Doughty-Cowell (Victoria Police) v Kyriazis [2018] VSCA 216

1 Ensuring a fair hearing for an unrepresented litigant can present formidable difficulties for a court. Their needs, and their attitudes towards the court, vary across a wide spectrum. At one end of the spectrum, the litigant may be inarticulate, or anxious, or distressed, and in need of considerable assistance in order simply to understand the process in which he/she is involved. At the other end, there are litigants who are variously articulate, strong-minded, stubborn, dismissive of legal advice and, very often, unwilling to accept judicial authority.

2 The obligation of a court to ensure a fair hearing is undoubted. The content of that obligation varies, however, with the circumstances of the case and ― in this context ― according to the particular capabilities and attitudes of the self-represented litigant.

3 The first respondent, Mr Kyriazis, represented himself on his appeal to the County Court against his convictions on two minor traffic offences. His conduct soon revealed that he fell towards the articulate and assertive end of the spectrum. As will appear, he was ― in pre-hearing correspondence ― provocative and confrontational and, from the first moment of the hearing, refused to accept the judge's ruling on the straightforward question of whether he could record the proceeding. As explained below, the judge ruled that Mr Kyriazis could make a sound recording but not a video recording. This should not have troubled Mr Kyriazis, as he did not have a video recorder with him.

4 The hearing which followed was remarkable for the level of hostility, anger and aggression directed by Mr Kyriazis (and some of his supporters) towards the Court. The judge for the most part remained calm and patient, although ― unsurprisingly ― he did occasionally raise his voice when requesting that Mr Kyriazis keep quiet.

5 As will appear, Mr Kyriazis at an early stage announced to the judge that he would not participate in his own County Court appeal. The judge patiently proceeded to call on Mr Kyriazis's subpoenas, examine the documents and release them to Mr Kyriazis. The evidence in the prosecution was led but, apart from occasionally objecting to what he described as leading questions, Mr Kyriazis refused to participate.

6 It was the judge himself who elicited, during the informant's evidence, that the period during which Mr Kyriazis had refused to produce his licence was only five minutes. Unsurprisingly, the judge expressed his disapproval of the charge having been laid for what was 'no more than a technical breach'. In the event, although he found the charges proved and convicted Mr Kyriazis, he discharged him.

7 Nevertheless, Mr Kyriazis filed an application for judicial review, contending that he had been denied procedural fairness. The judge at first instance upheld that complaint, concluding that the judge had not accorded Mr Kyriazis a fair hearing and was guilty of ostensible bias.

8 For reasons which follow, we respectfully disagree. As already indicated, this was not a case where the judge was obliged to take extra measures to provide assistance to Mr Kyriazis. On the contrary, it was Mr Kyriazis who ― for no good reason ― decided to withdraw from his own appeal and who thereafter engaged in what can only be described as disgraceful conduct towards the judge. There was nothing more his Honour could have done to ensure a fair hearing. Accordingly, the appeal must be allowed.

9 Mr Kyriazis was charged with two summary offences under s 59(2) of the Road Safety Act 1986. The charges were that, being the driver of a motor vehicle on a highway on 2 November 2015, Mr Kyriazis failed to produce his driver's licence, and failed to state his name and address when requested to do so by a member of the police force.

10 The charges were heard in the Magistrates' Court at Ringwood, in the absence of Mr Kyriazis. The Magistrates' Court convicted Mr Kyriazis of the offences with which he was charged, and fined him a total of $750 with $117 statutory costs.

11 Pursuant to s 254 of the Criminal Procedure Act 2009, Mr Kyriazis appealed to the County Court. The appeal was a rehearing de novo. It was heard by Judge Chettle in the County Court on 1 December 2016. At the conclusion of the hearing, Judge Chettle made an order convicting and discharging Mr Kyriazis on both charges.

12 On 30 January 2017, Mr Kyriazis filed an originating motion for judicial review seeking, amongst other orders:

An order in the nature of certiorari quashing the orders of the County Court.

In his originating motion, Mr Kyriazis identified four grounds upon which he sought relief. At the hearing of his proceeding, however, he only pursued the first two of his grounds, namely:

1. The judge appeared to be biased against the plaintiff.

1. The judge erred in failing to ensure that procedural fairness was afforded to the plaintiff.

13 Particulars of those grounds were provided as follows. The particulars provided under ground 1 were:

The manner in which the judge conducted the hearing, and the manner in which his Honour exercised his discretions, give rise to a perception of bias in an informed and reasonable observer. Some examples which establish this:

(a) The judge utilised a threatening demeanour on multiple occasions in attempts to intimidate the plaintiff.

(b) The judge ordered the plaintiff into the dock, even though there was no potential for incarceration in relation to the charges which were before the Court.

(c) The judge, on multiple occasions, made inappropriate personal comments such as referring to the plaintiff in terms such as 'people like him', 'why give these people a platform?', and '[give the plaintiff] any further oxygen'.

The manner in which the judge conducted the hearing, and the manner in which his Honour exercised his discretions, was not consistent with the requirements of procedural fairness.

Some examples which establish this:

(a) The judge inhibited the plaintiff's ability to raise preliminary issues, such as:

(i) the issue of whether the plaintiff would be permitted to play various audio recordings as evidence;

(ii) the issue of the second defendant having failed to serve the charge sheet and summons on the plaintiff, and of thus having failed to ensure that the plaintiff was provided with briefs as is required by the Criminal Procedure Act 2009.

(b) The judge failed to ensure that the plaintiff was afforded an adequate opportunity to peruse subpoenaed materials.

The above mentioned examples, and various others, would give an informed and reasonable observer good reasons for concluding that procedural fairness was not afforded to the plaintiff.

Furthermore, an informed and reasonable observer would conclude that the bias displayed by the judge, and the lack of procedural fairness afforded by the judge, provided sound reasons for the plaintiff to refuse to continue participating in the hearing.

