New South Wales Court of Appeal CITATION : Damjanovic v Sharpe Hume & Co; Damjanovic v Yorke Agencies; Damjanovic v Rosier; Damjanovic v Spehar [2001] NSWCA 407 FILE NUMBER(S) : CA 40719/00; 40720/00; 40721/00; 40722/00; 40723/00 HEARING DATE(S) : 9 October 2001, 5 November 2001 JUDGMENT DATE : 23 November 2001 Mojmir Damjanovic v Sharpe Hume & Co Mojmir Damjanovic v Yorke Agencies PARTIES : Mojmir Damjanovic v Peter William Rosier & Ors Mojmir Damjanovic v Zelka Spehar Mojmir Damjanovic v Ivan Spehar JUDGMENT OF : Mason P at 1; Sheller JA at 1; Rolfe AJA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT DC2409/00; DC2410/00; DC5930/99; DC4293/00 FILE NUMBER(S) : LOWER COURT Gibb DCJ JUDICIAL OFFICER : Appellant - In Person with Ms Vukic Assisting COUNSEL : Respondent - M J Cohen for 1st, 2nd and 3rd Respondents Zelka and Ivan Spehar in Person SOLICITORS : Appellant - In Person 1st-3rd Respondents - Sharpe Partners Legal CATCHWORDS : APPREHENDED BIAS BY REASON OF PRE-JUDGMENT AND OTHER CONDUCT - OBLIGATIONS OF THE COURT IN CONDUCTING TRIALS - CHARACTERISATION OF EVIDENCE OF LIES - COSTS LEGISLATION CITED : District Court Act 1973 Ex parte Schofield; re Austin (1953) 53 SR (NSW) 163 Reg v Watson ex parte Armstrong (1976) 136 CLR 248 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Vakauta v Kelly (1989) 167 CLR 568 Australian National Industries Limited v Spedley Securities Limited (in liquidation) & Ors (1992) 26 NSWLR 411 CASES CITED: Abraham v National Australia Bank Limited (C/A 1/5/97 unrep) Webb v The Queen (1994) 181 CLR 41 Johnson v Johnson (2000) 201 CLR 488 Toner v Attorney General for New South Wales (C/A 19/11/91 unrep) Hunter v Webb (FC 19/7/86 unrep) Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 Merrylands Bowling, Sporting & Recreation Club v P & H Property Services (2001) NSWCA 358 DECISION : (1) Set aside orders of Gibb DCJ answering separate questions, dismissing the plaintiff 's statement of claim, and ordering the plaintiff to pay the defendant's/defendants' costs and disbursements on an indemnity basis; (2) Without prejudice to any fresh application for summary dismissal, order that there be a new trial before a judge other than Gibb DCJ; (3) Respondent(s) to pay appellant's costs of the first trial and of the appeal and to have a certificate under the Suitors Fund Act IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40722/00 40723/00 40719/00 40720/00 40721/00 3930/99 2408/00 2409/00 2410/00 4293/00 4448/00 MASON P SHELLER JA ROLFE AJA 23 November 2001 Mojmir Damjanovic v Zelka Spehar & Ors APPREHENDED BIAS BY REASON OF PRE-JUDGMENT AND OTHER CONDUCT ex parte Schofield; re Austin (1953) 53 SR (NSW) 163 Reg v Watson ex parte Armstrong (1976) 136 CLR 248 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Vakauta v Kelly (1989) 167 CLR 568 Australian National Industries Limited v Spedley Securities Limited (in liquidation) & Ors (1992) 26 NSWLR 411 Abram v National Australia Bank Limited (Court of Appeal - 1/5/1997 – unreported) Webb v The Queen (1994) 181 CLR 41 Johnson v Johnson (2000) 201 CLR 488 applied OBLIGATIONS OF THE COURT IN CONDUCTING TRIALS Toner v Attorney General for New South Wales (Court of Appeal – 19/11/1991 – unreported) Hunter v Webb (Federal Court – 19/7/1986 – unreported) applied CHARACTERISATION OF EVIDENCE OF LIES Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 referred to COSTS Merrylands Bowling, Sporting & Recreation Club v P & H Property Services [2001] NSWCA 358 referred to The appellant, an elderly gentleman with apparently limited fluency in the English language, sued six defendants in the District Court. Five of the actions alleged forgery, and one the improper payment of a cheque. The proceedings came before Gibb DCJ, who ordered that they be heard together, and that evidence in one be evidence in all. Her Honour granted leave to Ms Vukic, who had no legal qualifications, to appear on the appellant's behalf, pursuant to s 43 of the District Court Act 1973. Before the conclusion of all the evidence, her Honour decided the case based on the improper payment of the cheque, In doing so she found that she did not believe the appellant, whose credibility was seriously in issue in the cases she had not decided. When her Honour decided these cases, she did not believe the appellant. The appellant appealed on the basis of apprehended bias, both by reason of pre-judgment, and other conduct of her Honour of which he complained. HELD: That there might be a reasonable apprehension of bias by reason of pre-judgment and the other conduct - Consideration of the way in which a trial Judge should conduct a trial, particularly in circumstances where one party is not legally represented, does not have English as his/her first language and is openly sceptical of lawyers - Necessity for Judges not to act in a way which will erode, in the public's perception, that justice is being administered fairly to all parties, or confidence in the judicial system, discussed. HELD: That in the particular circumstances of the case, the respondents should pay the appellant's costs at first instance and on appeal. ORDERS (1) Set aside orders of Gibb DCJ answering separate questions, dismissing the plaintiff 's statement of claim, and ordering the plaintiff to pay the defendant's/defendants' costs and disbursements on an indemnity basis. (2) Without prejudice to any fresh application for summary dismissal, order that there be a new trial before a judge other than Gibb DCJ. (3) Respondent(s) to pay appellant's costs of the first trial and of the appeal and to have a certificate under the Suitors Fund Act. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40722/00 40723/00 40719/00 40720/00 40721/00 3930/99 2408/00 2409/00 2410/00 4293/00 4448/00 MASON P SHELLER JA ROLFE AJA 23 November 2001 Mojmir Damjanovic v Zelka Spehar & Ors Judgment Introduction 1 The Court: Mr Mojmir Damjanovic, an elderly gentleman with apparently limited fluency in the English language, sued six defendants in the District Court, namely Mrs Zelka Spehar in proceedings 3930 of 1999; York Agencies Pty Limited in proceedings 2408 of 2000; Sharpe Hume & Co (Services) Pty Limited in proceedings 2409 of 2000; Rosier Associates Lawyers in proceedings 2410 of 2000; Mr Ivan Spehar, (the husband of Zelka Spehar), in proceedings 4293 of 2000; and Anita S Ivancic, (the daughter of Mr and Mrs Spehar), in proceedings 4448 of 2000. In each of the proceedings, save for those against Ms Ivancic, he alleged, inter alia, that his purported signatures on a Deed of Assignment of Debt, dated 22 July 1996, were forgeries, such that that Deed was not valid and binding upon him. 2 In the proceedings against Ms Ivancic, the issue seems to have been whether a cheque sought from Mr Damjanovic by a business known as Ivan's Butchery Pty Limited, was handed over to its secretary, Ms Debrodt, when the defendant was present as Mr Damjanovic asserted, or when Ms Ivancic was not present, as Ms Debrodt asserted. 3 All these proceedings came before her Honour Judge Gibb in the District Court on 8 August 2000. At the commencement, Ms Ina Vukic, who is neither a barrister nor a solicitor, sought leave to appear on behalf of Mr Damjanovic, pursuant to s 43 of the District Court Act 1973, which, relevantly for present purposes, provides: "(1) A party to any proceedings may appear: (a) by a barrister or solicitor retained by or on behalf of that party, or by a solicitor employed (as an agent or otherwise) by a solicitor so retained; or (b) if no barrister or solicitor is so retained and - (i) if that party is a natural person by himself or herself; …………………………………………. or by another person allowed by leave of the Court granted in the particular proceedings to appear on that party's behalf . (2) Subject to and in accordance with the Rules, a person appearing in any proceedings may address the Court and examine and cross-examine witnesses". (Our emphasis) This leave, it is agreed, was ultimately, although it would seem impliedly, granted. 4 Mr M J Cohen of Counsel appeared on behalf of the defendants, York Agencies Pty Limited, Sharpe Hume & Co (Services) Pty Limited, and Rosier Associates, Lawyers. Mr and Mrs Spehar appeared "unrepresented" and there was no appearance on behalf of Ms Ivancic. In the course of the proceedings, Mr Cohen appeared on behalf of Mr and Mrs Spehar and Ms Ivancic, at least from time to time, on an amicus curiae basis. The Appeal 5 On 10 August 2000, her Honour dismissed Mr Damjanovic's proceedings against Ms Ivancic, essentially because she did not accept the evidence of Mr Damjanovic. On 11 August 2000, her Honour dismissed Mr Damjanovic's other proceedings once again, essentially, because she did not accept his evidence. Mr Damjanovic has appealed against the decisions on 11 August 2000, basically on the grounds that a reasonable bystander might have apprehended that her Honour was biased against him; that he was not afforded procedural fairness, and that her Honour refused to allow him to adduce relevant evidence. 6 Two points were raised on the first occasion the appeal was before the Court. First, there was the question of Ms Vukic's right to appear in this Court, which involved different considerations from those posed by s 43. Secondly, Mr Damjanovic made an allegation that her Honour had said, at the time of coming onto the Bench on one day, that Mr Damjanovic was in the witness box and that she did not believe him. No such statement appeared on the transcript, and there was conflicting evidence whether any such thing was said. 7 The Court decided to hear the appeals, in the first instance, without having regard to these two matters on the basis that, if the appeals otherwise failed, they could be revisited. The Court had before it extensive written submissions on behalf of Mr Damjanovic, which were carefully related to the grounds of appeal. In effect, Mr Damjanovic appeared on his own behalf, although Ms Vukic was permitted to sit with him at the Bar table. 8 After hearing detailed oral submissions from Mr Cohen in support of his written submissions, the Court decided that it was not necessary to hear oral submissions from Mr Damjanovic, and that the appropriate orders were that the appeals be allowed; the judgments of her Honour be set aside; there be new trials in the proceedings before a Judge other than her Honour; and the respondents pay the appellant's costs of the trials and the appeal. The Court said that it would deliver its reasons later, and these are the reasons. 9 In the result, it is not necessary to consider the two other points. However, it should be made clear that whilst Ms Vukic deposed on affidavit that her Honour had said words to the effect to which we have referred, not only do they not appear on the transcript, which was sound monitored, but various witnesses denied on affidavits that the words were used. The Application By Ms Vukic To Appear 10 When Ms Vukic sought leave to appear, she did not, at that stage, advance any reason for doing so, nor was she asked for any. Rather her Honour enquired whether both she and Mr Damjanovic appreciated the risks of having a non-qualified person representing him. Ms Vukic said that they both did, whereupon her Honour asked Mr Damjanovic whether he was: "… content to take the risks, you do appreciate that – no disrespect to your friend – that a lawyer can be of greater assistance?" 11 Ms Vukic sought to respond, and her Honour asked again of Mr Damjanovic whether he appreciated the risk. He said he did, and there was further discussion, in the course of which her Honour asked Ms Vukic to translate for her "quite literally" to Mr Damjanovic whether he understood that a lawyer, "can protect your rights better than any well intentioned friend". Mr Damjanovic stated that he did not see "any of the Law Society", and Ms Vukic added that he did not trust solicitors. 12 Mr Damjanovic made it clear that he fully understood and accepted the risk. Her Honour, quite correctly in our opinion, was seeking to ensure that Mr Damjanovic understood the position and the possible risk. One can well understand her Honour's wish to do this. 13 Thereafter, Ms Vukic outlined, in short terms, the nature of the proceedings, at the conclusion of which she pointed out to her Honour that Mr Spehar had not filed a defence, and unless that was done, Mr Damjanovic would seek an order for judgment "and default". 14 Her Honour responded, T p 4-5: "Her Honour: That may well be so, but you might assume that if he is here and he says he denies it, it has remarkably similar effect to a piece of paper. Vukic: It does your Honour, but the plaintiff is entitled to a defence, a written defence filed. Her Honour: You just had a ruling on that point and you lost it". 15 This was the first of a number of strange and, in our opinion, incorrect rulings her Honour gave against Mr Damjanovic during the course of the proceedings. There cannot be the slightest doubt that if Mr Spehar was desirous of defending the proceedings he was obliged to put on a defence, which set out the matters he denied or admitted and any substantive defences he wished to raise: Part 10 rule 1 of the District Court Rules. It is also to be noted that when her Honour gave this ruling, Mr Spehar had not stated that he denied anything. Whilst this was an incorrect ruling, we should point out immediately that somewhat later her Honour found defences, which had been filed on behalf of Mr and Mrs Spehar. 