Court of Appeal (Vic)|2011-02-11|Before: Mr J, Neave JA, Redlich JA, Mandie JA

McWhinney v Melbourne Health [2011] VSCA 22 (11 February 2011)

McWhinney v Melbourne Health (Unreported, County Court of Victoria, Judge Robertson, 5 March 2009)

1 The appellant commenced proceedings in the County Court before a judge alone seeking damages in negligence against Melbourne Health. He claimed that three of the employees of Melbourne Health had been negligent in subjecting him to involuntary treatment in respect of his alleged psychiatric condition. Following a trial of the action, in which the appellant represented himself, his claim was dismissed.

2 After the appeal was heard by this Court and our decision was reserved, the appellant advised the registry of his intention to abandon his appeal. After inquiries were made of the appellant and then of counsel who had appeared for him on the appeal, the registry was informed that he wished to continue with his appeal. Later, he again advised the registry that he did not wish to continue with the appeal. Upon further inquiry by the registry which indicated some uncertainty as to the appellant's wishes and following some further delay, the matter was listed for mention before the Court. At this time, the appellant, who was again represented by counsel who had appeared on the appeal, informed the Court that he wished the appeal to continue. The respondent had no objection to this course. Accordingly, we have now proceeded to complete our reasons for judgment.

3 At the commencement of the appeal counsel, who now represents the appellant, obtained leave to further amend the grounds of appeal. The appeal is now brought on three grounds, each of which allege that the appellant was in a material respect denied procedural fairness:

The learned trial judge erred in process by not allowing the appellant to make an opening statement in accordance with rule 49.01 of the County Court Civil Procedure Rules (2008).
The learned trial [judge] erred in that his Honour judge [sic] conducted himself in such a way that a fair-minded observer might reasonably apprehend that it was possible that he might not bring an impartial and unprejudiced mind to the determination of the appellant's claim.
The learned trial judge erred in that his Honour failed to ensure a fair trial and/or afford the appellant procedural fairness by:
- (a) failing to give due assistance to the appellant who was not legally represented;
- (b) failing to adjourn the trial of his own motion;
- (c) failing to allow the appellant an adequate opportunity to make an opening address;
- (d) failing to allow the appellant an adequate opportunity to give evidence in support of his case;
- (e) cross-examining the appellant during his evidence-in-chief.

4 The primary allegations upon which the appellant's claim was based were as follows. On 3 September 2006, the appellant was conveyed to hospital for admission as an involuntary patient. As a consequence of the alleged negligent conduct of the servants and agents of Melbourne Health, he was wrongfully found to meet the definition of an involuntary patient under s 8 of the Mental Health Act 1986 and was made the subject of an involuntary treatment order. Without his consent, he was then given medical treatment. He alleged that this involuntary treatment caused him significant damage and loss.

5 It is convenient to set out the course that was followed at the trial before turning to a consideration of each specific ground. At the commencement of the hearing, the learned trial judge addressed the appellant and explained to him the difficulties involved with appearing in person. He then asked the appellant to clarify the nature of his case, before explaining to the appellant the proposed course of the proceeding such as the order of argument and the nature of evidence-in-chief. His Honour then asked whether the appellant intended to call any witnesses in the case. The appellant replied that he did not, causing the trial judge to ask whether he intended to rely on any medical evidence.

6 At this point, the appellant explained that he intended to rely upon certain 'reports' that he had supplied to the court. The nature of these reports was then explained to the learned trial judge. They comprised extracts from general documents with titles including 'Meridian Therapy', 'The Theory of Yin and Yang' and 'Spleen and the Liver'. It appears that the appellant intended to rely upon such documents to support a general theory as to his rehabilitation, which he maintained was the consequence of his involvement with a particular form of Chinese martial arts.

