Damjanovic v Sharpe Hume & Co

[2001] NSWCA 407

CITATION:	Damjanovic v Sharpe Hume & Co; Damjanovic v Yorke Agencies; Damjanovic v Rosier; Damjanovic v Spehar [2001] NSWCA 407
FILE NUMBER(S):	CA 40719/00; 40720/00; 40721/00; 40722/00; 40723/00
HEARING DATE(S):	9 October 2001, 5 November 2001
JUDGMENT DATE:	23 November 2001
PARTIES :	Mojmir Damjanovic v Sharpe Hume & Co Mojmir Damjanovic v Yorke Agencies Mojmir Damjanovic v Peter William Rosier & Ors Mojmir Damjanovic v Zelka Spehar Mojmir Damjanovic v Ivan Spehar
JUDGMENT OF:	Mason P at 1; Sheller JA at 1; Rolfe AJA at 1

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC2409/00; DC2410/00; DC5930/99; DC4293/00
LOWER COURT JUDICIAL OFFICER :	Gibb DCJ

COUNSEL:	Appellant - In Person with Ms Vukic Assisting Respondent - M J Cohen for 1st, 2nd and 3rd Respondents Zelka and Ivan Spehar in Person
SOLICITORS:	Appellant - In Person 1st-3rd Respondents - Sharpe Partners Legal
CATCHWORDS:	APPREHENDED BIAS BY REASON OF PRE-JUDGMENT AND OTHER CONDUCT - OBLIGATIONS OF THE COURT IN CONDUCTING TRIALS - CHARACTERISATION OF EVIDENCE OF LIES - COSTS
LEGISLATION CITED:	District Court Act 1973
CASES CITED:	Ex parte Schofield; re Austin (1953) 53 SR (NSW) 163 Reg v Watson ex parte Armstrong (1976) 136 CLR 248 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Vakauta v Kelly (1989) 167 CLR 568 Australian National Industries Limited v Spedley Securities Limited (in liquidation) & Ors (1992) 26 NSWLR 411 Abraham v National Australia Bank Limited (C/A 1/5/97 unrep) Webb v The Queen (1994) 181 CLR 41 Johnson v Johnson (2000) 201 CLR 488 Toner v Attorney General for New South Wales (C/A 19/11/91 unrep) Hunter v Webb (FC 19/7/86 unrep) Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 Merrylands Bowling, Sporting & Recreation Club v P & H Property Services (2001) NSWCA 358
DECISION:	(1) Set aside orders of Gibb DCJ answering separate questions, dismissing the plaintiff 's statement of claim, and ordering the plaintiff to pay the defendant's/defendants' costs and disbursements on an indemnity basis; (2) Without prejudice to any fresh application for summary dismissal, order that there be a new trial before a judge other than Gibb DCJ; (3) Respondent(s) to pay appellant's costs of the first trial and of the appeal and to have a certificate under the Suitors Fund Act

40722/00 40723/00 40719/00 40720/00 40721/00

3930/99 2408/00 2409/00 2410/00 4293/00 4448/00
MASON P
SHELLER JA
ROLFE AJA


23 November 2001

Mojmir Damjanovic v Zelka Spehar & Ors

APPREHENDED BIAS BY REASON OF PRE-JUDGMENT AND OTHER CONDUCT
ex parte Schofield; re Austin

(1953) 53 SR (NSW) 163

Reg v Watson ex parte Armstrong

(1976) 136 CLR 248

Livesey v New South Wales Bar Association

(1983) 151 CLR 288

Vakauta v Kelly

(1989) 167 CLR 568

Australian National Industries Limited v Spedley Securities Limited
(in liquidation) & Ors

(1992) 26 NSWLR 411

Abram v National Australia Bank Limited

(Court of Appeal -

1/5/1997 – unreported)

Webb v The Queen

(1994) 181 CLR 41

Johnson v Johnson

(2000) 201 CLR 488

applied

OBLIGATIONS OF THE COURT IN CONDUCTING TRIALS
Toner v Attorney General for New South Wales

(Court of Appeal –

19/11/1991 – unreported)

Hunter v Webb

(Federal Court – 19/7/1986 – unreported)

applied

CHARACTERISATION OF EVIDENCE OF LIES

Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256

referred to

COSTS
Merrylands Bowling, Sporting & Recreation Club v P & H Property
Services

[2001] NSWCA 358 referred to

The appellant, an elderly gentleman with apparently limited fluency in the English language, sued six defendants in the District Court. Five of the actions alleged forgery, and one the improper payment of a cheque. The proceedings came before Gibb DCJ, who ordered that they be heard together, and that evidence in one be evidence in all. Her Honour granted leave to Ms Vukic, who had no legal qualifications, to appear on the appellant’s behalf, pursuant to s 43 of the District Court Act 1973.

Before the conclusion of all the evidence, her Honour decided the case based on the improper payment of the cheque, In doing so she found that she did not believe the appellant, whose credibility was seriously in issue in the cases she had not decided. When her Honour decided these cases, she did not believe the appellant.

The appellant appealed on the basis of apprehended bias, both by reason of pre-judgment, and other conduct of her Honour of which he complained.

HELD: That there might be a reasonable apprehension of bias by reason of pre-judgment and the other conduct - Consideration of the way in which a trial Judge should conduct a trial, particularly in circumstances where one party is not legally represented, does not have English as his/her first language and is openly sceptical of lawyers - Necessity for Judges not to act in a way which will erode, in the public’s perception, that justice is being administered fairly to all parties, or confidence in the judicial system, discussed.

That in the particular circumstances of the case, the respondents should pay the appellant’s costs at first instance and on appeal.

ORDERS

(1) Set aside orders of Gibb DCJ answering separate questions, dismissing the plaintiff ’s statement of claim, and ordering the plaintiff to pay the defendant’s/defendants’ costs and disbursements on an indemnity basis.

(2) Without prejudice to any fresh application for summary dismissal, order that there be a new trial before a judge other than Gibb DCJ.

(3) Respondent(s) to pay appellant’s costs of the first trial and of the appeal and to have a certificate under the Suitors Fund Act.

40722/00 40723/00 40719/00 40720/00 40721/00

3930/99 2408/00 2409/00 2410/00 4293/00 4448/00
MASON P
SHELLER JA
ROLFE AJA


23 November 2001

Mojmir Damjanovic v Zelka Spehar & Ors

Judgment

Introduction

1 The Court: Mr Mojmir Damjanovic, an elderly gentleman with apparently limited fluency in the English language, sued six defendants in the District Court, namely Mrs Zelka Spehar in proceedings 3930 of 1999; York Agencies Pty Limited in proceedings 2408 of 2000; Sharpe Hume & Co (Services) Pty Limited in proceedings 2409 of 2000; Rosier Associates Lawyers in proceedings 2410 of 2000; Mr Ivan Spehar, (the husband of Zelka Spehar), in proceedings 4293 of 2000; and Anita S Ivancic, (the daughter of Mr and Mrs Spehar), in proceedings 4448 of 2000. In each of the proceedings, save for those against Ms Ivancic, he alleged, inter alia, that his purported signatures on a Deed of Assignment of Debt, dated 22 July 1996, were forgeries, such that that Deed was not valid and binding upon him.

