NAGY v RYAN No. SCCIV-02-992 [2003] SASC 37

OFFICE OF THE PRIVACY COMMISSIONER L Blamey, Legal Officer ORDERS: 1. Appeal dismissed except as provided in para 2 of these orders; 2. Decision refusing application for an order for financial compensation for contravention of section 18(1) set aside; 3. That the application be remitted to the Tribunal for further consideration; 4. The following directions are given:; (a) Appellant/applicant to file and serve within 42 days any medical or other evidence dealing specifically with the possible impact of the contravention on his present psychological state, including an estimate of the extent to which any psychological harm that he is presently experiencing can be said to be directly attributable to the disclosure; (b) Respondent, upon receipt of any such material, to be permitted to require the applicant to attend a practitioner of its choosing for the same assessment, and for any evidence arising to be filed and served within a further 42 days; (c) Matter then to be listed for further directions before the Tribunal; (d) Either party to have liberty at any time to apply to the Tribunal on 3 days' notice for further direction or final orders.

REASONS FOR DECISION 1 This is an appeal under the Privacy and Personal Information Protection Act 1998 (the Privacy Act) by GR against the Tribunal's decision in GR v Department of Housing [2003] NSWADT 268. GR is a public housing tenant in housing managed by the Department. 2 GR put in issue three items of conduct by the Department relating to the handling of personal information about him: alleged unlawful disclosure by a Departmental officer, alleged unlawful disclosure by a Departmental contractor, alleged unlawful retention of personal information. The Tribunal found that the Department had breached the Privacy Act in respect of the first matter, but found the case not sustained in relation to the other matters. In relation to the conduct the subject of an adverse finding, the Tribunal refused GR's application for monetary compensation made pursuant to s 55 of the Privacy Act. The Tribunal determined that 'no further action' was required by the Department. 3 GR appeals against the refusal to award monetary compensation. He also appeals against the Tribunal's findings in respect of the other two items of conduct. The Department is the respondent to the appeal. It has not appealed against the finding of liability. 4 GR has appeared in person throughout, without legal representation. Appeals to the Appeal Panel are governed by s 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) which relevantly provides: '(2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.' 5 GR is not familiar with the distinction between questions of law and questions of fact. His submissions at the appeal hearing ranged over both areas. We are not satisfied that his submissions raised any possible errors of law in relation to the Tribunal's reasons for finding that the second and third items of conduct complained of did not contravene the Privacy Act. In our view, he simply disagreed with the Tribunal's findings on the evidence. Nonetheless we will briefly deal with his submissions on these matters later in these reasons. The Unlawful Disclosure 6 GR had called a well known radio talkback program and spoken to the producer (Ms Fowler). He complained over a dispute he had with the Department over the removal of a screen door in December 2001 from his home unit. The producer spoke in turn to the media liaison officer of the Department (Mr Maher). He obtained information about GR from another Departmental officer. He (Mr Maher) described GR as a 'troublemaker' and referred to the screen door dispute (GR was at the time pursing a case in the Supreme Court over that) and an earlier incident in 1999 relating to signs in the front garden of the house that he had then occupied. In light of that reply the producer decided not to put GR's complaint to air. The Tribunal found: '10 Mr Maher then telephoned Ms Fowler and told her that the screen door matter was before the Supreme Court and that the Department knew the applicant very well. He explained to her the history of the screen door incident and, in response to Ms Fowler's question "why is he so obsessed with the screen door?" He said: 'He is a known troublemaker and it goes back to previous tenancies. Before he was in [his current suburb] he lived in [a previous city]. I am told he displayed publicly visible signs that contained rude and offensive words. Complaints were lodged by neighbours to council and council asked the Department of Housing as landlord to have the signs removed. This is why he feels the Department of Housing is harassing him.' 11 Ms Fowler stated that as the matter was still before the Court, she would leave it at that. 12 Mr Maher explained in his affidavit that he said what he did to Ms Fowler because he considered that as the signs were public in nature, the applicant could have no real objection to the descriptive nature of his statement.' 7 GR learnt of the contact between the media liaison officer and the radio producer when she called him back, explained that she had spoken to the Department, and that she would not be running the story. GR said that this incident had contributed to his present level of stress. 8 The Tribunal found that the Department had contravened Information Protection Principle (IPP), s 18 (Limits on Disclosure of Personal Information). In the case of this Department, the disclosure of personal information about a tenant is prohibited save for cases where the tenant has given express consent (see s 26(2)) or one of the other humanitarian or public interest exceptions contained in the Privacy Act is applicable (see for example, the exceptions found in ss 18 and 26(1)). In this instance the Tribunal found that none of the exceptions applied. 9 The Tribunal decided to take 'no further action', a course permitted by the Privacy Act. 10 As relevant to this case, s 55 provides: '(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders: (a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct, … (4) The Tribunal may make an order under subsection (2) (a) only if: (a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and (b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.' 11 GR applied for $20,000 compensation for psychological harm. The Tribunal dealt with this matter at para [45]: '45 In the present case, there is no suggestion of relevant financial loss or physical harm. The evidence of the applicant was that, as a disabled person, he was left in a very confused state and he was anxious (exhibit F). He tendered a medical report from a general practitioner dated 7 May 2003 (contained in exhibit E) which was objected to by the respondent. That medical report states that the general practitioner has treated the applicant for over three years and that he has suffered during that time from severe anxiety, depression and insomnia. It also stated that he is being treated for tension headaches and pain clinic and this is also affecting his interpersonal relationships. It is said his stress has been aggravated greatly "by his dealings with the Housing Department". 46 This evidence from the general practitioner is not sufficient to establish that the applicant is suffering from a physical or psychological condition "because of the conduct of the public sector agency" complained of in relation to the first allegation which has been proved. In order to persuade the Tribunal to the level of satisfaction required by section 55(4)(b) of the Privacy Act, particular evidence is required that the conduct of the agency that is complained of in the proceedings (and not the conduct of the agency more generally) has caused the harm identified in the section. I do not find that the disclosure to Radio 2UE has caused to any relevant [degree?] compensable loss or harm to the applicant. [sic]' Procedural Fairness and the Self-Represented Applicant 12 GR's position at the appeal hearing was that, had he known, he would have placed better evidence before the Tribunal on the question of psychological harm. GR's basic complaint is that he should have been given an opportunity to put on such evidence. GR had put forward a medical opinion - from his regular general practitioner - that he was suffering from stress, a condition that may amount to psychological harm. In principle it would seem possible that some part of that stress is attributable to anxiety over the unlawful disclosure. 