Scheduled one week trial for an ACT case against lawyers blows out to three months stretched over two years … Delays and apprehended bias … Distain and disregard … Going nowhere after eight years … Retrial ordered … Start again … Artemus Jones reports 

In those circumstances it is not surprising that a decision by the Supreme Court of the ACT Court of Appeal went completely unnoticed and unremarked upon.

The decision is Gindy v Capital Lawyers Pty Ltd in which the ACT appellate court set aside a decision of long retired Justice Hilary Penfold on the grounds of apprehended bias.

The Gindy decision also marks a grimly appropriate end to the remarkable judicial career of Justice Penfold – who retired in early 2018 – and whose uncommon judicial achievements Justinian has had the melancholy duty to report over several years. 

Penfold J may be gone, but she has definitely not been forgotten by many ordinary litigants in the ACT – and it is now certain that she will not be forgotten by the unfortunate Ms Gindy.

Gindy’s judicial nightmare commenced in 2015, when she sued her former solicitors for breach of contract and negligence in respect of a number of matters in which they had acted for her.

The trial was originally set down for one week – an estimate that would no doubt have been made in accordance with the court’s case management system.

The actual trial, presided over and “managed” by Justice Penfold, ran for an extraordinary 88 sitting days – stretching over an almost unbelievable period of two years.

Ms Gindy appeared for herself, assisted by a McKenzie friend; the respondent solicitors were represented by counsel.

On July 12, 2018  – the 51st day of the hearing  – Ms Gindy made an application that Penfold J recuse herself on the grounds of bias.  

The application was based upon a plethora of comments, conduct and rulings made by the trial judge – all of which had been adverse to Ms Gindy and her McKenzie friend. 

In fairness to Penfold, it should be remembered that some of her judgments have taken even longer to emerge.

The judgment on liability will stand as testament to – and a metaphor of – Penfold J’s entire judicial career. It runs to a bloated 738 pages – with 3,743 paragraphs and 2,498 footnotes – and it is completely and utterly otiose. 

Her reasons are a Sisyphean magnum opus – and it is a pity that we have been denied the appellate court’s considered opinion of it because of Penfold J’s bias. 

Even sadder is the fact that no one – apart from poor Ms Gindy, who had surely already suffered enough – will probably have any cause to read it.  

Gindy appealed both of Penfold J’s decisions, and last week the Court of Appeal upheld her appeal in respect of bias. It rejected the claim of actual bias and instead accepted that the ground of apprehended bias had been made out. 

It followed that the judgment on liability, because it was wholly contaminated by apprehended bias, could not stand. 

The appeal court, therefore, had no alternative but to remit the Gindy matter for a retrial. Given the extended delay affecting the decisions, this is a truly appalling result for all involved in the matter. 

The leading appeal judgment was written by Natalie Charlesworth J, a judge of the Federal Court, with whom recently appointed Chief Justice Lucy McCallum, who previously sat on the NSW Supreme Court and Court of Appeal, agreed.  Justice Michael Elkaim dissented.

Readers can peruse Charlesworth J’s comprehensive judgment at their leisure. It outlines at considerable length, and in graphic detail, the kind of treatment that, in my opinion, litigants in the ACT have had to silently endure at the hands of Justice Penfold for years.

A few of the findings made by Charlesworth and McCallum warrant highlighting.

Charlesworth held that: 

“… the outward conduct of the trial judge would have been understood by a fair minded lay observer as an indication that the trial judge harboured feelings of intense personal distain for the appellant’s McKenzie friend, and an associated disregard for the appellant herself.” 

Her Honour also held: 

“… the reasons published in Gindy No 1 disclose appealable error in and of themselves … the trial judge failed to apply the … [relevant] … test to the words actually said. Instead the reasons for judgment seek to attribute a different meaning to them by reference to the subjective intention of the judge.” 

More damningly, Charlesworth J found that Penfold J had made: 

“…repeated outward remarks … to the effect that counsel for the respondents knew more than she [the judge] did.” 

Even though Penfold had control of the trial, she blamed the McKenzie friend for the “protraction of the hearing”. 

Chief Justice McCallum found that “there are instances where the primary judge simply appears to have automatically sided with counsel … [for the respondent] … and shown animus towards the appellant and her McKenzie friend”; that Penfold had “twisted submissions in a manner that was quite unfair”; and that she had “approached the allegation of bias with a measure of distain”.   

McCallum did concede that: 

“… the case would have been a difficult one over which to preside at first instance. Both the appellant and her McKenzie friend were at times argumentative or emotional. Each had English as a second language and each was managing various medical issues throughout the trial.  

“The fact that the McKenzie friend was legally trained armed him with the capacity to participate in the proceedings as a lawyer would and yet he was not formally in that role; the line between affording him a free rein forensically and keeping the proceedings in check must at times have been a difficult one to draw. The course of the evidence was also riddled with complexities.” 

However, the CJ added: 

“As the number of hearing days ticked over, the dynamics of the trial deteriorated and the growing disproportion of the resources being expended to the interest at stake appears to have become banal.” 

In the circumstances, the least that ACT government can do is to immediately make a substantial an ex gratia payment to Ms Gindy – not only to compensate her for the grave injustice that she has suffered, but also to enable her to avoid the considerable inconvenience and expense of a retrial.

Artemus Jones 

Gindy v Capital Lawyers Pty Ltd 

Justinian’s selection of previous reports on Justice Penfold … 

Fresh hell/Drowsy syrups (February 3, 2022)
Home the Grange (March 19, 2020)
Penfold puts a cork in it (March 16, 2020)
The torpor twins (January 21, 2020)
A touch of the blues/Transitional proceedings (September 20, 2019)
Torpid town (April 5, 2019)
Penfold’s Reserve Bin (October 12, 2018)
Hospital bulletin/Working retirees (July 27, 2018)
Hits of the blitz (February 28, 2012)
There but for fortune (June 15, 2011)