Gindy v Capital Lawyers Pty Ltd (No 1)
[2021] ACTSC 303
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Gindy v Capital Lawyers Pty Ltd (No 1) |
Citation: | [2021] ACTSC 303 |
Hearing Dates: | 5, 6, 10, 11 July 2018 |
DecisionDate: | 11 July 2018 |
Reasons Date: | 17 December 2021 |
Before: | Penfold J |
Decision: | The application is refused. |
Catchwords: | PRACTICE AND PROCEDURE – Application for judge to recuse herself from the trial – applicant’s refusal to identify nature of alleged bias – whether there was evidence of apprehended or actual bias – no evidence of bias. |
Legislation Cited: | Evidence Act 2011 (ACT) ss 41, 57 |
Cases Cited: | Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Gindy v Capital Lawyers Pty Ltd (No 2) [2021] ACTSC 304 Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 |
Texts Cited: | Royal Australian and New Zealand College of Psychiatrists, ‘Australian and New Zealand Clinical Practice Guidelines for the treatment of Panic Disorder and Agoraphobia’ (Website, 2003) < |
Parties: | Laila Gindy ( Plaintiff) Capital Lawyers Pty Ltd ( First Defendant) David Chen (Second Defendant) Paul Crabb (Third Defendant) |
Representation: | Counsel Unrepresented with M Elmaraazey ( Plaintiff with McKenzie friend) M Walsh SC ( Defendants) |
| Solicitors Unrepresented ( Plaintiff) Boettcher Law ( Defendants) | |
File Number: | SC 444 of 2015 |
PENFOLD J:
Introduction
Laila Gindy sued her former solicitors in relation to work they performed for her in three different matters (the Comcare matter, the Motor Vehicle Accident (MVA) matter and the foreclosure matter) over the period from mid-2010 to late 2012.
Ms Gindy was unrepresented at the hearing, but was assisted in putting her case by her husband Mamdouh Elmaraazey, a former solicitor, on the basis of an order made, some time before the matter reached me, that permitted him to act as a McKenzie friend (see Gindy v Capital Lawyers Pty Ltd (No 2) [2021] ACTSC 304).
The defendants were represented by Senior Counsel.
The circumstances of the bias application
From early in the hearing, there had been vague suggestions from each of Ms Gindy and Mr Elmaraazey that a claim of bias might be made (in a similar vein, there were vague suggestions from time to time that counsel would be required to give evidence).
On Day 51 of what turned out to be an 88-day hearing, Ms Gindy was in re-examination, which had been interrupted by a dispute about the admission of documents subpoenaed from the ANZ Bank (ANZ) by the defendants. Mr Elmaraazey on behalf of Ms Gindy insisted that the documents should not be admitted unless he was permitted to cross-examine the ANZ officer who had responded to the subpoena and, in her affidavit, had given a brief explanation of how the documents had been extracted from the bank’s electronic systems.
Mr Elmaraazey struggled to explain why he needed to cross-examine any ANZ officer about the bank records, but continued to make submissions despite my attempts to close down the issue. Eventually there was the following three-way exchange:[1]
HER HONOUR: Right. Thank you. I am not going to entertain the application to call the compliance officer, because the more I hear from you the more I am convinced that it would be a waste - - -
MR ELMARAAZEY: But I haven't finished - - -
HER HONOUR: No. Sorry. You've had time over the last few days and you have not come up to scratch. You have not provided - - -
MR ELMARAAZEY: I talked about - - -
HER HONOUR: - - - anything yet - - -
MR ELMARAAZEY: - - - the credit card, and then I was going to move to the other entries. But you didn't - - -
HER HONOUR: But the other entries - - -
MR ELMARAAZEY: You see - - -
HER HONOUR: All right. You can have one go at telling - - -
MR ELMARAAZEY: No, no, no - - -
HER HONOUR: - - - me - no - you - - -
MR ELMARAAZEY: Look, no, I'm not going to get into this - myself in this - - -
MS GINDY: I think you should remove yourself, you - - -
MR ELMARAAZEY: This is an application - just - - -
MS GINDY: - - - remove yourself - - -
MR ELMARAAZEY: Just hang on - - -
MS GINDY: (indistinct) remove yourself - - -
MR ELMARAAZEY: Just hang on - - -
MS GINDY: (indistinct) remove yourself.
