Burnett v FitzGerald and Browne
[2017] TASSC 31
•11 May 2017
[2017] TASSC 31
COURT: SUPREME COURT OF TASMANIA
CITATION: Burnett v FitzGerald and Browne [2017] TASSC 31
PARTIES: BURNETT,
v
FITZGERALD and BROWNE
FILE NO: 1574/2016
DELIVERED ON: 11 May 2017
DELIVERED AT: Burnie
HEARING DATES: 9 August 2016 and 10 March 2017
JUDGMENT OF: Brett J
CATCHWORDS:
Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Time for appeal – Extension of time – Adequate explanation for delay.
Holmes v Neilson [1979] Tas R 89; Palatan Investments Ltd v Burt and Sinfield Ltd [1985] 1 WLR 942; 2 All ER 517; Gallo v Dawson (1990) 93 ALR 479; Jackamarra v Krakouer (1998) 195 CLR 516; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337; Fox v Percy [2003] HCA 22, 214 CLR 118; Tomko v Palasty (No 2) [2007] NSWCA 369; Michael Wilson & Partners Ltd v Nichols [2011] HCA 48, 244 CLR 427; Hamod v New South Wales [2011] NSWCA 375; SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146, 216 FCR 445; Allianz Australia Insurance Limited v Mercer [2016] TASFC 2; Robinson Helicopter Company Inc v McDermott [2016] HCA 22, 331 ALR 550; AMF15vMinister for Immigration and Border Protection [2016] FCAFC 68, 338 ALR 501, cited.
Aust Dig Appeal and New Trial [387]
Evidence – Admissibility – Exclusions: privileges – Client legal privilege – Loss of privilege – Issue waiver.
Mann v Carnell [1999] HCA 66, 201 CLR 1; Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86, 151 FCR 341, 229 ALR 304, cited.
Aust Dig Evidence [1182]
REPRESENTATION:
Counsel:
Applicant: In person
Respondent: Roland Browne
Solicitors:
Respondent: FitzGerald and Browne
Judgment Number: [2017] TASSC 31
Number of paragraphs: 48
Serial No 31/2011
File No 1574/2016
GAIL BURNETT v FITZGERALD AND BROWNE
REASONS FOR JUDGMENT BRETT J
11 May 2017
Mrs Burnett has applied for an extension of time to appeal to the Full Court against three orders made by Pearce J, and for a stay of one of those orders, relating to costs, pending the outcome of the appeal.
A summary of the history of this litigation prior to the impugned orders, is set out in [2] of his Honour's reasons for judgment on 30 October 2015: Burnett v FitzGerald and Browne [2015] TASSC 51:
"On 20 November 2014 a magistrate, Mr S Mollard, ordered judgment against the applicant, Gail Burnett, for the respondents in a minor civil claim. The respondents are legal practitioners. They brought a claim against the applicant in the Magistrates Court Civil Division for $4,559.42 for unpaid professional costs and disbursements. After a hearing, the magistrate ordered judgment for the full amount of the claim. He dismissed the applicant's counterclaim for return of $1,500 she had paid to the respondents' trust account. On 8 December 2014 the magistrate made a costs order in favour of the respondents. The applicant appealed the magistrate's decisions. She filed a notice of appeal on 15 December 2014. The appeal was set down for hearing on 30 July 2015 before Porter J. On 29 July 2015, the day before the hearing of the appeal, a solicitor then acting for the applicant filed a notice in these terms:
'TAKE NOTICE that the Appellant wholly discontinues this appeal'."
By virtue of the provisions of r 675(3) of the Supreme Court Rules 2000, upon the filing and service of the said notice, the appeal was taken to be dismissed with costs.
The proceedings before Pearce J, in the course of which all of the impugned orders were made, concerned an application by the applicant to have the notice of discontinuance set aside and her appeal reinstated. The orders in question are as follows:
(a) On 5 October 2015, the applicant applied for an order that Pearce J disqualify himself from hearing the application. His Honour refused that application.
(b) On 30 October 2015, his Honour dismissed the application to set aside the notice of discontinuance and reinstate the appeal. That decision was made after a hearing. The result of the dismissal of the application was that the consequence brought about by the provisions of r 675, ie that the applicant's appeal against the orders of Magistrate Mollard was taken to be dismissed with costs, remained unchanged.
(c) On 4 December 2015, his Honour made an order dealing with costs. There were a number of components to this order that impacted on the applicant:
(i)By virtue of r 675, the effect of the notice of discontinuance required that the applicant pay the respondent's costs of the appeal. However, his Honour made a special costs order that from and including 30 July 2015, those costs be taxed on a solicitor/client basis. He declined to apply that order to the costs of the appeal up to and including 29 July 2015, which meant that costs for that period would be taxed on a party/party basis.
(ii)His Honour ordered that the applicant pay the respondent's costs of the application to set aside the notice of discontinuance, the application for disqualification, and any interlocutory proceedings in respect of that application, and that those costs be taxed on a solicitor/client basis.
(iii)His Honour ordered that the costs of subpoenaed witnesses be met by the respondent. However, the effect of that order was that such costs would be included in the taxed costs payable by the applicant and, accordingly, would be reimbursed by her to the respondent.
