Tomasevic v Travaglini & Anor [2007] VSC 337 (13 September 2007 )
Last Updated:
IN THE
SUPREME COURT OF
AT
No. 8658 of 2006
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DANNY TRAVAGLINI |
First defendant |
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COUNTY COURT OF |
Second defendant |
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WHERE HELD: |
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DATE OF HEARING: |
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CASE MAY BE CITED AS: |
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CRIMINAL LAW – practice and procedure – self-represented
litigant – application for leave to appeal out of time against decision of
magistrate – judge of County Court of Victoria refused to grant leave - judge’s
duty to ensure fair trial by giving due assistance – nature and scope of duty –
significance of International Covenant on Civil and Political Rights –
significance of human rights of equality before the law and access to justice –
judge failed to perform duty to assist – breach of rules of natural justice –
test for granting leave – “exceptional circumstances” and prosecution not
“materially prejudiced” – judge applied incorrect test of delay “too great” –
jurisdiction not properly exercised – judicial review granted – order refusing
leave quashed and matter remitted for reconsideration – Magistrates’
Court Act 1989, Schedule 6, cl 1(1)-(3).
HUMAN RIGHTS – international law - significance of
international obligations in Australian and Victorian domestic law - International
Covenant on Civil and Political Rights – human rights of equality before
the law and access to justice – relevance to exercise of judicial powers and
discretions – significance and relevance independent and ongoing – not
diminished, only enhanced, by Charter
of Human Rights and Responsibilities
Act 2006 - self-represented litigant - duty of courts and tribunals to
assist – scope and application of duty.
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APPEARANCES: |
Counsel |
Solicitors |
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For the plaintiff |
The plaintiff appeared on his
own behalf |
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For the first defendant |
Mr T Lynch |
Angela Cannon, Solicitor for
Public Prosecutions |
INTRODUCTION
1
2 Mr Tomasevic harboured a strong sense of grievance about
the magistrate’s decision. He contended the finding of guilt had occurred by
reason of poor legal representation. He also contended he had abandoned an
earlier appeal because the same lawyer had incorrectly told him his career as a
teacher would not be affected.
3 The judge did not tell Mr Tomasevic, but the law
governing the leave to proceed application required Mr Tomasevic to establish,
one, that he had failed to appeal within time by reason of exceptional
circumstances and, two, that the informant’s case would not be materially
prejudiced by the delay.
4 Mr Tomasevic did his best in what turned out to be a
short hearing. The judge did not direct his attention – as a self-represented
litigant - to the salient points of law and procedure. Counsel for the
informant barely had to open his mouth. The judge, without mentioning either
exceptional circumstances or the informant’s case, refused the application. He
just said the delay - three years - had been too great.
5 Mr Tomasevic now seeks judicial review of the judge’s
decision. He wants orders quashing the decision and remitting it back to the
County Court for reconsideration.
6 This case both requires and deserves an analysis of the
law with respect to the duty of a judge to ensure a fair trial by giving due
assistance to a self-represented litigant, taking into account the fundamental
human rights of equality before the law and access to justice specified in the
International Covenant on Civil and Political Rights. We must go into some
other matters first, beginning with the decision of the magistrate.
THE DECISION OF THE MAGISTRATE
7 Mr Tomasevic was charged with nine offences:
• three charges of making threats to kill (charges 1, 4 and
7)
• three charges of making threats to inflict serious injury
(charges 2, 5 and 8)
• three charges of using threatening words in a public
place (charges 3, 6 and 9)
8 The charges arose out of incidents alleged to have
occurred at a school where Mr Tomasevic was a teacher. The background
circumstances are rather unclear. From what I can gather, in 1999-2000 Mr
Tomasevic had complained that another member of staff had misappropriated
money. The school management considered Mr Tomasevic was medically unfit to
teach and suspended him from duty or, as he put it, he took “sick leave without
pay”.
9 The incidents allegedly occurred in or near the school
grounds in 2002 – as to charges 1, 2 and 3, on
10 Mr Tomasevic was to be represented at the hearing before
the magistrate by a barrister who was familiar with his case. That barrister
could not attend due to ill-health. No adjournment was sought. Mr Tomasevic was
represented by a legal aid solicitor who took over the case on the day of the
hearing.
11 The contested hearing before the magistrate went for one
day on
12 The prosecutor called the three complainants. Each of them
gave evidence to the magistrate about what Mr Tomasevic said and did on the
three occasions. They were each cross-examined by the solicitor.
13 As to the incident on
14 It is here necessary to make an important digression. I
do not know the magistrate’s reason for refusing to allow Mr Tomasevic to give
the tape recording evidence, and this issue was not argued before me. But if,
as appears to be the case, the reason was that, in breach of the rule in Browne
v Dunn,[1] the recording had not been put to the
prosecution witness, I have reached the clear view it was not correct. This
certainly does not affect the outcome of the application before me. But in view
of the significance of the point, I think I should give my reasons for reaching
that conclusion.
15 As the authorities presently[2] stand, I think the rule in Browne v Dunn
applies in a criminal trial in Victoria, with serious qualifications,[3] to oblige counsel for the defence, at least
in the usual case, to put evidence intended to be given for the defence to the
relevant prosecution witnesses.[4] This is the explanation of the rule recently
given by the Court of Appeal in R v Demiri:
In the context of the cross-examination of a prosecution
witness, the rule of law and practice is necessary to give the witness the
opportunity to deal with such evidence – or such inferences as may be drawn
from the evidence – as the accused proposes to rely upon and which contradict
the testimony of the witness. Such a challenge to the witness’s testimony is
also essential to the jury’s understanding of what facts are truly in issue. It
enables the jury to make an assessment of the credibility of the witness in
relation to those issues. [5]
16 But the consequences of the breach of the rule in a
criminal trial have to be approached with considerable care. As stated by
Gleeson CJ and Heydon J in MWJ v R:
The principle of fair conduct on the part of an advocate,
stated in Browne v Dunn, is an important aspect of the adversarial system of
justice. It has been held ... to apply in the administration of criminal
justice, which, as well as being accusatorial, is adversarial... However, for
reasons explained, for example, in R v Birks,[6] and R v Manunta,[7] it is a principle that may need to be applied
with some care when considering the conduct of the defence at a criminal trial.
Fairness ordinarily requires that if a challenge is to made to the evidence of
a witness, the ground of the challenge be put to the witness in cross-examination.
This requirement is accepted, and applied day by day, in criminal trials.
However, the consequences of a failure to cross-examine on a certain issue may
need to be considered in the light of the nature and course of the proceedings.[8]
17 The very basis of the rule calls for the application of
that care: it is designed to give fairness to witnesses and to ensure a fair
trial between the parties.[9] As Gleeson CJ said in R v Birks:
There are some obvious difficulties concerning the
operation of the rule in criminal trials. The notion of fairness, whilst it has
relevance to criminal as well as civil proceedings, may have a somewhat
different practical content in a criminal trial. Furthermore an accused at a
criminal trial may be unrepresented, and it would ordinarily be quite
inappropriate to expect such a person to be bound by, and suffer the
consequence of a breach of, what was originally described in the House of Lords
as “a rule of professional practice”. [10]
18 The fairness owed by a court to a self-represented
accused in a criminal trial will attract our later attention.
19 In New South Wales, a trial judge has the power to do
what the magistrate apparently did in the present case, namely to reject the
admission of evidence of the party who did not comply with the rule in Browne v
Dunn; that power is available to reject the evidence of an accused in a
criminal trial[11] and, as an extremely abnormal step, of a
party in a civil trial.[12] As has been pointed out, R v Schneidas (No
2)[13] is perhaps the only reported case of the
exercise of this “exceptional” power in a criminal case.[14] Without ever doubting that the power can go
that far, subsequent authorities in New South Wales have emphasised that the
trial judge has to determine the consequences of a breach of the rule in a
criminal case with due circumspection.[15]
20 In Victoria, McGarvie J in R v Allen[16] refused to follow R v Schneidas (No 2)[17] and held that a trial judge here does not
have the power to refuse to admit defence evidence that, in a criminal trial,
was not put to prosecution witnesses in accordance with the rule in Browne v
Dunn. The decision in R v Allen was based in part on the influential decision
of Newton J in Bulstrode v Trimble[18] in which his Honour decided the rule did not
preclude a party, in any trial, from adducing and relying on evidence tendered
in its breach.[19] I have found no decision of the Court of
Appeal of this Court or the High Court on this point.
21 As I held in Shaw v Yarranova,[20] in the absence of a binding decision of the
Court of Appeal or the High Court, it is the duty of a trial judge of this
Court personally to determine the case before him or her. That responsibility
is not performed where the judge fails to so determine the matter, preferring
instead simply to follow an earlier decision on point of another member of the
Court.
22 But, where there is an earlier decision of a single
judge of this Court on point, the judge does not start writing on a blank page.
Proper regard must be given to the previous judgment. Considerations of comity,
and the interests of justice, require the previous decision to be followed
unless the judge attains a higher than usual standard of conviction that his or
her contrary conclusion is correct.
23 I take this rule of precedent to be well expressed by
Burchett J in La Macchia v Minister for Primary Industries and Energy:
The
doctrine of stare decisis does not, of course, compel the conclusion that a
judge must always follow a decision of another judge of the same court. Even a
decision of a single justice of the High Court exercising original
jurisdiction, while “deserving of the closest and respectful consideration”,
does not make that demand upon a judge of this court: Businessworld
Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR
499 at 504. But the practice in England, and I think also in Australia, is that
“a judge of first instance will as a matter of judicial comity usually follow
the decision of another judge of first instance [scil of coordinate
jurisdiction] unless he is convinced that the judgment was wrong”: Halsbury,
4th ed, vol 26, para 580. The word “usually” indicates that the
approach required is a flexible one, and the authorities illustrate that its
application may be influenced, either towards or away from an acceptance of the
earlier decision, by circumstances so various as to be difficult to comprehend
within a single concise formulation of principle. (For example, it has been
suggested that decisions upon the effect of sections of the Income
Tax Assessment Act 1936 (Cth)
present a special need for consistency: Rabinov v FCT 82 ATC 4517 at
4523.) Understood as expressing a usual or general rule, the following
statement of Rogers J in Hamilton Island Enterprises Pty Ltd v FCT
[1982] 1 NSWLR 113 at 119 is consistent with the proposition I have quoted from
Halsbury:
“In my view it is of cardinal importance in the proper
administration of justice that single judges of State Supreme Courts exercising
federal jurisdiction should strive for uniformity in the interpretation of
Commonwealth legislation. Unless I were of the view that the decision of
another judge of coordinate authority was clearly wrong I would follow his
decision.” [21]
24 Thus, unless I am convinced that the decisions of
McGarvie J and Newton J are clearly wrong, I should follow them.