13 GR asserts that he had no inkling that his medical evidence was not addressed to the issue that the Tribunal was required to consider (causation). Had he known it was insufficient, he would have put on better evidence. He said that he only found out that there was a problem with the evidence via the reasons for decision. 14 (He referred at hearing to a conversation he said he had with a Registry officer who told him to get a 'medical report'. There is no evidence before us on this matter, other than GR's assertion. We make no finding as to whether the conversation as described by GR took place.) 15 GR's objection raises the question of the extent of the Tribunal's duty to self-represented parties. 16 In New South Wales the leading statements as to the duty as it stands at common law are found in Rajski v Scitec Corporation Pty Ltd (unreported, NSWCA, 16 June 1986). Samuels JA said at 14: 'In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.' 17 Mahoney JA said at 27: 'Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.' 18 There are more extensive statements of the duty to be found in other sources, such as the Guidelines issued by the Family Court, see now Re F: Litigants in Person Guidelines [2001] FamCA 348 (4 June 2001) at [6]-[8]. See also Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, Secretary, Department of Health and Human Services v JWB and SMB (1992) 175 CLR 218; Nagy v Ryan [2003] SASC 37; Platcher v Joseph [2004] FCAFC 68; Guidelines for Barristers on Dealing with Self-Represented Litigants (NSW Bar Association, October 2001); Nicholson R 'Australian experience with self-represented litigants' (2003) 77 ALJ 820. The degree of intervention by the court or tribunal must not be so great as to put their impartiality at risk, but the boundaries of intervention are flexible. See further Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P; Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6. 19 Section 73 of the Tribunal Act refers to the procedural obligations of the Tribunal: ' 73 Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. (5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate, and (h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance. (6) A judicial member may: (a) hold a directions hearing in relation to any proceedings before the Tribunal, or (b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal.' 20 The provision of particular relevance to this appeal is s 73(4). The questions raised are whether the Tribunal took such measures as were reasonably practicable: (i) to ensure that GR understood the nature of the assertions made in the proceedings and the legal implications of those assertions (see s 73(4)(a)), and (ii) to ensure that GR had the fullest opportunity practicable to be heard or otherwise have his submissions considered in the proceedings (see s 73(4)(b)). 21 The requirements bearing on the Tribunal are, arguably, stricter than those applying at common law. 22 This case is typical of cases that arise in the 'review' jurisdictions of the Tribunal. It involves a self-represented applicant applying for review - in this instance, of the conduct as distinct from a decision - of a government agency. The government agency is invariably represented, as it was in this case by counsel. GR's position essentially is that he did not understand that the general opinion given by his medical practitioner did not address the question of the precise causal connection between the disclosure in issue and an element, at least, of his present condition, and the further question of whether that condition in any event constituted 'psychological harm'. Causation is not an easy concept to grasp. 23 We have reviewed the transcript of the proceedings. In our view, there is considerable doubt that GR ever understood that to establish a claim for compensation it was necessary to show a causal link between the contravention as found and the alleged psychological harm. 24 There was a short hearing on 29 April 2003. This ended with directions being made to both parties in relation to the filing of additional material. The main hearing occurred on a second day, 16 July 2003. Passages in the transcript relevant to the present question are at pp 38-46, 108-112, 131 and 136. 25 The transcript records at p 38 that GR tendered the medical certificate from his general practitioner. She stated that she had treated GR for the previous 3 years, that he has suffered from severe depression and insomnia, and that he is under treatment by a pain clinic for tension headaches. She considered that this stress had been contributed to by his dealings with the Department of Housing. 26 The presiding Member raised his doubts as to the usefulness of this certificate at pp 39.47 and 40.23. He noted that this information referred generally to GR's dealings with the Department of Housing. (GR had been involved in a number of disputes with the Department, and at the time had, as previously noted, a Supreme Court case on foot over the removal of the screen door.) The presiding Member again referred to his doubts about the usefulness of the certificate at p 41.40. He asked GR at p 42 why the certificate was relevant. GR said that it was because he wanted compensation. At p 43.12 the presiding Member said that in order to get compensation the certificate 'has to relate to something specific'. 27 Dr Gaudin from the Office of the NSW Privacy Commissioner then drew attention to the precise terms of s 55(4)(b) of the Privacy Act. It is clear from what follows that the presiding Member then focussed on the issues to which he returned in his decision (causation, psychological harm). 28 Mr Karp, counsel for the Department, objected to the admission into evidence of the medical certificate. There was a discussion with Mr Karp as to what might constitute psychological injury. The certificate was admitted with the presiding Member saying at p 44.48, 'I'm minded to admit it, but the weight that I can accord it would be either miniscule or very, very slight.' 29 The subject next arises at p 108 in the course of evidence being given by GR. The presiding Member asked him to describe the stress that he felt he was under. He mentioned matters of a mental and physical kind. He referred to his difficulties sleeping, and the feelings he has when dealing with the Department. At p 111:32 the presiding Member said to GR after mentioning the Privacy Act, 'Well, it has got to be stress and anxiety that is caused by the conduct.' 30 GR said in reply: 'I am not a psychiatrist, …. I don't know what types of anxiety and what's the name of them are.' The presiding Member then said, 'You tell me whatever you need to tell me.' The Member then referred to the way time would be used for the remainder of the day. GR appears from the transcript to have become distressed at this stage, and says in reply to the Member's invitation, 'I can't continue. I can't explain myself.' (p 112.9). He was encouraged to continue and did so. He referred to incidents in the previous few days involving the Department that had put him under stress. 31 The next references to these issues are at pp 131 and 136. At p131 Mr Karp questions whether 'psychological harm' has been shown as there is 'no evidence as to clinical level of stress', and submits that if GR is entitled to any compensation it should be minimal, say $500. GR would appear to be responding to those comments, in his reply at p 136.10, when he submits that Mr Karp is not qualified in psychology or psychiatry and is not qualified to give such an opinion. He then refers again to the fact that the doctor has said he suffers stress. He also referred to the $500 suggestion and described it as 'laughable'. 32 The Tribunal did indicate its reservations as to whether causation was able to be shown. However, at no point were the terms of s 55(4) set out for GR, nor was it explained that the provision itself required a direct causal connection to be shown. We doubt whether GR would have understood the Tribunal's indication that it would give the certificate little weight as, in effect, indicating that his case for compensation was doomed to failure. 33 This is the first case to arise in the Tribunal under the Privacy Act considering the interpretation and application of s 55(4)(b). Especially in these circumstances, in our view, the Tribunal should have been clearer in explaining to GR the inadequacy of the certificate. In our view this is a case where due to lack of legal skill, the applicant, GR, failed to claim rights or to put forward arguments which otherwise he might have done - to use the words of Mahoney JA in Rajski v Scitec. In any event in our view s 73(4) of the Tribunal Act imposes a more exacting duty than that found at common law. 34 In regard to the issue of how far this Tribunal should go in giving assistance to a self-represented party, a distinction should be drawn between truly adversarial proceedings such as those in Rajski v Scitec and those, like the present, that are in the nature of review proceedings directed to the quality of public administration. 