Primary Judge: 'That [the Commission] is not putting forward the interview with [Mr] Pettenon into evidence, they are not intending to rely on that so therefore you have no right to cross examine him on that point.'"
125 I interpolate to note that Mr Platcher had not, at that stage, sought to "cross-examine" Mr Pettenon, although he plainly assumed that the transcript of his evidence was somehow already before the Court. Mr Platcher then sought to have her Honour explain to him what was going on:
"Mr Platcher: 'Your Honour, just in a nutshell, if you wouldn't mind, what does it all mean as far as Mr Pettenon is concerned? Would he be able to - he can't give evidence in other words?'
Primary Judge: 'No, the evidence that - he could be cross-examined but the evidence would be the evidence in his affidavit with paragraphs 4 and 5 deleted. I will let you think about that Mr Platcher. … You may decide that it is not in your interest to expose him to cross-examination on that basis and you may prefer not to read that affidavit but that is something, obviously, that I can't advise you on.'"
126 It seems to me that Mr Platcher did not understand the nature and effect of her Honour's ruling. He assumed that the transcript of Mr Pettenon's s 19 examination had been excluded when, in fact, her Honour's ruling had been directed only to pars 4 and 5 of Mr Pettenon's affidavit. Had Mr Platcher done no more than to call Mr Pettenon to give viva voce evidence confirming the truth of what he had earlier said to the Commission, as par 6 of the affidavit purported to do, it seems to me to be entirely possible that her Honour would have permitted that course to be followed. Any complaint by Mr Beaumont regarding his having been taken by surprise could have been addressed by granting any adjournment that might have been necessary to enable him to prepare his cross-examination. In my view, any such adjournment would not have been lengthy. I consider it unlikely, in the extreme, that Mr Pettenon's evidence would have been shut out entirely.
127 The primary judge correctly ruled that pars 4 and 5 of Mr Pettenon's affidavit should be excluded. Nevertheless, par 6 of that affidavit still affirmed the truth and accuracy of the evidence given by Mr Pettenon in the course of his s 19 examination. There was no reason to prevent that paragraph from being read.
128 There were, in my view, a number of legitimate means by which the transcript of Mr Pettenon's examination could have been admitted into evidence. Either party could have called Mr Pettenon to prove that transcript, and to adopt what he had previously said as true and correct. However, that was of no avail to Mr Platcher because, as will be seen, according to his unchallenged evidence, he believed that her Honour had already ruled that the transcript was inadmissible.
129 During the course of what eventually became the Disqualification Proceeding, while that matter was still in the Supreme Court, the Commission had filed and served an affidavit by Mr Pettenon that proved the transcript of his evidence in his s 19 examination. It is apparent, therefore, that not only was the transcript available to the Commission at all material times, but the Commission had already contemplated relying upon it. Later, that position altered.
130 It is against this background that Mr Platcher now submits that, at least in relation to the Disqualification Proceeding, his appeal should be allowed. He claims that because he did not understand her Honour's explanation of the position regarding Mr Pettenon's evidence, he was effectively deprived of that evidence, which was vital to his case. He argues that had Mr Pettenon's evidence been received, as it ought to have been, it was at least possible that her Honour would have come to a different conclusion regarding his role in the management of the company.
131 Mr Platcher is, and was at all material times, a self-represented litigant. He told us, in answer to a question from the Court, that many years ago he had had some limited legal training. He appears not to have assimilated a great deal of what he was taught. He is also, as Tamberlin and Emmett JJ note, a "businessman with considerable commercial expertise", though I would not myself apply the adjective "astute" to him. Far from being "able to present his case in a comprehensive logical and careful manner", as their Honours conclude, I regard him as having displayed little, if any, real understanding of how litigation is to be conducted.
132 Although Mr Platcher's further ground of appeal is couched in terms of a refusal on the part of the primary judge to admit the transcript of Mr Pettenon's s 19 examination, his submissions make it clear that his real complaint is that the primary judge did not explain to him with sufficient clarity what his procedural rights were. This prevented him from making an informed decision as to whether to call Mr Pettenon as a witness, or at least tender the transcript of his s 19 examination.