16 Mr Cohen then commenced to address her Honour and, in the course of doing so, said that he was instructed that Mr Damjanovic and Ms Vukic were currently, "in a relationship together", and if that were right, "then it is my submission that Ms Vukic cannot be expected to be a dispassionate advocate". The first assertion, which Mr Cohen said was made on instructions he had received, was not, so far as we can see, ever established. 17 There was further debate about whether Ms Vukic could appear, in the course of which Mr Cohen asserted that Mr Damjanovic, "is a wealthy man" (T p 7), whereafter her Honour said: "If you would and I would have to say my personal view is that if Mr Damjanovic elects upon a course which – and I mean this with no disrespect to Ms Vukic, - is dangerous and silly , if he chooses to embark upon that course it is not my job to stop him taking that risk. It is, in my view, if it is a technical question about the construction of deeds or of loan and the like, dangerous and silly to do so without the benefit of proper legal representation , if Mr Damjanovic chooses to take that risk he is an adult, he is an intelligent man, unless someone puts before me a relevant disability, my inclination is to let him take the risk . But I do want to be quite sure that he understands the risk". (Our emphasis) 18 Ms Vukic said that she had translated what her Honour had said, and: "Vukic: His comment was to my translation to you to put that in his risk but he accepts the responsibility is his and not mine. Cohen: Therein lies another factor that my clients are concerned by your Honour and we say are a proper reason for your Honour not to exercise discretion and that is this. Ms Vukic is for the convenience of your Honour now acting as translator, she is not NAATI accredited, the fact that she speaks possibly conversational or idiomatic Croatian is not to the point. Your Honour has no basis to accept that she is accredited by the entity that is recognised by the Court, that is NAATI". 19 Thereafter, Mr Cohen suggested that her Honour was entitled to have an accredited interpreter, a submission which appealed to her, and to which Mr Damjanovic agreed. 20 At T p 8 her Honour said: "I (sic) that case I think we should have an independent interpreter before we go too much further. The course I am inclined to at this stage Mr Cohen is to take a brief adjournment. I anticipate that Croatian is not the world's most difficult language to find an interpreter for. I would like to defer resumption of your motion until there is an accredited, and it does not need to be a NAATI accredited interpreter, sitting on the other side of Mr Damjanovic. If, having been told the risks Mr Damjanovic remains of the view that he will take them – and I will read your cases in the interim - but the course to which I am inclined is to let him go to hell on his own bicycle if he chooses to ". (Our emphasis ) 21 Before us Mr Cohen sought to justify the final remark on the basis that it was a colloquial use of language frequently used, in his experience, in courts. That experience does not accord with ours. 22 The final remark was, in our opinion, a most unfortunate one, to say the least, by the Judge, who was still considering whether she would grant leave for Ms Vukic to appear, and, in addition, contrary to what we consider to be appropriate judicial behaviour. The clear inference was that if Ms Vukic was granted leave, Mr Damjanovic's case would be severely prejudiced in her eyes. Further, the words "go to hell" are indicative that Mr Damjanovic would lose his case anyway, thereby giving rise to an apprehension of bias. If it is a remark frequently used in courts, it is conduct which, in our opinion, should not be continued, more particularly where parties are appearing in person. Further, it was a shift in her Honour's position. Initially, and correctly, she wanted to be assured that Mr Damjanovic understood the situation. The attitude evidenced by this remark was one indicating quite clearly that following this course could have the effect to which we have referred. If that was her Honour's attitude even more careful attention had to be given to the granting of leave. 23 Mr Cohen pursued his submissions to her Honour about the inappropriateness of Ms Vukic's being allowed to represent Mr Damjanovic. 24 There was further discussion about Ms Vukic's appearing and, at T p 11, her Honour said: "Mr (sic) Vukic, I think you might take it as being you have been put on notice that if, as a matter of fact, I reach those two conclusions, there will be a motion put immediately before the Court that the matter be disposed of for lack of a cause of action. That is very much a lawyer's question and that itself is something which the lack of legal representation may complicate, it is something you will need to think about very carefully, because it is something that will come upon you and your client and it will be a fairly direct consequence. Now, as I understand it at the moment the immediate questions before me are twofold and they are factual questions, so the issues that are particularly live are the rules applying to cross-examination of witnesses – I anticipate there will be a number of witnesses on this as a matter of fact – make no mistake, however competent you are in ordinary life, a trained lawyer gets a lot further in cross-examination or examination that (sic) persons without those skills. They do not go to university and practise for nothing. Vukic: I can appreciate that your Honour". Once again, her Honour was making reasonably clear that she considered that Mr Damjanovic's case would not be presented properly by Ms Vukic. 25 Before taking an adjournment, her Honour advised Ms Vukic that she would be asking Mr Damjanovic through the interpreter: "… quite directly to tell me he understands exactly what the risks are and I will ask him to do so on the basis that, and again with no disrespect to you, you remain absolutely silent and I will ask you for the period to step back out of eyesight and out of contact from Mr Damjanovic so that there can be no question but that I am receiving exclusively his views. Vukic: Yes, your Honour. Her Honour: But if he tells me then, through an interpreter, when there is no question of any, and again I mean this with no disrespect, that there is no question of pressure or duress from your presence or your role, then the likelihood is that I will permit it to continue. Vukic: Yes, your Honour. Her Honour: But only if I am perfectly satisfied of that". Until her Honour raised the matters of pressure or duress, no such suggestion had been made. 26 Her Honour also referred to the possibility of "a personal relationship", which Ms Vukic denied strongly, and her Honour said that she would need to be assured of that through the interpreter. Subsequently, an interpreter arrived. 27 At T p 18, her Honour made a suggestion as to how a defence for Ms Ivancic may be prepared by her mother, Mrs Spehar, and when Ms Vukic raised a mild objection, her Honour pointed out that Mrs Spehar was representing her daughter and that she, her Honour, did not think it "fell" very well in Ms Vukic's mouth to criticise others representing people. However, one can well understand Ms Vukic's surprise at this somewhat sudden change of her Honour's attitude from that she was displaying to her. Her Honour then suggested that Mr Cohen should act as an amicus curiae for Mr and Mrs Spehar, telling them that if he, Mr Cohen, "gets it wrong you can't sue him, if he gets it wrong you can't complain". She made no suggestion to Mr and Mrs Spehar that they obtain the services of a lawyer, who, if he "gets it wrong" could be sued, arguably, and about whom they could complain. The Procedure Followed By Her Honour 28 At T p 21, her Honour made directions for the hearing of the specific questions, presumably on the basis, as stated at T p 20, that the only question before her was "the Deed question", with which Mr Cohen agreed. However, as will appear, that was not the only issue. Her Honour's directions were: "I will make directions in accordance with the rules in respect of the issues raised in paragraphs 2, 3 and 4 of the motion filed on behalf of the defendants by date 7 February 2000. That being a motion filed in each of matters 2408, 2409 and 2410, that the questions in each of the relevant questions raised, be heard simultaneously in respect of each of those three matters, the evidence in one is evidence in the other. Insofar as there is a claim against Mr Ivan Spehar in matter 4293, if there be claim, I make the same direction in respect of that. In respect of the claim against each of Zelka Spehar, 3930/99 and Anita Ivancic in 4448/00 I make the same direction and in the latter three, note that I do so on the basis of a motion at the Bar table, without notice, to which no objection is taken in this respect". 29 As we understand it, her Honour was directing that all six cases be heard together with evidence in one being evidence in all others. On the hearing of the appeal, Mr Cohen confirmed this. Later, her Honour seems to have forgotten this direction, because she heard and decided the proceedings against Ms Ivancic separately and before all the evidence in the other proceedings was concluded. 30 At T p 23, her Honour stated that, in the following week, she would be sitting in criminal matters, and that the better course would be that she not be part heard if the proceedings did not conclude within the week. At a later stage, she referred to this again. Mr Damjanovic has complained that these statements evidenced an apprehension of bias. We do not agree with that, even when aggregating all the matters on which he relied. 31 Her Honour then satisfied herself as to the evidentiary material before her, and there was discussion as to how the matter was to proceed. Ms Vukic suggested that perhaps the defendants should call their evidence first, which her Honour, correctly in our view, rejected, on the basis that the onus rested upon Mr Damjanovic to prove the forgery he alleged. In doing so her Honour said: "No, they don't have to prove a thing: you do. That is one of the things that is fundamental, it is your proof and unless you come up with proof, that is the end of the issue. So that being the case you have got to prove your case. That means you have to prove it. The defendant may choose to say absolutely nothing. The fundamental rule of our system. Vukic: Yes. Her Honour: And that is why lawyers assist". The last observation was minor and, in itself, insignificant. But it was part of this continuing dialogue in which her Honour was engaging about the undesirability of Ms Vukic's appearing. 32 Mr Cohen raised again Ms Ivancic's case, which he submitted should be dismissed forthwith, if certain documents were accepted by her Honour. That led to the situation where that case was also to be heard, although it involved an issue different from the forgery issue. Her Honour said that would be clear notice to Mr Damjanovic that those proceedings would be heard, which she had ordered only shortly before. 33 At T p 38, her Honour explained to Mr Damjanovic, through an interpreter, the risks inherent in being represented by some other person and, ultimately, she appears impliedly to have granted Ms Vukic leave to appear. That having been done, Ms Vukic had the rights accorded by sub s (2). In those circumstances, she should, in our opinion, have been afforded appropriate judicial courtesy. She was not. Her Honour's Findings In The Proceedings Brought By Mr Damjanovic Against Ms Ivancic 34 The proceedings did not conclude until 11 August 2000, on which date her Honour gave judgment in all, other than those brought by Mr Damjanovic against Ms Ivancic. She gave judgment in the latter proceedings, which did not contain an allegation of forgery, on 10 August 2000. Before the luncheon adjournment on that day, her Honour observed that a witness in those proceedings, Ms Debrodt, was coming from Mittagong to give evidence, and that the course she proposed was that if Ms Debrodt was present at 2 pm, she would "deal with her and she is on the question of in effect how many payments were made …". She explained to Ms Vukic that that would happen, and that Ms Vukic could ask Ms Debrodt, "any questions you want in cross-examination". She required Ms Vukic to particularise the claim as to how many sums of $50,000 were paid in September 1995, and to whom they were paid, and, "that will identify precisely that claim. That will be identified in writing": (T p 196). Her Honour continued: "We will then deal with the witness on that. If there be an issue as to the fact we will deal with Mr Damjanovic on that fact and that fact alone". 35 Thus, her Honour was interposing at least two witnesses in the Ivancic case. She had ordered that all cases were to be heard together and that evidence in one was to be evidence in the others. Thus, the evidence in the forgery cases was also, in so far as it may have been relevant, evidence in the Ivancic case. This was a point her Honour seems to have overlooked. 36 After the luncheon adjournment, her Honour proceeded with that case and, at T p 199, she stated that the essence of the claim: "… is in all respects that a sum of $50,000 is paid to the defendant on or about 15 September 1995. The ambit of that claim is defined precisely from the Bar Table on the basis of Ms Vukic being that in September of 1995 there was one payment and one payment only of $50,000 made in respect of anything to do with Ivan's Butcheries or any of the other matters made here. That payment you say was not to Miss Debrodt but was to Miss Ivancic, is that correct?" 