35 We note that there is an issue as to whether proceedings under the Privacy Act are for the purposes of the Tribunal Act properly characterised as belonging to the 'review of reviewable decisions' jurisdiction or the 'original' jurisdiction. We will not deal at length with that issue here. It has been discussed in detail in Fitzpatrick -v- Chief Executive Officer, Ambulance Service of NSW [2003] NSWADT 132 and by Sharp N, 'The chameleon tribunal: The Administrative Decisions Tribunal of New South Wales' (2003) AJ Admin L 181 at 188. Normally the 'review' jurisdiction of the Tribunal is directed to review of a 'decision'. In Privacy Act cases the Tribunal undertakes a second review of the conduct in issue, the first review being that conducted as an internal review by the agency. The difference is that the Tribunal is not engaged in review of the internal review outcome. But as is the case when decisions are being reviewed, the Tribunal is a second-stage reviewer of the original matter, here conduct rather than a decision. Whatever the proper characterisation of the Tribunal's role for the purposes of the Tribunal Act, qualitatively the function is one of review and the following observations of the Australian Law Reform Commission (ALRC) are apposite, though directed to merits review of administrative decisions. 36 The ALRC in its Report No 89, Managing Justice: A Review of the Federal Civil Justice System (AGPS, 1999) said (footnotes omitted): '9.10 Review tribunals are directed to make the correct or preferable decision after considering the whole of the evidence, and to ensure that their decisions are in accordance with relevant legislation. Neither the applicant nor the respondent agency carries a burden of proof to prove or disprove a fact. 9.11 In review tribunal proceedings there is no necessary conflict between the interests of the applicant and of the government agency. Tribunals and other administrative decision making processes are not intended to identify the winner from two competing parties. The public interest `wins' just as much as the successful applicant because correct or preferable decision making contributes, through its normative effect, to correct and fair administration and to the jurisprudence and policy in the particular area. The values underpinning administrative review are said to encompass the desire for a review system which promotes lawfulness, fairness, openness, participation and rationality. The provision of administrative review can be seen to fit neatly into a model of pluralist and participatory democracy. … 9.35 … Where the applicant is unrepresented the tribunal generally will have to adopt a more interventionist approach and apprise itself about the facts and the law. Some of the tasks may be undertaken by the respondent agency, if the agency is a party and participates in the proceedings.' 37 In Privacy Act cases both the agency, and the Tribunal pursuant to s 73, must ensure insofar as it is reasonably possible that all relevant material is placed before it in relation to the conduct in issue. The agency in its internal review report will, hopefully, have provided full particulars of the conduct in issue. If there is contention, then the Tribunal must 'ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings' (s 73(5)(b)). This would normally be achieved by the agency producing all relevant evidence. Then the questions that fall to be addressed are the lawfulness or otherwise of the conduct, and, if unlawful, the appropriate remedy. As to remedies, most of the remedies provided by the Privacy Act seek to deal with the errant conduct by way of administrative measures (and might generically be described as 'conduct orders'). Paragraphs (b) to (f) of s 55(2) of the Privacy Act allow for: order to refrain from unlawful conduct, order to perform a Privacy Act requirement, order to correct information that has been disclosed, order requiring specified steps to be taken (a typical step would be order to render a written apology or to include notations or deletions on affected files), and order not to disclose information contained in a public register. In all these instances the successful applicant might raise possibilities but it is really for the Tribunal having regard to submissions from the agency to decide what an appropriate 'conduct' order might be. 38 The position is different in relation to the first type of order listed - an order for monetary compensation (para (a)) - a 'damages' or 'money' order. In this instance it is for the applicant to put material before the Tribunal in support of such an order. The agency must have the opportunity to test that material. As applied to this case, s 73(4) required the Tribunal to tell GR in clear terms that the material supplied lacked the degree of detail sufficient to raise for consideration a claim for compensation under s 55. Ideally GR should, once concerns of this kind were present in the mind of the Tribunal, have been placed on notice and given an opportunity to repair the perceived omission. He is not in the same position as a legally represented person; and can not be expected to see the points of detail as they apply to applications for monetary compensation, applications which will ordinarily be strongly resisted by agencies. 39 On balance, we are not satisfied that the Tribunal gave GR a sufficient opportunity to present the case on compensation. In a situation where the issues of liability and remedy were being heard together, GR should have been given the opportunity of an adjournment to decide whether to put on material that specifically addressed the question of whether the conduct in issue (separately or as a whole) could be said to have caused his present levels of stress, at least to some degree, and directly addressed the question of whether the degree of stress so identified amounted to psychological harm. (This is a matter that might have been dealt with at the planning meeting stage, but there is nothing to indicate in the material on file that this occurred.) 40 One of the difficulties in this case was that the Tribunal had not reached the point of ruling on whether any contraventions had occurred when the issue of the appropriate remedy was being canvassed. While it is common in legal proceedings for both issues to be dealt with in the same hearing, problems can arise. As it transpired, it would have been a waste of time for GR to have obtained a specialist report on any linkage between any psychological harm that he was suffering and the two matters of conduct found not to constitute contraventions. 41 In Privacy Act cases where multiple allegations are made, and compensation in particular is being sought, it may be more practical to divide the proceedings into two stages. The applicant would then only be called on to provide evidence that meets the requirements of s 55(4) of the Privacy Act if there is a finding of contravention. This is probably also a better approach from the viewpoint of the professional called on to advise. There will be clarity as to precisely what conduct has been the subject of an adverse finding, and that would enable the expert to assess the connection, if any, that conduct has to any psychological harm found to be present in the applicant. 42 Clearly a significant onus lies on the applicant at this point to satisfy the Tribunal that the causal connection required by s 55(4)(b) is made out. Equally the agency should have an opportunity to test any expert evidence that the applicant seeks to rely on, including by having the applicant examined by its expert. 43 As there is a finding of error of law, the question arises of whether to grant the appellant's application for leave to extend to the merits. It would be better in our view if the one issue which we have identified as requiring further consideration was remitted to the Tribunal for disposal. 44 Accordingly we remit this aspect of the case to the Tribunal for further consideration in accordance with the directions set out below. The first direction falls on GR. If he does not comply then the Department is able to move to have the application dismissed. Alleged Disclosure by Building Contractor 45 As indicated earlier, the appeal is not made out in respect of the Tribunal's rejection of GR's case in relation to the other two items of conduct. 