Roberts v Harkness [2018] VSCA 215

46 As his Honour correctly stated, it is the fundamental obligation of every court to ensure a fair hearing for the parties before it.[29] The High Court recently affirmed, in Condon v Pompano Pty Ltd, that procedural fairness is 'an essential attribute of a court's procedure'.[30] The correlative right of each party to a fair hearing is firmly established at common law and - since 2006 - has been enshrined in s 24(1) of the Charter, which relevantly provides as follows:

A person charged with a criminal offence ... has the right to have the charge ... decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

47 The existence of the fair hearing right being uncontroversial, the critical question is: 'What does the duty to act fairly require in the circumstances of the particular case?'[31] Natural justice is 'fair play in action'.[32] As Gleeson CJ said in Lam:[33]

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

48 It is an essential requirement of a fair hearing that each party be given a 'reasonable opportunity' of presenting its case,[34] whether in writing, or orally, or both. This will ordinarily include being informed of the case to be advanced by the opposing party, and having an opportunity to respond.[35]

49 Axiomatically, what is 'reasonable' for this purpose will depend on the circumstances of the case.[36] Matters to be taken into account in determining the practical content of fairness in the particular case will include

• the nature of the decision to be made;
• the nature and complexity of the issues in dispute;
• the nature and complexity of the submissions which the party wishes to advance;
• the significance to that party of an adverse decision ('what is at stake'[37]); and
• the competing demands on the time and resources of the court or tribunal.[38]

50 One of the key considerations in determining the content of fairness in a particular case is the statutory framework governing the decision-making process. This is most obviously the case with administrative decision-makers whose powers are conferred by statute, but it is also true of courts. As the plurality said in Pompano:

To observe that procedural fairness is an essential attribute of a court's procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.[39]

51 It is relevant, therefore, that the 'main purposes' set out in s 1 of the Magistrates' Court Act 1989 include the following:

(c) to provide for the fair and efficient operation of the Magistrates' Court; and

(d) to abolish inefficient and unnecessary court process and procedures; and

(e) to allow for the Magistrates' Court to be managed in a way that will ensure -

(i) fairness to all parties to court proceedings; and

(ii) the prompt resolution of court proceedings; and

(iii) that optimum use is made of the Court's resources.[40]

52 We refer also to the Magistrates' Court Criminal Procedure Rules 2009, which include the following:

5 Overriding objective

(1) The overriding objective of these Rules is to enable the Court to secure the just and timely determination of every criminal proceeding.

(2) Dealing with a case in a just and timely manner includes, so far as is practicable -

(a) ensuring simplicity in procedure, fairness in administration and the elimination of unnecessary delay;

(b) efficiently determining all the issues in the case;

(c) ensuring an appropriate allocation of the Court's resources, while taking into account the needs of other cases.[41]

53 With great respect to his Honour, we do not consider that the framework of analysis changes in any significant respect where one of the parties is unrepresented. The question to be asked - both at first instance and on judicial review - remains the same: what is (or was) required to give the unrepresented person a reasonable opportunity to advance his/her own case and to be informed of and respond to the opposing case?[42]

54 The one key difference, however, is that the Court will first have to assess the capability of the unrepresented person to formulate, and communicate, the case which he/she wishes to present. The assumptions as to capability on which the Court proceeds where a party is represented do not, of course, apply.

55 The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant's verbal communication with the Court.[43] Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to be able to understand the litigant's case.

56 A critical fair hearing question for the judicial officer is whether there is, or may be, an arguable legal point underlying the unrepresented litigant's arguments but which he/she has not been able to articulate.[44] In those circumstances, in our view, the duty to afford a fair hearing may require the judicial officer to seek to elicit and elucidate the legal point, through exchanges with the litigant. That burden may be ameliorated by facilitating access to pro bono assistance, as regularly occurs in this and other courts.

57 Procedural fairness is also supported by opposing parties, and their legal representatives, acting fairly and in accordance with both statutory and professional obligations. The proper discharge of those obligations forms part of the relevant matrix within which the Court discharges its obligation to ensure a fair hearing.

