Zhong v Melbourne Health & Anor [2015] VSCA 165

1 On 30 January 2012, Yu Chun Zhong ('the plaintiff') commenced this proceeding in the County Court by writ endorsed with a statement of claim. In essence, the plaintiff claimed that Melbourne Health and St Vincent's Hospital ('the defendants') had been negligent in diagnosing him as suffering from a mental illness as a result of which he was subjected to involuntary inpatient treatment at the Royal Melbourne Hospital and St Vincent's Hospital.

2 It appears that, on 29 January 2004, the plaintiff attended Royal Melbourne Hospital for treatment. He was suffering from anal bleeding. He believed that he had been poisoned. He was assessed as being mentally ill and was admitted and detained as an involuntary patient pursuant to s 12 or 12AA of the Mental Health Act 1986 ('the Act'). That period of detention commenced on 29 January 2004 and ceased on 20 February 2004. On that date, the plaintiff was subjected to a community treatment order pursuant to s 14 of the Act. That order commenced on 20 February 2004 and ceased on 22 April 2005.

3 On 22 April 2005, the plaintiff once more was detained as an involuntary patient. The second period of detention commenced on 22 April 2005 and ceased on 23 May 2005. Upon its completion, the plaintiff was again subjected to a community treatment order. That order commenced on 23 May 2005 and ceased on 12 April 2007.

4 It seems that the care of the plaintiff passed from Melbourne Health to St Vincent's Hospital because of a change in residence. On 12 April 2007, a further community treatment order was made. It ceased on 9 January 2009.

5 On 23 July 2011, the plaintiff was admitted to St Vincent's Hospital pursuant to a third involuntary treatment order. That admission ceased on 29 July 2011. It was followed by a further community treatment order which lasted from 29 July 2011 to 31 August 2011.

6 The plaintiff submitted that, at no time, was he mentally ill.

7 On 11 August 2014, a judge in the County Court dismissed the plaintiff's proceeding and ordered that judgment be entered for the defendants.

8 On 12 December 2014, this Court gave the plaintiff leave to rely on a further amended notice of appeal filed on 11 December 2014, but only in respect of the following grounds:

(1) The learned trial judge erred in process by not allowing the appellant to make an opening statement in accordance with rule 49.01 particularly (1) and (2)(b) of the County Court Civil Procedure Rules 2008.

(2) The learned trial judge erred in that his Honour conducted himself in such a way that a fair-minded observer might reasonably apprehend that it was possible that he might not bring an impartial and unprejudiced mind to the determination of the appellant's claim.

(3) The learned trial judge erred in that his Honour failed to ensure a fair trial and/or afford the appellant procedural fairness by:

(a) failing to give due assistance to the appellant who was not legally represented;

(b) failing to adjourn the trial of his own motion;

(c) failing to allow the appellant an adequate opportunity to make an opening address;

(d) failing to allow the appellant an adequate opportunity to give evidence in support of his case.[1]

9 For the reasons that follow, the appeal is dismissed.

10 After it was issued, the plaintiff's proceeding was set down for directions in the Damages & Compensation List - Medical Division in the County Court. Judge Saccardo was in charge of that list.

11 When it was instituted, the proceeding originally involved a claim for damages from the chief psychiatrist of Royal Melbourne Hospital and of St Vincent's Hospital and from the chief leader of the Mental Health Review Board ('the Board').[2]

12 The plaintiff was granted leave to amend the proceedings on a number of occasions. The writ and statement of claim which ultimately formed the basis for the plaintiff's claim was the statement of claim dated 25 June 2012 which was filed pursuant to the order of Judge Saccardo made 28 May 2012. In that statement of claim, the defendants were identified as Melbourne Health, St Vincent's Hospital (Melbourne) Ltd and the Board.

13 On or around 29 October 2012, the Board made application that the proceeding against it be dismissed on the basis that members of the Board, in the exercise of their statutory functions, held a statutory immunity from liability under s 130 of the Act.

14 This application was heard on 9 November 2012. The decision was reserved.

15 On or around 15 February 2013, Judge Saccardo made a ruling reserving a decision on the Board's application until, inter alia, the plaintiff and the Board had filed further affidavits as to several points of law not then addressed. These included whether the proper defendants, and the proper subjects of the application to dismiss the proceeding, ought be the individual members of the Board who had heard the plaintiff's appeal against his involuntary treatment order of 13 February 2004.

