In Attorney-General (Qld) v Mathews [2020] QSC 258 Jackson J has considered contempt (specifically scandalising the court) after Mathews displayed two signs at his house that stated a Court of Appeal judge and the Court of Appeal are corrupt and that a magistrate is likely corrupt. The case is of interest regarding the implied freedom of political communication, defamation and contempt.
Mathews has featured in several judgments, including Mathews v Cooper and Ors [2017] QCA 322, Mathews v Morgan [2005] QSC 222, Cooper v Mathews; Mathews v Corp of the Synod of the Diocese of Brisbane and Ors (No 2) [2018] QSC 64, Mathews v Commissioner of Police [2015] QCA 284, Mathews v State of Queensland [2015] FCA 1264, Mathews v University of Queensland [2002] FCA 414 and Brisbane City Council v Russell Gordon Haig Mathews [2006] QSC 25.
In GRC Crown Law v Mathews; Mathews v Corp of the Synod of the Diocese of Brisbane [2017] QSC 64 Jackson J characterised Mathews' litigation as vexatious, commenting
the amount of the damages claimed is unjustifiable. The claim of $500,000 being for loss of use of the facilities of the house is not supported by any pleaded facts. The claim for $12,600,700 for compensatory damages is not supported by any pleaded facts. The claim for $100 million dollars for aggravated and exemplary damages is perhaps the high water mark in a sea of absurdity of unjustifiable claims. Second, the alleged conspiracy or conspiracies are unsupported by any allegation of facts as to making any agreement or acts from which any alleged agreement may be inferred.
In this instance the Supreme Court states
[1] This is an application for contempt of court. The contempt alleged is of the variety known as scandalising the court. The conduct alleged is that the respondent published and displayed two signs at his house at 119 Brisbane Road, Booval. One sign (“CA and Morrison sign”) stated:
“Court of Appeal and Judge Morrison are CORRUPT. HaigReport.com/CAM”
[2] The other sign (“MacCallum sign”) stated: “Magistrate Donna MacCallum is likely CORRUPT"
[3] The applicant alleges publication and display of each sign was an offence on the ground that the sign scandalises the relevant judicial officer or court and gives rise to a real risk of undermining public confidence in the administration of justice and lessening public confidence in the impartiality and honesty of the judicial officer and court concerned.
[4] For each alleged offence the orders sought are that the respondent be (convicted and) ordered to pay a fine.
[5] Further, the applicant applied for an injunction that the respondent remove both signs within seven days and, if he fails to do so, an order that the sheriff of the Supreme Court is authorised to enter his premises to remove and dispose of the signs as the sheriff sees fit. Further, the applicant applied for an injunction restraining the respondent from erecting any sign that asserts any court or judicial officer of the State of Queensland is or is likely to be corrupt.
Facts
[6] On 14 January 2019, a title search was conducted of the land located at 119 Brisbane Road, Booval. The search showed that the respondent was the registered owner of the land.
[7] On 21 January 2019, a senior registrar of the Ipswich Magistrates and District Court Registry took a photograph of the two signs in question. Their content is accurately described above. They appeared among a number of signs erected inside and above the fence in front of the respondent’s house as well as on the house that were visible to passing road traffic.
[8] Between 21 January 2019 and 13 March 2019, both signs were maintained in that position. After that, the MacCallum sign was taken down.
[9] On 17 January 2019, the director of Courts Innovations Program, Magistrates Courts Service as acting principal registrar and executive director of the Magistrates Courts Service wrote to the respondent about the sign in respect of MacCallum SM. The letter requested the respondent to immediately remove that sign and advised that if he did not, it was possible the matter may be referred to the Attorney-General who had the authority to institute a proceeding against him for contempt of court.
[10] On 2 February 2019, the respondent replied to the acting principal registrar by a long and rambling email denying, inter alia, that he had a case to answer because he “had not stated that [MacCallum SM] IS corrupt; just that there is a possibility, a mathematical probability or likelihood.”
