Is the Court in a Civil Cause a Neutral Umpire or Need it Assist a Self-Represented Litigant?
Two recent decisions of intermediate appellate courts identified an arguably contrasting view of the extent to which (if at all) a court in a civil – cf criminal – cause should afford advice and assistance to a self-represented litigant, so as to obviate misconception as to sufficiency of evidence or argument.
In Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94 (6 May 2025), the plaintiff was self-represented at trial upon a cause of action for negligence. The defendant succeeded in a no case submission on account of the plaintiff being unable to establish factual causation. The plaintiff’s appeal from that decision was allowed (he being represented by counsel on such appeal). The Court of Appeal of Victoria (Beach and Kennedy JJA and J Forrest AJA) wrote evincing a more indulgent approach:
[1] The applicant arranged for the installation of a septic tank system on his property in Seaton. He alleges that this system was missing a part — variously described as an ‘aerator arm’, or ‘aerator shaft’ – which caused him to suffer recurrent Helicobacter Pylori (‘HP’) infections, sickness, loss and damage.
[2] The applicant brought a case in negligence and contract against the manufacturer of the septic tank system in the County Court. He alleged that the system was improperly installed and maintained. By the time the matter came to trial, the applicant was self-represented. He gave evidence himself. He also adduced evidence from his friend, Ms Berry, who assisted him at the trial. However, at the conclusion of this evidence, the respondent made a no case submission on the basis that the applicant could not prove his case in respect of causation. More particularly, that he could not prove that the fitting of the aerator arm would have averted his injury.
[3] The judge upheld the no case submission and gave judgment for the respondent.
[4] The applicant now seeks leave to appeal the judge’s decision on the basis of two proposed grounds:
(1) the judge erred in that he failed to provide the applicant, as an unrepresented litigant, the degree of assistance required to ensure procedural fairness and the undertaking of a fair trial;
(3) the judge erred in ruling in favour of the respondent’s no case submission:
(a) without having considered whether it was an appropriate case to invoke s 51(2)Wrongs Act 1958 (‘Wrongs Act’), as is required by the Act;
(b) without providing the applicant, as an unrepresented litigant, the opportunity of proving causation by an alternative means under s 51(2) if factual causation could not be established. .1
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[17] In October 2018, Slater and Gordon filed a proceeding on behalf of the applicant against the respondent alleging the improper installation and maintenance of the septic system. The applicant’s case was brought in negligence and, alternatively, in contract. On 22 April 2021, Slater and Gordon ceased to act for the applicant.
[18] By orders made on 15 November 2022, Judge Tran set the proceeding down for trial commencing on 15 September 2023. She also ordered the respondent to file and serve a draft statement of issues which was subsequently filed. The issues identified included whether any breach of contract or duty of care by the respondent caused loss and damage to the applicant.
[19] The trial was subsequently conducted on 15, 18, 19, 20 and 21 September 2023. The applicant remained self-represented, but, as indicated already, was assisted by his friend, Ms Berry. The respondent’s counsel was Mr Makowski.
[20] Given the applicant alleged that he was denied procedural fairness, it is necessary to outline, in some detail, the course of the trial.
Course of the trial
[21] The judge raised at the outset whether the applicant was going to give evidence and, upon clarifying that he was, he told him that he needed to give ‘all [his] evidence’ which needed to cover ‘all aspects’ of his case. The judge explained the ‘ground rules’, indicating that the applicant would give evidence first, then he would be cross-examined by Mr Makowski, and that he would then be re-examined. The applicant could then make a decision about whether Ms Berry would give evidence and should also tell the judge what documents he wished to tender. After that, his case would ‘conclude’ and Mr Makowski’s case ‘will begin’. He added that it was ‘entirely up to him [Mr Makowski] how he runs his case. We’ll see.’
[22] After proceeding to explain the concept of opening submissions, the judge asked Mr Makowski if there was anything that should be elaborated upon so that the applicant could better understand the process. Mr Makowski replied ‘no’, but ensured that the judge had the statement of agreed issues. The judge then asked Mr Makowski: ‘you don’t have to commit to this, but if you were to go into evidence, how many witnesses do you anticipate calling?’ Mr Makowski replied that he had ‘potentially two’, being Mr John Taylor and his son, Andrew Taylor who had many dealings with the applicant and inspected the septic system in October 2011. As mentioned earlier, it was Mr Andrew Taylor who, on the applicant’s account, failed to install (or arrange for the installation of) the aerator arm of the system.
