should adjourn for five minutes. MS GINDY: That’s it.

266. It appears that the trial judge directed the appellant to leave the courtroom because she had supported the McKenzie friend in his refusal to apologise to Counsel, although that is not altogether clear. When the trial resumed after a brief adjournment, the McKenzie friend explained that the appellant remained absent because she had been told by the trial judge to leave. He conveyed that the appellant would not return until she was allowed by the trial judge to do so.

267. The trial judge remarked: HER HONOUR: Well, Ms Gindy’s welcome to come - well, hang on. Let’s just do a couple of things. I asked you to apologise to Mr Walsh for suggesting that he was reconstructing something as I heard. Is that what you said?

268. The McKenzie friend then explained that he had attempted to make the point that the document to which Counsel had referred did not appear to have any connection to the document about which Mr Crabb was being questioned. He complained that Mr Crabb not been asked to leave the courtroom during submissions concerning Counsel’s objection. He said that things had been discussed in the presence of Mr Crabb that “gives him [some] clues”. He said that when he used the word “reconstructing” he meant to refer to the fact that there was no signature on the document Counsel had referred to such that there was confusion. He said that “if Mr Walsh or anyone else understood that I meant that in any way which is taken to be offensive I am sorry about this, you know?”. The exchange continued: HER HONOUR: All right. Now - - - MR ELMARAAZEY: Now, and then we go on with the rest of the evidence. HER HONOUR: Well, wait on. Wait on. Wait on. All right. That’s your explanation. Mr Walsh, is that adequate? I mean I know you didn’t ask for an apology. It was I who asked Mr Elmaraazey to apologise. MR WALSH: Your Honour, I accept Mr Elmaraazey’s - - - HER HONOUR: Comments - explanation. MR WALSH: - - -comments and saying “sorry” and an apology. The context, your Honour, of my observation was that the document would speak for itself. HER HONOUR: Well, indeed

269. There followed further exchanges traversing several pages of transcript, all occurring in the absence of the appellant before the trial judge acknowledged that she should “possibly” earlier have invited the appellant “back in, if she wishes to come in and then I will have something to say to her too”. The appellant, on her return, was addressed by the trial judge in the following terms: HER HONOUR: You don’t have to stand up. You don’t have to stand up, you just have to listen. Ms Gindy, because you are not legally represented, you have Mr Elmaraazey here as your McKenzie friend but because you are not legally represented, there is a need, as far as I can see, for you to be involved in the proceedings. Right, Mr Elmaraazey is helping you conduct these proceedings but he has no personal right of audience before this court. Now you need to think carefully in the future about walking out of the court and saying that you are not prepared to come back, or at least not prepared to come back while I am conducting the matter, in case that provides grounds at some stage for an application for me to simply dismiss your claims on the basis that you have, in effect, abandoned them by removing yourself from the matter. Now, I have said that to you now. Obviously I don’t intend to take any further steps about your comments earlier, but I do want you to think about that for the future.

270. The trial judge was correct to identify that a party’s case may be dismissed in the event of the party’s failure to attend a hearing. In the ordinary course, it is not inappropriate to provide guidance to a litigant about the consequences that might follow in the event of an unauthorised absence.

271. However, in my view the fair minded observer would be justified in wondering why the trial judge had seen fit to give the appellant a warning in such terms in circumstances where the appellant was absent from the courtroom because she had been abruptly ordered by the trial judge to leave, and then not been permitted to return immediately upon the resumption of the hearing, notwithstanding her willingness to do so. The appellant had been required to remain absent because (as made known to the trial judge by her McKenzie friend) she correctly understood she had been directed to leave and could not return until allowed to return.

272. The appellant remained absent for some time, not of her own choosing but at the behest of the trial judge who insisted in first pursuing the demand (given of her own initiative) that the McKenzie friend issue an apology to Counsel. The transcript discloses a conscious choice on the part of the trial judge to invite further submissions from the parties without first ensuring that the appellant was present for that aspect of the trial, knowing that the appellant was outside awaiting permission to return, and knowing that the appellant had earlier objected to the demand for an apology.

273. The appellant’s threat to remain absent must itself be considered in context, and ought to have been considered in its proper context by the trial judge. It ought to have been understood as having been prompted by the direction that the McKenzie friend apologise and the sudden and intemperate demand that the appellant (a party to the proceedings) leave the room. The fair minded observer would understand the directions to be impulsive commands made in quick succession without first affording the McKenzie friend the opportunity to explain the meaning of his submission. The words of the appellant ought to have been understood by the trial judge as a protest to those rulings, coupled with an assertion that a basis for recusal had arisen because of them. The appellant’s threat to not return was a discourteous means of expressing her strenuous objection to the trial judge continuing to preside.