16 On 15 March 2013, Judge Saccardo ordered that the plaintiff be given leave to amend the title of the proceeding so as to delete the Board as the third defendant and to substitute as third, fourth and fifth defendants the relevant members of the Board, namely Ms Angela Smith, Ms Jennifer Lee and Dr Hari Dass Chopra.

17 On 22 March 2013, the plaintiff made application at a directions hearing to add 14 further defendants to the proceeding, being members of the Board who had reviewed appeals by him on several occasions after 13 February 2004. Judge Saccardo refused the application.

18 On 17 April 2013, Judge Saccardo heard the application of the third, fourth and fifth defendants that the proceeding against them be dismissed. He granted the application, and dismissed the proceedings against them.

19 On 9 May 2013, the plaintiff filed an appeal against the decision of Judge Saccardo made 17 April 2013.

20 On 10 May 2013, Judge Saccardo vacated the trial date of the proceeding pending the hearing of the plaintiff's appeal against his interlocutory orders, and refixed it for 4 August 2014.

21 On 23 August 2013, the Court of Appeal heard the plaintiff's appeal.

22 On 29 August 2013, the Court of Appeal gave its findings, upholding the decision of Judge Saccardo made 17 April 2013 to dismiss the proceedings as against the third, fourth and fifth defendants.[3]

23 On 10 September 2013, the plaintiff filed an application with the High Court of Australia for special leave to appeal the decision of the Court of Appeal.

24 On 12 February 2014, the High Court dismissed the plaintiff's application for special leave.

25 Given the above events, the plaintiff's claim proceeded solely against the first and second defendants.

26 By the plaintiff's statement of claim dated 25 June 2012, he contended that:

(1) The decisions made by the first and second defendants to the effect that the plaintiff suffered from a mental illness were wrong and (it is understood) were therefore negligent and, as a consequence, the treatment provided by them to him was also wrong and, therefore, negligent.

(2) The decisions and/or actions of the first and second defendants in involuntarily admitting and providing treatment to the plaintiff and the fashion in which treatment was so provided were illegal and amounted to criminal offences.

(3) As a consequence of the negligence and illegal acts of the first and second defendants, the plaintiff has suffered injury, loss and damage.

27 By their defences, the defendants denied that they had been negligent. Further, they said that the treatment provided to the plaintiff was both lawful and appropriate in that the plaintiff at all relevant times was mentally ill and met the criteria for involuntary treatment pursuant to the terms of the Act. They denied that the plaintiff suffered any form of injury and/or loss.

28 Judge Saccardo made several orders which were designed to have the matter ready for trial. In addition, he explained to the plaintiff that:

(1) As he was the plaintiff in the proceeding, he had the onus to make out his claim.

(2) He would need to arrange to call witnesses to pursue his claim.

(3) It would be likely that he would need expert evidence in order to make out his claim.

29 On 6 September 2012, Judge Saccardo made the following orders:

1. Each party is to serve upon the other parties any medical and/or expert reports concerning damages and liability upon which the party serving the report wishes to rely at the trial of this proceeding.
2. The plaintiff is to serve details of special damage, loss of earnings and loss of earning capacity along with supporting documentation upon the defendant.

1. Each party is to serve upon each other party and copies of any Journal Article or Written Text or any other document from any source which that party seeks to rely upon in the trial of this proceeding.

1. Subject to further order, the evidence contained in any medical or expert report served by the parties in accordance with paragraph 10 of these orders will be received as evidence in the trial unless the party upon whom the report was served notifies the party serving the report no later [than] 21 days before the trial date of his wish to cross-examine the author of the report.
2. In the absence of the permission of the trial judge no expert will be allowed to give any evidence which is not disclosed in the report by that expert which has been served in compliance with paragraph 10 of these orders unless that evidence is given by reason of, or in the course of, cross examination.

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.

31 On 22 March 2013, there was a further directions hearing before Judge Saccardo. The plaintiff was in attendance. Judge Saccardo explained to the plaintiff: (a) that expert evidence could only be given by a suitably qualified person and (b) that, if he proposed to rely upon medical literature on the internet, questions would arise about its admissibility. Finally, he reminded the plaintiff of the need for him to prepare his evidence with respect to his claim for loss of earnings and loss of income.

