Maher v Wall

MAHER v WALL
[2000] SASC 176

Magistrates Appeal

DUGGAN J. The appellant (plaintiff) commenced proceedings in the Magistrates Court whereby she sought an order returning to her a vehicle which she claimed belonged to her. She now appeals against the order of the learned magistrate dismissing her claim.
The plaintiff, who was unrepresented in the proceedings in the court below, gave evidence that the defendant was originally a boarder at her house at Christie Downs. She said that in 1990 she and the defendant commenced a sexual relationship. According to her evidence, sometime in 1990 she and the defendant discussed purchasing a Subaru motor vehicle. She said the defendant owned a Datsun motor vehicle which was unroadworthy and that, as they were then thinking of staying together in their relationship, it would be appropriate to purchase another vehicle. They went out looking for a vehicle to purchase and, in due course, went to George Eblen Motors at Brighton.
It is not in dispute that on 18 December 1990 the defendant entered into a credit contract with AGC Ltd. The contract recorded that the defendant had purchased a new Subaru utility from George Eblen Motors for $17045 less an allowance of $1669 received as a result of the defendant trading in his Datsun vehicle. The total amount payable, including credit charges, amounted to $28509.60. The agreement provided for 60 consecutive monthly instalments of $475.16.
The plaintiff was not licensed to drive a vehicle at this time. However she said that it was agreed between her and the defendant that she would be the owner of the vehicle and that she would pay the instalments with rent monies paid by another boarder. She said that the understanding between her and the defendant was that she would be able to claim the vehicle from the defendant at any time in the future.
The defendant gave evidence. He said that he first met the plaintiff in about 1989. He boarded with her and eventually a sexual relationship developed between them. His version of the purchase of the vehicle differed markedly from that of the plaintiff. He said he decided to purchase a new vehicle and he was interested in a Subaru because his employer owned one. He asked the plaintiff to accompany him while he looked at different cars. He decided to purchase the Subaru from George Eblen Motors. He agreed that the plaintiff was with him on the occasion when he signed the credit contract. He denied that there was ever any discussion between the two of them to the effect that the plaintiff would be the owner of the vehicle. He said that the plaintiff did not make any payments to AGC in relation to the vehicle.
Eventually the plaintiff and the defendant ceased living together. The plaintiff said that this was in early 1992, when she asked him to leave. Later in her evidence she agreed it could have been 1993. The defendant said he left the home in 1994.
On 26 October 1998 the plaintiff wrote to the defendant requesting the return of the vehicle. In the letter she claimed to be the rightful owner of the vehicle. She stated that she paid for the vehicle except for the amount allowed for the defendant’s trade-in. She stated that, despite the fact that the vehicle was registered in the defendant’s name for a considerable period of time, he was well aware that this was an arrangement of convenience and did not in any way affect the fact that she was the owner of the vehicle. She said that she would issue legal proceedings if the vehicle was not returned to her. The plaintiff said in evidence that she had asked for the vehicle to be given to her prior to this letter of demand. She was unsure as to when she made this request but said that it was probably in 1996. The plaintiff’s evidence on this issue was vague. In another part of her evidence she gave the following replies:
“Q.... What I want to know now is, you suggested earlier that the arrangement was that if you wanted the vehicle back, you would get it back.
A.     That’s right.
Q.     All right, when did you ask for the vehicle back.
A.     Last September your Honour.
Q.     That’s in September ’98.
A.     That’s right.
Q.     Why did it take you so long to ask for the vehicle back.
A...... Purely and simply because I had another loan that I had got out and I was having difficulty in the payments. I had asked Mr Wall to come round and discuss the matter, of which he did come round and discuss the matter. He said that he would sign the car back over to me and I said to him that I would give him the price of his Datsun that he first put in on the car and he seemed quite okay.”
The defendant said that in early 1998 he met another woman and commenced a relationship with her. He said the plaintiff found out about it and it was then that she started to make demands for him to hand over the vehicle. According to the defendant she told him that she was in financial difficulty at the time.
The plaintiff tendered a motor registration disposal notice dated 2 October 1998. The document purports to give notice to the registrar of a change in ownership from the defendant to the plaintiff. The plaintiff said that she told the defendant she was having difficulty in making the payments on the vehicle and he said that he would sign the car back over to her. She said she told him that she would repay him the price of the Datsun. She said he signed the document but she said she had to print his name alongside his signature “because he was slightly intoxicated at the time.” The defendant denied that it was his signature on the disposal notice.