[23] Ms Berry then made an opening on behalf of the applicant.
[24] At the completion of this opening, the judge invited Mr Makowski to make a statement, but he indicated that he was not going to say anything at that stage and that he would prefer to do an opening at the close of the applicant’s case. When pressed as to what the central issues in dispute were, he identified a number, including the content of the duty and causation.
[25] The applicant then proceeded to give evidence, with the assistance of the judge. This assistance included the provision of transcript and the statement of issues, as well as the statement of claim. The applicant was then cross-examined.
[26] Following the cross-examination, there was an exchange between the judge and the applicant about his imminent re-examination during which time the judge inquired about whether Ms Berry was available. In the course of dealing with this matter, the applicant indicated that he had ‘one other question’. He was asked to stand up and the following exchange occurred (‘the first exchange’):
MR TURNER: Was about the two witnesses on your — when are they — they will likely to be called?
HIS HONOUR: Well, at this stage, Mr Turner, we’re uncertain if there will be any evidence from the [respondent]. I’ll wait to hear about that. But your case has to finish first before Mr Makowski makes a decision whether he calls anyone to give evidence.
MR TURNER: Is that right, Your Honour? Yeah.
HIS HONOUR: It is.
MR TURNER: Yep, yep. No — no problem, because — yes, yes.
HIS HONOUR: So we’ll just wait and see what happens when your case finishes.
MR TURNER: Yes, yes, Your Honour, no problems.
HIS HONOUR: All right, thank you.
[27] As will be seen, below, this exchange is one of two passages upon which the respondent places particular reliance.
[28] Ms Berry was then called and gave evidence for a relatively short time.
[29] Once Ms Berry withdrew from the witness box, the judge stated to the applicant that it was his case and he had to ‘prove every element of it’. The judge indicated that he wanted the applicant to be absolutely certain that Ms Berry could not give any other relevant evidence and therefore gave him overnight to consider this issue.
[30] Following this discussion, the judge also addressed Mr Makowski and said that he did not need to hear ‘a final position’ from him at that point, but asked ‘how does tomorrow look?’ Mr Makowski’s response was that they would continue going through tendering of documents and objections, see what Ms Berry said, and that he would ‘prefer to reserve [his] position until the [applicant’s] case is closed’. The judge then adjourned the court.
[31] The following day, the applicant sought to ask only one further question of Ms Berry who was recalled, at which point the applicant was asked if that was the only evidence he wished to call from Ms Berry. The following exchange then occurred (‘the second exchange’):
MR TURNER: Yes, Your Honour. The — my cross-examination of the [respondent’s] witnesses, all the relevant information is in there, because the — the rest of it’s all only hearsay. We’ve decided just to stick with the facts that we can bring to the court.
HIS HONOUR: All right, Mr Turner. As you know, you are a self-represented litigant.
MR TURNER: Yes.
HIS HONOUR: And while I can assist you to identify the issues in the case, I cannot step into your shoes and conduct your case for you.
MR TURNER: Yep.
HIS HONOUR: So, once again, I would remind you, it is your case to prove—
MR TURNER: Yes.
HIS HONOUR: – – – all the elements in your cause of action. One of the elements in your cause of action relates to what’s called your damages.
MR TURNER: Yes.
HIS HONOUR: Your compensation, and that is based around your pain and suffering.
MR TURNER: Yes.
HIS HONOUR: Now, I advised you about that on Friday, I gave you time yesterday to consider whether you could call evidence from Ms Berry that went to any of the issues in dispute in the statement of claim and in — set out in the statement of issues.
MR TURNER: Yes.
HIS HONOUR: I’ve given you that time. I’ve asked you again – -—
MR TURNER: Yes.
HIS HONOUR: – – – whether or not you want to call any evidence from Ms Berry, and you now indicated to me you don’t wish to call any further evidence from her?
MR TURNER: Yeah, no, Your Honour. There — the evidence that I’ve presented is — is the only evidence that we’ve got. I think there’s only one point left — left to prove.
HIS HONOUR: Well – – –
MR TURNER: And — and — and that’s because it — it — it with — and that — in the opposition, and when I can cross-examine then, or there’s a list of — of offence. I can’t give you any more than that, because the — the doctor’s evidence is the — three doctors and Dr Johnstone, his report, on me.