32 On 11 March 2014, Judge Saccardo made the following orders:

1. Before the trial the plaintiff is to serve upon the defendant any material that he seeks to rely upon that deals with the defence taken by the defendant under section 28(1)(f) of the Wrongs Act 1958, that he is not entitled to make a claim for damages for pain and suffering and loss of enjoyment of life.
   1. That each party in the proceeding is to serve upon the other witness statements containing outlines of the evidence to be given by any witness, including any party to the proceeding.

1. Except with the leave of the trial Judge, or His Honour Judge Saccardo, no party may adduce evidence from any witness, the content of which is not disclosed in a witness statement.

33 On 29 July 2014, there was a further directions hearing before Judge Saccardo. The plaintiff was in attendance. The Court's attention was drawn to the fact that the plaintiff had proposed to include a large amount of material taken from the internet. The judge explained to the plaintiff: (a) that opinion evidence could only be given by experts and (b) that statements in journals could not be relied upon unless the author was brought to court and made available for cross-examination.

34 As is evident, before the trial commenced the judge who had responsibility for the case had done everything reasonable to assist the plaintiff in understanding (a) the procedure which would be followed, (b) the plaintiff's duties with respect to the adducing of evidence, (c) the identification of issues, and (d) the presentation of the case generally.

35 In addition, the Court had made directions to ensure that the plaintiff received the full text of any material upon which the defendants would rely so that he could prepare for his cross-examination. Every reasonable step was taken to ensure that the plaintiff was in a position to prepare his case before the commencement of the trial.

36 The trial of the proceeding commenced on 5 August 2014 before Judge Misso. It proceeded over 5, 6 and 7 August 2014. The trial judge delivered a ruling on 8 August 2014.[4]

37 The plaintiff was the only witness who gave evidence at the trial of the proceeding. The trial judge summarised the evidence as follows:

The plaintiff was born in October 1957. He is now fifty-six years of age. He was born in China. He last worked as a kitchenhand in a restaurant in Swanston Street in 1996. He enrolled in a course of study at La Trobe University, which he said was a Graduate Diploma in Economics in about 1996-1997. He subsequently enrolled in a course of study at Swinburne University in about 1998. In 1999, he failed computing. He passed the other subjects he took in that year. In about 2000, he failed all the subjects he took in that year. It would appear that the plaintiff did not thereafter return to any formal university studies.

From 2001, the plaintiff's domestic circumstances took a turn for the worse. He had no place of residence. He used a friend's address as his mailing address. He spent his days at the Baillieu Library at The University of Melbourne. He often slept in the car park at the University. He often went to Middle Brighton during the day, where he went for a swim and bathed before returning to the Baillieu Library. He stored clothing and other personal items in a storage facility in Glen Iris.

The plaintiff believed that his consumption of foodstuffs and water resulted in him being poisoned. It would appear that he believed that he was the subject of religious and political persecution at the hands of a great many people including the Chinese Government. He believed that the anal bleeding which he suffered as a consequence of a haemorrhoid condition became symptomatic as a result of poisoning.

The plaintiff believed that on 29 January 2004, he had been poisoned. He was suffering anal bleeding. He attended at the Royal Melbourne Hospital for treatment. It was as a result of that attendance that he was assessed as being mentally ill. It was on that day that he was first admitted and detained as an involuntary patient.[5]

• that he is the true younger son of God.

• that under God's orders he is writing a new version of the Holy Bible.

• that God, and sometimes Jesus, communicate with him.

• that Jesus had come to him in visions on two or three occasions prior to 1999.

• that he is exposed to poisoning through drinking tap water and bottled water, and consuming foodstuffs, even water and foodstuffs purchased from a supermarket.
• that he distils water taken from Port Phillip Bay and from other places which he consumes as his drinking water.
• that he does not live in his flat. He lives in a structure which he has built which he has positioned on the balcony of his flat. He lives in the structure. He considers it to be safer than the flat.[6]

39 The plaintiff did not lead any expert evidence on the question as to:

(b) the reasonableness or otherwise of the diagnosis made by either of the two defendants and the treatment afforded to him.

40 The plaintiff contended that he was not required to adduce evidence from an expert as it was self-evident that he did not have and never has had a mental illness. He tendered a publication which expressed the opinion that there was no cure for schizophrenia, but that, with proper treatment, many people with that illness can lead productive and fulfilling lives. He contended that, since he was now not taking medication or suffering any mental illness, he could not have been suffering from schizophrenia at the time of the admissions and treatment in issue.