58 Applying these considerations to the present case, we are quite satisfied that there was no denial of procedural fairness. The magistrate was fully entitled to deal with the objection to jurisdiction on the basis of the written documents which

Mr Harkness had filed in advance, namely, the 2014 notice and the 2016 statement. As we said earlier, the direction that Mr Harkness file his arguments in advance was entirely appropriate.[45] As counsel for the applicant pointed out in this Court, it was a procedure particularly well-suited to an unrepresented accused, who might have difficulty advancing argument orally.

59 The result of the procedure adopted was that on two separate occasions - one on his own initiative, the other at the Court's direction - Mr Harkness had had the opportunity to set out, as fully as he chose, the propositions on which his objection to jurisdiction rested. More particularly, those documents demonstrated, very clearly, that Mr Harkness was:

• articulate, fluent and verbally confident;[46]
• familiar with, and able to utilise, Court documents and procedures; and
• able to state in clear and definite terms his position about the inapplicability of the Road Safety Act to him and about the Magistrates' Court's lack of jurisdiction.[47]

60 This was not a case where fairness required that Mr Harkness be given assistance with his objection to jurisdiction. Nor was there any reason for the magistrate to have been concerned that there might be some valid legal argument underlying Mr Harkness's contentions. The assertion that he had an overriding right

to travel which right existed at common law and which right exists pursuant to the Blessing of Almighty God[48]

required no further investigation. As an answer to a charge of unlicensed driving, it was self-evidently a groundless assertion, with no conceivable legal foundation. The fact that Mr Harkness was evidently operating under the mistaken belief that there was some legal foundation for his assertion did not affect the content of the fair trial obligation.

61 As we have said, the question for the magistrate - and for the Court on judicial review - was whether procedural fairness required that Mr Harkness be given any further opportunity to elaborate his twice-asserted objections. To that question, there could only reasonably have been one answer, namely, that no further opportunity was required.

62 With great respect to the judge, the magistrate was plainly correct to conclude that there was no tenable basis for the objection to jurisdiction. As mentioned earlier, his Honour said that Mr Harkness's arguments 'obviously needed elaboration and clarification'.[49] Had his Honour asked Mr Harkness to elaborate or clarify, however, it would have quickly become apparent - as it did in this Court - that there was nothing to be said beyond the grounds set out in the 2014 notice and the 2016 Statement.

63 When invited on the present application to explain his objections,

Mr Harkness did not seek to defend his previous, unqualified, assertions that the Magistrates' Court had no jurisdiction to hear the charges and that RSA did not apply to him. Instead, in response to questions from the Court, he conceded that:

• the RSA was a valid law, of general application, applicable to any 'person' whose conduct attracted the operation of its provisions; and
• he viewed himself as bound to comply with the RSA's prohibitions on driving above the speed limit.

64 Asked about his earlier categorical denials of jurisdiction, Mr Harkness responded that he had worded the documents

in a way that is about as extreme as I could have worded it to begin the dialogue.

He had expressed himself in 'absolute' terms, he said, as 'a beginning to the conversation'. Rather than refusing to accept the Court's jurisdiction, Mr Harkness said, he had wanted to have - and believed he was entitled to have - a 'dialogue' or 'conversation' with the magistrate about the extent of the Magistrates' Court's jurisdiction.

65 When it was pointed out that he had asserted 'a common law God-given right to drive without a licence', Mr Harkness responded:

I'm not challenging the validity of the licence. I'm seeking to find the boundary of applicability of statute law - Road Safety Act and its jurisdiction over common law rights. Does it have complete unfettered jurisdiction over common law rights? Now, I believe that's a jurisdictional question which is worthy of exploration ...

66 The management of cases involving unrepresented litigants is a source of continuing difficulty for judicial officers. They are required to balance the interests of justice in the particular case with the competing public interest in the efficient use of public resources and in access to justice for other litigants waiting to have their cases heard. What is required is a combination of patience and judgment and an ability to discriminate between those cases where the interests of justice demand a prolongation or adjournment of the hearing - so that the unrepresented litigant's case can be fairly presented - and those where the interests of justice call for expeditious disposal. So far as the objection to jurisdiction was concerned, this was a case in the latter category, as the magistrate recognised.