[11] On 31 January 2019, the executive director of the Supreme, District and Land Court service wrote to the respondent about the sign in respect of the Court of Appeal and Morrison JA. The letter requested the respondent to remove the sign forthwith and confirm that he had done so and advised that if the respondent failed promptly to remove the sign, consideration would be given to whether proceedings should be brought against him for contempt of court.
[12] On 8 February 2019, the respondent replied to the executive director by email attempting to justify his allegations of corruption against the Court of Appeal and Morrison JA.
[13] On 7 April 2019, the CA and Morrison sign was still displayed but the MacCallum sign was not displayed.
[14] On 16 April 2019, this application was started by originating application.
[15] As at the date of the hearing of this application neither of the signs was displayed.
Applicant’s submissions
[16] The applicant submits that the facts in evidence prove that:
(a) the respondent published and displayed the signs;
(b) the MacCallum sign was published and displayed from 21 January 2019 to 13 March 2019; and
(c) the CA and Morrison sign was published and displayed from 21 January 2019 to 7 April 2019.
[17] The applicant further submits that the responsibility of the respondent for the publication and display of the signs can be inferred from his ownership of the land and:
(a) in respect of the CA and Morrison sign, the respondent’s statement in his email to the executive director that:
“The definitely amorphous manner in which Morrison [JA] dismissed my valid claims properly pleaded is a clear indication of possible corruption... the fact that two other judges [sic] of the Court of Appeal agreed with him indicates that the Court of Appeal is corrupt... All statements on my sheets of corflute are political statements about Queensland and Australian government and politics...I have political publications on my property... My political publications are exposing corruption in Qld.”
(b) in respect of the MacCallum sign, the respondent’s statement in his email to the acting principal registrar that:
“I have not stated that MacCallum [SM] IS corrupt; just that there is a possibility, a mathematical probability or likelihood.”
[18] The applicant submits that each of the corruption allegations made in the signs is a contempt of court because it was a direct attack on the integrity of the named judicial officer and, in respect of the CA and Morrison sign, the judges who constituted the Court of Appeal.
[19] The applicant submits that the statements were contemptuous as: baseless attacks on the integrity or impartiality of the court or a judge; comments that tend to induce a lack of confidence in the ordered and fearless administration of justice; and unjustified allegations that a judge had acted in bad faith or had failed to act with the impartiality required of a judicial officer. The applicant submits that the statements were calculated to impair public confidence in the named judicial officers and the Court of Appeal and thereby diminish their authority and there was a real risk that the statements so publicly visible would undermine the public confidence in the administration of justice.
[20] The applicant submits that the statements were not governmental or political speech which commented, in good faith, on matters of public importance, including the administration of justice that were merely mistaken or wrongheaded, even if outspoken.
The offence of contempt by scandalising the court
[21] Contempt of court by scandalising the court is a criminal contempt as it is not concerned with non-compliance with an order of the court but is directed against interfering with the administration of justice. It is necessary to further identify the legal basis.
[22] Criminal contempt of court is a species of criminal offence, but it is unlike other offences in some ways. It is prosecuted in a summary way before this court under the rules of court, although it remains a criminal offence at common law in this jurisdiction. Its continuing operation as a criminal offence at common law follows from the fact that the authority of courts of record to punish a person summarily for an offence commonly known as “contempt of court” was excepted in 1899 from the exclusive operation of the Criminal Code and other statutes in respect of indictable offences.
[23] The offence of contempt by scandalising the court is rarely prosecuted but it has been reconsidered in recent years. For example, following a recommendation of the Law Commission of England and Wales in 2012, the parliament of the United Kingdom of Great Britain repealed the common law offence of contempt by scandalising the court altogether. Other jurisdictions have moved to abolish the common law offence but replace it with a narrower statutory offence. In a recent speech, a member of this court considered the operation of the principles affecting contempt by scandalising the court in detail.
[24] Although brought by way of summary procedure, and although accordingly the proceeding is a civil proceeding in structure, the application is nevertheless a proceeding that seeks relief by way of (conviction and) punishment for a criminal offence. The applicant submits that the punishment should be the imposition of a fine in respect of each offence. The rules of court specifically deal with the power to impose a punishment including, if the respondent is an individual, that the court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992 (Qld).