During the hearing of the substantive application, his Honour received evidence from the applicant by affidavit and oral testimony. He also received evidence by way of oral testimony from the solicitor and counsel whom the applicant had instructed in respect of the appeal. These lawyers, Mr O'Rafferty and Mr Fernandez (the lawyers), gave evidence to the effect that the applicant had instructed them to discontinue the appeal on the night before the appeal was due to be heard. These instructions followed their advice to her that her appeal was bound to fail. The said advice was, according to the lawyers, prompted by an allegation by the solicitor that during the course of a telephone conversation with the applicant shortly before, she had changed the factual basis of her instructions in a manner which was crucial to the prospects of success of the appeal. This was disputed by the applicant in her evidence before his Honour. She also gave a different version of her conversation with the lawyers, in the course of which they had said that she had instructed them to discontinue the appeal. Her version was that she had, despite undue pressure from the lawyers, resisted their advice to discontinue the appeal, and ultimately had only conceded that the appeal would be discontinued if the respondent agreed that there be no order as to costs. The lawyers claimed that the applicant had given them authority to discontinue the appeal without qualification. They had been instructed to attempt to obtain agreement from the respondent that there be no order as to costs, but if unable to obtain such agreement, the appeal was to be discontinued unconditionally. The lawyers claimed that they had advised the applicant as to the costs consequences prescribed by r 675.
In his published reasons for decision on the substantive application, his Honour preferred the evidence of the lawyers whenever it conflicted with the evidence of the applicant. He was satisfied "that the applicant made a voluntary and informed decision to instruct her solicitor to discontinue the appeal". His Honour found that, although it was clear that she did not want to discontinue the appeal, she was persuaded to accept the advice of the lawyers but not coerced by them, and that the final choice in respect of discontinuance was hers. On this basis, his Honour was satisfied that the discontinuance of the appeal was not a nullity, and that to the extent that the Court had an inherent jurisdiction to set aside the notice in the interests of justice, he was not satisfied, having regard to all the circumstances of the case, that that power should be exercised in favour of the applicant. Accordingly, he dismissed the application.
The applicant wishes to appeal against each of his Honour's orders noted above. By r 659, an appeal from a final judgment is to be instituted within 21 days after the date of refusal of an application, or if not from a final judgment, within 10 days thereof. By r 655, a final judgment includes any judgment by which the rights of the parties are finally concluded with respect to any matter in question in a proceeding, other than a decision on a matter of procedure. A judgment includes any decision, order or other determination. Having regard to these definitions, I am satisfied that the dismissal of the application on 30 October 2015 and the costs order on 4 December 2015 are final judgments. The refusal of the application for disqualification dealt with on 5 October 2015, is of itself, not a final judgment, but there is no reason why this determination cannot be a matter of complaint in respect of the ultimate decision on the application made on 30 October 2015, and hence included in the time limit relevant thereto. See Allianz Australia Insurance Limited v Mercer [2016] TASFC 2, per Porter J at [142]-[144]. Accordingly, the relevant time limit for institution of an appeal against each of the above orders expired as follows:
(a)With respect to the refusal of Pearce J to disqualify himself, and his decision to refuse the substantive application, on 21 November 2015.
(b)With respect to the costs orders made on 4 December 2015 and 31 December 2015 (see rr 19, 51).
The applicant did not institute an appeal against any of the said orders within the requisite time. However, on 7 June 2016, she filed two originating applications. The combined effect of those applications is to seek the following orders:
(a)That the time limited for the institution of an appeal from each order be extended until 30 September 2016.
(b)That the operation of the costs order made on 4 December 2015 be stayed until after the appeal from that order has been heard and determined.
Time to appeal – the law
The power to extend the time limited for commencing an appeal arises in the general power conferred by the Supreme Court Rules, r 52. That rule provides as follows:
"(1) The Court or a judge may extend or abridge the period for doing any act or taking any proceedings allowed or limited by these rules or by any order of the Court or a judge on any terms the Court or judge considers just.
(2) An extension of any period may be ordered although the application is made after the expiration of the period originally allowed or limited.
(3) The costs of an application and an order made under subrule (1) are to be borne by the applicant unless the Court or a judge otherwise orders."
It is well established that the discretion to grant an extension of time is unfettered, save that it must be exercised in the interests of justice. In Gallo v Dawson (1990) 93 ALR 479, a case which was concerned with the power to extend time to appeal, McHugh J said at [2]:
"The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VicRp 27; (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200, at p 201."
In cases which relate to an application for leave to appeal out of time, it is generally accepted that there are four matters to be taken into account:
(a)the length of the delay;
(b)the reason for the delay;
(c)whether the appellant has a fairly arguable case; and
(d)the extent of any prejudice suffered by the respondent if the application is granted.
See Jackamarra v Krakouer (1998) 195 CLR 516 per Brennan CJ and McHugh J at 520-521, referring to a judgment of the English Court of Appeal in Palatan Investments Ltd v Burt and Sinfield Ltd [1985] 1 WLR 942 at 946; 2 All ER 517 at 520; Tomko v Palasty (No 2) [2007] NSWCA 369.