25 With respect, I think R v Allen[22] and Bulstrode v Trimble[23] were correctly decided. In
26 That completes the digression. I can now return to the
main path.
27 So it was because the tape recording evidence was
excluded that Mr Tomasevic feels strongly aggrieved about the hearing before
the magistrate. I understand these feelings but, beyond saying what I have
about the legal principles involved, it is not my function in this judicial
review application to unravel the rights and wrongs of these matters. It was
for this reason that I refused to allow Mr Tomasevic to call the solicitor who
represented him as a witness in the proceeding before me.
28 The magistrate reserved her decision overnight. On
• found proven: charges 4 (threatening to kill on
• found not proven and dismissed: charges 1, 2 3, 5, 7 and
8
29 The magistrate heard submissions on sentence from Mr
Tomasevic’s solicitor. She submitted he should not be convicted and the
imposition of a bond would adequately dispose of the matters. Among other
things, she further submitted Mr Tomasevic was under a great deal of stress at
the time of the incidents as he was separated from his wife and children, was
going through difficult Family Court proceedings and was taking medication for
depression. She submitted the context of the incidents was his complaint that a
fellow teacher had misappropriated money.
30 In sentencing Mr Tomasevic, the magistrate referred to
his many problems and personal difficulties and the reasons why he was no
longer working at the school. Her Honour said she accepted the context of the
threats had been the dispute over the alleged missing money, but the charges –
especially that of threatening to kill – were very serious. She said she would
not convict Mr Tomasevic because –
you’ve got no prior convictions and your hopeful prospect
is that you will be able to teach again ... I think the best thing is that you
continue to see your doctor.
31 Her Honour found charges 4, 6 and 9 proven without
conviction and adjourned the hearing until
32 Mr Tomasevic gave the undertakings asked of him. He told
me he did so because he did not understand the findings of guilt and sentence
could affect his future employment as a teacher. He said the legal aid
solicitor advised him that his career would not be affected because he had not
been convicted. He relied on this advice when he abandoned his appeal. He did
not explain why, in the light of such advice, he appealed in the first place.
33 The Department of Education and Training later dismissed
Mr Tomasevic from the government teaching service. He told me that, when he
gave the undertakings and abandoned his appeal, he did not understand the
findings and sentence could lead to this result. For reasons I will come to, I
do not think they did. The Victorian Institute of Teaching is considering
whether to cancel Mr Tomasevic’s registration as a teacher. This matter, also,
I will come to later. I fist have to deal with the abandoned appeal.
THE ABANDONED APPEAL
34 Clause 1(1) of Schedule 6 of the Magistrates’
Court Act 1989
required an appeal to be brought within 30 days after the decision of the
magistrate. By a notice dated
35 Clause 6(2) and (2A) of Schedule 6 allowed an appeal to
be abandoned within the same 30 day period specified in clause 1(1). The
records of the County Court reveal Mr Tomasevic abandoned his appeal before a
deputy registrar on
36 The informant’s solicitor has filed an affidavit in this
Court that gives a very fair account of the proceeding before the judge. Mr
Tomasevic took no issue with this account. It shows the judge asked Mr
Tomasevic why he abandoned his appeal. He told the judge it was because the
three charges were found proven without conviction and he was advised by his
solicitor that his employment as a teacher would not be affected. This is
consistent with what he has told me.
37 As to why he waited until July 2006 to try to reactivate
his appeal, Mr Tomasevic told me it was only when the Victorian Institute of
Teaching sent him a notice of formal hearing that he realised the findings and
sentence could affect his employment. Section
28 of the Victorian
Institute of Teaching
Act 2001 requires the Institute to conduct an inquiry into the fitness to
teach of any teacher convicted or found guilty of an indictable offence.
Threatening to kill is an indictable offence. Part
4 of the Act contains a disciplinary regime which gives the Institute
various powers of inquiry, including powers to conduct a formal hearing, which
may lead to the cancellation of the registration of a teacher. The Institute’s
notice[29] was undated but it advised of a formal
hearing on 16 and
38 The Institute’s hearing was adjourned. Mr Tomasevic told
me it remains adjourned pending the outcome of this judicial review
application.
39 In the hearing before me, it became clear that two years
earlier – in 2004 – the incident that gave rise to the magistrate’s finding of
guilt on the charge of threatening to kill was the subject of consideration at
a hearing before a delegate under the Teaching
Service Act 1981. Soon afterwards, Mr Tomasevic was dismissed from the
government teaching service. That was only 12 months or so after the
magistrate’s decision and the alleged giving of the solicitor’s advice. As we
will now see, Mr Tomasevic used the hearing before the delegate to have the
tape recording put to the particular complainant. But he has not explained why
he did not try to reactivate his appeal at that time.
THE HEARING UNDER THE TEACHING
SERVICE ACT
40 The matters discussed under this heading were not
considered by the judge because they were not raised with him. They were raised
only before me. As my view is that the judicial review application is to
succeed, they may be considered by the judge of the County Court who hereafter
reconsiders Mr Tomasevic’s application.
41 On
42 I have in evidence a transcript of the hearing. The
judge was not given that transcript. I do not have the decision of the delegate
or her reasons. But Mr Tomasevic told me that on
43 The transcript of the hearing shows evidence was given
by the same person who gave evidence to the magistrate in respect of the
incident that occurred on 1 March 2002 – the one involving the threat to kill
charge that was found proven. It was this witness to whom the tape recording
was not put in cross-examination by Mr Tomasevic’s solicitor at the hearing
before the magistrate.
44 This time, the recording was put to the witness by
counsel for Mr Tomasevic. The circumstances were not ideal, for the witness
gave evidence by telephone from his location in
45 The tape recording did not contain the threat to kill
that the witness deposed was made by Mr Tomasevic. Counsel challenged the account
of the witness on this basis. The witness strongly maintained his evidence. He
said the recording was not complete and he had a clear recollection of what was
said, which led him to record and report the matter at the first opportunity.
46 What occurred in this hearing may be relevant to whether
Mr Tomasevic must have known in 2004 that the decision of the magistrate might
affect his future employment as a teacher, if that is an issue in the
reconsideration.
THE DECISION OF THE JUDGE TO REFUSE LEAVE
47 Mr Tomasevic’s application for reinstatement of his
abandoned appeal, or alternatively for leave to proceed with an appeal out of
time, was lodged with the County Court on
48 The application was heard and determined by the judge on
the same day. I infer that the hearing was pre-arranged, albeit on short
notice, as the informant’s counsel and solicitor were in attendance. I infer
that, before coming onto the bench, the judge had Mr Tomasevic’s affidavit and
attachments, both because the hearing was pre-arranged and because his Honour’s
questions show he had some familiarity with the issues raised by the
application.
49 The informant’s solicitor’s affidavit sufficiently
describes what occurred, and what did not occur, at the hearing.
50 The judge told Mr Tomasevic he had to obtain leave to
appeal out of time as he had abandoned his appeal. This was plainly correct,
and Mr Tomasevic’s application for judicial review must fail to the extent that
it calls that matter into question. His Honour then made a number of other
points to Mr Tomasevic about the application. His Honour then allowed him to
respond. At one stage his Honour asked Mr Tomasevic to stop making speeches.
The judge gave Mr Tomasevic the opportunity to explain why he had abandoned his
earlier appeal and why he was applying for leave three years after the decision
of the magistrate. As I have already noted, he said it was because he had been
told the magistrate’s findings of guilt without conviction and sentence would
not affect his employment.
51 The judge did not:
• acknowledge Mr Tomasevic was appearing without legal
representation against an informant who was represented
• explain to Mr Tomasevic the procedure that would be
followed
• explain to Mr Tomasevic the legal requirements he had to
satisfy in order the obtain leave to appeal out of time, namely, that he had
failed to apply within time by reason of exceptional circumstances and that the
informant’s case would not be materially affected; nor did his Honour invite
submissions from Mr Tomasevic on those requirements
• explain to Mr Tomasevic how he might go about arguing his
case or assist him to do so in any way
• when he told Mr Tomasevic to stop making speeches, go on
to tell him what matters may be relevant to his application about which he
could make submissions
• offer Mr Tomasevic an adjournment to obtain legal
representation
• ask for elaboration of any of Mr Tomasevic’s submissions
52 The solicitor’s affidavit shows the hearing was short
and the informant’s counsel was called on to say very little. The judge said
“the delay of three years was too great and that he would not get reinstatement
or leave to appeal out of time.” His Honour gave no other reasons.
53 The records of the County Court show that, on
THE APPLICATION FOR JUDICIAL REVIEW
The grounds of the application
54 The application for judicial review was made by an
originating motion dated
55 This is an application for judicial review of a decision
of a judge of the County Court. It is not an appeal from the decision of the
judge. It is not part of my function to re-decide the application for
reinstatement or leave on the merits. In the present case, the application can
only succeed if Mr Tomasevic establishes that the judge made a jurisdictional
error, an error of law on the face of the record or breached the rules of
natural justice. I am confined to examining grounds that potentially fall into
these categories.
56 As I have said, Mr Tomasevic is not a lawyer. But both
in the originating motion and the hearing before me, he has done his best to
express his grounds in an appropriate way. I think this is a reasonable summary:
• the judge applied the wrong test
• the judge did not perform his duty to give Mr Tomasevic,
as a self-represented litigant, certain guidance and assistance and thereby
breached the rules of natural justice
• the judge should have accepted Mr Tomasevic’s reasons for
delaying three years, which principally related to his solicitor’s failure to
cross-examine the witness on the tape recording and her poor advice that the
decision of the magistrate would not affect his future employment as a teacher
• the judge ignored the fact that the impact of his
decision on Mr Tomasevic would be catastrophic, as the formal hearing before
the Institute will proceed and he may never be able to teach again
• the judge did not properly consider Mr Tomasevic’s
material, as he heard and determined the application on the same day
• the judge ignored the fact that Mr Tomasevic has a good
case to run in the appeal, for he will be able to use the tape recording and
certain other material to undermine the case against him
57 I think the application must succeed on two grounds of
jurisdictional error: the judge applied the wrong test, and failed to perform
his duty to give due assistance to Mr Tomasevic as a self-represented litigant,
which breached the rules of natural justice. I do not need to consider the
others.
THE JUDGE APPLIED THE WRONG TEST
58 The jurisdiction that the judge was exercising was the
one conferred by cl 1(3)(a) and (b) of Schedule 6 of the Magistrates’
Court Act 1989 to allow an appeal to proceed even though the notice of
appeal was not given in time. By cl 1(1), a notice to appeal under s
83 and 84
of the Act must be given within 30 days after the decision of the magistrate.
