Charter of Human Rights and the Victorian unrepresented litigant

Clayton Utz’s Sally Shepherd has a good article about a recent decision of the Supreme Court of Victoria’s Justice Bell on judges’ duties to assist unrepresented litigants, and whether change is to be wrought on that front by the Charter of Human Rights and Responsibilities which will really start kicking next year. It is the right to a fair trial contained in the Charter which is relevant. The decision is Tomasevic v Travaglini [2007] VSC 337, and will no doubt be read carefully by VCAT members who are frequently faced with unrepresented litigants. The analysis of the decision is by reference to the disadvantage of the unrepresented party as against the represented party. I wonder what the duties would be where two unrepresented parties are jousting with one another. It was one of those rare victories for the unrepresented; Mr Tomasevic, an educated and intelligent layman, had the County Court’s decision overturned, in part because of a want of proper assistance by the County Court judge. Ms Shepherd’s summary of Justice Bell’s articulation of a trial judge’s duties to Mr Tomasevic is as follows:

‘In this particular case, … the [County Court] judge had an obligation to:

  • recognise Mr Tomasevic as someone who, as a self-represented litigant, was gravely disadvantaged
  • explain the procedures that would be followed in the hearing and determination of the application
  • explain the legal requirements that the applicant had to satisfy
  • encourage him to make submissions on relevant issues, but explain what was relevant
  • discourage him from making submissions on irrelevant issues, but explain what was irrelevant
  • ask appropriate questions to confirm he was fully putting forward the matters he wished to rely on, and ask for elaboration of any areas apparently not fully covered; and
  • before deciding the application, ask him if there was anything else that he wanted to add.’
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