[32] The judge then indicated that he was only speaking to Ms Berry’s evidence. There was then no further evidence adduced from Ms Berry. Instead, a number of further documents were tendered, and the applicant was briefly recalled in order to effect such tender. The documents included medical reports of three gastroenterologists: Associate Professor Paul Desmond, Dr John Coleman and Dr Andrew Jakobovits.
[33] The judge then gave the applicant ‘one last chance’ to tell him if there was any further evidence he wished to call. A number of documents were discussed. At the conclusion of that discussion, the applicant indicated that those documents were all that he wanted to add. The judge then stated:
All right, so that means once you’ve put all of your evidence in, I will ask you a formal question, which is, ‘Have you closed your case, Mr Turner?’ And when you say to me, ‘Yes, I have’, that means that all the evidence in your case is in and you will not be permitted to call further evidence, unless during the course of the [respondent’s] case something comes up and you wish to put additional documents to them which you can prove through one of those witnesses. All right?
[34] The applicant responded, ‘yes’, whereupon the judge said that once his case was closed it was an indication that the evidence that he had called was sufficient to succeed in his case. The applicant then agreed that he was ready to close his case, and the judge stated that he marked his case as closed.
[35] The judge then turned to Mr Makowski, asking him what was ‘the situation’, whereupon Mr Makowski immediately responded (without taking instructions, or asking for time) that the respondent ‘proposes to make a no case submission’. He also indicated that he was content to be put to his election.
[36] The judge then explained to the applicant that the respondent had applied to proceed to a ‘no case’ submission. By that, the respondent was saying that the applicant had not made out the elements required to be successful so that it was pointless to go on and that the respondent was ‘not obliged to call any evidence’. In response to this explanation, the applicant stated:
Yes. No, Your Honour, the cross-examination of his clients, to me, will be the whole approach of the whole case.
[37] The judge replied that there was no obligation on the respondent ‘to call any evidence’. He also stated that he had stressed from the outset that the applicant had to satisfy all the elements in his cause of action set out in the statement of claim and statement of issues. Following these statements, the applicant stated:
I was waiting — waiting for the cross-examination of them. That — I – I don’t understand the law the way youse [sic] people do, no.
[38] The judge subsequently granted leave to the respondent to make the no case submission, heard submissions and reserved his decision.
[39] By reasons delivered on 18 October 2023, the judge accepted the no case submission and gave judgment for the respondent.
Judge’s reasons
[40] The judge noted that the respondent’s no case submission was based on a failure in respect of causation. More particularly, the respondent’s submission was that the applicant had not adduced evidence in relation to the following matters:
(a) assuming the septic system was missing the aerator arm until January 2017, whether it emitted any HP through the effluent pipes which were located in the lawn areas; and
(b) even if the system did emit HP, whether it caused the applicant’s HP infection ie whether the applicant ingested HP coming from that system.6
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Whether the trial judge erred in that he failed to provide the applicant, as an unrepresented litigant, the degree of assistance required to ensure procedural fairness and the undertaking of a fair trial (ground 1)
Applicant’s submissions
[47] In written submissions, the applicant submitted that he was confused in relation to the procedural aspects of the trial. He highlighted various extracts from the transcript where he indicated that the cross-examination of the respondent’s witnesses was important to his case. He submitted that he only became aware for the first time when the respondent was making its no case submission that there was a possibility that the respondent would not call a witness. He submitted that this then exposed the shortcomings in his case, which had not previously been brought to his attention.
[48] The applicant accepted that the judge extended a considerable degree of latitude towards him, but emphasised that it was the occasion when judicial assistance was required, but not provided, which was critical and that point in time arose in the opening submissions of the parties. Thus the applicant’s submission was that the judge was made aware at the commencement of the trial of the evidence to be adduced on the part of the applicant, with no expert reports filed on questions of liability. Given that the respondent informed the court that causation was in issue, the absence of expert evidence was a powerful indicator of a potential hiatus in the applicant’s case, and this must have been apparent to the judge and to counsel for the respondent. The provision of expert evidence was also not a task one could expect a self-represented litigant to properly undertake without assistance.
[49] The applicant submitted that there were two solutions. First, the judge ought to have declined the request for a no case submission and required the respondent to lead evidence. Secondly, the trial could have been adjourned to allow expert evidence to be obtained by the applicant.