15 On 26 October 2017, Bell J made an order granting the application for judicial review, quashing the orders made in the County Court and remitting the matter to the County Court for hearing by a judge other than Judge Chettle.[1] His Honour delivered a single set of reasons, which also contained his reasons for allowing an appeal in the matter of Roberts v Harkness,[2] an unrelated appeal by an unrepresented litigant from orders made in the Magistrates' Court.

16 Bell J concluded that both of the rules of natural justice had been breached. First, his Honour held, Mr Kyriazis had been denied a fair hearing because the judge had not given him the assistance to which, as a self-represented litigant, he was entitled. Secondly, the judge was 'ostensibly biased' against Mr Kyriazis. In his Honour's view, a fair-minded observer would reasonably conclude that Judge Chettle might not have impartially heard and determined Mr Kyriazis's charges.[3]

17 The informant, Senior Constable Rhys Doughty-Cowell, was the second defendant in the proceeding before Bell J. He now seeks leave to appeal from his Honour's orders. The proposed grounds of appeal are:

1. The learned trial judge erred in finding that the first respondent [Mr Kyriazis] was denied procedural fairness.
2. The learned trial judge erred in finding that the learned County Court judge was disqualified by reason of ostensible bias.
3. The learned trial judge erred in finding that the County Court judge was 'anything but' calm for significant periods of time, and that 'aggression rising beyond anger and frustration' was displayed by the County Court judge.

18 Before coming to the arguments of the parties, it is necessary to describe in some detail the proceeding in the County Court.

19 Prior to the hearing in the County Court, Mr Kyriazis sent a handwritten letter to the Court. The letter was subsequently forwarded to Judge Chettle. It relevantly stated:

To whom it may concern.

On this day I shall be attending my listed appeal hearing.

I must inform your office that I shall be attending with my audio and video recorders in order to record my personal affairs and protect my lawfull [sic] interests.

I must state that I have no trust nor faith in your forum nor your judicial staff. The reason is that I have been assured by your judicial staff that recordings would be made available for me only to be refused on request.

The further issue is that your judicial staff continue to threaten contempt without valid cause in order to intimidate me and others.

I must inform your office that if I am assault threatened or harassed by any of your security staff I shall be holding your office responsible for incitement and your staff responsible for assault.

I shall also be informing the Corporate Manager Mr Keith Kirkham of my intentions as I have done before.

Your office has been informed and I trust your office to act honorably.

Further I shall need your facility in order to display my recorded evidence of the incident in appeal. Thankyou for your time and attention. I await your immediate response. Respectfully [signed].[4]

20 The hearing before Judge Chettle was audio-visually recorded. We have each watched the DVD recording ('the DVD') a number of times. The hearing commenced with the following exchange between Mr Kyriazis and his Honour:

MR KYRIAZIS: I request leave to approach the bar.

HIS HONOUR: Yes.

MR KYRIAZIS: Thank you.

HIS HONOUR: That's the bar table. You're representing yourself, are you?

MR KYRIAZIS: Yes, I am Your Honour.

HIS HONOUR: I've got a letter indicating that you wanted to tape-record the proceedings. Is that correct?

MR KYRIAZIS: That's correct. Yes.

HIS HONOUR: Is that a tape-recorder you have on the bench?

MR KYRIAZIS: Yes, I have. Yes, it is.

HIS HONOUR: Just wait till I finish. That's a tape-recorder on the bench, is it?

MR KYRIAZIS: It's my notetaker, yes.

HIS HONOUR: It's a tape-recorder. Yes.

MR KYRIAZIS: Well, yes, it's a recorder.

HIS HONOUR: You can tape-record the proceedings. I don't have any problem with that. You cannot video it. All right. You had a video camera before, didn't you, when you were standing in the court?

MR KYRIAZIS: No.

HIS HONOUR: Well, you can't video. You understand?

MR KYRIAZIS: I hear what you're saying, but if I may - - -

HIS HONOUR: No, no. Do you understand? It's not a request, it's a demand. There's no videotaping in court. You can tape-record but there's no videoing.

MR KYRIAZIS: Well, if I may. If I may, before I answer that ---

HIS HONOUR: No.

MR KYRIAZIS: Are we being videotaped here today?

HIS HONOUR: No.[5]

MR KYRIAZIS: We're not.

HIS HONOUR: You're not videotaping anything.

MR KYRIAZIS: No, I'm not videotaping at the moment.

HIS HONOUR: No, and you're not - look, it's not a debate.

MR KYRIAZIS: Well, it is to me.

HIS HONOUR: It's not. I'm just simply telling you as a matter of law you can tape-record the proceedings, you cannot videotape it.

MR KYRIAZIS: Okay. I really need to ask you what part of the - what Act are you relying on and what part of the Act are you relying on?

HIS HONOUR: I'm not debating it with you. Have a seat.

MR KYRIAZIS: You don't want to debate. All right. There's some preliminary issues that I need to discuss first.

HIS HONOUR: The Court Security Services Act s 4A.

MR KYRIAZIS: Yes.

HIS HONOUR: And it's an offence for you to do so, and if you do - you come in here with a $700 fine.[6] I'm not - let's get on with this. Is it an appeal against sentence only or (indistinct).

MR KYRIAZIS: Excuse me. Can I answer, if I may?

HIS HONOUR: No, you may not.

MR KYRIAZIS: I request leave.

HIS HONOUR: I tell you what. I'm within two inches of putting you in the dock.[7]

21 The exchange over the issue of video recording continued. It is plain that, notwithstanding Mr Kyriazis telling the judge that he did not have a video recorder with him,[8] Mr Kyriazis wished to continue to debate his ability to use a video camera. In the course of this exchange, Mr Kyriazis read out the whole of s 4A(4) of the Court Security Act 1980.[9] The exchange between the judge and Mr Kyriazis then continued:

HIS HONOUR: Look, stop it.

MR KYRIAZIS: I'm not stopping anything.

HIS HONOUR: Stop it. Did you not - now, listen - - -

MR KYRIAZIS: (indistinct)

HIS HONOUR: Now, listen. No, it's - - -

MR KYRIAZIS: I'm the applicant.