133 The hearing of this appeal was adjourned to allow Mr Platcher the opportunity to file further material demonstrating the circumstances that led to the rejection of Mr Pettenon's evidence. Mr Platcher was also permitted to include in the appeal papers the transcript of the examination that he claimed to have been wrongly excluded. In addition, he was permitted to give oral evidence as to his understanding of the position at the time he sought to read, and rely upon, Mr Pettenon's affidavit. He said that he believed that he would not be permitted to rely upon that affidavit, save as to certain formal and inconsequential matters. He also said that he believed that he would not be permitted to rely upon the transcript of Mr Pettenon's s 19 examination. He said that he would have sought to tender that transcript had he known that it was possible for him to do so.
134 The first question to be considered is whether, as Mr Platcher contends, the primary judge was under a duty to provide him with the level of assistance for which he now contends.
135 There is a considerable body of learning concerning the duty of a trial judge to a self-represented litigant engaged in complex litigation. Justice R D Nicholson has written extensively on this subject. See generally: "Australian Experience With Self-Represented Litigants" presented to the Fifth Worldwide Common Law Judiciary Conference, Sydney, 10 April 2003; "Can Courts Cope With Self-Represented Litigants?" presented as the Public Lecture for the 2003 Federal Court Visiting Judicial Fellow, Flinders University Law School, 16 September 2003; and "Litigants In Person"presented to the Supreme and Federal Court Judges' Conference, Hobart, 25 January 2001. See also E Richardson, Self-Represented Parties: A Trial Management Guide for the Judiciary, County Court of Victoria, 2004.
136 Among the cases to which his Honour referred, Cachia v Hanes (1994) 179 CLR 403 stands for the proposition that the right of a self-represented litigant to appear in person is fundamental. There is also case law to suggest that a frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are sometimes obfuscated by their own advocacy: Neil v Nott (1994) 121 ALR 148 at 150. Justice Nicholson refers to authority to the effect that the advice and assistance which a self-represented litigant receives from the Court should be that which is necessary to diminish, as far as possible, the disadvantage which he or she will ordinarily suffer, but without thereby conferring a positive advantage over the represented opponent, and without disobedience to the applicable rules: Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, Full Court, No. CA 146 of 1986, 16 June 1986) per Samuels JA. His Honour emphasises that it is essential that the Court should be careful to ensure that there is not a failure to claim rights, or that a possible claim is extinguished: Rajski at 27, and Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-7.
137 Recently, the Full Court of the Family Court considered these principles in two cases, Johnson v Johnson (1997) 139 FLR 384 and In the Marriage of F (2001) 161 FLR 189. The latter case holds that a judge should ensure, as far as possible, that procedural fairness is afforded to all parties, whether represented or not, in order to achieve a fair trial. More specifically, it holds that a judge should inform a litigant-in-person of the manner in which the trial is to proceed, the order of calling witnesses, and the right which he or she has to cross-examine witnesses. In addition, a judge should explain to a litigant-in-person "any procedures relevant to the litigation". Other courts have applied these Family Court guidelines. See National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; Santamaria v Secretary to Department of Human Services [1998] VSC 107; and Zegarac v Tomasevic [2003] VSC 150.
138 As Tamberlin and Emmett JJ have noted, the problems posed by self-represented litigants were considered by a Full Court of this Court in Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438. In that case, the Court carefully set out the duties owed by a trial judge to a self-represented litigant at 445-7. I shall not repeat these passages as they are set out in the joint judgment at para [104]. I agree with their Honours that the principles set out by the Full Court in Minogue are, by now, well established. It is only necessary to consider their application to the facts of the present case.
139 I have no doubt that the Commission presented a strong case against Mr Platcher. A large number of witnesses were called to testify that he had played a central role in the day-to-day operations of Growthcorp. From that evidence, it could plainly be inferred that Mr Platcher had been concerned in the management of the company. There was no evidence led by Mr Platcher to controvert the Commission's case. Nonetheless, the transcript of the trial reveals that Mr Platcher clearly wished to rely upon the evidence of Mr Pettenon to support his case that he had merely been acting as a consultant to the company. Having read the transcript of Mr Pettenon's s 19 examination, I can well understand why he would wish to rely upon that evidence.
140 It was when Mr Platcher sought to tender Mr Pettenon's affidavit that problems arose. As indicated earlier, once the Commission had closed its case, he sought to read that affidavit. For reasons that were never satisfactorily explained, Mr Platcher did not provide a copy of the affidavit, sworn several months earlier, to Mr Beaumont until the morning of 26 June 2002, the day on which he sought to call Mr Pettenon.