37 Ms Vukic said that that was what Mr Damjanovic had told her. 38 At T p 200, after some discussion as to how the matter should proceed, the following transpired: "Cohen: If your Honour pleases the only proposition that I address your Honour about as a consequence of that and I cavil with none of it – is it's my submission that if your Honour's persuaded at the end of the evidence to the extent that the defendant's version should be accepted it's my submission that that should be the end of those proceedings as against Miss Ivancic. If I might put it that way. Her Honour: Is it the case that the determination of the larger question – that is the Deed question – is relevant also to this question? Cohen: Well it appears utterly irrelevant to this. Her Honour: Let's assume for the moment that this claim was made out, if this claim was made out with the determination of the question on the assignment of the Deed also resolved this question, because would the debt have fallen from … Cohen: I'd have to in fairness again as amicus to put before your Honour that there are wider issues in this claim than merely the Deed. …". 39 Mr Cohen, in our opinion, should have reminded her Honour of the order for hearing, which meant that the larger question could not be "utterly irrelevant", and suggested that whilst the evidence of Ms Debrodt and Mr Damjanovic could be taken conveniently at that point, there were several reasons why judgment in those proceedings should await judgment in the forgery proceedings, viz that the evidence in one case was evidence in all, and that any adverse finding against Mr Damjanovic, for which he was obviously contending, could well lead to her Honour being disqualified, on the ground of apprehended bias, if made before all the evidence was completed. At T p 201, her Honour asked Ms Vukic if she agreed with the proposition that if the claim failed in its entirety, her Honour using the word "collapses", "then the rest of it is an irrelevancy". The last remark seems to have been a statement, rather than a question. No answer, or observation by Ms Vukic to it, is reported. 40 Her Honour then heard evidence from Ms Debrodt, in the course of which she said that Mr Damjanovic gave her the money by writing a cheque. This was directly challenged by Ms Vukic, who put to Ms Debrodt that Mr Damjanovic had said that he would only hand over the money if there was someone there from Mr Spehar's family: T p 205. It was subsequently put to Ms Debrodt by Ms Vukic that Mr Damjanovic gave Ms Ivancic the money: T p 207. At T p 208, her Honour accepted that there was a denial of that, saying, inter alia: "I think it is patently apparent Ms Vukic from the expression on the witness's face that she did not agree with you, do you agree with that?" (T p 208) 41 Ms Vukic seems to have agreed that there was a denial. This version of what transpired was again put at T p 209. 42 At T p 211, Mr Damjanovic was called and he denied giving any money to Ms Debrodt. He said he gave the money to Ms Ivancic. He gave evidence in support of what had been put by Ms Vukic to Ms Debrodt. This evidence was directly challenged in cross-examination at T p 213. There then was a dispute as to whether Mr Damjanovic had said something in cross-examination, which essentially commenced at T p 214. It was a situation which, in our opinion, called not only for considerable restraint on the part of the trial Judge, but also for her to attempt to settle down what seemed to be a somewhat unfortunate comment by Mr Damjanovic, but one which, if made, was in relation to an irrelevant matter. Far from doing so, her Honour, as we read the transcript, tended to inflame the situation. At T p 214 the following appeared: "Her Honour: I will have answer to that question, it is a simple one, he said it yes or he said it no, it seems to be extremely difficult for this man to answer a simple question, I would like an answer it (sic), ask it, did you say that or not? A. I give Mrs … Her Honour: Mr Damjanovic shut up now answer the question you were asked, did you say what Mr Cohen just put to you that it was words to the effect … A. … (not transcribable) … Q. No you will listen to me, did you say in Croatian words to the effect, is this the correct phrase 'May God fuck their mothers'? A. It's something that I meant but I not met it". (Our emphasis) 43 Whilst we can understand that her Honour may have been feeling frustrated by certain of the answers given by Mr Damjanovic, three matters of some significance arise from this piece of evidence. First, her Honour's gratuitous statement that it seemed extremely difficult for Mr Damjanovic to answer a simple question. Secondly, her Honour's premature interruption of Mr Damjanovic's statement, which at that stage could not have been taken as a failure to answer in general terms the precise question asked, and thirdly her most unseemly statement to Mr Damjanovic to "shut up". The use of such language, in our opinion, falls far short of acceptable judicial behaviour, and such a remark to a witness, combined with other matters, might lead to an apprehension of bias. 44 The situation, in our opinion, was worsened by what transpired at T pp 214-215: "Her Honour: That will do, it can be put to Mr Zelvic (sic) in cross-examination, I think we have enough versions, enough people in this room who speak the language for that to not be a correct translation for it to have been cooled by now and I note spectacular silence from the plaintiff 's representative . A. They all lie here your Honour and they stuck together. Vukic: Your Honour, I have to be silent, I have been directed to silence … Her Honour: Was the translation made by Mr Spehar correct or not correct? Vukic: I didn't hear him. Her Honour: How very convenient , anything in re-examination?" (Our emphasis) The reference to Mr Zelvic should have been to Mr Zobec. 45 The first quoted statement by Ms Vukic was, in our opinion, totally justified by the statements by her Honour to Ms Vukic, that she should be quiet unless she was objecting. The passage we have quoted is punctuated by two observations by her Honour which we find disturbing, particularly in view of what had just happened. Her reference to "spectacular silence" was, in our opinion, totally unnecessary. It indicated, as clearly as may be, that her Honour was of the view that Ms Vukic had heard what was said but was not commenting. 46 The statement, "How very convenient", was also totally uncalled for. It gives the strong impression of being both sarcastic and disbelieving. There was no reason for Ms Vukic to be listening to what Mr Zelvic (sic) said, and indeed her Honour, if she was relying on that in asking her question resorted to a question about "words to the effect". The two statements taken together, together with her Honour's order to Mr Damjanovic to "shut up", all would have indicated, in our opinion, to a reasonable bystander, and certainly indicate to us, that her Honour was far from holding the scales pending a determination of the proceedings. For the matter to be dealt with in that way by a Judge shows, at least on the face of the transcript, little attempt to maintain the proper decorum of either the Court or herself, such as to allow a proper ventilation of the issues before an apparently impartial tribunal. It should also be noted that before the passage to which we have referred, her Honour had asked Mr Spehar to translate what he had heard Mr Damjanovic say, notwithstanding that he was not the Court interpreter and was a party with a position adverse to Mr Damjanovic. 47 Subsequently, her Honour was asked to give judgment in that matter. She did so on 10 August 2000 and, after setting out the factual issues and the pleadings, said, at p 3: "Ultimately, there is a confined debate of fact into whose hands the cheque was placed. It is determined exclusively by a question of credibility. The question is: do I believe Miss Debrodt who says she is the one who received the money, signed a document representing that fact and says that she was not accompanied? That is directly contradicted by Mr Damjanovic. I have had the advantage of having heard and seen Mr Damjanovic give evidence for the earlier part of today and yesterday on these proceedings and others . I do not believe Mr Damjanovic. I do believe Miss Debrodt". (Our emphasis) 48 This judgment was given at a time when Mr Damjanovic's case in chief, including, of course, his evidence, on the various forgery issues, had been closed. However, it was clear that there was still evidence to be called from the defendants, and that there may have been a case in reply in which Mr Damjanovic, at least arguably, would have given evidence. 49 Her Honour's finding in the case against Ms Ivancic was based upon her decision that she did not believe Mr Damjanovic. That conclusion was reached because, as she said, she had had the advantage of hearing and seeing him give evidence, not only on 10 August 2000, but also on 9 August 2000, and not only in the proceedings against Ms Ivancic, but also in others, i.e. the part-heard forgery proceedings. 50 Accordingly, her Honour was stating that her disbelief of Mr Damjanovic was based, not merely on the evidence he gave in relation to the claim against Ms Ivancic, but also upon the evidence he had given in the forgery proceedings. Thus, at a point of time when those proceedings were part heard, her Honour was making a finding, namely that she did not believe Mr Damjanovic based, at least in part, upon what he had said in the part heard forgery proceedings. That finding did not relate to some evidentiary or interlocutory issue: it was dispositive of the Ivancic proceedings. 51 In our opinion, the situation would have been sufficiently susceptible of giving rise to an apprehension of bias against Mr Damjanovic if her Honour had confined her observations to the evidence he had given in the proceedings brought against Ms Ivancic. However, she included what she had gleaned from the evidence Mr Damjanovic gave in the part heard forgery proceedings, where credit was to be of vital importance, and what she had observed of him in those proceedings. The question which then arose was whether there might be an apprehension of bias, created in the reasonable bystander, by reason of that judgment, in relation to the forgery cases, such that her Honour should not have continued to hear them. This is a somewhat discrete point, but it is one which, in the circumstances of this case, can be viewed against the other conduct of her Honour about which complaint is made. 52 In Ex parte Schofield; re Austin (1953) 53 SR (NSW) 163, Herron J said: "In my view, the learned magistrate should not have proceeded to judge the several complaints against the police sergeant by two citizens, when he had only just before entering in the case used the strongest possible language to show that they were, in his opinion, unworthy of belief. I think that the circumstances under which he heard these several complaints and dismissed them could give rise to a suspicion in the mind of a passer-by that the cases had been pre-determined by the Court and that a fair hearing was not able to be obtained". 53 In Reg v Watson ex parte Armstrong (1976) 136 CLR 248, the majority of the High Court (Barwick CJ, Gibbs, Stephen & Mason JJ, Jacobs J dissenting) found that prohibition should issue against the trial Judge, who, on an interlocutory hearing, had said, inter alia: "If one of the parties does not put in issue his capacity to meet a reasonable order, or even a quite generous order by the Court, and it says they have that capacity to meet it, and if, secondly, the Court accepts that admission, because the Court may not and I certainly would not in this case accept any admission without corroboration on either side – let me say on this point, in amplification of what I have said, it might assist you in handling this matter, I propose to conduct this case having regard to the inadequacies of both sides of the case upon the basis I will not find in my own mind that I am satisfied on either side unless there is corroboration of a particular matter. That will mean that there will be no great value to either counsel in cross-examination of credit because credit is a non event in this case". 54 Objection was taken to what his Honour said. 55 At p 258, the majority recognised that the bias being alleged was "by reason of some pre-determination he has arrived at in the course of the case". 56 At p 262, their Honours said: "The view that a Judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial, and that if a Judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct in principle". 57 At p 263, they continued: "It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision". 58 At p 265, they continued: "It was said that there was no bias because the Judge had formed an equal distrust of both parties. The formation of a preconceived opinion that neither party is worthy of belief amounts to bias in the sense in which that word is used in a number of the authorities already cited. To form such an opinion is to predetermine one of the issues in the case, and may operate unfairly against one party, even though both are discredited. A prejudice against the credit of both parties will not necessarily damage both parties equally. It will prove more damaging to that party who wishes to establish a fact by means of his or her own unsupported evidence. A party who believes, on reasonable grounds, that the Judge has decided, in advance, to disbelieve her evidence cannot have confidence in the result of the proceedings, even if the Judge has decided to reject the evidence of her adversary as well". 