[25] However, the orders that may be made by way of conviction and punishment for an offence of contempt by scandalising the court, including the powers under the Penalties and Sentences Act, do not include a power to grant an injunction restraining a future offence or an order authorising the sheriff to enter the respondent’s land to remove and dispose of the signs.
[26] Although there is no power to do so as an order upon conviction for an offence of contempt by scandalising the court, the court has power in its civil jurisdiction to grant an injunction to restrain a contempt and to prevent its continuation or threatened repetition, including a mandatory or prohibitory injunction. Gibbs CJ once expressed the point in this way:
“A superior court which has power to punish contempts, and which also has power to issue injunctions, may grant an injunction to restrain a threatened contempt.”
[27] But, an application for an injunction is a civil proceeding, properly so-called, not a hybrid proceeding for a criminal offence. The standard of proof on an application for an injunction is the civil standard, namely on the balance of probabilities. The standard of proof on the hybrid proceeding for the criminal offence of contempt by scandalising the court is the criminal standard, namely beyond reasonable doubt.
[28] It follows from the different natures of the two proceedings that in a proceeding for punishment for a criminal offence of contempt by scandalising the court it is inappropriate to join a civil claim for an injunction, as two intermediate appellate courts in other jurisdictions have decided.
[29] Accordingly, at the commencement of the hearing, the court required the applicant to elect between the injunctive relief applied for and proceeding by way of punishment for the offence of contempt by scandalising the court. The applicant elected to proceed upon the application for punishment for the criminal offence.
In part, the proceeding is brought in this court in relation to an alleged contempt by scandalising a magistrate. The Magistrates Court has statutory power to deal with all contempts, but has no power to grant an injunction in respect of a threatened contempt. However, this court has “all jurisdiction necessary for the administration of justice in Queensland”, is the “superior court of record in Queensland and the Supreme Court general jurisdiction in and for the State” and “has, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity, and otherwise.”As such, it retains jurisdiction over contempts committed against inferior courts as an aspect of its “traditional general supervisory function”.
[31] The primary question is whether the respondent’s statements, that a court and a judicial officer “are corrupt” and another judicial officer “is likely corrupt”, scandalise the court or the judicial officer in a way that amounts to the offence. Summarising, in my view, two relevant considerations arise: first, is there a real risk as a matter of practical reality that the impugned conduct has a tendency to undermine the confidence of the public in the administration of justice and lower the authority of the court; second, is an element of mens rea required to constitute the offence and, if so, is it proved?
[32] The respondent asserted that his publications are protected by the constitutional implied freedom of communications on governmental and political matters but it was decided at an interlocutory stage of this proceeding that the contention did not involve a matter under the Constitution or involving its interpretation because the question was foreclosed by binding or persuasive authority against it. Accordingly, I do not reconsider it.
In Adacot & Sowle [2020] FamCAFC 215 the Full Court has considered claims that excessive judicial intervention amounted to an unfair trial, judicial bullying involved an abuse of judicial position and that there was apprehended bias
The judgment states
On 26 September 2019 Judge Andrew of the Federal Circuit Court made parenting and property settlement orders in proceedings between Ms Sowle (“the mother”) and Mr Adacot (“the father”). The parenting orders concern the parties’ child, B, who was born in 2013, and the primary issue for determination was the mother’s wish to relocate the child’s residence away from New South Wales to Brisbane. The primary judge ordered the parties to have equal shared parental responsibility for the child and that she live with the mother in Brisbane. His Honour also made orders providing for the child and the father to spend time together.
The father appeals the primary judge’s orders and while the Notice of Appeal filed on 24 October 2019 contains a number of separate challenges to the orders, only one ground was pressed on appeal, namely that the primary judge’s conduct led to an apprehension of bias and denied the father of a fair trial. When fleshed out in the written and oral arguments, the father’s contention is that the primary judge’s conduct towards the father’s legal representatives in the trial, was such that it not only gave rise to an apprehension of bias but also robbed the proceedings of any semblance of fairness and, as a result the proceedings miscarried.
