Supreme Court Of Victoria; Court Of Appeal; S Eapci 2024 0082; John Myers; Applicant; and; Victorian Civil And Administrative Tribunal & Ors (According to the Attached Schedule); Respondents

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCI 2024 0082
JOHN MYERS	Applicant
and
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	Walker JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	17 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 206
JUDGMENT APPEALED FROM:	[2024] VSC 412 (Watson J)

PRACTICE AND PROCEDURE – ‘McKenzie friend’ (lay person permitted to assist a party) – Where judge denied application for ‘McKenzie friend’ to make oral submissions at trial – Whether judge erred in finding special circumstances not made out – Whether judge erred in finding applicant’s proposed candidate for ‘McKenzie friend’ not suitable – Whether judge breached Charter of Human Rights and Responsibilities 2006 or Equal Opportunity Act2010 – Whether judge denied applicant procedural fairness – No error by trial judge – Application for leave totally without merit – Application for leave to appeal refused.

McKenzie v McKenzie [1971] P 33; Collier v Hicks (1831) 2 B & Ad 663; 109 ER 1290; Vella v Wybecca [2014] VSC 443; Nepal v Minister for Immigration and Border Protection (2015) 327 ALR 89; Li v So [2021] VSCA 32; Kiley v McMahon [2024] VSC 228; Smith v The Queen (1985) 159 CLR 532; Attorney-General (NSW) v Chan [2011] NSWSC 1315, discussed.

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Counsel
Applicant:	In person
First Respondent:	Not applicable
Second Respondent:	Mr L McAuliffe
Third Respondent:	Ms R Walsh
Solicitors
Applicant:	Not applicable
First Respondent:	Not applicable
Second Respondent:	Office of the Victorian Information Commissioner
Third Respondent:	Maddocks

WALKER JA:

The applicant, John Myers, made a request for documents to the Department of Education and Training under the Freedom of Information Act 1982. The Department advised him that it had found no documents that met the terms of his request. Mr Myers then made a complaint to the Information Commissioner; the Commissioner dismissed that complaint. Mr Myers then lodged an application for review of the Department’s decision with the Victorian Civil and Administrative Tribunal (‘VCAT’ or the ‘Tribunal’). The Registrar of the Tribunal refused to accept the application, and that decision was affirmed by a VCAT member.[1] Mr Myers then lodged an application in the Trial Division of the Supreme Court to appeal the member’s decision on several questions of law.
[1]Myers v Department of Education and Training [2023] VCAT 74.
Mr Myers’ appeal from the VCAT decision has not yet been resolved. In or about November 2023 he issued a summons seeking an order that the Court appoint a pro bono lawyer to assist him with his case. A judicial registrar dismissed that application. Mr Myers then appealed that order. Ginnane J rejected that appeal and, in addition, held that he was not persuaded that Mr Myers’ case was one that warranted the Court requesting pro bono assistance through the Victorian Bar’s pro bono assistance scheme.[2]
[2]Myers v Victorian Civil and Administrative Tribunal [2024] VSC 109, [16].
Mr Myers then made an application that at the hearing of his matter he be permitted the assistance of a ‘McKenzie friend’, Dr Manu Chopra, to make oral submissions on his behalf. Watson J refused that application on 15 July 2024.[3] Mr Myers now seeks leave to appeal that decision.
[3]Myers v Victorian Civil and Administrative Tribunal [2024] VSC 412 (‘Reasons’).
Mr Myers’ appeal against the VCAT decision was heard by Watson J on 30 July 2024. Mr Myers initially appeared at the hearing by video link and made submissions, but disconnected at some point in the course of the hearing. Following the hearing, Watson J made orders permitting the applicant to file and serve written submissions in response to the second and third respondents’ submissions made at the hearing on 30 July 2024 (as well as written submissions and affidavit material in relation to certain other applications).
On 12 September 2024 the Registrar of the Court of Appeal referred Mr Myers’ application for leave to appeal to me to determine pursuant to r 64.15 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’). Having considered the materials filed by the parties,[4] I have determined, pursuant to s 14D(3) of the Supreme Court Act 1986 and r 64.15(5)(iv) of the Rules, that the application for leave to appeal is totally without merit. The application must thus be refused. My reasons are set out below.
[4]Having regard to r 64.15(2), I did not consider that an oral hearing was necessary or desirable; thus I did not direct that there be an oral hearing.

