Justice and the self-represented litigant

  • 31 Oct 2016
Key Points
  • At first instance, the applicant was self-represented during the course of the hearing, which went over for nine days. The trial judge assisted the applicant in his evidence in chief and in cross-examining witnesses.
  • This case highlights the difficulty for a self-represented litigant in conducting litigation, more specifically a professional negligence claim. It’s a reminder of the Court’s dilemma in striking a balance between adequate assistance to self-represented litigants, maintaining impartiality and ensuring a fair trial.

The Victorian Court of Appeal in Redzepovic dismissed the applicant’s appeal against a trial judge’s finding in favour of the respondent.  The facts of this case are unremarkable however, are worth noting in relation to issues which arise with self-represented litigants.

Redzepovic concerned treatment of a lump on the applicant’s left parotid gland in April 2009. The applicant consulted ENT surgeon Dr Chan at Western Health about a lump on his left cheek.  Dr Chan recommended a needle aspiration of the lump for cytology and a facial CT scan.  Both investigations returned were inconclusive as to the nature of the lump.  A decision was made and the applicant underwent a parotidectomy in April 2009. Histology of the lesion revealed no evidence of malignancy.

At first instance, the applicant alleged the respondent failed to warn him that there was no urgency in removal of left parotid gland, failed to warn him of risks of the surgery and performed unnecessary surgery.  It was alleged that as a consequence, the plaintiff suffered ongoing pain, facial palsy, neuropathic pain and psychological sequelae. The trial judge rejected the plaintiff’s version of events as they were inconsistent with the clinical records and respondent’s evidence. The Court concluded that the applicant was advised of the risks of surgery and the parotidectomy was appropriate given the lack of an accurate diagnosis of the precise nature of lump. No breach of duty was established and the applicant failed to establish a causal nexus between the surgery and his neuropathic pain.

On appeal, the applicant not only appealed against the trial judge’s findings but he alleged that he wasn’t afforded a fair trial. The Court of Appeal noted the established principles governing the duty of a judge to provide adequate assistance to an unrepresented litigant to ensure a fair trial. A trial will not be fair if a litigant suffers an additional disadvantage from exercising their right to appear in person. However, a judge cannot become the advocate of the self-represented litigant and must maintain the reality and appearance of judicial neutrality at all times to all parties. 

The Victorian Court of Appeal found that the applicant was given significant assistance in the presentation of his case and in questioning witnesses called on behalf of the respondent.  Interestingly in this case, a preliminary hearing took place before a judge to assist the applicant with how to present his case. The advice given by that judge was thorough, clear and comprehensive. The Court of Appeal noted that the assistance offset the disadvantage as a self-represented litigant lacking in any legal training.  The applicant’s appeal was dismissed.

Redzepovic highlights that self-represented litigants are an ongoing challenge to the Court and to the overriding purpose of civil litigation in facilitating just, cheap and quick resolution of real issues in the proceedings. The first instance hearing ran for nine days and the applicant’s evidence in chief was contained in 100 pages of transcript. This case also highlights the Court’s dilemma in assisting self-represented litigants without risking impartiality or the perception of it.

Post by Eliza ‘Ofa Finau and Karen Kumar 

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