FEDERAL COURT OF AUSTRALIA
SOUTHAM CONSULTING PTY LTD (ACN 110 497 295)
CRAIG ANTHONY SOUTHAM (and others named in the Schedule)
DATE OF ORDER:
THE COURT ORDERS THAT:
2. Order 2 of the Orders made by the Federal Circuit Court of Australia on 22 October 2018 is set aside.
3. The matter is remitted to the Federal Circuit Court of Australia for rehearing of the appellant’s interlocutory application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
GREENWOOD AND RANGIAH JJ:
1 The appellant, Michael Alexander Gambaro, applied to the Federal Circuit Court of Australia for leave to file an amended statement of claim, further discovery and other orders. On 22 October 2018, the primary judge delivered an ex tempore judgment dismissing that interlocutory application. Mr Gambaro, having been granted leave to appeal, appeals from the judgment of the primary judge.
2 Mr Gambaro’s principal grounds of appeal are that the primary judge exhibited apparent bias and denied him procedural fairness in the conduct of the interlocutory hearing.
3 In his principal proceeding before the Federal Circuit Court, Mr Gambaro alleges that the first to fifth respondents (the respondents) contravened s 340 of the Fair Work Act 2009 (Cth) by taking adverse action against him because he exercised certain workplace rights. The adverse action is alleged to include the termination of his employment on 24 May 2017.
4 The proceeding was set down for a two day trial commencing on 30 October 2018. Mr Gambaro filed his interlocutory application on 15 October 2018.
5 The Federal Circuit Court judge who had been allocated the trial became unavailable for the trial. The matter was then listed before the primary judge for the hearing of the interlocutory application and for case management.
The hearing before the primary judge
6 Mr Gambaro represented himself before the primary judge. The respondents were represented by a solicitor.
7 The hearing took over an hour, and it is not practicable to set out the whole of the transcript. However, the most relevant exchanges between the primary judge and Mr Gambaro were the following:
HIS HONOUR: You can’t just change the goal posts just before the trial. You’re lucky that the trial is being delisted because, quite frankly, if I had looked at this and I had said yes you could do this you would be paying the costs of the other side for bringing an application so soon to the trial which would mean that it would have to be delisted in any event, but anyway I’m still trying to work out your - you know, I’m - - -
MR GAMBARO: Can we go back - - -
HIS HONOUR: You get - you will get judges very frustrated very easily, Mr Gambaro. Your claims are, in short compass, very narrow matters but you keep wanting to widen them in an incredible way. Now, what is it that you want to say to me?
MR GAMBARO: Your Honour, it’s very important evidence that’s missing so –
but - - -
HIS HONOUR: But everything is very important to you, Mr Gambaro.
MR GAMBARO: So, your Honour, getting back to the lateness, I would have provided this to the defence legal counsel earlier. I did advise them on 5 October by email that I was going to do an interlocutory application and for the past month I’ve been in the Federal Court of Australia in appeals with no extensions granted by Logan J and I had to appear in that appeals process so that prevented me - - -
HIS HONOUR: So what. There’s plenty - - -
MR GAMBARO: That - - -
HIS HONOUR: - - - of people who have to do all sorts of things at the one time.
MR GAMBARO: Well, I’m labour - - -
HIS HONOUR: You’ve got no idea what legal counsel have to juggle and you’ve got what three matters before the court?
MR GAMBARO: I’m labour law, your Honour.
HIS HONOUR: So what. So what. Are you saying that you can’t do three things at the one time?
MR GAMBARO: Yes, your Honour, I can’t do three things at - - -
HIS HONOUR: Well, then that’s your fault. You’re the one that’s – the plaintiff in all of these things. You’ve got to work things out. The courts are not here at your convenience.
MR GAMBARO: Yes.
HIS HONOUR: Okay. My goodness. You’ve got three matters on the hop. No, no - -
MR GAMBARO: To - - -
HIS HONOUR: - - - try with most lawyers who’ve got about 20 or 30 matters. Try judges who have got 600 matters on the hop at the one time and you’re getting – you’re saying we should be looking after you because you’ve got three matters. My goodness gracious me.
MR GAMBARO: I’m not – I’m just asking for a little bit of leniency, your Honour.
HIS HONOUR: You have had more than enough lenience in my court, Mr Gambaro, and I’m sick of it.
HIS HONOUR: How is there statute changes? Either the law is as it was - - -
MR GAMBARO: Workplace - - -
HIS HONOUR: Do not ever interrupt me. Do not ever. You’ve been told many times when I talk your mouth goes closed. You do not ever interrupt me or you will be cited for contempt. I’m not putting up with your rubbish.
MR GAMBARO: Yes, your Honour.
HIS HONOUR: There’s only one person in charge here and it’s me. Now, make your submission.
MR GAMBARO: I thought you were going to explain something, your Honour.