‘McKenzie friend’: relevant principles

The term ‘McKenzie friend’ refers to a lay person[5] who is granted permission by a court to assist an unrepresented party. The term is derived from the case of McKenzie v McKenzie,[6] where a lay person was permitted to assist an unrepresented litigant by prompting, taking notes and quietly giving advice. It has been said that the role of a McKenzie friend includes those forms of assistance, but does not extend to taking part in the proceedings ‘as an advocate’.[7] However, the authorities make clear that a court has power to permit a McKenzie friend to do more than simply prompt, take notes and give advice; a court may permit a McKenzie friend to make submissions on behalf of a party.[8]
[5]That is, a person who is not entitled to practise as a lawyer, which may include a person who is legally qualified but does not have a practising certificate and thus has no right of appearance.
[6][1971] P 33. See also Collier v Hicks (1831) 2 B & Ad 663; 109 ER 1290, 1292 (Lord Tenterden CJ).
[7]Vella v Wybecca [2014] VSC 443, [31] (Hargrave J). See also the authorities mentioned in Nepal v Minister for Immigration and Border Protection (2015) 327 ALR 89, 92 [15] (Edelman J); [2015] FCA 366 (‘Nepal’).
[8]See, eg Li v So [2021] VSCA 32, [20] (Tate, Emerton and Sifris JJA); Nepal (2015) 327 ALR 89, 92 [15] (Edelman J); [2015] FCA 366 and the authorities mentioned therein.
The principles relevant to whether a party should be permitted to have a McKenzie friend assist them at a hearing were recently summarised by Harris J in Kiley v McMahon, in a passage quoted by the trial judge:[9]
A person who is not legally qualified will be given leave to represent an unrepresented litigant as a McKenzie friend, as an exception to the rule that only qualified legal practitioners may appear for litigants, when there are special circumstances making it necessary for the administration of justice. This exceptional nature of the grant of leave arises because of the importance of legally qualified practitioners not only being trained in the law (and so best equipped to assist the court with the legal issues that arise) but also subject to professional rules and disciplinary sanctions for non-compliance with those rules.
In complex cases in the higher courts there is a particular need for caution in assessing whether the grant of leave to an unqualified person to appear will serve the administration of justice. There is a risk that an unqualified representative will not be able to address the legal issues involved in a way that assists the Court. It is undesirable to permit the development of any practice which will deprive the Court of the assistance of skilled professionals in any but the most exceptional cases.[10]
[9]Reasons, [10].
[10]Kiley v McMahon [2024] VSC 228, [19]–[20] (emphasis added) (citations omitted) (‘Kiley’).
Edelman J made similar remarks in Nepal, observing as follows
[W]here a party cannot obtain representation by a lawyer, great care must still be taken before allowing a non-lawyer to speak for the party to legal proceedings. The non-lawyer is not regulated, the non-lawyer has not been trained in the ethical duties of lawyers to the court, and the non-lawyer may do more harm to the party than good.
…
It has been said that it will be a ‘rare and exceptional case’ in which a person other than a duly qualified legal practitioner will be permitted to address the court or otherwise take an active part in the proceedings.[11]
[11]Nepal (2015) 327 ALR 89, 92 [15], 93 [17] (Edelman J); [2015] FCA 366 (emphasis added) (citations omitted).
As Gibbs CJ observed in Smith v The Queen, the question whether a person should be allowed to have a ‘McKenzie friend’ to assist them at trial is a matter of practice and procedure, and within the discretion of the trial judge to decide.[12] Thus any appeal from such a decision is to be decided according to the principles set out in House v The King:[13] that is, an appellant must demonstrate either a specific error (such as acting upon a wrong principle, taking into account irrelevant matters, failing to take into account a matter that was required to be taken into account, or mistaking the facts) or that the decision is ‘unreasonable or plainly unjust’.
[12]Smith v The Queen (1985) 159 CLR 532, 534 (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ agreeing at 535); [1985] HCA 62.
[13](1936) 55 CLR 499; [1936] HCA 40.