59 In Livesey v New South Wales Bar Association (1983) 151 CLR 288, the presently applicable test was laid down. The facts of that case are so well known as to require no repetition in this judgment. At p 299 in the joint judgment of the Court, Mason, Murphy, Brennan, Dean and Dawson JJ, it was stated: "What is in issue in the present case is the appearance and not the actuality of bias by reason of prejudgment. The reasonable observer is to be presumed to approach the matter on the basis that ordinarily a Judge will so act as to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of prejudgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant Court". 60 At p 300, their Honours said: "It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgment, if a Judge sits to hear a case at first instance after he has, in a previous case, expressed clear views about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact . The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular Judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the Judge to refrain from sitting ". (Our emphasis) 61 In Vakauta v Kelly (1989) 167 CLR 568, the facts of which are once again well known such as to require no repetition, Brennan, Deane and Gaudron JJ, in dealing with the failure by counsel appearing at the hearing to object to certain observations made by the trial Judge, said, at p 573: "The appellant's failure to object to the comments made in the course of the trial cannot, in our view, properly be seen as a waiver of any right to complain if comments made about Dr Lawson in the judgment itself would, in the context of those earlier comments, have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer". 62 Dawson J was of the view that the remarks made by his Honour did not, of themselves, constitute circumstances giving rise to a reasonable apprehension of bias. He made clear that a party, troubled by such remarks, could not sit by to see the outcome of the proceedings before objecting, and he said that: "Where a party, being aware of his right to object , waives that right there will be little danger of the appearance of injustice ". (Our emphasis) 63 Notwithstanding the view to which his Honour came about the original remarks, he considered that what was said in the judgment, taken with those remarks, led to a reasonable apprehension of bias. 64 Toohey J dealt with the matter at some length and, at p 585, in relation to a "fair-minded observer", said: "But, in this regard, the public perception of the judiciary is not advanced by attributing to the reasonable or fair-minded observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case. Such an observer, on being told of the litigation in the present case and then being told of his Honour's remarks, is unlikely to conclude that his Honour was showing no bias against the appellant's potential witnesses and in turn against the appellant's case as to the extent of the respondent's disabilities. On the contrary, the observer is likely to conclude that his Honour would approach the assessment of damages with a strongly held opinion that the evidence of the appellant's medical witnesses (which he had not heard) would almost certainly be loaded against the respondent and therefore be worthy of little credence". 65 At p 587, his Honour continued: "There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred , should not be capable of waiving the right later to object to the Judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the Judge to withdraw from the case. It may be enough that counsel made clear that objection is taken to what the Judge has said, by reason of the way in which the remarks will be viewed ". (Our emphasis) 66 In Australian National Industries Limited v Spedley Securities Limited (in liquidation) & Ors (1992) 26 NSWLR 411, the majority of this Court followed the approach propounded in Livesey. A written submission was made by Mr Cohen that Rolfe AJA had, by referring to this decision at an earlier mention, in some way denied the respondents procedural fairness. This submission was not repeated orally and was withdrawn. 67 In Abram v National Australia Bank Limited (Court of Appeal – 1/5/97 – unreported), this Court, after referring to the repetition of the Livesey test by the High Court in Webb v The Queen (1994) 181 CLR 41, said that the apprehension of bias was created, inter alia, by remarks made by the Judge in an earlier judgment: p 40. 68 In Johnson v Johnson (2000) 201 CLR 488, the High Court affirmed that the test to be applied in determining whether a Judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that he or she might not bring an impartial and unprejudiced mind to the resolution of the questions necessary to be decided. 69 In their joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, said, at p 492: "It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a Judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide". 70 At p 493, their Honours continued: "Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or of the ability of a particular Judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They developed to take account of the exigencies of modern litigation. At the trial level, modern Judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to Court expecting a Judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx". 71 Their Honours then referred to what had been said in the majority judgment in Vakauta about the desirability of the interchange of views and the statements by a Judge of preliminary views in order to test those views and propositions and submissions being put to him or her. 72 Kirby J came to essentially the same conclusions and, at p 504, he said: "If the party complaining is legally represented, the submission will require explicit instructions and usually be made (as in the present case) after time for advice and reflection". 73 In the present circumstances, it would probably be sufficient justification for making the orders that we have, that the reasonable bystander might have an apprehension of bias based on pre-judgment, merely from the terms of her Honour's judgment in the Ivancic case. That apprehension would be fortified, so it seems to us, by the fact that she relied, not only upon her assessment of Mr Damjanovic's evidence in those proceedings, which she was actually deciding, although probably prematurely, but also by reference to the part heard cases before her. It is difficult to think that the reasonable bystander could have left the Court thinking other than that, notwithstanding that the evidence in the part heard cases was not concluded, Mr Damjanovic, who carried the onus in them, would, in all probability, not be believed, her Honour having determined already that he was not a credible witness. 74 But, in our opinion, one is entitled and, indeed, bound, to go beyond the terms of the judgment. The reasonable bystander would have heard her Honour tell Mr Damjanovic to, "shut up", language quite inappropriate to a judicial officer exercising judicial power in Court, or, perhaps, at all. Shortly thereafter, there was the sarcastic statement relating to the "spectacular silence" from Ms Vukic, and then the sarcastic and critical comment, "How very convenient". 75 In our opinion, the totality of this conduct, together with the terms of the judgment, was sufficient to meet the test in Livesey, such that, her Honour, in our opinion, was disqualified from further hearing and pronouncing judgment in the unfinished proceedings. 76 No application was made to her Honour by Ms Vukic, on behalf of Mr Damjanovic, or by Mr Damjanovic, for her to disqualify herself, a matter on which Mr Cohen placed reliance. Much had been said in the context of whether leave should be granted to Ms Vukic to appear on behalf of Mr Damjanovic, of the desirability of the Court being assisted by counsel or legal representatives, who are officers of the Court, and have an obligation, consistently with the duty to their clients, to assist the Court. Mr Cohen did not suggest to her Honour that, having heard all the evidence in the case involving Ms Ivancic, it would be desirable for her to reserve her judgment until she had heard all the evidence in all the cases. He did not refer her Honour to the decisions on apprehended bias arising from pre-judgment. Rather, he actively sought a judgment from her Honour. 77 Notwithstanding the significance of these cases in the conduct of litigation, they appear to have escaped her Honour's notice. So far as waiver is concerned, in these circumstances, it seems to us to be well established that there can only be waiver with knowledge of the right to object to her Honour's continuing to hear the part heard proceedings. The authorities to which we have referred make this clear. There was no evidence that either Ms Vukic or Mr Damjanovic had any knowledge of their rights to object. Further, her Honour revived the matter in her judgment, in the way to which Dawson J referred, in the findings she made about Mr Damjanovic's credibility in the forgery cases. We do not consider that either Ms Vukic, or Mr Damjanovic through her, could be said to have waived whatever rights flowed from what her Honour did by dint of any failure to ask her to disqualify herself. Other Matters Of Concern 78 We have referred to statements made in the initial stages by her Honour in relation to Mr Damjanovic's being represented by Ms Vukic. In themselves, some of them may not have caused a reasonable bystander to entertain an apprehension of bias. To the extent to which we have referred, the view may be taken that her Honour was doing her best to protect the interests of Mr Damjanovic. However, some of the statements made and, thereafter, the frequent references to the problems, dangers and risks created by the appearance of Ms Vukic and the "folly" and "stupidity" of Mr Damjanovic's following that course, were, in our opinion, such as to create a quite different view. There seemed to be intruded into the discussion on this subject an almost threatening element, e.g. at T p 39: "Plaintiff: I will not leave it at this. I will take it to the High Court. Her Honour: The probabilities of your succeeding in getting anywhere past this Court if you lose because of your assistant's failures are very low. It's a question for you whether you want to continue, warned of the risk or not". 79 There are further instances of this type of conduct by her Honour. 80 At T p 81, her Honour continued to make comments, which, on one view, were somewhat threatening. An Income Tax Return was tendered by Ms Vukic as Ex 17, and her Honour said: "… be on notice as to the fact of law I have in front of me now as a matter of evidence a tax return, and in the event of something falling before me which causes me to doubt the voracity (sic) of that tax return, I do not form a view on that matter, I refer it forthwith plus the lot, to the Taxation Office, that is my duty, that is the duty that I will exercise". 81 There was absolutely no reason for her Honour to have made that remark. Of course, if subsequently material emerged which showed that the return contained false information, there may well have been such an obligation on her. But to raise the matter at the outset could only be interpreted as a very unsubtle threat of possible consequences: the type of threat under which a litigant should not be placed, without reason, by a trial Judge. 82 At T p 82, her Honour told Ms Vukic to, "bear on notice" that she would enter into no discussion on the subject, as it was a matter on which she made decisions, "other than to exercise my duty". Prima facie, one could be forgiven for thinking that procedural fairness would require her Honour to seek an explanation from whomever she thought was the appropriate person. On the same page, the following transpired: "Her Honour: I will note it, at the end of the day that may be an issue that is relevant to costs. You might assume it does not come as a great surprise to me to discover that complaints have been made against Mr Rosier, the thing that will surprise me is that the complaint is not made about everybody at some stage. Cohen: I apprehend that at some stage a complaint was made about me your Honour. Her Honour: Indeed Mr Cohen I would be very disappointed if there were not". 83 In our opinion, these latter remarks were totally unnecessary, and could not have been said seriously. They were being said, as I read the transcript, in a sarcastic and critical way of Ms Vukic and Mr Damjanovic. 84 At T p 129, another somewhat extraordinary event occurred. Mr Cohen said he had been instructed that Ms Vukic was giving "coded signals" to Mr Damjanovic. Her Honour did not indicate that she had seen any such thing, notwithstanding that she was in an acutely advantageous position to do so, but, without more, she requested Ms Vukic to turn her back and face the other way, "turn your back completely please, thank you". 