46 The first of these is the alleged disclosure of information about GR by a contractor engaged by the Department. GR relied on the evidence of a fellow tenant, Mrs French, in that regard. The contractor, Mr Fahd, gave evidence. It was open to the Tribunal not to accept Mrs French's account of what transpired. It was open to it to prefer Mr Fahd's. We will not reiterate the evidence here. It is set out adequately in the Tribunal's reasons. We note that Mr Fahd specifically denied that he had called GR a troublemaker, acknowledging only that he had referred in his conversations with GR to having had difficulties dealing with GR, and asking Mrs French if in future he could deal only with her over a job being done at Mrs French's place. (Mrs French was away, and had asked GR to keep an eye on it.) 47 GR disputed, in particular, a reason given by the Tribunal for preferring Mr Fahd's evidence. The Tribunal said at [26] of its reasons: 'His memory is better than hers.' It will be seen that this reason is given at the end of broad assessment of the quality of the evidence given by Mr Fahd and Ms French. There are other reasons also given in that passage (see [25] of the reasons): Ms French agreed in cross examination that her memory was not very good; she noted that Mr Fahd had usually had polite conversations with her; she did not give firsthand evidence to the effect that Mr Fahd said GR was a known troublemaker; and the Tribunal's view was that she had formed an 'impression' of the conversation to that effect. In para [24] the Tribunal referred in detail to Mr Fahd's evidence, and the Tribunal expressed itself as impressed by him as a witness and as accepting his evidence. 48 We have also reviewed the relevant transcript of evidence of the hearing. There is no question of law raised. It was open to the Tribunal to prefer the evidence of Mr Fahd. This is not one of those instances where the fact-finding process may be said to have miscarried by, for example, making a finding where there was no available relevant evidence, where critical evidence had been overlooked or where the finding was irrational having regard to the evidence available. See further generally Woodside & anor v Director General, Department of Community Services (CSD) [2000] NSWADTAP 8 at [39] and ff. Retention in File of History of Tenancies and Certain Photographs 49 The second of the items of conduct found not to constitute a contravention related to the retention by the Department in its tenancy history file of general information about GR, and in particular the photographs previously mentioned. GR contended that the IPP relating to Security and Retention (IPP s 12) had been contravened. The clause of the IPP applicable to this case is s 12(a) which provides: 'A public sector agency that holds personal information must ensure: (a) that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used.' 50 The first question is for what purposes can the information lawfully be used. This is a question of law. The second question is whether the information is 'no longer …necessary' to be kept for that purpose. Though we have not had detailed argument placed before us on this issue, in our view this is a question of fact. 51 GR's main concern relates to the continued presence of certain photographs on his file. The photographs show numerous placards on stick-poles set in the front lawn near the front boundary of the house he occupied in 1999. The placards contain statements of protest against the candidate for Mayor in local elections. GR's claim is that the photographs are irrelevant to his tenancy and an intrusion on the exercise by him of his right to freedom of speech. He considers that it is not proper for the Department to have taken and retained on his file photographs of this kind. He sought an order that they be removed from his file. 52 The agency defended its conduct on two bases: the first being that s 12(a) of the Privacy Act was not applicable, as the State Records Act 1998 (State Records Act) overrode the Privacy Act in relation to issues of file-keeping; alternatively, if s 12(a) was applicable, that the agency needed to keep a full tenancy record including material relating to conduct that had caused disturbance in the past (there had been complaints over the posters at the time). 53 The Tribunal ultimately determined the point by reference to s 12(a). It said: '42 I consider that the respondent is perfectly entitled to retain on file the information it has adduced to the Tribunal in the photographs. The photographs depict the state of one of the rental properties of the respondent at a time in mid-1999, taken from across the road and showing signs publicly displayed by the applicant. Those images are relevant for the respondent to take into account from time to time in undertaking its various tenancy obligations in accordance with the evidence from Mr Calcopietro, which I accept. It is not alleged they are inaccurate or misleading and the respondent has demonstrated their potential use on the file. I cannot comment about what else the respondent or may not have on its file. It is not in evidence before me.' 54 This is an assessment on a question of fact. No error of law is revealed. In our view it is clear that the conduct depicted - placing numerous signs at the front of the property - may be relevant to issues of amenity and possible complaints from neighbours. GR himself conceded to the Appeal Panel at hearing that the Department could rightly concern itself with activities such as having piles of rubble in the front yard or the display of clusters of commercial advertising signs. We do not accept GR's contention that because the contents of these signs were of a protest or political comment variety that amenity issues cannot arise. 55 GR also drew support for his case on appeal from s 19 (Special restrictions on the disclosure of personal information). That provision limits the power of agencies to disclose certain sensitive types of personal information, including 'personal information relating to an individual's … political opinions.' It does not restrain the holding of such information. No question of law is raised. To the extent that the words on the poster can be said to contain political opinions s 19 of the Privacy Act may be attracted. Special care may need to be taken by the Department in relation to any disclosure of that element of the photographs. 56 It is unnecessary in this appeal to deal at length with the other point raised by the Department - the interaction between the Privacy Act and the State Records Act. We note that there were detailed submissions on the point from the Privacy Commissioner, as well as from the Department. We should emphasise that the broader submissions of the Department seeking to justify its information collection and retention practices by reference to the State Records Act and to escape the application of the Privacy Act have not been endorsed by the Tribunal or this Appeal Panel. 57 The obligation in s 12 is addressed to the keeping of personal information by the public sector agency. It should not 'keep' information for longer than it may lawfully be used. It follows that it then should be disposed of, possibly in accordance with State Records Act disposal procedures. It may be that the records could then be archived with the State Records Act in a way that does not offend the principle contained in s 12. In our view every attempt should be made to read the provisions of the Privacy Act and the State Records Act harmoniously. Order 1. Decision refusing application for an order for financial compensation for contravention of section 18(1) set aside. 2. That the application be remitted to the Tribunal for further consideration. 3. The following directions are given: (a) Appellant/applicant to file and serve within 42 days any medical or other evidence dealing specifically with the possible impact of the contravention on his present psychological state, including an estimate of the extent to which any psychological harm that he is presently experiencing can be said to be directly attributable to the disclosure. (b) Respondent, upon receipt of any such material, to be permitted to require the applicant to attend a practitioner of its choosing for the same assessment, and for any evidence arising to be filed and served within a further 42 days. (c) Matter then to be listed for further directions before the Tribunal. (d) Either party to have liberty at any time to apply to the Tribunal on 3 days' notice for further direction or final orders. 4. Appeal dismissed as to other grounds of appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