HIS HONOUR: You interrupted me. What’s so important? What is so important that you would risk the wrath of the court in trying to tell me that there is something more important. Tell me what it is.
MR GAMBARO: Well, there has been no evidence provided, your Honour.
HIS HONOUR: But, sorry, it’s like telling me that I should be giving you a court file about an alien invasion. And I say, "Well, I haven’t got a file court about the alien invasion." And you’re saying, "Well, you haven’t proved to me that you haven’t got a court file about the alien invasion so, therefore, you’re hiding something." Do you understand how absurd that seems? You do, don’t you?
MR GAMBARO: Well - - -
HIS HONOUR: You do, don’t you?
MR GAMBARO: No. Well, your Honour, if - - -
HIS HONOUR: You do, don’t you?
MR GAMBARO: No, I don’t agree, your Honour.
HIS HONOUR: You don’t agree. So that if you ask me for a file - the court file on alien invasions and I said, "Well, I haven’t got it," that, therefore, I am not complying with any requests by you for a court file on alien invasions?
MR GAMBARO: If a - - -
HIS HONOUR: You’re saying that you don’t agree that such a conclusion is absurd?
MR GAMBARO: Your Honour, to be compliant - - -
HIS HONOUR: No. Do not change the subject. You answer my questions. You say that if you asked for a court file on alien invasions and I said that there wasn’t one that I would, therefore, be refusing to give you the court file on alien invasions.
Yes or no?
MR GAMBARO: If you can - - -
HIS HONOUR: Yes or no?
MR GAMBARO: No. If you can provide an affidavit stating that it’s not in your possession or custody then that’s sufficient. But, your Honour, a compliant workplace would in the dismissal of an employee they would have procedures that have documents that have interaction at - - -
HIS HONOUR: But you see that’s an argument. That’s an argument you make at the trial.
MR GAMBARO: Okay. Well - - -
HIS HONOUR: The point is here you are asking me to make an order for something. How can I make an order for something unless I know that it actually exists? And I’ve asked you for the proof of how it is that I should know that it exists otherwise you are simply wasting this court’s time. Now, answer my questions. How do you know that this exists.
MR GAMBARO: Because it’s - - -
HIS HONOUR: How do you know that it exists and if you tell me because any place should have something like this you will be in contempt.
MR GAMBARO: Okay. Well, it does.
HIS HONOUR: Now, tell me how do you know that this exists?
MR GAMBARO: Well, I’m not going to answer that question, your Honour.
HIS HONOUR: No, you answer my question or you will be in contempt.
MR GAMBARO: Well, I don’t - with all due respect I don’t appreciate the threat of a contempt.
HIS HONOUR: You will answer my question.
MR GAMBARO: Your Honour, I’m a - - -
HIS HONOUR: You will answer my question or - - -
MR GAMBARO: I’m self-represented.
HIS HONOUR: You will answer my question.
MR GAMBARO: I’m self-represented and - - -
HIS HONOUR: You will answer my question.
MR GAMBARO: This is a - - -
HIS HONOUR: Get security.
MR GAMBARO: This is a complex matter.
HIS HONOUR: And - no, you are getting security because you are going to be removed from my court right now because you have failed to answer my question and you are treating this court with contempt.
MR GAMBARO: Can you repeat the question, your Honour?
HIS HONOUR: How do you know that these articles exist?
MR GAMBARO: Because the fourth respondent and the fifth respondent have put in their affidavits that they’ve met with other workers in the office. They’ve made ---
HIS HONOUR: What is there that shows me that there are notes, meeting notes and CCTV footage that shows any of this? Answer my question.
MR GAMBARO: I can get the - I will get - - -
HIS HONOUR: Answer my question.
MR GAMBARO: I’m a self-represented - - -
HIS HONOUR: No, no, no.
MR GAMBARO: I’m - - -
HIS HONOUR: No, answer my question or I will have you removed.
MR GAMBARO: I’m a self-represented applicant, your Honour.
HIS HONOUR: Okay. Remove - please remove Mr Gambaro from my court room because he is refusing to answer the questions of the court. Leave.
MR GAMBARO: Can I - - -
HIS HONOUR: Leave.
MR GAMBARO: That’s for the judge and I’ve provided a copy to the defence. That’s my medical in why I shouldn’t be here today.
8 As he was being removed from the courtroom by security guards, Mr Gambaro handed up reports from his doctor and psychologist. The psychologist’s report indicated that Mr Gambaro was experiencing “significantly high levels of psychological distress”.
9 The hearing continued in Mr Gambaro’s absence. The primary judge told the solicitor for the respondents that the application for leave to file an amended statement of claim would not be granted. There was then some discussion about discovery. In the course of that discussion, his Honour said:
HIS HONOUR: …[T]he matter has to get on at some stage. But - and it can’t be by me. I’ve lost patience with Mr Gambaro and I - you know, I will keep, as it were, managing the matter but I can’t do the trial.