In the course of cross-examination the plaintiff agreed that in February 1998 she approached the Little Loan Company for a loan. She said she was having difficulty paying off some debts and she offered a Sigma station wagon as security for the loan. She said that it was her vehicle and registered in her name. She said she paid for the car but the money came out of the account of a friend, Mr Howe, another boarder. She said that Mr Howe agreed to this course and that he drove around in the vehicle after he retired from work. At that time he was suffering from terminal cancer.
Mr Howe died in 1996. The plaintiff was the sole beneficiary named in his will. The plaintiff defaulted on the loan to the Little Loan Company and a debt collector, Pacific Mercantile Ltd, was engaged to recover overdue payments. As the pressure to make payments mounted, the plaintiff suggested that she substitute the Subaru for the Sigma as security for the loan.
Mr Possingham, who was employed by Pacific Mercantile Ltd at the time of these events, was called by the defendant to give evidence. He said that the possibility of a substitution was first mentioned on 15 April 1999. Mr Possingham said that he received a telephone call from someone at the Parks Legal Service who made representations on behalf of the plaintiff. This representative said that the plaintiff was going to court to try and obtain an order for possession of the Subaru. Mr Possingham said that one of his company’s agents was given some registration papers which indicated that the registration was in the plaintiff’s name.
The learned magistrate summarised the evidence in relation to the capacity of the plaintiff and the defendant to make the required payments on the Subaru. He referred to the plaintiff’s evidence that, with the approval of Mr Howe, she took monies from his account for rent and other payments made on his behalf. As for the defendant, he was in receipt of unemployment benefits between 1990 and 1995 before going on to an invalid pension in 1996. Despite the fact that he was in receipt of Social Service payments of this nature, the defendant said that he was employed at different times during this period and was able to make payments on the vehicle. It was the magistrate’s view that the defendant would have had sufficient funds from these combined sources to make the relevant payments.
The magistrate went on to say that the dispute between the plaintiff and the defendant is to be resolved by having regard to the objective facts and to their respective credibility. He said that he was able to say, without hesitation, that both the plaintiff and the defendant were “without credit”. He said that the plaintiff lied on a variety of topics and he rejected most of her evidence. He said that he was in no doubt that if she had made regular payments on the Subaru she would have taken possession of the relevant receipts. However he said that he was also in no doubt that she did give some money to the defendant from time to time for the purpose of making car payments. He said that in many instances the withdrawals from Mr Howe’s bank account seemed to coincide with the date on which car payments were made.
However, the learned magistrate continued:
“...The objective facts are that the contract for the sale of the vehicle is in the defendant’s name. The Credit Contract with AGC is in the defendant’s name. The vehicle was registered in the defendant’s name. The defendant produced the payment books and all receipts for payments made. The defendant had possession of the vehicle from the time of its purchase until it was in fact seized by another credit provider. The plaintiff did not have and still does not have a licence. There is no suggestion that she ever tried to obtain a licence. I think all of those matters lead to the inescapable conclusion that the Subaru was in fact the defendant’s vehicle.”
The learned magistrate said that those payments which were made by the plaintiff could have been as a result of a gift or by way of loan. He said if they were by way of a loan they could not be recovered in these proceedings.
He went on to say:
“Those matters are sufficient to reject the plaintiff’s case. However, all of that aside I am satisfied and so find that the plaintiff lied on other aspects of her evidence. Her evidence is at odds with the evidence of Mr Paul Possingham who was previously employed by Pacific Mercantile who are collection agents and who were acting for the Little Loan Company. While Mr Possingham’s evidence touches on narrow points where it conflicts with the plaintiff’s evidence I prefer Mr Possingham’s evidence over that of the plaintiff. It seems that after Mr Howe died and the plaintiff could not get money from him she commenced to borrow money which she simply did not repay. She lied to Mr Possingham on a variety of matters just as she lied to me.
With regard to the suggestion that the defendant agreed to transfer the vehicle from his name into the plaintiff’s and indeed signed the disposal notice I reject the plaintiff’s evidence on that. If the defendant had transferred the registration into the plaintiff’s name and agreed to deliver the car to her on the following day it seems inconsistent that he would not then, nor now, hand the vehicle over to her. I say no more than I am not persuaded that it was the defendant who signed the disposal notice (exhibit P8).