It is clear also from the cases cited that in the exercise of the discretion, no one factor will be determinative and the weight to be attributed to each factor will depend on the circumstances of the case. A reasonable explanation of delay, or the demonstration of substantial merit may mean that less emphasis is placed on other factors. As Hodgson JA noted in Tomko v Palasty at [14]:
"In my opinion, there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable."
I am satisfied that these are the principles which are relevant to the consideration of these applications.
Delay
The delay by the applicant in filing documents indicating an intention to appeal, and seeking an extension of time, is considerable. As noted above, the substantive application had been determined on 30 October 2015 and the costs order made on 4 December 2015. The originating applications in the proceedings before me were filed on 7 June 2016. There had been no prior notification of an intention to institute an appeal from the relevant decisions. It follows that the effect of the application for extension of time is to seek to enlarge the time for instituting an appeal by many months.
The only explanation offered by the applicant for this delay is that she was awaiting receipt of a copy of documents which had been subpoenaed and produced to the Court at the hearing of the substantive application, as well as a transcript of the proceedings. The applicant asserts that she needed to look at these documents to identify error before commencing the appeal. The subpoenaed documents constituted Mr Fernandez's file in respect of the discontinued appeal. The documents were produced to Pearce J by a lawyer instructed by Mr Fernandez and Mr O'Rafferty at the commencement of the proceedings on 19 October 2015. Upon production, his Honour ordered that they be taken into the custody of the Court.
As I describe later in these reasons, the applicant was permitted to inspect the documents during the course of the hearing. However, it is not clear that she was permitted to take copies. The applicant claims that despite requesting the documents continuously since the conclusion of the hearing, she was not provided with them until 23 May 2016, which is two weeks before she filed the originating applications. In relation to the transcript, it is clear that the applicant had received an email copy at some stage, although I am uncertain as to when this occurred.
During the course of her evidence before me, the applicant was unable to specify or demonstrate any aspect of the information contained in the subpoenaed documents, or indeed the transcript, which has any specific bearing on the arguments which she wishes to advance on appeal. As will become apparent, much of her argument concerns an alleged denial of procedural fairness during the course of the hearing. This claim is not informed or dependent upon the contents of the subpoenaed documents. Taking the applicant's case at its most favourable, her argument would be that until she inspected the subpoenaed documents and the transcript, she was not in a position to determine their significance with respect to her complaints about the orders made by his Honour.
It became clear during the course of the applicant's evidence before me that, in the period between the making of the impugned orders and the filing of the originating applications, the applicant had either instituted or participated in a number of procedures related to the said orders. For example, on 4 February 2016, the applicant had sought an adjournment of the taxation of the bill of costs arising from the costs orders made by his Honour. Under cross-examination, she conceded that the stated basis of the adjournment was her intention to institute an appeal against the orders. She had also taken steps to transfer property to her son and daughter and had paid money into Court with respect to the taxed costs. On 27 May 2016, two days after receiving the Deputy Registrar's determination with respect to the taxation of costs, the applicant had lodged a notice of objection to the taxation.
All of this demonstrates that the applicant was contemplating an appeal as early as February 2016. It is also clear that the applicant was aware of the existence of time limits relating to the proposed appeal, and was active in litigation relating to the application of the orders. If she did not know what the precise time limits were, she was perfectly capable of discovering that information. In these circumstances, it is impossible for me to accept that her failure to institute an appeal before 7 June 2016 is explained by the fact that she was waiting to receive the subpoenaed documents and the transcript. The applicant was well able to articulate her complaints about the manner in which his Honour dealt with the various issues and her disagreement with those determinations, without reference to those documents. She was clearly dissatisfied with the decisions, and aware that a time limit applied. She had demonstrated in respect of other procedures a propensity to apply for legal relief if she thought that course appropriate. It may well be that reference to the documents may have been desired by her for the purpose of discovering new arguments or perfecting existing ones, but I doubt that this alone would have deterred the applicant from pursuing her legal entitlement to attack the orders.
In Gallo v Dawson, the applicant, who did not have legal representation, was seeking to enlarge the time for lodging the appeal from the permitted 21 days to more than 16 months. The applicant was aware of the existence of the time limit but sought to explain the delay by claiming that it was necessary to perform research with respect to the appeal. McHugh J noted that the applicant's affidavit suggested "that she made a conscious decision not to appeal until she had satisfied herself that she could succeed in an appeal". His Honour went on to say:
"I doubt that I would have considered the applicant's explanation for the delay to be a sufficient reason for enlarging the time for lodging her appeal from the 21 days required by the Rules to the more than 16 months which would be required if this application were to succeed, even if I had thought that the applicant had real prospects of succeeding in her proposed appeal. A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved."
These comments are apposite to the case before me. Despite being aware of the existence of a time limit and forming an early intention to appeal, the applicant delayed giving any legal notice of her intention to appeal for many months. The only reason advanced is the inability to secure in a timely way, a copy of the subpoenaed documents and the transcript, although the ultimate significance of that information with respect to her decision to appeal seems to be minimal. As already noted, I have difficulty accepting that the stated explanation accurately explains the delay, in any event.