141 Mr Beaumont immediately, and very properly, objected to pars 4 and 5. He did so on two bases. He complained firstly that the affidavit should have been filed in accordance with a timetable that had previously been fixed. He said that he was not in a position to cross-examine Mr Pettenon immediately. He also complained that the two paragraphs contained "rolled up conclusions", and were therefore inadmissible at least as a matter of form.
142 The primary judge, sensibly, asked Mr Beaumont whether, in addition to pressing for the exclusion of pars 4 and 5, he would also object to Mr Platcher "being allowed to ask those questions at this stage in direct examination". Mr Beaumont told her Honour that he would be prejudiced by that course because he would be "surprised by detailed evidence", contrary to the Court's earlier directions.
143 As noted earlier, the primary judge then ruled that pars 4 and 5 could not be read. She told Mr Platcher that it was a matter for him as to whether he still wished to call Mr Pettenon, with those paragraphs taken out of the affidavit. He responded that Mr Pettenon was a "vital witness" in support of his case. There then followed the discussion recorded earlier in these reasons for judgment.
144 I am satisfied, on the evidence, that Mr Platcher mistakenly believed that "the evidence provided by the [Commission]", namely the transcript of the s 19 examination, was somehow already before her Honour. The primary judge plainly sought to disabuse Mr Platcher of that impression. In my view, however, her Honour did not succeed in that endeavour. The question that must be considered, therefore, is whether, in the circumstances, her Honour should have done more to ensure that Mr Platcher understood what was happening and what, if anything, he could do about it.
145 It is a fact that the primary judge told Mr Platcher that the Commission was "not putting forward the interview with Mr Pettenon into evidence". She added that the Commission was not intending to rely on that interview, so that he had no right to "cross-examine him on that point". Regrettably, that explanation seems only to have further confused Mr Platcher. He asked her Honour to tell him "in a nutshell" what it all meant. Did it mean that Mr Pettenon could not give evidence?
146 The primary judge responded to that question by saying that Mr Pettenon "could be cross-examined" but that evidence would be "the evidence in his affidavit with pars 4 and 5 deleted". She added that it might not be in Mr Platcher's interest to expose Mr Pettenon to cross-examination "on that basis", and that he may therefore prefer not to read his affidavit. She told Mr Platcher that this was obviously something that she could not advise him on.
147 I am left with a clear impression that her Honour's reply to Mr Platcher's request for assistance did not allay his confusion.
148 As indicated earlier, the evidence clearly establishes that the Commission itself contemplated, at one stage, calling Mr Pettenon to give evidence. However, as the correspondence between the parties tendered before this Court shows, the Commission had decided, apparently well before the trial, not to rely upon anything that he might say.
149 Mr Pettenon's evidence regarding Mr Platcher's role in the management of Growthcorp was obviously relevant. Indeed, it was fundamental to the central issue in the Disqualification Proceeding.
150 It is true that the Commission had informed Mr Platcher, well before the trial commenced, that it would not be calling Mr Pettenon. It did so indirectly, by not including his name among the list of proposed witnesses that it provided.
151 Having seen and heard Mr Platcher give evidence regarding his state of mind at the time her Honour ruled on the Pettenon affidavit, I am satisfied that he was genuinely confused by what was happening. It need hardly be said that a self-represented litigant is unlikely to have any real appreciation of the nuances of the rules of evidence. The primary judge had earlier directed that the trial be on affidavit. That decision, though common enough in litigation in this Court, seems to have created a particular problem for Mr Platcher. Where a witness is called to give viva voce evidence, a self-represented litigant will ordinarily be given a degree of latitude in formulating appropriate questions. This ensures that relevant evidence can be elicited, and placed before the Court. Affidavit evidence, however, does not lend itself to such flexibility.
152 Experience has shown that self-represented litigants are seldom able to prepare affidavits that comply with the rules of evidence, or matters of form. It seems to me that where a self-represented litigant desires to call evidence from a witness whose testimony may be of critical importance to his or her case, a trial judge must be particularly astute to ensure that matters that are essentially of a technical nature do not prevent that witness's evidence from being received. Otherwise, there is a risk that such a litigant will be denied a fair trial.