HIS HONOUR: All right. Would you take the appellant into custody, please.

MR KYRIAZIS: Great. Can we have an issue of contempt (indistinct)

HIS HONOUR: I am warning you that I will have someone over and - you're not doing what you're told I will charge you with contempt.

MR KYRIAZIS: (indistinct) no, no. No. You're being oppressive. That's what I believe.

HIS HONOUR: Would you take Mr - - -

MR KYRIAZIS: (indistinct) detained. Can we do that?

HIS HONOUR: Would you go into the dock, please.

MR KYRIAZIS: Well, I need your reason. Why am I going into the dock?

HIS HONOUR: Because I am going to detain you for contempt and you give you the right - - -

MR KYRIAZIS: (indistinct) is that civil or criminal contempt?

HIS HONOUR: Criminal contempt.

MR KYRIAZIS: Is it (indistinct) or (indistinct) contempt? Can you please tell me what it is?

HIS HONOUR: Take him into custody.

MR KYRIAZIS: Okay. Now, can you take control of my items my (indistinct).

22 In the proceeding before Bell J, Mr Kyriazis said that he went voluntarily into the dock. His Honour, however, found that Mr Kyriazis was taken into custody 'and required to remain isolated in the dock in that custody, where he did remain for the duration of the hearing (except for a short break)'.[10] Mr Kyriazis was asked to be seated. He refused. He was asked to be quiet. He said he would not be quiet. Mr Kyriazis complained to Judge Chettle that the hearing was oppressive and an injustice. He said:

I'm explaining to you that I will be applying to the Human Rights Charter in regards to this issue. Now, if you're recording them I'm afraid I can't help you. You'll have to make your own predetermination, I'm afraid, and I think you've already done that.

23 The DVD shows a person sitting at the bar table. Judge Chettle requested the identity of that person. Plainly, Mr Kyriazis knew the man's name. However, neither was prepared to provide it to the judge. In answer to Judge Chettle's request that he identify himself, the man at the bar table (described by Mr Kyriazis as 'my next friend', 'my assistant') said:

When Judge Chettle informed the man that he could not remain at the Bar table, he refused to move.

24 By this stage of the proceeding, it was apparent to Judge Chettle (and it is apparent from the DVD) that Mr Kyriazis had a number of supporters in the gallery, who felt free from time to time to interject in his support. After a number of such interjections, Judge Chettle said:

Can I have some security up here because this is going to get ugly, I think.

25 The judge asked another of Mr Kyriazis's supporters to leave because of his disruptive behaviour. He refused to leave despite repeated directions to do so. An order was then made for witnesses out of court. Even then, the man refused to leave, taking up a position next to Mr Kyriazis. The judge then turned to the issue of subpoenas that had been issued by Mr Kyriazis.

26 In the face of continued interjections by Mr Kyriazis, the judge calmly and sequentially called on Mr Kyriazis's subpoenas. A modest number of documents were produced in answer to Mr Kyriazis's subpoenas. Subsequent evidence disclosed that these documents had been produced at a prior hearing of the matter in the County Court, but that Mr Kyriazis had refused to take possession of them when they were offered to him.

27 In the course of the subpoenas being called on, the following exchange occurred between Judge Chettle and Mr Kyriazis:

MR KYRIAZIS: (indistinct) responsible officer here (indistinct) as it says in the Act.

HIS HONOUR: Can you - will you be quiet?

MR KYRIAZIS: No.

HIS HONOUR: You are so close to a sentence for contempt.

MR KYRIAZIS: Well, can you please do it? Please.

HIS HONOUR: I'll get there.

Mr KYRIAZIS: You're threatening me with contempt. I've been threatened with contempt before. Now, can you (indistinct).

HIS HONOUR: Trust me - - -

Mr KYRIAZIS: I need you to apply it.

HIS HONOUR: Trust me you'll get - - -

MR KYRIAZIS: Yes, I do. Yes, I do.

HIS HONOUR: You will get your wish.

MR KYRIAZIS: I hope so.

28 The calling on of Mr Kyriazis's subpoenas occurred over approximately 15 pages of the transcript of the hearing before Judge Chettle. During this time, Mr Kyriazis was obstructive, rude and disrespectful to his Honour. The judge remained calm and patient throughout, identifying each subpoena and gathering together the various documents produced pursuant to those subpoenas.

29 Eventually, the relevant documents were compiled and his Honour said that the material could be produced to Mr Kyriazis. Mr Kyriazis immediately responded that another day would have to be fixed so he could look at the documents. This provoked a further exchange between the judge and Mr Kyriazis, during which the judge was informed by the prosecutor that Mr Kyriazis had been given the documents at an earlier hearing in September 2016. Mr Kyriazis disputed the assertion.

30 At 10:45 am, the judge said he would give Mr Kyriazis until 11:00 am to satisfy himself that the documents were the same as those he had previously been given. Mr Kyriazis said he would be objecting to that, maintaining that another day should be fixed for the hearing of his appeal.

31 At 11:00 am, Judge Chettle returned to the bench. Mr Kyriazis again said that he needed more time. The judge asked him, 'How much time?'. The following exchange then occurred:

MR KYRIAZIS: Well, because I need more time. I told - I asked you to make another day. That's what I've asked.

HIS HONOUR: I'm not making - it's not happening.

MR KYRIAZIS: Otherwise, well if it's not happening you'll have to proceed ex parte. You'll need to give me leave. I need to approach the Prothonotary please. Can you give me leave? I'm asking for you to grant me leave to approach the Prothonotary.

32 Judge Chettle then asked Mr Kyriazis whether he was prepared to proceed with his appeal that day. Mr Kyriazis responded, 'No, I'm not prepared. No. Not at all.' He also told the judge that he was 'in breach of the Human Rights Act'. The judge then directed the prosecutor to proceed and to call his witnesses, saying: 'Let's get on with it'.