Mr Tomasevic’s notice being three years out of time, the judge had to decide
whether he was of the opinion that the failure to give the notice within the
specified 30 day period was due to exceptional circumstances (par (a)) and
whether he was satisfied that the informant’s case would not be materially
prejudiced by the delay (par (b)). The proper exercise of this jurisdiction
required the judge to apply the correct test.[32]
59 When a judge is deciding whether, in his or her opinion,
there are exceptional circumstances, it is the reasons for the failure to give
the notice within the specified time that must be exceptional:
The sub-section requires one to look at the circumstances
giving rise to the litigant’s failure to appeal within time. If those circumstances
can properly be characterised as exceptional then leave to appeal out of time
will be granted. If they cannot, then leave will be refused.[33]
60 It follows that an application for leave to proceed with
an appeal out of time can be granted whether the delay is short or long. In a
case where the delay is short, leave to proceed may be more readily granted,
for it may be easier to establish that the delay was due to exceptional
circumstances, there being less of a delay to explain, and it being less likely
that the informant’s case will be materially prejudiced. In a case where the
delay is long, leave to proceed may be more reluctantly granted, for it may be harder
to establish that the delay was due to exceptional circumstances, there being
more of a delay to explain, and it being more likely that the informant’s case
will be materially prejudiced. But in applying the statutory test, the focus
must be on whether the failure to give the notice within the specified time was
due to exceptional circumstances and on whether the informant’s case will be
materially prejudiced, not on whether the delay was short or long. It is an
exceptional circumstances test, not a long delay test.
61 I have considered whether the judge, despite the
language he used to express his conclusion, nonetheless applied the correct
test. I think he did not.
62 I have to conclude from the solicitor’s affidavit that
the judge focused on the question of delay and not the reasons for it. His
Honour did not mention the issue of material prejudice to the informant’s case.
He seems to me to have reasoned from the length of the delay – three years – to
the conclusion that the application must be rejected. The judge should have
considered whether he was of the opinion that the circumstances giving rise to
the delay were exceptional, and whether he was satisfied that delay would not
materially prejudice the informant’s case, and decided the case on that basis.
With respect, he appears to have given scant consideration to the reasons
offered by Mr Tomasevic for the delay, which should have been given proper
consideration against the correct statutory test. His Honour heard very little
from counsel for the informant, whose submissions, I am confident, would have
addressed the application of that test. I do not think the judge applied the
exceptional circumstances test specified in the legislation. I think he applied
a long delay test – whether it was “too late” to appeal.
63 I am not suggesting that the judge was bound to accept
Mr Tomasevic’s explanation for abandoning his appeal, and then appealing again
three years later, as constituting exceptional circumstances. Indeed, some
features of the explanation and his conduct over the relevant time period seem
hard to reconcile. These matters will be for the judge conducting the
reconsideration to assess, against the correct test.
64 The judge’s failure to apply the correct test meant that
he did not properly exercise the jurisdiction conferred by cl 1(3) of Schedule
6, which constituted a jurisdictional error. This ground of judicial review
will therefore be upheld.
65 That brings me to the promised analysis of the duty of a
trial judge to assist a self-represented litigant.
THE DUTY OF A TRIAL JUDGE TO ASSIST A SELF-REPRESENTED
LITIGANT
The significance of the human rights of equality before the
law and access to justice
66 Picture in your mind a deaf mute, sitting vulnerably in
court while his case is being argued. The trial judge exercises his judicial
discretion to direct that counsels’ submissions not be interpreted. As any
artist will tell you, things are very clear at the extremes. The Court of
Appeal of
67 Now the present case is not so clear, for Mr Tomasevic
was not a deaf mute. But Mr Tomasevic was equally dependant on the trial judge
to exercise his judicial powers to ensure his application was fairly heard,
which required to the judge to give him due assistance as a self-represented
litigant.
68 The right of every person to a fair criminal or civil
trial, and the duty of every judge to ensure it, is deeply ingrained in the
law. Expressed in traditional terms, the right is inherent in the rule of law –
indeed, “in every system of law that makes any pretension to civilisation”[38] – and in the judicial process.[39] Expressed in modern human rights terms, the
right to a fair trial is important for promoting and respecting equality before
the law and access to justice.
69 The numerous human rights specified in the ICCPR,
including equality before the law and access to justice, form the basis of the
human rights set out in Part
2 of the Charter
of Human Rights and Responsibilities Act 2006, which may be referred to,
with a direct simplicity that only serves to emphasise its historic
significance, as the Charter.[40]
70 The Charter does not affect any proceeding commenced or
concluded before the commencement of Part
2,[41] which occurred on
71 King J left open the important question of the extent to
which, in cases to which the Charter applies, the courts are bound to apply the
provisions of Part
2.[46] That question does not arise in the present
case, for the Charter does not affect it. The question that does arise in the present
case is whether, apart from the Charter, the ICCPR is relevant in any event.
72 Apart from the Charter, the ICCPR does not “operate as a
direct source of individual rights and obligations”[47] because it has not otherwise been
incorporated into Australian law.[48] But like other international instruments to
which
73 What is that significance? Subject to certain
limitations and to an evolving extent, the ICCPR, and those other instruments,
may at least inform the interpretation of statutes (so as to be consistent with[49] and not to abrogate[50] international obligations), the exercise of
relevant statutory[51] and judicial[52] powers and discretions, the application and
operation of the rules of natural justice,[53] the development of the common law[54] and judicial understanding of the value
placed by contemporary society on fundamental human rights.[55] In this regard, I would endorse, with
respect, the remarks of Maxwell P in Royal Women’s Hospital v Medical
Practitioners Board of Victoria[56] about the need to consider arguments based
on
74 Therefore, even though the Charter does not affect my
consideration of Mr Tomasevic’s application for judicial review, I think the
ICCPR does. To determine the application, it will necessary for me to identify
what was required for the proper performance of the duty of the trial judge to
ensure a fair trial by giving due assistance to Mr Tomasevic as a
self-represented litigant. I think this should be done in terms that take into
account the importance of that duty in promoting and respecting the fundamental
human rights of equality before the law and access to justice which are
specified in the ICCPR.
75 I could decide this case by reference only to the
judge’s duty to ensure a fair trial. If that is so, you might ask, why should I
also refer to the human rights issues that the case raises?
76 I would answer that
77 Now return, if you will, to that picture of the deaf
mute in court, in which I see a metaphor. Without understanding legal language,
how can self-represented litigants, who are vulnerable in ways I will now
describe, really know what they have heard or what they should say?
The disadvantages suffered by self-represented litigants
78 The principle of the fair trial, and the human rights of
equality before the law and access to justice, are not restricted to the purely
formal idea, important though it is, that all people have an equal opportunity
to appear before a court or tribunal. It was the French author Anatole France
who captured the essential injustice of treating unequal people equally. He
wrote that “the law, in its majestic equality, forbids rich and poor alike to
sleep under bridges, to beg in the streets, and to steal bread.”[57] In reality, the principle of the fair trial
in its modern conception, and the human rights I have mentioned, recognise that
people are not all equal in relevant respects, and that some suffer from
particular disadvantages that impede their equal access to justice.
79 Take Mr Tomasevic, for example. When he stood before the
judge in the present case, he was not poor, had not slept under a bridge and
had not stolen bread. He was a trained teacher with a confident manner, a
strong voice and a large grievance, and so was one kind of person among the
great diversity of people who appear in the courts self-represented. But, to
use the words of the Smith J in R v Nilson,[58] he was still in a position of “grave
disadvantage.” That was because he lacked two critical qualities possessed by
competent lawyers: professional skill and ability, and objectivity. Mr
Tomasevic’s grave disadvantage was obvious in the proceeding before me. I do
not think it would have been any different in the proceeding before the judge.
80 The Australian Institute of Judicial Administration has
prepared a report to assist courts and tribunals in planning for the management
of litigants in person.[59] It describes the disadvantages suffered by
litigants who appear without representation in civil and criminal proceedings.
81 This is how the Institute describes the disadvantage
that comes from a lack of professional skill and ability:
By definition litigants in person lack the skills and
abilities usually associated with legal professionals. Most significantly, lack
of knowledge of the relevant law almost inevitably leads to ignorance of the
issues that are for curial resolution for the court or tribunal... This ranges
from lack of knowledge of courtroom formalities, to a lack of knowledge of how
the whole court process works from the initiation of a proceeding to hearing.
Litigants in person also lack familiarity with the language and specialist
vocabulary of legal proceedings.[60]
82 This is the disadvantage that comes from a lack of
objectivity:
The problem of self-representation is not just a lack of
legal skill – it is also a problem of a lack of objectivity and emotional
distance from their case. Litigants in person are not in a good position to
assess the merits of their claim ...[61]
83 I would adopt this description of the disadvantages
suffered by self-represented litigants, for it is consistent with decisions of
courts in Australia, in respect of both the lack of skill and ability[62] and the lack of objectivity,[63] and of courts overseas,[64] as well as my own experience.
84 None of this denies that some people appear
self-represented by choice - one that the law respects. The rule is that, in
the ordinary course of civil or criminal litigation, all natural persons have a
right to appear unrepresented.[65] The right to defend yourself without legal
representation in criminal proceedings is “fundamental” and should not be
interfered with.[66] People who choose to defend themselves
against criminal charges forfeit none of their legal rights, although they
obtain no special advantages,[67] and their election to appear
self-represented means the trial cannot be unfair on that ground.[68] A person who refuses or neglects to comply
with the reasonable requirements of a legal aid authority cannot be said to be
unable to obtain legal representation, and their trial without legal
representation will also not be unfair on that ground.[69] The duty of a trial judge to ensure that the
trial of a self-represented person is fair applies whether he or she has been
unable to obtain legal representation or appears self-represented by their own
choosing.[70]
85 But most people who appear self-represented do not do so
by choice and, as we have seen, they are at a grave disadvantage. This gives
rise to a potential injustice, the one identified by Anatole
The overriding duty of a trial judge to ensure a fair trial
86 A trial judge has an overriding duty to ensure a fair
trial. This emerges with crystal clarity and moral force from Dietrich v R.[71]
87 Mr Dietrich was convicted on serious criminal charges
following a trial in the County Court of Victoria in which he was
self-represented. All his attempts to obtain legal aid failed and the trial
judge dismissed his application for an adjournment. The accused contended that
he had a right to be provided with counsel at public expense or, alternatively,
a right to a stay of the criminal proceeding. The High Court rejected the
former but upheld the latter contention, holding a judge could stay a criminal
proceeding which would result in an unfair trial, including one where legal
representation was essential, as it was in most cases where the alleged offence
was serious. The Court held that the “right of an accused to receive a fair
trial according to law is a fundamental element of our criminal justice
system.”[72] Deane and Gaudron JJ made clear the
requirement for a “fair trial” went further than a trial “according to law”. To
Deane J, the requirement -
transcends the content of more particularized legal rules
and principles and provides the ultimate rationale and touchstone of the rules
and practices which the common law requires to be observed in the
administration of the substantive criminal law.[73]
To Gaudron J, fairness was an “overriding qualification and
universal criterion”.[74] This is her Honour’s
development of that proposition:
The requirement of fairness is not only independent, it is
intrinsic and inherent. According to our legal theory and subject to statutory
provisions or other considerations bearing on the powers of an inferior court
or a court of limited jurisdiction, the power to prevent injustice in legal
proceedings is necessary and, for that reason, there inheres in the courts such
powers as are necessary to ensure that justice is done in every case. Thus,
every judge in every criminal trial has all powers necessary or expedient to
prevent unfairness in the trial. Of course, particular powers serving the same
end may be conferred by statute or confirmed by rules of court.[75]
88 What is required to produce a fair trial depends on the
circumstances. In some cases it may be necessary to have interpreters,
acceptable custodial facilities or a special court venue.[76] In other cases, evidence may have to be
excluded because of its unfair prejudicial effect[77] or an adjournment granted to allow pre-trial
publicity to abate. This list is far from exhaustive and the categories are not
closed. Indeed “the practical content of the requirement that a criminal trial
be fair may vary with changing social standards and circumstances.”[78] The general principle is that the courts
possess all the necessary powers to ensure a fair trial,[79] one aspect of which is the power to give
assistance to a litigant in person.