7 When pressed by his Honour, the appellant further referred to a report from a Dr Kevin De Jong. This document concerned the difficulties suffered by the appellant in respect of prostate enlargement. This, it was explained by his Honour, was irrelevant to the appellant's case as it did not bear upon the appellant's mental condition. The judge, correctly, apprehended that the appellant was without any relevant and admissible medical evidence and informed the appellant that such evidence was necessary if the appellant was to succeed. The trial judge further encouraged the appellant to obtain some expert evidence, on a number of occasions repeating his view that if the appellant was to have any chance of success he would need some expert medical evidence. These observations were said to support a reasonable apprehension of bias, the subject of ground 2.

8 His Honour invited the appellant to apply for an adjournment of the case to enable him to obtain medical evidence. The appellant declined that invitation. The appellant, in response, made clear that he wished to immediately continue with the trial. Under ground 3(b) it is said that the trial judge should then have adjourned the proceedings on his own motion.

9 The trial judge then invited the appellant to open his case. With some assistance from questions asked by the trial judge, the appellant then set out in general terms the nature of his claim. Shortly after, the trial judge told the appellant that he understood an 'overview' of the case, and explained to him that he needed to go on oath if his account was to be received in evidence. The appellant was reluctant to bring his opening to an end. He was allowed to continue and then made reference to certain articles and other inadmissible material upon which he wished to rely. The trial judge then explained why such evidence was inadmissible and that he could only act upon evidence that was admissible evidence. His Honour re-iterated that it would be more appropriate for the appellant to commence to give his evidence. This gives rise to the complaint made under grounds 1 and 3(a) that the appellant was not permitted to complete his opening.

10 After some further reluctance the appellant entered the witness box and gave sworn evidence. His evidence was given largely in response to questions from the judge. The manner in which he was questioned gives rise to the complaint of procedural unfairness made under ground 3 limbs (d) and (e) that the appellant was not afforded an adequate opportunity to give his evidence and was cross-examined by the trial judge. During the course of his evidence, the trial judge asked the appellant a number of questions about the content of a report in the hospital file which had been subpoenaed. The appellant gave unequivocal evidence of his belief that he was not suffering from any mental illness at the relevant time and that he did not therefore meet any of the criteria for treatment. Aside from this evidence, and tendering some documentation, primarily relating to the issue of quantum, the appellant called no other evidence. The appellant was then cross-examined by counsel for the respondent.

11 Evidence was called by the respondent from four of its employees, two medical practitioners and two psychiatric nurses. Their evidence, as was later observed by the trial judge, was essentially unchallenged by the appellant. Each witness gave evidence which supported a finding that the appellant was suffering from a relevant mental illness at the relevant time. In particular, Professor Doherty gave evidence that the plaintiff suffered from a lack of insight into his mental health condition, with that lack of insight being a hallmark symptom of a psychotic condition. The learned trial judge rejected the appellant's claim and concluded that the court was satisfied that the appellant's mental health condition fulfilled each of the statutory criteria for treatment as an involuntary patient at the relevant time.

12 The appellant submitted that comments made by the trial judge in the course of preliminary argument gave rise to a reasonable apprehension of bias. Before the appellant opened his case, the trial judge ascertained from the appellant that he did not intend to call any medical evidence. The appellant said he was intending to rely upon some reports which he had provided. The judge went through those reports and informed the appellant that they were either inadmissible or irrelevant and would not advance his case. No issue is taken with his Honour's view of those reports. His Honour then informed the appellant that it is very difficult to succeed in a medical negligence case without expert evidence. His Honour said:

These cases are won and lost generally on expert medical evidence and it seems to me, it is not really my role to advise any party in a case, the plaintiff or the defendant, but it seems to me that if you wish to be successful in this case or to have some chance of success, you are going to have to get some evidence from somewhere. You are going to have to get some evidence from an expert medical practitioner....What you need to do is to obtain evidence from an expert psychiatrist as to what should or should not have been done in your case....