It follows that I am not satisfied that the applicant has provided a satisfactory explanation for not instituting the appeals within the time provided by the Rules, nor the subsequent delay in seeking an extension of time. Of course, as I have noted above, an explanation for delay is only one factor to be taken into account in the determination of this application. The ultimate question is whether the interests of justice require the grant of the extension of time. However, as noted in Tomko v Palasty, the absence of a satisfactory explanation for delay means that a finding that the interests of justice require the grant of such an extension is heavily dependent on the merits of the proposed appeal. I will now consider that question.
An arguable case
In addition to the two originating applications, the applicant has also filed a draft notice of appeal and an affidavit. The affidavit was read into evidence notwithstanding that it was subject to a number of objections. Each document has obviously been prepared by the applicant. She is not legally trained and it is a fair characterisation of each document that it contains a relatively chaotic and rambling mixture of factual assertions and argument. The objections to the affidavit were largely based on the fact that the material subject to objection constituted a mixture of submission, opinion and otherwise inadmissible factual testimony. I dealt with those objections on the basis that I would attempt to distil relevant and admissible evidence from the affidavit and treat the balance of the material as submission.
Despite the nature of the material, it is possible to elicit from it and the applicant's oral arguments during the course of the hearing, the nature of her complaints, and the basis upon which she wishes to appeal from the said orders. I will identify the matters of complaint, as best as I am able, and discuss the merits of an appeal based on those matters of complaint, in the context of each of the impugned orders.
The application for disqualification
In her material before me, the applicant simply restates the bases of objection that she raised with Pearce J. In effect, as I understand her argument, she is simply contending that his Honour erred in refusing to disqualify himself having regard to the matters raised by her. These were:
(a)That Pearce J had had a professional relationship with Mr Browne prior to his Honour's appointment to the bench.
(b)That when he was a magistrate, Pearce J had conducted a coronial inquest into the death of the applicant's niece.
The applicant asserts the existence of actual and apprehended bias on the part of Pearce J. Pearce J rejected the claim of actual bias. In the proceedings before his Honour and the proceedings before me, no evidence has been adduced of the existence of actual bias on the part of Pearce J. Such an assertion has no merit.
In relation to the question of apprehended bias, his Honour again, correctly in my respectful view, enunciated the appropriate test, and referred to the authorities which establish and explain that test. The principles are referred to in those and many other cases dealing with this question, but are conveniently summarised in the decision of the plurality in Michael Wilson & Partners Ltd v Nichols [2011] HCA 48, 244 CLR 427 at 445 [63]:
"In Ebner v Official Trustee in Bankruptcy, the plurality pointed outthat application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to saythat '[t]he bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated'."
A pre-existing relationship between a judge and a litigant may, in appropriate circumstances, give rise to a legitimate apprehension of bias: see Holmes v Neilson [1979] Tas R 89, in which it was held that a magistrate ought to have disqualified himself because of a personal friendship with the defendant's father. However, such a claim based on a pre-existing relationship must involve an examination of "how it is said that the existence of the association or interest might be thought [by the reasonable observer] possibly to divert the judge from deciding the case on its merits". Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at 30. In his reasons for the decision not to disqualify himself, Pearce J set out in detail contact which he had had with Mr Browne on a professional basis during the course of his career, and asserted that he had no personal relationship with Mr Browne. In essence, apart from a limited number of professional dealings during the course of his Honour's career as a practitioner and a judicial officer, the only other contact was that they worked together in the same firm for a period of about one year between August 1987 and December 1988.
In respect of this contact, his Honour said the following in his ruling delivered on 5 October 2015 at [9]:
"The association with Mr Browne is limited to a brief period in common employment more than 25 years ago, and a sporadic professional association since then. Some professional association within the legal profession is inevitable: see Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215 at 230; Bienstein v Bienstein(2003) 195 ALR 225; McHugh, Kirby and Callinan JJ Ivory v Telstra Corp Ltd [2002] QCA 457. In this case, there has been no private or personal association at all, even on a social level, within the legal profession. There may be those who would consider that the legal profession is something of a professional club, likely to stick together. Such views are unfair, misconceived and uninformed. Fair-minded observers with an appreciation of the legal system understand that judges are expected to, and do, put aside personal associations when discharging professional responsibilities. Of course, there is always a level of association which may give rise to a reasonable apprehension of bias. This is not such a case. That is not only because the level of association is remote, but also because there is no connection between the association and the feared deviation from the required decision."
His Honour's determination about this question was patently correct. The applicant has not produced any evidence that challenges his Honour's factual assertions in respect of the history of his association with Mr Browne, nor has she identified, in any other way, how it is said that any contact between his Honour and Mr Browne in the past might be thought by a fair-minded and reasonable observer to divert his Honour from deciding the case other than on its legal and factual merits. In short, the applicant has not identified any error in his Honour's reasoning process or in his determination that there was no basis on which he ought to have disqualified himself. It follows that there is no merit in an appeal against this decision.
The dismissal of the application
The applicant's complaint about his Honour's determination on the substantive question seems to me to come down to the following:
(a)that she was denied procedural fairness during the hearing; and
(b)that his Honour was simply wrong to decide the matter in the way that he did.
I will deal with each in turn.