A challenge to a primary judge’s impartiality goes to the heart of the trial process and even if other challenges to the primary judge’s orders failed and even if the judge is found to be correct “... this does not assuage the impression that there was an apprehension of bias” (see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 per Kirby and Crennan JJ at [117]).
It was contended for the father that almost from the outset of the hearing, which took place over three days, the primary judge was critical, dismissive, sarcastic and rude to the father’s Queen’s Counsel and attempted to humiliate him. Further, the father contends that the primary judge treated the father’s solicitor in the same way when that solicitor took over following the withdrawal of the father’s Queen’s Counsel.
Counsel for the mother argued that while the primary judge’s comments may have been capable of perception as “forceful”, “dogmatic”, “ultra-formalist”, “interventionist”, “formal” and “abrupt”, they were directed at Queen’s Counsel for the father, and not at the father, and therefore his Honour’s comments do not demonstrate an apprehended bias against the father himself. It was further submitted that the primary judge’s comments, directed as they were to the father’s legal representatives, were separate from the facts and merits of the case.
...
The conduct complained of here is not, as is perhaps more usually encountered, one of excessive intervention by a primary judge into the questioning of a witness. Here, the complaint refers to the primary judge’s treatment of the father’s legal representatives. Indeed, no complaint is made about his Honour’s conduct during the taking of evidence from the witnesses.
We start with Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 at 67, where it was said:
There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.
(see also Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145).
In Galea v Galea (1990) 19 NSWLR 263 (“Galea”), Kirby A-CJ with whom Meagher JA agreed said at 281:
The test to be applied is whether the excessive judicial questioning or perjorative [sic] comments have created a real danger that the trial was unfair. If so, the judgment must be set aside.
...
Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”...
The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions...
(Citations omitted)
This was a hearing of property settlement and child-related proceedings. In respect of the latter there is a statutory mandate that the primary judge actively direct, control and manage them (s 69ZM(4) of the Family Law Act 1975 (Cth) (“the Act”)) and with as little formality and legal technicality and form as possible (s 69ZM(7) and s 97(3) of the Act). This active control, however, cannot be so intrusive that it jeopardises a fair trial. Whilst there is a wide latitude in how a primary judge conducts a case, particularly in child-related proceedings, there is no warrant to descend to what has been described as “palm tree justice” (R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 257).
In Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 (“Royal Guardian”), a case in which the challenge to the decision rested in the primary judge’s interventions in the trial process, Basten JA said:
[16] ... there are important institutional characteristics at stake, as helpfully identified by Lord Brown in Michel v R. In such a case, as Lord Brown explained by reference to the position of the appellant:
“He is denied too the basic right underlying the adversarial system of trial, whether by jury or Jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. ... The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.
(Footnotes omitted)
Basten JA continued:
[18] These statements are not merely aspirational; they describe the judicial function. Nor is the problem necessarily analysed as one involving an appearance of pre-judgment. The idea that the judge must maintain the appearance of impartiality, by maintaining an appropriate degree of detachment, are essential aspects of his or her function as the officer presiding in the court...
In R v T, WA (2014) 118 SASR 382, Kourakis CJ said:
.
.. If an intervention gives an apprehension of bias it will also, of necessity, show that the capacity to objectively and dispassionately evaluate the evidence has been compromised. However, there will be some, probably fewer, interventions which, even though they do not suggest prejudgment, show that the judicial officer has lost the advantage of judicial detachment which he or she would otherwise have enjoyed as a judge adhering to the common law adversarial method of trial.
In Ellis v The Queen [2015] NSWCCA 262, the Court of Criminal Appeal said:
Although a number of these decisions seem to be based on the proposition that the conduct of the judge founded a reasonable apprehension of bias, that is not necessarily the case. A miscarriage of justice will occur in circumstances where the conduct of the judge prevents a party from properly presenting his or her case...