I note however that the plaintiff who had used Mr Howe’s Magna (sic) as security for a loan and who subsequently purported to substitute the Subaru as security defaulted on that loan and then had the cheek to tell the repossessors where they could find the Subaru vehicle so that it could be repossessed.
Having said all of that, so far as the defendant is concerned while I found him to be a marginally better witness than was the plaintiff it was only a matter of degree. If the defendant’s evidence stood alone I would reject it out of hand. He, like the plaintiff, presented as a fraudulent person. It was only that all of the documents relating to the vehicle were in his name that has led me to reject the plaintiff’s case and by elimination to accept his case.
The onus was on the plaintiff to establish her case on the balance of probabilities. She has failed in that regard. The plaintiff’s claim is dismissed.”
In broad terms the grounds of appeal assert that the plaintiff was denied procedural fairness in various respects and that the learned magistrate made findings unfavourable to the plaintiff in relation to credibility without giving adequate reasons to support those findings. There is also criticism of the magistrate’s findings with respect to the signature on the notice of disposal of the motor vehicle.
Before dealing with specific arguments advanced by the plaintiff it is appropriate to have regard to the nature of the evidence and the manner in which the learned magistrate approached it. The magistrate placed considerable emphasis on what he referred to as “the objective facts”. These were the matters about which there was no dispute. It must be accepted that the plaintiff gave a version that was consistent with those facts, but that is not to deny their significance. The assessment as to the likelihood or otherwise of that version remained as an issue for consideration.
The first of the matters relied upon by the magistrate is the fact that it was the defendant who entered into the contract for the purchase of the vehicle and the mortgaging of it to the finance company. The defendant also traded in his vehicle as part of the same transaction.
The plaintiff said that she was an undischarged bankrupt at the time the vehicle was purchased and this was discussed with the salesman at George Eblen Motors. It was decided during this discussion that, because of the bankruptcy issue, only the defendant’s name would be on the contract. The plaintiff gave the following evidence:
“A.... It was discussed with the gentleman at George Eblen Pty Ltd that the vehicle would have to be in Mr Wall’s name only for the simple reason I had bankruptcy lingering around me. I wasn’t allowed to have my name in connection with it because he would not get the finance for it.
Q.The salesman from George Eblen would not have found that out.
A...... I had to tell him because according to the law and what I was told by my bankruptcy, if I applied for any loans of any description, I had to actually let them know I was an ex‑bankrupt, or a bankrupt.
Q.And that’s absolutely right. You were not entering into this contract.
A...... No. He was asking us if we were going into joint names with it and I said I couldn’t because of the bankruptcy side of it.
Q.Whose idea was it that Mr Wall’s name would be on the contract.
A...... George Eblen Motors because he would be the driver.
Q.Was there any discussion between you and Mr Wall on that occasion about the vehicle.
A...... Well, I wasn’t over impressed for the simple reason is if I put money into a vehicle I would like to know I had some way of the return of the vehicle if I - I’m not sure how to put that - if by any chance we separated, I would have some way of retrieving my money.
Q.What was discussed or agreed.
A...... It was agreed that Mr Wall would drive the vehicle unless, of course, I got my licence, which I hoped to have got, to drive a vehicle, but I haven’t, and that if I ever required the vehicle back I would be able to have it back seeing I was paying for it. I can justify that by bank statements from a Mr Howe which was a boarder, of which I have with me.”
Neither side called the salesman to give evidence. The plaintiff said that she drove a motor vehicle about 22 years ago in Tasmania. However she had a motor vehicle accident and had not driven since.
Next the learned magistrate referred to the fact that the defendant was in possession of the payment books used to facilitate payments to AGC. The books contained payment slips as well as receipts stapled to the butts of the payment slips. The plaintiff was not in possession of any such documentation.
Then there is the fact that the defendant had possession of the vehicle from the time of its purchase until it was seized by another credit provider. It was important to have regard to the fact that the defendant took the vehicle with him when he left the plaintiff’s home. I have mentioned that the plaintiff said this was in 1992 or 1993, but the defendant said it was in 1994. The plaintiff said she did not ask for the vehicle’s return until 1996. The defendant said it was not until 1998. In either event, a considerable period of time elapsed before the plaintiff claimed the vehicle. The plaintiff said in evidence that she asked the defendant to leave because he had a problem with alcohol. It would appear that, on her version, she continued making the payments to AGC. The last payment was made on 20 December 1995. The plaintiff was asked if she told the defendant she wanted the car back when he left. She replied:
“No, because we were going fine.”