MR HASSALL: Yes.
HIS HONOUR: It’s one of those ones where even though I could bring an independent mind I would think that for the same reason that Bond J had to recuse himself from Mr Palmer’s trial that I would have to do the same for Mr Gambaro.
10 The primary judge later said:
HIS HONOUR: So look what I’m going to do is I’m just going to put down some short reasons because when he does come back and hopefully he’s in a less truculent mood he understand why it is that I have done what I’ve done today. All right.
11 The primary judge then delivered reasons. The written form of the reasons bear the date 9 January 2019. His Honour’s reasons included the following:
6. It seems to me, that there is nothing to be gained from any amendment. It does not, realistically, come within a broad ambit of s.340. The evidence that he seeks to adduce is still exactly the same, and there has been no cause shown that there would be any miscarriage of justice, if I did not allow the amendment. For those reasons I declined to allow the amendment of the statement of claim.
8. The application in a case also asked for further discovery; that is, proposed orders 2, 3, 4 of the application in a case. The Applicant cannot show to me that any of the material that he is actually seeking does, in fact, exist. He is of the view that it should exist and therefore, because it should exist, it should be disclosed. The absurdity of such reasoning does not seem to be evident to the Applicant.
9. However, as has been explained to Mr Hassall, who appears for the Respondent, after the Applicant was told to leave the courtroom because of his contemptuous behaviour, such assertions that there is nothing more that the company has that has not been disclosed to the Applicant needs to be the subject of affidavit material. This needs to be done so that these are not just assertions made either in emails or from the Bar table but by sworn evidence that the material that the Applicant is seeking does not exist and that full disclosure as required has actually been done.
15. I should add that Mr Gambaro, on a number of occasions, simply, ignored questions that I was asking him and instead choose to answer his own questions and would not answer mine. When I told him that he would have to answer my questions or he would be ordered to leave, he still refused to answer my questions, and upon being told that I would look at treating him for contempt, he simply sat down and refused to answer any more questions.
16. I could not tolerate that behaviour in my courtroom, and I ordered him to leave the Court. For those reasons, I have dictated these reasons so that Mr Gambaro can read what it is that I have said, and he has a record for the ruling that I have made.
17. I have also made it very clear to Mr Hassall, that whilst I am quite happy to keep managing the conduct of these trials, the final determination of the matters will not be made by me. I will, simply, be the duty judge for his matters, but another judge will be the judge who ultimately decides the actual questions posed by the application.
18. So Mr Gambaro can be assured that I will not be the judge who eventually hears the matter.
12 The orders made by the primary judge were, relevantly:
(1) The hearing dates of 30 and 31 October 2018 be vacated.
(2) The application in case filed on 15 October 2018 be dismissed.
(3) The respondents file and serve an affidavit deposing to the disclosure they have provided by no later than 4.00 pm on 8 March 2018 (sic).
13 Mr Gambaro’s notice of appeal contains seven proposed grounds of appeal. They include grounds that the primary judge erred in disallowing the proposed amended statement of claim and failing to order discovery in relation to particular documents. For present purposes, it is only necessary to consider the following grounds:
(6) The learned Judged erred in law and/or fact in that, in making the Orders of 22 October 2018, the Appellant was denied procedural fairness and natural justice.
(7) The learned Judged erred in law and/or fact in exercising his discretion to remove the Appellant from the Courtroom on 22 October 2018 during his oral submissions.
(Errors in original.)
14 Mr Gambaro was self-represented in his appeal before this Court. His written submissions include the following:
27. The Appellant was suffering medical conditions and the medical conditions coupled with an aggressive Judge made the Appellant feel intimidated to submit and argue his submissions with precision and argue issues which made proceedings difficult.
28. The learned Judge was sarcastic to the Appellant which is further apprehended bias and there has been professional discourtesy by the learned Judge for some time now.
29. The Learned Judge has not provided the self-represented Appellant any leniency since May 2017, and has been the exact opposite, with his screaming, yelling, abuse and belittling comments which amounts to actual bias.
30. The Appellant was midway through his arguments and discussions about missing documents from Respondents and Defaults by the Respondents, when the learned Judge asked a non-related and hypothetical question.
31. The learned Judge alleged the Appellant committed contempt of court and arranged for security to briskly escort the Appellant out of the Federal Courts.
32. The Appellant did not commit contempt of court as the learned Judge's question was confusing and did not make any sense, coupled with the Appellant answering 'No' on multiple occasions.
33. The Appellant was completely restricted, absent and unable to make further verbal submissions surrounding his…verbal submissions, arguments and issues the Appellant wanted to raise with the Court.
34. The Appellant was absent from additional exchanges and discussions between the learned Judge and Defence Legal Counsel.