The judge’s decision

The judge summarised Mr Myers’ arguments in support of his application for a McKenzie friend as follows:
(a)where a party is not represented by a lawyer it is permissible to appoint a McKenzie friend for the purposes of making oral submissions in ‘special circumstances’;
(b)he is not proficient in articulating his ideas in verbal argument;
(c)he has suffered from a ‘serious mental disability’ for years, which impacts his cognitive ability;
(d)he has not graduated from high school;
(e)he has tried to obtain the assistance of 115 lawyers, none of whom responded to his emails seeking assistance;
(f)he felt ‘humiliated’ at VCAT when he was asked questions by the Tribunal;
(g)Dr Chopra is more familiar with the ‘freedom of information legislation’ than he is and has assisted him in the preparation of his written argument; and
(h)special circumstances for the appointment of Dr Chopra as a McKenzie friend to make oral submissions exist.[14]
[14]Reasons, [3].
His Honour concluded that he was not satisfied that Mr Myers had demonstrated special or exceptional circumstances that would make it desirable for him to have a McKenzie friend make oral submissions on his behalf. His reasons for that conclusion were as follows:
Mr Myers has previously represented himself, both in this Court and in VCAT. In none of those previous proceedings does it appear that the relevant presiding officer identified any difficulty in Mr Myers making submissions on his own behalf.
In particular, as recently as January of this year, Mr Myers appeared on his own behalf in this Court in a successful application seeking judicial review of orders of the Magistrates’ Court of Victoria granting interim personal safety intervention orders.
I have not overlooked that in this matter Mr Myers made an application seeking orders that the Court appoint a pro bono lawyer to represent him. The Court noted in the judgment on that application that one of Mr Myers’ reasons for seeking legal assistance was to ease the burden imposed upon him by the many cases he was running on his own behalf.
In short, whilst Mr Myers now asserts that he has difficulty making oral arguments and is significantly impeded by his lack of formal education, there is no indication that this has prevented him from representing himself in the past.
Mr Myers also refers to his medical conditions. There is no evidence that those medical conditions will in any way impede his presentation of oral argument on his own behalf. In voluminous materials filed in reply (most of which were completely irrelevant), Mr Myers included some documentary evidence apparently indicating diagnoses of psychosis, schizophrenia and epilepsy, amongst other conditions. There is no evidence which would suggest that any of those conditions are currently manifesting in a way which would preclude Mr Myers from making oral submissions on his own behalf at the hearing on 30 July 2024.
Mr Myers refers, in particular, to having contacted 115 barristers seeking representation without success, and contends that in this respect his case is even stronger than the circumstances which pertained in Kiley where the uncontested evidence was that Ms Kiley had contacted 75 lawyers seeking representation. Whilst the unavailability of legal representation is a necessary condition for the appointment a McKenzie friend, it is clearly not sufficient. In this case, it is not decisive and does not, on its own, constitute a special circumstance.
The decision in Kiley needs to be understood in context. Her Honour there dealt with a situation in which Ms Kiley had been represented by a McKenzie friend in the hearing below, the application for a McKenzie friend in the hearing before her Honour was not opposed, and the application was made very shortly before the hearing of the matter was due to commence.
The circumstances of this case are different. Mr Myers was not represented by Dr Chopra before VCAT. The respondents in this matter oppose the McKenzie friend application and Mr Myers’ application for a McKenzie friend can be dealt with and resolved sufficiently before the scheduled hearing to give him adequate time to prepare submissions on his own behalf.
Mr Myers has obtained the assistance of Dr Chopra in his extensive written outline of submissions in this matter. Whilst the case is not without some complexity (as indeed is the situation with most cases before this Court), there is no basis, on the evidence before me, to conclude that Mr Myers will not be able to advance oral submissions in support of his case at the trial. In any event, as the passage extracted from Kiley above indicates, the complexity of the matter is a factor often tending away from the appointment of a lay advocate as a McKenzie friend for the purposes of making oral submissions.
Overall, having considered the materials before me, and without regard to the matters which the respondents put regarding Dr Chopra, I am not satisfied that Mr Myers has demonstrated the special or exceptional circumstances which are required for the appointment of a McKenzie friend to make submissions on his behalf.[15]
[15]Reasons, [11]–[15] (citations omitted).
His Honour then went on to consider whether, if he had been persuaded to permit Mr Myers to have a McKenzie friend make submissions on his behalf, he would have permitted Dr Chopra to play that role. The second and third respondents had submitted that Dr Chopra was an unsuitable person to act in that capacity. The judge accepted those submissions.
In relation to Mr Chopra’s suitability, the judge had regard to a series of findings by VCAT and by the Supreme Court concerning Mr Chopra’s behaviour as an advocate on his own behalf.[16] In short, various members of VCAT and judges of the Supreme Court have described Mr Chopra’s behaviour in proceedings before the Tribunal and before the Court as ‘unacceptable’, ‘aggressive’, ‘harassing and intimidating’, ‘anarchical’,[17] ‘offensive’,[18] ‘belligerent and time-wasting’,[19] ‘disruptive’[20] and ‘intemperate’.[21] Furthermore, Mr Chopra often refused to accept rulings,[22] his written material was often unnecessarily voluminous and repetitive[23] and, in at least one instance, it contained abusive and scandalous content of a totally unacceptable nature.[24] The judge observed that some of Mr Myers’ reply submissions had obviously been prepared by Dr Chopra and exhibited some of the same tendencies: they were overly long, intemperate and, in some respects, irrelevant to the present proceeding.[25]
[16]Reasons, [26]–[27].
[17]Chopra v Department of Education and Training [2019] VCAT 174, [36]–[38] (P Quigley J).
[18]Chopra v Department of Education and Training [2019] VCAT 1941, [55] (SM Smithers).
[19]Chopra v Department of Education and Training [2020] VCAT 748, [28] (SSM Jenkins J).
[20]Chopra v Department of Education and Training [2020] VCAT 1035, [79] (SSM Jenkins J); Chopra v Department of Education and Training [2022] VCAT 152, [47] (P Quigley J).
[21]Chopra v Department of Education and Training[No 2] [2021] VSCA 112, [10] (McLeish JA).
[22]Chopra v Department of Education and Training [2019] VCAT 174, [36] (P Quigley J).
[23]Chopra v Department of Education and Training[No 2] [2021] VSCA 112, [10] (McLeish JA).
[24]Chopra v Department of Education and Training [2020] VCAT 748, [15] (SSM Jenkins J).
[25]Reasons, [30].
His Honour rejected Mr Myers’ submission that these observations by Tribunal members and judges were inadmissible by reason of ss 91, 97 and 98 of the Evidence Act 2008.[26]
[26]Reasons, [23]–[25].
The judge concluded that, in light of the materials before him, had he been satisfied that Mr Myers had demonstrated the exceptional circumstances required for the appointment of a McKenzie friend to make oral submissions, he would, in any event, not have granted leave for Dr Chopra to make oral submissions on Mr Myers’ behalf.

Mr Myers’ proposed grounds of appeal

Mr Myers’ application for leave to appeal sets out 11 proposed grounds of appeal,[27] as follows:
[27]For convenience I will refer to the proposed grounds of appeal simply as grounds of appeal.
1.The Court erred in determining special circumstances did not exist for Appellant to be granted assistance of an extended McKenzie friend to make oral submissions on his behalf, and further, it applied a wrong test.
2.The Court erred in finding s 91 of the Evidence Act did not apply and failed to give adequate reasons.
3.The Court erred in overlooking that s 76 of the Evidence Act did not apply.
4.The Court erred in admitting disputed ‘opinions’ as ‘tendency’ under s 97 of the Evidence Act.
5.The Court erred in ignoring requirements of relevant provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) in issuing administrative orders to not allow an extended McKenzie friend in the circumstances of the Appellant whilst engaging in contraventions of the Charter.
6.The Court erred in ignoring requirements of relevant provisions of the Equal Opportunity Act 2010 (Vic) (EO Act) in issuing administrative orders to not allow an extended McKenzie friend in the circumstances of the Appellant whilst engaging in contraventions of the EO Act.
7.The Court erred by ignoring the now statutory imperatives required under the correct interpretation of the relevant provisions of the Charter and/or the EO Act which at the very least substantially impact if not dictate or even override the exercise of discretion under the common law with regards to the making of administrative orders by a Court (or Tribunal) to allow assistance of an extended McKenzie friend to make oral submissions on behalf of a self-represented person in circumstances where there is unchallenged evidence that the person is suffering from a cognitive impairment, Acquired Brain Injury, other serious mental disorders, epilepsy, diabetes, has been on disability pension for several years, has failed year 11 including the subject of English and had affirmed in an Affidavit that he is unable to orally articulate effective legal arguments in this Appeal.
8.The Court denied the Appellant natural justice and/or procedural fairness and a fair hearing.
9.The Court denied the Appellant natural justice and/or procedural fairness by not scheduling an oral hearing and with respect, making a misleading if not a false statement that “At Mr Myers’ request, I am dealing with this application on the papers” whereas in the 5 June 2024 Orders, the Court had stated “His Honour will determine whether the applicant's application for a McKenzie friend can be heard on the papers having considered the submissions filed with the Court”.
10.Court denied natural justice by not complying with its positive duty to assist a self-represented person.
11.The Court erred in denying natural justice such that a reasonable apprehension has arisen that it might not have brought an impartial mind to the determination of the issues of an extended McKenzie friend.