MR ELMARAAZEY: That's it. Your Honour - - -
MS GINDY: I can't take it anymore. If you don't remove yourself, I'm going to leave.
MR ELMARAAZEY: No, no. Just - - -
HER HONOUR: You're most welcome to leave - - -
MR ELMARAAZEY: - - - sit down.
HER HONOUR: - - - Ms Gindy.
MS GINDY: No. I'm not going to leave. (indistinct) had to be heard.
MR ELMARAAZEY: No. Just a minute.
MS GINDY: You have to be biased to them (indistinct)
MR ELMARAAZEY: Just a minute - - -
HER HONOUR: Ms Gindy - - -
MR ELMARAAZEY: Your Honour - - -
HER HONOUR: - - - if there is an application for me to recuse myself on the grounds of bias - - -
MS GINDY: I put the application - - -
HER HONOUR: - - - that - - -
MS GINDY: - - - for remove yourself.
HER HONOUR: That will be made - - -
MR ELMARAAZEY: No, no - - -
HER HONOUR: - - - properly - - -
MR ELMARAAZEY: All right. Your Honour - - -
HER HONOUR: - - - in written submissions.
MS GINDY: You remove himself (indistinct) being said about (indistinct)
MR ELMARAAZEY: All right. Your Honour, let us - - -
MS GINDY: - - - and it's not (indistinct)
MR ELMARAAZEY: All right. Let us say this, Your Honour. Let us say this. If Ms Gindy made that application orally now, I don't think there is a utility - - -
MS GINDY: To continue - - -
MR ELMARAAZEY: Just - I need to talk - - -
MS GINDY: I'm going outside until you figure this out.
MR ELMARAAZEY: No. You have to be here.
MS GINDY: All right.
MR ELMARAAZEY: You have to sit here.
MS GINDY: All right.
MR ELMARAAZEY: You see, Your Honour - - -
MS GINDY: I've had enough.
Mr Elmaraazey then suggested, in effect, that the hearing needed to be adjourned to allow him to put Ms Gindy’s application in writing, but I rejected this suggestion because it would have wasted several hearing days that had been set aside some time previously for the (already extraordinarily drawn-out) hearing.
However, partly because it seemed that Ms Gindy’s “application” had come as a surprise to Mr Elmaraazey as much as to anyone else, I ultimately allowed him and Ms Gindy until after lunch on the following day to provide details of the claim of bias. In the meantime, Ms Gindy’s re-examination continued.
On Day 52, Mr Elmaraazey in oral submissions identified the following matters that Ms Gindy said indicated bias on my part:[2]
(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.
10. Counsel made brief oral submissions about relevant authorities on judicial bias.
11. Mr Elmaraazey was invited to reply to those submissions, but did not wish to do so. Nor was Mr Elmaraazey willing to identify whether Ms Gindy’s claim was of actual bias or apprehended bias, claiming that “what sort of bias is really academic”.[3]
12. I then asked the parties several questions about the alleged indicators of bias, and indicated that on the basis of what I had heard, I was not inclined to recuse myself from the hearing, but that I would refrain from finalising the application until the next sitting day, three days later, to give Mr Elmaraazey an opportunity to provide transcript references in support of some of Ms Gindy’s claims.
