By Stuart Eustice, Partner and Ashleigh Shankly, Lawyer

At Trial

At trial, Mr Turner was self-represented and assisted by a friend, Ms Berry. The trial Judge explained the applicant will need to give ‘all [his] evidence’ which will need to cover ‘all aspects’ of his case.

Turner proceeded to give his evidence, assisted by the trial Judge. Following cross-examination, an exchange took place between the trial Judge and the applicant during which he questioned when the two witnesses for the respondent were to be called. The trial Judge stated that he was uncertain whether there would be any evidence from the respondent but noted the applicant must finish his case before the respondent decided to call anyone.

In a further exchange, the applicant indicated that the remainder of his evidence ‘is in’ cross-examination. The trial Judge reminded the applicant that he could not ‘step into [his] shoes’ and it is his case to prove all elements and confirmed he had no further evidence to bring. The applicant stated that there was only one point left to ‘prove’ and that will be brought when he cross-examined the respondent’s witness.

The trial Judge asked whether he had closed his case and explained that if he responded ‘yes’, it was an indication that the evidence he called was sufficient to succeed in his case. The applicant agreed that he was ready to close his case.

The trial Judge then turned to the respondent, who proposed to make a ‘no case submission’. In response, the applicant stated he was waiting for the cross-examination, saying that he did not ‘understand the law’ the way the respondent and trial Judge did.

The trial Judge accepted the no case submission and gave judgment for the respondent. In his reasons, he noted the applicant had failed to lead evidence establishing causation.

The Appeal

Mr Turner sought leave to appeal on the grounds that the trial Judge had failed to provide the degree of assistance required to ensure procedural fairness. It was argued that the applicant was confused about court procedures and was unaware that the respondent might not present a witness. He only realised this possibility when the no-case submission was made.

It was acknowledged that the trial Judge had offered assistance but stated that critical judicial guidance was missing. Specifically, it was noted that the absence of expert evidence regarding causation should have been raised by the trial Judge.

The court accepted that the trial Judge was courteous, patient and provided extensive assistance to the applicant. However, it considered the critical issue was whether this assistance was sufficient given the persistent statements made by the applicant regarding cross-examination.

It was agreed that while there are limits to how many times a Judge should be expected to correct a misconception, it was apparent that the applicant continued to be under his misconception despite being told it was uncertain whether the respondent would call any witnesses. It was considered that the trial Judge’s statement that he needs to ‘prove his case’ was insufficient to dispel the applicant’s misconception that he could rely on cross-examining the respondent’s witnesses.

It was determined that the possibility of a no case submission did not need to be expressly addressed in openings. However, some of the procedural difficulties might have been avoided if a clearer explanation was given regarding how the respondent’s case would proceed.

The court further considered whether the trial Judge should have considered section 51(2) of the Wrongs Act 1958 (Vic) (General Principles relating to establishing causation) or alerted the applicant to its availability. The Court of Appeal did not determine whether the argument would succeed, but it noted that the obligation to give notice regarding reliance on section 51(2) would not necessarily extend to a self-represented litigant. While placing such a burden on a Judge might seem excessive, the applicant in this case was self-represented, and this statutory provision may have significantly affected the success of the respondent’s no case submission, and possibly the final outcome.

The Court of Appeal granted leave to appeal, and the order dismissing the proceeding was set aside. The matter was remitted to the County Court for a further hearing.