67 For completeness, we should say that her Honour the magistrate was quite correct to describe Mr Harkness's arguments as grounded in religious precepts. As is apparent from the various extracts set out above, Mr Harkness's lengthy written submissions were grounded in his assertions about the place of Almighty God as the source of his rights, in particular his right to travel. It was those repeated references which understandably made clear to her Honour, as they did to this Court, that Mr Harkness's objection to jurisdiction was based on a mixture of personal philosophy and religious belief, and was completely lacking in legal foundation.

68 What we have said above is enough to demonstrate why the appeal must be allowed. We would also note, that because Mr Harkness's objection to jurisdiction was devoid of merit and had no prospects of success, any failure to give him an opportunity to develop his arguments by way of oral submissions did not deny him 'the possibility of a successful outcome'. As a result, had there been any breach of procedural fairness, it would not have been material and would not have entitled him to any relief in this Court.[50]

[1] [2017] VSC 646 [8] ('Reasons'). The Reasons dealt with the separate matter of Kyriazis v County Court of Victoria. That part of the judgment is the subject of a separate appeal: Doughty-Cowell v Kyriazis [2018] VSCA 216.

[7] This was a reference, on which Mr Harkness has continued to rely, to Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) ('Quick and Garran'). The annotation in question concerns the power of the Commonwealth Parliament under s 51(xxiv) of the Constitution to make laws with respect to the service and execution of process (p 614).

[8] [1986] HCA 54; (1986) 161 CLR 141, 145 ('Stead').

[10] See [21] above.

[12] Ibid, referring to the Charter of Human Rights and Responsibilities Act 2006 ('the Charter').

[13] [2007] VSC 337; (2007) 17 VR 100 ('Tomasevic').

[15] (2017) 51 VR 624 ('Matsoukatidou').

[18] Matsoukatidou (2017) 51 VR 624, 668 [130] (emphasis added).

[20] Matsoukatidou (2017) 51 VR 624, 681 [178] (citations omitted).

[21] Reasons [32] (citations omitted).

[22] Ibid [28]-[29] (emphasis added).

[23] Ibid [30] (emphasis added) (citations omitted).

[24] [2017] VSC 560 [19].

[25] Reasons [31] (citations omitted).

[27] See [36] above.

[28] This formulation was based on the Quick and Garran annotation: see [22] fn 7 above.

[30] [2013] HCA 7; (2013) 252 CLR 38, 99 [156] ('Pompano').

[31] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585.

[32] Salemi v Minister for Immigration & Ethnic Affairs (Cth) [No 2] [1977] HCA 26; (1977) 137 CLR 396, 445.

[33] (2003) 214 CLR 1, 14 [38].

[34] Russell v Duke of Norfolk (1949) 1 All ER 109, 118 ('Russell'); Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 341 [55] ('WZARH'); Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301, 308-9 [38]-[41] ('Shrestha').

[35] Pompano [2013] HCA 7; (2013) 252 CLR 38, 100 [157].

[36] Russell (1949) 1 All ER 109, 118; see also National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 311-2, 319-20; Pompano [2013] HCA 7; (2013) 252 CLR 38, 99 [156].

[37] Shrestha [2015] FCAFC 87; (2015) 229 FCR 301, 310 [49], 311 [54].

[38] AMF 15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2015) 241 FCR 30, 48 [44](e); Shrestha [2015] FCAFC 87; (2015) 229 FCR 301, 310-11 [53]-[54]; Barratt v Howard [2000] FCA 190; (2000) 96 FCR 428, 444-5 [50]-[54]; Chen v Minister for Immigration and Ethnic Affairs [1994] FCA 985; (1994) 48 FCR 591, 600-602.

[39] [2013] HCA 7; (2013) 252 CLR 38, 99 [156].

[42] See WZARH (2015) 256 CLR 326, 337-8 [36]-[42], and Nobarani v Mariconte [2018] HCA 36 [47] ('Nobarani').

[43] Cf WZARH (2015) 256 CLR 326, 338 [40].

[44] See, eg, Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, 150.

[45] See [11] above.

[46] See Re Minister for Immigration and Multicultural Affairs; Ex parte PT [2001] HCA 20; (2001) 178 ALR 497, 502-3 [25].

[47] Cf Nobarani [2018] HCA 36 [43].

[48] See [17] above.

[49] See [36] above; Reasons [30].

[50] Stead [1986] HCA 54; (1986) 161 CLR 141, 145; Hossain v Minister for Immigration and Border Protection [2018] HCA 34 [30].