39 In the course of argument earlier on the day in question the primary judge said that notwithstanding the appellant's application the Court would "proceed with the rest of the case." (Transcript p 4) This did not occur as the Court subsequently dismissed the proceedings rather than determining them on the merits, but it was a course that was open to his Honour. Before taking it, it would however have been necessary for the Court to explain to the appellant first that in the absence of the appellant proceeding to lead further evidence in his case the Court would be determining the proceedings on the basis of such evidence as he had thus far adduced and, as his opponents wished to adduce, and secondly that the Court's decision would be a final one precluding the appellant commencing a further action of the same nature.
40 YOUNG JA: This is an appeal brought by leave by a disappointed litigant in person before the Land and Environment Court. The Court below dismissed the proceedings after the appellant insisted that a neutral judge hear his application that the primary judge recuse himself and said that he could not go on with the case until that occurred.
41 I first had thoughts that leave to appeal might not be required because the action had been dismissed. However, s 91 of the Civil Procedure Act 2005 (which applies to the current action in the Land and Environment Court) makes it clear that the dismissal is to be categorised as interlocutory, thus leave was needed. That leave was granted, but was limited to the question as to whether the primary judge denied procedural fairness by making the order for dismissal of the proceedings. The appellant subsequently filed a further motion to expand the ambit of the appeal and in connection with this motion he filed submissions dated 7 September 2010 to which I will refer as the "September submissions". That motion was dismissed on 27 October 2010 though the appellant has sought special leave to appeal.
42 In giving reasons for allowing leave to appeal on the grounds specified Justice Sackville in his reasons, in which Justice Handley acquiesced, made it clear that in his Honour's view it was arguable that the primary judge should have taken further steps before dismissing the proceedings to ensure that the appellant understood what was to happen and what powers the judge was proposing to exercise and the consequence of the exercise of those powers for the proceedings which the appellant had instigated.
43 I should at this stage say that although I would agree with about ninety per cent of what has fallen from the President and Justice Macfarlan, I have the misfortune to have reached the opposite conclusion in assessing the material and I would have dismissed the appeal. However as the majority have assessed that material otherwise what I have to say should not disturb the appellant unduly.
44 The proceedings before the Land and Environment Court were a challenge by the appellant to the validity of certain development consents granted by the first respondent to the second and third respondents in respect of land at Katoomba. The appellant lives in Katoomba though not near the subject land. He is a man of mature age, but says that at least until the present litigation, he was a full-time TAFE student and an environmentalist. He purports to have taken these proceedings as a matter of the public interest.
45 The proceedings were listed to take ten days before the Court below over which Justice David Lloyd presided. The appellant appeared in person. The first respondent was represented by Mr Ian Hemmings of counsel and the second and third respondents by Mr P Clay of counsel.
46 It would seem that on day four of the hearing the primary judge made some comments about the slow progress of the case and also comments about the operation of the Torrens system which latter the appellant thought were misleading.
47 On day four the appellant said that he had a notice of motion to file in the registry. The primary judge told him it could be filed in Court. The appellant's riposte was that as it concerned the judge that would be inappropriate. The motion was filed in the registry and brought up to the judge. The motion virtually was that the judge recuse himself. The appellant, however, insisted that Justice Lloyd should not hear it proclaiming that the judge had a conflict of interest. The primary judge indicated that he would hear it. The appellant refused to present evidence before Justice Lloyd who thereupon dismissed the motion.
48 Mr Clay of counsel clearly said in open court in Mr Jeray's hearing:
"Mr Jeray may not be aware that any application such as this must always be made before the officer hearing the matter, be it a judge, commissioner or otherwise, and it is always that person to whom the application must be made. Mr Jeray may not be aware of that and your Honour with respect is quite right in ensuring that the application is heard by your Honour."
49 Now later on on p 6 of the transcript the judge asked Mr Jeray whether he wanted to respond but he did not address that particular point. I mention it because even if the reason for the judge insisting on hearing the matter himself was not fairly indicated to Mr Jeray by the judge, at least it was by Mr Clay.
50 Now what happened on 16 July is best dealt with by examining the transcript. The President's judgment has already set out the whole of the material parts.
51 The appeal was heard this afternoon, again the appellant appeared in person and Mr Ian Hemmings for the first respondent and Mr P Clay for the second and third respondents.
52 The appellant's written submissions in support of the appeal (which I will call the "October submissions") contain a note that they must be read in conjunction with the white appeal book, the September submissions and the appellant's affidavit of 20 September 2010.
53 The September submissions deal with a number of complaints about the trial before the primary judge and how the appellant felt that he was "under duress" or pressure because the judge thought that such a complex case should be able to be conducted within a week. Whether there is or is not any validity in these claims is not a matter that is relevant to this appeal and as things have turned out, are not relevant at all. The September submissions and the affidavit and the October submissions repeat over and over again a series of propositions as to a judge's alleged obligations to a litigant in person.