85 Without any enquiry of Ms Vukic as to whether she had been giving "coded signals" to the witness and if so a direction from her to desist, and without any statement of any observation that her Honour had made about Ms Vukic's activities, she took it upon herself to place Ms Vukic in an almost impossible position of having to face away from the witness and, presumably, the Bar table, and, therefore, her papers. This was repeated at T p 132: "Her Honour: And again Ms Vukic, so that there can be no argument about who is clueing what if you would turn your back please". 86 We find this conduct extraordinary. Her Honour made no attempt to ascertain if Ms Vukic was acting in the way alleged and sought no explanation from her. The allegations were serious and would have justified her Honour, had she found them to be established, to revoke the leave for Ms Vukic to appear. 87 The respondents sought to lead some evidence that Ms Vukic had so acted. For the reasons given, this is a matter her Honour should have investigated at the trial. 88 At T p 152, Mr Damjanovic was asked whether he had signed various documents called "Ordinary Statements of Claim". Ms Vukic said she objected: "Excuse me I object to this kind of questioning". 89 Her Honour made no attempt to ascertain what the objection was, but stated: "Ms Vukic, if he does not know that he signed a statement of claim, we have a problem. Mr Cohen, however you may need to put that question differently. He has signed a number that are not ordinary Statements of Claim and you might put one in front of him to illustrate the point". 90 There was then a further disputatious harangue in which Mr Cohen, for some reason which does not appear clear on the face of the transcript, required production of documents, and that the leave granted to Ms Vukic be revoked. Ms Vukic said something which was "(not transcribable)", and her Honour told Ms Vukic to be quiet, and to produce the documents. After a deal of further discussion, at T p 158, her Honour said: "Mr Damjanovic, please translate this Mr Interpreter. Be under no mistake. It is stupid to proceed in claims such as this without a lawyer". 91 This was another example of the way in which her Honour was making clear the view she took of Ms Vukic's appearing, notwithstanding the leave she had been granted. 92 At p 153, after Mr Cohen had sought "immediate judgment by direction", which her Honour declined to grant, her Honour said: "Mr Cohen, I will not do that now but having regard to that answer, it will be my direction at the conclusion of this that a transcript of these proceedings be made available to the New South Wales Police Force". This was a further threatening remark. It may well be that it is appropriate for a Judge to refer papers, in appropriate cases, and after considered findings have been made, to appropriate authorities. But such suggestions, in the running of the trial, are, generally, inappropriate. 93 It appeared that Ms Vukic was a psychologist and, at T p 159, her Honour said: "Q. Mr Damjanovic, if a lawyer chose to act in circumstances of this type of conflict of interest, that lawyer would be struck off if not imprisoned. A. Yes he should be. Q. I do not know whether the same is true of a psychologist. It may be that the appropriate course is to recommend that the Attorney General to whom I am referring the papers consider referring the papers to one, New South Wales Police Service, two, regulatory bodies having control over psychologists. I cannot say more bluntly than your present course is stupid and dangerous?" 94 Once again, her Honour was, at least impliedly, giving the strong impression that Ms Vukic was not dealing properly with the matter; that she was of the view that there was some conflict of interest, which was not identified; and that if a lawyer was found to be in such a situation he or she may be struck off or imprisoned. We doubt the possibility of the last mentioned possible consequence and Mr Cohen was not able to justify it, save to say that in certain circumstances, which were never sought to be established in this case notwithstanding their relevance to Ms Vukic's right to appear, that result may follow. In our opinion, the proper inference is that it was added as a further threat to Ms Vukic. She continued by stating that the papers would be referred to regulatory bodies. All of this, in our opinion, might have been quite contrary to the appearance to the reasonable bystander of a Judge fairly and impartially hearing proceedings. Far from that, she was continuing to place pressure on Ms Vukic. Also, in our opinion, of significance is the fact that her Honour was offering Ms Vukic no opportunity to explain whatever it was that was troubling her Honour. Subsequently, at T p 162, Ms Vukic sought to make an explanation, and was met with the response from her Honour that, "when you give evidence, you give evidence on oath". That is generally, but not invariably, so. However, this explanation was one Ms Vukic was entitled to make. The simple fact her Honour made very clear was that she was disinterested in any explanation for or on behalf of Mr Damjanovic or Ms Vukic. 95 At T p 163, Mr Cohen raised whether Mr Damjanovic was competent to attend to his own affairs. This led to further discussion, and an initial requirement by her Honour that a son, with whom he lived, be available on the following day to answer the question as to whether he was. Subsequently, her Honour revoked that direction. However, from a reading of the transcript, it is clear that the focus of the proceedings was moving from the questions in issue to matters concerning Ms Vukic and Mr Damjanovic and, more particularly, to the competence of Mr Damjanovic. 96 The matter resumed at 9 am on 11 August 2000 with the following discussion between her Honour and Ms Vukic: "Her Honour: Could I have for the record please Ms Vukic, the name of the interpreter present in assisting your client in accordance with my direction? Vukic: There is no interpreter, your Honour. We couldn't get one and I was … Her Honour: For the record please, in that case, if you chose to continue, you chose to continue at your own risk. That is your choice. You do so, despite having been directed to have an interpreter. Are there any other procedural matters?" (T p 255 ) 97 This was but one of many instances to which we have referred, where her Honour precluded Ms Vukic from giving an explanation. It is clear from the, "…", that her Honour interrupted Ms Vukic at a time when, the reasonable inference is, she was trying to explain why an interpreter was not present. Her Honour not only precluded Ms Vukic saying whatever she wished to say, but made the totally unwarranted assumption that Mr Damjanovic was proceeding at his own risk without an interpreter in circumstances where he could have obtained one or, perhaps, applied for an adjournment to obtain one. She was also suggesting, in the clearest terms, that Ms Vukic and, perhaps, Mr Damjanovic, were in breach of her directions. In our opinion, it is not permissible for a Judge to draw inferences, particularly where she has allowed a non-qualified person to appear on behalf of another, without, at the very least, paying that person the common courtesy of allowing her to conclude a sentence in circumstances where she was, we are prepared to infer, seeking to give an explanation for the absence of the interpreter. 98 In itself, one may not be particularly perturbed by this point. However, when one takes it with the totality of the transcript, it merely confirms the threatening and harassing way in which, as we read the transcript, her Honour was approaching Ms Vukic. 99 At T p 308, her Honour said that she believed she "can instruct the police to bring prosecutions none-the-less". She asked Mr Cohen if she could, to which he replied in the affirmative. Her Honour's statement, on the last hearing day, was a further example of her threatening attitude. Mr Cohen was unable to provide any basis on which her Honour could so act, notwithstanding his agreement with her suggestion. Evidence In The Forgery Cases 100 The issue in the forgery cases was, undoubtedly, whether the signatures were those of Mr Damjanovic. He carried the onus of proving they were not. Her Honour determined, apparently at a very early stage in the proceedings, that that issue was to be decided solely on the evidence as to whether or not the signatures were genuine. That conclusion was reached, notwithstanding the evidence that it was a fairly simple signature, and notwithstanding that one of the defendants may have had a motive to forge it. But this attitude led her Honour to take the view that she would not permit Ms Vukic to ask questions aimed at establishing any motive in those, who gave evidence contrary to Mr Damjanovic, to give incorrect or untrue evidence. Mr Cohen conceded that neither the pleadings nor the particulars precluded Ms Vukic pursuing issues of motive. However, before moving to that, we would refer to some statements at T p 80: "Her Honour: The only question before me is that question that has been abstracted from the overall resolution of the case, that being the plaintiff 's allegation that there is a forgery on certain documents. Vukic: Yes your Honour. His Honour (sic): And who sold what, would seem to me to be a complete irrelevancy to that question. If there is a reason why it becomes relevant I will hear you, but you can assume at this stage that the relevance completely escapes me, which may go to a motive, but motive doesn't establish fact . The question before me is, is it a forgery or not, did someone have a motive to forge? Vukic: That is correct your Worship". (Our emphasis) 101 Motive is a matter of fact. If it is proved it may assist in the resolution of the ultimate question. Her Honour's statement to Ms Vukic was wrong in law, and, notwithstanding Mr Cohen's submission that her Honour allowed Ms Vukic to pursue questions of motive, which we do not accept, it is clear that in so far as she may have, she had closed her mind to the potential relevance of such evidence. 102 Her Honour's attitude towards the issue was repeated at T p 96, in the evidence of Mr Westwood, an expert. He was being cross-examined by Ms Vukic, and he conceded that Mr Damjanovic's signature was, in his opinion, simplistic and easy to simulate. She continued: "Q. That's fine, is there any particular feature of the signature that make it easy for someone to simulate the whole signature or features of the signature? A. Well the signature as I say is simplistic. It doesn't have a great deal of complexity. It is in the main, it tends to be slowly written. Her Honour: Ms Vukic, shall we assume if it is easy to forge, I really don't care why it is easy to forge , the only conclusion that is relevant to me is it is easy to forge. Vukic: Yes your Honour, thank you. Her Honour: Q. And I think it is your opinion that it is? A. Yes, it would be easy to reduce one off, but I am saying I would have some difficulty in accepting a combination of forged signatures all written on presumably on the one occasion, given the nature of the counterparts exhibiting a range of variation, because it is the range of variation which leads me to the view that it is likely to be a genuine signature". (Our emphasis) 103 A moment's consideration of the case of alleged forging would have led a Judge to the view that a person, with a motive to forge, would have had little difficulty in doing so. However, nothing had fallen from her Honour to show that this may be a possibility. 104 Mr Damjanovic gave evidence, and at one stage, T p 121, her Honour said to him, that the question was simple, and susceptible of being answered either "yes" or "no". At T p 122, Mr Cohen put to Mr Damjanovic that the whole litigation was nothing but a contrivance for him to take his own personal revenge on Mr Spehar and Mr Zobec. Thus, motive was very much put in issue by Mr Cohen. 105 At T p 126, when Mr Damjanovic gave an answer which was perceived not to be responsive, her Honour said: "Q. Mr Damjanovic, answer the questions, your job is to answer the questions and if you try to avoid answering the questions again I will simply assume you are a liar. If you know the answer say it". 106 This, in our opinion, was an extremely serious assertion for her Honour to make, particularly at that point of the hearing. The finding that a person is a liar, namely one who is deliberately and knowingly being untruthful, can only be based on evidence. Assumptions, or perhaps more correctly inferences, may be drawn from proper evidence, but it would be necessary to establish that there was an attempt to try to avoid answering questions in circumstances where the reasonable inference was not consistent with that being the appropriate explanation. 107 At T p 171, Mr Cohen's cross-examination returned to questions about the purpose of the proceedings being as vengeance against Mr Zobec, Mr Meads, and Mr Rosier and he said: "… and what you have done I put it to you Mr Damjanovic is concoct an evil plan to put pressure on people without any rhyme or reason without any legal basis, isn't that the case? A. What I put pressure on Ivan Spehar, I mean on his daughter what? Q. And I put it to you Mr Damjanovic that you know that not one of the allegations in any of the litigation in this Court has any basis in fact, don't you? A. He's mad, put the psychiatrist on him". 108 At that point, the cross-examination finished, and her Honour advised Ms Vukic of her right to re-examine, which she said was confined: "… exclusively to clarification, it is not to open new topics, it is not to roam at large. You will be sat down if you ask any question that does that". 