Denial of procedural fairness
Before I turn to consider the specific aspects of the applicant's complaint in respect of this question, it is desirable to consider the ambit of the duty of a court to provide procedural fairness to an unrepresented litigant. The principles applicable were summarised by the New South Wales Court of Appeal in Hamod v New South Wales [2011] NSWCA 375, cited with approval by the Full Court of the Federal Court of Australia in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146, 216 FCR 445, and more recently restated, in AMF15vMinister for Immigration and Border Protection [2016] FCAFC 68, 338 ALR 501 at [309]:
"Courts' duty to unrepresented litigants
309 Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:
A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'.
310 However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].
311 Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154.
312 Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v State of New South Wales (No 2) [2006] NSWSC 914.
313 The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:
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.
314 Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.
315 There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:
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: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.
316 The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness."
I will now consider the specific aspects of the applicant's complaint in respect of the question of procedural fairness:
(a)The applicant claims that she was disadvantaged in the hearing before his Honour because of health issues. She claims to have requested that the Court hearing be for no longer than half a day at a time because of these reasons, and asserts that his Honour denied that request and otherwise refused to accommodate her health problems.
As a result of the nature of the applicant's complaints about the manner in which his Honour conducted the hearing, I indicated to the parties at the conclusion of the hearing that it was my intention to obtain a transcript of the proceedings before his Honour on 19 and 20 October 2015 for the purpose of informing my consideration of the complaints raised by the applicant in relation to the question of procedural fairness. I have done so and reviewed the transcript. I can find no reference in the transcript to the applicant's health issues, nor any request for an abbreviated hearing having regard to those issues. It is apparent from the transcript that his Honour went to some trouble to explain the nature and procedures of the hearing to the applicant, to enquire at appropriate times if she required time to, for example, review documents, and otherwise gave her the capacity to enunciate any submission that she wished to make. The general tenor of the interaction between the judge and the applicant was such that I am satisfied that the applicant was aware that she was free to raise any specific difficulty with the judge and that any request would have been considered by his Honour on its merits.
I also reviewed the documentary evidence submitted to the Court. Exhibit A1 is a document entitled "Appellant's contentions of fact of law", the contents of which were verified by the applicant in her evidence. It was admitted and seems to have constituted part of the applicant's evidence-in-chief. The only reference I can find in that document to health difficulties is contained on page 2, where the applicant states:
"I have on file two medical letters which state under stressful situations I have difficulty concentrating due to anxiety and ……. my ability to breath is affected due to my lung condition.
I also suffer from PTSD and can't function/listen properly with anyone yelling at me."
In Exhibit A2, which is an undated letter to "The Hobart Registrar", the applicant states:
"I also notify the court that I will not be able to deal with subpoena along with hearing and costs application at the one time. I simply can't do it. It is not physically possible to stay in the court and concentrate for the required length of time."
Neither of these references contain a request to the Court to abbreviate or modify the normal hearing hours, nor do they reasonably suggest that that course is necessary. In my view, his Honour could not reasonably have been put on enquiry in relation to that issue, having regard to those references.
Further, there is simply no evidence available to me that would support the applicant's contention that she was somehow disadvantaged in conducting the hearing because of the need to remain in Court during normal Court hours. The transcript demonstrates that she was engaged and making submissions throughout the course of the hearing, and there is no manifestation of any significant difficulty in that regard.
There is no merit in this aspect of the applicant's complaint.
(b)The applicant asserts that she was prevented during the course of the hearing "from questioning subpoenaed witnesses". The subpoenaed witnesses were, of course, the two lawyers, Mr O'Rafferty and Mr Fernandez.
A review of the transcript reveals that there is no factual basis to this complaint. The applicant was permitted to and did cross-examine both witnesses extensively. It is certainly the case that, from time to time, his Honour did intervene in the cross-examination, but the purpose of such intervention, apparent from the transcript, was the clarification of a question, or to ensure that the questioning was proceeding in accordance with the rules of evidence. Towards the end of the cross-examination of each witness, his Honour does intervene in an apparent attempt to prevent the applicant from asking questions repetitively, particularly those that have already been answered, and to ensure that the cross-examination is in relation to matters of relevance. On a number of occasions, his Honour actually intervenes in a manner that assists the applicant with her cross-examination. At the conclusion of Mr O'Rafferty's cross-examination, the applicant indicates that she has no further questions to ask. At the conclusion of Mr Fernandez's evidence, his Honour says the following:
"HIS HONOUR: No, no. Look, Ms Burnett, to be fair to you I think that you have now covered all the matters that are relevant to this. I'm struggling to understand the point of any further cross-examination about the matters that you're raising with me. Unless there's something else in particular you want to ask about – and you can persuade me that it's relevant and worthy of being asked, then I'll think about it. So is there anything else that you wanted to go over?"
The applicant responds by saying that there is a lot more that she wants to ask but it quickly becomes apparent that her intention is to repeat questioning on matters that have already been dealt with during cross-examination.
His Honour's interventions in the cross-examination were appropriate. Much of the intervention actually involved assistance to the unrepresented litigant by bringing her back to points which were pertinent to the case she was presenting. His Honour had an overarching obligation to ensure a fair hearing for all parties, and to remain impartial, and to conduct the proceedings in an efficient and balanced manner. In my view, and with respect, his Honour conducted himself impeccably during the course of the cross-examination of each witness.