[50] However, the applicant also submitted that the adjournment might be avoided if processes were adopted to ensure the applicant was fully aware of the relevant procedural steps, including the need to ensure that he was able to prove all aspects of his case without being reliant on cross-examining the respondent witnesses. The applicant also submitted that the requirement to ensure that the applicant was aware of such matters further rested on counsel for the respondent. Thus the obligation of ensuring a fair trial could be discharged by the judge seeking an indication from opposing counsel as to whether anything other than what might be perceived as ‘the usual trial process’ was to be employed. The applicant submitted that if the judge had raised the possibility of a no case submission and counsel declined to respond, then that might have been relied upon to refuse the submission were it to be made.
[51] In oral submissions, counsel15 clarified that the real complaint was that the applicant had laboured under a misapprehension that he had the entitlement to cross-examine the respondent’s witnesses.
[52] The applicant again accepted that the judge offered a significant degree of assistance to the applicant, but that it was found wanting when it was actually required. Hence, simply saying that the applicant had to ‘prove his case’ was insufficient where the applicant was aware that he had to adduce all the evidence that he had, but had an expectation that he would be able to cross-examine the respondent’s witnesses. There was no timely warning that the respondent might not call evidence and might elect to make a no case submission.
[53] Counsel submitted that the warning to the effect that it was the applicant’s ‘case to prove’ was insufficient, where the applicant was plainly labouring under a misapprehension that the evidence he had to give was that which he was able to personally offer. In those circumstances, the judge should have identified the consequences of either a no case submission, or a decision on the part of the respondent to not call evidence. The judge did not correct the applicant’s misapprehension that he was entitled to cross-examine the respondent’s witnesses to support his case.
[54] Counsel also submitted that, given the changes in approach to litigation reflected by the Civil Procedure Act 2010, counsel for the respondent should have also informed the court of his intention, or at least informed the judge that he might not call any evidence in support of his case.
[55] Counsel submitted that the matter should be remitted because it was possible that some other step might have been taken once the applicant properly understood his rights. Various possibilities were canvassed, including the possibility of applying for a short adjournment and/or relying on the medical evidence to fill the causation ‘gap’.
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Legal framework
[63] When considering the obligations of a judge in respect of a self-represented litigant, the authorities highlight the flexibility of the applicable requirements.
[64] In Trkulja v Markovic (‘Trkulja’)17, this Court examined a number of authorities, as well as the rationale for a judge’s duty in respect of self-represented litigants, before also highlighting the protean nature of the duty:
Whatever the rationale for the judge’s duty may be, it is clear that the boundaries of legitimate judicial intervention are flexible and will be influenced by the need to ensure a fair and just trial. It follows that what a judge must do to assist a self-represented litigant depends on the circumstances of the litigant and the nature and complexity of the case. The circumstances of the litigant include his or her age, physical and mental health, level of education, proficiency in the English language, level of intelligence, personality and experience as well as his or her understanding of the case. 18
[65] The Court further stated:
In determining the proper scope of assistance to be offered to a self-represented litigant, 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. In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence. It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.19
[66]The Court also observed that the judge should not become the advocate of the self-represented litigant and must maintain the reality and appearance of judicial neutrality at all times and to all parties.20
[67]In 2018, this Court delivered two further decisions where a self-represented litigant complained about a lack of procedural fairness: Roberts v Harkness21 and Doughty-Cowell v Kyriazis (‘Doughty-Cowell’)22. In the second of these decisions, that of Doughty-Cowell, the Court helpfully collated the following relevant principles, highlighting the need to avoid ‘practical injustice’:
- Fairness is not an abstract concept. When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
- The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.
- What is reasonable for this purpose will necessarily depend upon the circumstances. Matters to be taken into account will include:
- the nature and complexity of the issues in dispute;
- the nature and complexity of the submissions which the party wishes to advance;
- the significance to that party of an adverse decision; and
- the competing demands of the time and resources of the Court.
- The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.
- The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of an unrepresented person to formulate, and articulate, the case which they wish to present. As we said:
The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant’s verbal communication with the Court. Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to understand the litigant’s case.23
Analysis
[68] It may be accepted that the judge was courteous and patient, and provided extensive assistance to the applicant. It may also be accepted that the judge informed the applicant that he needed to prove his case.