109 Ms Vukic acknowledged that, and her Honour continued: "You will identify before you ask the question what it is you want clarified, that way we will be able to decide whether it should be put. I make it quite clear if you do not like the answer you cannot get it corrected in clarification". 110 In our opinion, these statements neither set forth the proper limits of re-examination nor correctly state the legal position. It is, of course, correct to say that re-examination may seek clarification, but, in doing so, it may also lead to other evidence being led, which was not allowed to be led in cross-examination, mostly because of the requirement that a "yes" or "no" answer was insisted upon. Frequently, a witness will indicate that he or she wishes to add to that answer. The cross-examiner may refuse, quite properly, to allow that to occur, but, if the cross-examiner so acts, it is at his or her peril that in re-examination any qualification may be put upon the answer, which he or she precluded, and in circumstances where no further cross-examination may take place. However, contrary to what her Honour said, the basic rule for re-examination is that matters arising out of cross-examination may be explored. Finally, the task of objecting to questions is, essentially, in the hands of the other side. Quite often no objection is taken to otherwise objectionable questions on the basis that the answers may well assist the other side. Mr Cohen did not seek to submit that her Honour had advised Ms Vukic correctly of Mr Damjanovic's rights in this regard. 111 But a substantial point which, in our opinion, pervaded much of the hearing, was the apparently, and we say apparently, because one can only judge from the words spoken, threatening attitude taken by her Honour to Ms Vukic who, after all, her Honour had granted leave to appear. Ms Vukic, so far as we can see to this point, had done nothing at all to earn her Honour's ire. Rather, she had been polite and, so far as the transcript discloses, had complied with all directions given by her Honour. This was in the face of provocative, sarcastic and unnecessarily critical remarks, which fell from her Honour. 112 In re-examination, the situation became worse. At T p 173, the following transpired: "Vukic: Q. Mr Damjanovic did you ever execute a Deed of Charge over assets of Ivan Butcheries? Cohen: I object. Objection. Her Honour: I'll permit it, a yes/no answer and that's the end of it. Vukic: The evidence will show your Honour … Her Honour: Be quiet, the evidence will speak for itself. Your question is?" 113 We pause to point out that Ms Vukic was seeking to do what counsel do on a regular basis, namely to explain the basis on which the evidence was sought to be called. Indeed, her Honour had said only moments before that Ms Vukic was to identify matters the subject of re-examination. For her Honour to stop Ms Vukic, without giving her the opportunity normally afforded to those permitted to represent a party, to explain what she wanted to explain in circumstances where her conduct seemed eminently reasonable, and then to say, having indicated that she would only accept a "yes" or "no" answer, that the evidence would speak for itself, seems quite ludicrous. Her Honour was denying Ms Vukic and, accordingly, Mr Damjanovic, any semblance of procedural fairness in acting in this way. 114 A question was then asked by Ms Vukic as to where she lived. Objection was taken on the ground of relevance, and her Honour asked what the ambiguity was that needed to be clarified. The question was then amended to ask who was the owner of the house, and her Honour reminded Ms Vukic that Mr Damjanovic had said that he owned the house. Ms Vukic replied that that was not the truth, to which her Honour said: "I don't care". 115 Subsequently, at T p 175, after a number of questions asked, inter alios by her Honour, Mr Damjanovic said that Ms Vukic lived in her father's house, whereupon, at T pp 175-176, the following transpired: "Her Honour: Thank you. So the answer you gave earlier was a lie, is that correct? A. What … Vukic: I … Her Honour: Be quiet Ms Vukic. Witness: It's … Her Honour: Q. The answer you gave earlier is a lie is that so? A. What say (not transcribable) yes I am lie, course I am lie. That's on your opinion. Q. Unfortunately for you my opinion does have a tendency to have an effect in this courtroom? (No verbal reply) Her Honour: Ms Vukic, what else needs clarification? Witness: I wish is true. Vukic: There was a … Cohen: Any other lies you want to clarify? Vukic: I don't think they're lies. I think it's a matter of asking the questions. Her Honour: Ms Vukic are there any other matters that need to be clarified?" 116 Mr Cohen frankly conceded that he had said, "Any other lies you want to clarify?" although he sought to excuse it by saying it was in "the heat of battle" that he made this intemperate remark. In our opinion, and Mr Cohen conceded this and apologised, the remark was a totally inappropriate one for Counsel to make. Further, there is no doubt that by this stage Mr Damjanovic was under no misapprehension that her Honour considered he was a liar, and her Honour, far from allaying that impression, confirmed it, the words "Unfortunately for you.." giving rise to the clear implication that her Honour did not believe him. A reasonable bystander could not have been left with any other impression, in our opinion. The Evidence From Witnesses For The Defendants 117 Mr Zobec was the first witness called. He was examined at length in chief by Mr Cohen. His evidence was interrupted by the determination of the proceedings against Ms Ivancic. Cross-examination commenced at T p 227 and, so far as one can see, proceeded in a reasonably orderly manner. 118 In the course of cross-examining Mr Zobec, Ms Vukic was exploring certain family relations and, at T p 242 on 10 August 2000, after her Honour had given her decision in the Ivancic matter, the following transpired: Her Honour: Ms Vukic get to the point. Even if you establish that she is his daughter and that they all sat around, held hands and decided to defraud your client, you will do not one wit in establishing the issue which is before me and that issue is was his signature affixed to the Deed or not? Vukic: Yes, your Honour. Her Honour: That is the only thing that I am concerned with. Vukic: Yes, I am only going by my notes what he was … Her Honour: I don't care what he did. If he went on in irrelevancy that was irrelevant too. I have to decide is this signature forged or not forged. Vukic: Thank you your Honour". 119 Once again, her Honour made clear that the question of motive was not one into which she would enter. However, her statement that, even if Ms Vukic had established the matters to which her Honour referred, it would not assist in the resolution of the case, merely re-emphasised her Honour's inability to grasp the issue before her, and the factual matters which may, if she had allowed the case to be presented properly, have been relevant. 120 At T p 243, Ms Vukic was cross-examining and the following transpired: "Her Honour: We will leave this to one side. What is the point of questioning. The issue before me is solely was the document forged or not. The only relevant evidence from this witness is he says he saw Mr Damjanovic sign it. That is the only thing that interests me from this witness. He says that he sat there and he saw it happen. It would be of some relevance if you say it did not, but you put a question to him about that. Vukic: I'm leading up to it because … Her Honour: You had better start moving to it pretty smartly or I'll sit you down. Vukic: Your Honour. Q. You said they were created for profit of Mr Damjanovic? Cohen: I object. Her Honour: Ms Vukic, I have given you a direction. Get to the point or sit down. Vukic: Q. … (not transcribable) … Pty Ltd you spoke about that company didn't you? Her Honour: Ms Vukic. Witness: Yes I did. Her Honour: You really are trying my patience. I suggest you ask a question which has some vague bearing on the point before me. The point before me is simple. One, is there a Deed of Assignment. That is obviously so. Two, was it signed by your client? That is the issue. Vukic: Well your Honour … Her Honour: Moving on. Vukic: … under the impression that I may cross-examine on what his answers were given in the … Her Honour: I don't care what his answers are because it doesn't make a scrap of difference to me. Vukic: Well that's fine. Her Honour: I have only one question before me. Was the signature forged? That is the only question before me". (Our emphasis) 121 Her Honour may have been intending to say that this evidence was irrelevant, but she was making very clear that certain answers by a witness for the defendant did not make any difference so far as she was concerned. Generally evidence is led in chief because it is considered it will help the case of the party calling it. The other party has the right to cross-examine on the evidence. Judicial interference of the type in which her Honour engaged makes the orderly presentation and conduct of a case well nigh impossible. Perhaps, of more significance in this case, was that her Honour was showing a mind closed by her pre-determination of the truth of the witness's evidence. No reasonable bystander could, in our opinion, have interpreted the statement in any other way. 122 At T p 246, after some questions about loans of money, the following appears: "Her Honour: Ms Vukic, that has been put. He has denied it, that is the end of it. Vukic: I remind him … Her Honour: That is the end of it. Witness: It's under oath, yes. Vukic: Q. Yes? A. And true. Cohen: If your Honour pleases it is my contention that Ms Vukic is endeavouring merely to extend this to five o'clock so that Mr Zobec can be kept in cross-examination overnight. Her Honour: Well let it be quite clear Ms Vukic, we have spent now some time in cross-examination without one relevant question being asked. When we reach five o'clock, the clock will close this cross-examination. If you have chosen to spend your hour without asking one single question that is relevant, so be it. You have been told more times than I can recall the only issue which is before me and the only issue which I need to consider. Vukic: I know your Honour. Again I say the same directions could have been to Mr Cohen then. Her Honour: Either deal with it. I do not intend to waste any more time with your insolence. Vukic: I'm sorry I'm not insolent I just - Your Honour: I beg your pardon but I was just under the impression that I could … [This would also appear to have been said by Ms Vukic]. Her Honour: Just deal with the question. I have only one question before me. Let's make it quite clear Ms Vukic. If you establish that his man had every motive in the world to murder, extort and otherwise destroy the interests of your client, his grandfather and his great grandfather, it will do not one thing to deal with the only issue that is before me. Vukic: I understand now ". (Our emphasis ) 123 There are a number of matters in this passage which caused us deep concern. First, a denial by a witness is not the end of the matter so far as the cross-examiner is concerned. The cross-examiner is entitled to explore that denial. Her Honour's statement that the denial was, "the end of it", was incorrect unless, of course, her Honour had already decided that she would accept the evidence of Mr Zobec, irrespective of any further cross-examination. Mr Cohen submitted that a "Yes" or "No" answer by a witness does preclude further cross-examination. We do not agree. A cross-examiner is not so restricted. 124 Second, Mr Cohen's observation as to Ms Vukic's intentions was not supported by any evidence at all. Her Honour persisted in saying that the only issue was whether or not the Deed of Assignment had been signed by Mr Damjanovic. That was the ultimate issue, however there was evidence, arguably, which may have impacted upon that. Indeed, Mr Cohen had cross-examined to suggest to Mr Damjanovic that he was seeking revenge, and other such matters, which went to the question of motive. Once again her Honour's remarks revealed a complete misunderstanding of factual matters, which could have been relevant to the determination of the issue of forgery. Whether, ultimately, they would have been, is not established. The simple fact is that her Honour was preventing any ventilation of them by Ms Vukic, notwithstanding that she had allowed Mr Cohen to cross-examine in a similar vein. 125 There seems to be no doubt that this is what Ms Vukic was referring to in relation to directions to Mr Cohen. In these circumstances, we can see no justification for the suggestion by her Honour, that Ms Vukic was being insolent, or wasting the Court's time. Indeed, in our opinion, Ms Vukic was directing her Honour to matters relevant to the fact in issue. Her Honour seemed incapable of understanding this, and returned to what she perceived to be the question. She went so far as to say that the establishment of motive to destroy the interests of Mr Damjanovic, and members of his family, would not have any influence upon her in deciding the issue. We find this an extraordinary observation. 