33 The prosecutor called the informant, Senior Constable Doughty-Cowell. The informant gave evidence that on 2 November 2015 he pulled over a car and asked the driver to state his full name and produce his driver's licence. He made several requests, but the driver did not respond. He placed the driver under arrest. The driver was 'pretty aggressive and non-compliant'. After a further conversation at the back of the divisional van, the driver produced his driver's licence. The driver was Mr Kyriazis.

34 During the course of the informant's evidence, Mr Kyriazis made an objection that the prosecutor was leading the witness. At another point, Mr Kyriazis interjected that the witness was committing perjury. He also asked to see a copy of a certificate produced by the informant during the course of his evidence.

35 The judge asked the informant how much time had elapsed between the first request for Mr Kyriazis to produce his licence and the time when he gave it to the informant. The informant answered: 'Approximately five minutes'. The informant then gave evidence that the documents that were produced to the Court that morning were the same ones that were produced at an earlier hearing of Mr Kyriazis's matter. The informant said that he had attempted to give the documents to Mr Kyriazis at the earlier hearing, but Mr Kyriazis would not accept them. He said that upon Mr Kyriazis's refusal to accept the documents, he placed the documents on the floor and explained to Mr Kyriazis what they were.

36 Judge Chettle asked Mr Kyriazis whether he had any questions for the informant. Mr Kyriazis responded: 'I'm not participating in any of this. This is a railroad.' This exchange continued with Mr Kyriazis repeating, 'I told you I will not be participating.' And 'I am not consenting to this hearing'. On two occasions during this exchange, Judge Chettle mispronounced Mr Kyriazis's name as 'Mr Crazy'. Reference was made to this by senior counsel appearing for Mr Kyriazis in this Court but, having watched the DVD, we are not prepared to conclude that this involved any deliberate disrespect by the judge. Indeed, no such submission was made by Mr Kyriazis in any of his written material, or in the hearing before Bell J.

37 While the informant was still in the witness box, the following exchange occurred:

HIS HONOUR: Because you are unrepresented I make it clear that you now have yet an opportunity, if you want to, to ask this witness questions.

MR KYRIAZIS: I am not prepared.

HIS HONOUR: You do not want to?

MR KYRIAZIS: I am not prepared. What part of the English don't you understand?

HIS HONOUR: Next witness.

MR DEVLIN: I'd ask that this witness be excused, Your Honour.

HIS HONOUR: Yes. Thank you, Senior, you're excused?---Thank you, Your Honour.

(THE WITNESS WITHDREW)

(Witness excused)

MR DEVLIN: I call - - -

HIS HONOUR: Why do we give these people platforms?

MR KYRIAZIS: You're denigrating me publicly, are you?

HIS HONOUR: Yes.

Mr KYRIAZIS: What are you referring to as these people?

MR DEVLIN: I call (indistinct) Turner.

MR KYRIAZIS: What are these people? I'm going to ask you again. What are these people? What are you referring to?

HIS HONOUR: People who do not give - - -

MR KYRIAZIS: I want to know what your inference is.

HIS HONOUR: Okay. Let's have the next witness.

MR KYRIAZIS: Great. You're ignoring me. Is that right? Great.

38 An unidentified man in the gallery then interjected, and the following exchange occurred:

UNIDENTIFIED MAN: Sir, I also object. I'm not one of these people, sir (indistinct).

HIS HONOUR: Would you be - - -

UNIDENTIFIED MAN: (Indistinct).

HIS HONOUR: Would you be quiet, please.

UNIDENTIFIED MAN: (Indistinct) sir.

HIS HONOUR: Would you please be quiet.

Just to let you know before Judge Daly, the Associate Judge Daly, who made the statement to me that witnesses in a hearing are of equal if not more value than a recording. I consider that all these people here today are my witnesses and I'll be taking that matter further however amused you may seem. So I'm talking to you, you're not looking at me. Is that right?

40 The prosecutor then called his second witness, Senior Constable Turner. Senior Constable Turner gave evidence that he was working with the informant on 2 November 2015. He then described Mr Kyriazis's refusal to state his name and address and provide his licence in terms consistent with the evidence given by the informant. At one point in his evidence, Mr Kyriazis objected on the basis that the witness was being led by the prosecutor.

41 At the conclusion of the witness's evidence-in-chief, Judge Chettle asked Mr Kyriazis whether he had any questions. This provoked the following exchange:

MR KYRIAZIS: Is he talking to me? It's Mr Kyriazis, so if you want to draw my attention?

HIS HONOUR: Do you have any - - -

MR KYRIAZIS: I've explained to you that I won't be participating in this.

HIS HONOUR: I'm asking you do - - -

MR KYRIAZIS: I'm explaining it to you again now. I don't need you to respond to me. I'm explaining it to you that you've taken the matter ex parte. I'm not prepared and I'm not participating. Thank you.

HIS HONOUR: I'll take that as a no, he doesn't want to ask you any questions. Thank you.

42 The witness was then excused and the prosecutor started to say that he would call another witness. This led to the following exchange between his Honour and the prosecutor:

HIS HONOUR: No. Don't. He can't add any relevant evidence.

PROSECUTOR: No, he wasn't involved.

HIS HONOUR: He wasn't there at the relevant time.

PROSECUTOR: But unless there's - - -

HIS HONOUR: This case is ridiculous.

43 There then followed a debate between the prosecutor and Judge Chettle, in which his Honour made the point that the police officer obtained the relevant details he required - he just did not get them immediately. The judge described this as 'at best a technical breach'.

44 The prosecution case having closed, Judge Chettle then attempted to inform Mr Kyriazis of the course he could take. He did this by reference to a standard card. The judge told Mr Kyriazis that he had the right to answer the charges against him by giving evidence or calling witnesses. Mr Kyriazis responded that he was well aware of the process and, as far as he was concerned, he had been given no opportunity whatsoever and had been 'disrespected'.

