Unrepresented Litigant Gains Re-trial for Want of Assistance by Judge in Trial Conduct
In Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94, the case considers the obligations of a trial judge to ensure procedural fairness towards a self-represented litigant. Here, the Victorian Court of Appeal allowed the appeal, finding that the trial judge ought to have drawn the appellant’s attention to two key matters: first, that the respondent might not call any witnesses at all, and second, to the potential relevance of s 51(2) of the Wrongs Act 1958 (Vic) as an alternative basis for establishing causation.
Background
The self-represented appellant commenced proceedings in the County Court of Victoria, alleging that a septic tank system installed and maintained by the respondent manufacturer was defective and caused his Helicobacter pylori (HP) infection, leading to various gastrointestinal symptoms.
The respondent accepted that it owed a duty of care to ensure the system was safe for use and that the system was missing a key aerator component for a prolonged period. However, it successfully submitted that there was “no case to answer” on the basis that the appellant had failed to establish causation—specifically, that he did not prove that the fitting of the aerator arm would have averted his injury.
Appeal: Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94
On appeal, the appellant (now represented by counsel) asserted that the trial judge erred in failing to provide him with the degree of assistance necessary to ensure procedural fairness and a fair trial. The Court of Appeal agreed, finding that procedural fairness required the judge to alert the appellant, prior to closing his case, that the respondent might not call any witnesses, and that if so, the evidence would be complete once his case concluded. The Court also found that the trial judge was required to inform the appellant that he was able to, and might choose to, call those witnesses himself.
The relevant findings are set out at paragraphs [69] to [76]:
[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.
The appellant also asserted that the trial judge should have provided him with the opportunity of proving causation by recourse to s 51(2) of the Wrongs Act—a provision that allows a court, in an “appropriate case”, in line with “established principles”, to impose liability despite factual causation not being established, where justice demands it:
WRONGS ACT 1958 – SECT 51
General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person ) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
The Court of Appeal found that procedural fairness did require the trial judge to alert the appellant to the possible operation of s 51(2) in this case. The Court found that s 51(2) may have provided the judge with a means to resolve the evidentiary gap he had identified. The evidence of the two gastroenterologists as to the likely cause, the temporal connection between the appellant’s HP infection and the operation of the septic system, and the lack of an alternative explanation for the infection, lent support to the possibility that this might have been an ‘appropriate case’ to invoke s 51(2). In circumstances where it was arguable that s 51(2) may have been utilised, and in light of the appellant’s burden under a no case submission to show only a prima facie case on causation, the trial judge was required to alert the appellant to the possible operation of s 51(2).
The relevant findings are set out at paragraphs [119] to [130]:
[119] We have set out above at paragraphs [64] and [65] the judge’s duty in relation to self-represented litigants, as explained in Trkulja. The question here is, did legitimate judicial intervention require the judge to advise the applicant of the application of s 51(2) to his claim against the respondent at this stage of the trial?
[120] To repeat what we set out at [65]: it is elementary that a judge ought to ensure that a self-represented litigant understands his or her rights, so that he or she is not unfairly disadvantaged by being in ignorance of those rights.
[121] Section 51(2), in an appropriate case, provides a plaintiff with an alternative method of establishing causation if s 51(1) cannot be satisfied. What constitutes an appropriate case depends entirely upon the facts and circumstances surrounding the case. The individual requirements of the section need to be considered, and a value judgment then needs to be made by the trial judge after examining all the evidence presented in the course of the trial as to whether the section should be engaged.
[122] The Victorian legislature chose to use the word ‘appropriate’, rather than ‘exceptional’ in the evidentiary gap provision. It is not prescriptive and does not identify the type of case to which it might apply. That leaves much to the judge’s determination although the bar to be cleared in this State is patently less than that of an exceptional case as in New South Wales.
[123] As we mentioned earlier, the judge concluded that the applicant could not prove that the lack of the aerator arm led to HP contaminated effluent being present in the effluent pipes and that the applicant had ingested HP from that source.
[124] However, by the end of the applicant’s case, the following had been established (at least on a prima facie basis):
- that it was likely that the applicant was, from 2012 onwards, suffering from HP infection which could be caused by exposure to faeculent material;
- that the pipes of the septic system ran under the area adjacent to the house where the applicant lived from 2013;
- that it was ‘very conceivable’ that the applicant’s HP infection was related to a malfunctioning pump on the septic system, as ‘he would be exposed to faeculent material from working around the pump on the land where it was released’ —Associate Professor Desmond and Dr Jakobovits, in agreement;
- there was no alternative explanation for the applicant’s HP infection or his symptoms consistent with that infection.
[125] The essence of the evidence of both gastroenterologists (Desmond and Jakobovitz) is that contact with the faeculate material could produce HP. The septic system contained such material, and its end product was distributed through the area close to the house. It can be readily inferred that the system operating properly should not distribute such material.
[126] There is no authoritative case law as to what constitutes an appropriate case under s 51(2). Certainly, dust disease cases such as those fitting the facts in Bonnington and Fairchild may be covered by it. However, there is nothing in the wording of the provision which would limit its application to that type of case alone. In Powney, this Court said it would not be available in a simple case. We agree but this was not such a case.
[127] Contrary to the respondent’s submissions, s 51(2) may have provided the judge with an alternative means to resolve the evidentiary gap he identified: the evidence of the two gastroenterologists as to the likely cause; the temporal connection between the applicant’s HP infection and the operation of the septic system; and the lack of an alternative explanation for his infection, all meant that this might have been ‘an appropriate case’ in which to invoke s 51(2).
[128] Contrary to the respondent’s submission, the point was not hopeless. Given that the applicant only needed, on the no case submission, to establish a prima facie case on causation, the need to advise him of his ability to rely upon s 51(2) if he failed on factual causation under s 51(1)(a) was all the more important. To engage in a lengthy debate, as the respondent would invite us to do, about when s 51(2) might be engaged is pointless — as long as it was arguable on the no case submission that it may be utilised then we consider that the applicant should have been appraised of its availability.
[129] In our opinion, in those circumstances it was appropriate for the judge to explain to the applicant the terms of s 51 and particularly s 51(2). Of course, it was no part of the trial judge’s task, as Trkulja explains, to advise the applicant how to then engage that provision. That was a decision for the applicant — but he had to know of the existence of the provision.
[130] The applicant should be granted leave to amend his notice of appeal, to appeal on ground 3(b), which has also been established.
Conclusion
While judges are not required to advise litigants how to run their case, they must ensure self-represented litigants are not denied a fair trial due to their ignorance of the law. This includes, depending on the circumstances of each case, drawing their attention to potentially applicable statutory provisions.
The link to the decision is here.
