Jeray v Blue Mountains City Council (No 2)
[2010] NSWCA 367
•10 December 2010
NEW SOUTH WALES COURT OF APPEAL
CITATION:
Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367
FILE NUMBER(S):
2009/298487
HEARING DATE(S):
10 December 2010
JUDGMENT DATE:
10 December 2010
EX TEMPORE DATE:
10 December 2010
PARTIES:
Ivan Jeray (Appellant)
Blue Mountains City Council (First Respondent)
Greg Egan (Second Respondent)
John Egan (Third Respondent)
JUDGMENT OF:
Allsop P Macfarlan JA Young JA
LOWER COURT JURISDICTION:
Land & Environment Court
LOWER COURT FILE NUMBER(S):
2008/40986
LOWER COURT JUDICIAL OFFICER:
Lloyd J
LOWER COURT DATE OF DECISION:
16 July 2009
COUNSEL:
I Jeray (In Person)
I Hemmings (First Respondent)
P Clay (Second and Third Respondents)
SOLICITORS:
Marsdens Law Group (First Respondent)
McIntosh McPhillamy & Co (Second and Third Respondents)
CATCHWORDS:
PRACTICE AND PROCEDURE - procedural fairness - whether the primary judge denied the appellant procedural fairness - primary judge dismissed appellant’s case for "implied discontinuance" by appellant - where appellant indicated he could not proceed after primary judge dismissed appellant's motion for the judge to recuse himself - consideration of duty of primary judge to unrepresented litigants to ensure litigant's proper understanding of proceedings and adequate opportunity to vindicate rights in court - duty to warn of consequences of dismissal and to ascertain whether intention to discontinue in circumstances.
LEGISLATION CITED:
Civil Procedure Act 2005 (NSW), s 91
Land and Environment Court Act 1979 (NSW), s 58
Uniform Civil Procedure Rules 2005, rr 12.1, 12.4, 12.7, 42.19
CATEGORY:
Principal judgment
CASES CITED:
Abram v Bank of New Zealand [1996] 18 ATPR 41-507
Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13
Tennero Limited v Arnold [2007] 1 WLR 1025
McPherson v R [1981] HCA 46; 147 CLR 512 Minogue v Human Rights and Opportunity Commission (1999) 84 FCR 483
Neil v Nott [1994] HCA 23; 121 ALR 148; 68 ALJR 509
TEXTS CITED:
DECISION:
The orders of the Court are:
Appeal allowed.
Set aside orders of the Land and Environment Court made on 16 July 2009, dismissing with costs proceeding 40986 of 2008.
Remit the matter to the Land and Environment Court for rehearing. It will be a matter for the Land and Environment Court to determine how to use the material already read before the Court.
Costs of the proceeding in the Land and Environment Court to date be dealt with by the judge of the Land and Environment Court at the resolution of the instant proceeding.
Save for the application to vacate, the hearing date heard on 13 December 2010 and save for the order for costs made on 27 October 2010, by Justices Handley and Sackville, which order is not disturbed, the respondents pay any out of pocket expenses of the appellant in the application for leave to appeal and in the appeal.
There be no order as to costs of the application to vacate the appeal, heard on 13 December 2010.
Each of the respondents have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
2009/298487
ALLSOP P
MACFARLAN JA
YOUNG JAWednesday 15 December 2010
JERAY v BLUE MOUNTAINS CITY COUNCIL (No 2)
Headnote
[This headnote does not form part of the reasons of the Court.]
On the fourth day of a hearing in the Land and Environment Court challenging the validity of certain development consents, the appellant, Mr Ivan Jeray, an unrepresented litigant, brought a motion for the primary judge to recuse himself. His Honour dealt with the motion and dismissed it. The appellant argued that the primary judge ought not sit on the recusal application as it concerned himself. The primary judge asked the appellant to proceed, but the appellant protested that he could not. The judge heard submissions from the respondents to the effect that if the appellant did not continue, the judge would have no choice but to dismiss the case. After asking the appellant for his response, the primary judge held that as the appellant had declined to proceed with the matter, he was in substance discontinuing the proceedings. Accordingly, his Honour dismissed the appellant’s case with costs. Leave was granted on the question of whether the appellant was denied procedural fairness.
The court held, allowing the appeal:
Allsop P (Macfarlan JA agreeing): at the root of procedural fairness is the provision of a fair hearing to a litigant and the basal notion that the litigant has understood the proceedings before him and had an adequate opportunity given to him considering his attributes, qualities and deficiencies which render the litigant more or less able to vindicate his rights in court. A sharp line between rules and consequences cannot be drawn in this respect. The question is what a judge must do to provide a fair hearing and equal justice, not what he might do to exemplify judicial practice.
The trial judge failed to afford the appellant the fairness required by the unusual circumstances of the case. He failed to ascertain if Mr Jeray was asking for an adjournment by his ambiguous response. In the light of the character of the consequences of dismissing the action with costs, the ascertainment of whether the appellant was obstinately refusing to proceed with the case had to be put to him squarely. His Honour did not indicate to Mr Jeray prior to dismissing the matter with costs that the dismissal would be with costs, and the significance of the costs consequences were not explained. The necessarily interlocutory nature of the dismissal was not specified and there was insufficient clarity in the absence of clear warnings to evince an implication that Mr Jeray was refusing to proceed or impliedly discontinuing his case. It was no answer to a complaint of procedural fairness that once the proceedings were dismissed with costs the litigant did not of his own motion seek to have the orders withdrawn.
Fairness to the appellant required that he be told what the judge considered to be the effect of his conduct and the possible consequences of his discontinuing the proceedings, particularly regarding his liability to pay the respondents’ costs and the probable requirement to pay these costs before commencing further proceedings.