41 At the heart of the plaintiff's case was his contention that the involuntary detention orders that had been made in 2004, 2005 and 2011 were unlawful. In support of that contention, he had to establish the nature of his condition when those orders were made. In his opening, he referred to the fact that in October 2011, he went to Canada. He said that he was not permitted to enter Canada and was sent back to Sydney. Immediately upon arrival in Sydney, he bought a ticket to go to New Zealand. He said: 'Well, this is the turning point, the whole case. I had chance to prove that I myself had no any mental illness. So, when I arrive into New Zealand, actually I stop taking any medication ... In New Zealand, I taking - I stop taking any medication. Well, absolutely no problem. Everything it's proper and good.' After his visit to New Zealand, he visited South Africa. He stayed there for a short period and his brain had recovered. It will be evident that the opening did not address his mental condition when he was subjected to the orders under the Act.

42 At the conclusion of the second day of trial, the plaintiff had finished his evidence. He informed the Court that he wished to call:

(a) a former case manager by the name of Kevin (last name unknown);

(b) Ms or Mr Windy, another former case manager;

(c) Dr Louise Buckle, a medical practitioner in the employ of St Vincent's Hospital; and

(d) his brother, who was not a medical practitioner, but was said by the plaintiff to hold academic qualifications in the field relating to medical science. His brother lived in China.

43 The plaintiff did not call his brother or make any arrangements for him to attend from China. He made no steps to procure the attendance of the two case managers whom he wished to call. He had not made arrangements to subpoena any of the above witnesses. He informed the Court that he had discussions with 'Kevin' and Ms Windy, neither of whom were willing to appear without subpoena.

44 The defendants' solicitors undertook to contact Dr Buckle to enquire of her as to whether she would be willing to attend Court without a subpoena. Dr Buckle was not so willing and the Court and the plaintiff were relevantly informed. The plaintiff informed the Court that he did not wish to compel Dr Buckle to attend the Court 'against his (sic) will'.

45 The plaintiff did not adduce any evidence with respect to his economic loss save to assert that his damages were in the vicinity of billions of dollars, possibly trillions. He did not adduce evidence of any certificate under the Wrongs Act 1958 with respect to general damages.

46 The plaintiff sought an adjournment of the trial for the purposes of endeavouring to call an expert witness. The trial judge refused that application. He said that:

(1) The plaintiff's claim had been commenced on 30 January 2012.

(2) The proceeding had been subject to the supervision of a judge in charge of the Medical List who had made orders for the preparation of the plaintiff's case in a particular way in order to get it ready for trial.

(3) The plaintiff informed the trial judge he had spent 10 years trying to find an expert to comment on the conduct of the defendants and had not found anyone.

(4) An application to adjourn the proceedings in the hope that he would find an expert seemed to be futile.

47 The plaintiff continued to contend that he ought be granted an adjournment to endeavour to find an expert. The plaintiff demanded that the defendants provide evidence to explain the treatment provided to the plaintiff.

48 The trial judge requested the plaintiff to identify any documents he wished to tender and the basis of such tender. The plaintiff did not directly respond to this enquiry. The trial judge determined that the plaintiff had closed his case.

49 Counsel for the defendants then indicated that they would make a no case submission if they were not put to their election to call evidence. The trial judge did not then put the defendants to an election as to whether they would call evidence. Accordingly, a no case submission was made by the defendants. It was accepted by the Court.

50 The trial judge concluded his reasons as follows:

The only evidence which the plaintiff has adduced is his own evidence. He has done no more than assert that the diagnoses were wrong. That is the highest that he can put his case. In reality, it amounts to no case at all. It is not evidence upon which I could possibly find for the plaintiff. Therefore, I propose to uphold the submission, and to enter judgment for the defendants against the plaintiff.[7]

51 The Court dismissed the claim and entered judgment for the defendants.

Ground 1 - Failure to permit plaintiff to make an opening statement

52 The first ground alleges that the trial judge did not permit the plaintiff to make an opening statement. In fact, the trial judge did invite the plaintiff to make an opening statement at the beginning of the hearing. He said:

I'm going to explain a few things to you, Mr Zhong, you've probably heard this from Judge Saccardo but I want to make it absolutely clear to you what is going to happen today and for as many days as this trial will take. This is your trial, it's the final hearing. I will expect from you an outline of what your case is and an explanation of the witnesses you propose to call. I will expect the same from Dr Halley. Once your case commences, you'll have to call your evidence. Of course that will include yourself and whatever other evidence you intend to call to prove your case.