[69] Nevertheless, the critical issue was whether the judge’s assistance was sufficient given the persistent statements made by applicant that he wanted to elicit evidence from witnesses whom he believed would be called by the respondent. More particularly, where the applicant appeared to be labouring under a misconception that he would have an entitlement to elicit that evidence.
[70] The first issue which arises is whether the applicant was evincing any such misconception which should have been apparent to the judge. In challenging such a conclusion, the respondent pointed to the first exchange where the judge expressly told the applicant that it was ‘uncertain’ if there would be any evidence from the respondent.
[71] If this was the only exchange there may be some force in the respondent’s position. However, it was not the only exchange. Rather, on the following day, during the second exchange, the applicant indicated that ‘all the relevant information’ he sought to adduce would be derived from his ‘cross-examination of the [respondent’s] witnesses’. After being told that it was his case to prove, the applicant then reiterated that he could ‘cross-examine then’.
[72] There are limits to how many times a judge should be expected to correct any misconception. However, it was apparent that the applicant continued to be under his misconception despite the judge’s earlier reference (to the situation being ‘uncertain’). The judge’s statement that it was the applicant’s case to ‘prove’ failed to squarely address that misconception. The applicant might have believed that he could still ‘prove’ his case through the respondent’s witnesses. In fact, he continued to make reference to being able to ‘cross-examine’ after being told that it was his case to prove.
[73] In our view, then, the applicant evinced a serious misconception that he would be able to adduce further evidence through the respondent’s witnesses. In fact, it was only after the no case submission commenced (and the judge explained that there might be no obligation on the respondent to call any evidence) that the applicant appeared to appreciate that he could not cross-examine the respondent’s witnesses (the Taylors) whom he had been ‘waiting for’ and whom counsel for the respondent had said he proposed to call as part of its case — admittedly with qualifications but such that were not readily apparent to a layperson.
[74] For reasons given already, the judge’s statement that the applicant needed to ‘prove his case’ was insufficient to disabuse the applicant of his serious misconception. In fact, the judge appears to have (inadvertently) compounded the applicant’s misconception shortly prior to the closure of his case by referring to ‘the course of the [respondent’s] case’ and indicating that the applicant might want to put additional documents to ‘them’, which the applicant could prove ‘through one of those witnesses’.
[75] We thereby consider that the judge failed to appropriately correct the apparent misconception and thereby failed to ensure that the applicant, as an unrepresented litigant, had the degree of assistance required to ensure a fair trial and avoid ‘practical injustice’.
[76] It is unnecessary to be prescriptive about what the judge ought to have done. However, at the very least, we consider that the applicant should have been expressly told, prior to closing his case, that the respondent might not call witnesses at all, in which case the evidence would be finished at the end of his case. Given that the applicant clearly wished to adduce ‘all the relevant information’ from the respondent’s witnesses, we also consider that the judge should have told the applicant that he was able to, and might choose to, call those witnesses himself. If such a path was taken, he could then have been advised about his ability to subpoena the Taylors (and particularly Andrew Taylor) and if necessary, in the course of their evidence to make an application to cross-examine them under s 38 (or perhaps to ask leading questions of them under s 37) of the Evidence Act 2008.
[77] In its supplementary submissions delivered subsequent to the hearing, the respondent spent three pages arguing that the calling of either of one or other of the Taylors would not have affected the ultimate result. To a large extent, the submissions make good the argument of the applicant. Much is said in these submissions (or, to put it bluntly, speculated) about the evidence that they could or could not have given and their expertise in relation to the operation of the septic system and the dispersal of effluent from the septic system.
[78] The Taylors were involved in the manufacture and inspection of the septic system. Contrary to the respondent’s submission, it may well be that their experience would have enabled them to give evidence as to not only the manner in which the septic system operated, but also the potential for the dispersal of effluent This, in conjunction with the evidence of the gastroenterologists (discussed later) and the drawing of reasonable inferences, may well have advanced the applicant’s case significantly. At the very least it simply cannot be said that their evidence could have made no possible difference to the result.24 In such circumstances, the matter ought be sent back to the judge.25
[79] In coming to these views, we are acutely aware of the difficulties faced by a judge in the intense and dynamic atmosphere of a trial court. It is important not to set unrealistic standards in such a setting. Thus, we do not accept the applicant’s submission that the specific possibility of a ‘no case submission’ should be expressly acknowledged in openings. We would however observe that some of the difficulties in this case might have been avoided if a clearer statement was made about the way the case would proceed at the time of those openings when the judge was outlining the ‘ground rules’. Such a statement would ordinarily include some of the matters the judge referred to (about the applicant making an opening address and adducing evidence). However, such a statement should also include a statement to the effect that, at the conclusion of a plaintiff’s case, a defendant will have a decision about whether they call evidence or not. If a defendant calls witnesses, then a plaintiff will be entitled to cross-examine those witnesses, but if they do not, then the plaintiff will not have such an opportunity and the evidence will be finished at the conclusion of a plaintiff’s case.