Young JA, dissenting: the question for consideration was not what might have been the wisest course, but whether the course the judge did in fact take was a denial of a fair trial. The fact that a short adjournment and a slower explanation of matters may have been wise is not determinative. Whether a trial is fair is to be measured by consideration of the whole of what occurred, not by analysis of whether the trial judge complied with every piece of advice from prior decisions. There some were factors pointing towards a denial of procedural fairness. Further, it was unclear how the situation could in substance amount to the appellant discontinuing the proceedings, as the appellant made clear that he never intended to discontinue, but was merely “on strike”. However, although the case was borderline, the judge did not cross the line of denying a fair trial. The scenario was caused by the appellant’s behaviour; warnings were given as to the consequences of persisting with that behaviour; it is in the public interest that litigation come to an end; the appellant did not rely on some of the possible confusions that may have arisen; and the appellant was a man of intelligence fully capable of understanding what was going on.
Joe Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13; Abram v Bank of New Zealand [1996] 18 ATPR 41-507 applied; McPherson v R [1981] HCA 46; 147 CLR 512; Minogue v Human Rights and Opportunity Commission (1999) 84 FCR 483; Neil v Nott [1994] HCA 23; 121 ALR 148; 68 ALJR 509, considered.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
2009/298487
ALLSOP P
MACFARLAN JA
YOUNG JAWednesday 15 December 2010
JERAY v BLUE MOUNTAINS CITY COUNCIL (No 2)
Judgment
ALLSOP P: This is an appeal for a Class 4 matter in the Land and Environment Court under s 58 of the Land and Environment Court Act1979 (NSW) heard pursuant to leave granted on a limited basis by Handley AJA and Sackville AJA.
Before dealing with the matter, I should identify the reasons why an adjournment was refused today. Mr Jeray sought to vacate this matter on Monday 13 December 2010 supported by affidavit evidence. I dismissed that motion and indicated that this Court would deal with the costs of the motion. An application was sought today before the High Court to stay this appeal. That application was heard by a single Justice of the High Court and was refused. Mr Jeray indicated that he did not wish to proceed. I asked him whether he was effectively making an adjournment application which he said he was. He said he had no materials to assist him with the appeal, that he thought he would have the stay granted either by this Court or the High Court and that he did not feel well.
There was some evidence before me on Monday, an affidavit that Mr Jeray was suffering from the strain of the litigation. On Monday I did not think this was an appropriate or sufficient foundation to vacate the appeal. That evidence is not before this Court, but in my view the grounds put forward by Mr Jeray were insufficient to warrant the inevitable burden of costs on the respondents for adjourning this matter and coming back on another occasion.
I therefore turn to the appeal proper. These reasons that were prepared in draft for ex tempore delivery having had the benefit of argument in writing, perusal of the material and the submissions of parties today do not contain a detailed statement of the facts leading up to the events of 16 July 2009. As I understand the position, Young JA will deal with those matters and subject to any qualification I may give after he has delivered his judgment, I adopt in advance and I am grateful to his Honour for the statement of the facts of this appeal.
The provision of procedural fairness is the legal expression of an essential attribute of the judicial process. The phrase “procedural fairness” has come to replace in currency the older expression, “natural justice”, in part because the former expression, that is “procedural fairness”, shears away a penumbra of meaning and connotation from the adjective “natural”. Yet both expressions use synonyms, “justice” and “fairness”. These considerations of justice and fairness are immanent within the law and its fabric of substantive principle and procedure.
At the root of procedural fairness is the provision of a fair hearing to a litigant and the basal notion that the litigant has understood the proceedings before him or her and has had an adequate opportunity given to him or her, considering his or her attributes, qualities and deficiencies which render the litigant more or less able to vindicate his or her rights in court. A sharp line between rules and consequences cannot be drawn in this respect. Analogies of the rules of the game and how the game is played may be helpful at one level, but ultimately each circumstance has to be analysed and evaluated to see whether, in a human context, a fair hearing has been provided.
More than a few litigants appear for themselves. Subject to any lawful procedure of a court, that is their right. Their right is to approach the judicial branch of government for the vindication of rights, private and public. This is an essential Constitutional aspect of our society. It is necessary to recognise that however easier it may make it to have the assistance of skilled professional lawyers assisting the court (and if I may respectfully say so, of the character we have had provided to us today) it is the litigant and his or her rights that are the subject of vindication.
Litigants reflect the community in general. They come in a variety of forms. Those who seek to represent themselves are one of those types of litigants. Litigants who represent themselves may do so for many reasons: lack of funds, inability to obtain assistance, for whatever reason, a personal desire to participate. The reason does not matter. One consequence of people appearing for themselves is that they suffer the dual strain of being both litigant and advocate. All who have undertaken the strain of advocacy understand the strains involved in one task. The combined role must be doubly stressful.
None of the above is to underestimate the ability of some litigants in person and, I emphasise at this point that I am not referring to Mr Jeray, to manipulate the legal system for ulterior motives, often to the great cost and strain of their opponent parties and to the system of justice itself. Litigation almost always has at least two sides and to indulge any whim of a litigant in person in an expensive, stressful and complex undertaking that is litigation is a step that is unwise. To indulge unthinkingly any whim of a litigant in person can cause great hardship to parties who oppose to them.
The balance of fairness, procedural rigour and wise and practical indulgence in managing litigation by a judge is no simple task. Too indulgent an attitude to a litigant in person will unfairly burden the other side. An absence of proper regard for the needs of the litigant in person may cause injustice.
