Zhong v Melbourne Health & Anor [2015] VSCA 165

Zhong v Melbourne Health & Anor [2015] VSCA 165 - VSCA 2015 case summary — Zoe

[43]

30 On 15 March 2013, there was a directions hearing before Judge Saccardo. The plaintiff was in attendance. At that hearing, Judge Saccardo explained to the plaintiff what he needed to do with a view to preparation of his case. He explained to the plaintiff that he was making a claim for loss of income and loss of earnings and also a claim for compensation for the pain and suffering that he had suffered as a result of the conduct of the defendants. He explained that, although the Wrongs Act 1958 did not impose restrictions on a claim for loss of earnings or loss of earning capacity, it did impose restrictions on the recovery of damages for pain and suffering or loss of enjoyment of life. He provided the relevant section of the Wrongs Act 1958 to the plaintiff and spoke of the need for there to be either an appropriate impairment assessment or a medical panel determination. He also explained to the plaintiff that the Court did not involve itself in the gathering of evidence; he said that it was for the parties to gather their own evidence and present it to the Court. Next, he explained the issue of onus of proof; he said that it was for the plaintiff to prove his case, not for the defendants to disprove it. He also explained to the plaintiff that, where an allegation is made against a professional body or hospital or board that it had behaved inappropriately, it was difficult to establish such a claim without expert evidence. The judge next addressed the claim for economic loss; he explained that it would be necessary for the plaintiff to assemble his evidence and prove the losses he said he had suffered. Notice would have to be given to the defendants of the evidence on which he wished to rely. The plaintiff suggested that his case was more a criminal case than a civil case. Judge Saccardo explained to him the difference between the two forms of case and that the present case was a civil case and that the plaintiff should prepare his material as soon as possible. He told the plaintiff that he would have to tell the Court and the defendants what course he proposed to take with respect to evidence.

[103]

... I'm telling you as fairly as I can that if you think I'm going to hear this case and determine it only on your evidence that won't work, it just won't work. That's the reason why I have asked you what other evidence are you going to call? That's why I said to you if you call Dr Buckle she will be of no help to you but that's entirely up to you; you call her if you want to. And you call the other two witnesses if you want to but I'm waiting to hear from you how it is you are going to prove that the decisions made by the two hospitals were wrong.

And it's not just your evidence that's important, it's the expert evidence that you should have which you don't have to say, 'This man never had an illness. You got it completely wrong.' Then I'll have to determine which experts I accept, that's the way cases work and I had hoped [from] what you had been told in the past by Judge Saccardo, you would have understood that because he has made orders in this case abut expert evidence and about all the witnesses being on witness statements. That's very unusual to have witness statements and you know why he did it? Because you're a self-represented litigant and he wanted to make sure you had in front of you precisely what the evidence is that will be called by the two defendant[s] so that you can then work out, 'If that's their case, I'd better prepare mine.'

Now, if you want to say any more, you go right ahead but I think your perception of how cases work and the onus of proof you bear is quite wrong. I cannot under any circumstances hear a case based on that. I would be running against 100 years of legal history in this country if I were to say, 'I accept your evidence and I'm going to completely ignore all the expert evidence on the other side.' You'll be in the Court of Appeal, a place across the road before you can blink.

Now, I've given you, Mr Zhong, a view that I must give you because if you were represented I'd be saying exactly these same things to your lawyer so I must say them to you to be fair. You might not be happy with what I'm saying but I'm not here to make people happy, I'm here to judge cases properly, fairly and independently and that's what I will do in your case.

But I've said to you as much as I'm going to, you must think overnight what your case is, what other evidence you're going to call because at the moment it's a very, very weak case and if I don't tell you that now and I tell you tomorrow or the day after you won't be too happy because the first thing you'll say to me is, 'Why didn't you give me an indication of this?' I'm giving the indication now and I think Judge Saccardo, from the transcript I've read, gave you a bit of an indication. 'This is what you've got to do to prepare your case.'

Now I'm going to adjourn until 10.30 tomorrow morning and I want to hear from you at 10.30 what you're going to do about calling your brother in some form and these other three witnesses who you've mentioned because you really need to tell me that you're going to call them, that you've made arrangements to call them or you're not going to call them.

It just can't sort of sit in the air, okay? This case has got to move along; do you understand?

[110]

The right of an unrepresented party to be heard requires that he or she be able to understand the bases on which he or she might contest the evidence led in support of a claim against them, and the manner in which he or she might answer such claim by adducing evidence in response.

The judge must provide reasonable advice and assistance to the unrepresented party insofar as is necessary for a fair trial whilst recognising and respecting the rights of the opposing party:

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 as 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.[12]

In Minogue, the Full Court of the Federal Court recognised that the trial judge must strike a balance:

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.

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