The cross examination continued:

“Q.... Are you telling me that six years after you started having a sexual relationship with Mr Wall and three years after he moved out and you supposedly kicked him out because he was an alcoholic and he was a threat, you decided you wanted the vehicle back, is that right.
A.Well, I wanted it back long before then but it never came up to being in court, I mean -
Q...... You had asked him for the vehicle back prior to September last year.
A.Yes, prior to that, yes.
Q...... When was that.
A.Numerous times in that year.
Q...... Only last year.
A.Last year, the year before.
Q...... In 1997 you started asking him, or was it 1996 when you started.
A.1996 probably, when Mr Howe passed away.
Q...... You started saying to my client then that you wanted the vehicle back.
A.That’s right.
Q...... For more than two years you told him that.
A.That’s right.
Q...... What was his response.
A.He was quite reasonable about it as long as he got his amount for his Datsun 200B Coupe.
Q...... I don’t understand, if he was reasonable, why three years down the track did you still not have the car back.
A.Look, I don’t know how he works, I don’t know how he manages to get me into court, I’m not trying to threaten him or hurt him in any way. I just want something back to me that was rightfully my own.”

The learned magistrate rightly considered all of these matters as being significant. He regarded the plaintiff’s version as to how they came about as unlikely. He pointed out that it was for the plaintiff to establish her case and that she failed in that regard. In my view, these findings were open on the evidence.
The plaintiff placed considerable reliance on the motor registration disposal notice. She said that the defendant signed it so as to transfer the vehicle to her. The learned magistrate came to the following conclusion on this aspect:
“With regard to the suggestion that the defendant agreed to transfer the vehicle from his name into the plaintiff’s and indeed signed the disposal notice I reject the plaintiff’s evidence on that. If the defendant had transferred the registration into the plaintiff’s name and agreed to deliver the car to her on the following day it seems inconsistent that he would not then, nor now, hand the vehicle over to her. I say no more than I am not persuaded that it was the defendant who signed the disposal notice. (exhibit P8).”
In my view, these findings were also open to the magistrate. He was entitled to rely on what he considered to be an inconsistency between the defendant willingly signing this document and his refusal at all other times to part with the vehicle. It is also of some significance that the plaintiff said she printed the defendant’s name alongside the signature because the defendant was slightly intoxicated at the time.
Mr Mancini, for the plaintiff, argued that the magistrate gave insufficient attention to the vehicle disposal notice in his reasons. He also said that the magistrate should have had regard to the requirement referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 that a court should have regard to the seriousness of an allegation in certain cases in determining whether the case is proved on the balance of probabilities. He pointed out that in the defence the following statement appeared:
“When the defendant inspected the Disposal Notice he was able to see clearly that his signature had been forged.”