35. There was procedural unfairness and apprehended bias by the learned Judge.
15 In his written and oral submissions, Mr Gambaro asserts that there was apprehended bias on the part of the primary judge; that the conduct of the hearing was unfair because of excessive and intimidating judicial intervention; and that he was denied an opportunity to be heard when he was removed from the courtroom.
16 The respondents concede that Mr Gambaro was denied procedural fairness. They concede that the denial of procedural fairness arose because of the interventions of the primary judge in the presentation of Mr Gambaro’s oral submissions and his subsequent removal from the courtroom, which prevented him from presenting any further argument. However, the respondents submit that the allegation of apprehended bias on the part of the primary judge is not made out. The respondents also submit that the Court ought to consider the remaining grounds of appeal and determine those grounds against Mr Gambaro.
Consideration of the appeal
17 We will describe the principles that are applicable where it is alleged that excessive judicial intervention during a trial has resulted in a miscarriage of justice, before turning to the facts of this case.
18 In Jorgensen v Fair Work Ombudsman  FCAFC 113, the Full Court held at , applying Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, that where an appeal involves allegations of bias or denial of procedural fairness due to excessive judicial intervention along with other substantive or discrete grounds, the appeal court should first deal with the issues of bias or procedural fairness. That is because those grounds, if made out, would strike at the validity of the trial and require the matter to be remitted for retrial.
19 In R v T, WA (2013) 118 SASR 382 at , Kourakis CJ identified three grounds upon which excessive judicial intervention in a trial by judge alone may result in a miscarriage of justice:
(i) the questioning unfairly undermines the proper presentation of a party’s case (the disruption ground);
(ii) the questioning gives an appearance of bias (the bias ground); and
(iii) the questioning is such an egregious departure from the role of a Judge presiding over an adversarial trial that it unduly compromises the judge’s advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground).
20 In Jorgensen, the Full Court elaborated upon these grounds as follows:
99 The first ground, which Kourakis CJ referred to as the “disruption ground” is made out where the interventions unfairly undermine the proper presentation of a party’s case: see also Ellis v R  NSWCCA 262 at . In Michel v R  UKPC 41;  1 WLR 879, Lord Brown described this ground as involving interventions that prevent a party from doing himself or herself justice in the giving of his or her evidence. It may, however, also apply to interventions which occur in the course of submissions: see Jones v National Coal Board  2 QB 55 at 63-64.
100 The second ground is where the questioning or interruptions give an appearance of bias…
101 The third ground, which Kourakis CJ referred to as the “dust of conflict” ground (an expression coined by Lord Greene MR in Yuill v Yuill  1 All ER 183 at 189), is made out where the questioning or intervention is “such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge’s advantage in objectively evaluating the evidence from a detached distance”.
21 In R v T, Kourakis CJ at  explained the “dust of conflict ground” in terms of compromising the capacity of the judge to adjudicate. His Honour observed that the ground is based on an objective standard and measured by an assessment of the degree to which the departure from a judge’s traditional role compromises the judicial capacity to objectively evaluate the evidence.
22 A ground that the trial was conducted unfairly (“the disruption ground” and “the dust of conflict ground”), is distinct from a ground of apprehended bias, the former turning largely upon whether the litigant has had a proper opportunity to advance his or her case: RPS v R (2000) 199 CLR 620 at . However, the grounds may overlap.
23 In Galea v Galea (1990) 19 NSWLR 263, Kirby A-CJ (with whom Meagher JA agreed), in a passage reflecting the overlapping nature of the grounds, set out the following principles at 281–282:
1. The test to be applied is whether the excessive judicial questioning or perjorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside.
2. A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached.
3. 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”.
4. 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. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion.
5. It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions.
24 In Jorgensen, the Full Court emphasised at  that there are entirely proper reasons why a trial judge might intervene and ask questions of a witness or test the submissions being made. In Michel v R  1 WLR 879;  UKPC 41, Lord Brown at  gave the following summary of the sorts of interventions by a trial judge that are proper and permissible, and those that are not:
Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.
25 In Johnson v Johnson (2000) 201 CLR 488, the High Court observed at :
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. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
26 This passage from Johnson v Johnson applies equally where a party is self-represented. 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: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at ; Sullivan v Department of Transport (1978) 20 ALR 323 at 343.
27 The proceeding before the primary judge was not a trial but an interlocutory application in which no oral evidence was given. Nevertheless, the principles concerning excessive judicial intervention in trials without a jury are relevant to the conduct of such an application.
28 We will turn to the present case. The respondents concede that Mr Gambaro was denied procedural fairness. Their concession reflects the “disruption ground”. For the reasons that follow, we consider that both the “disruption ground” and the “dust of conflict ground” are established. In view of those findings, it is unnecessary to consider the apprehended bias ground, except to mention that the primary judge’s comments made after Mr Gambaro had been removed from the courtroom and in the reasons for judgment may reflect a recognition that his Honour’s conduct gave rise to an apprehension of bias.