Mr Myers written case also referred to matters set out in an unsigned affidavit dated 29 July 2024, which included some 57 exhibits. That affidavit was not accepted for filing because Mr Myers sought to file it as a ‘draft summary for the Court of Appeal’, but it was substantially irregular. Furthermore, Mr Myers did not make an application to adduce further evidence on the application for leave to appeal. Notwithstanding those matters, I have had regard to the matters in that document. I note that the second and third respondents were provided with a copy of that affidavit and relied upon aspects of it in their written submissions.
It is convenient to divide the grounds of appeal into the following categories:
(a)The first category concerns the judge’s conclusion that Mr Myers had not made out special circumstances that warranted Mr Myers being permitted the assistance of an ‘extended McKenzie friend’[28] to make oral submissions on his behalf. Only ground 1 falls within this category.
(b)The second category concerns the judge’s conclusion that Dr Chopra would not be a suitable person to make oral submissions as a McKenzie friend. Grounds 2, 3 and 4 fall within this category.
(c)The third category concerns alleged contraventions of the Charter of Human Rights and Responsibilities Act 2006 and the Equal Opportunity Act 2010. Grounds 5, 6 and 7 fall within this category.
(d)The fourth category concerns allegations of a denial of procedural fairness. Grounds 8, 9, 10 and 11 fall within this category.
[28]This term appears to be derived from Edelman J’s judgment in Nepal, where his Honour used that language to describe a McKenzie friend who is permitted to make oral submissions, as opposed to providing more limited assistance.

The first category: did the judge err in concluding special circumstances were not made out?