[80] Insofar as the applicant made complaint about the conduct of respondent’s counsel, it may be accepted that a no case submission is ordinarily not made until after a plaintiff closes their case. Judges and trial lawyers understand how the rule operates. However, consistent with the overarching purpose, there is much to be said for the proposition that counsel ought ensure that a self-represented litigant has, at least, some notice in clear language of the possibility that a defendant might not call any witnesses at all. References to a ‘no case submission’ without any mention as to how in real terms it will impact on a self-represented litigant’s case is inadequate. This is particularly so when the Taylors had been flagged by counsel as potential witnesses at the commencement of the trial. We also consider that some of the exchanges between the judge and counsel in this case were unlikely to have been understood by the applicant (eg as to whether counsel had a ‘final position’). This tended to underscore the comparative disadvantage of the applicant as a self- represented litigant.
[81] Suffice to say, then, that counsel’s reticence fortifies us in our conclusions.
[82] The result is that the applicant has made out proposed ground 1 and the proceeding should be remitted to the judge.
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Conclusion and disposition
[136] The applicant should be granted leave to amend his notice of appeal to include proposed ground 3(b). Leave to appeal on grounds 1 and 3(b) should be granted, and the appeal allowed. The order of the County Court dismissing the proceeding should be set aside. The proceeding should be remitted to the County Court for further hearing by the judge in accordance with these reasons.
(emphasis added)
1 The applicant originally advanced a further proposed ground (2) that the judge improperly applied the wrong test in considering the no case submission because the test should have been applied more favourably to the Applicant as an unrepresented litigant. However, this was abandoned at the hearing of the application. How proposed ground 3 came to be advanced is described later in these Reasons.
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6 Reasons, [20].
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15 The court was grateful for the assistance provided by counsel who were retained for the applicant via the Victorian Bar’s pro bono scheme.
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17 Trukulja v Markovic [2015] VSCA 298.
18 Ibid [37] (citations omitted) (Kyrou, Kaye JJA and Ginnane AJA).
19 Ibid [39] (citations omitted).
20 Ibid [41], citing McWhinney v Melbourne Health (2011) 31 VR 285, 293 [25] (Neave, Redlich and Mandie JJA), quoting Tomasevic v Travaglini (2007) 17 VR 100, 130 [141] –[142] (Bell J).
21 (2018) 57 VR 334; [2018] VSCA 215.
22 Doughty-Cowell v Kyriazis [2018] VSCA 216.
23 Ibid [63] (Maxwell P, Beach and Niall JJA) (citations omitted).
24 Stead v State Government Insurance Commission (1986) 161 CLR 141, 146 (Mason, Wilson, Brennan, Deane and Dawson JJ); [1986] HCA 54.
25 In oral argument, the parties agreed that, in the event this Court decided that the appeal should be allowed and the proceeding remitted, then the matter should be sent back to the trial judge for further hearing and determination in accordance with these reasons.
A link to the full decision is here.
In contrast, in Chalik v Chalik [2025] NSWCA 136 (19 June 2025), Bell CJ – in the New South Wales Court of Appeal – wrote by way of obiter dicta:
[63] Even if there were any merit in the Appellant’s pleading points (which there is not), if parties fight their cases in a manner that departs from the pleadings in a way that does not excite protestation at the time, that departure cannot generally be the subject of legitimate complaint on appeal: Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517; [1916] HCA 81; Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 –7; [1990] HCA 11; Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356; [2010] FCAFC 133 at [50] –[52]; Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [24]; Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162 at [102] –[104]. There was no objection of the kind sought to be raised on appeal in relation to any claimed departure from the pleadings and there was no merit to these grounds of appeal.