54 As to this, the respondents accept that in fulfilling the basic obligation to ensure a fair trial, additional obligations may fall upon a judge where there is a litigant in person. Indeed, the respondent's counsel accepted that the law in this respect was appropriately stated by Justice Basten with whom Justices Hodgson and Bell agreed, in Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 [48]. Justice Basten said:
"The relevant principles, if they can be so described, derive from the obligation of a trial judge to take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure of the Court as is reasonably practicable for the purpose of ensuring a fair trial".
55 As counsel noted, Justice Basten applied what High Court judges had said in a criminal law setting in McPherson v R [1981] HCA 46; 147 CLR 512. They noted that Justice Mason remarked at 147 CLR 534 that If the accused is allowed to remain in ignorance of a fundamental procedure, it can hardly be said that he has had a fair trial. Further, that Justice Brennan said at 546:
"If ... an unrepresented accused is kept in ignorance of the rules, procedural rules which are designed to protect an accused and so ensure a fair trial become a trap ...."
56 However, it should be remembered that in Minogue v The Human Rights and Opportunity Commission (1999) 84 FCR 438, the Full Federal Court made it clear that the duty of a court to an unrepresented person in a criminal case is greater than that in a civil case.
57 Now, before moving on, it is appropriate to repeat what Justice Basten said in Lee v Cha at the commencement and conclusion of his discussion about the relevant principles. His Honour said at para [46] and [49]:
"46 Because Mr Park was a litigant in person, this Court was taken to a number of cases concerned with the appropriate behaviour of a trial judge when faced with a litigant in person…However, it may be noted that the remarks in such judgments are not always precise as to whether they are:
(a) specifying essential elements of procedural fairness, absence of which will result in judgments or orders being set aside;
(b) principles, breach of which may demonstrate lack of impartiality, or
(c) desirable steps, breach of which will not necessarily give rise to any ground of appeal or basis for setting aside a judgment for partiality.
49 There will be cases where a failure to provide assistance to a litigant in person will give rise to a miscarriage, so that the trial may be overturned on appeal: MacPherson provides an example. However, it is important to note that although an appearance of partiality may be said to give rise to an unfair trial, a failure to provide sufficient information to an unrepresented litigant may result in the trial miscarrying without any suggestion of bias or apprehended bias on the part of the trial judge. Partiality is a specific form of unfairness …"
58 The respondents submit that it can be seen from the transcript that the appellant was no shrinking violet. When informed his motion to recuse was refused and that unless he proceeded, the judge would have no option but to dismiss the action, his reaction was: "Well, then I shall appeal", a reaction which indicates both appreciation of court procedure and a person not being over pressured by the Court.
59 Again counsel point to the fact that when the action was dismissed, the appellant did not raise any further matters for the Court record.
60 The respondents submit that the transcript shows that the appellant did not want Justice Lloyd to continue the hearing, he wanted another judge. When that was denied him, he protested by refusing to proceed, well knowing what might happen.
61 The appellant's October submissions mostly repeated once more the grabs from the authorities that were oft repeated in the September submissions as to a judge's obligations to litigants in person. While assuming that the grabs generally have been correctly recorded, it must be remembered first, that not all of the remarks recorded by the appellant referred to circumstances in Justice Basten's category (a) and secondly, a fair trial is to be measured by consideration of the whole of what occurs, not by some methods of ticking boxes to see if the trial judge complied with every piece of advice from a prior decision.
62 It must also be noted that not every ground presented by the appellant is relevant to every case. For instance, his summary of the High Court's decision in Neil v Nott [1994] HCA 23; 121 ALR 148,150; 68 ALJR 509, 510 is that:
"A judge should attempt to clarify the substance of the submissions of a litigant in person".
63 However, what the High Court judges actually said was:
"A frequent consequence of self representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy."
64 There was no suggestion in the instant case that the appellant's submissions were in any respect obfuscatory.
65 Again, it is useful to quote from a Federal Court decision, not included in the appellant's submissions, Abram v Bank of New Zealand [1996] 18 ATPR 41-507. There the Court consisting of Justices Hill, Tamberlin and Sundberg, commented on the decision of Neil v Nott by noting that the appellant in the Abram case appeared to have a good grasp of matters as one could speculate him to have and then saying:
"What a judge must do to assist a litigant in person depends on the litigant, the nature of the case and the litigant's intelligence and understanding of the case."
66 The only question for us is whether the primary judge denied procedural fairness by making the order for dismissal of the proceedings. Leave to appeal was granted because the matter was seen to be arguable. There is no suggestion that the appellant, a tertiary student, is other than a person of intelligence or an understanding of the case.
67 However, the appellant says that at the time he was in shock that his motion was refused, he needed time to consider the impact of that and to get advice and to do research and that that was refused him. It is untrue that he refused to continue with the case. He says that he was unable to continue for the time being because of what had occurred.
68 However, there is no doubt that the judge warned the appellant at least twice and that the opposing counsel's address also focussed on the consequences of his refusing to continue.