In relation to ground 1, Mr Myers’ submissions may be summarised as follows:
(a)Mr Myers had extensive, existing medical conditions that meant that he could not articulate for himself the complex legal arguments in the appeal. These constituted ‘more “severe” “special circumstances”’ than had been present in some of the earlier authorities upon which Mr Myers relied. However, the judge failed to consider Mr Myers’ acquired brain injury, his cognitive impairment, his diagnosis of schizophrenia or his paranoid delusions.
(b)The judge referred only to Kiley in his reasons, and ignored other authorities. In any event, Kiley supported Mr Myers’ application because:
Ms Kiley had merely emailed that she could not articulate legal arguments. I had done more than that. Her extended McKenzie friend had extensively helped her at the lower level and in written submissions on Appeal. So had Dr Chopra. She had not found lawyers; I had written to 115 and asked for pro bono help.
(c)It was ‘illogical at best and false equivalence’ for the judge to conclude that, because Mr Myers had appeared in proceedings in the past, he could do so in the present case.
(d)In relation to the judge’s conclusion that there was ‘no evidence which would suggest that any of [Mr Myers’] conditions are currently manifesting in a way which would preclude Mr Myers from making oral submissions on his own behalf,[29] the judge erred on several grounds, which were articulated as follows:
First, if this was the legal test, then I should have been put on notice and allowed to provide evidence. Secondly, being self-represented, his Honour had a positive duty to clarify this ‘legal test’ or his evidentiary ‘expectation’ before a decision was made to accord me a fair hearing and procedural fairness. Thirdly, how did his Honour know that these conditions were not “currently manifesting”? This was a false assumption. My conditions are chronic and always manifesting. His Honour should actually have taken judicial notice of this. Fourthly, his Honour omitted to list Acquired Brain Injury (ABI) and cognitive impairment. How can these not be always “currently manifesting”? Fifthly, if his Honour was uncertain, the fair option was to organise an oral hearing. Or ask for clarity or further evidence in writing. His Honour did neither.
(e)In finding special circumstances did not exist, the judge erred ‘by impermissibly imposing an evidentiary onus’ on Mr Myers, by failing to take into account his evidence, which was unchallenged, and by misapprehending that his cognitive impairment, acquired brain injury and other chronic serious mental conditions were ‘not currently manifesting’ themselves.
(f)The judge applied the wrong test by stating that ‘exceptional’ circumstances were required, thereby raising the threshold of the common law test for an extended McKenzie friend.
[29]Reasons, [16].
In response, the second and third respondents submitted that the judge had not applied the wrong test or made any other error of law.
In my opinion, ground 1 is entirely lacking in merit. I will address each of Mr Myers’ points in turn.
First, the judge did not fail to consider Mr Myers’ various medical conditions. The judge referred to Mr Myers’ documentary evidence that apparently indicated diagnoses of ‘psychosis, schizophrenia and epilepsy, amongst other conditions’.[30] The reference there to ‘other conditions’ was apt to pick up the various other conditions upon which Mr Myers’ relied, including his acquired brain injury and his paranoid delusions. Secondly, his Honour also expressly referred Mr Myers’ submissions concerning the impact of his ‘serious mental disability’ on his ‘cognitive ability’. The fact that the judge did not expressly refer to Mr Myers’ acquired brain injury, or to his paranoid delusions, does not mean his Honour failed to have regard to those matters.
[30]Reasons, [16].
Secondly, whether or not Mr Myers’ conditions were ‘more severe’ than the conditions that had been present in some of the earlier authorities was not to the point. The judge’s decision fell to be made in the circumstances of this particular case, and the conclusion in some other case about some other person with less serious medical conditions did not dictate the outcome of the judge’s exercise of his discretion.
Thirdly, the judge’s reliance on Harris J’s decision in Kiley was entirely appropriate. That was a recent, accurate summary of the authorities which included footnotes to other relevant authorities. There was in those circumstances no need for his Honour to make detailed reference to other authorities in his reasons. Furthermore, Mr Myers had himself relied upon Kiley. The fact that Ms Kiley had been permitted to have the assistance of a McKenzie friend to make oral submissions did not dictate the outcome in Mr Myers’ case.
Fourthly, there was nothing illogical in the judge’s conclusion that, because Mr Myers had appeared in proceedings in the past, he could do so in the present case. In the absence of evidence to suggest that matters had changed, that inference was plainly open to his Honour on the material before him.
Fifthly, the judge did not err in concluding that there was ‘no evidence which would suggest that any of [Mr Myers’] conditions are currently manifesting in a way which would preclude Mr Myers from making oral submissions on his own behalf’. In particular:
(a)The judge did not impose any legal test or expectation; his Honour simply reached a factual conclusion based on the evidence before him. Mr Myers had an opportunity to provide evidence about his capacity to make oral submissions.
(b)Because the judge had not imposed any ‘legal test’ or evidentiary ‘expectation’, his Honour had no duty to inform Mr Myers of such a test or expectation.
(c)The judge was not required to take judicial notice of the proposition that Mr Myers’ conditions ‘are chronic and always manifesting’. If that was Mr Myers’ contention, he had the opportunity to put medical evidence before the judge to support it. He did not do so.
Sixthly, the judge did not err ‘by impermissibly imposing an evidentiary onus’ on Mr Myers. It was Mr Myers’ application and he bore the onus of persuading the judge that special circumstances existed that warranted permission for Mr Chopra to make oral submissions as a McKenzie friend. The judge did not fail to take into account Mr Myers’ evidence.
Seventhly, the judge did not apply the wrong test by stating that ‘exceptional’ circumstances were required. The authorities demonstrate that, when it comes to the question of whether a McKenzie friend ought to be permitted to make oral submissions, ‘special circumstances’ and ‘exceptional circumstances’ are synonymous, each indicating that ‘it will be a “rare and exceptional case” in which a person other than a duly qualified legal practitioner will be permitted to address the court or otherwise take an active part in the proceedings’.[31] The judge plainly understood and applied the correct legal test in relation to permission to a person to have a McKenzie friend make submissions on their behalf.
[31]Nepal (2015) 327 ALR 89, 93 [17] (Edelman J); [2015] FCA 366 (citations omitted).
For these reasons, ground 1 is entirely without merit.

The second category: did the judge err in concluding that Dr Chopra would not be a suitable person to make oral submissions as a McKenzie friend?

Grounds 2 to 4 are directed to the judge’s decision that Dr Chopra would not be a suitable person to act as a McKenzie friend with permission to make oral submissions. This aspect of the judge’s decision was by way of obiter because, having concluded that he would not grant permission for any lay person to make oral submissions on behalf of Mr Myers, the identity of such a person did not arise. Given that ground 1 is doomed to fail, these grounds of appeal are equally doomed to fail because they have no utility.
However, for completeness, I record that I can discern no error in the judge’s approach to Dr Chopra’s suitability.
Dealing first with ground 2, the judge did not err in concluding that s 91(1) of the Evidence Act did not apply to render the remarks made by the various Tribunal members and judges inadmissible. That section provides as follows:
Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
The trial judge relied upon the decision in Attorney-General (NSW) v Chan.[32] In that case the Attorney-General for New South Wales sought orders against the defendant under the Vexatious Proceedings Act 2008 (NSW). The Attorney relied, in the main, upon remarks made in judgments and decisions of tribunals in respect of proceedings in which the defendant had been involved. He submitted that the tender, and use, of the judgments relied upon did not infringe s 91 of the Evidence Act 1995 (NSW), which was in the same terms as s 91 of the Victorian Evidence Act. He contended that the judgments were adduced to establish matters other than facts in issue in the proceedings: namely, the outcome of the proceedings and the course they had taken. Furthermore, the Attorney contended that, in so far as they contained statements that reflected the views of judicial officers of the defendant’s conduct or the merit of the proceedings, they were relevant for the reasons set out in Attorney General (NSW) v Wilson,[33] Attorney General (NSW) v Croker[34] and Attorney General (NSW) v Gargan.[35] In relation to that material, Adamson J said as follows:
The judgments establish the procedural matters and the outcome of various applications made by, and against, the Defendant, in the proceedings relied upon by the Plaintiff. Furthermore, they also record the Defendant’s conduct in the course of the proceedings. These matters do not constitute findings of facts in issue in the proceedings. Whether such judgments contain statements which express judicial views on the merit, or otherwise, of the Defendant's stance in proceedings, the judgments are the best, if not the only, evidence of such views.[36]
[32][2011] NSWSC 1315 (‘Chan’).
[33][2010] NSWSC 1008, [22] (Davies J).
[34][2010] NSWSC 942, [125] (Fullerton J).
[35][2010] NSWSC 1192, [7] (Davies J).
[36]Chan [2011] NSWSC 1315, [47] (emphasis added).
As Chan reveals, there is abundant authority for the proposition that, in the context of determining whether a person is to be declared a vexatious litigant, a court may have regard to the remarks made by other judicial officers in proceedings involving the person in question. To do so will often be necessary in order for the Court to determine whether the person is to be declared a vexatious litigant. That course is not precluded by s 91 of the Evidence Act. In my view, the same principles apply to the determination of whether a lay person is a suitable person to be permitted to make oral submissions as a McKenzie friend. If such a person has previously participated in legal proceedings, either as a litigant or a McKenzie friend, their behaviour in such proceedings will be centrally relevant to whether they are suitable to be permitted to make oral submissions in the instant matter. Furthermore, regard to such material is necessary in order for the Court to protect the integrity of its own proceedings.
Ultimately, the judge was correct to conclude that the observations of various judicial officers about Mr Chopra’s behaviour in his own proceedings did not constitute findings of facts in issue in those proceedings. Section 91 thus did not preclude the judge from having regard to those observations.
Turning next to ground 3 — Mr Myers’ complaint that the judge ‘overlooked’ s 76 of the Evidence Act — that submission must also fail. Section 76(1) provides as follows:
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
However, s 78 provides for an exception to s 76(1), as follows:
The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a)the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b)evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

To the extent that the remarks of the various judicial officers constituted opinion evidence (as opposed to evidence of what they saw and heard), evidence of their opinion is admissible because it is based on what they saw or heard and is necessary to obtain an adequate understanding of their perception of the events they saw or heard.
In his written submissions in relation to ground 3 (but not in his grounds of appeal) Mr Myers also submitted that the judicial officers’ opinions are hearsay and that ‘hearsay has no probative value’. That submission is simply wrong in law and need not be considered further.
Turning now to ground 4 — that the judge erred in admitting ‘opinions’ as ‘tendency evidence’ under s 97 of the Evidence Act — that submission too must fail. The judge took the view that the evidence about Mr Chopra’s past behaviour was adduced to establish a tendency on his part. However, his Honour determined to admit the evidence because:
(a)the judge was satisfied that this evidence would have significant probative value in relation to Dr Chopra’s suitability to act as McKenzie friend;
(b)the written submissions of the second and third respondents gave Mr Myers reasonable notice of the substance of the evidence on which they sought to rely; and
(c)to the extent that notice had not been given in accordance with reg 8(b) of the Evidence Regulations 2019, his Honour considered it appropriate pursuant to s 190 of the Evidence Act to waive compliance with s 99 of the Evidence Act because:
(i)compliance with the provisions of reg 8(b) would have occasioned unnecessary expense and delay;
(ii)the evidence was important in determining whether Dr Chopra was a suitable person to act as a McKenzie friend making oral submissions; and
(iii)the findings of VCAT and of this Court about the conduct of a lay advocate have an inherent probative value in relation to the issues which might arise if that person were to be appointed a McKenzie friend acting as a lay advocate.[37]
[37]Reasons, [25].
That is, the judge recognised that the second and third respondents had not given notice in the form required by s 99 of the Evidence Act, but determined, in an exercise of discretion, to waive compliance with s 99 to the extent it required compliance with reg 8(b) of the Evidence Regulations and to admit the evidence. In that regard, ss 190(3) and (4) of the Evidence Act provide as follows:
(3)In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if:
(a)the matter to which the evidence relates is not genuinely in dispute; or
(b)the application of those provisions would cause or involve unnecessary expense or delay.
(4)Without limiting the matters that the court may take into account in deciding whether to exercise the power conferred by subsection (3), it is to take into account:
(a)the importance of the evidence in the proceeding; and
(b)the nature of the cause of action or defence and the nature of the subject matter of the proceeding; and
(c)the probative value of the evidence; and
(d)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
Mr Myers contended that the judge’s exercise of his discretion miscarried, on the House v The King standard. He contended that:
(a)reliance on s 190 was misplaced because there was a dispute about the evidence, as contemplated by s 190(3)(a).
(b)the judge had failed to have regard to s 190(4)(b);
(c)the judge failed to consider that the most appropriate step would be an adjournment, as set out in s 190(4)(d); and
(d)the judge’s findings on s 190(3)(a) and (c) were erroneous because the ‘opinions’ were not ‘proper “evidence”, let alone their importance or probative value’ [sic].
These arguments are misplaced.
(a)In so far as s 190(3)(a) is concerned, it does not specify a requirement that must be met in order for the exercise of the power in that subsection. Rather, there are two alternative circumstances in which the judge may exercise the power; and the judge relied upon the second of these, in s 190(3)(b) — namely that the application of s 99 of the Evidence Act would cause or involve unnecessary expense or delay.
(b)The judge did not fail to have regard to the nature of the cause of action and the subject matter of the proceeding. His Honour was plainly aware of the nature and subject matter of the proceeding but, in the context of the application to have Dr Chopra make oral submissions as a McKenzie friend, the nature of the proceeding was of little moment in the exercise of the s 190(3) discretion.
(c)The judge did not fail to consider whether to adjourn or make some other order in relation to the evidence — it was implicit in his conclusion that compliance with the notice requirements would occasion unnecessary expense or delay that he considered an adjournment or other order to be inappropriate.
(d)The judge’s conclusion that the evidence comprised in the observations of the judicial officers was both probative and important was plainly correct (and the proposition that this was not ‘proper evidence’ has been dealt with above, in considering grounds 2 and 3).
For these reasons, ground 4 is doomed to fail.