29 The extent and nature of the primary judge’s interventions went well beyond the legitimate ends of seeking to clarify, understand and test Mr Gambaro’s case. The primary judge’s interventions both undermined the proper presentation of Mr Gambaro’s case and represented such an egregious departure from the role of a judge presiding over an adversarial hearing that it unduly compromised his Honour’s capacity to objectively evaluate the evidence.
30 It was a feature of the hearing that Mr Gambaro’s submissions were interrupted so frequently that he was given no real opportunity to develop his case. The interruptions began almost as soon as Mr Gambaro commenced his submissions and continued throughout the hearing until the primary judge directed his removal from the courtroom.
31 The pattern of the hearing was that Mr Gambro was usually not permitted to say more than a few words before the primary judge would interrupt with a statement or question, or a series of statements or questions. On some occasions, Mr Gambaro was permitted to say one sentence and was interrupted during his second sentence. On no occasion was he permitted to complete more than two consecutive sentences. It may be seen from the transcript that, for example, when his Honour questioned Mr Gambaro as to his basis for asserting that certain documents existed, his Honour’s interruptions gave him no opportunity to develop his answer.
32 It will often be entirely proper for a judge to interrupt the submissions being made. A judge has responsibilities for the efficient and timely disposition of proceedings. A judge may interrupt submissions for reasons including questioning a statement made or attempting to move a party on from submissions that are irrelevant or unduly repetitious. However, many of the primary judge’s interruptions appear to have been made merely to harangue Mr Gambaro into agreeing with propositions raised by his Honour, so that the questioning often resembled a cross-examination. For example, when Mr Gambaro was attempting to address one such proposition, his Honour interrupted to say, “You’re saying that you don’t agree that such a conclusion is absurd?”. And later, “Do not change the subject. You answer my question.” But, even under cross-examination, a witness is allowed a proper opportunity to answer the questions. Mr Gambaro was given very little opportunity to answer the questions he was asked in the course of his attempts to make submissions upon his application.
33 Early in the hearing, Mr Gambaro interrupted his Honour while attempting to answer a question. The primary judge responded with unnecessary force and severity, saying:
Do not ever interrupt me. Do not ever. You’ve been told many times when I talk your mouth goes closed. You do not ever interrupt me or you will be cited for contempt. I’m not putting up with your rubbish.
While displaying acute sensitivity to Mr Gambaro’s interruption, the primary judge appears to have had little insight into the effect of His Honour’s own interruptions upon the ability of Mr Gambaro to present his case.
34 The primary judge was frequently aggressive, rude and overbearing. For example, early in the hearing, his Honour said, “What is so important that you would risk the wrath of the court in trying to tell me that there is something more important. Tell me what it is.” His Honour said, “You’ve had more than enough lenience in my court, Mr Gambaro, and I’m sick of it”. Later, his Honour said, “Do you understand how absurd that seems?”. And later, “And I’ve asked you for the proof of how it is that I should know that it exists otherwise you are simply wasting this court’s time.”
35 On four occasions his Honour threatened to have Mr Gambaro charged with contempt of court or accused him of having committed a contempt. The first was when his Honour said, “You do not ever interrupt me or you will be cited for contempt.” The second was when his Honour said, “How do you know that it exists and if you tell me because any place should have something like this you will be in contempt.” The third was when his Honour went on to say, “No, you answer my question or you will be in contempt”. The fourth was when his Honour said, “And - no, you are getting security because you are going to be removed from my court right now because you have failed to answer my question and you are treating this court with contempt.”
36 Section 17 of the Federal Circuit Court Act 2001 (Cth) confers upon the Federal Circuit Court the same power to punish contempts of its power and authority as is possessed by the High Court of Australia in respect of contempts of the High Court. In Lewis v Ogden (1984) 153 CLR 682, the High Court observed at 688 that in order to constitute contempt, the words or conduct in the face of the court must be such as would interfere, or tend to interfere, with the course of justice. Further, the High Court observed at 693, that the contempt power is exercised to vindicate the integrity of the court and of its proceedings; and is rarely, if ever, exercised to vindicate the personal dignity of a judge.
37 It is impossible to see how Mr Gambaro’s occasional interruption of the primary judge, his giving of a particular answer to his Honour’s question, his refusal to answer a question when threatened with a contempt charge if he gave the answer he wished to give, or his mere failure to answer his Honour’s question could amount to conduct that would interfere, or tend to interfere, with the course of justice. In Magistrates’ Court of Victoria v Robinson (2000) 2 VR 234, Brooking JA, referring to threats to deal with an advocate for contempt, said at :
The magistrate behaved like a bully and, worst of all, threatened the solicitor with instant committal for contempt of court if he persisted in his application. What Martin J once called the immensity of the power to commit (in Morriss v Withers  VLR 100 at 104) makes the abuse of that power in the present case deplorable. It cannot be said to be mitigated by any stress that the magistrate was under or any justifiable irritation. The magistrate was continuing to behave as he had behaved up till then, although now his behaviour became worse. He refused to hear a party, and moreover in a criminal proceeding, and did so by using his contempt power as an instrument of oppression.