274. The observer would be justified in thinking that the trial judge had based the warning, at least in part, on the fiction that the appellant had voluntarily left the courtroom and that she had threated to stay away for no justifiable reason. The trial judge said nothing about the appellant’s complaint that there was a basis for recusal, but proceeded as though it had never been made or at least that it had no connection with the appellant’s threat to not return having been directed to leave.

275. In my evaluation, the disproportionate response of the trial judge would readily be perceived by the fair minded observer as an outward manifestation of a loss of professional detachment. The incident gives rise to a real concern that conduct of the trial judge was explained by feelings of hostility harboured toward the appellant that might cause the trial judge to approach the resolution of the issues with other than an open mind. Relevance of the reasons for judgment – NOA [9A], [19], [20], [21]

276. Particulars 19 and 20 together allege that the judgment of the trial judge “confirms a pre-existing … apprehension of bias”, a hostile attitude toward the appellant and the McKenzie friend and a lack of impartiality, including by reference to other particulars.

277. In Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88, Basten JA (at [26]) discussed two significant features of Vakauta v Kelly that must be borne in mind in the application of principles regarding waiver: First, there was a precise point in time at which the appellant could have identified an element of pre-judgment, when there was a reasonable opportunity to object. Secondly, the judgment itself may revive the earlier appearance of bias, in which case, there being no further opportunity to take objection, the ground is available on appeal.

278. As explained at the outset of these reasons, no question of waiver of the right to object on appeal to an apprehension of bias arises, both because of the position the respondents have adopted on the issue, and also because it is plain from the trial transcript that the appellant continued to voice her complaints about the conduct of the trial judge through to the moment that judgment was reserved.

279. It is necessary to approach the reasons for judgment with a strict focus on the purpose the reasons may legitimately serve in determining the issues arising on the appeal. I have already concluded that there exists a sufficient basis for allowing the appeal by reference to the arguments thus far upheld. The apprehension of bias identified thus far affected the integrity of the trial immediately prior to the reservation of judgment. That is important because the test is ordinarily one that applies prospectively: it is concerned with whether or not there might be an apprehension that the decision-maker might approach his or her task in a particular way. It does not turn on a retrospective analysis as to how the trial judge in fact arrived at the outcome, nor on the substantive correctness of the outcome. Apprehended bias is a principle concerned with the question of whether the trial judge should have proceeded to judgment at all. If the answer to that question is no, nothing in the published reasons can change it.

280. The reasons for judgment in Gindy No 2 are nonetheless relevant to the extent that they support the other grounds alleging a feared deviation from the proper course of decision making. As in Vakauta v Kelly, the reasons for judgment might themselves contain indications that the trial judge might have approached the task other than with an impartial an unprejudiced mind. In the search for those indications, this Court should proceed with caution. Necessarily, the reasons for judgment may reasonably be expected to contain findings that are critical of witnesses who may also be parties. In addition, it is not at all unusual or unreasonable for reasons for judgment to include some remarks about the conduct of the trial, including remarks that may be critical of the manner in which the case of a party was prepared and presented. It will be a rare case in which commentary of that kind might be legitimately deployed to support a conclusion of apprehended bias.

281. In the present case, the fair minded lay observer may be taken to know that the McKenzie friend was the husband of the appellant. The lay observer may also be taken to understand that the question of whether the McKenzie friend was an honest person or otherwise a person of good or bad character was not a matter that arose for consideration in the controversy between the parties. No occasion arose for the trial judge to make any assessment of his credibility or character because he gave no evidence in any party’s case. It did, however, form a part of the task of the trial judge to assess the merits of the submissions the McKenzie friend had advanced. In and of itself, the firm rejection of those submissions is not indicative of an apprehension of bias affecting the judgment, even if error may be disclosed in the treatment of them.

282. The trial judge was blunt in her assessment of the quality of the submissions of the McKenzie friend, particularly the quality of his written submissions. The adjectives “ramblings”, “bizarre” and “useless” are used in different contexts: Gindy No 2 at [1420], [3584] and [1426]. Whilst the language is colourful I do not consider it supports the allegation of apprehended bias. Those particular criticisms are directed to the quality of the submissions themselves and not extraneous factors such as the character of the person advancing them.

283. However, an examination of the reasons reveals that the trial judge strayed beyond the task of rejecting the appellant’s substantive case. Most notably, the reasons contain gratuitous aspersions concerning the honesty and integrity of the McKenzie friend as a person. It is convenient to identify each of those instances before discussing their collective effect.