13 His Honour advised the appellant that he was going to be 'very severely disadvantaged' unless he had some expert evidence. The trial judge further informed the appellant that the 'only way' he could 'win the case' was to obtain evidence from expert medical practitioners that bore upon whether he should have been the subject of an involuntary treatment order. The trial judge told the appellant that he had 'no chance of succeeding' on the report that the appellant had referred to. Later the following exchange occurred:

...to be quite frank with you and without taking sides at all I don't think you've got a chance on the material that's here and particularly on that one medical report that probably doesn't even comply with the rules but even assuming it does it's not relevant to the psychiatric issue, it's only relevant to the state of your urinary health. Do you follow that?

[The appellant]: Yes, your Honour.

His Honour: it seems to me that if you want to run your case, again, I'm just trying to help, but you don't have to accept what I'm saying to you, but if you want to run your case or even have a chance of running your case you're going to have to get expert medical evidence, independent expert medical evidence, from another medical practitioner. For example, another psychiatrist who will say, well, it shouldn't have been done this way, it should have been done another way, and sometimes that's just a matter of opinion in any event but if you could get a forceful body of evidence, you know, two or three psychiatrists who said, look, this shouldn't have

happened this way, then that would assist your case but at the present time you've just got no evidence it seems to me to assist your case. Because you can't give expert evidence. You can tell me what it's all about and you can give evidence from the witness box as to what happened and the events that transpired. But you should realise if you do, you're going to be cross-examined.

[The appellant]: Yes, Your Honour.

His Honour: You just haven't got any evidence at all before me and as I said - and you could speak to any lawyer in this area. These cases are won or lost, on expert evidence and the quality of the expert evidence.

14 The appellant referred the Court to other parts of the transcript that were also said to indicate that the learned trial judge had effectively pre-judged the case. They were in the same vein as the passages to which we have referred. The appellant submitted that the overall effect of these comments was to give the impression that his Honour had 'closed his mind' to the merits of the appellant's case.

15 It was apparent to his Honour that for the appellant to succeed in his claim, he would need to rely on expert evidence as to the correctness of the diagnosis and treatment made in relation to the involuntary treatment order. Properly understood, the comments of the learned trial judge were solely directed towards underlining the importance of gaining that evidence. In attempting to make this clear to the appellant, the trial judge, far from erring, was properly fulfilling his obligation to assist the appellant as a self-represented litigant who might not have perceived the importance of that evidence. Further, in doing so, his Honour was at pains to emphasise that he was not pre-judging the appellant's case. For example, his Honour explained:

I think your chances of succeeding in this case - I don't pre-judge any case because I know virtually nothing about it at this stage, apart from what I've read in your statement of claim, amended statement of claim apart from what I've read in the defence, so I know virtually nothing about it - but it seems to me that you are going to be very, very, very severely disadvantaged unless you have some expert evidence. Do you follow what I am getting at?

I just remind you finally again of the caution that I gave to you before, these cases essentially are won on expert medical evidence and if you don't have any expert medical evidence the chances are your case will not be successful. I am not pre-judging it because I know nothing about it, I am just telling you what happens in cases of this very nature and what has been my experience over now many, many years.

17 In Ebner v Official Trustee in Bankruptcy,[1] a case involving alleged pecuniary bias, the High Court said that a judge might be disqualified where 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.[2] But no reasonable suspicion that his Honour was not able to act impartially could here arise. A fair minded observer would have perceived that the judge, far from demonstrating a bias against the claim of the appellant, was faithfully endeavouring to assist the appellant by bringing to his attention a fundamental difficulty he faced in the presentation of his case. No apprehension of bias could have arisen if his Honour had drawn to the attention of the litigant that his proposed proofs omitted evidence indispensable to an element of the cause of action.

18 There is a fundamental distinction between prejudgment of an issue and advice given by a trial judge to a litigant in person that they should adjourn the trial to enable evidence to be obtained which is critical to their case. The case of Antoun v The Queen,[3] upon which the appellant placed particular reliance, is readily distinguishable. The trial judge did not here state that he had decided anything or that he would reject any argument that the appellant might later advance.[4] The fact that a judge has expressed a strong view at the outset of a hearing will not prevent characterisation of that view as provisional.[5] His Honour's actions in this regard, were, if we may say so, exemplary, and consistent with the obligation to provide some assistance to the appellant who may not have understood the nature of the case he was trying to establish.

