Ensuring a fair hearing for an unrepresented litigant can present formidable difficulties for a court. Their needs, and their attitudes towards the court, vary across a wide spectrum. At one end of the spectrum, the litigant may be inarticulate, or anxious, or distressed, and in need of considerable assistance in order simply to understand the process in which he/she is involved. At the other end, there are litigants who are variously articulate, strong-minded, stubborn, dismissive of legal advice and, very often, unwilling to accept judicial authority.

The obligation of a court to ensure a fair hearing is undoubted. The content of that obligation varies_, however, with the circumstances of the case and ― in this context ― according to the particular capabilities and attitudes of the self-represented litigant._

The first respondent, Mr K__yriazis, represented himself on his appeal to the County Court against his convictions on two minor traffic offences. His conduct soon revealed that he fell towards the articulate and assertive end of the spectrum. As will appear, he was ― in pre-hearing correspondence ― provocative and confrontational and, from the first moment of the hearing, refused to accept the judge's ruling on the straightforward question of whether he could record the proceeding. As explained below, the judge ruled that Mr Kyriazis could make a sound recording but not a video recording. This should not have troubled Mr Kyriazis, as he did not have a video recorder with him.

The hearing which followed was remarkable for the level of hostility, anger and aggression directed by Mr Kyriazis (and some of his supporters) towards the Court. The judge for the most part remained calm and patient, although ― unsurprisingly ― he did occasionally raise his voice when requesting that Mr Kyriazis keep quiet.

As will appear, Mr Kyriazis at an early stage announced to the judge that he would not participate in his own County Court appeal. The judge patiently proceeded to call on Mr Kyriazis's subpoenas, examine the documents and release them to Mr Kyriazis. The evidence in the prosecution was led but, apart from occasionally objecting to what he described as leading questions, Mr Kyriazis refused to participate.

It was the judge himself who elicited, during the informant's evidence, that the period during which Mr Kyriazis had refused to produce his licence was only five minutes. Unsurprisingly, the judge expressed his disapproval of the charge having been laid for what was 'no more than a technical breach'. In the event, although he found the charges proved and convicted Mr Kyriazis, he discharged him.

Nevertheless, Mr Kyriazis filed an application for judicial review, contending that he had been denied procedural fairness. The judge at first instance upheld that complaint, concluding that the judge had not accorded Mr Kyriazis a fair hearing and was guilty of ostensible bias.

For reasons which follow, we respectfully disagree. As already indicated, this was not a case where the judge was obliged to take extra measures to provide assistance to Mr Kyriazis. On the contrary, it was Mr Kyriazis who ― for no good reason ― decided to withdraw from his own appeal and who thereafter engaged in what can only be described as disgraceful conduct towards the judge. There was nothing more his Honour could have done to ensure a fair hearing. Accordingly, the appeal must be allowed.

1. The Court went on to say (at paragraphs 63 to 75):

In the matter of [Roberts v Harkness [2018] VSCA 215] ... we discussed the fundamental obligation of every court to ensure a fair hearing for the parties before it. We made the following points:

(1) Fairness is not an abstract concept. When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

(2) The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.

(3) What is reasonable for this purpose will necessarily depend upon the circumstances. Matters to be taken into account will include:

• 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; and
• the competing demands of the time and resources of the Court.

(4) The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.

(5) The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of an unrepresented person to formulate, and articulate, the case which they wish to present. As we said:

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. 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 understand the litigant's case.

In this Court, counsel for Mr Kyriazis submitted that a judge's obligation to provide assistance was unaffected by any unwillingness on the part of a litigant in person to receive such assistance. That submission must be rejected. As was said by Mazza JA in O'Connell v The State of Western Australia:

Being unrepresented is not a free pass to misbehave, flout the legal or procedural rules, ignore the law of evidence or to treat the trial judge and witnesses with disrespect or contempt. Where an unrepresented [person] acts or attempts to act in any of these ways, a trial judge must fairly and, if necessary, firmly deal with such behaviour. The extent to which a trial is regarded as fair will be examined in the light of [the unrepresented person's] own conduct

In the present case, Judge Chettle provided Mr Kyriazis with all of the assistance he could reasonably expect. Notwithstanding Mr Kyriazis's continued rude and disrespectful behaviour to the judge, the judge maintained a calm (if, at times, frustrated and annoyed) demeanour and continued throughout the hearing to attempt to engage with Mr Kyriazis and inform him about the process and of his options from time to time.

Mr Kyriazis was not a naïve litigant. He subpoenaed documents; he was obviously aware of the order of evidence; and he made a conscious decision to withdraw from the proceeding, making repeated references to his intention to go to 'the Prothonotary' in order to ch__allenge the conduct of Judge Chettle in another forum. While Mr Kyriazis demonstrated misperceptions about particular matters from time to time ― for example, that he needed the judge's leave to approach the Prothonotary ― there is nothing in the transcript that suggests he was in any way uninformed about the essential elements of the process he was engaged in. On the contrary, he was well aware of his right to lead evidence and to cross-examine, and he showed an obvious familiarity with procedure when he purported to object to leading questions.

[1] Transcript of proceedings 7 December 2018 page 2, line 30

[2] Transcript of proceedings 7 December 2018 page 2, line 44

[3] Transcript of proceedings 7 December 2018 page 3, line 5

[4] Transcript of proceedings 7 December 2018 page 3, lines 6-10

[5] Transcript of proceedings 7 December 2018 page 3, lines 13-15

[6] Transcript of proceedings 7 December 2018 page 3, line 33

[7] Transcript of proceedings 7 December 2018 page 3, lines 45-47

[8] Transcript of proceedings 7 December 2018 page 4, lines 30-35

[9] Transcript of proceedings 7 December 2018 page 5, lines 17-19

[10] Transcript of proceedings 7 December 2018 page 6, lines 4-9

[11] Transcript of proceedings 7 December 2018 page 7, line 35

[12] Transcript of proceedings 7 December 2018 page 7, lines 42-44

[13] Transcript of proceedings 7 December 2018 page 8, line 41

[14] Transcript of proceedings 7 December 2018 page 9, line 30

[15] Transcript of proceedings 7 December 2018 page 9, lines 20-30