13. On the next sitting day, Day 53, Mr Elmaraazey provided some fairly non-specific transcript references (in the form of a transcript page number followed by three or four dots, which Mr Elmaraazey said was a reference to the identified page and “the following page or two”).[4] He did not seem keen to provide any further references, but counsel, not unreasonably, asked that Mr Elmaraazey provide transcript references for each of the items that impugned counsel’s approach to conducting the defence case, and I directed Mr Elmaraazey to provide three examples for each of the deference to counsel claim and the cross-examination claim.
14. On Day 54 of the hearing, Mr Elmaraazey provided 12 transcript references for the cross-examination claim, but none for the deference to counsel claim. Counsel noted that Ms Gindy had been given “abundant opportunity” to provide material in support of the deference to counsel claim, and that the defendants were keen to see the application resolved.[5]
15. After I had looked briefly at the transcript examples provided, I refused Ms Gindy’s application for me to recuse myself, and told the parties I would provide reasons in due course.[6] These are those reasons.
What kind of bias was claimed?
16. As noted, Mr Elmaraazey declined to identify whether Ms Gindy alleged actual or apprehended bias.
Actual bias
17. The nature of a claim of actual bias, and the obligations of a party asserting actual bias, were set out by the NSW Court of Appeal in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (McColl JA, with whom Giles JA and Tobias JA agreed) as follows:
97 … A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be "distinctly made and clearly proved": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.
98 In order to establish that the Arbitrator was guilty of prejudgment sufficient to disqualify him from hearing the case, the appellant had to establish that he was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng (at [72]) per Gleeson CJ and Gummow J (with whom Hayne J agreed (at [176])). In that case Gleeson CJ and Gummow J said:
“[71] ... Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
[75]...The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
[78]...In considering whether conduct of a decision-maker indicates prejudgment, or in some other respect constitutes a departure from the requirements of natural justice, the nature of the decision-making process, and the character of the person upon whom Parliament has conferred the decision-making capacity, may be of critical importance.” (emphasis added)
(Emphasis in original.)
Apprehended bias
18. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at 345 [8], the majority explained the test for apprehended bias:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. 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. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
19. In Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 at 146 [20]–[21], the majority said:
20. The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.
21. The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an "interest" in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.
(Citations omitted.)
Consideration
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).
Grounds for asserting bias
The conspiracy theory claim
22. Mr Elmaraazey said that Ms Gindy believed that I had pre-judged her case before hearing all 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.
23. The first reference during the hearing to a conspiracy was found in a file note that had gone into evidence on Day 36; it had been made by Mr Crabb and recorded a comment by Ms Gindy that her counsel in the Comcare matter, Mr Lunney SC, “conspired on [Mr Elmaraazey]”.[7]
24. Transcript of my references to conspiracies were not provided by Ms Gindy, but two were easily identified. Each of them arose in the course of discussion about the ANZ bank records and Mr Elmaraazey’s determination to cross-examine the ANZ compliance officer who had provided the records under subpoena.
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:[8]
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:[9]
It is absolutely irrelevant even to any of the conspiracy theories that you have advanced about what might be going on - - -
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.
The private conversations claim
29. Ms Gindy’s concern that there had been conversations between me and counsel for the defendants outside the courtroom arose from the following exchange between me and counsel:[10]
HER HONOUR: And it's interesting, given the discussion Mr Walsh and I had the other day, that I'm not sure that all the voir dires ‑ ‑ ‑
MR WALSH: In court, your Honour.
HER HONOUR: Sorry?
MR WALSH: That was discussion ‑ ‑ ‑
HER HONOUR: Yes, yes.
MR WALSH: ‑ ‑ ‑ during the proceedings.
HER HONOUR: Absolutely.
MR WALSH: Thank you, your Honour.
HER HONOUR: About whether the application in relation to Exhibit 84 was a voir dire or not.