It is against this legal background that we turn to consider the nature, quality and extent of the primary judge’s interventions.
The Summary of Argument filed by the father on 27 March 2020 raised not only what the primary judge said but also his Honour’s tone of voice. In order to have a complete understanding of the appeal, the audio recording of the trial was obtained and with the consent of counsel, we have listened to the transcript and noted his Honour’s tone of voice while addressing comments to the father’s lawyers.
For the reasons that follow, we are of the view that the nature, intensity, frequency and content of the primary judge’s interventions and remarks to the lawyers for the father gave rise to an apprehension of bias and had the effect of denying him a fair trial.
...
The proceedings on the third day did not get off to a smooth start. There was much about the presentation and appearance of the father’s Queen’s Counsel with which his Honour took issue. After an adjournment, Queen’s Counsel announced that his instructions had been withdrawn and he sought leave to withdraw. Leave was granted. The father’s instructing solicitor took over. The primary judge’s treatment of and conduct towards the father’s solicitor was such that it could bear no description other than taking inappropriate advantage of the undoubted power imbalance that exists between the judge and the lawyer and, indeed, counsel for the mother conceded during oral argument on the appeal that it amounted to bullying by the judge.
We propose to identify the primary judge’s behaviour in categories and given the sustained nature of the primary judge’s conduct, provide one or perhaps two examples to illustrate our findings. However, that we have included only some of his Honour’s comments should not be taken as indicating that those not included were any less worthy of denunciation....
The aspersions cast by the primary judge on the honesty of the father’s Queens Counsel were without justification and should not have been made.
Impugning the professionalism of the father’s Queen’s Counsel
His Honour’s criticism of Queen’s Counsel’s professionalism covered not only the preparation and presentation of the matter, but also Queen’s Counsel’s conduct in court, dress and demeanour.
....
On a number of occasions, the primary judge was apparently affronted by the behaviour of the father’s Queen’s Counsel, although it is difficult to understand quite what the problem was and it is quite apparent from Queens’ Counsel’s responses that he too was unsure what transgression he had committed. The criticisms were couched in oblique terms “that’s a further amplification of your behaviour”, “you’re running very close” and “you know exactly what you just did”. On several occasions the primary judge told Queen’s Counsel not to be “presumptive [sic]” or “obtuse”. ... The oblique way in which his Honour’s criticisms of Queen’s Counsel for the father were couched makes it very difficult to understand, as Queen’s Counsel clearly found, how his conduct was wanting. Equally so is his Honour’s use of the term “a fortiori”, however we see no point in attempting to delve further into that.
There was no basis for the primary judge to impugn the professionalism of the father’s Queens Counsel in the manner he did or at all.
Rudeness to the father’s Queen’s Counsel
As ought to be apparent from the comments instanced above, much of his Honour’s discourse with Queen’s Counsel was couched using rude and intemperate language.
On three occasions when attempting to make submissions, Queen’s Counsel took his Honour to a particular place in a document and read the commencing words aloud – and his Honour remarked “I can read English”.
On another occasion his Honour referred to a paragraph in an affidavit, and in response Queen’s Counsel attempted to read out part of the paragraph to the primary judge and his Honour interrupted to instruct Queen’s Counsel not to read the passage to him.
On a number of occasions his Honour asked Queen’s Counsel to “[a]ttend”. The first time it occurred his Honour explained that he meant “pay attention”.[37] His Honour felt the need to refresh Queen’s Counsel’s memory as to what he required when discussing the inspection of subpoenaed documents. ... The primary judge told Queen’s Counsel that he had been responsible for wasting time. In his defence, Queen’s Counsel said that he did not have control of the running of a particular matter, appearing as he did for the father, to which his Honour said: “[w]ell, you seem to have done a damn good job so far taking up in excess of half a day for effectively nothing”.
Having listened to the audio version of the transcript, we are struck by the stark difference in the primary judge’s tone and terms of address between when his Honour addressed counsel for the mother and Queen’s Counsel for the father which is consistent with the nature of his Honour’s remarks to the father’s lawyers and aligns with the complaint made by the father in his Summary of Argument.