4 Mr Ryan gave evidence before the Magistrate that he had discussed the issue of fees with Mr Nagy when first instructed. It was Mr Ryan's evidence that, conditional on him also having the conduct of Mr Nagy's personal injury matter, Mr Nagy would not be required to pay any fees to Mr Ryan until the resolution of the personal injury claim. Out of pocket expenses for both matters were to be paid by Mr Nagy. The amount of $12,000.00 was agreed between Mr Nagy and Mr Ryan for the professional fees for the trial.

5 Mr Ryan informed the Magistrate that Mr Nagy had instructed him to engage counsel for the appeal. Mr Ryan engaged an Adelaide law firm as his agent. The argument for leave to appeal was heard on 14 October 1999. Prior to that date a meeting took place at his Adelaide agent's office in which the matter of fees was again raised with Mr Nagy. Mr Nagy agreed to pay the anticipated fees of counsel into the agent's trust account. It was further agreed that out of pocket expenses would continue to be paid by Mr Nagy as the matter proceeded. A letter requesting payment was forwarded to Mr Nagy on 14 October 1999. The payment of monies into trust did not eventuate.

6 Mr Nagy's personal injury claim remained in the negotiation stage until January 2001. At that time Mr Ryan was contacted by another solicitor who informed him that he had received instructions to act for Mr Nagy. The solicitor requested that Mr Ryan's files relating to the personal injury claim be sent to him. At this point Mr Ryan explained the fee agreement that had been reached with Mr Nagy. Mr Ryan was prepared to forward the personal injury file on the condition that he retain a first charge over any monies received. The new solicitor did not agree.

7 On 29 January 2001 Mr Ryan wrote to the new solicitor enclosing a memorandum of his fees. A second account from Mr Nagy's Adelaide agent was sent to Mr Nagy through his new solicitor. Mr Nagy did not pay either account. Mr Nagy did not challenge either account before proceedings were issued. Mr Nagy did not seek any particularisation of the accounts.

8 Mr Nagy entered a defence in the following terms;

"I am denying the plaintiff's claim for the following reasons.

I recieved no notice of intention to sue.

I recieved no itemised bill of costs, I only recieved a bill through my solicitor for a total from Chris Ryan, then I recieved a summons for a different amount with a substantial difference in the costs.

He did not carry out my instructions. He was incompetent, throughout court proced. He was negligent in that he did not professionally prepare the case, and he was incompetent in court.

He does not deserve any fee."

9 It appears from the transcript of the proceedings before the Magistrate that the only matters of substantive dispute were the amounts charged in relation to a visit by Mr Ryan to Coober Pedy. The claim being the agreed fee $12,000.00 for the trial and the Adelaide agent fee for the appeal were not in dispute. Mr Nagy appeared to admit that he owed those monies. The only issue raised with respect to these amounts was that Mr Nagy was unable to pay the money immediately.

"Her Honour Do you agree that you got those accounts?

Defendant I agree the $18,000 [inclusive of the $12,000 and counsel fees] if I can pay by terms maybe I can pay it because I have no money...

Her Honour Do I understand you to say to me that you agree that you owe $18,000.

Defendant Mr Ryan drop it down $15,000 maybe I can find somewhere..."

10 In relation to the amount claimed by the Adelaide agent, Mr Nagy said;

"Her Honour Are there any questions you want to ask Mr Ryan about that bill.

Defendant No, I don't have to because Mr Lindblom send me the bill about six months ago, but I haven't got money. How can I pay. I promise I pay him.

Her Honour Do you agree that those amounts are payable, do you.

Defendant First I have to get some money for pay"

11 Mr Nagy did not give evidence before the Magistrate.

"The plaintiff's amended claim in this matter is for $21,232.50, being fees for legal services and disbursements, said to be owed by the defendant to the plaintiff, for legal work in relation to criminal charges he faced and for a subsequent criminal trial and for a personal injuries claim. The amount is made up of two amounts. One from Mr Ryan in the sum of $17,790.05 and one from Lindbloms Lawyers, who were acting as Adelaide agents for Mr Ryan, the total of that amount being $3,442.45.

The plaintiff called evidence from Mr Ryan and tendered exhibits P1 to P6. The defendant did not call any evidence. It is for the plaintiff to satisfy me, on the balance of probabilities, that the defendant owes the amount claimed. The defendant did not dispute many of the amounts claimed of the $17,790.05. The defendant did not dispute the following items:

$352.00 travelling expenses - Mount Gambier to Adelaide

As to the $12,000.00 for legal work done by Mr Ryan, the only evidence before me is Mr Ryan's evidence that the defendant agreed to pay this amount after his criminal trial. I accept that evidence together with items not in dispute. That makes a total of $17,128.00. In addition, the defendant did not dispute the total of the Lindblom account being $3,442.45.

In essence, the only items in dispute were $229.05 for the cost of the Budget Rent-a-Car from Coober Pedy to Mintabie and $65.00, the related cost of fuel (Exhibit P4 covers both of those items) and the sum of $368.00 for half of that return airfare from Mount Gambier to Coober Pedy (Exhibit P5 relates to that item).

Mr Ryan, at the time of these matters, was conducting his legal practice from Mount Gambier. It was Mr Ryan's evidence that he tried to make arrangements to visit the defendant at Coober Pedy prior to his criminal trial in July 1999. The defendant was not able to be at Coober Pedy at the time Mr Ryan was there. Mr Ryan therefore attended at Coober Pedy for another matter and then hired a car and proceeded to Mintabie, where the defendant lived, as that was the most cost effective way of taking his instructions and preparing for trial. He charged half of the airfare to Coober Pedy because he was also going for another matter. He arrived at Mintabie until late in the afternoon, stayed the night with a friend and the following morning spent between one-and-a-half and two hours with the defendant going through the declarations which the prosecution had provided and preparing for the criminal trial.

Mr Ryan provided straightforward and detailed evidence. I have no hesitation in accepting it. I am satisfied that on the balance of probabilities the amounts of $229.05, $65.00 and $368.00 were not only spent, but were proper and reasonable amounts in the circumstances to obtain detailed instructions from the defendant prior to the trial, which was to be conducted by Mr Ryan in the Supreme Court. I note that the only evidence before me on those disputed amounts was that of Mr Ryan. There is no evidence from Mr Nagy, who gave no evidence.

In the circumstances then the plaintiff is entitled to the amounts of $17,128.00 and $3,442.45 in addition to the amounts not disputed making a total of $21,232.50. The plaintiff is also entitled to the costs of his filing fee and his solicitor's costs, making a grand total of $22,319.50. I award interest in total in the amount of $2,231.50. There will therefore be judgment for the plaintiff in the amount of $24,551.

In addition, the plaintiff is also entitled to costs of today's hearing to be agreed or taxed."

13 Supreme Court Rule 97.04 provides that an appeal of this nature must be instituted within 14 days of the decision of the lower court. An application for waiver of fees was filed within that period however the notice of appeal in this matter was filed out of time.

14 The waiver of fees application was lodged promptly following the decision of the Magistrate. The delay caused by that process was the only material delay in the filing of the appeal. The delay has not resulted in any prejudice to Mr Ryan. An extension of time to appeal is granted.