His Honour was entitled to exercise control over the questioning of the witnesses: Evidence Act 2001, s 26. By s 41 of the Evidence Act, his Honour was required to disallow questions put to a witness in cross-examination if he was of the opinion that the question:
(i) is misleading or confusing, or;
(ii) "is unduly … repetitive."
It is clear that when his Honour intervened to restrict questioning, he was doing so because he had formed the view that the question was repetitive, misleading, confusing or irrelevant. I can detect no error on his Honour's part in respect of the formation of that view from time to time. Having formed that opinion in respect of a particular question, his Honour was obliged to disallow the question.
There is no merit in this aspect of the applicant's complaint.
(c)The applicant complains that she was not given sufficient time to examine the subpoenaed documents. As noted above, the said documents were produced to and taken into the custody of the Court at the commencement of the proceedings on 19 October 2015. Shortly after their production, the applicant indicated that she had not seen the documents and would need time to inspect them. His Honour retired to provide the applicant with an opportunity to look through the documents. When the proceedings resumed, the applicant indicated that she had not had enough time to look through the file and was at a disadvantage because although she had requested the file before the proceedings, it had not been provided to her. His Honour retired again for the purpose of providing the applicant with a further opportunity for inspection of the documents. Upon resumption, he asked the applicant if she was "ready to proceed". The applicant responded in the affirmative.
His Honour subsequently permitted the respondent and the respondent's counsel to inspect the documents, and indicated that he would allow the applicant a further opportunity to inspect the documents if she so requested. It was made clear that the parties could not remove the documents from the custody of the Court and would need to inspect them in the presence of a court officer. At the end of the first day, the applicant again asked for time to inspect the documents. His Honour permitted inspection for a further period in the afternoon and indicated that further time would be made available for that purpose before court on the following morning. Thereafter, there is no suggestion from the applicant that she had not had enough time to inspect the documents and no further request from her for further time to do so.
It is clear that within the constraints afforded by the circumstances of the hearing, his Honour made appropriate arrangements for inspection of the documents. The cross-examination of the lawyers by the applicant confirms that she had inspected the file. The contents of some of the documents, in particular emails, were the subject of questioning, and were placed in evidence. The applicant was allowed time upon request and made no further request for an adjournment to inspect documents, nor complaint about not having had an adequate opportunity to do so during the course of the hearing. The applicant also complains that she was not told by the judge that she could ask for more time. However, it is apparent from the transcript that she was well aware of her right to raise any matter of concern and, as has been noted above, did on, at least, one occasion raise the concern that she required more time to inspect the file. When she did, she was provided with further time.
Finally, in the proceedings before me, the applicant does not identify any specific prejudice or concern arising from any asserted inadequacy of opportunity to inspect the file. She does not assert that she would have conducted the hearing differently if she had had a further opportunity to inspect the file.
I am unable to identify any error or potential miscarriage of justice arising from the learned primary judge's handling of the question of inspection of the subpoenaed documents. There is no merit in this aspect of the complaint.
(d)A further issue which arose at the hearing before Pearce J and about which the applicant now complains, concerns the question of the applicant's claim to legal professional privilege in respect of the subpoenaed documents. When the documents were produced, the applicant submitted that the effect of her application and the contents of her affidavit material in support of the application, gave rise only to a partial waiver of legal professional privilege in respect of her solicitor's file. In particular, she submitted that the waiver of privilege could only relate to communications directly relevant to the filing of the notice of discontinuance, that is, communications which occurred on 28 or 29 July 2015. She asserted her claim of privilege in respect of any communications between her lawyers and herself prior to those dates.
His Honour, after inspecting the documents, rejected this assertion. In an ex tempore decision given immediately after the argument, his Honour said:
"The appeal was listed for hearing on the following day. It was plain, to my mind, that by relying on her version of, in detail, of those conversations, as going to the issue of whether or not it may be just or appropriate to set aside the notice of discontinuance, Ms Burnett has waived privilege in respect of those conversations. She doesn't seek to contend to the contrary but says that the waiver of privilege is limited to the immediate contents of the solicitor's file and the counsel's file concerning those conversations on the 28th and the 29th of July 2015.
I don't accept that submission. In my view the content of those conversations and those instructions and the advice can only be understood in the context of the advice that she'd previously been given in respect of the merits of the appeal. It is appropriate, in those circumstances, for me to determine that privilege in solicitor's file and counsel's file has been waived and I will give, at this stage, leave to counsel for the respondents and his instructor to inspect those documents."
The applicant asserts that his Honour erred by failing to maintain her claim of privilege in respect of the preceding communications.
It is well established that legal professional privilege to which the client of a lawyer is entitled may be lost if that privilege has been waived by the client. Waiver may occur by implication if there is an inconsistency between the conduct of the client and the maintenance of the privilege. In Mann v Carnell [1999] HCA 66, 201 CLR 1, Gleeson CJ, Gaudron, Gummow and Callinan JJ said at 13:
"Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received." [Footnotes omitted.]