Ground 3: Failure to ensure a fair trial or afford procedural fairness

20 Under cover of this ground, the appellant formulated the following four matters that were said to constitute procedural unfairness and which brought about an unfair trial:

(1) the trial judge failed to adjourn the case of his own motion;

(2) the trial judge failed to allow the appellant an adequate opportunity to make an opening address;

(3) the trial judge failed to give due assistance to the appellant and denied him the opportunity to give relevant evidence; and

(4) the trial judge cross-examined the appellant and introduced inadmissible evidence.

21 Prior to opening his case, the trial judge strongly encouraged the appellant to have the case adjourned and take the opportunity to obtain medical evidence. The importance which the trial judge attached to the absence of such evidence is set out above under Ground 2. His Honour told the appellant that he was prepared to adjourn the case for a period of time to enable the appellant to see if he could obtain some appropriate medical evidence. As the trial judge recorded in his reasons, the appellant declined that invitation and elected to proceed.

22 It is clear that his Honour attempted to encourage the appellant to take the benefit of an adjournment and to seek relevant medical evidence. The appellant refused to do so. Accepting this, the appellant's arguments collapsed into the assertion that the judge should have adjourned the court on his own motion, over the objection of the appellant, so that the appellant could consider his position and obtain medical evidence.[6]

23 The appellant's argument rested upon the following propositions. The trial judge had recognized that the central issue was whether Melbourne Health had misdiagnosed the appellant, that expert evidence was necessary on that issue and that the appellant did not have such evidence. It was obvious to the trial judge that the appellant, who was self-represented, had not had the benefit of legal advice. He had not filed any admissible reports going to a central fact in issue in the proceeding. He did not appreciate the nature of the evidence needed, or how to adduce such evidence. Therefore the trial judge should have adjourned the trial on his own motion.

24 In support of this extraordinary course, the appellant referred the Court to the decisions in Sullivan v Department of Transport[7] and Director of Public Prosecutions v Ozacka,[8] both of which involved an error by a judge in failing to grant a necessary adjournment. These cases are readily distinguishable. In Ozacka the Director actively sought an adjournment which was refused. In Sullivan no formal application for an adjournment was made. In neither did the relevant party actually refuse the prospect of an adjournment.

25 The appellant referred to passages from the decision in Tomasevic v Travaglini[9] where Bell J observed:

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 circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant.[10]

26 These propositions are not controversial. It is well understood that a trial judge has certain obligations to assist a self-represented litigant, but those obligations are to be balanced against the requirement that the judge preserve his or her neutrality between the parties. The appellant's view that the judge ought to have adjourned the case on his own motion is inconsistent with that neutrality and the nature of the adversarial system. The appellant's submission that the trial judge in effect step into the shoes of the litigant and do that which the litigant, after receiving the clearest advice, was unwilling to do, would cross the line between the permissible assistance that might be offered and the need to maintain impartiality and respect the position adopted by the litigants. Within our adversarial system of justice it cannot be said that the judge could (and indeed should), on his own motion have taken steps, against the wishes of the appellant, to adjourn the proceedings to enable the appellant to obtain medical evidence.

27 Under grounds 1 and 3(c) the appellant alleged that the trial judge erred by not allowing the appellant to make an opening statement. Rule 49.01(4) of the County Court Civil Procedure Rules 2008 provides:

The party who begins may make an address opening the party's case and may then adduce that party's evidence.