In the same case, Charles JA said at :
A threat to deal with an advocate for contempt is a very serious matter. It is a “drastic and most unusual course” (Maharaj v Attorney-General of Trinidad and Tobago  All ER 411). Courts must proceed very carefully before they make an order to commit to prison: Re B (JA) (An Infant)  Ch 1112 at 1117-1118. Furthermore it is particularly important that the power not be misused to prevent an advocate in good faith making proper submissions to a court.
38 The power of the Court to punish for contempt is a great one, and the making of any threat to exercise the power should be approached with caution and restraint. There was no apparent justification for the threats to charge Mr Gambaro with contempt. The threats should not have been made.
39 We accept that the primary judge’s conduct was intimidatory and made it difficult for Mr Gambaro to properly argue his case. That can most clearly be seen after his Honour made the second threat to charge Mr Gambaro with contempt. The following exchange occurred:
HIS HONOUR: How do you know that it exists and if you tell me because any place should have something like this you will be in contempt.
MR GAMBARO: Okay. Well, it does.
HIS HONOUR: Now, tell me how do you know that this exists?
MR GAMBARO: Well, I’m not going to answer that question, your Honour.
HIS HONOUR: No, you will answer my question or you will be in contempt.
It appears that Mr Gambaro wanted to give the answer that any workplace would be expected to create relevant documents in similar circumstances, but was threatened with a contempt charge if he gave that answer. Faced with that dilemma, he declined to answer the question. He was then threatened with a contempt charge unless he answered. He was placed in an impossible position.
40 The primary judge’s description of Mr Gambaro as “truculent” was inaccurate. Mr Gambaro was polite and restrained throughout the hearing.
41 The primary judge’s reasons sought to explain why Mr Gambaro was removed from the courtroom, as follows:
I should add that Mr Gambaro, on a number of occasions, simply ignored questions that I was asking him and instead choose to answer his own questions and would not answer mine. When I told him that he would have to answer my questions or he would be ordered to leave, he still refused to answer my questions, and upon being told that I would look at treating him for contempt, he simply sat down and refused to answer any more questions.
42 This passage is inaccurate. The primary judge’s frequent interruptions gave Mr Gambaro no real opportunity to answer his Honour’s questions. The primary judge’s intimidating, aggressive and overbearing conduct eventually resulted, in our view, in Mr Gambaro being unable to answer his Honour’s confusing questions. The transcript does not support his Honour’s assessment that Mr Gambaro simply ignored questions, nor that there was any deliberate refusal to answer them, except in the instance when he was threatened with a charge of contempt if he gave the answer he wanted to give.
43 There was no justification for the primary judge’s direction that Mr Gambaro be removed from the courtroom. The hearing continued in his absence. Mr Gambaro’s application was decided in circumstances where he was unjustifiably denied the chance to be heard. In our view, Mr Gambaro was denied procedural fairness both on the basis that the primary judge’s interventions unfairly undermined the proper presentation of his case and that he was unfairly removed from the courtroom during the hearing. The “disruption ground” is established.
44 Further, the primary judge’s conduct, considered cumulatively, involved such an egregious departure from the role of a judge that it unduly compromised his Honour’s advantage in objectively evaluating the application from a detached distance. The “dust of conflict ground” is established.
45 The respondents submit that it is open to the Court to decide the remainder of Mr Gambaro’s grounds of appeal. The respondents submit that it was not held in Concrete Pty Ltd that the grounds other than apprehended bias should not be dealt with, but only that apprehended bias should be dealt with first. Further, they submit that the fact the application before the primary judge was interlocutory is a matter that may be taken into account in deciding whether to deal with the other grounds. The argument is said not to rely upon the discretion under s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth) to decline to order a new trial on the basis that no substantial miscarriage of justice has occurred: cf. Conway v R (2002) 209 CLR 203 at , , ; Windoval Pty Ltd v Donnelly (2014) 226 FCR 89 at –.
46 In Concrete Pty Ltd, Kirby and Crennan JJ held at :
An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias. Furthermore, if, as here, an intermediate appellate court finds the allegation made out, but grants no relief because it otherwise finds in favour of the party making the allegation, a defect in the administration of justice has been found to have occurred which, in the absence of any successful appeal on the point, will remain unremedied. Inevitably, this adversely affects public confidence in the administration of justice.