2 In the proceedings against Ms Ivancic, the issue seems to have been whether a cheque sought from Mr Damjanovic by a business known as Ivan’s Butchery Pty Limited, was handed over to its secretary, Ms Debrodt, when the defendant was present as Mr Damjanovic asserted, or when Ms Ivancic was not present, as Ms Debrodt asserted.

3 All these proceedings came before her Honour Judge Gibb in the District Court on 8 August 2000. At the commencement, Ms Ina Vukic, who is neither a barrister nor a solicitor, sought leave to appear on behalf of Mr Damjanovic, pursuant to s 43 of the District Court Act 1973, which, relevantly for present purposes, provides:

“(1) A party to any proceedings may appear:
(a) by a barrister or solicitor retained by or on behalf of that party, or by a solicitor employed (as an agent or otherwise) by a solicitor so retained;
or
(b) if no barrister or solicitor is so retained and -
(i) if that party is a natural person by himself or herself;
………………………………………….
or by another person allowed by leave of the Court granted in the particular proceedings to appear on that party’s behalf .
(2) Subject to and in accordance with the Rules, a person appearing in any proceedings may address the Court and examine and cross-examine witnesses”. (Our emphasis)

This leave, it is agreed, was ultimately, although it would seem impliedly, granted.

4 Mr M J Cohen of Counsel appeared on behalf of the defendants, York Agencies Pty Limited, Sharpe Hume & Co (Services) Pty Limited, and Rosier Associates, Lawyers. Mr and Mrs Spehar appeared “unrepresented” and there was no appearance on behalf of Ms Ivancic. In the course of the proceedings, Mr Cohen appeared on behalf of Mr and Mrs Spehar and Ms Ivancic, at least from time to time, on an amicus curiae basis.

The Appeal

5 On 10 August 2000, her Honour dismissed Mr Damjanovic’s proceedings against Ms Ivancic, essentially because she did not accept the evidence of Mr Damjanovic. On 11 August 2000, her Honour dismissed Mr Damjanovic’s other proceedings once again, essentially, because she did not accept his evidence. Mr Damjanovic has appealed against the decisions on 11 August 2000, basically on the grounds that a reasonable bystander might have apprehended that her Honour was biased against him; that he was not afforded procedural fairness, and that her Honour refused to allow him to adduce relevant evidence.

6 Two points were raised on the first occasion the appeal was before the Court. First, there was the question of Ms Vukic’s right to appear in this Court, which involved different considerations from those posed by s 43. Secondly, Mr Damjanovic made an allegation that her Honour had said, at the time of coming onto the Bench on one day, that Mr Damjanovic was in the witness box and that she did not believe him. No such statement appeared on the transcript, and there was conflicting evidence whether any such thing was said.

7 The Court decided to hear the appeals, in the first instance, without having regard to these two matters on the basis that, if the appeals otherwise failed, they could be revisited. The Court had before it extensive written submissions on behalf of Mr Damjanovic, which were carefully related to the grounds of appeal. In effect, Mr Damjanovic appeared on his own behalf, although Ms Vukic was permitted to sit with him at the Bar table.

8 After hearing detailed oral submissions from Mr Cohen in support of his written submissions, the Court decided that it was not necessary to hear oral submissions from Mr Damjanovic, and that the appropriate orders were that the appeals be allowed; the judgments of her Honour be set aside; there be new trials in the proceedings before a Judge other than her Honour; and the respondents pay the appellant’s costs of the trials and the appeal. The Court said that it would deliver its reasons later, and these are the reasons.

9 In the result, it is not necessary to consider the two other points. However, it should be made clear that whilst Ms Vukic deposed on affidavit that her Honour had said words to the effect to which we have referred, not only do they not appear on the transcript, which was sound monitored, but various witnesses denied on affidavits that the words were used.

The Application By Ms Vukic To Appear

10 When Ms Vukic sought leave to appear, she did not, at that stage, advance any reason for doing so, nor was she asked for any. Rather her Honour enquired whether both she and Mr Damjanovic appreciated the risks of having a non-qualified person representing him. Ms Vukic said that they both did, whereupon her Honour asked Mr Damjanovic whether he was:

“… content to take the risks, you do appreciate that – no disrespect to your friend – that a lawyer can be of greater assistance?”

11 Ms Vukic sought to respond, and her Honour asked again of Mr Damjanovic whether he appreciated the risk. He said he did, and there was further discussion, in the course of which her Honour asked Ms Vukic to translate for her “quite literally” to Mr Damjanovic whether he understood that a lawyer, “can protect your rights better than any well intentioned friend”. Mr Damjanovic stated that he did not see “any of the Law Society”, and Ms Vukic added that he did not trust solicitors.

12 Mr Damjanovic made it clear that he fully understood and accepted the risk. Her Honour, quite correctly in our opinion, was seeking to ensure that Mr Damjanovic understood the position and the possible risk. One can well understand her Honour’s wish to do this.

13 Thereafter, Ms Vukic outlined, in short terms, the nature of the proceedings, at the conclusion of which she pointed out to her Honour that Mr Spehar had not filed a defence, and unless that was done, Mr Damjanovic would seek an order for judgment “and default”.

14 Her Honour responded, T p 4-5:

“Her Honour: That may well be so, but you might assume that if he is here and he says he denies it, it has remarkably similar effect to a piece of paper.
Vukic: It does your Honour, but the plaintiff is entitled to a defence, a written defence filed.
Her Honour: You just had a ruling on that point and you lost it”.

15 This was the first of a number of strange and, in our opinion, incorrect rulings her Honour gave against Mr Damjanovic during the course of the proceedings. There cannot be the slightest doubt that if Mr Spehar was desirous of defending the proceedings he was obliged to put on a defence, which set out the matters he denied or admitted and any substantive defences he wished to raise: Part 10 rule 1 of the District Court Rules. It is also to be noted that when her Honour gave this ruling, Mr Spehar had not stated that he denied anything. Whilst this was an incorrect ruling, we should point out immediately that somewhat later her Honour found defences, which had been filed on behalf of Mr and Mrs Spehar.

16 Mr Cohen then commenced to address her Honour and, in the course of doing so, said that he was instructed that Mr Damjanovic and Ms Vukic were currently, “in a relationship together”, and if that were right, “then it is my submission that Ms Vukic cannot be expected to be a dispassionate advocate”. The first assertion, which Mr Cohen said was made on instructions he had received, was not, so far as we can see, ever established.

17 There was further debate about whether Ms Vukic could appear, in the course of which Mr Cohen asserted that Mr Damjanovic, “is a wealthy man” (T p 7), whereafter her Honour said:

“If you would and I would have to say my personal view is that if Mr Damjanovic elects upon a course which – and I mean this with no disrespect to Ms Vukic, - is dangerous and silly , if he chooses to embark upon that course it is not my job to stop him taking that risk. It is, in my view, if it is a technical question about the construction of deeds or of loan and the like, dangerous and silly to do so without the benefit of proper legal representation , if Mr Damjanovic chooses to take that risk he is an adult, he is an intelligent man, unless someone puts before me a relevant disability, my inclination is to let him take the risk . But I do want to be quite sure that he understands the risk”. (Our emphasis)

18 Ms Vukic said that she had translated what her Honour had said, and:

“Vukic: His comment was to my translation to you to put that in his risk but he accepts the responsibility is his and not mine.
Cohen: Therein lies another factor that my clients are concerned by your Honour and we say are a proper reason for your Honour not to exercise discretion and that is this. Ms Vukic is for the convenience of your Honour now acting as translator, she is not NAATI accredited, the fact that she speaks possibly conversational or idiomatic Croatian is not to the point. Your Honour has no basis to accept that she is accredited by the entity that is recognised by the Court, that is NAATI”.