28 The object and purpose of an opening statement has been described in the following terms:

The object of an opening is to give to the jury a general notion of what will be given in evidence. Counsel in opening states the facts of the case, the substance of the evidence he has to adduce, and its effect in proving his case, and remarks upon any point of law involved in the case.[11]

29 The submissions of the appellant under these grounds are premised upon the assertion that the trial judge refused to allow the appellant to open his case. If this is made out, an injustice is said to have been caused because the appellant was denied the opportunity to exercise his right, under the relevant rule, to set out in general the nature of his case. Such an error, it is alleged, either on its own or in combination with the subsequent conduct of the trial judge, constituted procedural unfairness.

30 Procedural fairness must be upheld for its own sake, as well as for its consequences, because 'the experience of the common law [is] that, out of fair and lawful procedures, fair and lawful outcomes will more commonly emerge'.[12] The concern must be with the fairness of the procedure adopted, rather than the fairness of the outcome; with the decision-making process not the decision.[13] Compliance with the judicial obligation to afford a party a reasonable opportunity to present or meet a case is thus vital to both the reality and the appearance of justice.[14]

31 Upon proper examination of the trial transcript it is clear that the learned trial judge did not improperly prevent the appellant from opening his case. At the commencement of the hearing the learned trial judge ascertained and confirmed the nature of the appellant's claim. The nature of the trial, including the right to make an opening statement, was then explained to the appellant. He invited the appellant to open his case. It is tolerably clear that before inviting the appellant into the witness box, his Honour was concerned to ensure that the appellant did not misunderstand the purpose of his opening statement, and confuse his opening comments to the court with the giving of oral evidence.

32 While much emphasis can be placed upon the right of a party to open their case, the circumstance of a self-represented litigant who is to rely almost entirely upon their own evidence brings into play a number of difficult considerations for a trial judge. The right of that litigant to introduce the nature of their case, including the substance of the evidence that they intend to adduce, can so easily become blurred with giving that evidence from the Bar table. The trial judge is not required to remain an impassive listener, regardless of the length and content of an opening. When the trial judge discerns that the purpose of the opening is being abused, is misunderstood or is unhelpful to the party or the judge, he or she is required to intervene. We are satisfied that the appellant was afforded an appropriate opportunity to open his case and that the trial judge extended to him every reasonable latitude in the manner in which the appellant was allowed to do so. His Honour was right to invite the appellant to commence giving his evidence-in-chief.

Failure to assist the appellant by denying the appellant the opportunity to give evidence

33 Next it was submitted that the learned trial judge erred by wrongfully 'cross- examining' the appellant. This was said to engender unfairness as it prevented the appellant from fully setting out his case. We do not agree. The judge's questioning was clearly designed to assist the appellant in eliciting the evidence that was necessary to set out his case. It amounted to no more than questions that his own counsel would have asked were he being examined in-chief. For example, the questioning by the judge in relation to the appellant's admission to the Royal Melbourne Hospital was plainly designed to allow the appellant to tell his story about the events leading up to and surrounding the making of the involuntary treatment order. Further, at the conclusion of the appellant's evidence-in-chief, the learned trial judge gave the appellant the opportunity to identify anything further which he wished to say about his claim that had not already been covered in the course of his evidence. The appellant responded that everything had been covered.

34 It was also suggested during the course of argument that the trial judge's intervention was excessive and reflected bias or alternatively denied the appellant a fair opportunity to present his case.[15] There is no substance in those contentions. The trial judge went to considerable lengths in assisting the appellant in giving his evidence. His Honour did nothing more than would be expected of a trial judge, anxious to ensure that an unrepresented party's account be properly exposed before the court. Subject to the final matter raised below, the submission that the role played by the judge was unfair, inappropriate or excessive is without any merit.

Introduction of inadmissible material during examination of the appellant

35 The final complaint concerns the manner in which his Honour examined the appellant and used the Royal Melbourne Hospital medical file of the appellant which had been produced pursuant to subpoena. The file had not been and was not tendered as an exhibit in the proceedings. The trial judge asked the appellant various questions, covering some ten pages of transcript, concerning its content, including the record of the assessment made by the admitting doctor before the appellant was detained. The trial judge invited him to comment on numerous matters that had been recorded in the file including observations of the appellant and conversations between the appellant and various persons. It was not in issue that the trial judge did not know at the time that these questions were asked whether it would become evidence in the case. Later, the appellant, when asked whether he wished to tender the hospital file, said that he did not wish to do so.