The trial judge’s duty to assist self-represented litigants
89 As part of their overriding obligation to ensure a fair
trial, trial judges have a positive duty to give proper assistance to
self-represented litigants,[80] both in criminal[81] and civil[82] trials and also in interlocutory
proceedings, such as in applications to strike out pleadings.[83] The same duty applies to masters,[84] magistrates,[85] commissions[86] and tribunals,[87] but of course the application of the duty
would have to take into account the particular demands of those jurisdictions.
The duty applies even when all the parties are litigants in person.[88] The general principles were clearly
expounded in MacPherson v R.[89]
90 As a self-represented accused, Mr MacPherson was tried
for murder. He put to the police in cross-examination that his alleged
confession had been extracted with threats. The trial judge did not inform him
of his right to have the voluntary nature of the confession determined in a
voir dire in the absence of the jury, and he did not conduct a voir dire. The
accused was convicted. The High Court upheld the appeal, quashed the conviction
and ordered a retrial. It held the trial judge should have informed the accused
of his rights and held a voir dire.
91 The High Court held that it was the duty of the judge
“to ensure that the trial is conducted fairly and in accordance with law”.[90] Where the accused is self-represented, this
necessarily involves giving some explanation to him or her. A judge who did so
would not thereby become the accused’s advocate but “would be performing his
duty as a judge by informing the accused of his rights in relation to the
conduct of the trial.”[91] Nor did this mean the judge had to advise
the accused about how his or her rights should be exercised. The judge had to
put the accused in the position of being able to make an effective choice,[92] a duty which applies even “giving full
weight to the adversary character of a criminal trial”.[93] A trial was not fair if the judge failed to
perform this duty in a fundamental respect.[94]
92 Importantly, the High Court held that the duty of the
judge to provide assistance to a self-represented accused was bounded only by
the requirements of fairness. Consequently, there was –
no limited category of matters
regarding which a judge must advise an unrepresented accused – the judge must
give an unrepresented accused such information as is necessary to enable him to
have a fair trial.[95]
93 Dietrich v R[96] was decided after MacPherson v R,[97] but did not alter the principles expounded
in that case. As Dietrich was concerned with the right (found not to exist) of
an accused to legal aid and the right (found to exist) of the court to stay a
trial of serious criminal charges against an unrepresented accused, the
judgments tended to emphasise the institutional limitations on the capacity of the
judge to assist such an accused. Thus a number of judges pointed to the
difficulties faced by any trial judge who tried to extend a “helping hand” to a
self-represented accused, for the role of the trial judge is fundamentally
different to that of defence counsel.[98]
94 Nonetheless, the duty of the trial judge to provide
appropriate advice and assistance, expounded in MacPherson, was acknowledged in
Dietrich. For example, Brennan J, who dissented in the result but not on the
law, said this: “Where an accused person is unrepresented, a particular burden
is placed on the trial judge to ensure that the trial is fair.”[99] Deane J referred to the balancing efforts of
the trial judge.[100] Dawson J said the trial judge could give
“limited” assistance to the accused, but its effect should be to address an
imbalance “as far as possible”.[101] Toohey J was to similar effect.[102] The premise of the decision in Dietrich,
which will assume later significance in this judgment, was that, in the case of
a self-represented accused facing serious criminal charges, it was not usually
possible for a judge to ensure a fair trial, even when he or she performed the
duty to assist, given the limitations on the nature of the assistance that
might be given. It was for this reason that the High Court held that such a
trial could be stayed.
95 The courts now frequently refer to their “duty” or
“obligation” in relation to self-represented litigants. This is usually defined
in terms that require the impartial function of the judge to be preserved,
while also requiring the judge to intervene where this is necessary to ensure
the trial is fair and just.[103]
96 The scope of the duty gives rise to a judge’s dilemma.
That is my next subject.
The scope of the duty to assist and the judge’s dilemma
97 I will begin with the scope of the duty, which can be
discerned from the decided cases, beginning with Abram v Bank of New Zealand,[104] a sensible decision in a civil case which
has been influential.
98 Mr and Mrs Abram sued the Bank of New Zealand in
commercial litigation in the Federal Court of Australia. Mr Abram represented
himself and his wife. The trial judge applied the law as stated by the High
Court in Neil v Nott[105] that “the court must assume the burden of
endeavouring to ascertain the rights of parties that are obfuscated by their
own advocacy.” The judge said this required him to endeavour to ascertain the
true character of Mr and Mrs Abram’s legal claims. When his Honour dismissed
these claims, they appealed to the
99 This oft-cited passage from the judgment of the
What a judge must do to assist a
litigant in person depends on the litigant, the nature of the case, and the litigant’s
intelligence and understanding of the case.[106]
Their Honours referred to the finding of the trial judge
that Mr Abram was a quick and intelligent man and decided that he needed no
more assistance than what the judge provided.[107]
100 Abram has been followed on many occasions. For example,
in Microsoft Corporation v Ezy Loans Pty Ltd[108] it was held that the nature of an order
necessary to maintain the balance between represented and self-represented
parties varies –
from case to case and requires some assessment of the
difficulties confronting the individual litigant, the litigant’s intelligence
and his or her understanding of the case.[109]
Here is what Debelle J said in Pezos v Police:[110]
The individual circumstances of each unrepresented litigant
will have to be considered, as well as the nature of the issues, if not also
the demands, of each case.[111]
101 And so I think the position here may be compared with
that in Canada, as to which, in A (JM) v Winnipeg Child & Family Services,[112] Scott CJM, speaking for the Manitoba Court
of Appeal, said simply this:
[F]airness and balance are the touchstones to enable
justice to be done to all parties.[113]
102 Two cases illustrate the application of the principles
expounded in MacPherson v R[114] in the criminal law context. They are R v
Gidley[115] and R v Zorad.[116] Both are decisions of the New South Wales
Court of Criminal Appeal.
103 In R v Gidley[117] the accused was found guilty of two counts
of murder. He tendered a diary which, on appeal, he said contained prejudicial
material. But the trial judge had fully informed him of his rights in respect
to the tender – specifically, that it would not come before the jury unless he
tendered it. The accused chose to proceed.
104 The Court of Criminal Appeal held that the trial judge
had performed his duty “to ensure that every accused has a fair trial”.[118] The accused being self-represented, the
judge had given him “such information and advice concerning his rights as is
necessary to put him in a position where he can make an effective choice
whether he should exercise those rights”.[119] His Honour could not and did not advise the
accused “either that he should exercise those rights or how he should conduct
his case.”[120]
105 In R v Zorad[121] the Court of Criminal Appeal considered the
nature of the advice and information that the judge might be required to give
to ensure that a trial was fair to a self-represented accused. It held that,
where necessary, the judge might need to give information and advice about the
form of questions to be put in cross-examination, the accused’s right to raise
before the jury, the voluntariness of a confession and the existence of the
rule in Browne v Dunn.[122]
106 The Court held that the right to appear self-represented
was fundamental and that the accused should suffer no disadvantage from
exercising this right.[123]
107 The case that brought attention to the judge’s dilemma
is Minogue v Human Rights and Equal Opportunity Commission [124] a decision of the Full Court of the Federal
Court of Australia.
108 Mr Minogue was convicted of the murder of a policewoman
by exploding a bomb outside the Russell Street Police Headquarters in
109 The Commission decided it had no jurisdiction to
entertain Mr Minogue’s complaint, which he challenged by way of judicial review
in the Federal Court of Australia. The trial judge dismissed the application.
Mr Minogue was self-represented, but the judge granted leave to a legally
represented intervener who supported most of his case. One of his grounds of
appeal was that the judge had not adequately assisted him.
110 The Full Court[125] dismissed the appeal. On the issue of Mr
Minogue being self-represented, it held that the general principles governing
the role of a judge in civil proceedings involving a litigant in person were
stated by the New South Wales Court of Criminal Appeal Rajski v Scitec
Corporation Pty Ltd.[126]
111 Rajski is unreported, so I will set out the relevant
passages from the judgments here. Samuels JA said this:
In my view, the advice and
assistance which a litigant in person ought to receive from the court should be
limited to that which is necessary to diminish, so far as this is possible, the
disadvantage which he or she will ordinarily suffer when faced by a lawyer, and
to prevent destruction from the traps which our adversary procedure offers to
the unwary and untutored. But the court should be astute to see that it does
not extend its auxiliary role so as to confer upon a litigant in person a
positive advantage over the represented opponent ... At all events, the absence
of legal representation on one side ought not to induce a court to deprive the
other side of one jot of its lawful entitlement ... An unrepresented party is
as much subject to the rules as any other litigant. The court must be patient
in explaining them and may be lenient in the standard of compliance which it
exacts. But it must see that the rules are obeyed, subject to any proper
exceptions. To do otherwise, or to regard a litigant in person as enjoying a
privileged status, would be quite unfair to the represented opponent.[127]
112 Mahoney JA made these observations on the same subject:
Where a party appears in person,
he will ordinarily be at a disadvantage. That does not mean that the court will
give to the other party less than he is entitled to. Nor will it confer upon
the party in person advantages which, if he were represented, he would not
have. But the court will, I think, be careful to examine what is put to it by a
party in person to ensure that he has not, because of the lack of legal skill,
failed to claim rights or to put forward arguments which otherwise he might
have done.[128]
113 Returning to Minogue, the
A trial judge often faces
something of a dilemma. While he or she may be bound to provide some advice and
assistance to an unrepresented litigant, the authorities make it clear that the
Judge should not intervene to such an extent that he or she cannot maintain a
position of neutrality in the litigation: Burwood Municipal Council v Harvey
(1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of
legitimate intervention are flexible and will be influenced by the need for
intervention to ensure a fair and just trial: Panagopoulos v Southern
Healthcare Network (unreported, Supreme Court, Vic, Smith J,
114 In the case before the trial judge, the matter turned
entirely on issues of law. Mr Minogue’s submissions to the
115 The decision in Minogue has been frequently followed,
including in the Full Court of the Federal Court of Australia[130] and the Supreme Courts of Western
Australia,[131] New South Wales[132] and South Australia.[133] I would endorse it here.