126 At T p 253, Ms Vukic was seeking to cross-examine Mr Rosier, a solicitor, and to ascertain whether he acted for Mr Damjanovic. Her Honour told Ms Vukic that, "who one's client is as a matter of law is a very clear and simple proposition". She suggested: "So the question to this witness and is alone, 'did you act for Mr Damjanovic?', and the answer please. A. No, your Honour I didn't ever act for Mr Damjanovic. Her Honour: That is an end of the matter". 127 Once again, assuming for the moment that it could be said that it is a matter of law as to who a solicitor's client is, rather than a question of mixed fact and law, her Honour was taking the view that once a matter was denied, that terminated cross-examination. This, if we may say so with respect, is totally incorrect. A cross-examiner is entitled to probe a denial. 128 The next witness called was another solicitor, Mr Maley. He acknowledged, at T p 257, that Mr Damjanovic had been a client of his from 1975 until about 1997 or 1998, and that, prior to that, he had been a client of the practice Mr Maley had taken over. 129 At the commencement of his examination-in-chief, he was shown two folders of documents by Mr Cohen, and they were then sought to be tendered. At T p 259, the following transpired when Ms Vukic was asked whether she had any objection: "Vukic: No your Honour, just wanted to point out that whilst they are tendered, Mr Damjanovic has no copy. Her Honour: That is a matter that is unfortunate. It is not my job to provide you with copies of documents. Vukic: Your Honour, we were asked to produce originals and copies. Her Honour: That is the end of it. I am not your clerk. They are tendered and that is it". 130 This represented, in our view, an unnecessarily high-handed approach by her Honour. On a number of previous occasions, copies of documents had been made available. It seems to us that as Mr Cohen intended to tender the bundles, his instructing solicitors should have made a copy available for Ms Vukic. Ms Vukic, contrary to what her Honour said, was not requesting her Honour to provide copies, although she perhaps had in mind that on earlier occasions her Honour had directed her associate to have copies of documents made. Further, Ms Vukic was pointing out that she had been asked to produce originals and copies. Her Honour's ruling, in the peremptory and abrupt manner in which it was given, was, in our opinion, quite unjustified, and she should, at the very least, have granted leave to Mr Cohen to uplift the exhibit to have copies made for Ms Vukic, or offered Ms Vukic an opportunity to do so. 131 Her Honour then dealt with the question of legal professional privilege, and was advised that Mr Damjanovic was making no claim for such privilege. Mr Maley gave detailed evidence about the advice he gave Mr Damjanovic in relation to the Deed of Assignment, and the circumstances in which it came to be signed. 132 The earlier attitude of her Honour towards the copying of the documents was, in our view, made worse at T p 265. What transpired was: "Vukic: If your Honour pleases, the evidence that was just produced … Your Honour: What's the next question, please? Vukic: The question is may Mr Damjanovic seek leave to make photocopies in the court of exhibits … Your Honour: That's not a matter to be dealt with in cross-examination. We are now in cross-examination. Vukic: Yes". 133 We regard this as similarly high-handed conduct by her Honour to what, on its face, was a totally reasonable request by Ms Vukic to have photostat copies of the exhibit, which photostat copies should have been provided to her by Mr Cohen's instructing solicitor. There was no suggestion to her Honour that that request dealt in any way with the cross-examination, but rather with the ability to have the documents, which must have been regarded as relevant by Mr Cohen to his case in some way as he tendered them, to enable a proper cross-examination to be considered and conducted. 134 At the commencement of the cross-examination, her Honour asked whether it was being suggested that Mr Maley was fantasising, "because he has been told what the evidence is. Is that the proposition you're putting?", to which Ms Vukic replied, "yes". Her Honour then embarked on a form of questioning, which she adopted subsequently in relation to some of the witnesses called by the defendants, and which amounted, in our opinion, to no more than asking, put colloquially, "Dorothy Dix" questions, although at this point doing so was even worse because Ms Vukic had not been allowed to even start to develop a cross-examination. At T pp 265-266, the following appears: "Her Honour: Q. Mr Maley, is this your evidence or is it a fabrication? A. Absolutely not. Absolutely not. Q. Is your evidence derived from information related to you from events having occurred in this courtroom? A. Absolutely not". 135 The questions could hardly be said to be those which a cross-examiner would have asked if seeking to elicit the information. 136 Her Honour, as on previous occasions, seems to have been of the view that because a witness made a denial in cross-examination, that could not be challenged: T p 266, lines 50 to 55. 137 At T p 267, Ms Vukic commenced to cross-examine about the loan allegedly made by Mr Damjanovic to Mr and Mrs Spehar, and sought to show Mr Maley a document. Her Honour said: "For the record Ms Vukic, be under no mistake, it is an abuse of process if you seek in this cross-examination to traverse into the proceedings which are not before me. Please confine yourself". 138 We find this a totally extraordinary observation. It is quite wrong, as a matter of law, to assert generally that questions asked in cross-examination about other proceedings constitute an abuse of process and Mr Cohen did not seek to uphold or justify her Honour's statement. What had transpired in such proceedings may have been very relevant to the issue before her Honour, if her Honour had had the patience to allow the cross-examination to be developed. There is no proper basis upon which, at least on this issue, Ms Vukic could be directed to "confine" herself. She, as the cross-examiner, was permitted to range over material which went either to the issue or to credit with proper material. She may, for all her Honour knew, have had evidence from other proceedings, which would have seriously and relevantly damaged Mr Maley. We are not suggesting that there was such evidence. What we are seeking to point out is that the way in which her Honour put the direction to Ms Vukic was totally wrong as a matter of law and prevented Ms Vukic following a course, which may have been fruitful. Her Honour's premature intervention, based on an incorrect appreciation of the law, means that it is not known what evidence was available, or what impact it may have had. 139 When Ms Vukic sought to explore wider matters with Mr Maley, notwithstanding that he had been Mr Damjanovic's solicitor for many years, her Honour returned to her oft repeated statement that the question before her was whether Mr Damjanovic's signature was, or was not, a forgery: T p 269, line 5. 140 By this stage, the situation, as evidenced by the transcript, was bordering, sadly, on the farcical. It did not bear any resemblance to the orderly and proper conduct of a civil trial. Ms Vukic sought to ask Mr Maley about a Deed of Charge. Her Honour asked whether the proposition was that Mr Damjanovic had no entitlement by virtue of that document, a question she pressed, and Ms Vukic said that she did not know. She then said she was not advancing that proposition and, "I am proposing that Mr …". 141 Normal judicial courtesy and patience would require the Judge to hear what it was that Ms Vukic was proposing. It apparently did not occur to her Honour that Ms Vukic may put forward something which would advance Mr Damjanovic's case, or help her to understand the proceedings better. Her Honour simply cut Ms Vukic off and said: "Her Honour: I don't care whether he signed a particular document or not. That is one of the beauties of the system known as counterpart exchange. One signs one, one signs … (not transcribable) … they get swapped. The proposition you are putting is that there was no entitlement on the part of Mr Damjanovic to any beneficial rights for force of Deed of Charge. Is that the proposition you are putting? Vukic: No, your Honour. Her Honour: Do you assert that your client had an entitlement for force of any such Deed of Charge? Vukic: I am proposing … Her Honour: Do you assert that your client had an entitlement per force of any Deed of Charge? Yes or no? Vukic: No, no. Her Honour: You say that your client had no and never had any entitlement for force of any Deed of Charge, is that the case? Yes or no? Vukic: Your Honour - … Cohen: Just answer the question. Your Honour: I don't know, your Honour. Vukic: What my, what I was … Her Honour: You are relying on that in some proceedings, I suggest you work it out pretty smartly". 142 First, Ms Vukic had said that she was not putting the proposition for which her Honour contended. On two occasions, she was attempting to say what she was proposing to do and, when she denied that she was asserting that Mr Damjanovic had an entitlement, which it seems to us she was trying to say, and sought to give a further explanation, she was simply cut off by her Honour. We think the reference to Mr Cohen should be a reference to her Honour, and the reference to her Honour should be a reference to Ms Vukic. 143 The dreadful situation had arisen where her Honour would not listen to Ms Vukic. She would not allow her to answer questions, or to give explanations, or to make submissions. Whenever Ms Vukic, in the passages to which we have been referring, sought to give any explanation, she was interrupted in peremptory and rude terms. 144 In the light of the way in which Ms Vukic was being treated by her Honour, words we do not use lightly, the following then took place: T p 270: "Cohen: Your Honour, one more time. I apply for this cross-examination to be terminated. This lady has evidently no idea what she is doing. This is a waste of the Court's time, its resources, its valuable hearing time that's being robbed from your Honour. Her Honour: Mr Cohen I think the more relevant point is that Ms Vukic … unutterable damage to her client's interests. That is a point that I have made on numerous occasions. Mr Damjanovic is present. He hears me say it for about the fifteenth time. I will not protect him from his own folly when he deliberately chooses to embark upon and proceed upon that path when I tell him repeatedly that the course down which he proceeds is stupid and dangerous. Again, Mr Damjanovic has heard that and looks at me with complete disdain. That is his entitlement. He is entitled to make that choice". 145 In our opinion, perhaps stimulated by Mr Cohen's remarks, her Honour attacked Ms Vukic in circumstances where, first, she had persistently refused to allow Ms Vukic to make any explanation or to pursue legitimate matters in cross-examination and, second, her statement as to the path being followed being stupid and dangerous would have signalled to any reasonable bystander a view she had already formed about the result of the proceedings. 146 There was then a further angry exchange, at least so far as her Honour was concerned, between herself and Ms Vukic at T pp 270-271 and, at the top of T p 272, her Honour said: "I cannot again state the folly of the position". 147 At T p 276, lines 6 to 31, her Honour, without any apparent justification or invitation, interrupted the cross-examination by Ms Vukic to have a conversation with Mr Cohen. 148 At T p 278-279, lines 41 to 50, her Honour embarked on a series of questions, which were, as we have suggested in respect of earlier questions, "Dorothy Dix" questions. The questions could have left no reasonable bystander in any doubt that her Honour was eliciting from Mr Maley answers favourable to his evidence and contrary to that of Mr Damjanovic. Many of the questions were grossly leading and would not have been permitted in re-examination. They were certainly not questions aimed at indicating any contradiction of Mr Maley's evidence. 149 At T p 291, Ms Vukic sought to tender four boxes of documents. Her Honour said that if she wished to tender a document that should be done, and that she did not intend to spend "the next three weeks doing the job that you are being paid for, even if you are doing it singularly badly". Once again, there was a clear indictment on Ms Vukic's performance. 150 Ms Vukic responded that if the matter was going to the Police Department, as her Honour had proposed, it was her belief that those boxes should remain in the "property" of the Court. 