The third category: did the judge fail to have regard to, or contravene, the Charter and the Equal Opportunity Act?

Grounds 5, 6 and 7 allege various contraventions of, or failures to have regard to, the Charter and the Equal Opportunity Act. These submissions were based on the proposition that Mr Myers is a person with disabilities.
By grounds 5 and 6, Mr Myers contended that by reason of the right to equality (as contained in art 8 of the Charter), the judge was obliged to ensure that his ‘dual disadvantage — being self-represented and having a disability — were overcome such that he was equal before the law … and protected by the law without and against discrimination’. He further contended as follows:
Watson J was positively obliged to make reasonable accommodations, and because his Honour failed to do so by denying me the assistance of an extended McKenzie friend, this, with all due respect, constitutes ‘discrimination’ and specifically ‘indirect discrimination’ under ss 7(1) and 9(1) of EO Act and further, it also was a failure to ensure equal and effective protection against discrimination as required by s 8(3) of the Charter, and a failure to accord me a fair hearing, violating the principle of ‘equality of arms’ and denying me ‘effective participation.
Furthermore, the failure was also a contravention of my human rights in s 15(1) (freedom of expression) and s 18(1) (taking part in public life). The former was impacted in two ways: first, my voice was taken away which I wanted to be heard via my extended McKenzie friend, and second, in turn, my human right to seek and receive information was infringed upon because my Appeal and in turn my Freedom of Information request were seriously negatively impacted if not utterly destroyed because now I have no one to argue on my behalf. The latter human right was impinged because I was deprived of the opportunity to take part in a court proceeding via my chosen person.
Ultimately, this aspect of Mr Myers’ case turns on the proposition that the outcome of Watson J’s exercise of judicial power — his Honour’s refusal to permit a McKenzie friend to make oral submissions on Mr Myers’ behalf — constituted a breach of Mr Myers’ rights. That submission is unsustainable. There is no human right for a person to ‘take part in a court proceeding via [their] chosen person’. The judge’s decision did not involve any discrimination or breach of the Charter.[38]
[38]In so concluding, I put to one side the question whether the Equal Opportunity Act applies to a court in the exercise of judicial power, and the question of the extent of the application of Charter rights to a court in the exercise of judicial power.
By ground 7 Mr Myers contends, in substance, that the Charter and/or the Equal Opportunity Act ‘substantially impact if not dictate or even override’ the exercise of the Court’s discretion to permit the assistance of a McKenzie friend to make oral submissions in circumstances where the person has a disability that renders them ‘unable to orally articulate effective legal arguments’.
Accepting, for the purposes of the argument, that ss 8 and 24 of the Charter (and perhaps some other Charter rights) apply to a Court when it is exercising judicial power (by reason of s 6(2)(b) of the Charter), the Charter does not circumscribe the Court’s discretion in relation to whether to permit a lay person to make oral submissions on behalf of a party, as a McKenzie friend. Rather, the fundamental question remains whether the hearing in question will be fair and whether the party concerned will be treated equally before the law. Likewise, the Equal Opportunity Act does not circumscribe the exercise of the Court’s jurisdiction to ensure a fair trial (including in relation to the exercise of the discretion to permit a person to make oral submissions as a ‘McKenzie friend’).
In this matter, the judge had regard to both the Charter and to the Equal Opportunity Act, and said as follows:
Mr Myers will have a fair opportunity to present his case before me. He has already had an opportunity to provide written submissions. He will be afforded the opportunity to make oral submissions at the hearing of this matter. There will be no denial of natural justice or contravention of any Charter rights, nor any possibility of a contravention of the Equal Opportunity Act.[39]
[39]Reasons, [9(c)].
In light of his Honour’s findings of fact concerning Mr Myers’ ability to make oral submissions on his own behalf, there was no error in his Honour’s conclusion.
Thus grounds 5 to 7 are entirely without merit.

The fourth category: did the judge deny Mr Myers procedural fairness?