Hectoring, bullying, insulting and demeaning
As we have said, after approximately two hours or so of the third day of the hearing, Queen’s Counsel for the father sought his Honour’s leave to withdraw from the proceedings. In submissions on the appeal, counsel, who had also appeared before the primary judge, submitted that he considered that, given his Honour’s personal attacks on him, for him to withdraw would improve the atmosphere in the proceedings. It did not. If possible, his Honour’s conduct worsened, and rather than attempt to describe it, we propose to set out what he said. ... Nor was the father’s solicitor spared his Honour’s rudeness.
At a point in the primary judge’s hounding of the solicitor to hand up a Case Outline, the solicitor, having already informed his Honour that he did not have one, told his Honour that he was having difficulty understanding what his Honour wanted of him ...
Unfortunately, the solicitor’s attempts to explain the circumstances of the father’s non-attendance were thwarted by his Honour’s constant interruptions. ...
At this point, as the primary judge observed, the solicitor was “left speechless” and left floundering to the point of admitting that he did not know what the primary judge wanted him to say. The primary judge’s conduct had resulted in the solicitor feeling unable to make any meaningful submission in the matter.
In considering apprehended bias and an unfair trial the Full Court states
The father contends that the primary judge’s interventions, their content and frequency gave rise to an apprehension of bias that no matter what the father’s case was, it would not be accepted and his Honour’s interventions were such that they prevented the father’s case from being presented and denied him a fair trial.
Whether conduct gives rise to an apprehension of bias is answered by considering whether a fair-minded and informed lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues in the case, such that he or she was not open to persuasion, rather than whether he or she did so (see Johnson v Johnson (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]–[8]).
It was argued for the mother that the primary judge’s comments did not raise an apprehension of bias because his Honour reserved his criticism for the father’s lawyers and directed it to preparation and presentation of the father’s case rather than it being directed to the father.
We do not agree.
While the lion’s share of two of the three days of the hearing were taken up by his Honour’s criticisms of the father’s legal team, his Honour made several references to the father “swanning around” the Gold Coast in a most dismissive way. Although counsel for the mother sought to characterise that comment as being merely part of his Honour’s use of the vernacular in discourse with the father’s solicitor, a consideration of those comments in the context of his Honour’s comments during the trial lead us to no other conclusion than he was dismissing the explanation for the father’s non-attendance in court, reducing his account of spending time with the parties’ child to “swanning around the Gold Coast”. However, that is not to the point.
His Honour’s interventions and comments about the father’s legal representatives are sufficient to satisfy the test. It would introduce unacceptable artificiality if there was an attempt to minimise the effect of these interventions and comments because the primary judge did not behave in the same way when the evidence was being given.
As we have said, the nature, content and number of his Honour’s interruptions, criticisms and ad hominem attacks on Queen’s Counsel for the father, of themselves, drive the conclusion that the fair-minded observer might apprehend that the primary judge might not bring an impartial mind to the determination of the issues as they impacted the father’s case.
Indeed, such a fair-minded observer might well think that his Honour bore significant animus towards Queen’s Counsel. Equally the primary judge’s treatment of the father’s solicitor, when he took over the conduct of the hearing, was hectoring, insulting, belittling, sarcastic and rude and that conduct too would, in our opinion, lead the impartial observer to the relevant apprehension.
The father contends that the primary judge’s conduct and interventions prevented him from receiving a fair trial.
Returning to the legal construct to which we earlier referred, in Royal Guardian Ward JA said:
[169] In this Court, the issue of judicial intervention was considered in Ellis v R [2015] NSWCCA 262 (Ellis). There, the Court (Bathurst CJ; R A Hulme and Garling JJ) noted the dangers resulting from excessive intrusion by a trial judge in adversarial proceedings as including the inability of a judge who has “descended into the arena” properly to assess the demeanour of a witness and the possibility of creating the impression of pre-judgment. The Court emphasised that the ultimate question is always whether the intervention was unjustifiable and resulted in a miscarriage of justice.
In Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530, an appeal concerning excessive judicial intervention, Greenwood and Rangiah JJ said:
... It is a part of the judicial function of deciding cases to question and challenge the submissions being made. After all, a judge must be able to understand the competing arguments and their consequences in order to decide which is the correct or preferable argument. The questioning and testing of submissions may legitimately be vigorous and robust. However, it must be balanced by the requirements of procedural fairness. Procedural fairness requires that each party be allowed a reasonable opportunity to present their case...
(Citations omitted)
In Galea at 281, Kirby AC-J referred to the principles relevant to excessive judicial intervention and said:
... The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside ... (Citations omitted)
As recently as this year, the Full Court in Finch & Finch [2020] FamCAFC 60; (2020) FLC 93-949 had cause to revisit these principles and at [16] said, inter alia:
.
..
(c) The evaluation of whether interventions are excessive involves an assessment and balancing of the appropriate role and limits of judicial engagement and management, with the need for the appearance of detachment, and the provision of fairness...
...
(e) Nonetheless the judge must not assume the role of advocate, or be unduly intimidatory, interventionist or directionist, nor unduly press so-called “preliminary views”...
(Citations omitted)
The primary judge’s interventions could not be regarded as justified even if some delay or inconvenience was caused by reason of the raising of the interlocutory applications late in the piece. The tone, nature and ferocity of his Honour’s comments could never be seen as justified, and in our view resulted in the father not receiving a fair trial and raised the identified apprehended bias, that no matter what the father’s case was as presented, it would be rejected.
In concluding the Court states
... as we have indicated, we find the ground made out and conclude that the primary judge, by his conduct, squarely raised an apprehension of bias and failed to afford the father a fair trial.
We feel bound to add here that the primary judge’s interventions, his cruel, insulting, humiliating and rude interactions with the father’s Queen’s Counsel and his solicitor, amounted to an abuse of the power of his position and, in our view must be redressed by allowing the appeal lest the integrity of the judicial system be undermined.
We conclude by referring to Toner v Attorney-General (NSW) [1991] NSWCA 267, in which the New South Wales Court of Appeal considered a contretemps between counsel and the presiding judge which resulted in the presiding judge finding that counsel was in contempt. In the course of dismissing the finding of contempt, the Court of Appeal (Kirby P, Clarke JA and Hope AJA) said at 15:
... It is the duty of counsel and judicial officers to conduct themselves in a temperate manner. It is the nature of court proceedings that they will often be charged with emotion. Only by observing restraint will the legal representatives of parties, and judicial officers be able to ensure the orderly, proper and expeditious disposition of the proceedings in which they take part...
(Citations omitted)
Further, at 21 their Honours said:
... Whilst there are duties of courtesy imposed upon legal representatives as a coronary [sic] 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...
(Citations omitted)
Clearly then the finding that the primary judge failed to afford the father a fair trial and the apprehension of bias dictates that the appeal be allowed.
It was accepted that in the event of the appeal being successful, the matter must be remitted to the Federal Circuit Court to be heard by a judge other than the primary judge.
We might recall Michael Kirby's 'Judicial Stress and Judicial Bullying' in (2014) 14(1) QUT Law Review referring to the inherent features of the judicial function that are prone to occasion stress amongst office holders.
The isolation and frequent loneliness of the work. The pressure of growing case-loads without commensurate increases in support, resources and salaries. The common lack of specific training, save for on-the-job observance of earlier appointees. The unavailability (available in most other senior positions) of delegation of the essential decision-making responsibility. The frequent lack of feelings, and expression, of appreciation for work conscientiously performed. The susceptibilities to mid-life pressures; emotional, sexual and physical crises. The added stress of frequent changes in the law and the need to adapt to new and unfamiliar legal doctrine and to technological innovations. The particular stresses of rural, appellate and leadership positions .... As well, I elsewhere described the media and political attacks on the judiciary, who were usually disabled from responding.