284. Particular [9A] advances the following specific allegation: The trial judge, after reserving her judgment on 19 December 2018, and on her own initiative, corrected the transcript after listening to the audio, and made adverse findings and conclusions in her judgment against the appellant, and without giving the appellant the opportunity to be heard and make submissions in relation to those issues.

285. The factual background to this allegation is set out in the reasons of Elkaim J. I differ with his Honour’s conclusions with respect to this issue, not only in relation to whether the criticisms of the McKenzie friend (as expressed in Gindy No 2 at [1413]) were warranted, but also as to the consequences of the words and conduct of the trial judge.

286. The reasons in Gindy No 2 (at [1411]) make it plain that the trial judge listened to the audio recording of Mr Crabb’s evidence for the purpose of revising the trial transcript. That was done without first inviting the parties’ submissions not only as to the revision, but as to the consequences of the revision to any submissions they had made on the basis of the uncorrected transcript.

287. I am particularly concerned with the wounding remark of the trial judge in Gindy No 2 at [1413], expressed as follows: Like the submission itself, the question of whether Mr Elmaraazey’s submission reflects only laziness or something even less acceptable (such as incompetence, deliberate time-wasting or actual dishonesty) needs no further consideration at this point.

288. A number of observations may be made.

289. First, the phrase “at this point” is curious. There is no other point in the judgment where the question of whether actual dishonesty of the McKenzie friend properly arises as an issue for adjudication.

290. Second, the respondents themselves had not identified that the transcription of Mr Crabb reading from a transcript of his earlier evidence differed from the actual transcription of his earlier evidence. It was the trial judge who identified the difference of her own volition, by reviewing the audio showing the later transcript to be wrong. The trial judge did not bring the error in the later transcript to the parties’ attention.

291. The McKenzie friend was entitled to proceed on the basis that the respondents accepted that Mr Crabb said the words attributed to him in cross-examination, that is, that he had mistakenly summarised his earlier evidence when he later attempted to recall it. The appellant was entitled to make submissions on the basis of what Mr Crabb had apparently recalled his earlier evidence to be, especially in circumstances where Mr Crabb (himself a party) had not identified the discrepancy or sought to correct the transcript.

292. Instead of drawing the error to the attention of the parties, and inviting them to revise their submissions in light of it, the trial judge proceeded to cast damaging aspersions at the McKenzie friend as if he was alive to the transcription error. In Gindy No 2 at [1413], the adjectives “laziness”, “incompetence” and “dishonesty” all encircle the McKenzie friend. In my view, the suggestion that it was unnecessary to decide whether the McKenzie friend was (for example) dishonest is a conjectural device, used as a means of casting that very aspersion upon him, and would be understood to carry that meaning by the fair minded observer. I am reinforced in that view by the absence of any legitimate purpose for including the remarks in the reasons for judgment.

293. Similar verbal devices are utilised elsewhere in the reasons in Gindy No 2, as follows: 1263 Given that Mr Elmaraazey had practised as a solicitor for some years before being refused a practising certificate in mid-2010, I am disinclined to attribute the submission at [69] to simple ignorance. However, I am satisfied that I should reject it, without needing to decide whether it is attributable to stupidity or dishonesty. … 3394 … It was not always clear whether such objections reflected ignorance of the subtleties of evidence law, and attempt to waste time generally, an attempt to give Ms Gindy time to consider an answer, an attempt to interrupt the flow of another witness’s evidence, or something else. … 3396 … Mr Elmaraazey, like his wife, spoke good but accented English, but on occasions in court they seemed to have difficulty understanding each other (these may have been strategic misunderstandings, but might have indicated only that the couple did not routinely communicate in English in their private lives). … 3398 A charitable view of Mr Elmaraazey’s approach would have been that he simply didn’t understand how to extract, or rely on, evidence to prove a case; a less charitable view was that this approach reflected a combination of intentional time-wasting and a need to be the centre of attention. …

294. By those passages, the trial judge hinted at improper practices on the part of the McKenzie friend whilst avoiding the performance of the judicial task that would be required to make positive findings to the same effect and to explain their relevance.