45 In the course of this part of the hearing, the judge explained what he had meant when he had earlier said, 'Why do we give these people platforms?'. The judge said:

HIS HONOUR: You asked me before why it is I said why give these people a platform? I'm, in fact, referring to people like you, sir.

MR KYRIAZIS: And what's the reference (indistinct).

HIS HONOUR: Who don't acknowledge the law.

MR KYRIAZIS: Could you please explain - can you please the explain what the inference is.

HIS HONOUR: You have a right to answer the charge against you.

MR KYRIAZIS: What is it? For the record.

46 At the end of the hearing, Judge Chettle convicted and discharged Mr Kyriazis in respect of the offences under the Road Safety Act, and took no action in relation to the issue of contempt. The matter concluded as follows:

HIS HONOUR: The matter before the court - - -

PROSECUTOR: Yes, a maximum fine of five penalty units. At the time

- - -

HIS HONOUR: No, I'm not going to fine him.

PROSECUTOR: Sorry, Your Honour?

HIS HONOUR: I'm not going to give this - there's no point in giving it oxygen. I'm going to convict and discharge him. It is no more than a technical breach. He has eventually provided the licence. If there was an offence of being an annoying vexatious and a complete pain in the bottom he could be charged and convicted of that, but there isn't. He's annoyed the policemen. He didn't comply immediately, but ultimately he did, and his crime lasts five minutes at best. He will be convicted on both charges and discharged.

MR KYRIAZIS: No.

PROSECUTOR: If Your Honour pleases.

MR KYRIAZIS: No. I'm not accepting (indistinct).

HIS HONOUR: Insofar as the contempt that's been displayed to this court by the appellant I do not propose to give him any further oxygen. I take no matter [sic] in relation to that and he can leave the dock and leave the court.

MR KYRIAZIS: You have no grounds. I'll be (indistinct) with that as well.

HIS HONOUR: So that is the end of that. All right.

47 After summarising the facts, Bell J said that 'the main ground relied upon' by Mr Kyriazis was the alleged failure of Judge Chettle 'to ensure that due assistance was given to [him] as a litigant in person'. This was put, his Honour said:

upon the basis of the common law by reference to the rules of natural justice.

48 His Honour then set out what he had said in 2007 in Tomasevic v Travaglini,[11] about 'the overriding duty of a judge to ensure a fair trial', as follows:

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 ... The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.

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.

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.

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.[12]

49 His Honour described the hearing before Judge Chettle as one involving 'unseemly and heated' exchanges between the judge and Mr Kyriazis.[13] As to Mr Kyriazis's behaviour before Judge Chettle, Bell J said:

I acknowledge with regret and disapproval that, to varying degrees and on many occasions, he [Mr Kyriazis] was disrespectful, argumentative, angry, uncooperative and perhaps contemptuous in the face of the Court (as were [Mr Kyriazis's supporters who were present at the hearing]).[14]

50 In relation to Mr Kyriazis being taken into the dock on the order of Judge Chettle, Bell J said:

As I have stated, the judge had power to order Mr Kyriazis into the dock and detain him there during the course of the hearing. But my reading of the transcript and viewing of the audio-visual recording shows that Mr Kyriazis was surprised, shocked and disempowered by this course. With respect, it is evident that both the judge and Mr Kyriazis lost their composure when that happened. A short adjournment for regaining that composure was glaringly appropriate but not taken. This set the conflictual pattern for the entire proceeding. The behaviour of his supporters in court exacerbated the situation.[15]

51 Bell J then dealt with the question of the assistance that Judge Chettle could, or should, have provided to Mr Kyriazis, saying:

There is some force in counsel's submission that there was no point in the judge assisting Mr Kyriazis because he had strongly, if not abusively, declared his intention not to participate in the hearing. However, Mr Kyriazis did so participate to some degree by making objections to evidence, rhetorical as they might have been. The judge did not approach the matter upon the basis that Mr Kyriazis was refusing to participate at all. For example, his Honour gave some assistance to Mr Kyriazis in relation to questioning witnesses (see above).

For the hearing to continue in accordance with the rules of natural justice having regard to Mr Kyriazis's position as a litigant in person, as the judge intended it would, his Honour was obliged to try to do much more than he did by way of assisting him. Something along the following lines was required, preferably near the start of the hearing but possibly later if order was restored, even assuming that Mr Kyriazis was to conduct the defence from the dock:

• inquiry into the capability that he possessed so that a judgment could be made as to how much assistance was required;

• explaining the procedure that would be followed during the course of the hearing and his options in relation to giving and not giving evidence;

• directing his attention to the legal and factual questions that were in issue, which were not complex and related to the elements of the offences, which might need to be briefly explained;

• explaining to Mr Kyriazis his right to remain silent and not give evidence or to give evidence if he wished and the election that he would later be asked to make in this regard;

• informing Mr Kyriazis that the prosecution was required to prove the offences beyond reasonable doubt and give him some little explanation of what this meant if he required it; and

• discussion of the procedure for producing the documents under the subpoenas and how these would be inspected.

Nothing like this occurred and the judge provided only limited assistance well into the hearing, by which time it was really too late. As it progressed, I think the opportunity to place the proceeding upon a proper judicial footing was lost because, with great respect, the relationship between the judge and Mr Kyriazis broke down into one of apparent personal animosity.[16]

52 Bell J accepted that Mr Kyriazis had been 'displaying animosity towards the court' and said that it was understandable that Judge Chettle had displayed 'anger and frustration' during the hearing. In his Honour's view, 'the behaviour of Mr Kyriazis and his supporters would have tried the patience of Job'. Nevertheless, his Honour said, 'the appearance of impartiality must always be maintained'.

A judge is required to administer the rule of law objectively and impartially without regard to feelings of sympathy, animosity or prejudice of any kind towards a party to a legal proceeding. For a judge personally and publicly to denigrate a party to a proceeding during a hearing is inconsistent with this fundamental judicial responsibility. However, it is not necessarily fatal to the legality of the proceeding for a judge to do so. In a case like the present, this would turn on whether a fair-minded observer might reasonably apprehend that the judge might not be impartial in hearing and determining the proceeding. The reviewing court would take into account not just the making of the impugned remark but also the judge's conduct of the proceeding generally, the context in which the remark was made and whether it was withdrawn or explained, among other potential considerations.