The balance can be a fine one. Sometimes the difference is one of evaluative assessment about which minds can differ. Though the ultimate question of whether a tribunal has afforded procedural fairness is a judgment of the satisfaction of an essential legal and Constitutional standard, it is decided principally by reference to a factual evaluation of a normative consideration of fairness in the judicial process. It is unnecessary to consider further any philosophical or legal consideration as to the character of the judgment or evaluation involved.
It is of course necessary to have regard not to what a judge might advisedly do best to exemplify judicial practice, but rather the question is what a judge must do to provide a fair hearing and equal justice.
I turn to what occurred here. The events occurred on the morning of the fourth day of a scheduled 10 day hearing. The hearing was proceeding less rapidly than hoped for by the trial judge. The judge rejected an application made by Mr Jeray to disqualify himself. He did so because Mr Jeray refused to put submissions on the application. Mr Jeray demanded another judge hear the application to disqualify. As the learned primary judge, Handley AJA and Sackville AJA made clear to Mr Jeray on different occasions, the application to disqualify must, at least in the first instance, be made to the judge in question.
It is tolerably clear from pages 4 to 7 of the transcript of 16 July 2009 that matters were, to a degree, heated. I do not suggest that anyone lost his temper, but a certain irritation can be inferred from the discourse on the transcript. For instance, on page 4:
“HIS HONOUR: In the absence of any reasons in support of the notice of motion, the notice of motion is dismissed.
APPLICANT: Okay, you can have it that way. I know what’s been stated. (emphasis added)
HIS HONOUR: All right, we’ll proceed with the rest of the case.
APPLICANT: Well I can’t, can I?”
The following exchange then took place on page 4:
“HIS HONOUR: Yes, we can and we will.
APPLICANT: Unfortunately, I can’t.
HIS HONOUR: Why not?
APPLICANT: I’m in protest now given this notice of motion and I may appeal it.”
This last statement implied a need for time, but it appears to have been taken as a reference to the motion to disqualify because the following was then said:
“HIS HONOUR: Then Mr Jeray, I will simply note that you have again declined to give me any reasons in support of your notice of motion and I have no option but dismiss it.
APPLICANT: Unbelievable. I just cannot believe what’s going on in this court. I think this is not natural justice. I think you should be very -
HIS HONOUR: Mr Jeray, I have three times given you the opportunity to advance reasons in support of your notice of motion and three times you have declined.
APPLICANT: Well, your Honour, you are directly implicated in this matter and it should be dealt with by a neutral person. You are declined the natural course of – the course of natural justice.
HIS HONOUR: No, I am here as an independent arbitrator and I want you to give me reasons in support of your notice of motion.
APPLICANT: Once again, I’m not going to give you the reasons because this should be dealt by a reason and I’ve not had enough time.
HIS HONOUR: Mr Jeray, you can renew your notice of motion when you’ve got time. In the meantime -
APPLICANT: Well, I’m going to appeal this notice of motion.”
Attention was then turned to the main proceedings. His Honour said: “In the meantime, we will proceed with the case” to which Mr Jeray said: “Well, I cannot proceed”. It is to be noted that Mr Jeray did not say at this point: “I will not”, rather he said: “I cannot”.
At this point the following exchange then took place:
“HIS HONOUR: Then Mr Jeray, if you cannot proceed with the case, I have no option but to dismiss your action.
APPLICANT: Well, then I shall appeal.
HIS HONOUR: Mr Jeray, that means we have wasted three and a half days.
APPLICANT: Well, what happened yesterday, your Honour, was inexcusable and I just, I just – it’s wasted my time, maybe I should say that.
HIS HONOUR: What is it that happened yesterday that is inexcusable?
APPLICANT: Your Honour I will put that down in an affidavit when I have had the opportunity to do it.
HIS HONOUR: No, you don’t need to put it in an affidavit. I’m waiving the need for -
APPLICANT: I would like to put in an affidavit once I’ve had the time to do that, sit down and do that.
HIS HONOUR: All right. I will hear what the other parties say.
APPLICANT: Thank you.”
A number of things need to be noted at this point. First, his Honour said nothing about costs. Secondly, his Honour said nothing about the basis of the (apparently proposed or possible) dismissal. Thirdly, Mr Jeray appeared to need time for at least consideration of the motion if not his position. At this point his Honour asked the representatives of the other parties, Mr Hemmings and Mr Clay, what they wanted to say. I will not set out in full their submissions. Mr Clay in his submissions put the proposition that Mr Jeray was effectively discontinuing and was holding the Court to ransom. He said the following:
“CLAY: Your Honour, with respect, has considered the appropriate approach to the matter. Mr Jeray may not be aware that any application such as this must always be made before the officer hearing the matter, be it a judge, commissioner or otherwise and it is always that person to whom the application must be made. Mr Jeray may not be aware of that and your Honour, with respect, is quite right in ensuring that the application is heard by your Honour.
Secondly, Mr Jeray ought be aware, as your Honour has indicated, that he can simply recite to your Honour the reasons for seeking to have your Honour recuse yourself from the case and if there are matters to which Mr Jeray wishes to refer then he should do so this morning. If he declines to do so, as a matter of legal principle, your Honour has no alternative but to dismiss the application which your Honour has done and the matter proceed.”
It is not open to, as I would understand the authorities, for a litigant simply decline to proceed with a case and expect the court to await its resumption at some other time. Mr Jeray has the rights of appeal of matters both of practice and procedure with leave or of finality if your Honour dismisses the application. But if Mr Jeray effectively says, ‘I decline to take any further part in the proceedings’, then it would seem your Honour would have no alternative but to treat the proceedings as being effectively discontinued and dismiss them. If, in another place, Mr Jeray wishes to agitate the opposing views, then he is perfectly entitled to do so.
But it is inappropriate for litigants to hold the court to ransom, as it were, to insist that different judges hear matters and the like and the authorities are replete with statements that judges are to be reluctant to excuse themselves and second, that the exchanges between bench and bar, be it parties or representatives, are a normal part of the process even if strident observations are made, which in this case I don’t suggest they have been at any point. The reluctance to excuse oneself at the request of a party is to ensure that there is no sense of forum shopping or judge shopping for the purpose of proceedings.
Your Honour having dismissed the application, with respect your Honour is being put in only one situation and that is that the matter be dismissed and if Mr Jeray wishes to agitate those decisions in another place then he has his rights to do so. He can make such an application. But your Honour, with respect can’t be held to ransom in the sense of saying, ‘I simply decline and I want another judge’. That’s not the way in which the authorities of this and the High Court have dealt with such situations. May it please the court.
HIS HONOUR: Mr Jeray, do you want to respond to what has been said by Mr Hemmings and Mr Clay?”
His Honour then called on Mr Jeray, who put the following submissions:
“APPLICANT: I refute that I’m holding the court to ransom. I’m simply asking for a neutral adjudicator in this matter.”
His Honour then said: “I should simply record what happened.” Thereafter, however, his Honour did not merely record what happened. His Honour then proceeded to give short reasons dismissing the proceedings with costs. The transcript records the following:
“HIS HONOUR: I should simply record what happened. Upon the resumption of the hearing this morning, Mr Jeray sought an adjournment to file a notice of motion. I granted that adjournment and Mr Jeray has this morning filed in court a notice of motion which seeks the following orders:
‘1.Leave of the court to have this notice of motion heard in the Supreme Court.
2.Request that this case, number 40986 of 2008, be reheard in the Supreme Court.
3.Request that this case, number 40986 of 2008, be reheard with a different judge if order number 2 is not granted.’
I have, on no less than three occasions, invited Mr Jeray to provide me orally with reasons in support of his notice of motion and he has declined to do so. I have then indicated to Mr Jeray that the case is now in its fourth day of hearing, that a considerable amount of evidence has been adduced and that the case should proceed. I invited him as he is still in his case to proceed with the matter and he has again declined to do so. In those circumstances, it would seem that Mr Jeray is, in substance, discontinuing the proceedings.
In the light of Mr Jeray’s refusal to continue to present his case it seems that there is nothing other than that I can do than simply dismiss the proceedings in the light of his effective discontinuance. Accordingly, the proceedings are dismissed with costs.”
His Honour did not call on Mr Jeray for any further submissions to possibly vary or withdraw his orders. Mr Jeray is recorded as saying the following:
“APPLICANT: Can I just say something for the record, your Honour? I would like to proceed with these proceedings but with a different judge. But first of all I would like to go through the notice of motion heard by a different adjudicator. I just make that clear.”
His Honour then said: “The proceedings are concluded.”
In my respectful view, the learned primary judge failed to afford Mr Jeray the fairness required in these unusual circumstances. First, he failed to ascertain with any clarity what Mr Jeray meant by “cannot” or “can’t”. This involved ascertaining whether he was asking for an adjournment. He did not have to give him one, but if he was asking for one it needed to be heard. That however is not central.
The ascertainment of what Mr Jeray was putting and whether or not it was an obstinate refusal (that is will not proceed) had to be put, in my respectful view, to Mr Jeray squarely in the light of the consequences and the character of the consequences. Did he maintain a refusal to proceed if the consequences were a dismissal with costs of the proceedings? His Honour, prior to dismissing the matter with costs did not indicate to Mr Jeray that the dismissal would be with costs. The costs consequences had not been spelled out and the costs consequences of a hearing of this character set down for ten days on the fourth day was significant. The consequences were not explained.
Further, there was no explanation whether this would be a final or interlocutory dismissal. It is difficult to see how this could have been an exercise of the making of a final order in the light of the fact that his Honour did not refer to any evidence. In these circumstances, it could only be an interlocutory order made either because of some constructive discontinuance or by reference to the operation of Uniform Civil Procedure Rules 2005, r 12.7 or in the inherent power to control the proceedings. There was no basis, in my respectful view, to consider that Mr Jeray was discontinuing. His conduct was entirely to the contrary. The question of whether r 12.7 was being employed was not explored; nor was it explored as to the basis of any inherent power.
Importantly, if the matter was interlocutory the consequences were that the proceedings could be brought again; but with a costs order, it would likely be the practice of a court that such further proceedings would be stayed until the costs order was paid. The costs by this stage of the proceedings for two parties after three full days’ hearing and a fourth morning together with preparation were no doubt not insubstantial. It is not clear whether there would be any limitation issue on the recommencement of proceedings and I do not rely upon that.
As I said, Mr Jeray did not in my view discontinue and no implied discontinuance should have been found on the material. In my view, the material was insufficiently clear, in the absence of the clear warnings that I have identified, that Mr Jeray was abandoning or refusing to proceed with his case.
Once the proceedings were dismissed with costs, Mr Jeray did not make an application to vary or withdraw the orders. His Honour did not invite Mr Jeray to do so and once the proceedings were dismissed with costs, in my view, it is not an answer to a complaint of failure to accord procedural fairness that the litigant did not, of his own motion, seek to have the orders withdrawn.
However difficult and obstinate Mr Jeray may have appeared to the learned primary judge, I am of the view that he did not have sufficient explained to him for it to be concluded legitimately that he had a fair hearing on the fourth day.
This is not to require perfection; it is not a call to pander to every whim of a litigant in person. Rather in my view it is an assessment of the evaluative conception of fairness in the circumstances of this case. It is most regrettable and it is not a matter for which the respondents are responsible. Nevertheless, while I recognise that these are matters of evaluation about which minds may differ, in my view, the conclusion that I have reached necessarily leads to orders setting aside the Land and Environment Court orders of 16 July 2009.
Before I set those orders out I should indicate my view as to the costs of Monday. The application for an adjournment was made properly on motion in the sense that it was coherently made on affidavit evidence. Mr Jeray put forward as his second ground the pressure of litigation. He also put forward grounds as to the utility of his special leave application. My view about those costs is that there should be no order as to costs as to Monday but my two colleagues were not there, perhaps I should have dealt with the matter then and there but I would hear the respondents on those costs of Monday.
The orders that I would make apart from that are as follows:
1.Set aside the orders of the Land and Environment Court made on 16 July 2009 dismissing proceedings 40986/08.
2.Remit the matter to the Land and Environment Court.
3.Costs of the proceedings to date in the Land and Environment Court to be dealt with by a judge of the Land and Environment Court upon the resolution of those instant proceeding.
4.The respondents pay any out of pocket expenses of the appellant on the application for leave to appeal and the appeal.
MACFARLAN JA: I gratefully adopt the description that I understand Justice Young proposes to give of the circumstances giving rise to this appeal and of authorities concerning the obligations of Courts to self-represented litigants. Like that of the President my view is that the appeal should succeed. I agree with the orders proposed by his Honour and with the reasons that he has given but add the following observations concerning the basis upon which the primary judge acted in dismissing the proceedings that the appellant had brought.
After noting that he had invited the appellant “as he is still in his case to proceed with the matter and he has again declined to do so” the judge said that, “In those circumstances it would seem that Mr Jeray is in substance discontinuing the proceedings.” (Transcript p 7) His Honour then dismissed the proceedings “in light of the appellant’s effective discontinuance.” Section 91 of the Civil Procedure Act 2005 provides that such a dismissal, not being one that involved a determination of the proceedings on the merits, does not prevent a plaintiff bringing fresh proceedings.
Discontinuance of proceedings is a step that Uniform Civil Procedure Rules r 12.1 authorises a plaintiff to take in certain circumstances. The rule specifies a procedure to be followed. In circumstances where the appellant was present before the Court and could have been asked by the judge to clarify his position, it was not in my view appropriate for his Honour to have acted upon a mere implication as to what the appellant was intending to do and was in fact doing. Particularly was this so where the appellant gave no indication that he wished to abandon his proceedings altogether. On the contrary he indicated repeatedly, at least by implication, that he wanted them heard, albeit by a different judge.
Fairness to the appellant required that he be told what the judge considered to be the effect of his conduct and of the consequences to the appellant of him discontinuing the proceedings. Of particular importance in this regard is that in the absence of an order to the contrary the appellant would become liable to pay his opponent’s costs (r 42.19), and in all probability would be required to pay them before commencing further proceedings (see the power to stay conferred by r 12.4).
The judge’s decision to dismiss the proceedings cannot in my view be justified as an exercise of the power conferred by r 12.7 (as was sought to be done in the course of argument on the appeal), that being a power to dismiss the proceedings for want of due dispatch, as the judge, so far as the transcript indicates, did not turn his mind to an exercise of discretion under that rule and the appellant was, in any event, not given the opportunity to make submissions about its application to the circumstances then existing.
In the course of argument earlier on the day in question the primary judge said that notwithstanding the appellant’s application the Court would “proceed with the rest of the case.” (Transcript p 4) This did not occur as the Court subsequently dismissed the proceedings rather than determining them on the merits, but it was a course that was open to his Honour. Before taking it, it would however have been necessary for the Court to explain to the appellant first that in the absence of the appellant proceeding to lead further evidence in his case the Court would be determining the proceedings on the basis of such evidence as he had thus far adduced and, as his opponents wished to adduce, and secondly that the Court’s decision would be a final one precluding the appellant commencing a further action of the same nature.
YOUNG JA: This is an appeal brought by leave by a disappointed litigant in person before the Land and Environment Court. The Court below dismissed the proceedings after the appellant insisted that a neutral judge hear his application that the primary judge recuse himself and said that he could not go on with the case until that occurred.
I first had thoughts that leave to appeal might not be required because the action had been dismissed. However, s 91 of the Civil Procedure Act 2005 (which applies to the current action in the Land and Environment Court) makes it clear that the dismissal is to be categorised as interlocutory, thus leave was needed. That leave was granted, but was limited to the question as to whether the primary judge denied procedural fairness by making the order for dismissal of the proceedings. The appellant subsequently filed a further motion to expand the ambit of the appeal and in connection with this motion he filed submissions dated 7 September 2010 to which I will refer as the “September submissions”. That motion was dismissed on 27 October 2010 though the appellant has sought special leave to appeal.
In giving reasons for allowing leave to appeal on the grounds specified Justice Sackville in his reasons, in which Justice Handley acquiesced, made it clear that in his Honour’s view it was arguable that the primary judge should have taken further steps before dismissing the proceedings to ensure that the appellant understood what was to happen and what powers the judge was proposing to exercise and the consequence of the exercise of those powers for the proceedings which the appellant had instigated.
I should at this stage say that although I would agree with about ninety per cent of what has fallen from the President and Justice Macfarlan, I have the misfortune to have reached the opposite conclusion in assessing the material and I would have dismissed the appeal. However as the majority have assessed that material otherwise what I have to say should not disturb the appellant unduly.
The proceedings before the Land and Environment Court were a challenge by the appellant to the validity of certain development consents granted by the first respondent to the second and third respondents in respect of land at Katoomba. The appellant lives in Katoomba though not near the subject land. He is a man of mature age, but says that at least until the present litigation, he was a full-time TAFE student and an environmentalist. He purports to have taken these proceedings as a matter of the public interest.
The proceedings were listed to take ten days before the Court below over which Justice David Lloyd presided. The appellant appeared in person. The first respondent was represented by Mr Ian Hemmings of counsel and the second and third respondents by Mr P Clay of counsel.
It would seem that on day four of the hearing the primary judge made some comments about the slow progress of the case and also comments about the operation of the Torrens system which latter the appellant thought were misleading.
On day four the appellant said that he had a notice of motion to file in the registry. The primary judge told him it could be filed in Court. The appellant’s riposte was that as it concerned the judge that would be inappropriate. The motion was filed in the registry and brought up to the judge. The motion virtually was that the judge recuse himself. The appellant, however, insisted that Justice Lloyd should not hear it proclaiming that the judge had a conflict of interest. The primary judge indicated that he would hear it. The appellant refused to present evidence before Justice Lloyd who thereupon dismissed the motion.
Mr Clay of counsel clearly said in open court in Mr Jeray’s hearing:
“Mr Jeray may not be aware that any application such as this must always be made before the officer hearing the matter, be it a judge, commissioner or otherwise, and it is always that person to whom the application must be made. Mr Jeray may not be aware of that and your Honour with respect is quite right in ensuring that the application is heard by your Honour.”
Now later on on p 6 of the transcript the judge asked Mr Jeray whether he wanted to respond but he did not address that particular point. I mention it because even if the reason for the judge insisting on hearing the matter himself was not fairly indicated to Mr Jeray by the judge, at least it was by Mr Clay.
Now what happened on 16 July is best dealt with by examining the transcript. The President’s judgment has already set out the whole of the material parts.
The appeal was heard this afternoon, again the appellant appeared in person and Mr Ian Hemmings for the first respondent and Mr P Clay for the second and third respondents.
The appellant’s written submissions in support of the appeal (which I will call the “October submissions”) contain a note that they must be read in conjunction with the white appeal book, the September submissions and the appellant’s affidavit of 20 September 2010.
The September submissions deal with a number of complaints about the trial before the primary judge and how the appellant felt that he was “under duress” or pressure because the judge thought that such a complex case should be able to be conducted within a week. Whether there is or is not any validity in these claims is not a matter that is relevant to this appeal and as things have turned out, are not relevant at all. The September submissions and the affidavit and the October submissions repeat over and over again a series of propositions as to a judge’s alleged obligations to a litigant in person.
As to this, the respondents accept that in fulfilling the basic obligation to ensure a fair trial, additional obligations may fall upon a judge where there is a litigant in person. Indeed, the respondent’s counsel accepted that the law in this respect was appropriately stated by Justice Basten with whom Justices Hodgson and Bell agreed, in Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 [48]. Justice Basten said:
“The relevant principles, if they can be so described, derive from the obligation of a trial judge to take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure of the Court as is reasonably practicable for the purpose of ensuring a fair trial”.
As counsel noted, Justice Basten applied what High Court judges had said in a criminal law setting in McPherson v R [1981] HCA 46; 147 CLR 512. They noted that Justice Mason remarked at 147 CLR 534 that If the accused is allowed to remain in ignorance of a fundamental procedure, it can hardly be said that he has had a fair trial. Further, that Justice Brennan said at 546:
“If ... an unrepresented accused is kept in ignorance of the rules, procedural rules which are designed to protect an accused and so ensure a fair trial become a trap ....”
However, it should be remembered that in Minogue v The Human Rights and Opportunity Commission (1999) 84 FCR 438, the Full Federal Court made it clear that the duty of a court to an unrepresented person in a criminal case is greater than that in a civil case.
Now, before moving on, it is appropriate to repeat what Justice Basten said in Lee v Cha at the commencement and conclusion of his discussion about the relevant principles. His Honour said at para [46] and [49]:
“46 Because Mr Park was a litigant in person, this Court was taken to a number of cases concerned with the appropriate behaviour of a trial judge when faced with a litigant in person…However, it may be noted that the remarks in such judgments are not always precise as to whether they are:
(a) specifying essential elements of procedural fairness, absence of which will result in judgments or orders being set aside;
(b) principles, breach of which may demonstrate lack of impartiality, or
(c) desirable steps, breach of which will not necessarily give rise to any ground of appeal or basis for setting aside a judgment for partiality.
49 There will be cases where a failure to provide assistance to a litigant in person will give rise to a miscarriage, so that the trial may be overturned on appeal: MacPherson provides an example. However, it is important to note that although an appearance of partiality may be said to give rise to an unfair trial, a failure to provide sufficient information to an unrepresented litigant may result in the trial miscarrying without any suggestion of bias or apprehended bias on the part of the trial judge. Partiality is a specific form of unfairness …”
The respondents submit that it can be seen from the transcript that the appellant was no shrinking violet. When informed his motion to recuse was refused and that unless he proceeded, the judge would have no option but to dismiss the action, his reaction was: “Well, then I shall appeal”, a reaction which indicates both appreciation of court procedure and a person not being over pressured by the Court.
Again counsel point to the fact that when the action was dismissed, the appellant did not raise any further matters for the Court record.
The respondents submit that the transcript shows that the appellant did not want Justice Lloyd to continue the hearing, he wanted another judge. When that was denied him, he protested by refusing to proceed, well knowing what might happen.
The appellant’s October submissions mostly repeated once more the grabs from the authorities that were oft repeated in the September submissions as to a judge’s obligations to litigants in person. While assuming that the grabs generally have been correctly recorded, it must be remembered first, that not all of the remarks recorded by the appellant referred to circumstances in Justice Basten’s category (a) and secondly, a fair trial is to be measured by consideration of the whole of what occurs, not by some methods of ticking boxes to see if the trial judge complied with every piece of advice from a prior decision.
It must also be noted that not every ground presented by the appellant is relevant to every case. For instance, his summary of the High Court’s decision in Neil v Nott [1994] HCA 23; 121 ALR 148,150; 68 ALJR 509, 510 is that:
“A judge should attempt to clarify the substance of the submissions of a litigant in person”.
However, what the High Court judges actually said was:
“A frequent consequence of self representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.”
There was no suggestion in the instant case that the appellant’s submissions were in any respect obfuscatory.
Again, it is useful to quote from a Federal Court decision, not included in the appellant’s submissions, Abram v Bank of New Zealand [1996] 18 ATPR 41-507. There the Court consisting of Justices Hill, Tamberlin and Sundberg, commented on the decision of Neil v Nott by noting that the appellant in the Abram case appeared to have a good grasp of matters as one could speculate him to have and then saying:
“What a judge must do to assist a litigant in person depends on the litigant, the nature of the case and the litigant’s intelligence and understanding of the case.”
The only question for us is whether the primary judge denied procedural fairness by making the order for dismissal of the proceedings. Leave to appeal was granted because the matter was seen to be arguable. There is no suggestion that the appellant, a tertiary student, is other than a person of intelligence or an understanding of the case.
However, the appellant says that at the time he was in shock that his motion was refused, he needed time to consider the impact of that and to get advice and to do research and that that was refused him. It is untrue that he refused to continue with the case. He says that he was unable to continue for the time being because of what had occurred.
However, there is no doubt that the judge warned the appellant at least twice and that the opposing counsel’s address also focussed on the consequences of his refusing to continue.
On one reading of the transcript, it might be thought that the appellant was still thinking in terms of a dismissal of his notice of motion. However, he has never made that submission. A reading of the transcript might also give the impression that the appellant was so upset about what he considered to be an unjust ruling on his notice of motion that he was not able to take in what was being said about dismissing the whole application but he has not made that submission either.
The appellant does not say he misunderstood the warnings. However, it may be significant that after the judge had dismissed the whole proceedings, the appellant was still maintaining the attitude that his motion should be dealt with by a neutral adjudicator and that he should have time to make a full affidavit, but the appellant did not ever apply for an adjournment to consider his position.
However, he does seem to have considered in the material he put before us that a litigant in person is entitled to adjournments on request. That is not the law. Cases are case managed and most Court schedules do not allow for a leisurely wander through issues.
The appellant says that when the judge added the words: “I should simply record what happened …” he reasonably supposed that what was to come was a summary of the morning’s events for the record, not a judgment disposing of the whole case. However, if this was his belief, he made no protest about that matter. He did, however, continue to address the Court saying that he did want to continue with the proceedings, though before a different judge.
There are some unusual features about the case. First, the judge did not specify the authority he used to dismiss the proceedings and whether the proceedings were dismissed on the merits or on some interlocutory basis. However, the application of s 91 of the Civil Procedure Act 2005 means that the plaintiff can come again, at least after he has satisfied the costs order made against him.
Secondly, there does not appear to be any case to which we were referred or which may own research has uncovered where the plaintiff “takes his bat and ball and goes home” on the fourth day of a trial (to quote the simile used by Justice Sackville on the leave application).
It is clear that if a defendant applies for an adjournment which is refused and then declines to proceed further, the plaintiff has at least two options. First, the plaintiff may move to strike out the defence and then seek default judgment. Alternatively, the plaintiff can press on with the case and prove it. This latter alternative was adopted in Tennero Limited v Arnold [2007] 1 WLR 1025 because the plaintiff wanted a judgment on the merits to enforce overseas.
If it is the plaintiff in the same situation, the defendant can apply to strike out the statement of claim. However, the defendant cannot seem to be able to get a judgment on the merits so as to be protected from the plaintiff coming again. Indeed, if the situation is classified as a failure to prosecute the case, calling for a sort of judgment non pros to use the classic term (see rule [12.7]) and the proceedings are dismissed, s 91 of the Civil Procedure Act would operate to allow the plaintiff to come again.
The trial judge seemed to have treated the situation as amounting in substance to the appellant discontinuing the proceeding. It is difficult to see how the situation could be so classified as the appellant never intended to discontinue and made that clear. He was merely “on strike” until he got what he wanted.
It is difficult to justify the judge’s course of merely dismissing the proceedings. Suppose that in the course of the hearing, some aspect of the relevant Council’s approval process had been considered in depth and it was clear that there was an irremediable defect. I doubt whether a judge of a court designed to ensure proper standards of land development could just ignore the defect and dismiss the challenge to the development. I am not suggesting that happened in the instant case, but it needs to be something that is examined when testing the powers of the Court.
Mr Hemmings says that courts have inherent powers to control abuse of their process and that is so. He says if all else fails, that covers the present case. I do not really need to go any further, because what I have said in the preceding paragraphs do not address the core of the only ground in which leave to appeal was granted. Namely, whether the primary judge denied procedural fairness, by making the order for dismissal of the proceedings.