295. The circumstance that the McKenzie friend had been subject to disciplinary proceedings and struck off as a legal practitioner formed a part of the undisputed factual landscape against which some of the appellant’s substantive claims fell to be decided. The background was relevant to certain transactions or attempted transactions making provision for the payment of the legal fees of the McKenzie friend arising from his own proceedings. That background is set in Gindy No 2 at [15], [122] and [731] in terms that are relevant and unobjectionable. The circumstance that the McKenzie friend had been struck off as a legal practitioner was, of itself, relevant to the extent that it explained why he appeared in the capacity as a McKenzie friend and not as an admitted legal practitioner having a right of audience before the Court. However, the commentary of the trial judge did not end there. Later in her reasons, the trial judge referred to the evidence of the appellant about her signing a document granting the respondents authority to receive an amount referable to her costs from a third party (at [783]): Ms Gindy gave evidence that she did not sign the Authority to Receive. She also said: At no point in time, your Honour, Mr Crabb treated me different. I never said that to him. I've said that about that belief, when he took the office and everything go there, if he has and I'd suggest to you - suggest to you to protect the public like he is alleging, he would have pursued my matters since he has the office; he has everything in it, and he was aware of my case, but I never, your Honour, alleged or said that Mr Paul Crabb treated me different. That didn't happen and I - he never treated me like Arab or ethnic or - it never even crossed my mind.

296. The meaning and relevance of that evidence is unclear. The purpose for including it in the reasons for judgment is revealed in the paragraph that follows (at [784]): It seems that her reference to the person who ‘took the office’ was a reference to Mr Blain; whether Mr Blain’s appointment was described at any point as in the public interest or for the protection of the public, the need to protect the public was certainly mentioned in the ACAT decision which resulted in Mr Elmaraazey losing his unrestricted practising certificate (Council of the Law Society of the Australian Capital Territory v Legal Practitioner (Mamdouh Elmaraazey) (Occupational Discipline) [2009] ACAT 29 at [19]).

297. It may readily be inferred (and I find) that the trial judge included the passage from the appellant’s evidence because it provided a segue for the inclusion of a reference to the need for the public to be protected from the McKenzie friend. I am satisfied that the passage at [784] is a gratuitous diversion, embarked upon by the trial judge of her own initiative and bearing no connection to any issue she was required to decide.

298. The fair minded observer may be taken to understand that an assessment of the honesty or integrity of the McKenzie friend (as opposed to an assessment of the correctness of his submissions) should form no legitimate part of the decision making task. The observer might therefore be justified in asking what purpose the trial judge intended to serve by the inclusion of the passages to which I have referred. At the very least, I am satisfied that the observer would interpret the reasons for judgment as manifesting feelings of intense personal disdain for the McKenzie friend, evidenced by a lack of judicial restraint on the part of the trial judge in passages that suggest a preoccupation with an extraneous issue. To that extent the reasons for judgment are confirmatory of the attitude otherwise exhibited in the course of the trial.

299. It remains to consider how that state of affairs might cause the lay observer to apprehend that the trial judge might not bring an impartial mind to bear in the resolution of the controversy between the appellant and the respondents.

300. In Vakauta v Kelly it was said that the impugned comments of the trial judge (as published in the reasons for judgment in that case) was such as to give rise to a concern that the trial judge would seek to vindicate his views in the final result. In my view, a similar concern arises here, for two reasons. First, the McKenzie friend was not independent of the appellant in the financial sense. He was her husband. The award of damages sought in the proceedings was one that would benefit the McKenzie friend. Second, the repeated comments of the trial judge during the trial and later in the judgment concerning the integrity of the McKenzie friend was such that the fair minded lay observer might apprehend that the lack of detachment was such that awarding judgment for the appellant would be an affront to the feelings of the trial judge. Those two circumstances, either alone or in combination, are sufficient to satisfy the second step in the test identified by the High Court in Ebner, at least in respect of those particulars in the NOA directly or indirectly alleging hostility on the part of the trial judge toward the McKenzie friend.

Conclusion

301. I have identified several discrete bases supporting the conclusion that the judgment appealed from should be set aside for apprehended bias. Each of the instances has been considered in the context of the whole of the trial. In my evaluation, the nature of the complaints is such that they are not ameliorated by the circumstance that the trial was a long and difficult task for the judge. The concerning words used by the trial judge were not clarified or withdrawn at any time. Any doubt about the meaning of the words in each instance may be dispelled by reference to the words used in the others. The circumstance that on most days of the trial the trial judge did not utter words giving rise to an apprehension of bias in my evaluation cannot affect the result. The cumulative effect of the conduct gives rise to an apprehension of bias, even if a singular instance was not sufficient, in and of itself, to support that conclusion.

302. The unfortunate result is that a cause commenced in the Supreme Court in 2015 remains to be tried according to the law.

303. I propose the following orders: (1) Allow the appeal; (2) Remit the matter for retrial before the Supreme Court.

I certify that the preceding three hundred and three [303] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 8 December 2022