30. The concern raised by this exchange was explained by Mr Elmaraazey as follows:[11]
MR ELMARAAZEY: Yes, number two that she does raise the following question and I'm going to qualify it after I say that question. She wonders whether there are discussions with respect - or communications between Mr Walsh and yourself outside the courtroom during these proceedings. Now, the reason ‑ ‑ ‑
…
MR ELMARAAZEY: ‑ ‑ ‑ the reason she says that because ‑ ‑ ‑
…
MR ELMARAAZEY: Because what happened that she did pick up on - you said something during - I think two days ago that - and I heard it, but she understood it differently, that your Honour said, "That's what we discussed" - "That's what I discussed Mr Walsh," and then Mr Walsh stood up and said, "Please mention that in this courtroom." So she ‑ ‑ ‑
HER HONOUR: Sorry? Please mention that?
MR ELMARAAZEY: That the discussion took - the discussion took place in this courtroom. So when we went home Ms Gindy said, "Well, why Mr Walsh stood up and stated that? Is there any" - "Is there any discussions or communications?" I told her, "I really don't know. I can't answer the question. It's just comment being made."
HER HONOUR: ... So when I said that, Mr Walsh asked me in effect to clarify ‑ ‑ ‑
MR ELMARAAZEY: To qualify that the discussion ‑ ‑ ‑
HER HONOUR: That it was a discussion in the courtroom?
MR ELMARAAZEY: Yes. So when I went home Ms Gindy said, "Look, why Mr Walsh says that? Is there any discussion outside the courtroom?" I said, "Look, I don't know. I can't answer the question …"
31. Counsel (Mr Walsh) had asked me to clarify that my reference in court to an earlier discussion with him was to an earlier discussion that had also taken place in the courtroom.
32. Ms Gindy’s concern was, apparently, that Mr Walsh’s request might have been that I should distinguish the discussion that had taken place in the courtroom from other discussions that Mr Walsh and I had had outside the courtroom (and therefore not in Ms Gindy’s presence).
33. Ms Gindy was correct that Mr Walsh’s request could as a matter of sentence structure have carried either of those meanings. However, to anyone who understood the legal system and in particular concepts such as open justice, the implication of counsel’s request would have been clear. That is, counsel had asked me to make it clear that there had been no impropriety in the circumstances of our earlier discussion; he had not asked me, in effect, to distinguish that perfectly proper earlier discussion in court from improper discussions between counsel and me that had taken place outside the court room.
34. I reject the suggestion that judicial bias (of any kind) can be demonstrated by an uninformed party’s misunderstanding of an exchange in open court between the judge and a representative of another party.
35. 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.
The deference to counsel claim
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”.
The cross-examination claim
41. Mr Elmaraazey explained this claim as follows:[12]
Mr Walsh repeatedly said, "This is my cross-examination. I don't want to be interrupted," and [Ms Gindy] said, "Is there any law that says that the counsel cannot be interrupted, or is it his cross-examination. That means it is Mr Walsh is controlling this courtroom, not her Honour?" And Ms Gindy noted the tone and the voice to me every time, among other things, when he said, "Your Honour, this is my cross-examination. I don't want to be interrupted."
42. Ms Gindy’s claim that counsel resisted interruptions of his cross-examination was correct. Counsel repeatedly made comments of the kind claimed by Ms Gindy for the simple reason that Mr Elmaraazey repeatedly interrupted counsel’s cross-examination.
43. The implication of Ms Gindy’s question, that there is no “law” against interrupting counsel during cross-examination, was of course correct.
44. In fact, s 41(4) of the Evidence Act 2011 (ACT) explicitly permits a party (presumably the party not represented by the cross-examiner) to:
object to a question put to a witness [in cross-examination] on the ground that it is a disallowable question.
45. Section 41(1) defines “disallowable question” as a question that:
(a) is misleading or confusing; or
(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or
(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or
(d) has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).
46. On rare occasions, Mr Elmaraazey interrupted counsel’s cross-examination in circumstances that would seem to have been justified by s 41(4), for instance where a question to Ms Gindy was potentially confusing because there was some doubt (not uncommon given the volume and relative disorganisation of the exhibits, in particular those tendered on behalf of the plaintiff) that the documents Ms Gindy had in front of her were in fact the documents about which she was being cross-examined.