69 On one reading of the transcript, it might be thought that the appellant was still thinking in terms of a dismissal of his notice of motion. However, he has never made that submission. A reading of the transcript might also give the impression that the appellant was so upset about what he considered to be an unjust ruling on his notice of motion that he was not able to take in what was being said about dismissing the whole application but he has not made that submission either.
70 The appellant does not say he misunderstood the warnings. However, it may be significant that after the judge had dismissed the whole proceedings, the appellant was still maintaining the attitude that his motion should be dealt with by a neutral adjudicator and that he should have time to make a full affidavit, but the appellant did not ever apply for an adjournment to consider his position.
71 However, he does seem to have considered in the material he put before us that a litigant in person is entitled to adjournments on request. That is not the law. Cases are case managed and most Court schedules do not allow for a leisurely wander through issues.
72 The appellant says that when the judge added the words: "I should simply record what happened …" he reasonably supposed that what was to come was a summary of the morning's events for the record, not a judgment disposing of the whole case. However, if this was his belief, he made no protest about that matter. He did, however, continue to address the Court saying that he did want to continue with the proceedings, though before a different judge.
73 There are some unusual features about the case. First, the judge did not specify the authority he used to dismiss the proceedings and whether the proceedings were dismissed on the merits or on some interlocutory basis. However, the application of s 91 of the Civil Procedure Act 2005 means that the plaintiff can come again, at least after he has satisfied the costs order made against him.
74 Secondly, there does not appear to be any case to which we were referred or which may own research has uncovered where the plaintiff "takes his bat and ball and goes home" on the fourth day of a trial (to quote the simile used by Justice Sackville on the leave application).
75 It is clear that if a defendant applies for an adjournment which is refused and then declines to proceed further, the plaintiff has at least two options. First, the plaintiff may move to strike out the defence and then seek default judgment. Alternatively, the plaintiff can press on with the case and prove it. This latter alternative was adopted in Tennero Limited v Arnold [2007] 1 WLR 1025 because the plaintiff wanted a judgment on the merits to enforce overseas.
76 If it is the plaintiff in the same situation, the defendant can apply to strike out the statement of claim. However, the defendant cannot seem to be able to get a judgment on the merits so as to be protected from the plaintiff coming again. Indeed, if the situation is classified as a failure to prosecute the case, calling for a sort of judgment non pros to use the classic term (see rule [12.7]) and the proceedings are dismissed, s 91 of the Civil Procedure Act would operate to allow the plaintiff to come again.
77 The trial judge seemed to have treated the situation as amounting in substance to the appellant discontinuing the proceeding. It is difficult to see how the situation could be so classified as the appellant never intended to discontinue and made that clear. He was merely "on strike" until he got what he wanted.
78 It is difficult to justify the judge's course of merely dismissing the proceedings. Suppose that in the course of the hearing, some aspect of the relevant Council's approval process had been considered in depth and it was clear that there was an irremediable defect. I doubt whether a judge of a court designed to ensure proper standards of land development could just ignore the defect and dismiss the challenge to the development. I am not suggesting that happened in the instant case, but it needs to be something that is examined when testing the powers of the Court.
79 Mr Hemmings says that courts have inherent powers to control abuse of their process and that is so. He says if all else fails, that covers the present case. I do not really need to go any further, because what I have said in the preceding paragraphs do not address the core of the only ground in which leave to appeal was granted. Namely, whether the primary judge denied procedural fairness, by making the order for dismissal of the proceedings.
80 Likewise, one must put out of one's mind to a great degree, the prejudice caused to the respondents because we are dealing, not with a matter of discretion, but the appellant's right to a fair trial . We do not know enough of the facts to make a judgment, but it would not be an unusual scenario that while the present litigation is pending, the developer respondents are paying rates and holding charges on their land and receiving no income from it. Where the hold up is caused by a person that has no personal interest in the matter, that has brought about that delay, one can have sympathy for them. However, where the question is whether there has been a fair trial, one has to put that to one side.
81 The appellant has said a lot about the rights of a litigant in person. Indeed, when one considers later authorities, he said more than the authorities properly read would support. Those rights must be respected, though one must always keep in mind the prejudice caused to other parties by asserting those rights. The authorities do say that the courts must take particular care to see that there is a fair trial, when there is a litigant in person. However, that does not mean giving the litigant in person carte blanche, to conduct the case according to his or her own whims.
82 Again the fact that, if this appeal succeeds, the appellant would achieve his aim of having a new trial before a different judge, because Justice Lloyd has now retired, despite any lack of merits of that application, it is not a relevant fact of this appeal. The basal cause of a retrial before a different judge is Justice Lloyd's retirement, for which the appellant cannot be blamed.
83 Also, the probability that in the situation such as occurred in the present case, it could have been better dealt with by the judge taking a short adjournment for people to calm down and then explaining matters over again, more slowly, is not determinative. The Court is not dealing with what might have been the wisest course, but whether the course the judge did in fact take, was the denial of a fair trial.
84 The case is close to the borderline and it is necessary to list the prime factors for and against the appellant.
85 In favour of the appellant are: