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Doughty-Cowell v Kyriazis

Doughty-Cowell v Kyriazis

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Case Copied 29 August 2018 42 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0127

RHYS DOUGHTY-COWELL	Applicant
v
VASILIOS KYRIAZIS	First Respondent
and
COUNTY COURT OF VICTORIA	Second Respondent

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JUDGES:	MAXWELL P, BEACH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 August 2018
DATE OF JUDGMENT:	29 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 216
JUDGMENT APPEALED FROM:	[2017] VSC 646 (Bell J)

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ADMINISTRATIVE LAW – Judicial review – Procedural fairness – Hearing rule – Bias rule – Self-represented litigant – Appeal to County Court against summary conviction – Litigant disputed judge’s procedural ruling – Litigant refused to participate in hearing – Disrespectful and aggressive conduct – Whether judge obliged to provide additional assistance – Whether apprehended bias – No lack of procedural fairness – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C T Carr	Mr John Cain, Solicitor for Public Prosecutions
For the First Respondent	Mr M G R Gronow QC with Mr B Kennedy and Mr C Micallef	Victorian Bar Pro Bono Scheme
For the Second Respondent	No appearance

MAXWELL P
BEACH JA
NIALL JA:

Summary

Ensuring a fair hearing for an unrepresented litigant can present formidable difficulties for a court. Their needs, and their attitudes towards the court, vary across a wide spectrum. At one end of the spectrum, the litigant may be inarticulate, or anxious, or distressed, and in need of considerable assistance in order simply to understand the process in which he/she is involved. At the other end, there are litigants who are variously articulate, strong-minded, stubborn, dismissive of legal advice and, very often, unwilling to accept judicial authority.

The obligation of a court to ensure a fair hearing is undoubted. The content of that obligation varies, however, with the circumstances of the case and ― in this context ― according to the particular capabilities and attitudes of the self-represented litigant.

The first respondent, Mr Kyriazis, represented himself on his appeal to the County Court against his convictions on two minor traffic offences. His conduct soon revealed that he fell towards the articulate and assertive end of the spectrum. As will appear, he was ― in pre-hearing correspondence ― provocative and confrontational and, from the first moment of the hearing, refused to accept the judge’s ruling on the straightforward question of whether he could record the proceeding. As explained below, the judge ruled that Mr Kyriazis could make a sound recording but not a video recording. This should not have troubled Mr Kyriazis, as he did not have a video recorder with him.

The hearing which followed was remarkable for the level of hostility, anger and aggression directed by Mr Kyriazis (and some of his supporters) towards the Court. The judge for the most part remained calm and patient, although ― unsurprisingly ― he did occasionally raise his voice when requesting that Mr Kyriazis keep quiet.

As will appear, Mr Kyriazis at an early stage announced to the judge that he would not participate in his own County Court appeal. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSCA 216
Decision Date: 29 August 2018

CaseChat Overview and Summary

In the matter of Doughty-Cowell v Kyriazis, the appellant, Doughty-Cowell, sought judicial review of a decision by the respondent, Kyriazis, who was the County Court Judge, to summarily dismiss an appeal against a conviction. Doughty-Cowell, appearing in person, had been convicted in the Magistrates’ Court and subsequently appealed to the County Court. During the appeal, Doughty-Cowell exhibited disrespectful and aggressive conduct, refusing to participate in the hearing after the judge made procedural rulings that the appellant disputed. Doughty-Cowell further declined any assistance offered by the judge. The appellant contended that the judge should have provided additional assistance and that the judge exhibited apprehended bias, leading to a lack of procedural fairness.

The central legal issues before the court involved whether the judge was obliged to provide further assistance to Doughty-Cowell and whether the judge's conduct demonstrated apprehended bias, thereby affecting the fairness of the proceedings. The court examined the applicable principles of procedural fairness, particularly focusing on the hearing rule and the bias rule, and considered the specific circumstances of the case, including the appellant's self-represented status and disruptive behaviour.

The court held that the judge was not obliged to provide additional assistance beyond what was already offered, given the appellant's refusal to participate in the proceedings and their disrespectful conduct. The court further determined that there was no apprehended bias on the part of the judge, as the judge's conduct was appropriate and in accordance with the procedural fairness required in judicial review proceedings. The appellant's disruptive behaviour and refusal to engage constructively did not warrant further intervention or assistance from the judge. Consequently, the court found that there was no lack of procedural fairness in the proceedings.

The appeal was allowed, and the decision of the County Court was set aside. The matter was remitted to the County Court for a new hearing, with directions to ensure that Doughty-Cowell was given a fair opportunity to present their case. The court emphasized the importance of procedural fairness and the need for all parties to engage in the judicial process in a respectful and cooperative manner.

Orders