19 Thereafter, Mr Cohen suggested that her Honour was entitled to have an accredited interpreter, a submission which appealed to her, and to which Mr Damjanovic agreed.

20 At T p 8 her Honour said:

“I (sic) that case I think we should have an independent interpreter before we go too much further. The course I am inclined to at this stage Mr Cohen is to take a brief adjournment. I anticipate that Croatian is not the world’s most difficult language to find an interpreter for. I would like to defer resumption of your motion until there is an accredited, and it does not need to be a NAATI accredited interpreter, sitting on the other side of Mr Damjanovic. If, having been told the risks Mr Damjanovic remains of the view that he will take them – and I will read your cases in the interim - but the course to which I am inclined is to let him go to hell on his own bicycle if he chooses to ”. (Our emphasis )

21 Before us Mr Cohen sought to justify the final remark on the basis that it was a colloquial use of language frequently used, in his experience, in courts. That experience does not accord with ours.

22 The final remark was, in our opinion, a most unfortunate one, to say the least, by the Judge, who was still considering whether she would grant leave for Ms Vukic to appear, and, in addition, contrary to what we consider to be appropriate judicial behaviour. The clear inference was that if Ms Vukic was granted leave, Mr Damjanovic’s case would be severely prejudiced in her eyes. Further, the words “go to hell” are indicative that Mr Damjanovic would lose his case anyway, thereby giving rise to an apprehension of bias. If it is a remark frequently used in courts, it is conduct which, in our opinion, should not be continued, more particularly where parties are appearing in person. Further, it was a shift in her Honour’s position. Initially, and correctly, she wanted to be assured that Mr Damjanovic understood the situation. The attitude evidenced by this remark was one indicating quite clearly that following this course could have the effect to which we have referred. If that was her Honour’s attitude even more careful attention had to be given to the granting of leave.

23 Mr Cohen pursued his submissions to her Honour about the inappropriateness of Ms Vukic’s being allowed to represent Mr Damjanovic.

24 There was further discussion about Ms Vukic’s appearing and, at T p 11, her Honour said:

“Mr (sic) Vukic, I think you might take it as being you have been put on notice that if, as a matter of fact, I reach those two conclusions, there will be a motion put immediately before the Court that the matter be disposed of for lack of a cause of action. That is very much a lawyer’s question and that itself is something which the lack of legal representation may complicate, it is something you will need to think about very carefully, because it is something that will come upon you and your client and it will be a fairly direct consequence.
Now, as I understand it at the moment the immediate questions before me are twofold and they are factual questions, so the issues that are particularly live are the rules applying to cross-examination of witnesses – I anticipate there will be a number of witnesses on this as a matter of fact – make no mistake, however competent you are in ordinary life, a trained lawyer gets a lot further in cross-examination or examination that (sic) persons without those skills. They do not go to university and practise for nothing.
Vukic: I can appreciate that your Honour”.

Once again, her Honour was making reasonably clear that she considered that Mr Damjanovic’s case would not be presented properly by Ms Vukic.

25 Before taking an adjournment, her Honour advised Ms Vukic that she would be asking Mr Damjanovic through the interpreter:

“… quite directly to tell me he understands exactly what the risks are and I will ask him to do so on the basis that, and again with no disrespect to you, you remain absolutely silent and I will ask you for the period to step back out of eyesight and out of contact from Mr Damjanovic so that there can be no question but that I am receiving exclusively his views.

Vukic: Yes, your Honour.
Her Honour: But if he tells me then, through an interpreter, when there is no question of any, and again I mean this with no disrespect, that there is no question of pressure or duress from your presence or your role, then the likelihood is that I will permit it to continue.
Vukic: Yes, your Honour.
Her Honour: But only if I am perfectly satisfied of that”.

Until her Honour raised the matters of pressure or duress, no such suggestion had been made.

26 Her Honour also referred to the possibility of “a personal relationship”, which Ms Vukic denied strongly, and her Honour said that she would need to be assured of that through the interpreter. Subsequently, an interpreter arrived.

27 At T p 18, her Honour made a suggestion as to how a defence for Ms Ivancic may be prepared by her mother, Mrs Spehar, and when Ms Vukic raised a mild objection, her Honour pointed out that Mrs Spehar was representing her daughter and that she, her Honour, did not think it “fell” very well in Ms Vukic’s mouth to criticise others representing people. However, one can well understand Ms Vukic’s surprise at this somewhat sudden change of her Honour’s attitude from that she was displaying to her. Her Honour then suggested that Mr Cohen should act as an amicus curiae for Mr and Mrs Spehar, telling them that if he, Mr Cohen, “gets it wrong you can’t sue him, if he gets it wrong you can’t complain”. She made no suggestion to Mr and Mrs Spehar that they obtain the services of a lawyer, who, if he “gets it wrong” could be sued, arguably, and about whom they could complain.

The Procedure Followed By Her Honour

28 At T p 21, her Honour made directions for the hearing of the specific questions, presumably on the basis, as stated at T p 20, that the only question before her was “the Deed question”, with which Mr Cohen agreed. However, as will appear, that was not the only issue. Her Honour’s directions were:

“I will make directions in accordance with the rules in respect of the issues raised in paragraphs 2, 3 and 4 of the motion filed on behalf of the defendants by date 7 February 2000. That being a motion filed in each of matters 2408, 2409 and 2410, that the questions in each of the relevant questions raised, be heard simultaneously in respect of each of those three matters, the evidence in one is evidence in the other. Insofar as there is a claim against Mr Ivan Spehar in matter 4293, if there be claim, I make the same direction in respect of that. In respect of the claim against each of Zelka Spehar, 3930/99 and Anita Ivancic in 4448/00 I make the same direction and in the latter three, note that I do so on the basis of a motion at the Bar table, without notice, to which no objection is taken in this respect”.

29 As we understand it, her Honour was directing that all six cases be heard together with evidence in one being evidence in all others. On the hearing of the appeal, Mr Cohen confirmed this. Later, her Honour seems to have forgotten this direction, because she heard and decided the proceedings against Ms Ivancic separately and before all the evidence in the other proceedings was concluded.

30 At T p 23, her Honour stated that, in the following week, she would be sitting in criminal matters, and that the better course would be that she not be part heard if the proceedings did not conclude within the week. At a later stage, she referred to this again. Mr Damjanovic has complained that these statements evidenced an apprehension of bias. We do not agree with that, even when aggregating all the matters on which he relied.