In the present case, the conduct of the proceeding was highly conflictual to an unusual extent. Counsel for the informant that the judge was usually calm in manner but the transcript and audio-visual recording show that his Honour was anything but that for significant periods of time. The judge had Mr Kyriazis taken into custody without warning at the start of hearing, placed him in the dock and detained him for contempt in that isolated position for the duration of the hearing. Aggression rising beyond anger and frustration was displayed on both sides. The language used by each towards the other became argumentative and personal on several occasions. With respect, it is regrettable that the judge, who is very experienced, allowed himself to be drawn into such a situation. It was in this context that the judge referred to Mr Kyriazis as being one of 'these people', which he immediately admitted was 'denigrating [of Mr Kyriazis] publicly'. His Honour thereby admitted to intentionally denigrating Mr Kyriazis publicly and personally. His Honour never withdrew or apologised for this and the explanation that he belatedly gave only reinforced that it was directed personally towards Mr Kyriazis. It was not a slip of the tongue in the heat of the moment. Counsel for the informant did not so submit, and on the evidence could not so submit.

It may be that, even had the remark not been made, the conduct of the proceeding would have been regarded as lacking the requisite apparent judicial impartiality. I think a fair-minded observer would struggle, as I have done, to justify what occurred, even given the behaviour of Mr Kyriazis and his supporters. However, upon a consideration of the evidence about the whole course of the proceeding, which is available in transcript and audio-visual form, I must conclude that a fair-minded observer would have reasonably apprehended that the judge might not have impartially conducted the hearing and determined the charges and the sentence at least because he had personally and publicly denigrated Mr Kyriazis.[17]

Mr Kyriazis has established that the judge sitting in the County Court of Melbourne breached the rules of natural justice in relation to the hearing and determination of the road safety charges that were brought against him. The judge gave him very limited assistance as a litigant in person. Further, the conduct of the proceeding was highly conflictual to an unusual degree. Aggression rising above anger and frustration passed between Mr Kyriazis and the judge at various times during the hearing. On one occasion, the judge personally publicly denigrated him, admitted that this was intended and did not withdraw the remark. In the circumstances, a fair-minded observer would reasonably conclude that his Honour might not have impartially heard and determined the charges.[18]

55 In summary, the applicant contended that Bell J:

(1) erred in describing Judge Chettle's conduct of, and demeanour in, Mr Kyriazis's appeal as being 'anything but [calm] for significant periods of time', and constituting 'aggression rising beyond anger and frustration' (proposed ground 3);

(2) erred in finding that Mr Kyriazis was denied procedural fairness (proposed ground 1); and

(3) erred in finding that Judge Chettle was ostensibly biased (proposed ground 2).

56 The applicant submitted that Mr Kyriazis had been 'ostentatiously defiant', and that he had challenged the authority of the Court throughout the hearing before Judge Chettle. On the other hand, Judge Chettle, while at times displaying great frustration, displayed calmness in the face of Mr Kyriazis's aggression.

57 The applicant accepted that a judge hearing a matter involving a litigant in person was required to give that litigant such assistance in the conduct of his or her proceeding as might be necessary. He submitted, however, that no such obligation was owed in circumstances where the litigant in person was defiantly refusing to participate in the proceeding. The applicant contended that, in the circumstances of the present case, Judge Chettle discharged his obligation to provide a fair hearing by continuing to engage with Mr Kyriazis notwithstanding his repeated refusals of such assistance.

58 As to Judge Chettle's statement, 'Why do we give these people platforms?', and his confirmation that he was 'denigrating [Mr Kyriazis] publicly', the applicant submitted that these two statements had to be considered in the context of the whole of the hearing. When considered in context, it was said, the impugned statements would not have given rise to any apprehension of bias against Mr Kyriazis.[19]

59 In this Court, counsel for Mr Kyriazis sought to support the reasoning and conclusions of Bell J. They submitted that the judge was correct in his description and characterisation of Judge Chettle's conduct of, and demeanour in, Mr Kyriazis's County Court appeal.

60 Counsel for Mr Kyriazis conceded that there were aspects of Mr Kyriazis's behaviour before Judge Chettle that were inappropriate but maintained that Judge Chettle was still bound to provide Mr Kyriazis with the assistance described by Bell J.[20] Moreover, it was said, Bell J was plainly correct when he determined that Judge Chettle's admitted denigration of Mr Kyriazis amounted to ostensible bias. It mattered not that Mr Kyriazis had himself been rude and inappropriate during the course of the hearing, or that Judge Chettle might reasonably be thought to have been provoked by him.

61 Counsel for Mr Kyriazis advanced additional bases upon which Bell J's orders might be supported. For example, it was submitted that Judge Chettle's refusal to hear Mr Kyriazis's submissions about the possibility of videotaping the hearing was a denial of procedural fairness, vitiating the conduct of the hearing before his Honour at the outset. We should immediately observe that these additional arguments were advanced without any attempt by Mr Kyriazis to file a notice of contention.

62 This Court is bound to conduct a real review of the proceeding before the primary judge (Bell J) and, if persuaded that the conclusion of the primary judge is wrong, 'give the judgment which in its opinion ought to have been given in the first instance'.[21] In the present case, we are in as good a position as the primary judge to determine the levels of anger and aggression (if any) displayed by the County Court judge. As already mentioned, we have more than once watched the full video recording of the hearing.

63 In the matter of Roberts, delivered this morning, we discussed the fundamental obligation of every court to ensure a fair hearing for the parties before it. We made the following points:

(1) 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.

(2) 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.

(3) 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.

(4) 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.