116 As we saw, in Minogue the
117 Miss Panagopoulos sought damages against the Southern
Healthcare Network for negligence allegedly suffered during her birth in 1971.
Being severely intellectually disabled, she was represented by her father (who
sued as her next friend) and one of his friends, neither of whom had any
forensic or medical training. The hospital was represented by a fully resourced
legal team headed by a Queen’s Counsel.
118 In conducting the trial, Smith J explained all of the
necessary procedural points to Mr Panagopoulos. He also went further and
actively questioned the medical witnesses. The hospital contended that his
Honour overstepped the mark and submitted he should disqualify himself on
grounds of apprehended bias.
119 Smith J acknowledged it was necessary to balance the
assistance given to a litigant in person with the need to maintain the fact and
appearance of judicial neutrality, as emphasised by Kirby P in Burwood
Municipal Council v Harvey.[135] His Honour found that, in the circumstances
of the case before him, the imbalance in representation between the parties
created a situation of unfairness that would seriously compromise the reality
and appearance of justice in the trial.[136] He held that, to ensure a fair and just
trial was conducted, it was necessary for him to make appropriate
interventions, including asking questions of witnesses.[137] On reconciling the duty to provide a fair
trial with the obligation to maintain the appearance of impartiality, his
Honour said this:
In my view, however, the need to preserve the appearance of
neutrality should be seen as marking the boundary for judicial intervention. It
is a boundary that is flexible and its location will be affected by the
circumstances of the case. It will be affected by the extent to which a judge
needs, and may properly be seen to need, to intervene to ensure a fair and just
trial.[138]
120 His Honour noted that the law relating to apprehended
bias was intended to serve the fundamental principle that justice must be done
and be seen to be done.[139] He held the question to be determined was
whether the nature and extent of the questioning might give rise to a
reasonable apprehension of bias in the mind of a properly informed fair minded
person.[140] His Honour attributed to the fair minded
person an awareness of the features of the trial before him that made it
necessary for him to intervene in the manner that he had.[141] He held a fair minded person, considering
the manner objectively, would appreciate that, in these circumstances, it was
necessary for the judge to so intervene to ensure a fair and just trial.[142]
121 Another case that illustrates how heavy the burden on
the trial judge can be, and how the burden might be carried, is Mentyn v Law
Society of Tasmania[143] which, like Panagopoulos, was a
disqualification case.
122 The proceeding before Slicer J had a tortuous history.
The disqualification application arose as a preliminary to the hearing of an
application by the Law Society of Tasmania for further and better particulars
of Mr and Mrs Mentyn’s claim for damages. Slicer J had given guidance to the
self-represented parties on a number of occasions. The Society alleged his
Honour had overstepped the mark.
123 The judgment of Slicer J contains an illuminating
discussion of difficult issues that may arise from the application of modern
methods of case-management, which are judge-driven, when one of the parties is
self-represented.[144] It also contains a refreshingly honest
discussion of the difficulties involved in affording equal justice to litigants
in person in a legal system where litigation is operated along adversarial
lines.
124 The application for disqualification was dismissed.
Slicer J, like Smith J in Panagopoulos, held that a fair minded observer would
not reasonably apprehend that his Honour was biased by reason of extending such
assistance to the self-represented parties as was necessary for ensuring a fair
and just trial.[145]
125 A Canadian case provides a further useful illustration
of how the problem of alleged bias should be approached.
126 In Barrett v
127 The judge, J Macdonald J, dismissed the motion, holding
that giving the assistance did not mean the judge had assumed the role of
counsel, had not undermined the role of counsel for the represented party and
had not created the appearance of judicial bias.[148] On this last point, the judge said this:
I conclude that reasonable and right-minded persons,
properly informed respecting the requirement of a fair trial and properly
informed that trial fairness includes trial on the merits, and also cognizant
of both the duty of the trial judge to ensure trial fairness and the right of
the trial judge to elicit relevant evidence, if justice requires that, would
not think that the steps taken to ensure a fair hearing are decisional steps.[149]
128 Thus it is the function of a judge to find facts on the
basis of the evidence so that the legal claim (or prosecution) can be
determined on its merits, that is, its merits as revealed by a fair trial,
which the judge cannot be criticised for properly bringing about.[150]
129 I said I would return to Dietrich v R[151] and it is here that I should do so. There
is no doubt that, in either a criminal or civil case, the judge cannot become
the advocate of a self-represented litigant, and must maintain the reality and
appearance of judicial neutrality. But we have seen that the judge’s overriding
duty is to ensure a fair trial, that being the only trial that a judge can
judicially conduct. If the judge considered that a self-represented litigant
fairly needed assistance of a certain kind which, in the view of the judge,
could not be given without forfeiting the reality or appearance of
impartiality, the judge’s dilemma would be transformed into a crisis. This
would not arise unless the judge was definitely of that view, which would not
be reached lightly, remembering the rule against bias is applied sensibly in
such a case, as in Panagopoulos,[152] Mentyn[153] and Barrett,[154] as well as in Re F: Litigants in Person
Guidelines,[155] a decision of the Full Court of the Family
Court of Australia. But if that point was to be unavoidably reached, I am
unable to see how the case could continue, for the logic of the decision in Dietrich
would seem to demand that result. But the result would be surely be intolerable
in many cases, for it would represent a catastrophic system failure, which we
must strain to avoid. This only underscores the importance of finding practical
and principled solutions to the problems involved in judges giving necessary
assistance to self-represented litigants.
130 The duty to assist may extend to issues of law as well
as procedure, as the Victorian Court of Appeal has made clear. In R v White[156] the accused was being tried for conspiracy
to commit armed robbery. He sought to rely on the defence of mental impairment.
He was self-represented and gave the jury an account of his extensive criminal
history, criminal activities and uncharged criminal acts. The judge did not
warn the accused about the prejudicial consequences of giving this evidence,
nor did his Honour warn the jury that the evidence could only be used on the
issue of mental impairment. The appeal against the jury’s verdict of guilty was
upheld.
131 Following Dietrich v R[157] and MacPherson v R,[158] Chernov JA held “it is the duty of the
judge to ensure that the accused is not subjected to a trial that is unfair.”[159] The judge must refrain from becoming an
advocate for a self-represented accused.[160] But the judge -
must ensure that the accused is fully aware of the legal
position in relation to the substantive and procedural aspects of the case
without effectively advising him or her of what course should be followed.[161]
Chernov JA held the extent of the trial judge’s duty to
inform the accused depended on the circumstances, as to which his Honour noted
a trend toward greater judicial intervention.[162] Charles and Eames JJA agreed with Chernov
JA.[163]
132 Along with Debelle J in Pezos v Police,[164] I would notice that the formulation of
Chernov JA, which represents the current law in this State, extends to giving
assistance about “the legal position as to the substantive and procedural issues
in the case”.[165] With respect, I think this formulation is
entirely consistent with the High Court authorities on which his Honour relied,
as well as decisions of the Full Court of the Family Court of Australia.[166] It also reflects the position in
The guidelines of the Family Court of Australia
133 Courts and judicial organisations have, with respect,
rightly acknowledged the need to do more to ensure a fair trial, and equality
before the law and access to justice, for self-represented litigants. A variety
of approaches have been adopted to address that need.[169] The Full Court of the Family Court of Australia
has enunciated guidelines on how this can be achieved through the proper
performance of the judge’s duty to assist self-represented litigants, which is
of direct relevance to the application before me.
134 The case in which the guidelines were first stated was
In the Marriage of N and ML Johnson.[170] In this case the wife was represented and
the husband appeared in person. The trial judge allowed a witness to be
interposed prior to the conclusion of the wife’s evidence. His Honour did not
explain the consequences of allowing interposition to the husband and refused
his later application to recall the witness. The witness’s evidence was
important to the outcome of the case. The
135 The guidelines were revised by the
136 These are the revised guidelines enunciated in Re F:
Litigants in Person Guidelines:
(1) A judge should ensure as far
as is possible that procedural fairness is afforded to all parties whether
represented or appearing in person in order to ensure a fair trial.
(2) A judge should inform the litigant in person of the
manner in which the trial is to proceed, the order of calling witnesses and the
right which he or she has to cross examine the witnesses.
(3) A judge should explain to the litigant in person any
procedures relevant to the litigation.
(4) A judge should generally assist the litigant in person
by taking basic information from witnesses called, such as name, address and
occupation.
(5) If a change in the normal procedure is requested by the
other parties such as the calling of witnesses out of turn the judge may, if
he/she considers that there is any serious possibility of such a change causing
any injustice to a litigant in person, explain to the unrepresented party the
effect and perhaps the undesirability of the interposition of witnesses and his
or her right to object to that course.
(6) A judge may provide general advice to a litigant in
person that he or she has the right to object to inadmissible evidence, and to
inquire whether he or she so objects. A judge is not obliged to provide advice
on each occasion that particular questions or documents arise.
(7) If a question is asked, or evidence is sought to be
tendered in respect of which the litigant in person has a possible claim of
privilege, to inform the litigant of his or her rights.
(8) A judge should attempt to clarify the substance of the
submissions of the litigant in person, especially in cases where, because of
garrulous or misconceived advocacy, the substantive issues are either ignored,
given little attention or obfuscated: Neil v Nott [1994]
HCA 23; (1994) 121 ALR 148 at 150.
(9) Where the interests of justice and the circumstances of
the case require it, a judge may:
·
draw attention to the
law applied by the court in determining issues before it;
·
question witnesses;
·
identify applications
or submissions which ought to be
put to the court;
·
suggest procedural
steps that may be taken by a party;
·
clarify the
particulars of the orders sought by a litigant
in person or the bases of such
orders.
The above list is not intended to be exhaustive and there
may well be other interventions that a judge may properly make without giving
rise to an apprehension of bias.[174]
137 These guidelines have been cited with approval by
courts in a number of Australian jurisdictions, including the Federal Court of
Australia[175] and the Supreme Courts of Victoria,[176] Tasmania[177] and South Australia.[178] I too think they give useful guidance on
how the duty of the trial judge might be performed. But of course, they are
guidelines, not grooves in which the performance of the duty must run.
The law as it currently stands
138 On the basis of this analysis, I think I can summarise
the law as it currently stands.
139 Every judge in every trial, both criminal and civil,
has an overriding duty to ensure the trial is fair. A fair trial is the only
trial a judge can judicially conduct. The duty is inherent in the rule of law
and the judicial process. Equality before the law and equal access to justice
are fundamental human rights specified in the ICCPR. The proper performance of
the duty to ensure a fair trial would also ensure those rights are promoted and
respected.