47 In Concrete Pty Ltd, Gummow ACJ similarly held at  that the Full Federal Court should not have permitted the respondents to present their arguments upon the inconsistent bases of apprehended bias and infringement of copyright. They were inconsistent because if the bias submissions succeeded, the remedy would be a retrial; whereas if the copyright submissions succeeded, the court would itself provide the orders which should have been made and there would be no occasion to order a retrial. His Honour considered at , that while the Full Court had accepted the bias submissions, it had failed to provide consequential relief; and if allowed to stand, this outcome would have “the adverse consequences for the administration of justice” identified by Kirby and Crennan JJ. However, Callinan J at  considered that the Full Court’s error was to go on to consider the allegation of apprehended bias on the part of the trial judge after having decided the copyright issue, when the latter was sufficient to dispose of the case completely.
48 In our view, the judgment of Kirby and Crennan JJ, taken together with that of Gummow ACJ, makes it clear that grounds of apprehended bias are to be dealt with first, and if they succeed, a retrial will be ordered without deciding the other grounds of appeal. There has been some criticism of their Honours’ judgments in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128;  NSWCA 88 at –, – and Jamal v Director of Public Prosecutions (NSW)  NSWCA 121 at , but they are binding upon an intermediate appeal court.
49 In Jorgensen, the Full Court, applying the reasoning in Concrete Pty Ltd, held at  that an appeal court should deal first with the grounds of bias or procedural fairness, and, if made out, the matter must be remitted for retrial: see also –. When the Full Court referred to procedural fairness, it was referring to a denial of procedural fairness resulting from excessive judicial intervention—what was described as “unjudicial behaviour” in Spencer v Bamber  NSWCA 274 at . Other kinds of denial of procedural fairness may not necessarily require a retrial where, for example, the respondent is able to demonstrate that appellant was not denied the possibility of a successful outcome because consideration of the merits of the case shows that a procedurally fair hearing would not have resulted in a different outcome: see Nobarani v Mariconte (2018) 359 ALR 31;  HCA 36 at ; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147. However, a denial of procedural fairness where excessive judicial intervention prevents a party from properly conducting his or her case, or involves an egregious departure from the role of a judge, falls into the category of cases discussed in Jorgensen. Such conduct requires that there must be a retrial because such a miscarriage of justice strikes at the validity and acceptability of the trial and its outcome.
50 It follows that the respondents’ submission that Mr Gambaro’s other grounds of appeal should be decided cannot be accepted, and that the matter must be remitted for a new hearing. That the hearing before the primary judge was interlocutory makes no difference. It is not to the point to say that he could make another application for the same orders. Mr Gambaro has been denied a fair hearing. That is itself a substantial injustice. He must be permitted to have that which has been denied to him.
51 We have now had the benefit of reading the reasons of Reeves J in draft. Despite finding that the conduct of the interlocutory hearing was procedurally unfair, his Honour would withdraw leave to appeal and dismiss the appeal on the basis that there has been no substantial injustice, since Mr Gambaro could make a new application to the Federal Circuit Court for the same relief.
52 We respectfully disagree with his Honour’s reasons. First, the legal error identified is a denial of procedural fairness resulting from excessive judicial intervention, and application of the reasoning in Concrete Pty Ltd requires that once such an error is found, the matter must be remitted for rehearing. Second, his Honour has said that an interlocutory judgment is to be distinguished from a final one in this context, but has not explained why, and we are unable to discern any material distinction – in either case, there has been a failure to provide a fair hearing. Third, the denial of a fair hearing is, in itself, a substantial injustice; and, as Gummow ACJ pointed out in Concrete Pty Ltd at , a resulting order, if allowed to stand would have adverse consequences for the administration of justice. Fourth, the injustice to Mr Gambaro would be compounded, if as his Honour proposes, the appeal is dismissed and Mr Gambaro is forced to make a new interlocutory application to seek the fair hearing he was denied in the first place. Fifth, even where there is a less serious denial of procedural fairness, an appellant has the benefit of the test from Stead and Nobarani (see ); but his Honour’s approach paradoxically results in Mr Gambaro’s appeal being dismissed in circumstances where he was clearly denied the possibility of a successful outcome. Sixth, a defining characteristic of a court is that it accords procedural fairness, necessitating that a court cannot be authorised to proceed in a manner that does not ensure procedural fairness: see, for example, Nicholas v The Queen (1998) 193 CLR 173 at ; Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 at ; Kuczborski v The State of Queensland (2014) 254 CLR 51 at . However, the consequence of accepting his Honour’s reasoning—that however egregiously an appellant has been treated in an interlocutory application, the appellant cannot obtain relief so long as he or she is able to bring another application to seek the same relief—is inconsistent with this basic conception of the exercise of judicial power.
53 The appeal must be allowed. The order made by the primary judge dismissing Mr Gambaro’s interlocutory application must be set aside and an order made that Mr Gambaro’s interlocutory application be reheard.