31 Her Honour then satisfied herself as to the evidentiary material before her, and there was discussion as to how the matter was to proceed. Ms Vukic suggested that perhaps the defendants should call their evidence first, which her Honour, correctly in our view, rejected, on the basis that the onus rested upon Mr Damjanovic to prove the forgery he alleged. In doing so her Honour said:

“No, they don’t have to prove a thing: you do. That is one of the things that is fundamental, it is your proof and unless you come up with proof, that is the end of the issue. So that being the case you have got to prove your case. That means you have to prove it. The defendant may choose to say absolutely nothing. The fundamental rule of our system.
Vukic: Yes.
Her Honour: And that is why lawyers assist”.

The last observation was minor and, in itself, insignificant. But it was part of this continuing dialogue in which her Honour was engaging about the undesirability of Ms Vukic’s appearing.

32 Mr Cohen raised again Ms Ivancic’s case, which he submitted should be dismissed forthwith, if certain documents were accepted by her Honour. That led to the situation where that case was also to be heard, although it involved an issue different from the forgery issue. Her Honour said that would be clear notice to Mr Damjanovic that those proceedings would be heard, which she had ordered only shortly before.

33 At T p 38, her Honour explained to Mr Damjanovic, through an interpreter, the risks inherent in being represented by some other person and, ultimately, she appears impliedly to have granted Ms Vukic leave to appear. That having been done, Ms Vukic had the rights accorded by sub s (2). In those circumstances, she should, in our opinion, have been afforded appropriate judicial courtesy. She was not.

Her Honour’s Findings In The Proceedings Brought By Mr Damjanovic Against Ms Ivancic

34 The proceedings did not conclude until 11 August 2000, on which date her Honour gave judgment in all, other than those brought by Mr Damjanovic against Ms Ivancic. She gave judgment in the latter proceedings, which did not contain an allegation of forgery, on 10 August 2000. Before the luncheon adjournment on that day, her Honour observed that a witness in those proceedings, Ms Debrodt, was coming from Mittagong to give evidence, and that the course she proposed was that if Ms Debrodt was present at 2 pm, she would “deal with her and she is on the question of in effect how many payments were made …”. She explained to Ms Vukic that that would happen, and that Ms Vukic could ask Ms Debrodt, “any questions you want in cross-examination”. She required Ms Vukic to particularise the claim as to how many sums of $50,000 were paid in September 1995, and to whom they were paid, and, “that will identify precisely that claim. That will be identified in writing”: (T p 196). Her Honour continued:

“We will then deal with the witness on that. If there be an issue as to the fact we will deal with Mr Damjanovic on that fact and that fact alone”.

35 Thus, her Honour was interposing at least two witnesses in the Ivancic case. She had ordered that all cases were to be heard together and that evidence in one was to be evidence in the others. Thus, the evidence in the forgery cases was also, in so far as it may have been relevant, evidence in the Ivancic case. This was a point her Honour seems to have overlooked.

36 After the luncheon adjournment, her Honour proceeded with that case and, at T p 199, she stated that the essence of the claim:

“… is in all respects that a sum of $50,000 is paid to the defendant on or about 15 September 1995. The ambit of that claim is defined precisely from the Bar Table on the basis of Ms Vukic being that in September of 1995 there was one payment and one payment only of $50,000 made in respect of anything to do with Ivan’s Butcheries or any of the other matters made here. That payment you say was not to Miss Debrodt but was to Miss Ivancic, is that correct?”

37 Ms Vukic said that that was what Mr Damjanovic had told her.

38 At T p 200, after some discussion as to how the matter should proceed, the following transpired:

“Cohen: If your Honour pleases the only proposition that I address your Honour about as a consequence of that and I cavil with none of it – is it’s my submission that if your Honour’s persuaded at the end of the evidence to the extent that the defendant’s version should be accepted it’s my submission that that should be the end of those proceedings as against Miss Ivancic. If I might put it that way.
Her Honour: Is it the case that the determination of the larger question – that is the Deed question – is relevant also to this question?
Cohen: Well it appears utterly irrelevant to this.
Her Honour: Let’s assume for the moment that this claim was made out, if this claim was made out with the determination of the question on the assignment of the Deed also resolved this question, because would the debt have fallen from …
Cohen: I’d have to in fairness again as amicus to put before your Honour that there are wider issues in this claim than merely the Deed.
…”.

39 Mr Cohen, in our opinion, should have reminded her Honour of the order for hearing, which meant that the larger question could not be “utterly irrelevant”, and suggested that whilst the evidence of Ms Debrodt and Mr Damjanovic could be taken conveniently at that point, there were several reasons why judgment in those proceedings should await judgment in the forgery proceedings, viz that the evidence in one case was evidence in all, and that any adverse finding against Mr Damjanovic, for which he was obviously contending, could well lead to her Honour being disqualified, on the ground of apprehended bias, if made before all the evidence was completed. At T p 201, her Honour asked Ms Vukic if she agreed with the proposition that if the claim failed in its entirety, her Honour using the word “collapses”, “then the rest of it is an irrelevancy”. The last remark seems to have been a statement, rather than a question. No answer, or observation by Ms Vukic to it, is reported.

40 Her Honour then heard evidence from Ms Debrodt, in the course of which she said that Mr Damjanovic gave her the money by writing a cheque. This was directly challenged by Ms Vukic, who put to Ms Debrodt that Mr Damjanovic had said that he would only hand over the money if there was someone there from Mr Spehar’s family: T p 205. It was subsequently put to Ms Debrodt by Ms Vukic that Mr Damjanovic gave Ms Ivancic the money: T p 207. At T p 208, her Honour accepted that there was a denial of that, saying, inter alia:

“I think it is patently apparent Ms Vukic from the expression on the witness’s face that she did not agree with you, do you agree with that?” (T p 208)

41 Ms Vukic seems to have agreed that there was a denial. This version of what transpired was again put at T p 209.

42 At T p 211, Mr Damjanovic was called and he denied giving any money to Ms Debrodt. He said he gave the money to Ms Ivancic. He gave evidence in support of what had been put by Ms Vukic to Ms Debrodt. This evidence was directly challenged in cross-examination at T p 213. There then was a dispute as to whether Mr Damjanovic had said something in cross-examination, which essentially commenced at T p 214. It was a situation which, in our opinion, called not only for considerable restraint on the part of the trial Judge, but also for her to attempt to settle down what seemed to be a somewhat unfortunate comment by Mr Damjanovic, but one which, if made, was in relation to an irrelevant matter. Far from doing so, her Honour, as we read the transcript, tended to inflame the situation. At T p 214 the following appeared:

“Her Honour: I will have answer to that question, it is a simple one, he said it yes or he said it no, it seems to be extremely difficult for this man to answer a simple question, I would like an answer it (sic), ask it, did you say that or not?
A. I give Mrs …
Her Honour: Mr Damjanovic shut up now answer the question you were asked, did you say what Mr Cohen just put to you that it was words to the effect …
A. … (not transcribable) …
Q. No you will listen to me, did you say in Croatian words to the effect, is this the correct phrase ‘May God fuck their mothers’?
A. It’s something that I meant but I not met it”. (Our emphasis)

43 Whilst we can understand that her Honour may have been feeling frustrated by certain of the answers given by Mr Damjanovic, three matters of some significance arise from this piece of evidence. First, her Honour’s gratuitous statement that it seemed extremely difficult for Mr Damjanovic to answer a simple question. Secondly, her Honour’s premature interruption of Mr Damjanovic’s statement, which at that stage could not have been taken as a failure to answer in general terms the precise question asked, and thirdly her most unseemly statement to Mr Damjanovic to “shut up”. The use of such language, in our opinion, falls far short of acceptable judicial behaviour, and such a remark to a witness, combined with other matters, might lead to an apprehension of bias.

44 The situation, in our opinion, was worsened by what transpired at T pp 214-215:

“Her Honour: That will do, it can be put to Mr Zelvic (sic) in cross-examination, I think we have enough versions, enough people in this room who speak the language for that to not be a correct translation for it to have been cooled by now and I note spectacular silence from the plaintiff ’s representative .
A. They all lie here your Honour and they stuck together.
Vukic: Your Honour, I have to be silent, I have been directed to silence …
Her Honour: Was the translation made by Mr Spehar correct or not correct?
Vukic: I didn’t hear him.
Her Honour: How very convenient , anything in re-examination?” (Our emphasis)

The reference to Mr Zelvic should have been to Mr Zobec.

45 The first quoted statement by Ms Vukic was, in our opinion, totally justified by the statements by her Honour to Ms Vukic, that she should be quiet unless she was objecting. The passage we have quoted is punctuated by two observations by her Honour which we find disturbing, particularly in view of what had just happened. Her reference to “spectacular silence” was, in our opinion, totally unnecessary. It indicated, as clearly as may be, that her Honour was of the view that Ms Vukic had heard what was said but was not commenting.

46 The statement, “How very convenient”, was also totally uncalled for. It gives the strong impression of being both sarcastic and disbelieving. There was no reason for Ms Vukic to be listening to what Mr Zelvic (sic) said, and indeed her Honour, if she was relying on that in asking her question resorted to a question about “words to the effect”. The two statements taken together, together with her Honour’s order to Mr Damjanovic to “shut up”, all would have indicated, in our opinion, to a reasonable bystander, and certainly indicate to us, that her Honour was far from holding the scales pending a determination of the proceedings. For the matter to be dealt with in that way by a Judge shows, at least on the face of the transcript, little attempt to maintain the proper decorum of either the Court or herself, such as to allow a proper ventilation of the issues before an apparently impartial tribunal. It should also be noted that before the passage to which we have referred, her Honour had asked Mr Spehar to translate what he had heard Mr Damjanovic say, notwithstanding that he was not the Court interpreter and was a party with a position adverse to Mr Damjanovic.

47 Subsequently, her Honour was asked to give judgment in that matter. She did so on 10 August 2000 and, after setting out the factual issues and the pleadings, said, at p 3:

“Ultimately, there is a confined debate of fact into whose hands the cheque was placed. It is determined exclusively by a question of credibility. The question is: do I believe Miss Debrodt who says she is the one who received the money, signed a document representing that fact and says that she was not accompanied? That is directly contradicted by Mr Damjanovic.
I have had the advantage of having heard and seen Mr Damjanovic give evidence for the earlier part of today and yesterday on these proceedings and others . I do not believe Mr Damjanovic. I do believe Miss Debrodt”. (Our emphasis)

48 This judgment was given at a time when Mr Damjanovic’s case in chief, including, of course, his evidence, on the various forgery issues, had been closed. However, it was clear that there was still evidence to be called from the defendants, and that there may have been a case in reply in which Mr Damjanovic, at least arguably, would have given evidence.

49 Her Honour’s finding in the case against Ms Ivancic was based upon her decision that she did not believe Mr Damjanovic. That conclusion was reached because, as she said, she had had the advantage of hearing and seeing him give evidence, not only on 10 August 2000, but also on 9 August 2000, and not only in the proceedings against Ms Ivancic, but also in others, i.e. the part-heard forgery proceedings.

50 Accordingly, her Honour was stating that her disbelief of Mr Damjanovic was based, not merely on the evidence he gave in relation to the claim against Ms Ivancic, but also upon the evidence he had given in the forgery proceedings. Thus, at a point of time when those proceedings were part heard, her Honour was making a finding, namely that she did not believe Mr Damjanovic based, at least in part, upon what he had said in the part heard forgery proceedings. That finding did not relate to some evidentiary or interlocutory issue: it was dispositive of the Ivancic proceedings.

51 In our opinion, the situation would have been sufficiently susceptible of giving rise to an apprehension of bias against Mr Damjanovic if her Honour had confined her observations to the evidence he had given in the proceedings brought against Ms Ivancic. However, she included what she had gleaned from the evidence Mr Damjanovic gave in the part heard forgery proceedings, where credit was to be of vital importance, and what she had observed of him in those proceedings. The question which then arose was whether there might be an apprehension of bias, created in the reasonable bystander, by reason of that judgment, in relation to the forgery cases, such that her Honour should not have continued to hear them. This is a somewhat discrete point, but it is one which, in the circumstances of this case, can be viewed against the other conduct of her Honour about which complaint is made.

52 In Ex parte Schofield; re Austin (1953) 53 SR (NSW) 163, Herron J said:

“In my view, the learned magistrate should not have proceeded to judge the several complaints against the police sergeant by two citizens, when he had only just before entering in the case used the strongest possible language to show that they were, in his opinion, unworthy of belief. I think that the circumstances under which he heard these several complaints and dismissed them could give rise to a suspicion in the mind of a passer-by that the cases had been pre-determined by the Court and that a fair hearing was not able to be obtained”.

53 In Reg v Watson ex parte Armstrong (1976) 136 CLR 248, the majority of the High Court (Barwick CJ, Gibbs, Stephen & Mason JJ, Jacobs J dissenting) found that prohibition should issue against the trial Judge, who, on an interlocutory hearing, had said, inter alia:

“If one of the parties does not put in issue his capacity to meet a reasonable order, or even a quite generous order by the Court, and it says they have that capacity to meet it, and if, secondly, the Court accepts that admission, because the Court may not and I certainly would not in this case accept any admission without corroboration on either side – let me say on this point, in amplification of what I have said, it might assist you in handling this matter, I propose to conduct this case having regard to the inadequacies of both sides of the case upon the basis I will not find in my own mind that I am satisfied on either side unless there is corroboration of a particular matter. That will mean that there will be no great value to either counsel in cross-examination of credit because credit is a non event in this case”.

54 Objection was taken to what his Honour said.

55 At p 258, the majority recognised that the bias being alleged was “by reason of some pre-determination he has arrived at in the course of the case”.

56 At p 262, their Honours said:

“The view that a Judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial, and that if a Judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct in principle”.

57 At p 263, they continued:

“It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”.

58 At p 265, they continued:

“It was said that there was no bias because the Judge had formed an equal distrust of both parties. The formation of a preconceived opinion that neither party is worthy of belief amounts to bias in the sense in which that word is used in a number of the authorities already cited. To form such an opinion is to predetermine one of the issues in the case, and may operate unfairly against one party, even though both are discredited. A prejudice against the credit of both parties will not necessarily damage both parties equally. It will prove more damaging to that party who wishes to establish a fact by means of his or her own unsupported evidence. A party who believes, on reasonable grounds, that the Judge has decided, in advance, to disbelieve her evidence cannot have confidence in the result of the proceedings, even if the Judge has decided to reject the evidence of her adversary as well”.

59 In Livesey v New South Wales Bar Association (1983) 151 CLR 288, the presently applicable test was laid down. The facts of that case are so well known as to require no repetition in this judgment. At p 299 in the joint judgment of the Court, Mason, Murphy, Brennan, Dean and Dawson JJ, it was stated:

“What is in issue in the present case is the appearance and not the actuality of bias by reason of prejudgment. The reasonable observer is to be presumed to approach the matter on the basis that ordinarily a Judge will so act as to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of prejudgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant Court”.

60 At p 300, their Honours said:

“It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgment, if a Judge sits to hear a case at first instance after he has, in a previous case, expressed clear views about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact . The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular Judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the Judge to refrain from sitting ”. (Our emphasis)

61 In Vakauta v Kelly (1989) 167 CLR 568, the facts of which are once again well known such as to require no repetition, Brennan, Deane and Gaudron JJ, in dealing with the failure by counsel appearing at the hearing to object to certain observations made by the trial Judge, said, at p 573:

“The appellant’s failure to object to the comments made in the course of the trial cannot, in our view, properly be seen as a waiver of any right to complain if comments made about Dr Lawson in the judgment itself would, in the context of those earlier comments, have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer”.

62 Dawson J was of the view that the remarks made by his Honour did not, of themselves, constitute circumstances giving rise to a reasonable apprehension of bias. He made clear that a party, troubled by such remarks, could not sit by to see the outcome of the proceedings before objecting, and he said that:

“Where a party, being aware of his right to object , waives that right there will be little danger of the appearance of injustice ”. (Our emphasis)

63 Notwithstanding the view to which his Honour came about the original remarks, he considered that what was said in the judgment, taken with those remarks, led to a reasonable apprehension of bias.

64 Toohey J dealt with the matter at some length and, at p 585, in relation to a “fair-minded observer”, said:

“But, in this regard, the public perception of the judiciary is not advanced by attributing to the reasonable or fair-minded observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case. Such an observer, on being told of the litigation in the present case and then being told of his Honour’s remarks, is unlikely to conclude that his Honour was showing no bias against the appellant’s potential witnesses and in turn against the appellant’s case as to the extent of the respondent’s disabilities. On the contrary, the observer is likely to conclude that his Honour would approach the assessment of damages with a strongly held opinion that the evidence of the appellant’s medical witnesses (which he had not heard) would almost certainly be loaded against the respondent and therefore be worthy of little credence”.

65 At p 587, his Honour continued:

“There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred , should not be capable of waiving the right later to object to the Judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the Judge to withdraw from the case. It may be enough that counsel made clear that objection is taken to what the Judge has said, by reason of the way in which the remarks will be viewed ”. (Our emphasis)

66 In Australian National Industries Limited v Spedley Securities Limited (in liquidation) & Ors (1992) 26 NSWLR 411, the majority of this Court followed the approach propounded in Livesey. A written submission was made by Mr Cohen that Rolfe AJA had, by referring to this decision at an earlier mention, in some way denied the respondents procedural fairness. This submission was not repeated orally and was withdrawn.

67 In Abram v National Australia Bank Limited (Court of Appeal – 1/5/97 – unreported), this Court, after referring to the repetition of the Livesey test by the High Court in Webb v The Queen (1994) 181 CLR 41, said that the apprehension of bias was created, inter alia, by remarks made by the Judge in an earlier judgment: p 40.

68 In Johnson v Johnson (2000) 201 CLR 488, the High Court affirmed that the test to be applied in determining whether a Judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that he or she might not bring an impartial and unprejudiced mind to the resolution of the questions necessary to be decided.

69 In their joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, said, at p 492:

“It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a Judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide”.

70 At p 493, their Honours continued:

“Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or of the ability of a particular Judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They developed to take account of the exigencies of modern litigation. At the trial level, modern Judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to Court expecting a Judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx”.

71 Their Honours then referred to what had been said in the majority judgment in Vakauta about the desirability of the interchange of views and the statements by a Judge of preliminary views in order to test those views and propositions and submissions being put to him or her.

72 Kirby J came to essentially the same conclusions and, at p 504, he said:

“If the party complaining is legally represented, the submission will require explicit instructions and usually be made (as in the present case) after time for advice and reflection”.

73 In the present circumstances, it would probably be sufficient justification for making the orders that we have, that the reasonable bystander might have an apprehension of bias based on pre-judgment, merely from the terms of her Honour’s judgment in the Ivancic case. That apprehension would be fortified, so it seems to us, by the fact that she relied, not only upon her assessment of Mr Damjanovic’s evidence in those proceedings, which she was actually deciding, although probably prematurely, but also by reference to the part heard cases before her. It is difficult to think that the reasonable bystander could have left the Court thinking other than that, notwithstanding that the evidence in the part heard cases was not concluded, Mr Damjanovic, who carried the onus in them, would, in all probability, not be believed, her Honour having determined already that he was not a credible witness.

74 But, in our opinion, one is entitled and, indeed, bound, to go beyond the terms of the judgment. The reasonable bystander would have heard her Honour tell Mr Damjanovic to, “shut up”, language quite inappropriate to a judicial officer exercising judicial power in Court, or, perhaps, at all. Shortly thereafter, there was the sarcastic statement relating to the “spectacular silence” from Ms Vukic, and then the sarcastic and critical comment, “How very convenient”.

75 In our opinion, the totality of this conduct, together with the terms of the judgment, was sufficient to meet the test in Livesey, such that, her Honour, in our opinion, was disqualified from further hearing and pronouncing judgment in the unfinished proceedings.

76 No application was made to her Honour by Ms Vukic, on behalf of Mr Damjanovic, or by Mr Damjanovic, for her to disqualify herself, a matter on which Mr Cohen placed reliance. Much had been said in the context of whether leave should be granted to Ms Vukic to appear on behalf of Mr Damjanovic, of the desirability of the Court being assisted by counsel or legal representatives, who are officers of the Court, and have an obligation, consistently with the duty to their clients, to assist the Court. Mr Cohen did not suggest to her Honour that, having heard all the evidence in the case involving Ms Ivancic, it would be desirable for her to reserve her judgment until she had heard all the evidence in all the cases. He did not refer her Honour to the decisions on apprehended bias arising from pre-judgment. Rather, he actively sought a judgment from her Honour.

77 Notwithstanding the significance of these cases in the conduct of litigation, they appear to have escaped her Honour’s notice. So far as waiver is concerned, in these circumstances, it seems to us to be well established that there can only be waiver with knowledge of the right to object to her Honour’s continuing to hear the part heard proceedings. The authorities to which we have referred make this clear. There was no evidence that either Ms Vukic or Mr Damjanovic had any knowledge of their rights to object. Further, her Honour revived the matter in her judgment, in the way to which Dawson J referred, in the findings she made about Mr Damjanovic’s credibility in the forgery cases. We do not consider that either Ms Vukic, or Mr Damjanovic through her, could be said to have waived whatever rights flowed from what her Honour did by dint of any failure to ask her to disqualify herself.