47. More commonly, however, Mr Elmaraazey’s interruptions suggested to me at least an attempt to give Ms Gindy an opportunity to think about, or revise, the evidence she had given, or even an attempt to alert her specifically to what Mr Elmaraazey saw as problematic in the evidence she was giving.
48. Ms Gindy provided a number of transcript references to what she saw as examples of counsel objecting to being interrupted during his cross-examination. Most of them involved nothing more than counsel responding to an interruption by Mr Elmaraazey by pointing out that he was cross-examining and should not be interrupted. In one or two of the incidents, Mr Elmaraazey interrupted to raise a point that might have needed some consideration, but not one that needed to be raised at the particular point (unless his real intention was in fact to disrupt counsel’s cross-examination, which could not be ruled out).[13]
49. 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.
The relevance objections claim
50. Ms Gindy said that counsel “took over control of the proceedings”, claiming 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.[14] Ms Gindy provided 12 examples of such objections made by counsel. I had asked for three examples. Initially I considered only the first three examples but since I could make no sense of two of them, I also considered the fourth example (with no more success).
Application for litigation funding
51. The first example related to Mr Elmaraazey’s tender of an application made by Ms Gindy to a litigation funder in connection with the MVA matter. Counsel pointed out that, by reference to the pleadings, the application did not seem to be relevant to any fact apparently in issue, and that if in due course its relevance became apparent, the evidence could be tendered in reply. After further discussion, the evidence was provisionally admitted under s 57(1)(b) of the Evidence Act. In cross-examination about Ms Gindy’s financial situation in May 2011, counsel put to Ms Gindy that the application for litigation funding was related to her financial difficulties more generally, and then noted that, as a result of his questioning, there was no further basis for maintaining provisional admission and that the document should be admitted into evidence.[15]
Medical reports and litigation funding
52. The transcript references for this claim identified the following objections by counsel:
(a)an objection by counsel which was immediately withdrawn; and
(b)an objection by counsel to the admission of a particular document (consisting of a letter and two attached medical reports) except as evidence of documents received by Ms Gindy (that is, not as expert evidence about Ms Gindy’s medical conditions).[16]
53. The references, which were presumably intended to identify the point in cross-examination at which the resisted evidence had emerged as relevant, mentioned the same questioning about litigation funding and Ms Gindy’s financial circumstances as was relied on for the first example. None of that questioning seemed to make the excluded medical evidence relevant.[17]
The disability support pension and the foreclosure matter
54. The first transcript reference given identified two references in a medical report to the fact that Ms Gindy was on a disability support pension, after which counsel noted that his objection to the admission of medical reports as evidence of their contents was pressed.[18] The second transcript reference identified counsel’s cross-examination of Ms Gindy about the foreclosure matter and why her loan balance had increased.[19]
55. It is true that Ms Gindy’s disability support pension did acquire some minor relevance in the foreclosure matter, but counsel’s objection had not been to the admission of the statements that Ms Gindy was receiving a disability support pension but to the admission of the reports containing medical information and assessments as evidence of those matters, which had already been excluded by earlier rulings.
The NRMA costs negotiation
56. The first transcript reference identified an objection by counsel to the form in which Mr Elmaraazey sought evidence from Ms Gindy, as follows:[20]
MR ELMARAAZEY: Have you given Mr Chen any instructions to accept the NRMA offer?---I ‑ ‑ ‑
Just yes or no ‑ ‑ ‑?---No.
- - - because we need to move on, please?---No.
So you're quite sure ‑ ‑ ‑
MR WALSH: I object.
57. The second transcript reference identified the relevant cross-examination as “Most of not all …”.[21] Since counsel’s objection as identified was to the form of Mr Elmaraazey’s questioning rather than the relevance of the evidence concerned, and since there was no dispute about the relevance of that evidence, I did not spend any time trying to identify the point (if any) at which evidence allegedly objected to as irrelevant subsequently emerged as relevant.