15 Counsel for Mr Nagy sought to amend his grounds of appeal. It was submitted that the notice of appeal was prepared without the benefit of either the transcript of the Magistrate's decision or legal advice.

16 The amendment caused no hardship or prejudice to Mr Ryan. The time in which Mr Ryan had to respond to the amended grounds was sufficient to ensure that he was not disadvantaged. I grant leave to amend the grounds of appeal.

17 It was agreed by the parties that this matter would proceed without oral argument. Written submissions were filed. Those submissions formed the substantive argument in this case.

18 The appellant submitted that the Magistrate erred in failing to take into account section 41 of the Legal Practitioners Act 1981 (SA) ("the Act"):

"1) A person cannot bring an action for the recovery of legal costs or appropriate money in or towards satisfaction of a claim for legal costs unless a bill specifying the total amount of those costs, and describing the legal work to which the costs relate, has been delivered to the person liable to the costs either personally, or by post addressed to the person at the person's last known place of business or residence.

(2) The person liable to legal costs may at any time within six months after delivery of a bill of costs under subsection (1) request the person claiming to be entitled to the costs to provide a statement showing in detail how the amount of the costs to which the bill relates is made up.

..."

19 It was said that the amount of the claim filed in the Magistrates Court was in excess of the bill delivered by the respondent.

20 An invoice of 29 January 2001 prepared by Mr Ryan outlined the charges for his professional services and all disbursements incurred through the period he acted for Mr Nagy. The total amount of the invoice was $18,833.45. A further invoice dated 15 February 2001 from Mr Ryan's agents was forwarded to Mr Nagy. The total of that account was $3,442.45.

21 The appellant submitted that the amount of Mr Ryan's claim exceeded the amount of the bills rendered. As a result it was said that section 41 precluded an action for recovery. There is no substance to this submission[1]. The amount of the claim in the Magistrates Court was the total of the two invoices forwarded to Mr Nagy. The fact that one account was delivered by Mr Ryan's agent is not to the point. Mr Nagy received appropriate notice of the accounts prior to proceedings being issued. It does not appear that Mr Nagy sought further particulars of the accounts.

22 It was further submitted that the bill relied on by Mr Ryan was not delivered personally to Mr Nagy, but to a solicitor who was acting for Mr Nagy in a separate matter. Section 41(1) specifies that the bill be "delivered to the person liable to the costs either personally, or by post addressed to the person at the person's last known place of business or residence." Mr Nagy's counsel claimed that Mr Ryan had not established that this had occurred. Counsel argued that the claim for recovery should therefore be dismissed.

23 Counsel for Mr Ryan submitted that the accounts had been properly served on the solicitor acting for Mr Nagy. It was said that the section did not require personal service. Attention was drawn to the fact that service by post to a last known address was sufficient. It was said that notice to Mr Nagy's solicitor was more direct notice than postal notice. It was said that it was not in dispute that Mr Nagy had received notice of both the accounts.

24 The purpose of section 41 is to ensure that the client has notice of the account. In this case the account went to Mr Nagy's solicitor. The accounts were brought to Mr Nagy's attention. Mr Nagy did not deny that he had received the accounts. Mr Nagy received personal notice.

25 For the purposes of this case, delivery to Mr Nagy's solicitor was adequate. Whatever the circumstances of the delivery of the accounts, it was accepted that Mr Nagy received notice. There is no substance to this ground of appeal.

26 The appellant submitted that the Magistrate erred in failing to consider and exercise her discretion pursuant to sections 42(1) and 42(5) of the Legal Practitioners Act. These sections provide a discretion to order that costs be taxed and to adjourn any recovery proceedings until the taxation of costs has been completed. Section 42 is in the following terms:

(a) of a person claiming to be entitled to legal costs; or

(b) of a person who is liable to pay, or who has paid, any legal costs, the Supreme Court may tax and settle the bill for those costs.

(5) Any court in which proceedings for the recovery of legal costs have been instituted may order the plaintiff to apply to have the legal costs taxed in accordance with this section, and may adjourn the proceedings until the taxation has been completed."

27 Counsel for Mr Ryan submitted that section 42 provides a discretion to order taxation following an application for taxation. It was said that no such application had been made. Mr Nagy had made no complaint regarding the accounts. There had been no request before proceedings for an itemised account. In any event at the trial there was no dispute with respect to the agreed fee for the trial or the agent fee for the appeal.

28 Counsel further submitted that the power in section 42(5) was discretionary. The section provides that the court 'may order' and 'may adjourn'. Counsel said that it was reasonable for the Magistrate not to exercise her discretion to make such an order. This was particularly relevant given that Mr Nagy made no prior complaint about the claim for professional fees.

29 I accept these submissions. As was apparent from evidence presented to the Magistrate the vast bulk of the account was undisputed. Taxation of the bill had not been requested by Mr Nagy. This ground is without substance.

30 Counsel for Mr Nagy submitted that the Magistrate erred in finding that there was a valid and binding agreement on costs. Mr Nagy did not dispute that there had been an agreement. However, Counsel asserted that the fee agreement was not supported by consideration, and that the agreement was too vague to be enforceable. It was argued that there was no written evidence of the agreement and that the claim for costs should fail on that basis.

31 Counsel for Mr Ryan submitted that on the evidence presented to the court, the Magistrate had acted within her discretion. The work undertaken was charged at a rate that accorded with the Supreme Court scale. The total was then reduced after discussion with Mr Nagy. Mr Ryan's evidence was not disputed. As earlier observed Mr Nagy admitted that he owed Mr Ryan the $12,000.00 for professional fees for the trial.

32 There is no reason to doubt the Magistrate's acceptance of Mr Ryan's evidence. The appellant has identified no error of approach. All relevant material has been considered. No irrelevant material was bought into account. There is no basis on which to disturb the Magistrate's acceptance of Mr Ryan's evidence.

33 Rule 9.14 of the Legal Practitioner's Conduct Rules provides:

"It is a practitioner's duty to communicate effectively and promptly with clients.

Without limiting sub-rule (i) the practitioner shall unless it is unreasonable or inappropriate in the circumstances so to do:

(a) as soon as practicable after first taking instructions from a client provide to the client written advice as to the reasonably estimated range of costs and disbursements the client may incur by pursuing the legal activity and the method of calculation of those costs;

(b) provide to the client as soon as practicable after taking instructions written advice as to the basis upon which the practitioner accepts the client's retainer and in particular setting out the basis upon which the practitioner intends to charge the client for the services rendered and the current rates that apply to such charges; provided that such advice will not be required where there exists an applicable prior agreement by which all work done by the solicitor for that client or all work of a certain kind is subject to an agreed charging rate.

(c) Provide to the client as and when reasonably requested, a review of the estimated costs and disbursements and the reasons therefore; ..."