I have said that it was an important part of the plaintiff’s case that the defendant signed the document. The learned magistrate refused to make a finding in her favour on this issue. He did not make a positive finding of forgery and he did not use the conclusion which he reached for any other purpose. He was careful to point out that he wished to say no more than that he was not persuaded that it was the defendant who signed the disposal notice.
In my view, the decision in Briginshaw’s case does not apply in these circumstances. Briginshaw’s case and those which followed it are concerned with the process of achieving a reasonable satisfaction as to the existence of a particular fact or state of affairs, the acceptance of which would involve a finding of fraud or other misconduct. I also reject the suggestion that the magistrate did not deal in sufficient detail with this issue.
Mr Mancini criticised the process whereby the learned magistrate reached findings adverse to the plaintiff’s credibility. It is clear that the magistrate was unimpressed by either the plaintiff or the defendant. He did not accept either of them as a witness of truth. He concluded that the plaintiff lied on a variety of topics and he rejected most of her evidence. Mr Mancini said that the magistrate should have identified those topics.
Whilst it is appropriate in many cases for the fact-finder to identify specific lies, it is unnecessary to do so if the finding is that the witness has presented a version which is false in all or most respects. It would seem that this is what the magistrate was conveying when he made the remarks which I have quoted above. However the magistrate did go on to identify one particular lie. He said:
“She is the Mrs C.J. Denny referred to in the Credit Contract. She provided that false name. I expect she did so because she did not want anyone to know she was receiving money. She was an undischarged bankrupt at that time. Put simply I think she is a fraudulent person.”

The magistrate was there referring to information which had to be filled in on the credit contract. The information included the name of the defendant’s landlord. The name “Mrs C J Denny” was written in the space provided. As I have previously stated, the defendant was with the plaintiff at the time.

When asked about this entry in evidence, the plaintiff said that as far as she knew there was no such person. She added that the only person she knew with that surname was Janet Carlisle Denny who is the plaintiff’s sister. In answering these questions the plaintiff said she had documents to prove that there was no “C J Denny” living at her address. It was the defendant’s evidence that the plaintiff supplied the surname Denny to the salesman.
It would seem odd that the defendant would take it upon himself to provide that name to the salesman. I think the magistrate was justified in concluding that the plaintiff provided the name for the purpose which he identified.
At this point in his reasons the learned magistrate stated that what he had said so far was sufficient to reject the plaintiff’s case. However he went on to say that the plaintiff lied on other aspects of her evidence. He then referred to the evidence of Mr Possingham, the former employee of Pacific Mercantile, the collection agents for the Little Loan Company.
Mr Possingham was called by the defendant. He appears to have had limited contact with the plaintiff although he did speak to her on one occasion. In answer to a question from the magistrate, Mr Possingham said that the plaintiff claimed the defendant had gone out to purchase the vehicle but the plaintiff had made the payments. She showed Mr Possingham bank statements to support this assertion. She told him that there was an understanding that once the loan was paid out the defendant would transfer the ownership of the vehicle to her. She showed Mr Possingham a motor registration document signed by the defendant. She told him that the vehicle was now in the defendant’s name because he had arranged for the details to be altered through his friend who works in the Motor Vehicles Department. She said that the defendant was now claiming that his signature was forged.
The magistrate, after considering this evidence, said:
“She lied to Mr Possingham on a variety of matters just as she lied to me.”

I understand these comments to refer to the conversation which the plaintiff had with Mr Possingham. I think the lies the magistrate was referring to consisted of a version along the lines of the plaintiff’s evidence in court. I do not think the magistrate was suggesting that the plaintiff was caught out in a lie as a result of Mr Possingham giving evidence. The magistrate did say that he preferred Mr Possingham’s evidence where it conflicted with that of the plaintiff and I agree with the submission that there does not seem to be any obvious conflict between the evidence of the plaintiff on the one hand and Mr Possingham on the other. The learned magistrate said that the plaintiff’s evidence was “at odds” with the evidence of Mr Possingham. It is difficult to see that this is so, but I do not think that it has an important bearing on the reliability of the magistrate’s assessment of the plaintiff’s credit overall.