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[65] Before leaving this topic, it should be noted that the Appellant pointed out that he was “appealing self-represented” and emphasised his status as a layperson. He had also represented himself in final submissions before the primary judge, having parted with his solicitor who represented him on the first three days of the trial. Mr Chalik presented as an articulate advocate. He answered “Absolutely” when it was put to him that he knew about Banks v Goodfellow (1870) LR 5 QB 549 (Banks v Goodfellow) and said that he had read it many times.
[66] At one point in his oral submissions, the Appellant who, as has been seen, contended on appeal that parts of the Amended Defence should have been struck out at first instance on the basis that it was frivolous, said:
I couldn’t know that they were frivolous because I didn’t know what the pleadings were supposed to be. That’s why you hire a lawyer and that’s why [you] get legal advice but I wasn’t provided with that legal advice and the lawyer failed to do his duty and so did the Court because the Court should have made orders for the pleadings to be repleaded so I actually didn’t know about lack of testamentary capacity until I saw the judgment. (emphasis added).
[67] Plainly enough, the Appellant, when represented, was bound by the actions of his legal representative. When unrepresented, the Court was not under an obligation of the kind referred to. In this context, we note that, in a recent judgment (MTH v New South Wales [2025] NSWCA 122 at [66]), Adamson JA has stated that:
the primary judge had an obligation to ensure that the appellant did not, because of lack of legal skill, fail to claim rights or put forward legal arguments: Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) (Kirby P, Samuels and Mahoney JJA), cited with approval by the High Court in Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [47]. (emphasis added)
[68] With respect to her Honour, this passage, in our view, significantly overstates a court’s responsibility to an unrepresented litigant and is far too absolute in its use of the expression “an obligation to ensure …”. Such a statement finds no support in the High Court’s decision in Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 (Nobarani) referred to nor is it supported by the passage from the judgment of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) at 25 (Rajski) which was quoted with approval in Nobarani at [47]. That passage was as follows:
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.
[69] The question of the extent, if any, of assistance which a trial judge or appellate court should afford to an unrepresented litigant in civil proceedings is nuanced and has been the subject of many intermediate appellate judgments of this Court since Rajski was decided almost 40 years ago. Those decisions have emphasised that an unrepresented litigant should be provided with sufficient information about the practice and procedure of the court to ensure a fair trial takes place: see, for example, Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at [48]; Jeray v Blue Mountains City Council [2010] NSWCA 153 at [14]. Even then, care must be taken not to disturb the balance which the rules of practice and procedure are designed to afford both parties: Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [39], citing Barton v Wright Hassall LLP [2018] UKSC 12 [2018] 1 WLR 1119 at [18] per Lord Sumption.
[70] In Bauskis v Liew [2013] NSWCA 297 at [69], Gleeson JA (Beazley P and Barrett JA agreeing) noted that the duty of a trial judge to assist an unrepresented litigant “does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant”. In Cicek v Estate of late Solomon [2014] NSWCA 278 at [130], Ward JA (Meagher and Barrett JA agreeing) held that none of the cases her Honour had reviewed:
suggests that the primary judge in the present case had a duty to advise the appellants as to the inadequacies in their evidence having regard to the pleaded case or to adjourn the proceedings in order to permit them further time to re-plead their case in order for it to accord with the statement being made from the bar table as to the forgery complaints. A duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her.
[71] Handley JA expressed similar views more than 20 years earlier in Rowett v Westpac Banking Corp [1993] NSWCA 240:
Nevertheless, the role of a judge in a civil case is not to actively assist one party against the other; to advise one party against the other; or in any way to act as the legal adviser or the legal representative for that party even if that party is unrepresented. The role of the judge in a civil case in our system is to act as the umpire and he or she has no active role such as may occur under our system in criminal proceedings where a citizen is facing the State as prosecutor, and the judge has a proper role in protecting the accused, especially an unrepresented accused. Civil cases involve citizen (corporate or otherwise) against citizen, and the judge’s role, as I have said, is that of an umpire.
[72] See also Hamod v New South Wales [2011] NSWCA 375 at [315] –[316]; Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 at [51]; Stone v Braun [2015] WASCA 103 at [62] –[69] per Beech J, Buss and Mazza JJA agreeing; Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 at [74] –[75]. More recently, in Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21] McCallum JA (Basten and Leeming JJA agreeing) observed that “the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point”.
(emphasis added)
A link to the full decision is here.
