26 October 2007

Self-represented but not alone: judges’ duties to help

Sally Sheppard

By Sally Sheppard.

Key Points:
Victorian courts will be focusing more on human rights with the commencement of Divisions 3 and 4 of Part 3 of the Charter of Human Rights and Responsibilities next year. In general terms, from 1 January: statutory provisions must be interpreted in a way that is compatible with human rights; and it will be unlawful for public authorities to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. However, in addition to any new obligations prescribed by the Charter in Victoria, the International Covenant on Civil and Political Rights (to which Australia is a signatory), obliges all Australian courts to promote and respect the fundamental human rights of equality before the law and access to justice.

Over the last 15 years there has been a significant increase in the number of self-represented litigants in the courts, not least in cases involving Government at every level. Their lack of legal skills and (sometimes) objectivity can complicate trials. How then ought courts and opposing parties respond to them?

The Victorian Supreme Court has recently given some guidance on this. In Tomasevic v Travaglini [2007] VSC 337 Justice Bell reviews the Australian authorities which have considered the duties owed by judges to self-represented litigants.

Mr Tomasevic sought review of a decision by a judge in the Victorian County Court. Both in that Court and the Supreme Court he was unrepresented. Although an educated and intelligent man, he has no legal training.

Justice Bell overturned the decision of the County Court judge for two reasons: he had applied the wrong test in deciding whether Mr Tomasevic should have leave to appeal against the original magistrate’s decision in the matter, and had failed in his duty to assist Mr Tomasevic as a self-represented litigant, which breached the rules of natural justice.

What was this duty? How had it been breached?

Justice Bell said that every person has a right to a fair trial. This right is inherent in the law, and is spelt out in the ICCPR and Victoria’s Charter of Human Rights and Responsibilities.

Although educated and intelligent, said Justice Bell, Mr Tomasevic was in a position of grave disadvantage as a self-represented litigant, as he "lacked two critical qualities possessed by competent lawyers: professional skill and ability, and objectivity". He was 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.

This doesn’t mean that the trial judge ought to have become his de facto lawyer. As Justice Bell pointed out, a judge must maintain the reality and appearance of judicial neutrality. It does mean that the judge must use fairness and balance as the touchstones in dealing with self-represented litigants. He said that as the law currently stands in Australia:

• 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.
• because self-represented litigants are usually gravely disadvantaged in legal proceedings, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance.
• the type of help depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. It might extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.
• the assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant.

In this particular case, that meant that the judge had an obligation to:

• recognise Mr Tomasevic as someone who, as a self-represented litigant, was gravely disadvantaged
• explain the procedures that would be followed in the hearing and determination of the application
• explain the legal requirements that the applicant had to satisfy
• encourage him to make submissions on relevant issues, but explain what was relevant
• discourage him from making submissions on irrelevant issues, but explain 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; and
• before deciding the application, ask him if there was anything else that he wanted to add.

Implications

When appearing against self-represented litigants, all represented litigants, and particularly Government with its model litigant obligations, should ensure that courts are sensitive to the special issues thrown up by self-represented litigants.

This decision is also an important reminder of the growing importance of human rights instruments in the courts. For Victorian Government, this is especially timely, given the commencement of the Charter in January 2008. As with the International Covenant on Civil and Political Rights in Tomasevic, Victorian courts’ decisions will be informed by the rights enshrined in the Charter.

For further information, please contact Sally Sheppard.