After some discussion with counsel for the defendants, the trial judge invited the plaintiff to commence his opening address. Thereupon, the transcript records the plaintiff describing to the judge what his case was. The description runs to over 14 pages of transcript. The plaintiff provided a chronology of the orders which had been made against him since January 2004. He described to the Court why it was that the orders had no basis. He disavowed the proposition that he was suffering from any mental illness. He said that there was no history in his family of mental illness. He explained what he described on the appeal as a matter of 'logical deduction'. Having stopped taking the medication which had been prescribed, he began to recover; his working ability greatly improved. After speaking without interruption, he summarised his case as follows:

In this case, I think the first the most I want to prove whether or not I have mental illness and then the other, okay? And get back to the idea it's set from the whole case from 2004 to 2011, that's seven years, continue to argue and debate with the doctor and the psychiatrist of Royal Melbourne Hospital and St Vincent's Hospital and Mental Health Board. I, myself, indeed no qualification to draw any opinion but I submitted them now it's the (indistinct), I don't need to take any medication getting better and better.

There are (indistinct) fact of truth also there's strong evidence to prove that I have no mental illness, thank you.

Thereupon, the trial judge entered into dialogue with the plaintiff with a view to clarifying aspects of the opening. When considered in its entirety, the transcript reveals that the plaintiff had a degree of insight into what was required of him in his opening statement.[8]

53 During submissions on appeal, the plaintiff said that, in his opinion, he had told the trial judge what his case was.

55 At the hearing of the appeal, the plaintiff gave three particulars which, he said, demonstrated that the trial judge might not have brought an impartial and unprejudiced mind to the determination of his claim. The trial judge:

(b) did not compel the defendants to bring forward their witnesses so that the plaintiff could cross-examine them; and

(c) did not himself compel the presence of an expert witness.

56 The plaintiff's first complaint was that the trial judge did not permit him an adjournment after he had finished giving his evidence. As indicated above, he sought that adjournment in order to find an expert witness. In our opinion, the refusal by the trial judge to grant him that adjournment does not suggest that the judge might not have brought an impartial and unprejudiced mind to the determination of his claim. There is no need to repeat all the assistance provided by the Court to the plaintiff during the various directions hearings. He had been told repeatedly, in directions hearings over several years, of the desirability of expert evidence in circumstances in which the judgment of professional persons was said to involve want of proper care. Given his concession that he had been unable to find such an expert for 10 years, the judge was entitled to reject the application for an adjournment on the ground that it would have been futile to grant it.

57 The plaintiff submitted on the appeal that it was not until after he disclosed, in cross-examination, a secret method he claimed recently to have discovered for proving the presence of poison in his food and water that he was in a position to engage an expert. The plaintiff did not explain why a potential expert could not have been told of the secret method, but it appeared that he had in mind that the expert would be asked to confirm his 'logical deduction'. But even if expert evidence could not have been sought for that purpose, it could still have been sought as to the plaintiff's mental health at the time of the making of the relevant orders, without disclosing the information in question. This consideration therefore has no bearing on the refusal of the adjournment.

58 The plaintiff's next complaint related to Dr Louise Buckle. She had provided a report on the plaintiff dated 18 August 2011 which, it seems, had been admitted into evidence. That report commences with the following statement:

Mr Zhong has a history of Paranoid Schizophrenia dating back to 1990. He was formally diagnosed in 2003. He has a consistently held a delusional belief of persecution from the chinese government. He has at times believed that he is being poisoned for his political activities.

The report then contained a chronology of orders made under the Act together with comments drawn from his file. For example, it includes the following:

23 July 2011 Readmitted to St Vincents Psychiatric Unit, recommended and non compliant with medication. Discharged 29.07.11 to St Vincents CMHS. He remains delusional in his beliefs re poisoning of tap water. He has no insight into his illness and is currently compliant with oral medication. He is friendly and cooperative and physically well.

He remains at risk of stopping his medication and becoming increasingly psychotic. He requires consistant (sic) monitoring of medication which is currently Risperidone 2mgm tablet nocte.

59 As indicated above,[9] the plaintiff did not subpoena the attendance of Dr Buckle and, when the defendants indicated that she was not prepared to attend unless compelled to do so, the plaintiff withdrew his request that she attend.