The remainder of the grounds of appeal are directed towards the conduct of the hearing before the learned magistrate. They claim:
“1..... That the course of proceedings at trial were contrary to the principles of natural justice and amounted to a denial of procedural and substantive fairness.
2.That the learned magistrate erred in refusing the plaintiff’s application for an adjournment by virtue of discovery of documents being made by the defendant’s solicitors the day before trial.
3...... That the learned magistrate erred in refusing to permit the plaintiff to call witnesses.
4.That the learned magistrate permitted improper, irrelevant or inadmissible cross-examination of the plaintiff when she gave evidence.”
The plaintiff swore a lengthy affidavit in support of these grounds. She complains in the affidavit that she understood from what she had been told by the solicitor for the defendant that various witnesses would be called and documents tendered by the defence which she, the plaintiff, considered would also be relevant to her case. She stated that during the hearing not all of these witnesses were called and only part of the relevant documentary material was tendered.
It is clear, in my view, that the plaintiff was given adequate notice of the fact that she had to be ready for trial. At a conciliation conference held on 14 April 1999 this matter was discussed. The magistrate who presided over the conference made the following entry on the court file on that date:
“Plf advised as to dangers of proceeding. Plf advised she will need to subpoena any witnesses she needs to call and only witnesses who are present will have their evidence heard and evidence will not be accepted by way of letter or other statements.”
The plaintiff states in her affidavit that on 2 June 1999 an application filed by her was heard by the learned trial magistrate prior to the commencement of the trial. The application which was filed on 26 May 1999 sought an order “to void the defence on the grounds set by (sic) in this Court.” The nature of this application is not clear on the material before me. It was dismissed by the magistrate. However in the affidavit filed at the hearing of the appeal the plaintiff stated that she made submissions to the magistrate that the defendant had made late discovery of documents and had not provided copies of all the documents. She said she had received copies of some of the documents she requested and she received a number of documents on the day of the trial and the day prior to the trial. She said she did not have enough time to study them and prepare her case.
There is nothing before me to suggest that any of these documents were of importance to the plaintiff’s case or that the trial was unfair by reason of the circumstances referred to by the plaintiff. The only attempt to identify what documents may have been of assistance to the plaintiff’s case was in an application made by the plaintiff for an adjournment of the appeal which was filed on the day prior to the appeal. As part of that application the plaintiff sought orders that subpoenas be issued in order that documentary materials from AGC, Little Loan Company, SA Police Department, Pacific Mercantile and Transport SA be produced. In the case of the Little Loan Company documents were produced to the court by an employee, Anna Gabrielli, the day before the trial. Ms Gabrielli also provided a one page statement in relation to the dealings between the plaintiff and the company. Carol Curzon, an employee of Transport SA, also provided documentary material shortly before the trial. She summarised various communications between the parties and the Registration and Licensing section of Transport SA relating to the Subaru vehicle. The material produced does not appear to lend any assistance to the plaintiff’s case. I have pointed out that Mr Possingham, formally of Pacific Mercantile, was called to give evidence for the defendant and the plaintiff had an opportunity to cross-examine him about any documentary material in the possession of his former employer.
The plaintiff stated in her affidavit that SA Police records may disclose that the defendant has a criminal history. However this avenue of inquiry was open to the plaintiff prior to the trial. I granted leave to the plaintiff to subpoena the AGC documents and to inspect them. Mr Mancini has since advised the court that the plaintiff does not wish to apply to tender any of those documents for the purposes of the appeal.
In my view, no unfairness of the type complained of in the grounds of appeal has been demonstrated. The plaintiff was given ample time for the preparation of her case and advised that she would have to arrange for any witnesses to attend at the trial. There is no application to put before this Court any evidence which might be considered as fresh evidence in accordance with the tests laid down for that type of evidence. The submission that other documents which were not produced to the court might have assisted the plaintiff’s case is no more than speculation. It was not established on appeal that the learned magistrate permitted irrelevant or inadmissible cross-examination of the plaintiff.
It must be acknowledged that the plaintiff found it difficult to present her case to the court, a problem frequently encountered in the case of unrepresented litigants. However, the plaintiff had the capacity to acquaint the court with the essential elements of her version. She gave evidence as did the defendant and the case turned mainly on credibility. It is unlikely that any additional documentary evidence could have cast the objective facts relied upon by the magistrate in any different light.
The learned magistrate was faced with the difficult task of assisting a litigant in person without, at the same time, providing legal advice or conferring some advantage on the unrepresented litigant over the represented defendant. The court’s dilemma in these circumstances is discussed in Byrne and Leggat “Litigants in Person - Procedural and Ethical Issues for Barristers” (1999) 19 Aust. Bar Rev. 41. The extent to which a judge or magistrate is required to assist an unrepresented person depends very much on the circumstances of the particular case. (Abram v Bank of New Zealand [1996] ATPR 41 - 407 at 43 - 347) A more detailed explanation of rights and options may be required in a criminal trial. (McPherson v The Queen (1981) 147 CLR 512) Even then, it is no function of the trial judge to give advice on the presentation of an accused person’s case.
Some guidance is provided in Rajski v Scitec Corporation Pty Ltd, (Samuels JA, 16 June 1986, unreported NSW CA) where he said (14):
“In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. 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. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.”
In the same case Mahoney JA said (27):
“Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.”