34 Mr Nagy submitted that the Magistrate erred in failing to take into account Mr Ryan's failure to comply with this rule by omitting to provide written advice to Mr Nagy after taking first instructions. This point was not raised before the Magistrate. There was no evidence to suggest that any alleged failure caused prejudice in this case. This ground is without substance.

35 Counsel for Mr Nagy submitted that the Magistrate erred in accepting the evidence of Mr Ryan as to the claim for half Mr Ryan's travelling costs with respect to the visit to Coober Pedy. Counsel asserted that the evidence was insufficient to establish that the claim was reasonably based.

36 Mr Nagy denied that he had requested Mr Ryan's attendance at Coober Pedy. Mr Ryan had "dropped in" because he was in the area for other business. Mr Nagy questioned Mr Ryan as to why the instructions taken on that day could not have been taken by telephone or post. Mr Nagy submitted that the other business would have taken up more than half of Mr Ryan's time while in Coober Pedy.

37 Counsel for Mr Ryan submitted that on the evidence before the Magistrate, the findings that were made were open to her. No error had been demonstrated.

38 The Magistrate was entitled to act on the evidence of Mr Ryan. There was no evidence presented to the Magistrate to contradict Mr Ryan's account. This ground is without substance.

39 The appellant submitted that the Magistrate failed to give adequate assistance to Mr Nagy as an unrepresented litigant.

40 The adversarial justice system is designed to be conducted with the assistance of persons of appropriate professional skill. It is inevitable that the presence of unrepresented litigants can give rise to difficulties.

41 It has been observed that an unrepresented person is disadvantaged, not merely because of insufficient legal knowledge and skills, but also because a person in such a position is unable dispassionately to assess and present a case in the same manner as counsel.[2] Extra consideration is required on the part of the judiciary to compensate for any unfairness arising as a result of one or more parties being unrepresented by counsel.

42 In a recent report, the Australian Law Reform Commission concluded[3]:

"A court is faced with different challenges in cases where one or both parties are unrepresented...Judges need to ensure that all relevant evidence is heard, relevant questions asked of witnesses, and that the unrepresented party knows and enforces their procedural rights..."

43 There has been no judicial attempt to exhaustively list the attributes necessary to ensure a fair trial for unrepresented litigants. Guidelines have been attempted but as each case is different, it is difficult to make any general statement. As the Full Federal Court said in Abram v Bank of New Zealand;

"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.[4]"

44 The prevalence of actions involving unrepresented parties is increasing. In resolving the issues arising from these cases, much judicial comment has been made regarding the problems faced and issues raised by unrepresented litigants. In Minogue v HREOC[5], the Full Federal Court observed;

"A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation ... However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial."

45 In Moore-McQuillan v Police[6] Bleby J addressed unrepresented litigants and observed:

"[A] magistrate... must ensure that a self-represented litigant is not denied a fair hearing through ignorance of the basic procedures of the court and of the rules with which he must comply in presenting his case. It is not for a magistrate to advise a litigant on the law or his rights. However, he or she must ensure that a self-represented litigant at least understands that there are rules under which parties must proceed, and ensure that he or she is not deprived of a fair hearing by virtue of a failure to bring to that party's attention some of the more obvious rules which are second nature to legal practitioners and those who regularly appear in the courts. The court does have an obligation to protect a litigant in person from any apparent procedural disadvantages that such a party may suffer simply through ignorance of particular procedural rules."

47 Counsel for the appellant complained that the Magistrate failed in her duty to Mr Nagy as an unrepresented party. It was said that Mr Nagy displayed an ignorance of court procedure and exhibited difficulties with language throughout the trial. It was further complained that the Magistrate failed to assist Mr Nagy in formulating questions in cross-examination, failed to assist or advise Mr Nagy with respect to the consequences of his failure to give evidence, failed to address the issue of taxation of costs or to assist the defendant as to his claim that the legal work had been carried out incompetently and to advise Mr Nagy of his right to an interpreter.

48 A review of the transcript discloses that the Magistrate went to considerable lengths to identify the real issues in the case. As a result it became clear that the issues were discrete. There was no real challenge to the major items of the claim. The items that were in dispute were the subject of cross-examination. The transcript reveals the extent of the Magistrate's effort to materially assist Mr Nagy. Other substantive issues related to a general unspecified complaint about Mr Ryan's competence. These complaints only appear to have arisen following the issue of proceedings.

49 The Magistrate offered general assistance to Mr Nagy. During the course of the hearing Mr Nagy advised the Magistrate that he had intended to be represented by counsel. Once this request had been made, the Magistrate adjourned the case to allow Mr Nagy to contact his solicitor. Following the adjournment, Mr Nagy continued the case without representation.

50 The Magistrate advised Mr Nagy of the procedures of the court as it became necessary. She told Mr Nagy when he would have the opportunity to speak, or to ask questions of witnesses. She explained to him the importance of his questions in cross-examination and assisted with those questions. She directed Mr Nagy's attention to particular documents about which she indicated he may desire to ask questions.

51 The Magistrate informed the appellant of the right to and purpose of cross-examination. Mr Nagy then undertook cross-examination of Mr Ryan. From the transcript it is clear that the Magistrate provided appropriate assistance to Mr Nagy. She intervened on occasions to advise when questions were incorrectly formulated. She also clarified and rephrased questions to Mr Ryan at various times during cross-examination. An extract from the transcript of Mr Nagy's cross-examination of Mr Ryan demonstrates this.

" Mr Nagy Did you remember one afternoon you ring me up from Coober Pedy and he said I would like to come see you. About 4 o'clock afternoon next day you arrive in my place...There is one other thing I come up here and I found it out next day you been in Marla Court working for Harper.

Her Honour Now, what's your question, are you saying to Mr Ryan that he only came to see you because he happened to be passing by, is that what you're saying.

...

Is that your question. You were actually going to Marla anyway and you just called in to see me at Mintabie?

Mr Nagy Yes.

Her Honour Mr Ryan I think that's the question, do you have any response to that?

Mr Ryan No, that's not correct...

Her Honour Just pausing there - the question is was it just a social visit to Mintabie, is that right?"

A further example of the Magistrate's assistance to Mr Nagy was as follows:

"Her Honour The next item on that bill is $368 as a half proportion of the air fare from Mount Gambier to Coober Pedy, do you agree.

Mr Nagy I have no idea why he can't work Coober Pedy. My case never been heard in Coober Pedy or in Adelaide.

Her Honour Are you suggesting to Mr Ryan that there was no reason to go to Coober Pedy.

Mr Nagy Not for me. I never ask him.

Her Honour Mr Ryan, it's being suggested to you that there was no reason to go to Coober Pedy, is there anything you want to respond to."