Mr Myers’s submissions on grounds 8 to 11 were voluminous, but may be summarised as follows:
(a)the judge did not give Mr Myers notice or a right of reply in relation to his Honour’s reliance on the observations of the various judicial officers as tendency evidence;
(b)the judge rejected out of hand, without discussion or adequate reasons, all the evidence Mr Myers submitted in his reply submissions;
(c)the judge should not have resolved the factual disputes on the papers — rather, an oral hearing was required in relation to the tendency evidence;
(d)the judge made a misleading statement that Mr Myers had requested that the application be dealt with on the papers;
(e)the judge failed in his duty to assist a self-represented person;
(f)a reasonable apprehension of bias arose because of the steps the judge took prior to his judgment on 15 July 2024, as well as by reason of steps the judge took after judgment was delivered.
None of these grounds has any merit whatsoever.
As to the judge’s reliance on the judicial officers’ observations about Dr Chopra, Mr Myers was on notice of those observations because they were raised in the second and third respondents’ submissions. Mr Myers had the opportunity to respond to those matters and took that opportunity in great detail in his extensive reply submissions. In those submissions Mr Myers raised the issue of tendency evidence as a basis for the material being inadmissible. In those circumstances there was no requirement for the judge to put Mr Myers on notice that he proposed to reject that aspect of Mr Myers’ submissions and rely on that material as tendency evidence.
The judge did not reject out of hand all of Mr Myers’ evidence. Rather, his Honour considered that Mr Myers’ evidence did not demonstrate special or exceptional circumstances.
The judge did not make an incorrect statement when his Honour observed that Mr Myers had requested that the issue of a McKenzie friend be decided on the papers. Mr Myers had in fact made precisely that request in an email to the judge’s associate dated 31 May 2024; and he had referred to the matter being determined on the papers in email correspondence on 3 June 2024 and 6 June 2024. I note that, in an email to the judge’s associate dated 15 July 2024, Mr Myers withdrew that request and formally requested an oral hearing. However, that was the date on which the judge handed down his decision in relation to the McKenzie friend issue; thus Mr Myers’ change of position simply came too late.
In circumstances where Mr Myers had requested that the issue of a McKenzie friend be decided on the papers, and where Mr Myers had dealt with the question of tendency evidence in his written submissions, the judge was not required to hold an oral hearing in relation to the tendency evidence. That is so even though Mr Myers had later resiled from his position about the application being determined on the papers.
The judge did not fail in his ‘duty’ to assist a self-represented person. In truth there is no such ‘duty’. Rather, the judge’s duty is to ensure that any hearing is fair to both parties. In some cases that may require a judge to give some assistance to a person who is not legally represented. Thus, as Redlich JA observed in Werden v Legal Services Board:
A judge has a duty in relation to represented and unrepresented litigants alike to ensure that the trial is conducted fairly and in accordance with law. The duty, often onerous, to assist a self-represented litigant in civil proceedings, requires the judge to provide such guidance to a self-represented litigant as will ensure procedural fairness.[40]
[40]Werden v Legal Services Board (2012) 36 VR 637, 650 [53] (Tate JA agreeing at 655 [78]); [2012] VSCA 278 (citations omitted).
What a judge must do to assist a self-represented litigant will depend on the circumstances of the litigant and the nature and complexity of the case. In determining the proper scope of assistance to be offered, the touchstones are fairness and balance. As Kyrou and Kaye JJA and Ginnane AJA observed in Trkulja v Markovic:
The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence. It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.[41]
[41]Trkulja v Markovic [2015] VSCA 298, [39] (citations omitted) (‘Trkulja’).
But, as the Court also observed, a judge cannot become the advocate of the self-represented litigant and the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. Accordingly, the restraints upon judicial intervention are not relevantly qualified merely because one litigant is self-represented.[42]
[42]Trkulja [2015] VSCA 298, [41] (Kyrou, Kaye JJA and Ginnane AJA).
In the present case, Mr Myers stated that this ground ‘speaks for itself’, and relied upon 57 exhibits to his unsigned affidavit. He did not identify with any precision what it was that the judge ought to have done, but did not do, to assist him.
This ground is doomed to fail. The judge gave Mr Myers considerable leeway in the conduct of his application for Dr Chopra to make oral submissions (for example, by permitting Mr Myers to file voluminous submission in excess of the page limits set out in the judge’s orders, and granting extensions of time). There was nothing more that the judge was required to do.
Finally, Mr Myers’ allegation of a reasonable apprehension of bias must be rejected.
The applicable test for apprehended bias is well established. The question is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[43] Answering this question requires a two-stage analysis:
(a)first, it requires the identification of what it is said might lead a judge to decide a case other than on its legal or factual merits; and
(b)secondly, it requires the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[44]
[43]Minogue v Falkingham [2022] VSCA 111, [42] (Beach, Niall and Emerton JJA); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [2000] HCA 63 (citations omitted) (‘Ebner’).
[44]Ebner (2000) 205 CLR 337, 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [2000] HCA 63.
In the present case nothing the judge did — whether prior to or after his judgment on 15 July 2024 — could possibly give rise to a reasonable apprehension of bias. In support of this ground, My Myers pointed in particular to the following matters:
(a)The judge refused to stay the 15 July 2024 orders pending the hearing of Mr Myers’ application for leave to appeal.
(b)The judge refused to adjourn the hearing on 30 July 2024 ‘so that Mr Myers would have 42 days to file the Appeal as allowed by the Victorian Parliament’. He submitted that the judge ‘wants to prevent anyone sitting in judgment over his Honour’.
(c)The judge informed Mr Myers on 24 July 2024 that he needed to have a medical practitioner appear at the 30 July 2024 hearing if he wanted to rely on medical evidence. Mr Myers said that this was an impossible condition for him to meet, because he does not ‘have private health insurance or GPs or psychologists on call’. This condition was said to have been imposed ‘to set me up to fail’.
None of these matters suggest any apprehension of bias in relation to the judge’s determination of Mr Myers’ McKenzie friend application, or otherwise. They are simply steps the judge has taken in the management of the proceeding, where Mr Myers disagrees with the particular step taken. There is nothing in the taking of these steps that might lead the judge to decide a case other than on its legal or factual merits. In my opinion, having read the transcript of the hearings at which Mr Myers appeared and the correspondence between the judge’s chambers and Mr Myers, the judge has conducted the proceeding in an exemplary manner.
Thus grounds 8 to 11 are entirely lacking in merit and doomed to fail.

Conclusion

For the above reasons, I have determined that the applicant’s application for leave to appeal is totally without merit and must be refused.
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SCHEDULE OF PARTIES

JOHN MYERS Applicant

and

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL First respondent

OFFICE OF THE VICTORIAN INFORMATION COMMISSIONER Second respondent

DEPARTMENT OF EDUCATION Third respondent

[2024] VSCA 206

17 September 2024