Gindy v Capital Lawyers Pty Ltd (No 1)

The plaintiff, Laila Gindy, sued her former solicitors, Capital Lawyers Pty Ltd and two of its employees, David Chen and Paul Crabb, in relation to work they performed for her in three different matters over the period from mid-2010 to late 2012. The defendants were represented by Senior Counsel. 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 the Supreme Court of the Australian Capital Territory, that permitted him to act as a McKenzie friend. Penfold J heard the matter over 88 days and ultimately refused Ms Gindy’s application for the judge to recuse herself on the grounds of apprehended or actual bias. Ms Gindy’s application was based on six grounds: (a) that the judge had pre-judged her case because she 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 the judge and counsel for the defendants outside the courtroom (the private conversations claim); (c) that on a number of occasions the judge 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, the judge 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); and (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). In refusing the application, Penfold J noted that Ms Gindy did not identify what might have led her to decide her case “other than on its legal and factual merits”, or to identify any “interest” that the judge might have in the litigation, or to refer to what “a fair-minded lay observer” might have believed about the judge’s attitude to the matter. The judge was satisfied that the application was a claim of actual bias. The judge was also satisfied that Ms Gindy had not established actual bias. Ms Gindy had not even offered evidence that could, if accepted, have been adequate for a finding of apprehended bias. Accordingly, the bias application was refused.