52 The extent of the obligation on the court to assist litigants in person is contextual[7] and may depend on the litigant, the nature of the case and the litigant's intelligence and understanding of the case[8]. The court may also have regard to the position of the other party or parties concerned and the efficient conduct of the proceedings.

53 Where a litigant appears unrepresented they will usually be at a disadvantage because of their lack of legal training or skill.[9] The judiciary are obliged to reduce the disadvantage to ensure a fair trial.[10] This proposition, however, is subject to the need for the court to maintain its neutrality[11]. The court must be careful not to confer an advantage on the litigant in person over the represented party.[12]

54 With these matters in mind, the Court in In Marriage of F[13] said:

"...we think that the giving of such assistance should lie in the discretion of the trial judge and should not be required by mandatory guidelines nor should the nature of the interventions from the bench be rigidly proscribed or prescribed. The exercise of such discretion serves the goal of achieving a fair trial so that the interests of justice can be served.

Therefore, the application of the guidelines must depend on the circumstances of the particular case."

It is clear from a reading of the transcript that in this case Mr Nagy received appropriate assistance from the Magistrate.

55 The Magistrate informed Mr Nagy of the importance of giving evidence and the consequence of his failure to do so. She provided ample opportunity and in fact encouraged the appellant to give evidence. This is demonstrated in the following passages from the transcript:

"Her Honour As I explained to you before lunch, the plaintiff has presented their case to me. They have called some evidence. You have had a chance to cross-examine. The evidence before me at the moment is what the plaintiff's witness has said, and the documents. If you want to give any evidence that you ask me to rely on and consider when I decide how much, if any, of the amount claimed should be paid by you, you have an opportunity now to decide whether or not you want to give evidence. If you want to give evidence, now is your opportunity to do so. Do you intend to give evidence?

Mr Nagy Thank you very much, but I don't want to say any more. The business is finished.

Her Honour Do you want to give evidence to me as to why you say any of the amounts that I have to think about, are payable or not. Do you want to give that evidence? ...

...This is not whether you can pay or not, I understand that, this is for me to decide whether or not you should pay. Do you want to give some evidence about that?

...

"Her Honour ...the evidence before the court is the evidence that Mr Ryan had given and the documents that have been produced to me. If you want to give evidence in this matter, it will be an opportunity for you to do so...

Mr Nagy, as you can see, this is an opportunity for you to say anything you want to say to me about the evidence I've heard. It doesn't mean in general; it just means about what has been said, and the documents that have been given to me. Is there anything you want to say to me about what has been said in evidence and the documents that have been given to me?

Mr Nagy All that I would like is that I can pay a reasonable time because I don't deny, I never deny that I not pay, but if I haven't got, I haven't got."

There is no basis to the claim that the Magistrate failed to advise Mr Nagy in relation to this aspect of his case.

56 Counsel for Mr Nagy asserted that he was disadvantaged in not having the assistance of an interpreter at the hearing.

57 Mr Nagy apparently did not request an interpreter at his earlier criminal trial in 1999. The court records show that he gave evidence without any such assistance. No request for the services of an interpreter was received from his solicitor although he was aware of the hearing for some weeks before it began. Mr Nagy did not indicate to the court that he was unable to understand the proceedings. The lack of an interpreter was not raised with the Magistrate at any time.

58 The court has discretion as to whether a defendant should have the assistance of an interpreter. This is based on the right of the defendant to understand the nature of the proceedings. In this instance no miscarriage of justice had occurred because of the lack of an interpreter. It was clear that Mr Nagy understood the nature of the proceedings.

59 No evidence was placed before this Court to support the assertion that Mr Nagy had difficulty in understanding, or that he suffered any prejudice because of the lack of an interpreter. A review of the transcript disclosed that where Mr Nagy was unclear as to a question or comment, it was repeated and rephrased until he understood.

60 It is relevant to observe that no evidence was placed before this Court to suggest that any evidence existed to support Mr Nagy's allegations in any material way. No affidavit was filed indicating evidence that Mr Nagy would have led had Mr Nagy better understood the court processes. There is no suggestion that there is any wider dispute as to the extent of professional work undertaken. No particulars of the alleged professional incompetence were provided to the Court. Counsel for Mr Nagy has been unable to demonstrate that any of the alleged irregularities have led to an injustice.

61 In the hearing before the Magistrate Mr Nagy agreed that fees were owed to Mr Ryan. His only complaint in regard to those fees seemed to relate to three items totalling $662.05. On these matters the only evidence provided to the Magistrate was the evidence of Mr Nagy. The Magistrate found Mr Ryan to be a credible and reliable witness and accepted his version of events as being truthful. No basis to doubt this finding has been established.

62 The grounds advanced by Mr Nagy are without substance.

1 Section 41 of the Act does not appear to have been raised at trial.

2 As was noted by Mason CJ and McHugh J in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 302

3 Australian Law Reform Commission, Review of the Federal Justice System, Discussion Paper 62, August 1999, at p362

5 [1999] FCA 85; (1999) 84 FCR 438 at 446

6 (1998) 196 LSJS 488 at 496 - 497 see also Brehoi v Minister for Immigration [2001] FCA 931

7 Minogue v HREOC [1999] FCA 85; (1999) 84 FCR 438

8 Abram v Bank of NZ [1996] ATPR 41-507

9 Rajski v Scitec Corporation Pty Ltd Unreported NSW (CA) 16 June 1986

10 Minogue v HREOC [1999] FCA 85; (1999) 84 FCR 438

11 Minogue v HREOC [1999] FCA 85; (1999) 84 FCR 438

12 Rajski v Scitec Corporation Pty Ltd (Unreported NSW (CA) 16 June 1986

13 [2001] FamCA 348; (2001) 161 FLR 189 at 223-224

[1] Section 41 of the Act does not appear to have been raised at trial.

[2] As was noted by Mason CJ and McHugh J in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 302

[3] Australian Law Reform Commission, Review of the Federal Justice System, Discussion Paper 62, August 1999, at p362

[5] [1999] FCA 85; (1999) 84 FCR 438 at 446

[6] (1998) 196 LSJS 488 at 496 - 497. See also Brehoi v Minister for Immigration [2001] FCA 931

[7] Minogue v HREOC [1999] FCA 85; (1999) 84 FCR 438

[8] Abram v Bank of NZ [1996] ATPR 41-507

[9] Rajski v Scitec Corporation Pty Ltd Unreported NSW (CA) 16 June 1986

[10] Minogue v HREOC [1999] FCA 85; (1999) 84 FCR 438

[11] Minogue v HREOC [1999] FCA 85; (1999) 84 FCR 438

[12] Rajski v Scitec Corporation Pty Ltd (Unreported NSW (CA) 16 June 1986

[13] [2001] FamCA 348; (2001) 161 FLR 189 at 223-224