The agoraphobia claim
58. Mr Elmaraazey explained Ms Gindy’s concerns about the reference to agoraphobia as follows:[22]
Mr Walsh made a comment to Ms Gindy about agoraphobia. And when I did ask her, "Do you know what agoraphobia means, Ms Gindy?" your Honour stopped me. So when I went home Ms Gindy said, "You need to tell me what this means." So I had to get it on the dictionary and tell her - I told her what it means. Then this is what she said: "Look, the fact that the word being said and her Honour did not even inquire from Mr Walsh about why he said this or what were his reason to say this. That means in her Honour’s mind she agrees with him that I am having agoraphobia and that means she pre-judged me before the end of these proceedings.
[Ms Gindy] was surprised that [counsel] came back to put to Ms Gindy such expression and more seriously to her that your Honour has - because you did not - or you did not clarify from him why he said that. That means you are in agreement with him that Ms Gindy has an agoraphobia and that is again amounts to pre-judging the plaintiff in this case.
59. Counsel asked Ms Gindy about agoraphobia in the course of cross-examining her about an invoice for ambulance transport; Ms Gindy claimed that the cost of this ambulance transport was an out-of-pocket expense related to her workplace injury and that Capital Lawyers should have recovered it from Comcare. The exchange in court described by Mr Elmaraazey (at [56] above) was transcribed as follows:[23]
MR WALSH: Yes. And then if you turn the page, there's a further tax invoice for $670? ---Yes.
And that's not a receipt, is it?---No. But read the description, since you brought that - see, ambulance emergency, transported from Florey Medical Centre - Florey Medical Centre to Calvary Hospital - - -
Thank you?---- - - which that day, they thought I'm not going to make it - - -
No?---Mr Liu - the whole centre panicked as they took me with (indistinct) so they can get me to the Calvary quickly.
Was that for your agoraphobia, was it?---What agoraphobia?
Well, your condition?---I don't understand.
HER HONOUR: Mr Elmaraazey, I don't think laughing is really the appropriate response at this time.
MR ELMARAAZEY: I don't know - it's already - the English is difficult. It is, Your Honour. So what's - - -
HER HONOUR: Well, why don't you quickly Google instead of laughing?
WITNESS: I don't know what you mean, Mr Walsh.
MR WALSH: Thank you. Now, Ms Gindy, that's of course one of the ambulance entries in hand on your page?‑‑‑Huh? Yes.
60. I do not claim to have any particular knowledge of agoraphobia, but my general understanding of the condition before this matter was raised was roughly in line with the following explanation subsequently sourced from an apparently reliable website:[24]
Agoraphobia
Agoraphobia is often thought to mean that people are afraid of ‘open spaces’. This is partly true. Many people with panic disorder avoid a number of situations because of their fears. This avoidance is known as agoraphobia, which is anxiety about being in places or situations from which escape might be difficult or in which help may not be available in the event of having a panic attack.
For this reason people with agoraphobia often avoid places such as trains, crowds and queues or only enter these situations with a trusted friend or relative. Obviously this can be extremely disabling and often limits opportunities in terms of work, social or other activities.
61. When counsel used “agoraphobia” in cross-examination, I did not see any need for me to ask him to explain the word. Nor would it have been appropriate for me to ask counsel why he had used the word, given that it was potentially relevant to Ms Gindy’s claims in at least two ways.
62. First, Ms Gindy’s claims all relied in part on her disability and its impact on her capacity to “properly chase all her entitlements”; given the obscurity of that disability claim, questions about the possible elements of the claimed disability could not have been immediately identified as inappropriate.
63. Furthermore, Ms Gindy’s claims in the Comcare matter included a complaint about the defendants’ failure to recover various medical expenses from Comcare, including medical expenses such as ambulance charges, the relevance of which in the Comcare matter was far from clear. Thus, questions about the reasons for ambulance transport were not obviously inappropriate.