REASONS FOR JUDGMENT
54 I have had the benefit of reading in draft form the reasons for judgment of Greenwood and Rangiah JJ. I agree with their Honours that the primary judge fell into error in his procedurally unfair treatment of Mr Gambaro. However, in the peculiar circumstances of this appeal, I do not, with respect, consider that error allows this Court to make the orders their Honours have proposed. My reasons for reaching this conclusion are as follows.
55 This Court’s power to correct error is dependent on it being satisfied that the primary judgment is affected by appellable error (see Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194;  HCA 47 at  and  per Gleeson CJ, Gaudron and Hayne JJ). The expression appellable error refers to some “legal, factual or discretionary error” affecting the judgment concerned (see Allesch v Maunz (2000) 203 CLR 172;  HCA 40 at  per Gaudron, McHugh, Gummow and Hayne JJ).
56 The error identified in the reasons of Greenwood and Rangiah JJ does not, in my view, fall into any of those categories. That is so essentially because that error concerns the manner of exercise of judicial power per se, rather than the result of that exercise, namely the interlocutory orders that the primary judge made. It is, of course, possible that, notwithstanding the unfairness of the procedure that his Honour adopted, the primary judge did not fall into appellable error in making those orders. In other words, if the erroneous exercise of power did not cause an appellable error in the orders made, I do not see how this Court presently has the power to set those orders aside.
57 This conclusion is reinforced by the fact that this appeal concerns interlocutory orders, not a final judgment after a trial. In my view, this factor distinguishes this matter from the authorities discussed in the majority judgment, all of which dealt with trials where substantive rights were either affected, or possibly affected, by the perceived bias, or failure to provide procedural fairness concerned. In that situation, the usual remedy is a re-trial. I do not consider those principles, nor that outcome, can be translated to this appeal.
58 There are, in my view, two alternative approaches to resolving this dilemma: either to proceed and determine whether some appellable error does exist in the primary judge’s orders; or to terminate this appeal at this stage, by withdrawing Mr Gambaro’s leave to appeal and dismissing his appeal. If the former were to occur and appellable error were established, then the orders proposed by Greenwood and Rangiah JJ would be quite appropriate. On the other hand, if the latter were to occur, Mr Gambaro would be able to return to the Federal Circuit Court armed with these reasons to pursue his concerns there. While it is not entirely satisfactory, I favour adopting the latter approach.
59 First, and most importantly, I do not consider that that course will result in Mr Gambaro suffering any substantial injustice. The kind of substantial injustice I have in mind is that which is central to the granting of leave to appeal an interlocutory judgment of the present kind, as expressed in Bienstein v Bienstein (2003) 195 ALR 225;  HCA 7 (Bienstein) per McHugh, Kirby and Callinan JJ as follows (at ):
… An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of leave to appeal.
60 Mr Gambaro will not suffer that kind of injustice in this matter, essentially because of the distinguishing factor mentioned above, that his application before the primary judge was interlocutory in nature. Furthermore, it dealt with two matters of practice and procedure requiring his Honour to exercise a discretion: leave to amend his statement of claim and an order for disclosure of documents. Accordingly, the orders the primary judge made did not finally determine any of Mr Gambaro’s substantive rights. Moreover, given the circumstances, it is unlikely that those orders even constituted a final determination on the two procedural matters Mr Gambaro sought to raise such that he would be prevented from pursuing them again before the Federal Circuit Court (see P Dawson Nominees Pty Ltd (ACN 004 743 408) v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466;  FCA 413 per Goldberg J and Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 2)  FCA 272 per Reeves J). It follows that, allowing Mr Gambaro to return to that Court to further agitate those matters in the course of his substantive application will not cause him to suffer substantial injustice of the kind described in the second criterion mentioned in Bienstein above.
61 Secondly, and of lesser importance, if this Court were to proceed and determine whether there is some appellable error in the primary judge’s orders, that will inevitably mean that we will have to determine Mr Gambaro’s interlocutory application. If that determination turned out to be adverse to Mr Gambaro, he would effectively lose the avenue of appeal he would otherwise have to this Court (albeit that he would still require leave) if he, instead, pursued the same, or a similar, application in the Federal Circuit Court as mentioned above.
62 Finally, I would add these two riders. First, nothing said in these reasons should be taken as detracting from the force of the observations made in the majority judgment about the unfair manner in which the primary judge dealt with Mr Gambaro. Secondly, these reasons should also not be interpreted as suggesting that Mr Gambaro should not have been granted leave to appeal in the first place. To the contrary, consistent with the principles stated in Bienstein above, the likelihood of error on the part of the primary judge and the possibility that that error may have resulted in substantial injustice to Mr Gambaro amply justified him being granted that leave.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.
Dated: 26 August 2019
QUD 804 of 2018
BONNY ERIN FARRELL
LINCOLN AARON BODLE
JAMES KENNETH HARRISON