60 The fact that the judge did not compel the defendants to bring forward their witnesses and did not himself compel the presence of an expert witness would not suggest to a fair minded observer that the judge might not be bringing an impartial and unprejudiced mind to the determination of the plaintiff's claim. The plaintiff had been told repeatedly by Judge Saccardo that the onus was upon him to prove his case and that there was no onus upon the defendants to prove anything. We have already explained why the judge was entitled to refuse the adjournment so that the plaintiff could secure the services of an expert witness.

61 It is necessary to recall all the steps taken by the Court before the commencement of the trial to ensure that the plaintiff understood his responsibilities. Further, during the conduct of the trial the judge said:

I've tried, and I'll do it once more. I said I wouldn't say any more, but I'm going to say this to you. Anyone who brings a civil case - anyone - must prove their case. It doesn't matter what the other side have done, you must prove that what the other side did was wrong. And it's for you to give evidence and for you to call witnesses in order to persuade me that what they did was wrong. It's not for the defendants to prove that what they did was right. That's not the way our system works, nor is it the way our system has ever worked. You bring the case, you must prove it. That's how our system works.[10]

62 The plaintiff himself acknowledged that he understood that it was his duty to adduce the evidence. The transcript contains the following:

HIS HONOUR: Judge Saccardo told you if you're going to - tell me if you understand this, but to prove your case, to win your case you'd need to call expert evidence, he told you that on a number of occasions?

MR ZHONG: Not number of occasions, in my recollection it's the last hearing, 29 July, that's the last hearing, he particularly emphasis the qualification of the joining opinion.

HIS HONOUR: You understood that coming to court?

MR ZHONG: I understood from what he told me and then this result and I wrote the last affidavit, it's affidavit of qualifications.

HIS HONOUR: You understand the other issue that you needed to get a significant injury certificate, so a report from a doctor saying you've got a significant injury to get pain and suffering damages, you understand that?

MR ZHONG: I understood what Judge Saccardo has said and he actually on different occasions already said that. If you want to claim injury, damages, well, by law, in the civil matter, you have to obtain expert assessment and provide the serious injuries and damages from the expert. That's what he said. And I also (indistinct) this application for waiver this assessment because I thought it's not realistic and also not necessary because this case, the true nature, it's criminal. I do not need to actually as a required expert assessment for the injury.

HIS HONOUR: But you understood what Judge Saccardo told you?

MR ZHONG: I understood completely what he said and the laws he applied for this, yes, I did.

HIS HONOUR: And you came here this week knowing to prove your case you would need expert evidence?

MR ZHONG: Yes, he said that and I did understand what he said.

HIS HONOUR: And you still understand that now?

MR ZHONG: I still understand, yeah. That's all I have, Your Honour.

63 The plaintiff had not only been unable to find an expert witness; he also said that he did not need one. He said that he did not need an expert as his case depended upon his logical deduction. When it was pointed out to him that he had not proven his case he said '[b]ut according to my view, I already strongly proven my view according to the fact of truth, not according to experts' opinion'. The trial judge said:

... 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?

The plaintiff told the judge that he 'understood completely' and the matter was adjourned until the following morning.

64 The trial judge was perfectly entitled to treat the plaintiff's case as having been closed when he was unable to call any further witnesses.

65 In treating the plaintiff's case as having been closed and in permitting the defendants to make a no case submission, the trial judge was exercising discretions that were available to him as part of the proper management of the case. As the description of the pre-trial directions hearings and of the course of the trial reveal, he was entitled to take the course that he did. No error has been shown. There is no basis for the contention that a fair minded observer might reasonably apprehend that it was possible that the judge might not bring an impartial and unprejudiced mind to the determination of the plaintiff's claim.

Ground 3 - Failure to give a fair trial or give the plaintiff procedural fairness: unrepresented litigant

66 The final ground of appeal was that the trial judge had failed to give the plaintiff procedural fairness. The first particular was that he had not given due assistance to the plaintiff who was not legally represented. The other three particulars have already been dealt with.

67 In Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq),[11] Osborn JA outlined the principles that describe the duty of the Court to give reasonable advice and assistance to an unrepresented party. He said:

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.

Nevertheless in Neil v Nott the High Court recognised 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 obfuscated by their own advocacy.

To similar effect Kirby P (with whom Sheller JA agreed) observed in Edwards v Allmen Engineering Pty Ltd:

Concealed in the lay rhetoric and inefficient presentation may be a just a case.