64. It may be that Mr Elmaraazey could properly have objected to the question about agoraphobia as being confusing to Ms Gindy, but in fact Ms Gindy dealt adequately with the question (simply by making it clear that she did not understand the word) while Mr Elmaraazey was busy distracting the court, first by laughing and then by indicating only that he did not know the word.
65. Thus, my failure to ask counsel about his reference to agoraphobia showed nothing about whether I believed Ms Gindy suffered from agoraphobia, and nothing about any possible “pre-judgment” of her or her case.
66. I note in passing that evidence permitting a conclusion that Ms Gindy suffered from agoraphobia might have been helpful rather than unhelpful to her case (although not in any way decisive). This made the agoraphobia complaint even more strange.
Conclusions
67. I was satisfied that the evidence pointed to, and the submissions made, on behalf of Ms Gindy had not, and could not have, established that I was, in her proceedings, “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”. That is, Ms Gindy had not established actual bias.
68. Ms Gindy had not even offered evidence that could, if accepted, have been adequate for a finding of apprehended bias.
69. Accordingly, the bias application was refused.
| I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 17 December 2021 |
[1] T-5693.21-5696.02, 5 July 2018 (Day 51).
[2] T-5851-6, 6 July 2018 (Day 52).
[3] T-5856.33, 6 July 2018 (Day 52).
[4] T-5916.24, 10 July 2018 (Day 53).
[5] T-6014.41, 11 July 2018 (Day 54).
[6] T-6117.01–8, 12 July 2018 (Day 55).
[7] See T-3978–9, 3982, 13 February 2018 (Day 36), and content confirmed by Mr Crabb at T-9087–8, 9112, 26 September 2018 (Day 76). The file note was admitted as having formed part of “the plaintiff’s bundle”, and not for the truth of its contents. Its only significance at the relevant point in the hearing was that it appeared to record a suggestion made by Ms Gindy of a conspiracy against Mr Elmaraazey.
[8] T-5447–8, 3 July 2018 (Day 49).
[9] T-5692.44–5693.01, 5 July 2018 (Day 51).
[10] T-4731.31–4732.09, 21 June 2021, (Day 43).
[11] T-5851.25–5853.18, 6 July 2018 (Day 52).
[12] T-5853.24–30, 6 July 2018 (Day 52).
[13] I note in passing that early in the hearing, I had to ask Ms Gindy not to tell Mr Elmaraazey off when he interrupted her in giving her evidence in chief: T-1074.17–18, 24 May 2017 (Day 10).
[14] T-5853.24–38, 6 July 2018 (Day 52).
[15] T-173, 11 April 2017 (Day 2); T-2328.01–9, 21 July 2017 (Day 22).
[16] T-227.10, 242.21, 12 April 2017 (Day 3).
[17] It is possible that the repetition of the cross-examination mentioned in the first example provided on behalf of Ms Gindy was simply a clerical error.
[18] T-242.41, 250.09, 12 April 2017 (Day 3). The earlier exclusion of medical reports as evidence of the truth of their contents resulted from Ms Gindy’s failure to serve the relevant reports on the defendants as required by orders made before the hearing began.
[19] T-1724.05–16, 14 July 2017 (Day 17).
[20] T-269.31–39, 12 April 2017 (Day 3).
[21] See “Re: Examples of Transcript References as per Her Honour Justice Penfold Direction on Friday 06 July 2018”.
[22] T-5856.12–20, 6 July 2018 (Day 52).
[23] T-5134, 27 June 2018 (Day 46).
[24] From a companion to the Australian and New Zealand Clinical Practice Guidelines for the treatment of Panic Disorder and Agoraphobia (2003) for professionals, which had been developed by the Royal Australian and New Zealand College of Psychiatrists and published by the Australian government: <
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