Cases which have considered the application of this principle, and, in particular, the determination of the existence of inconsistency, assess the implications of the conduct of the case by or behalf of the client, and, in particular, assertions made during the course of that case, and whether such assertions are inconsistent with the claim of privilege. In Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86, 151 FCR 341, 229 ALR 304, the Full Court of the Federal Court, after observing that the resolution of a claim of "issue waiver" will depend on the circumstances of each case, said:
"61 Both before and after Mann, the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence. In DSE at 519 [58], Allsop J put the matter somewhat more descriptively, saying waiver arises when 'the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication' (emphasis original)."
Although Pearce J did not, in his brief reasons, recite these principles, it is abundantly clear that he was aware of and applied them in arriving at his decision. Further, the conclusion which his Honour reached was, with respect, the only conclusion reasonably open to him in the circumstances of this case. His Honour was dealing with an application, instituted by the applicant, seeking to set aside the notice of discontinuance and reinstate the appeal, on the basis that her lawyers had acted contrary to her instructions by filing the notice of discontinuance, or alternatively, had overborne her will in respect of that question. This claim, which was denied by the lawyers, brought into scrutiny the communications between the applicant and her lawyers before, during and after the meeting on 28 July. It is sufficient to state only the basic circumstances to understand that it would have been impossible to properly consider the advice given and communications conducted in respect of the notice of discontinuance without understanding the advice, communications and instructions which had gone before. The decision to file a notice of discontinuance, in itself, represented a significant alteration in the path which the proceedings had taken to that point. As matters transpired, the lawyers claimed that the change in advice was necessitated by a change in underlying instructions on the part of the applicant. All of this meant that by asserting that the lawyers had acted contrary to her instructions on 28 July, she had necessarily laid "open to scrutiny" the whole of the communication between her lawyers and herself in respect of the appeal, and, accordingly, her conduct in instituting the application seeking to set aside the notice of discontinuance was inconsistent with her ongoing assertion to a claim of privilege in respect of the entire file.
In my view, his Honour could not have reasonably reached any other conclusion in respect of this question. There is no merit in the applicant's complaint about this aspect of the matter.
In any event, even if it was reasonably arguable that his Honour was incorrect in refusing to maintain the applicant's privilege in respect of earlier communications, it is difficult to see how this would have made any difference to his Honour's ultimate determination, unless those earlier communications were of relevance to the critical questions. As the case developed, and having regard to his Honour's final decision, it is clear that he did require an understanding of the earlier advice and consequent instructions which flowed between the lawyers and the applicant in order to properly understand the communications of 28 July. However, to the extent that such communications had no bearing on the final decision, an incorrect decision by his Honour in relation to a claim of privilege was inconsequential.
(e)There are a variety of other claims made by the applicant throughout her material which, upon a perusal of the transcript, have no foundation in fact and are clearly misconceived. These include claims such as:
(i) She was not allowed to question Mr Browne.
(ii) She was not represented and, therefore, there was no one able to question her or re-examine her.
(iii) Pearce J disposed of or otherwise dealt improperly with documents presented to him.
There is simply no evidence which would support any of these claims, and they do not provide the basis for an arguable case in respect of an appeal. There is certainly no evidence that his Honour improperly dealt with documents, and such claims, without the support of any cogent evidence, are preposterous. I have no doubt that the applicant did suffer disadvantage because she was not legally represented. There must always be an inherent disadvantage if someone chooses not to have, or is unable to afford legal representation. However, as noted earlier, the lack of legal representation is a common feature in litigation before the courts and does not necessarily lead to a conclusion that there has been a denial of procedural fairness. In my view, his Honour went to considerable and adequate lengths to ensure that the applicant was able to fairly present her case, and to ensure that any inherent disadvantage in the lack of representation did not affect her capacity to fairly and comprehensively present her case. For example, I have already noted that his Honour allowed considerable latitude to the applicant with respect to her cross-examination of the lawyers.
It is true that, during the course of the hearing, the applicant asked for but was denied an opportunity to cross-examine Mr Browne. The explanation for this, of course, was that Mr Browne did not give evidence in these proceedings and no affidavit by him was read to the Court. In any event, it is apparent from the transcript that his Honour did offer the applicant an opportunity to call Mr Browne as a witness. There was no objection to this course taken by counsel appearing for Mr Browne, who conceded that Mr Browne was "both competent and compellable". The opportunity offered to the applicant with respect to presenting evidence from Mr Browne was resolved in the following passage:
Transcript 20 October
"HIS HONOUR: Right, well, when I'm, I'll need to know about this now, Ms Burnett, I don't want to tell you what to do but you would need – yes, thank you, Mr Gunson - if you do intend to call Browne, you can do so but you're not entitled to test or challenge the evidence that you will give.
MS BURNETT: Right, well that's no good then, so I don't. No, that's okay. Thank you."
There is no merit in the applicant's complaint in respect of this aspect of the matter.
In conclusion, there is nothing contained in the material presented to me by the applicant which would support an arguable claim that she was denied procedural fairness in relation to these proceedings. There is no reasonable prospect that an appeal based on assertions of a lack of procedural fairness will succeed.