The requirements of procedural fairness are inherently flexible and must respond to the circumstances of the particular case. It follows that the need to explain evidentiary rules and principles to a party in a particular case will depend upon the nature of that case and the course of the hearing.[13]

68 In Tomasevic v Travaglini,[14] Bell J discussed the limits to the involvement of judges in the conduct of a case by an unrepresented litigant:

Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.

The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.

The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant.[15]

69 Enough has already been said to demonstrate that every effort was made both during pre-trial directions and during the trial itself to ensure that the plaintiff understood what he had to do to prove his case. He was told where the onus lay; he was told of his need to call witnesses; he was told of the high desirability that he call expert witnesses; he was told that his was a civil case and not a criminal case; and, he was told that, even if he could prove negligence on the part of the defendants, he would separately have to prove that he had suffered financial loss. He was told that, unless he got a certificate under the Wrongs Act 1958, he would be confined to a claim for economic loss.

70 Moreover, directions had been made to ensure that, before the commencement of the trial, he was given every opportunity to understand the case that would be put against him.[16]

71 During the trial, the plaintiff relied upon his own evidence from which he believed a 'logical deduction' could be drawn to the effect that he had never been mentally ill. Even during the appeal, he was insisting upon that logical deduction.

73 The defendants in their written submissions quite properly raised two issues that were not the subject of the grounds of appeal. We wish to say something briefly about each of those matters.

74 First, the Court's attention was drawn to the possibility that the plaintiff's claim might appropriately be characterised as based in part on the tort of false imprisonment. If so, it was submitted that the proceeding ought to be remitted for retrial to allow the defendants to call evidence to deal with that aspect of the claim. The basis for this submission was that the defendants bore the onus of demonstrating the lawfulness of the detention of the plaintiff and wished to call evidence for that purpose.

75 The defendants are correct to submit that, to the extent that the plaintiff's case was based upon false imprisonment, the burden of justifying the detention of the plaintiff rested upon them.[17] However, while it is true that evidence of the lawfulness of the detention was not placed before the trial judge, in the sense that the involuntary treatment orders made under s 12 or s 12AA of the Act were not put in evidence, the making of those orders was nonetheless an agreed fact both on the pleadings and in the proceeding before the trial judge. The real issue was whether or not those orders were lawfully made. On that issue, the plaintiff bore the burden of proof.[18]

76 There is, therefore, much to be said for the view that it would have been open to the trial judge to uphold the no case submission made by the defendants, even if he had characterised the plaintiff's claim as relying in part on the tort of false imprisonment. That is because, there having been orders made which prima facie afforded a lawful basis for the plaintiff's detention, the plaintiff advanced no plausible basis for challenging the lawfulness of those orders. As has been explained, the evidence upon which he relied went only to his current condition. It did not provide a basis for undermining the foundations upon which the involuntary treatment orders were made.

77 In the circumstances, and given that this issue was not the subject of any ground of appeal, the interests of justice do not call for the remittal of the matter to the trial judge, and would not do so even if this Court were of the opinion that the plaintiff's claims relied in part upon the tort of false imprisonment. It is, therefore, not necessary to examine the way in which the plaintiff put his case to determine if it included a claim for false imprisonment.

78 The second issue which was raised by the defendants concerned the power of the trial judge to refer to the Victorian Civil and Administrative Tribunal ('VCAT') the issue whether the plaintiff may need to have a guardian or administrator appointed under the Guardianship and Administration Act 1986.[19] The defendants accepted that, if the Court were of the view that such a referral ought to have been made, then the matter proceeded in circumstances in which the plaintiff may have been denied procedural fairness. The defendants further submitted, however, that even if the plaintiff was denied procedural fairness by not having a litigation guardian appointed, any further trial would be futile.

79 A guardianship order may be made if a person with a disability is unable, by reason of the disability, to make reasonable judgments in respect of all or any of the matters relating to his or her person or circumstances.[20] An administration order may be made if a person with a disability is unable, by reason of the disability, to make reasonable judgments in respect of the matters relating to all or any part of his or her estate.[21] Appointment of a guardian or administrator would have enabled the proceeding to be conducted on behalf of the plaintiff by that person as a litigation guardian.[22]