(5) 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.[22]

64 The same framework of analysis applies here. In this case, the judge already had a copy of Mr Kyriazis's pre-hearing letter, which demonstrated that he was articulate and fluent and well able to assert what he believed to be his rights. Insofar as the letter stated categorically that he would be 'attending with my audio and video recorder in order to ... protect my lawful interest', the letter was ― as Bell J accurately described it ― 'misconceived and provocative'. It was, moreover, most unusual for a litigant to state in advance that:

I have no trust nor faith in your forum nor your judicial staff.

65 Despite the aggressive tone of the letter, the judge commenced the hearing perfectly appropriately, by inviting Mr Kyriazis to come to the bar table to present his case. Quite properly, too, his Honour treated the pre-hearing letter as an application for permission to make a recording, that permission being required under the Court Security Act 1980. His Honour ruled ― as he was entitled to ― that Mr Kyriazis could make an audio recording but not a video recording.

66 That should have been the end of the matter. Instead of accepting that ruling, however, Mr Kyriazis adopted a confrontational tone, insisting that the judge engage with him on the provisions of the Court Security Act 1980. As noted earlier, Mr Kyriazis said to the judge:

I really need to ask you ... what Act are you relying on and what part of the Act are you relying on?

67 There was simply no occasion to debate the matter further. This was a straightforward procedural matter, which the judge had disposed of expeditiously, and it had no practical significance, since Mr Kyriazis did not have a video recorder with him. As a result, his insistence on debating the question conveys to any viewer of the video of the hearing that he seemed to be 'spoiling for a fight'.

68 The judge was, understandably, taken by surprise by Mr Kyriazis's pursuit of this trivial matter of recording. Mr Kyriazis's refusal to desist prompted what we regard as quite understandable frustration and impatience on the part of the judge. The tone of Mr Kyriazis's exchanges with the judge, even at this early stage, was characteristic of the defiant and disrespectful attitude which persisted throughout the hearing.

69 It was at this relatively early stage that, in response to the judge's refusal to deal further with the video recording matter, Mr Kyriazis announced that he would not participate. There was no justification for him having taken that view. It was an act of pure petulance. Complaint was made on the appeal about the judge's refusal to hear Mr Kyriazis on his 'preliminary issues'. But it is clear that there were only two such issues, the first being the recording, the second being the subpoenas. For, when the judge turned to deal with the subpoenas, Mr Kyriazis said, 'That's my preliminary issue'.

70 As we have said, the judge dealt methodically and thoroughly with each of the subpoenas and, in the usual way, required the subpoenaed documents to be produced to the Court and made available to Mr Kyriazis. Any reasonable observer of the proceeding would have appreciated, as Mr Kyriazis should have appreciated, that the judge was concerned to ensure that he had a fair hearing. We note, in particular, the judge's remark that he had refrained from looking at the printout from the Victoria Police computer, showing Mr Kyriazis's criminal record, because it would not be appropriate to do so. This was consistent with the maintenance of scrupulous standards of fairness.

71 In this Court, counsel for Mr Kyriazis submitted that a judge's obligation to provide assistance was unaffected by any unwillingness on the part of a litigant in person to receive such assistance. That submission must be rejected. As was said by Mazza JA[23] in O'Connell v The State of Western Australia:

Being unrepresented is not a free pass to misbehave, flout the legal or procedural rules, ignore the law of evidence or to treat the trial judge and witnesses with disrespect or contempt. Where an unrepresented [person] acts or attempts to act in any of these ways, a trial judge must fairly and, if necessary, firmly deal with such behaviour. The extent to which a trial is regarded as fair will be examined in the light of [the unrepresented person's] own conduct.[24]

72 Mr Kyriazis's reliance on certain passages drawn from the reasons for judgment of the High Court in MacPherson v The Queen[25] is misplaced. In that case, Gibbs CJ and Wilson J observed that a judge has a role in informing an accused of his rights in relation to the conduct of a trial. To similar effect, Mason J noted that a judge is under a duty to give the accused such information and advice as is necessary to ensure a fair trial. In respect of a fair trial, the Chief Justice and Wilson J went on to say that

although no doubt some accused persons refuse the offer of legal representation for tactical reason, an accused does not become disentitled to a fair trial because he has declined and even perversely declined an offer of legal assistance.[26]

None of those matters is contentious, but they do not assist Mr Kyriazis here.

73 In assessing Mr Kyriazis's need for assistance and its content, the judge was plainly entitled to have regard to the applicant's conduct and attitude. The observations of Mazza JA do not in any way conflict with MacPherson, and are on point.

74 In the present case, Judge Chettle provided Mr Kyriazis with all of the assistance he could reasonably expect. Notwithstanding Mr Kyriazis's continued rude and disrespectful behaviour to the judge, the judge maintained a calm (if, at times, frustrated and annoyed) demeanour and continued throughout the hearing to attempt to engage with Mr Kyriazis and inform him about the process and of his options from time to time.

75 Mr Kyriazis was not a naïve litigant. He subpoenaed documents; he was obviously aware of the order of evidence; and he made a conscious decision to withdraw from the proceeding, making repeated references to his intention to go to 'the Prothonotary' in order to challenge the conduct of Judge Chettle in another forum. While Mr Kyriazis demonstrated misperceptions about particular matters from time to time ― for example, that he needed the judge's leave to approach the Prothonotary ― there is nothing in the transcript that suggests he was in any way uninformed about the essential elements of the process he was engaged in. On the contrary, he was well aware of his right to lead evidence and to cross-examine, and he showed an obvious familiarity with procedure when he purported to object to leading questions.

76 In this Court, counsel for Mr Kyriazis sought to argue that there was a denial of procedural fairness when Judge Chettle refused to give Mr Kyriazis more time to consider the subpoenaed documents. The transcript reveals that Judge Chettle was originally prepared to give Mr Kyriazis until 12:00 pm (more than 75 minutes) to consider the subpoenaed documents. After his Honour was told, however, that Mr Kyriazis had been provided with the documents at an earlier hearing, Judge Chettle stood the matter down for 15 minutes.