Other Matters Of Concern

78 We have referred to statements made in the initial stages by her Honour in relation to Mr Damjanovic’s being represented by Ms Vukic. In themselves, some of them may not have caused a reasonable bystander to entertain an apprehension of bias. To the extent to which we have referred, the view may be taken that her Honour was doing her best to protect the interests of Mr Damjanovic. However, some of the statements made and, thereafter, the frequent references to the problems, dangers and risks created by the appearance of Ms Vukic and the “folly” and “stupidity” of Mr Damjanovic’s following that course, were, in our opinion, such as to create a quite different view. There seemed to be intruded into the discussion on this subject an almost threatening element, e.g. at T p 39:

“Plaintiff: I will not leave it at this. I will take it to the High Court.
Her Honour: The probabilities of your succeeding in getting anywhere past this Court if you lose because of your assistant’s failures are very low. It’s a question for you whether you want to continue, warned of the risk or not”.

79 There are further instances of this type of conduct by her Honour.

80 At T p 81, her Honour continued to make comments, which, on one view, were somewhat threatening. An Income Tax Return was tendered by Ms Vukic as Ex 17, and her Honour said:

“… be on notice as to the fact of law I have in front of me now as a matter of evidence a tax return, and in the event of something falling before me which causes me to doubt the voracity (sic) of that tax return, I do not form a view on that matter, I refer it forthwith plus the lot, to the Taxation Office, that is my duty, that is the duty that I will exercise”.

81 There was absolutely no reason for her Honour to have made that remark. Of course, if subsequently material emerged which showed that the return contained false information, there may well have been such an obligation on her. But to raise the matter at the outset could only be interpreted as a very unsubtle threat of possible consequences: the type of threat under which a litigant should not be placed, without reason, by a trial Judge.

82 At T p 82, her Honour told Ms Vukic to, “bear on notice” that she would enter into no discussion on the subject, as it was a matter on which she made decisions, “other than to exercise my duty”. Prima facie, one could be forgiven for thinking that procedural fairness would require her Honour to seek an explanation from whomever she thought was the appropriate person. On the same page, the following transpired:

“Her Honour: I will note it, at the end of the day that may be an issue that is relevant to costs. You might assume it does not come as a great surprise to me to discover that complaints have been made against Mr Rosier, the thing that will surprise me is that the complaint is not made about everybody at some stage.
Cohen: I apprehend that at some stage a complaint was made about me your Honour.
Her Honour: Indeed Mr Cohen I would be very disappointed if there were not”.

83 In our opinion, these latter remarks were totally unnecessary, and could not have been said seriously. They were being said, as I read the transcript, in a sarcastic and critical way of Ms Vukic and Mr Damjanovic.

84 At T p 129, another somewhat extraordinary event occurred. Mr Cohen said he had been instructed that Ms Vukic was giving “coded signals” to Mr Damjanovic. Her Honour did not indicate that she had seen any such thing, notwithstanding that she was in an acutely advantageous position to do so, but, without more, she requested Ms Vukic to turn her back and face the other way, “turn your back completely please, thank you”.

85 Without any enquiry of Ms Vukic as to whether she had been giving “coded signals” to the witness and if so a direction from her to desist, and without any statement of any observation that her Honour had made about Ms Vukic’s activities, she took it upon herself to place Ms Vukic in an almost impossible position of having to face away from the witness and, presumably, the Bar table, and, therefore, her papers. This was repeated at T p 132:

“Her Honour: And again Ms Vukic, so that there can be no argument about who is clueing what if you would turn your back please”.

86 We find this conduct extraordinary. Her Honour made no attempt to ascertain if Ms Vukic was acting in the way alleged and sought no explanation from her. The allegations were serious and would have justified her Honour, had she found them to be established, to revoke the leave for Ms Vukic to appear.

87 The respondents sought to lead some evidence that Ms Vukic had so acted. For the reasons given, this is a matter her Honour should have investigated at the trial.

88 At T p 152, Mr Damjanovic was asked whether he had signed various documents called “Ordinary Statements of Claim”. Ms Vukic said she objected:

“Excuse me I object to this kind of questioning”.

89 Her Honour made no attempt to ascertain what the objection was, but stated:

“Ms Vukic, if he does not know that he signed a statement of claim, we have a problem. Mr Cohen, however you may need to put that question differently. He has signed a number that are not ordinary Statements of Claim and you might put one in front of him to illustrate the point”.

90 There was then a further disputatious harangue in which Mr Cohen, for some reason which does not appear clear on the face of the transcript, required production of documents, and that the leave granted to Ms Vukic be revoked. Ms Vukic said something which was “(not transcribable)”, and her Honour told Ms Vukic to be quiet, and to produce the documents. After a deal of further discussion, at T p 158, her Honour said:

“Mr Damjanovic, please translate this Mr Interpreter. Be under no mistake. It is stupid to proceed in claims such as this without a lawyer”.

91 This was another example of the way in which her Honour was making clear the view she took of Ms Vukic’s appearing, notwithstanding the leave she had been granted.

92 At p 153, after Mr Cohen had sought “immediate judgment by direction”, which her Honour declined to grant, her Honour said:

“Mr Cohen, I will not do that now but having regard to that answer, it will be my direction at the conclusion of this that a transcript of these proceedings be made available to the New South Wales Police Force”.

This was a further threatening remark. It may well be that it is appropriate for a Judge to refer papers, in appropriate cases, and after considered findings have been made, to appropriate authorities. But such suggestions, in the running of the trial, are, generally, inappropriate.

93 It appeared that Ms Vukic was a psychologist and, at T p 159, her Honour said:

“Q. Mr Damjanovic, if a lawyer chose to act in circumstances of this type of conflict of interest, that lawyer would be struck off if not imprisoned.

155 The proceedings concluded thus:

“Vukic: Your Honour, before you leave, you did say that we need to make an application for a transcript. Because Mr Damjanovic intends to actually go on from today …
Her Honour: I wish him the best of luck.
Vukic: … could we apply for a transcript. Do we do it here?
Her Honour: Ms Vukic, I have made a direction that a transcript be made available. I wish Mr Damjanovic the best of luck whichever rounds he goes in and I think it would be extremely unfair if the High Court was deprived of the privilege that has been granted me.
Vukic: I didn’t say the High Court your Honour”.

156 Once again, it seems to us that this conduct, although perhaps not affecting the ultimate result, fell far short of what one would expect from a judicial officer. It dripped of sarcasm. Her Honour’s conduct, in our opinion, not only might have, but we are satisfied would have, given rise to an apprehension of bias in a reasonable bystander. In our view, the reasonable bystander could not have formed any other view. Her Honour made a number of statements during the hearing, to which we have referred, which stated the law wrongly. A reading of the transcript indicates to us a failure by her Honour to deport herself in the way one would expect of a judicial officer. Finally, although contained in the first point, her Honour should not have continued to hear the forgery matters after deciding the Ivancic one. It is interesting to observe that after she gave her final judgment, her Honour asked to be reminded, if any of the matters came before her again, that she should disqualify herself. It occurred to her then. It should have occurred to her earlier.