80 Section 66 of the Guardianship and Administration Act 1986 empowers a court to refer the issue to VCAT for determination if the court 'considers that a party may need' the appointment of a guardian or administrator. It may be inferred that the trial judge did not consider that such an appointment may be needed. It was, of course, the plaintiff's central contention that he was not under any disability. There is nothing in the material that suggests that this constituted a denial of procedural fairness or any appealable error. Over three days, the judge saw the plaintiff conduct his case and give evidence. The plaintiff appeared in this Court to understand the task involved in trying to prove his case, and also to understand the issues arising on the appeal. While the way in which he sought to prove his case at trial was ill-advised, in so far as he sought to rely on his own evidence as to his mental health rather than that of any expert, of itself that does not suggest that he lacked the ability to make reasonable judgments about the litigation. To the contrary, the plaintiff had sought a suitable expert over many years. It could well be said that, since the plaintiff still wished to pursue his case despite failing to locate an available expert, he was left with little alternative than to rely substantially on his own evidence. Equally, the plaintiff's failure to produce evidence of economic loss, or to produce a significant injury certificate, does not bespeak an inability to make reasonable judgments, as distinct from a simple lack of the necessary supporting evidence.

81 Accordingly if, as appears to be the case, the trial judge did not consider that the plaintiff may need a litigation guardian, no sufficient basis appears for casting doubt on that conclusion. Even had he thought that a litigation guardian may be needed, it would also have been understandable if he had decided in the circumstances to exercise his discretion not to refer the matter to VCAT. The gaps in the evidence were so substantial that there is no reason to suppose that appointment of a litigation guardian could have made any difference. The fundamental obstacle to the successful prosecution of the case would have remained, namely its insufficient evidentiary foundation.

82 For these reasons, the approach taken to this issue by the trial judge does not call for any interference by this Court with the orders under appeal.

[1] It will be observed that the plaintiff had based his grounds of appeal on the grounds of appeal which were advanced and, then, considered by the Court in McWhinney v Melbourne Health [2011] VSCA 22; (2011) 31 VR 285. However, during the hearing of the appeal it became apparent that those grounds of appeal were not particularly germane to his complaints.

[2] The procedural history is taken from the Summary for the Court of Appeal dated 16 February 2015, prepared by the respondents to the appeal.

[3] Zhong v Royal Melbourne Hospital & Ors [2013] VSCA 220 (Hansen and Tate JJA).

[4] Zhong v Melbourne Health & Anor (Ruling) [2014] VCC 1261 ('Reasons').

[8] The transcript records approximately 14 pages without interruption and then several further pages in which the judge speaks to him in order to clarify certain aspects of his case.

[10] It is true that under s 65M of the Civil Procedure Act 2010 provision is made for a court-appointed expert. However, none of the procedures in the Civil Procedure Act 2010 had been followed. Moreover, the plaintiff had been told by Judge Saccardo, in terms of unmistakable clarity, that the plaintiff had the responsibility to call expert evidence.

[11] [2014] VSCA 193; (2014) 313 ALR 383.

[12] Osborn JA was quoting from Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, Samuels JA, 16 June 1986) 27 which was quoted with approval in Minogue v HREOC [1999] FCA 85; (1999) 84 FCR 438, 446 [28].

[13] [2014] VSCA 193; (2014) 313 ALR 383, 389-90 [22]-[27] (citations omitted). In Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70, the Court referred to (at [77]): 'an obligation [counsel] owed to assist the Court to discharge its duties to an unrepresented litigant , namely "to draw attention to matters that might reasonably bear upon the Court's decision which, in a case where all the parties were represented, could be expected to be referred to by the opposing practitioners"'; Noone v Operation Smile (Australia) Inc (No 2) [2011] VSC 153, [14].

[14] [2007] VSC 337; (2007) 17 VR 100.

[17] Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612, 650-51 [140]-[141] (Kirby J); Carnegie v Victoria (Unreported, Supreme Court of Victoria (Full Court), 14 September 1989) 18-20 (Crockett, O'Bryan and Gray JJ).

[18] See Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 356-57 [1154]-[1157] (O'Loughlin J); see also Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 606-7 (Mason CJ, Deane and Dawson JJ); Ward v Murphy [1937] NSWStRp 55; (1937) 38 SR (NSW) 85, 96-7 (Davidson J). This is not a case where the defendants sought to rely only on a presumption that the detention must have had a lawful basis: Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497, 512-13 (Kirby P).

[19] Guardianship and Administration Act 1986 s 66.

[20] Ibid ss 22 and 33.

[21] Ibid ss 46 and 60.

[22] County Court Civil Procedure Rules 2008 O 15.