153 Mr Pettenon's affidavit was plainly defective, at least with regard to form. Once Mr Beaumont had objected to pars 4 and 5, the primary judge had no real choice other than to order that those paragraphs be excluded. The difficulty is that Mr Platcher plainly had little understanding of what was happening. He clearly believed that there was no point in seeking to call Mr Pettenon because his evidence on critical matters would not be received. That was not necessarily the case. However, Mr Platcher was never adequately apprised of the fact that there were other avenues legitimately open to him by which Mr Pettenon's evidence could be received.
154 Had Mr Platcher been legally represented, his counsel almost certainly would have sought to call Mr Pettenon in order to adduce evidence from him viva voce. That evidence would presumably have been along the lines of the account that he gave in his s 19 examination. It is difficult to imagine that an application of that type would have been refused. Mr Beaumont might have complained, as he did, that he was taken by surprise. He might also have complained that he ought not be required to cross-examine Mr Pettenon immediately, on matters of detail, without a proper affidavit having been filed.
155 Had Mr Beaumont objected to Mr Pettenon's evidence being received on the basis that he was taken by surprise that objection could readily have been dealt with on its merits. I consider that any prejudice suffered could have been met by a brief adjournment, at most. After all, the Commission itself was well aware of what Mr Pettenon was likely to say. It had conducted the very same s 19 examination that would have formed the basis of his evidence, had the Commission adhered to its earlier intent to lead that evidence. Mr Beaumont informed the Court that he personally had not read the transcript of that examination prior to the hearing of the proceeding below. Presumably, that was because he had only been retained as counsel after the decision had been taken not to call Mr Pettenon. Nonetheless, any counsel retained on behalf of the Commission in a matter of this type should, in my view, have been able to prepare his cross-examination of Mr Pettenon in a relatively short time. At the very least, Mr Beaumont could hardly complain that the Commission itself would be taken by surprise by anything that Mr Pettenon was likely to say.
156 Regrettably, although the primary judge raised with Mr Beaumont the possibility that Mr Pettenon might give evidence, viva voce, as a means of overcoming the defects in his affidavit, she was immediately dissuaded from that course by his claim that this would be unfair as he would be taken by surprise. Her Honour did not hear Mr Platcher on this point, simply accepting Mr Beaumont's submission at face value.
157 Mr Platcher was entitled to conclude from what her Honour said to Mr Beaumont that the matter of Mr Pettenon was a fait accompli, and that the only evidence that he would be permitted to lead from that witness, if he were to be called, was that contained in his affidavit, with the exclusion of pars 4 and 5. Yet, these were the two paragraphs that Mr Platcher specifically regarded as being absolutely vital to his case.
158 There is nothing to suggest that Mr Platcher appreciated that he was entitled to be heard on the question whether viva voce evidence should be received from Mr Pettenon. Indeed, the transcript of the proceeding below suggests the contrary. Yet this was, in my view, a matter of fundamental importance. I consider that the primary judge ought to have explained to Mr Platcher more clearly than she did that he was entitled to press an application that Mr Pettenon be permitted to give viva voce evidence.
159 In my view, the discussion that then took place between the primary judge and Mr Platcher regarding the transcript of the s 19 examination simply compounded the problem. A self-represented litigant is hardly likely to understand the workings of the hearsay rule. Even if Mr Platcher had been aware, before the trial commenced, that the Commission did not intend to call Mr Pettenon as a witness, he was clearly under the impression that the transcript of the s 19 examination was "before the Court" in some unspecified way.
160 As indicated earlier, Mr Platcher gave evidence before this Court that he had mistakenly believed that the transcript Mr Pettenon's s 19 interview was already in evidence during the trial. He was not challenged as to that evidence. He seemed to me to be telling the truth about that matter. Not only did he believe that he could refer to, or rely upon, the evidence that Mr Pettenon had given during the course of his s 19 examination, I consider that his belief was reasonable in the circumstances. After all, a s 19 examination might well seem to a self-represented litigant to be just the kind of evidence that would be available, as of right, for use in a court. Mr Platcher's belief regarding this matter could only have been bolstered by the Commission's own conduct in having, at an earlier stage, manifested an intention to rely upon the transcript of the examination as part of its case.