140 Most self-represented persons lack two qualities that
competent lawyers possess - legal skill and ability, and objectivity.
Self-represented litigants therefore usually stand in a position of grave
disadvantage in legal proceedings of all kinds. Consequently, a judge has a
duty to ensure a fair trial by giving self-represented litigants due
assistance. Doing so helps to ensure the litigant is treated equally before the
law and has equal access to justice.
141 The matters regarding which the judge must assist a
self-represented litigant are not limited, for the judge must give such
assistance as is necessary to ensure a fair trial. The proper scope of the assistance
depends on the particular litigant and the nature of the case. The touchstones
are fairness and balance. The assistance may extend to issues concerning
substantive legal rights as well as to issues concerning the procedure that
will be followed. The Family Court of Australia has enunciated useful
guidelines on the performance of the duty.
142 The judge cannot become the advocate of the
self-represented litigant, for the role of the judge is fundamentally different
to that of an advocate. Further, the judge must maintain the reality and
appearance of judicial neutrality at all times and to all parties, represented
and self-represented. The assistance must be proportionate in the circumstances
- it must ensure a fair trial, not afford an advantage to the self-represented
litigant.
143 It remains to apply these principles to the present
case.
THE JUDGE DID NOT PROPERLY PERFORM HIS DUTY TO ASSIST MR
TOMASEVIC AS A SELF-REPRESENTED LITIGANT
144 In the circumstances more fully set out earlier in these
reasons, Mr Tomasevic presented to the judge as a self-represented litigant.
Being a teacher, Mr Tomasevic had some relevant skills. But his position was
not to be compared to that of a lawyer, for he had little or no knowledge of
the legal issues raised by his application or the procedures that would be
followed, and he was emotionally involved in his own case. As he put it in the
present application, it was “my life”. The informant was represented by
experienced counsel instructed by a solicitor.
145 Mr Tomasevic’s application was for leave to proceed
with an appeal against findings of guilt and sentence of a magistrate that was
three years out of time. The judge had to apply cl 1(3) of Schedule 6 of the Magistrates’
Court Act 1989, which required Mr Tomasevic to establish that, in the
judge’s opinion, the delay in bringing the appeal was due to exceptional
circumstances and that, to the judge’s satisfaction, the informant’s case would
not be materially prejudiced. In support of his application, Mr Tomasevic filed
an affidavit with a folder of material, much of which was not relevant.
146 In these circumstances, I think the judge had a duty to
-
• recognise Mr Tomasevic as someone who, as a
self-represented litigant, was gravely disadvantaged
• explain to him the procedures that would be followed in
the hearing and determination of the application
• explain to him the legal requirements that he had to
satisfy, namely that the delay was due to exceptional circumstances and the
informant’s case was not materially prejudiced
• encourage him to make submissions on relevant issues, but
explain to him what was relevant
• discourage him from making submissions on irrelevant
issues, but explain to him what was irrelevant
• ask appropriate questions to confirm he was fully putting
forward the matters he wished to rely on, and ask for elaboration of any areas
apparently not fully covered
• before deciding the application, ask him if there was
anything else that he wanted to add
147 The judge did not assist Mr Tomasevic in these ways.
His Honour conducted a short hearing. He did not tell Mr Tomasevic about the
procedure that would be followed. He did not assist him to present his case. I
think Mr Tomasevic was implicitly aware that the reason for the delay of three
years was an important issue. But he did not know, and he was not told, that
the real issues were exceptional circumstances and material prejudice to the
informant’s case.
148 Not all of these measures of assistance were equally
important. But failing to assist in all of these ways was collectively
significant and, with respect, amounted to a failure on the part of the judge
to ensure a fair trial. The informant’s legal representatives did not
contribute to this failure, for the judge strongly dictated the course that the
hearing followed. The failure constituted a breach of the rules of natural
justice,[179] which is a form of jurisdictional error.
The breach was not a mere technical breach which made no difference to the
outcome of the case, but represented a substantial departure from what was
required.
149 This ground of judicial review will also be upheld.
CONCLUSION
150 A magistrate found Milan Tomasevic guilty of criminal
charges and sentenced him to a conditional 12 months good behaviour bond. Mr
Tomasevic’s counsel failed to attend the hearing, so he was represented by a
solicitor who was not as familiar with his case. In Mr Tomasevic’s view,
important evidence was not properly used by that solicitor, and the magistrate
would not admit it.
151 Mr Tomasevic appealed the magistrate’s decision within
the 30 day time period specified by the Magistrates’
Court Act. He withdrew that appeal, he says because the same solicitor
advised him his career as a teacher would not be affected, which proved to be
incorrect.
152 Three years later, Mr Tomasevic applied to the County
Court of Victoria for leave to proceed with an appeal out of time. The
application was heard by a judge of that Court. Under the Magistrates’
Court Act, the judge could only grant leave if Mr Tomasevic established
that, in the judge’s opinion, the delay in appealing was due to exceptional
circumstances and that, to the judge’s satisfaction, the delay would not
materially prejudice the informant’s case.
153 Mr Tomasevic is qualified as a teacher, not as a
lawyer. He represented himself in the hearing before the judge. The informant
was represented by an experienced barrister, instructed by a solicitor. Mr
Tomasevic was gravely disadvantaged, for he lacked the necessary legal skill
and ability, and objectivity, to present his case.
154 The judge conducted a short hearing in which Mr
Tomasevic did his best. The informant’s counsel was called on to say very
little. The judge did not explain to Mr Tomasevic the procedures that would be
followed or the legal requirements that he had to satisfy. Nor did the judge
assist Mr Tomasevic to present his case. Without mentioning exceptional
circumstances or prejudice to the informant’s case, his Honour rejected the
application on the basis that the delay had been too great.
155 A judge has a fundamental duty to ensure a fair trial
by giving due assistance to a self-represented litigant, whilst at the same
time maintaining the reality and appearance of judicial neutrality. The duty is
inherent in the rule of law and the judicial process. The human rights of
equality before the law and access to justice specified in the International
Covenant on Civil and Political Rights are relevant to its proper performance.
The assistance to be given depends on the particular litigant and the nature of
the case, but can include information about the relevant legal and procedural
issues. Fairness and balance are the touchstones.
156 With respect, I think the judge applied the wrong test
in coming to his decision. His Honour applied a long delay test, not a test
based on exceptional circumstances and material prejudice to the informant’s
case. This amounted to a failure on the part of the judge properly to exercise
his jurisdiction under the Magistrates’
Court Act.
157 With respect, I also think the judge, in respects that
were collectively significant, failed properly to perform his duty to ensure a
fair hearing of Mr Tomasevic’s application, given he was self-represented. That
failure constituted a breach of the rules of natural justice, which also
represented a failure on the part of the judge properly to exercise his jurisdiction.
158 For these reasons, Mr Tomasevic’s application for
judicial review in respect of the order of the judge dated
[1] (1893) 6 R 67.
[2] Cf MWJ v R [2005]
HCA 74; (2005) 80 ALJR 329, 340 per Gummow, Kirby and Callinan JJ.
[3] In R v Demiri [2006] VSCA 64, [35], Redlich AJA (Maxwell P and Buchanan
JA concurring) followed MWJ v R [2005]
HCA 74; (2005) 80 ALJR 329, 340 per Gummow, Kirby and Callinan JJ to
state “that, having regard to the essentially accusatory character of a
criminal trial, the rule can only be applied with serous qualifications.”
[4] Bulstrode v
Trimble [1970] VR 840, 847 per Newton J; R v Allen [1989] VR 736,
737 per McGarvie J; R v McDowell [1997] 1 VR 473, 479 per Smith AJA
(Phillips CJ and Southwell AJA concurring); R v Demiri [2006] VSCA 64, [36], Redlich AJA (Maxwell P and Buchanan
JA concurring); R v MG [2006] VSCA 264, [52]-[55] per Coldrey AJA (Nettle JA
concurring; cf Ashley JA [3]-[10]).
[5] [2006] VSCA 64, [36]. For the proposition stated in the
last sentence of the quoted passage, the Court of Appeal cited Reid v Kerr
(1974) 9 SASR 367, 373-374 per Wells J.
[6] (1990) 19 NSWLR 677,
686-691.
[7] (1989) 54 SASR 17,
23.
[8] [2005]
HCA 74; (2005) 80 ALJR 329, 333; cf 340 per Gummow, Kirby and Callinan JJ;
see also R v McDowell [1997] 1 VR 473, 479-480; R v MG [2006] VSCA 264, [55].
[9] Browne v Dunn
(1893) 6 R 67, 70-71; Bulstrode v Trimble [1970] VR 840, 846; R v
Allen [1989] VR 736, 737; R v Birks (1990) 19 NSWLR 677, 688; R v
Liristis [2004] NSWCCA 287; (2004) 146 A Crim R 547, 560.
[10] (1990) 19 NSWLR
677, 688. The internally quoted words are those of Lord Herschell LC in Browne
v Dunn (1893) 6 R 67, 71.
[11] R v Schneidas
(No 2) (1981) 4 A Crim R 101, 111 per Street CJ, O’Brien CJ of the Criminal
Division and Lee J.
[12] Payless
Superbarn (NSW) Pty Ltd v O’Gara (1990) 19 NSWLR 551, 557 per Clarke JA,
Priestley and Meagher JJA agreeing.
[13] (1981) 4 A Crim R
101, 111.
[14] See Crosthwaite
v City of
[15] The authorities
were reviewed by Gleeson CJ in R v Birks (1990) 19 NSWLR 677, 686-692;
see also R v Liristis [2004] NSWCCA 287; (2004) 146 A Crim R 547, 561-562.
Whether the holding in R v Schneidas (No 2) can survive the
direction of the analysis expressed in MWJ v R [2005]
HCA 74; (2005) 80 ALJR 329, 333, 340 remains to be seen.
[16] [1989] VR 736, 738.
[17] (1981) 4 A Crim R
101.
[18] [1970] VR 840.
[19] Ibid 850.
[20] [2006]
VSC 45, [66]-[68].
[21] (1992) 110 ALR 201,
204.
[22] [1989] VR 736.
[23] [1970] VR 840.
[24] See Dietrich v R
[1992] HCA 57; (1992) 177 CLR 292, 299 per Mason CJ
and McHugh J, see also 325 per Brennan J, 326 per Deane J, 353, 361 per Toohey
J, 362 per Gaudron J. The authorities are extensively examined below.
[25] See generally R
v Birks (1990) 19 NSWLR 677, 689-692;
[26] R v Allen
[1989] VR 736, 738; but there is a need for caution here: R v Birks
(1990) 19 NSWLR 677, 691-692; MWJ v R [2005]
HCA 74; (2005) 80 ALJR 329, 333, 339-340; R v Demiri [2006] VSCA 64, [35]; R v MAP [2006] QCA 220, [55].