36 The appellant submitted that as a consequence of these questions, evidence was introduced into the case that was not part of the evidence which the appellant wished to adduce. It amounted to cross-examination, and undermined the case he wished to present. Senior counsel for the respondent properly conceded that as the content of the hospital file was not yet in evidence, its contents should not have been explored with the appellant and his evidence concerning its content was wrongly admitted. He fairly acknowledged that much of the questioning was properly characterised as cross-examination. For that reason alone the procedure followed was unfair. However, counsel for the respondent submitted that the trial judge had only used the records in the way in which counsel for the appellant would have used them had the appellant been represented. It was said that the appellant would have been asked to comment on the records of the doctor who had made the assessment. That submission cannot be sustained. Firstly, the trial judge's questions were not confined to the admitting doctor's recorded account. Secondly, it is unlikely, in our view, that a plaintiff would be asked by his counsel in-chief to comment upon matters that might possibly be the subject of evidence later by defence witnesses. It is much more likely that his counsel would wait to see what matters were put to the plaintiff in cross-examination. Had the trial judge followed that course, then depending on what was put in cross-examination, the appellant may have been asked, in re-examination by the trial judge, to comment upon some of the matters that had been raised.

37 For these reasons, the admission of this evidence rendered this aspect of the proceedings unfair and resulted in the introduction of inadmissible evidence. The procedural unfairness bore upon issues which were in controversy and which were ultimately decided adversely to the appellant. That is all that needs to be shown to satisfy the test in Stead v State Government Insurance Commission.[16] The possibility cannot be excluded that this evidence, which bore directly upon the central issue, resulted in the trial judge forming an adverse view of the appellant which thereby affected the outcome.[17] The respondent did not attempt to advance any argument to the contrary. The judgment in favour of the respondent must be set aside and a new trial ordered.

38 We would be remiss if we did not say that the Court was greatly assisted by the comprehensive and careful submissions advanced by counsel for the appellant. They appeared through the Victorian Bar Pro Bono Scheme. As this case well illustrates, the voluntary service offered by Victorian barristers via the Scheme provides an invaluable source of support to unrepresented litigants. In this case that support proved critical to the outcome of the appeal.

39 The appeal must be allowed and the matter remitted to the County Court to be reheard by a different judge.

[2] Ibid 344-5 (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[4] Ibid 57 (Gleeson CJ), 59 (Kirby J), 65 (Hayne J).

[5] British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2, [44] (French CJ).

[6] Sullivan v Department of Transport [1978] 20 ALR 323, 343; DPP v Ozakca [2006] NSWSC 1425; (2006) 68 NSWLR 325, 328.

[7] [1978] 20 ALR 323 ('Sullivan'), 343.

[11] Halsbury's Laws of England, 3rd ed, vol 3 at 69, cited in Valeriani v Gibson [1963] NSWR 1430, 1435 and Williams Civil Procedure Victoria at 149.01.130.

[12] NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1.
[13] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 34 (McHugh and Gummow JJ).

[14] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 512.

[15] Aardvark Security Services Pty Ltd v Ruszkowski (1993) 13 NSWCCR 1; The Council of the Municipality of Burwood v Harvey (1995) 86 LGERA 389.

[17] Ucar v Nylex Industrial Products Pty Ltd ([2007] VSCA 181; 2007) 17 VR 492.

Court Civil Procedure Rules 2008

McWhinney v Melbourne Health [2011] VSCA 22

At a glance

Court

Decision date

Before

Source

Judgment (68 paragraphs)

McWhinney v Melbourne Health [2011] VSCA 22 (11 February 2011)

Parties

Legislation Cited (2)

Cases Cited (10)