77 It is plain from the transcript that his Honour would have been prepared to give Mr Kyriazis more time on the day of the hearing, had he requested it, but was not prepared to adjourn the hearing to another day. In the circumstances of this case, we see no denial of procedural fairness in Judge Chettle's approach to this issue.

78 For the reasons given above, Bell J's conclusion that Mr Kyriazis was denied a fair hearing must be set aside. Moreover, the other bases upon which counsel for Mr Kyriazis sought to maintain Bell J's conclusion must be rejected.

79 The bias rule is breached if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[27] The level of knowledge and sophistication which a fair-minded observer hypothetically brings to the question is that of a lay person (not a lawyer), informed as to the relevant facts of the case and sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear.[28]

[A fair-minded observer] would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. [The observer] must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. [The observer] will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, [the observer] would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.[29]

81 Bell J held that Judge Chettle was ostensibly biased because, having made the statement 'Why do we give these people platforms?', he then admitted that he had publicly denigrated Mr Kyriazis. In this Court, counsel for Mr Kyriazis sought to contend that Bell J's finding of ostensible bias was made on a wider basis. A fair reading of Bell J's reasons for judgment, however, discloses the more limited basis upon which the finding of ostensible bias was made.[30]

82 A judicial officer, with 'the patience of Job', would have been sorely provoked by Mr Kyriazis's wilful defiance and by the defiant attitude of his supporters. Collectively, they had made the hearing almost unmanageable. The impugned statements were made shortly after another refusal of assistance by Mr Kyriazis, and his statement 'What part of the English (sic) don't you understand?' This was a disgraceful thing for Mr Kyriazis to say. It was intentionally insulting and disrespectful, a display of open contempt for the judge and the Court.

83 What occurred before Judge Chettle was nothing short of extraordinary. As noted earlier, the adversarial tone had been set by Mr Kyriazis in his pre-hearing letter. What should have been a straightforward re-hearing of a Magistrates' Court prosecution was turned by Mr Kyriazis, and his supporters, into an occasion for challenging the authority of the Court, through disputation over minor matters, consistent refusal to accept the judge's rulings and directions, and an inexplicable refusal to participate in the substantive hearing.

84 So extraordinary was this conduct that the judge was entitled to wonder whether the proceeding was being used as a 'platform' for a group of people who wished to ventilate dissatisfaction with ― even lack of respect for ― the Court or the prosecuting authorities. It is hardly surprising that the judge formulated the rhetorical question as he did. It would undoubtedly have been preferable if his Honour had not vocalised the question, as it clearly conveyed ― as his Honour acknowledged ― an implied criticism of Mr Kyriazis. But the question of bias has to be considered in the light of the conduct of the entire hearing. With great respect to the trial judge, we consider that there is no basis for concluding that his Honour showed ostensible bias. On the contrary, such impatience and frustration as he expressed was mild by comparison with the aggression and provocation with which he was confronted.

85 Moreover, when the whole of the hearing before Judge Chettle is taken into account, two matters are plain: first, Judge Chettle thought that the prosecution case against Mr Kyriazis was 'ridiculous'; secondly, when one watches the DVD one sees a busy judicial officer who was at pains to deal fairly and expeditiously with Mr Kyriazis's appeal. Thus, at the conclusion of the evidence Judge Chettle cut off the prosecutor's submissions as to a fine that might have been imposed on Mr Kyriazis.

86 At the conclusion of the hearing, far from thinking that Judge Chettle might not have brought an impartial mind to the resolution of Mr Kyriazis's case, a fair-minded lay observer would have concluded that a busy judge was merely vexed by a rude and disrespectful litigant. Even if it might be thought that at some point in the hearing Judge Chettle had been discourteous, impatient or even rude, as has been said before, it is important to distinguish conduct on the part of a judge which might satisfy that description but which does not demonstrate bias.[31] Bell J's conclusion that Mr Kyriazis had established that Judge Chettle was ostensibly biased must be set aside.

87 The applicant has made out his three proposed grounds of appeal. Leave to appeal must be granted, the appeal must be allowed, the orders of Bell J must be set aside and, in lieu thereof, there must be an order dismissing Mr Kyriazis's proceeding for judicial review.

88 Finally, we wish to acknowledge the great assistance provided to the Court, and to Mr Kyriazis, by counsel who appeared pro bono on his behalf. They addressed, clearly and cogently, all of the arguments which could properly be advanced. In doing so, they upheld the highest standards of the Bar.

[1] Kyriazis v County Court of Victoria [No 2] [2017] VSC 646 ('Reasons').

[2] [2018] VSCA 215 ('Roberts').

[5] At this point, the DVD discloses that both Mr Kyriazis and the judge were talking over each other. The apparent negative answer to the question 'Are we being videotaped here today?' was not in fact a negative answer to that question. At the time he said 'No', the judge was in the middle of saying, 'No, you're not videotaping anything'. Cf Reasons [42].

[9] Section 4A(4) of the Court Security Act 1980 provided:

(a) express written permission is given by a judicial officer, whether in respect of -

(i) a specific proceeding or class of proceedings; or

(b) required by or authorised under any other Act or subordinate instrument; or

(c) the recording is of a prescribed class of recordings.

[11] [2007] VSC 337; (2007) 17 VR 100.

[19] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344 [6] ('Ebner').

[20] See, in particular, Reasons [58].

[21] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125 [23].

[23] With whom Martin CJ and Buss JA agreed.

[24] [2012] WASCA 96 [109] (emphasis added) ('O'Connell').

[25] [1981] HCA 46; (1981) 147 CLR 512 ('MacPherson').

[27] Ebner [2000] HCA 63; (2000) 205 CLR 337, 344 [6].

[28] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87-88; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 507-9 [52]-[53].

[29] [2000] HCA 48; (2000) 201 CLR 488, 508-9 [53] (citations omitted).

[31] Lee v Cha [2008] NSWCA 13 [50] (Basten JA, with whom Hodgson and Bell JJA agreed).