151 At T p307, Ms Vukic said that she wished to tender four boxes of subpoenaed material, and the following transpired: "Her Honour: Ms Vukic if you wish to put a particular piece of evidence to me, put it. You might assume, if you tender the boxes, I will look at the boxes and say gee that is pretty, they are all brown. I do not intend to go through the documents and do your job for you. If you say that that is not correct, the way you prove that is by pointing to two or three simple facts and putting them before me. It is not by putting before me four large boxes and expecting me to spend the next six months wasting my time, doing an accounting exercise to prove the stupidity of the proposition put . Vucic: No, your Honour, but I do submit your Honour is that my expectations and certainly Mr Damjanovic's expectations are that the New South Wales Police will match the transcript of these proceedings with the contents of these boxes. Cohen: It's intolerable if your Honour pleases. Her Honour: Stop it , I will permit that proposition to be put, it is a proposition that is put on the record, I understand that it is said very directly from the Bar Table. The object of the exercise before me is to place in evidence and on record, things that are intended to be put before the New South Wales Police. It is not for any purposes to do with any matter to do with litigation or issues between the parties. That and that statement alone, if it be true, will be the basis of a finding, win or lose, that proceedings are an abuse of Court. Cohen: Your Honour, again I apply to your Honour for the termination of this – in this case, this cross-examination as being utterly futile leading to no forensic end and a waste of your Honour's time. Her Honour: Mr Cohen, it is thus and I will permit this representative and her client as much rope as they choose to hang themselves with . Cohen: If your Honour pleases, it is my submission that they are already swinging at the end of that rope and that the time has come for this farce to end. Her Honour: Draw it to a close ". (Our emphasis) 152 This passage, which at best, was highly unfortunate, showed the difficulties which had been intruded into the proceedings by her Honour's earlier statement that the matter would be referred to the Police. However, her Honour compounded all the problems that she had allowed to arise to that point, by her statement that she would allow Ms Vukic and Mr Damjanovic as much rope as they chose to hang themselves. In the particular circumstances this was a disgraceful and totally unjudicial statement. It showed that her Honour was clearly of the view that not only was the case being presented in an ineffective way, but that also it was leading to an inevitable result. We would add that Mr Cohen's remark, even though made as a submission, was quite unnecessary. 153 At T pp 309-310, her Honour engaged in another series of "Dorothy Dix" questions. 154 In reply, at T p 312, Mr Damjanovic was called and, subsequently, Ms Vukic gave evidence. She said she wished to give evidence about two folders of documents given to her by Mr Damjanovic in around January 1998: T p 315. It is important to note that Mr Cohen did not cross-examine Ms Vukic on the allegation, earlier made, that her representing Mr Damjanovic was with a wrongful ulterior motive which created a conflict of interest and led to the exchanges to which we have referred. Mr Cohen's only explanation for the failure to put these very serious allegations, when he had the opportunity to cross-examine, was that his mind was directed to other topics. This suggests that the allegation either should not have been made in the first place or, if it was not to be pressed, should have been withdrawn promptly. 155 The proceedings concluded thus: "Vukic: Your Honour, before you leave, you did say that we need to make an application for a transcript. Because Mr Damjanovic intends to actually go on from today … Her Honour: I wish him the best of luck. Vukic: … could we apply for a transcript. Do we do it here? Her Honour: Ms Vukic, I have made a direction that a transcript be made available. I wish Mr Damjanovic the best of luck whichever rounds he goes in and I think it would be extremely unfair if the High Court was deprived of the privilege that has been granted me. Vukic: I didn't say the High Court your Honour". 156 Once again, it seems to us that this conduct, although perhaps not affecting the ultimate result, fell far short of what one would expect from a judicial officer. It dripped of sarcasm. Her Honour's conduct, in our opinion, not only might have, but we are satisfied would have, given rise to an apprehension of bias in a reasonable bystander. In our view, the reasonable bystander could not have formed any other view. Her Honour made a number of statements during the hearing, to which we have referred, which stated the law wrongly. A reading of the transcript indicates to us a failure by her Honour to deport herself in the way one would expect of a judicial officer. Finally, although contained in the first point, her Honour should not have continued to hear the forgery matters after deciding the Ivancic one. It is interesting to observe that after she gave her final judgment, her Honour asked to be reminded, if any of the matters came before her again, that she should disqualify herself. It occurred to her then. It should have occurred to her earlier. The Position Reached Thus Far 157 It is convenient to set out, in somewhat summary form, the conclusions reached thus far. First, as we have announced, we consider that this Court should allow the appeals and set aside her Honour's judgments. In our opinion, those orders are justified on the ground of apprehended bias flowing simply from her decision in the Ivancic case. 158 Secondly, we consider that those orders are also justified by the following matters: (a) Her Honour's ever increasing criticism of Ms Vukic's appearance for Mr Damjanovic concluding with her reference to providing sufficient rope to hang themselves, all of which was accompanied by the several statements to which we have referred, which can properly be described as threatening; (b) Her Honour's constant refusal to allow Ms Vukic to explore matters of motive, notwithstanding that she allowed Mr Cohen to do so, and notwithstanding that, as a matter of law, they were relevant to the issue and to credit; (c) Her Honour's abruptness with Ms Vukic and her rudeness to her and Mr Damjanovic indicated by the words she used, including sarcastic comments; her frequent, almost instantaneous, interruptions of Ms Vukic; her refusal to allow Ms Vukic to elaborate on any propositions; and her requirement that Ms Vukic not look in the direction of Mr Damjanovic on two occasions; (d) Her Honour's wrong statements as to the correct legal position to Ms Vukic including the nature of the issue to be determined, the way in which it could be ventilated, the extent to which re-examination may go, the limits on cross-examination once there was a denial, and reference to other proceedings constituting an abuse of process; (e) Her Honour's "Dorothy Dix" questions to the defendants' witness; and (f) Her Honour's reference to "lies" and "liar" in the context of Mr Damjanovic and his evidence. 159 At times, as we have said in the course of our reasons, her Honour's impatience and rudeness exceeded what, in our opinion, is appropriate judicial conduct. As Kirby P, Clarke JA and Hope AJA said in Toner v Attorney General for New South Wales (Court of Appeal, 19 November 1991, unreported): "Allowing for the wisdom that can accompany hindsight, it is clear that circumstances such as the foregoing should have been met by Lloyd-Jones DCJ. First, his Honour should have attended more closely to what it was the appellant was striving to say to him. Whilst there are duties of courtesy imposed on legal representatives as a corollary of the privileges they enjoy as advocates, there is a correlative duty in judicial officers to listen patiently and carefully and to retain self control at all times". Whilst these words were spoken in the context of a contempt case, they seem to us to have general application. Her Honour failed all these tests. 160 The duties that judicial officers listen patiently and carefully and retain self control at all times have various purposes. First, a patient and careful listening to the evidence will enable the judicial officer to understand, as well as possible, the cases being made by the parties and the evidence relevant to those cases. On that basis the judicial officer is in a far better position to make a proper evaluation of the evidence in the light of the issues raised and the submissions made. In these circumstances, the judicial officer should be in a far better position to decide the case properly, as opposed to one who does not follow those courses. 161 Secondly, the observance of such duties upholds the standing of the Court in the community as providing careful and impartial adjudication of disputes between the litigants. Obviously, in the vast majority of cases, one party will lose. There is much anecdotal evidence to support the view that a losing party, whilst usually disappointed, will accept that situation if that party believes that his or her case has been considered properly and thoroughly – in other words if the losing party is able to say that the Court has provided him or her with a "fair go". 162 Thirdly, the observance of these duties does not mean that the Court is obliged to listen to endless repetition or the advancing, beyond a point of reaching a proper understanding, of submissions which are groundless. However, there is a difference between that situation and allowing the orderly development of evidence and submissions. Even if the first position is reached, the Court can bring it to an end by stating that it understands the point sought to be made, assuming that it does, and inviting the party to proceed to the next point. 163 Fourthly, and this is probably the most important consideration, failure to observe the duties leads to an erosion in the public's perception that the Court is administering the law fairly to all parties and, thus, to a lack of confidence in the administration of justice. Confidence in the judicial system plays a very important part in maintaining confidence in the orderly working of society. Conduct by a judicial officer, which may cause that confidence to be diminished, is to be deplored. Judicial officers must have particular regard to the due performance of their functions in situations where a litigant is in person, and does not have English as his or her first language and, as in the present case, has shown a healthy scepticism for the legal system. Such people should not be made to feel that because they are appearing in person, as they are entitled to do, or do not understand the language fully, they are under a disadvantage. Within the rules concerning helping litigants in person, the Court should observe with scrupulous fairness the duties to which we have referred. Further a judicial officer should not, by acting contrary to these basic requirements of patience, courtesy and self restraint, fuel scepticism or suspicion, however wrongly it may be held, of the Court system. 164 Regretfully, when her Honour's conduct is examined in this case, the only conclusion to which one can come, irrespective of the strength or weaknesses of Mr Damjanovic's case, is that he did not have a "fair go" and that anyone privy to the way in which her Honour conducted her Court in this case could hardly come to a view other than that her presiding over this case would have severely eroded public confidence in the proper administration of the judicial system. These conclusions, in themselves, justify the orders we have made so that fair trials may be held. 165 The points sought to be made in these reasons are well illustrated, if we may say so with respect, in the passages gathered by Nicholson J in "Litigants in Person", The Judicial Review, Vol. 5 2001 No. 2. The authors of those passages are highly experienced Judges, whose views are treated with great respect. We shall only refer to one portion in these reasons. In Hunter v Webb (Federal Court – 19/7/86 – unreported), Sheppard J, one of the most highly regarded and experienced Judges in this country, said: "So the path the Court has to tread is not an easy one, and it is not unlikely that misapprehensions and misinterpretations of what this court does or does not do from time to time during the course of a case will occur. That is something that Judges have to put up with, particularly bearing in mind the increasing number of cases which we are now finding coming before the Court in which there are unrepresented parties". 166 The High Court made clear in Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 that there is a difference between the rejection of a person's evidence and a finding of deliberate lying, and that more than a rejection of the evidence must be established before there is the harsher finding. Deane J said that a specific finding that a person has deliberately given false evidence should not ordinarily be made. In the instant case her Honour used the words "lie" and "liar" without any apparent discrimination. Costs 167 In the particular circumstances of this case, we consider that the costs of all the trials should be paid by the respondents. Whilst many of the difficulties were caused by her Honour, various of the allegations which were made by Mr Cohen had, at best, marginal relevance and the matters were not established. These matters were: (a) the allegation that Ms Vukic was having an affair with Mr Damjanovic; (b) the allegation that Ms Vukic was appearing in the matter for some improper ulterior motive; (c) the question by Mr Cohen as to whether there were any more lies to clarify; and (d) the failure by Mr Cohen to assist her Honour on various matters of law to which reference has been made. 168 This Court took a similar approach recently in Merrylands Bowling, Sporting & Recreation Club v P & H Property Services [2001] NSWCA 358 to the question of the costs of the trial. A Final Comment 169 We assume that any authorities to which her Honour has referred the papers in this matter will be furnished with a copy of these reasons. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.