[27] Bulstrode v
Trimble [1970] VR 840, 847; R v Killick (1980) 24 SASR 137, 153; Reid
v Kerr (1974) 9 SASR 367, 375; Crosthwaite v City of Elizabeth
(1989) 51 SASR 105, 111; R v Popescu (1989) 39 A Crim R 137, 140-141; R
v Aldridge (1990) 20 NSWLR 737, 743; MWJ v R [2005]
HCA 74; (2005) 80 ALJR 329, 339-340; cf R v MG [2006] VSCA 264, [3]-[10].
[28] See s
44(3) and (4)(a) of the Interpretation
of Legislation Act 1984.
[29] Attachment MTH.
[30] Attachment MT-1.
[31] Rule 56.02.
[32] R v Australian
Stevedoring Industry Board; Ex parte
[33] Hughes v Morgan
[1998] VSC 147, [18].
[34] Gradidge v Grace
Bros Pty Ltd (1988) 93 FLR 414, 422 per Kirby P, 426 per Samuels JA and 427
per Clarke JA, agreeing with Kirby P.
[35] Article 14(1)
provides that “all persons shall be equal before the courts and tribunals.”
Article 26 provides that “all persons are equal before the law and are entitled
without any discrimination to the equal protection of the law.”
[36] Article 14(1)
further provides that “in the determination of any criminal charge against him,
or of his rights and obligations in a suit at law, everyone shall be entitled
to a fair and public hearing by a competent, independent and impartial tribunal
established by law.”
[37] Article 14(3)(f)
specifies, in criminal case, the right: “To have the free assistance of an
interpreter if he cannot understand or speak the language used in court”.
[38] R v Macfarlane;
Ex parte O’Flanagan and O’Kelly [1923]
HCA 39; (1923) 32 CLR 518, 541-542 per Isaacs J (speaking of “the elementary
right of every accused person to a fair and impartial trial”); cited with
approval Dietrich v R [1992]
HCA 57; (1992) 177 CLR 292, 326 per Deane J.
[39] Dietrich v
R [1992] HCA 57; (1992) 177 CLR 292, 326, 362; R v
Kerbatieh [2005] VSCA 194; (2005) 155 A Crim R 367, 374.
[40] See eg s1(2):
“this Charter”.
[41] Section
49(2); see R v Williams [2007]
VSC 2, [48].
[43] [2007]
VSC 2, [48].
[44] By originating
motion dated
[45] [2007]
VSC 2, [48].
[46] Ibid [55].
[47] Minister for
Immigration and Ethnic Affairs v Teoh [1995]
HCA 20; (1994-1995) 183 CLR 273, 287.
[48] Dietrich v
R (1992) 177 CLR 292, 305; Industrial Relations Act Case [1995]
HCA 45; (1995-1996) 187 CLR 416, 480-481; Minister for Immigration
and Ethnic Affairs v Teoh [1995]
HCA 20; (1994-1995) 183 CLR 273, 287; Sinanovic v R [1998]
HCA 40; (1998) 154 ALR 702, 707; Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366, 372; Minogue v
Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 447.
[49] Dietrich v
R [1992] HCA 57; (1992) 177 CLR 292, 306; Koowarta v
Bjelke-Petersen [1982]
HCA 27; (1982) 153 CLR 168, 265; Minister for Immigration and Ethnic
Affairs v Teoh [1995] HCA 20; (1994-1995) 183 CLR 273, 287; and see
generally DC Pearce and RS Geddes, Statutory Interpretation in Australia
(6th ed, 2006) 38-42.
[50] Jumbunna Coal
Mine NL v Victorian Coal Miners Association [1908]
HCA 87; (1908) 6 CLR 309, 363; Chu Kheng Lim v Minister for
Immigration, Local Government and Ethnic Affairs [1992]
HCA 64; (1992) 176 CLR 1, 38; Minister for Immigrations and Ethnic
Affairs v Teoh [1995] HCA 20; (1994-1995) 183 CLR 273, 287; and see
generally DC Pearce and RS Geddes, Statutory Interpretation in Australia
(6th ed, 2006) 176-177.
[51] Minister for
Immigration and Ethnic Affairs v Teoh [1995]
HCA 20; (1994-1995) 183 CLR 273, 285, 302, 304-305.
[52] For example,
building on the list supplied by Maxwell P in Royal Women’s Hospital v
Medical Practitioners Board of
• in sentencing: R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23, 37, 43; R
v Hollinshed (1993) 112 FLR 109, 115; see also Walsh v Department of
Social Security [1996] SASC 5795; (1996-1997) 67 SASR 143, 147; Bates
v Police [1997] SASC 6430; (1997) 70 SASR 66, 70-71 (but see
contra Smith v R (1998) 98 A Crim R 442, 448)
• in bail: Schoenmakers v Director of Public
Prosecutions (1991) 30 FCR 70, 75 (but see United Mexican States v Cabal
[2001] HCA 61; (2001) 209 CLR 165 which overruled
this decision on statutory grounds); Re Rigoli [2005] VSCA 325, [5]
• in granting or refusing injunctions: Wickham v
Canberra District Rugby League Football Club Ltd (1998) ATPR ¶41-664,
41,390, 41,401-2; R v Khazaal (2006) 167 A Crim R 565, 572 (right to
select own counsel specified in art 14(3)(d) of the ICCPR taken into account as
one reason not to issue injunction restraining a particular counsel from
continuing to act for an accused)
• in excluding confessional evidence: McKellar v Smith [1982]
2 NSWLR 950, 962F
• in adopting procedures or exercising powers to ensure a
trial or hearing is fair and impartial: Gradidge v Grace Bros Pty Ltd
(1988) 93 FLR 414, 422 per Kirby P, 426 per Samuels JA and 427 per Clarke JA,
agreeing with Kirby P (as discussed above, arts 14.1, 14.3(a) and 14,3(f) of
the ICCPR cited in support of the conclusion that the trial judge had erred in
the exercise of his judicial discretion to control the use of interpreters by
directing that counsels’ argument not be interpreted to a deaf mute); Sinanovic
v R [1998] HCA 40; (1998) 154 ALR 702, 707; Awan v
Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594; (2002) 120 FCR 1, 12 (early trial
ordered because of strain being felt by the applicant, it being right to
accommodate that strain to ensure he was not denied “equal access to justice”);
Smits v Roach (2006) 227 CLR 423, 459-460 per Kirby J (the right to a
hearing before an impartial tribunal specified in art 14.1 of the ICCPR held to
inform the law that a judge had a duty to disqualify where circumstances
created a reasonable apprehension of bias); see also Batistatos v Roads and
Traffic Authority (NSW) [2006]
HCA 27; (2006) 80 ALJR 1100, 1130, 1132 per Kirby J(taking the right to
access to justice into account as a reason for not granting a stay of
proceeding for abuse of process, but dissenting on the result).
[53] Minister for
Immigration and Ethnic Affairs v Teoh [1995]
HCA 20; (1994-1995) 183 CLR 273, 291, 302, 304-305; Minogue v Human
Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 448; cf Re
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam
[2003] HCA 6; (2003) 214 CLR 1 and Royal Women’s
Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, 39-40.
[54] Dietrich v
R [1992] HCA 57; (1992) 177 CLR 292, 321, 360; Mabo
v Queensland [No 2] [1992]
HCA 23; (1992) 175 CLR 1, 41-43 (per Brennan J with whom Mason CJ and
McHugh J agreed); Jago v District Court of New South Wales [1989]
HCA 46; (1988) 12 NSWLR 558, 569; Minister for Immigration and
Ethnic Affairs v Teoh [1995]
HCA 20; (1994-1995) 183 CLR 273, 288; Derbyshire County Council v
Times Newspapers Ltd [1992]
UKHL 6; [1992] QB 770, 812-813; Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366, 372; Nulyarimma
v Thompson [1999] FCA 1192; (1999) 165 ALR 621, 676; Royal
Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22,
39; Smits v Roach (2006) 227 CLR 423, 459-460.
[55] Dietrich v
R [1992] HCA 57; (1992) 177 CLR 292, 337; Minister
for Immigration and Ethnic Affairs v Teoh [1995]
HCA 20; (1994-1995) 183 CLR 273, 305; Royal Women’s Hospital v
Medical Practitioners Board of
[56] (2006) 15 VR 22,
38.
[57] The Red Lily
(1894) chapter 7.
[58] [1971] VR 853, 864.
[59] Australian
Institute of Judicial Administration Incorporated, Litigants in Person
Management Plans: Issues for Courts and Tribunals (2001).
[60] Ibid 3 (footnote
omitted).
[61] Ibid 4 (footnote
omitted).
[62] Nagy v Ryan [2003]
SASC 37, [40]-[41]; Commissioner of Taxation v Metaskills Pty Ltd [2003] FCA 766; (2003) 130 FCR 248, 273; R v White
[2003] VSCA 174; (2003) 7 VR 442, 454-459; Tobin v
Dodd [2004] WASCA 288, [13]; Panagiotopoulos v Rajendram [2005] NSWCA 58, [33]; Stock v Anning [2006] WASC 275, [54]; R v Rostom [2007] SASC 210, [59] (accused could not read English); In
the Marriage of Sajdak (1992) 16 Fam LR 280, 283-284 (no legal
representation or reliable interpreter, so “almost laughable to speak of
notions such as equality of access to the courts”).
[63] Dietrich v R [1992]
HCA 57; (1992) 177 CLR 292; Awan v Minister for Immigration and
Multicultural and Indigenous Affairs [2002] FCA 594; (2002) 120 FCR 1, [46]; Nagy v
Ryan [2003] SASC 37, [40].
[64] See eg
[65] Collins (alias
Hass) v R [1975] HCA 60; (1975) 133 CLR 120, 122; Burwood
Municipal Council v
[66] R v Zorad
(1990) 19 NSWLR 91, 95; Cachia v Hanes [1994]
HCA 14; (1994) 120 ALR 385, 391.
[67] MacPherson v R [1981]
HCA 46; (1981) 147 CLR 512, 546; R v Zorad (1990) 19 NSWLR 91,
95; In Re an Inquiry into Mirror Group Newspapers PLC [2000] Ch 194, 212
(a civil case).
[68] Dietrich v R [1992]
HCA 57; (1992) 177 CLR 292, 336; see also Craig v
[69] Karounos v R
(1995) 77 A Crim R 479, 485-6.
[70] MacPherson v R [1981]
HCA 46; (1981) 147 CLR 512, 546-547.
[71] [1992]
HCA 57; (1992) 177 CLR 292.
[72] Ibid 299 per Mason
CJ and McHugh J, see also 325 per Brennan J, 326 per Deane J, 353, 361 per
Toohey J, 362 per Gaudron J.
[73] Ibid 326.