The Position Reached Thus Far

157 It is convenient to set out, in somewhat summary form, the conclusions reached thus far. First, as we have announced, we consider that this Court should allow the appeals and set aside her Honour’s judgments. In our opinion, those orders are justified on the ground of apprehended bias flowing simply from her decision in the Ivancic case.

158 Secondly, we consider that those orders are also justified by the following matters:

(a) Her Honour’s ever increasing criticism of Ms Vukic’s appearance for Mr Damjanovic concluding with her reference to providing sufficient rope to hang themselves, all of which was accompanied by the several statements to which we have referred, which can properly be described as threatening;
(b) Her Honour’s constant refusal to allow Ms Vukic to explore matters of motive, notwithstanding that she allowed Mr Cohen to do so, and notwithstanding that, as a matter of law, they were relevant to the issue and to credit;
(c) Her Honour’s abruptness with Ms Vukic and her rudeness to her and Mr Damjanovic indicated by the words she used, including sarcastic comments; her frequent, almost instantaneous, interruptions of Ms Vukic; her refusal to allow Ms Vukic to elaborate on any propositions; and her requirement that Ms Vukic not look in the direction of Mr Damjanovic on two occasions;
(d) Her Honour’s wrong statements as to the correct legal position to Ms Vukic including the nature of the issue to be determined, the way in which it could be ventilated, the extent to which re-examination may go, the limits on cross-examination once there was a denial, and reference to other proceedings constituting an abuse of process;
(e) Her Honour’s “Dorothy Dix” questions to the defendants’ witness; and
(f) Her Honour’s reference to “lies” and “liar” in the context of Mr Damjanovic and his evidence.

159 At times, as we have said in the course of our reasons, her Honour’s impatience and rudeness exceeded what, in our opinion, is appropriate judicial conduct. As Kirby P, Clarke JA and Hope AJA said in Toner v Attorney General for New South Wales (Court of Appeal, 19 November 1991, unreported):

“Allowing for the wisdom that can accompany hindsight, it is clear that circumstances such as the foregoing should have been met by Lloyd-Jones DCJ. First, his Honour should have attended more closely to what it was the appellant was striving to say to him. Whilst there are duties of courtesy imposed on legal representatives as a corollary of the privileges they enjoy as advocates, there is a correlative duty in judicial officers to listen patiently and carefully and to retain self control at all times”.

Whilst these words were spoken in the context of a contempt case, they seem to us to have general application. Her Honour failed all these tests.

160 The duties that judicial officers listen patiently and carefully and retain self control at all times have various purposes. First, a patient and careful listening to the evidence will enable the judicial officer to understand, as well as possible, the cases being made by the parties and the evidence relevant to those cases. On that basis the judicial officer is in a far better position to make a proper evaluation of the evidence in the light of the issues raised and the submissions made. In these circumstances, the judicial officer should be in a far better position to decide the case properly, as opposed to one who does not follow those courses.

161 Secondly, the observance of such duties upholds the standing of the Court in the community as providing careful and impartial adjudication of disputes between the litigants. Obviously, in the vast majority of cases, one party will lose. There is much anecdotal evidence to support the view that a losing party, whilst usually disappointed, will accept that situation if that party believes that his or her case has been considered properly and thoroughly – in other words if the losing party is able to say that the Court has provided him or her with a “fair go”.

162 Thirdly, the observance of these duties does not mean that the Court is obliged to listen to endless repetition or the advancing, beyond a point of reaching a proper understanding, of submissions which are groundless. However, there is a difference between that situation and allowing the orderly development of evidence and submissions. Even if the first position is reached, the Court can bring it to an end by stating that it understands the point sought to be made, assuming that it does, and inviting the party to proceed to the next point.

163 Fourthly, and this is probably the most important consideration, failure to observe the duties leads to an erosion in the public’s perception that the Court is administering the law fairly to all parties and, thus, to a lack of confidence in the administration of justice. Confidence in the judicial system plays a very important part in maintaining confidence in the orderly working of society. Conduct by a judicial officer, which may cause that confidence to be diminished, is to be deplored. Judicial officers must have particular regard to the due performance of their functions in situations where a litigant is in person, and does not have English as his or her first language and, as in the present case, has shown a healthy scepticism for the legal system. Such people should not be made to feel that because they are appearing in person, as they are entitled to do, or do not understand the language fully, they are under a disadvantage. Within the rules concerning helping litigants in person, the Court should observe with scrupulous fairness the duties to which we have referred. Further a judicial officer should not, by acting contrary to these basic requirements of patience, courtesy and self restraint, fuel scepticism or suspicion, however wrongly it may be held, of the Court system.

164 Regretfully, when her Honour’s conduct is examined in this case, the only conclusion to which one can come, irrespective of the strength or weaknesses of Mr Damjanovic’s case, is that he did not have a “fair go” and that anyone privy to the way in which her Honour conducted her Court in this case could hardly come to a view other than that her presiding over this case would have severely eroded public confidence in the proper administration of the judicial system. These conclusions, in themselves, justify the orders we have made so that fair trials may be held.

165 The points sought to be made in these reasons are well illustrated, if we may say so with respect, in the passages gathered by Nicholson J in “Litigants in Person”, The Judicial Review, Vol. 5 2001 No. 2. The authors of those passages are highly experienced Judges, whose views are treated with great respect. We shall only refer to one portion in these reasons. In Hunter v Webb (Federal Court – 19/7/86 – unreported), Sheppard J, one of the most highly regarded and experienced Judges in this country, said:

“So the path the Court has to tread is not an easy one, and it is not unlikely that misapprehensions and misinterpretations of what this court does or does not do from time to time during the course of a case will occur. That is something that Judges have to put up with, particularly bearing in mind the increasing number of cases which we are now finding coming before the Court in which there are unrepresented parties”.

166 The High Court made clear in Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 that there is a difference between the rejection of a person’s evidence and a finding of deliberate lying, and that more than a rejection of the evidence must be established before there is the harsher finding. Deane J said that a specific finding that a person has deliberately given false evidence should not ordinarily be made. In the instant case her Honour used the words “lie” and “liar” without any apparent discrimination.

Costs

167 In the particular circumstances of this case, we consider that the costs of all the trials should be paid by the respondents. Whilst many of the difficulties were caused by her Honour, various of the allegations which were made by Mr Cohen had, at best, marginal relevance and the matters were not established. These matters were:

(a) the allegation that Ms Vukic was having an affair with Mr Damjanovic;
(b) the allegation that Ms Vukic was appearing in the matter for some improper ulterior motive;
(c) the question by Mr Cohen as to whether there were any more lies to clarify; and
(d) the failure by Mr Cohen to assist her Honour on various matters of law to which reference has been made.

168 This Court took a similar approach recently in Merrylands Bowling, Sporting & Recreation Club v P & H Property Services [2001] NSWCA 358 to the question of the costs of the trial.

A Final Comment

169 We assume that any authorities to which her Honour has referred the papers in this matter will be furnished with a copy of these reasons.

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