161 As I have noted, the primary judge attempted to explain to Mr Platcher that he was mistaken in believing that Mr Pettenon's evidence was already before the Court. I seriously doubt that Mr Platcher had any real appreciation of what her Honour was saying to him regarding this issue. It seems to me, from the discussion that took place, that he had little, if any, understanding of the distinction between examination-in-chief and cross-examination. Indeed, he spoke at one stage of wishing to "cross-examine" Mr Pettenon which, as her Honour correctly pointed out, he could only do if the Commission itself had called him.
162 I can see no reason why Mr Platcher could not have called Mr Pettenon to give evidence, shown him the transcript of his s 19 examination, and asked him simply whether the contents were true and correct. In a sense, that is precisely what par 6 of Mr Pettenon's affidavit purported to do. The only difference is that par 6 did not exhibit the transcript of that examination.
163 It was obviously vital to Mr Platcher's case that Mr Pettenon's evidence be admitted. I consider, with respect, that the primary judge did not make it sufficiently clear to Mr Platcher that there were several ways in which he could properly have had that evidence admitted. The approach of calling a witness to adopt a previous statement as true and correct is routinely followed in this Court. Indeed, that approach is expressly contemplated by s 37(3) of the Evidence Act 1995 (Cth) which allows a written statement or report to be tendered or treated as evidence in chief of its maker, pursuant to rules of court. The primary judge should, in my view, have made it clear to Mr Platcher that this course may have been open to him.
164 I am not convinced that the outcome of the trial would necessarily have been the same had Mr Pettenon's evidence been received. The Commission presented a strong, but not unanswerable case. I accept, of course, that Mr Platcher was not entitled to preferential treatment merely because he was a self-represented litigant. However, he was entitled to have his case considered on its merits. More fundamentally, he was entitled to a fair trial.
165 I have considerable sympathy with the position that the primary judge found herself in. She was faced with the difficult task of conducting a complex case with a self-represented litigant as one of the parties. As the cases to which I have referred demonstrate, such litigants frequently pose problems for the Court. By their ill-advised conduct, they sometimes frustrate the goals of efficiency and fairness. However, as the High Court observed in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, while case management principles are a relevant consideration, they should not take precedence over the need to ensure that a party can litigate any issue that is fairly arguable. That principle applies as well to a party's ability to call evidence that is of vital importance to his or her case.
166 Mr Platcher was self-represented, unfamiliar with the procedures involved in the conduct of the trial, and appears not to have understood her Honour's explanation of why she had rejected pars 4 and 5 of Mr Pettenon's affidavit. Those facts do not, of themselves, mean that Mr Platcher is entitled to succeed on this appeal. He must go on to demonstrate that, by reason of what occurred, he did not receive a fair trial. In the present context, that means that he must establish that the primary judge did not adequately explain to him his procedural rights.
167 After giving this matter anxious consideration, I am satisfied that Mr Platcher has made good the further ground of appeal. I consider that the assistance provided by her Honour to Mr Platcher regarding his procedural rights fell short of what the circumstances of the case required. Mr Platcher was entitled to be told, in clear terms, that he could press for the admission of Mr Pettenon's evidence, subject only to a possible adjournment being granted to enable Mr Beaumont to prepare for cross-examination. Moreover, he was entitled to be told how he might legitimately tender, or otherwise rely upon, Mr Pettenon's evidence.
168 The primary judge concluded that Mr Platcher should be disqualified from being a company director for 25 years. That is obviously a penalty of the utmost severity. It may well be that disqualification for that period is entirely merited. However, I am left with a deep sense of unease that a penalty of this magnitude should be imposed in circumstances where the primary judge did not hear from a witness who was pivotal to Mr Platcher's defence, and was in fact the only witness upon whose evidence he proposed to rely.
169 I consider that the appeal in the Disqualification Proceeding should be allowed, and that the matter should be remitted to the primary judge for further hearing and determination. That would allow her Honour to consider Mr Pettenon's evidence, and to weigh it against the evidence given by the other witnesses already called by the Commission. I can see no reason why her Honour should be precluded from reconsidering the evidence as a whole, once she has heard from Mr Pettenon. An analogous, though more limited course, was followed by a Full Court in Dukemaster Pty Ltd v Bluehive Pty Ltd [2001] FCA 180.
170 As mine is a dissenting opinion, it is unnecessary to say anything further.