The merits of the decision
The applicant complains that Pearce J erred:
(a)by accepting the evidence of Mr O'Rafferty and Mr Fernandez in preference to her evidence;
(b)by finding that the applicant had "made a voluntary and informed decision to instruct a solicitor to discontinue the appeal";
(c)by concluding that the evidence of the taped telephone conversation between herself and Mr Browne was unlikely to be admissible on appeal because it was not fresh evidence, which involved a primary finding which rejected the applicant's evidence that she had forgotten about the taped telephone conversation during the course of the original hearing before the magistrate, because of the pressure she was under and her health difficulties.
There is no question that each of these findings was, if not crucial, then certainly of consequence to his Honour's ultimate determination of the application. However, at the outset, I would note that apart from a general assertion that his Honour was in error in arriving at these determinations, the applicant was not able to articulate any basis upon which it was said that his Honour had fallen into error in that regard. I am satisfied that the conclusions reached by Pearce J were open to him, having regard to the evidence before him, and that there is no arguable basis to a claim of error in respect of any of the said determinations.
The acceptance by his Honour of the evidence of Mr O'Rafferty and Mr Fernandez was significant in the context of his Honour's overall decision for two reasons. Firstly, having accepted that the applicant had provided instructions to her lawyers to file the notice of discontinuance, his Honour, correctly in my view, concluded that there was no basis to set aside the notice as a "nullity". Secondly, a finding that the applicant had made a free and informed decision to discontinue the appeal was relevant to the question as to whether the notice ought to have been set aside in the interests of justice, pursuant to this Court's inherent jurisdiction.
His Honour's acceptance of the lawyer's evidence is, in my view, unassailable on appeal. An appeal to the Full Court is by way of rehearing. The task of an appeal court in respect of findings of fact on an appeal of that nature, particularly those based on the acceptance or rejection of competing testimony, has been addressed by the High Court in a number of cases, including Fox v Percy [2003] HCA 22, 214 CLR 118 and Robinson Helicopter Company Inc v McDermott [2016] HCA 22, 331 ALR 550.
In Robinson Helicopter Company, the court, in its joint judgment, said, at [43]:
"A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'."
His Honour made detailed findings accepting the evidence of Mr Fernandez and Mr O'Rafferty in preference to the evidence of the applicant. He gave reasons for doing so. Those reasons were soundly based, and it could not be said that the evidence given by the lawyers was "glaringly improbable" or "contrary to compelling inferences". On the contrary, inferences available from other aspects of the evidence supported his Honour's conclusion that the evidence given by the lawyers accurately reflected the conversations between the applicant and the lawyers. His Honour's comments concerning matters which undermined the reliability of the applicant's evidence, including an observation that her "determination to vindicate her position has affected her insight into the issues in the case, and reduces my confidence in her ability to accurately recall and recount events" are entirely consistent with observations made by me during the course of these proceedings.
Having made these findings of fact, his Honour concluded that the applicant had "made a voluntary and informed decision to instruct her solicitor to discontinue the appeal". This disposed of the nullity point and was an important factor in respect of the question of whether the notice should be set aside under the Court's inherent jurisdiction. A further factor taken into account in relation to the latter question was his Honour's determination that the discontinued appeal would have had little merit in any event. His Honour noted the provisions of s 28(2)(b) of the Magistrates Court (Civil Division) Act 1992, and concluded that little was raised by the applicant which would attract a grant of leave, with the exception of the allegation of fresh evidence, in the form of the alleged recording of the conversation between the applicant and Mr Browne. That conversation, which the applicant asserted proved that her claim that Mr Browne had promised to do legal work for a fixed fee was correct, was provided to Pearce J. It is clear that he had doubts concerning its probative value. He noted in his decision that he had listened to the taped conversation and found it "ambiguous". However, his primary reason for finding that the taped conversation would not have assisted the applicant's appeal was that he concluded that the applicant was "unlikely to establish that the evidence of the taped phone conversation was admissible on appeal". In particular, his Honour did not consider that the conversation was "fresh evidence" because it was in the possession of the applicant during the course of the hearing before the magistrate, and his Honour rejected the applicant's evidence that she had forgotten to adduce the tape at the hearing, as incredible and unlikely to have been accepted by the appeal court. I do not intend to re-canvass his Honour's reasons for arriving at this conclusion other than to say that they are compelling, and nothing that has been put by the applicant to me reduces the force of his Honour's reasoning.
The applicant has not put anything else to me that would, even on a prima facie basis, suggest error on the part of the learned primary judge.
I conclude that there are no reasonable prospects of success of an appeal against his Honour's substantive determination.
The costs orders
The applicant has not identified any proposed ground of appeal or asserted any error concerning the exercise of his Honour's discretion with respect to the question of costs. I can detect no error on the face of his Honour's reasons. In my view, there is no merit in the proposed appeal against the costs orders.
Disposition
It follows from the foregoing reasons that my conclusion is that the applicant has not provided a satisfactory explanation for not instituting the appeals within the time limited by the Rules, nor has she demonstrated an arguable case with respect to the merits of the proposed appeal. The interests of justice do not require that the time for instituting the appeal be enlarged. Accordingly, I refuse the application for an extension of time. It follows that there is no basis for the application of a stay of execution of the costs orders. Each originating application filed by the applicant is dismissed.
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