See also Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85 (12 February 1999).

I am conscious of the difficulties which litigants in person create for judicial officers, particularly in courts of summary jurisdiction. However, I am constrained to say that on the face of the transcript in this case it would appear that the learned magistrate could have been of more assistance to the plaintiff. This was not a case in which the plaintiff persisted with repetitious or clearly irrelevant arguments. Nevertheless, from time to time, the learned magistrate exhibited an abruptness with the plaintiff which, in my view, was inappropriate having regard to the role referred to in the authorities cited above.
The following passage provides an example:
“MS MAHER:........ Can I tender something, can I?
HIS HONOUR: As long as you prove it. What is it?
MS MAHER:......... It’s a calendar back in 1994 stating when Mr Wall went to the hospital, when Mr Howe went on leave, and it will justify where the lump sum payment came from.
HIS HONOUR: It won’t actually. All it is is a calendar that someone’s filled in, and poor old Mr Howe seems to be ripped off again.
MS MAHER:......... I just got a lump sum payment because he went on leave.
HIS HONOUR: You mean Mr Howe got a lump sum payment that you somehow got your hands on?
MS MAHER:......... I’m sorry but I’m being made out to be a nasty person here. I don’t believe I am.
HIS HONOUR: Let’s not mince words. You’re being made out to be a thief and a cheat and a liar. I mean, that’s what you’re being made out to be.
MS MAHER:......... I have documents here proving that I don’t believe that I’m a cheat, a liar or a thief. I have the originals here. They are copies from the Health Department, Christian Community Care and the Salvation Army. Would you like to have a look at them before I tender them?
HIS HONOUR: You won’t tender them unless you prove them.
MS MAHER:......... They are to justify what I actually do, that I am of respectable character otherwise I would not have been doing the work that I’ve been doing and that I am a consumer representative on quite a number of committees to do with the South Australian Health Department. So I would like to tender these as character.
HIS HONOUR: You can’t just tender documents. You have to prove documents. That means you call the author of them or the recipient of them.
MS MAHER:......... I’m sorry, but Ms Pearce hasn’t called everyone either. The Health Department I haven’t got here for the simple reason trying to get him from the Health Department would be very difficult.
HIS HONOUR: I’m not interested in excuses. Now, look, I explained this to you at the very outset. This is a formal case where you are required to prove your case and I explained that to you at the very outset.
MS MAHER:......... I didn’t actually realise before court yesterday that I actually had to subpoena people to verify things.
HIS HONOUR: I can’t help that. I can only take into account the properly admitted evidence.”
Whilst it might be conceded that it was part of the defence case to accuse the plaintiff of being a thief, a cheat and a liar, it was inappropriate for the learned magistrate to use the intemperate language which he employed throughout this exchange and to make the suggestion, which was not established on the evidence, that Mr Howe “seems to be ripped off again”.
However, after reading the entire transcript of the proceedings at the trial, I have reached the conclusion that the plaintiff was not deprived of a fair trial; that she was able to present her case with reasonable effectiveness notwithstanding her lack of formal legal knowledge; and that the ultimate decision of the court at first instance was justified on the evidence.
The appeal will be dismissed.

[2000] SASC 176

23 June 2000