[74] Ibid 362.
[75] Ibid 363-364
(footnotes omitted).
[76] Ibid 331 per Deane
J; 363 per Gaudron J.
[77] Ibid 363 per
Gaudron J.
[78] Ibid 328 per Deane
J; see also Jago v District Court of New South Wales [1989]
HCA 46; (1989) 168 CLR 23, 57.
[79] Barton v R [1980]
HCA 48; (1980) 147 CLR 75, 96; cited in Dietrich v R [1992]
HCA 57; (1992) 177 CLR 292, 327.
[80] The County Court of
[81] R v Nilson
[1971] VR 853, 864; Cooling v Steel [1971] 2 SASR 249, 251; MacPherson
v R [1981] HCA 46; (1981) 147 CLR 512, 524, 534, 546-547;
R v Gidley [1984] 3 NSWLR 168, 181; R v Zorad (1990) 19 NSWLR 91,
100; Dietrich v R [1992]
HCA 57; (1992) 177 CLR 292, 327; R v White [2003] VSCA 174; (2003) 7 VR 442, 453-458; Pezos v
Police [2005] SASC 500; (2005) 94 SASR 154, 159-160; R v
Kerbatieh [2005] VSCA 194; (2005) 155 A Crim R 367, 379-380; R
v Rostom [2007] SASC 210, [35]-[43].
[82] Abram v Bank of
New Zealand (1996) ATPR ¶41-507, 42,341, 42,347; Rajski v Scitec
Corporation Pty Ltd (New South Wales Court of Appeal, 16 June 1986,
unreported (the relevant passages from the judgment are set out below and in Re
Morton; Ex parte Mitchell Products Pty Ltd [1996] 828 FCA 1; (1996) 21 ACSR 497, 513-514); Andrew
Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2006] SASC 381, [54]; Uszok v Henley Properties (NSW)
Pty Ltd [2007] NSWCA 31, [148]-[157] per Beazley JA, Basten JA
concurring and Bryson JA dissenting; Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19, 23; Nagy v Ryan
[2003] SASC 37 [39]-[46]; Panagopoulos v Southern
Healthcare Network (Supreme Court of Victoria, Smith J, 15 September 1997,
unreported, BC 9704538, 2); Santamaria v Secretary to Department of Human
Services [1998] VSC 107, [28]; Zegarac v Tomasevic [2003] VSC 150, [3]; Minogue v Human Rights and Equal
Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 445-447; Tobin v
Dodd [2004] WASCA 288, [13]-[16]; Murphy v Stevens [2003] SASC 238, [204]-[209] (Full Court).
[83] Panagiotopoulos
v Rajendram [2005] NSWCA 58, [33]; Tobin v Dodd [2004] WASCA 288, [13]-[14]; Re Morton; Ex
parte Mitchell Products Pty Ltd [1996] 828 FCA 1; (1996) 21 ACSR 497, 513-514;
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536; Panagiotopoulos
v Rajendram [2005] NSWCA 58, [35]-[36]; Awan v Minister for
Immigration and Multicultural and Indigenous Affairs [2002] FCA 594; (2002) 120 FCR 1, 17; Tobin v Dodd
[2004] WASCA 288, [15]-[16].
[84] See eg Andrew
Garrett Wines Resorts Pty Ltd v National
[85] See eg Cooling v
Steel [1971] 2 SASR 249, 250-251; Black v Smith (1984) 75 FLR 110,
112-113; Nagy v Ryan [2003]
SASC 37, [39]-[46]; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154, [8]-[20]; KC
Nominees Pty Ltd v Arrowsmith (2006) 232 ALR 789, 798, 806; Stock v
Anning [2006] WASC 275, [54]-[58].
[86] See eg Davidson
v Aboriginal and Islander Child Care Agency (1998) 105 IR 1, 8-10 (Full
Bench of the Australian Industrial Relations Commission).
[87] Santamaria v
Secretary to Department of Human Services [1998] VSC 107, [28].
[88] Zegarac v
Tomasevic [2003] VSC 150, [3].
[89] [1981]
HCA 46; (1981) 147 CLR 512.
[90] Ibid 523 per Gibbs
CJ and Wilson J, see also 534 per Mason J.
[91] Ibid 524; see also Andrew
Garrett Wines Resorts Pty Ltd v National
[92] Ibid 535 per Mason
J, 546 per Brennan J.
[93] Ibid 534 per Mason
J.
[94] Ibid.
[95] Ibid 524 per Gibbs
CJ and Wilson J, see also 546-547 per Brennan J.
[96] [1992]
HCA 57; (1992) 177 CLR 292.
[97] [1981]
HCA 46; (1981) 147 CLR 512.
[98] Dietrich v R [1992]
HCA 57; (1992) 177 CLR 292, 302 per Mason CJ and McHugh J, 334-335 per
Deane J, 345 per Dawson J, 354 per Toohey J, 369 per Gaudron J.
[99] Ibid 325.
[100] Ibid 335.
[101] Ibid 345.
[102] Ibid 354.
[103] See eg Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19, 23; NAGA v
Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003]
SASC 37, [52]-[53].
[104] (1996) ATPR ¶41-507, 43,341.
[105] [1994]
HCA 23; (1994) 121 ALR 148, 150.
[106] (1996) ATPR ¶41-507, 43,341, 43,347.
[107] Ibid.
[108] (2004) 63 IPR 54.
[109] Ibid 58; see also R v Rostom [2007] SASC 210, [43].
[110] [2005] SASC 500; (2005) 94 SASR 154.
[111] Ibid 157.
[112] (2004) 190 Man R (2d) 298.
[113] Ibid [36] citing Lieb v Smith (1994) 120 Nfld &
PEIR 201, [15] and Wagg v R [2004]
1 FC 206.
[114] [1981]
HCA 46; (1981) 147 CLR 512.
[115] [1984] 3 NSWLR 168.
[116] (1990) 19 NSWLR 91.
[117] [1984] 3 NSWLR 168.
[118] Ibid 181.
[119] Ibid.
[120] Ibid.
[121] (1990) 19 NSWLR 91.
[122] Ibid 99-102.
[123] Ibid 94-95.
[124] [1999] FCA 85; (1999) 84 FCR 438.
[125] Sackville, North and Kenny JJ.
[126] Supreme Court of New South Wales, Court of Appeal,
unreported,
[127] Ibid 14; taken from the judgment in Minogue v Human
Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 446.
[128] Ibid 27; taken from the judgment in Minogue at 446.
[129] [1999] FCA 85; (1999) 84 FCR 438, 446.
[130] Sahtout v Minister for Immigration and Multicultural
Affairs [2002] FCAFC 16, [42];
[131] Tobin v Dodd [2004] WASCA 288, [14]; Murphy v Stevens [2003] SASC 238, [205] (
[132] Panagiotopoulos v Rajendram [2005] NSWCA 58, [33].
[133] Pezos v Police [2005] SASC 500; (2005) 94 SASR 154, 157.
[134] Supreme Court of Victoria, unreported,
[135] (1995) 86 LGERA 389, 391-396.
[136] BC 9704538, 9.
[137] Ibid 12.
[138] Ibid 9; also cited with approval in Murphy v Stevens
[2003] SASC 238, [207] (
[139] BC 9704538, 9; citing Livesey v New South Wales Bar
Association [1983] HCA 17; (1983) 151 CLR 288, 293; Vakauta v
Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v R
(1994) 101 CLR 41, 47, 67-8; R v Watson [1976]
HCA 39; (1976) 136 CLR 248.
[140] BC 9704538, 10.
[141] Ibid.
[142] Ibid 13-15.
[144] See ibid [50]-[54].
[145] Ibid [49]-[73].
[146] (1999) 69 OR (3d) 384 (
[147] Laches is slackness or negligence in not doing something
that you should do: Daniel Greenberg and Alexandra Millbrook, Stroud’s
Judicial Dictionary of Words and Phrases (6th ed, 2000) Vol 2,
1398.
[148] Ibid 395.
[149] Ibid 395-396.
[150] On the relationship between the laws of evidence, the
function of the trial process to find facts on which can be made a decision on
the merits, the need for the parties to be given and feel they have had a fair
trial and the maintenance of public confidence in the trial system, see
Australian Law Reform Commission, Interim Report No 26: Evidence
(Australian Government Publishing Service, 1985) Volume 1, 28-32.
[151] [1992]
HCA 57; (1992) 177 CLR 292.
[152] Supreme Court of Victoria, Smith J, unreported,
[153] [2004] TASSC 24, [49]-[73].
[154] (1999) 69 OR (3d) 384, 395-396.
[155] [2001] FamCA 348; (2001) 27 Fam LR 517, 551.
[156] [2003] VSCA 174; (2003) 7 VR 442.
[157] [1992]
HCA 57; (1992) 177 CLR 292.
[158] [1981]
HCA 46; (1981) 147 CLR 512.
[159] [2003] VSCA 174; (2003) 7 VR 442, 454.
[160] Ibid.
[161] Ibid.
[162] Ibid 456.
[163] Ibid 445, 474.
[164] [2005] SASC 500; (2005) 94 SASR 154, 159.
[165] [2003] VSCA 174; (2003) 7 VR 442, 456.
[166] See eg Re F: Litigants in Person Guidelines (2001) [2001] FamCA 348; 27 Fam LR 517, 551.
[167] Wagg v R [2004]
1 FC 206, [32] (Federal Court of Appeal of
[168] [2003] VSC 150, [3].
[169] For example, as we saw, the County Court of Victoria has
published a valuable report: Self-represented Parties: A Trial Management
Guide for the Judiciary (County Court of Victoria, 2004). The Australian
[170] (1997) 22 Fam LR 141.
[171] [2001] FamCA 348; (2001) 27 Fam LR 517.
[172] [1999] FCA 85; (1999) 84 FCR 438.
[173] [2001] FamCA 348; (2001) 27 Fam LR 517, 550.
[174] Ibid 518-519 (taken from the headnote). Similar guidelines
were produced for the Australian
[175] Brehoi v Minister for Immigration and Multicultural
Affairs [2001] FCA 931; Platcher v Joseph [2004] FCAFC 68, [137] (Weinberg J).
[176] Santamaria v Secretary to Department of Human Services
[1998] VSC 107, [14]-[15] (the former guidelines);
Zegarac v Tomasevic [2003] VSC 150, [3] (the revised guidelines).
[177] Mentyn v Law Society of
[178] Pezos v Police [2005] SASC 500; (2005) 94 SASR 154, 157 (the former
guidelines).
[179] Compare Luck v Renton [2005] VSCA 210, [65]-[66] where Maxwell P and Harper AJA
held a judge of this Court had failed to afford procedural fairness to a
self-represented litigant by dismissing her applications for an extension of
time and for leave to appeal when she was too distressed to present arguments
in support of them.
http://www.austlii.edu.au/au/cases/vic/VSC/2007/337.html