Likewise, one must put out of one’s mind to a great degree, the prejudice caused to the respondents because we are dealing, not with a matter of discretion, but the appellant’s right to a fair trial . We do not know enough of the facts to make a judgment, but it would not be an unusual scenario that while the present litigation is pending, the developer respondents are paying rates and holding charges on their land and receiving no income from it. Where the hold up is caused by a person that has no personal interest in the matter, that has brought about that delay, one can have sympathy for them. However, where the question is whether there has been a fair trial, one has to put that to one side.
The appellant has said a lot about the rights of a litigant in person. Indeed, when one considers later authorities, he said more than the authorities properly read would support. Those rights must be respected, though one must always keep in mind the prejudice caused to other parties by asserting those rights. The authorities do say that the courts must take particular care to see that there is a fair trial, when there is a litigant in person. However, that does not mean giving the litigant in person carte blanche, to conduct the case according to his or her own whims.
Again the fact that, if this appeal succeeds, the appellant would achieve his aim of having a new trial before a different judge, because Justice Lloyd has now retired, despite any lack of merits of that application, it is not a relevant fact of this appeal. The basal cause of a retrial before a different judge is Justice Lloyd’s retirement, for which the appellant cannot be blamed.
Also, the probability that in the situation such as occurred in the present case, it could have been better dealt with by the judge taking a short adjournment for people to calm down and then explaining matters over again, more slowly, is not determinative. The Court is not dealing with what might have been the wisest course, but whether the course the judge did in fact take, was the denial of a fair trial.
The case is close to the borderline and it is necessary to list the prime factors for and against the appellant.
In favour of the appellant are:
The fact that he was unrepresented;
The possibility of confusion between dismissal of the application for the judge to recuse or the dismissal of the action;
The possibility that in an emotionally charged situation, the warnings that were given were insufficient;
The possible confusion with the words that the judge used that he was simply going to record what happened, but then gave final judgment
The confusion as to what power the judge was exercising and whether the dismissal was interlocutory or not;
The situation was unprecedented and it would not have been clear even to a lawyer that the judge was entitled to dismiss the claim outright in the circumstances that occurred;
The fact that the situation, with all respect to the primary judge, could have been better handled;
No adequate warning was given as to the proposed orders for costs;
That no opportunity was given to the appellant to be heard as to whether it was appropriate for an order for costs to be made;
The cumulative effect of all those matters.
The factors against the appellant:
The scenario was activated by the appellant’s poor court behaviour
On one reading of the transcript, warnings were clearly given as to what would happen if the appellant persisted with his behaviour;
What else can a trial judge do when a plaintiff refuses to go on with a case unless the judge allows the plaintiff to take a procedure which is against all the authorities;
It is in the public interest that litigation come to an end;
To allow the appeal would merely reward the appellant for his bad behaviour;
Some of the possible confusions which have been put in the previous paragraph are not in fact relied on by the appellant;
The appellant is a man of intelligence and there is not suggestion that he is not fully capable of understanding what was going on.
In one sense this appeal only involves the costs of the aborted hearing. As whether the appeal is allowed or dismissed, the appellant is able to start again, the only barrier for him at the moment is that he would probably have to pay the costs of the first hearing before he does so. On the other hand, as the President has said, that cost burden might be quite considerable.
Indeed, Mr Clay’s submission suggested that the order for costs might be in a different situation to the order for dismissal. However, I consider that the order should be treated as one package. I should add that the assessment as to whether there was a fair trial has to be made one way or the other. A judge cannot take the easy way out and say because the matter is doubtful, then the appeal should be allowed and there should be no order as to costs and get on with the case. The decision actually has to be made of assessing the factors, not whether or not the matter could have been better handled, but whether the primary judge erred in law in failing to ensure a fair trial.
On my assessment, the judge did not get over the line of denying a fair trial and the appeal should be dismissed. Had I been of the view that there had been such a denial, I would have had to consider whether it would have been just to set aside the order for costs of the aborted trial. I would have had difficulty in so doing. The appellant puts that his action was brought in the public interest, and that in public interest matters, it may be appropriate for no order for costs to be made. That is true up to a point. However, it has not yet been established that the case is a public interest matter. But this was never argued below and indeed, there was no opportunity to argue it below.
However, the appellant was the cause of the trial being aborted. Everyone else was willing and able to proceed and any error that the judge may have made in dealing with the situation was only consequential on the appellant’s conduct. However, I am content that the costs of the first hearing abide the result of the second hearing.
It follows that in my view, the appeal should have been dismissed. But as I have said for the reasons that were given by my colleagues, that is only of academic interest.
ALLSOP P: Before calling on Mr Hemmings and Mr Clay as to the costs of Monday, I would express my agreement with the additional comments of Macfarlan JA.
[Discussion on costs and the form of the orders]
The orders of the Court are:
1. Appeal allowed.
2.Set aside orders of the Land and Environment Court made on 16 July 2009, dismissing with costs proceeding 40986 of 2008.
3.Remit the matter to the Land and Environment Court for rehearing. It will be a matter for the Land and Environment Court to determine how to use the material already read before the Court.
4.Costs of the proceeding in the Land and Environment Court to date be dealt with by the judge of the Land and Environment Court at the resolution of the instant proceeding.
5.Save for the application to vacate, the hearing date heard on 13 December 2010 and save for the order for costs made on 27 October 2010, by Justices Handley and Sackville, which order is not disturbed, the respondents pay any out of pocket expenses of the appellant in the application for leave to appeal and in the appeal.
6.There be no order as to costs of the application to vacate the appeal, heard on 13 December 2010.
7.Each of the respondents have a certificate under the Suitors’ Fund Act 1951 (NSW), if otherwise qualified.
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