Tomasevic v Somers MRH Pty Ltd
[2016] VSC 574
•3 October 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 05603
| MILAN TOMASEVIC | Plaintiff |
| v | |
| SOMERS MRH PTY LTD | Defendant |
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JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 September 2016 |
DATE OF JUDGMENT: | 3 October 2016 |
CASE MAY BE CITED AS: | Tomasevic v Somers MRH Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2016] VSC 574 |
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APPEAL — Appeal under s 109 Magistrates Court Act 1989 — Whether error of law by applicant being denied procedural fairness — Whether the magistrate erred in law by giving judgment without hearing all the evidence in the case — Whether the self-represented applicant was given appropriate assistance and guidance by the magistrate — No error of law — Abuse of process — Lack of any defence with a real prospect of success — Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr A Donald | Nelson Law |
TABLE OF CONTENTS
Relevant principles of law................................................................................................................ 3
Procedural fairness – right to be heard...................................................................................... 3
Assistance to self-represented litigant....................................................................................... 3
Court’s power to prevent abuse of process.............................................................................. 4
Court’s power to order summary judgment............................................................................. 5
Factual Background........................................................................................................................... 5
The claim for debt......................................................................................................................... 5
The conduct of the proceeding................................................................................................... 7
Did the magistrate err by not giving Mr Tomasevic guidance and assistance?................... 20
Did the magistrate err by not permitting cross-examination or evidence?............................ 24
Did the magistrate err by giving judgment when he did?....................................................... 27
Other matters..................................................................................................................................... 29
Conclusion......................................................................................................................................... 30
HIS HONOUR:
Since 2005, Mr Tomasevic had leased a site at a caravan park operated by Somers MRH Pty Ltd (‘Somers’). On 15 October 2015, Magistrate R Crisp at the Frankston Magistrates’ Court gave judgment in favour of Somers in the sum of $13,777.50, together with interest of $789.08 and costs fixed at $5,463.00. The claim was for unpaid site fees and electricity charges stretching back for several years.
Mr Tomasevic appealed the magistrate’s orders under s 109 of the Magistrates’ Court Act 1989 (Vic). That provision permits an appeal ‘on a question of law’. Mr Tomasevic represented himself both before the magistrate and before this Court. In his amended notice of appeal he identified a number of questions of law and grounds of appeal. I will set them out more fully below but in substance his grounds were that the magistrate erred in law, including by denying him procedural fairness, in two principal ways—
·by not giving him the guidance and assistance that the law requires a self-represented litigant be given; and
·by not hearing all the evidence and cutting the trial short.
At the beginning of the hearing the magistrate observed that, contrary to the rules of court, Mr Tomasevic had not articulated any defence in his filed notice of defence. Notwithstanding that absence, the trial was commenced on the basis that Mr Tomasevic’s defence might emerge in the running. During cross examination of Somers’ first and only witness, the magistrate enquired on many occasions what Mr Tomasevic’s defence was in order to determine the relevance of his line of questioning. Ultimately, the magistrate concluded that Mr Tomasevic could not identify any defence and was abusing the process of the court.
Without allowing Mr Tomasevic to complete his cross examination or call any evidence himself, the magistrate announced that he was giving judgment for Somers in the amount it had claimed.
The issues for me are as follows:
(a) Did the magistrate deny Mr Tomasevic procedural fairness by not giving him the assistance and guidance he needed as a self-represented litigant?
(b) Did the magistrate deny Mr Tomasevic procedural fairness by not permitting him to continue cross examining the witness for Somers or giving evidence himself?
(c) Did the magistrate err in law by giving judgment without hearing all the evidence in the case?
Each of these questions is inter-related, especially the second and third.
When the matter initially came on for trial before me Mr Tomasevic applied for an adjournment on medical grounds. After hearing from his general practitioner in evidence given by telephone, I announced that I would adjourn the hearing of the matter until late January 2017, take steps to facilitate Mr Tomasevic obtaining legal representation and hold a further directions hearing just prior to the Christmas vacation to ensure the matter would be ready to proceed in the New Year.
At that point, the respondent reiterated an alternative course it had proposed earlier, namely that I decide the matter on the papers as filed without any further submission or argument from either side. After having that course explained to him, together with its consequences, advantages and disadvantages, Mr Tomasevic indicated in clear terms (several times) that it was the course he wished to adopt. Accordingly, I have decided this matter based upon the amended notice of appeal, the affidavits (with exhibits) filed by each party[1] and written submissions filed by the respondent.
[1]Affidavits of Milan Tomasevic sworn 8 December 2015 and 20 January 2016; Affidavit of David Nelson sworn 22 February 2016. Mr Nelson’s affidavit exhibited the six exhibits tendered in evidence before the magistrate.
For the more detailed reasons which follow, the appeal should be dismissed. But in substance, it should be dismissed because Mr Tomasevic has failed to establish that the magistrate denied him a fair trial: rather, I am satisfied that the magistrate gave Mr Tomasevic sufficient guidance and assistance, provided him with a fair opportunity to cross examine and adduce evidence on relevant topics, and, finally, gave him every opportunity to identify a defence with a reasonable prospect of success which Mr Tomasevic manifestly failed to do.
Relevant principles of law
Procedural fairness – right to be heard
It may be accepted that the rules of natural justice (or procedural fairness), applied to proceedings in a court or law, required that Mr Tomasevic had a right to be heard and to present his case. In turn, subject to any countervailing principles, that right to be heard entailed a right to cross examine any witness who gave adverse evidence against him, to have the opportunity to give relevant and admissible evidence and to make submissions on that evidence.
Assistance to self-represented litigant
In Werden v Legal Services Board[2] Redlich JA (Tate JA agreeing) described a court’s duty to assist a self-represented litigant in these terms:[3]
[2]Werden v Legal Services Board (2012) 36 VR 637.
[3]Ibid 650-1 [53]–[55] (citations omitted).
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. Samuels JA described that duty in these terms in Rajski v Scitec Corp Pty Ltd:
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.
Bell J, in Tomasevic v Travaglini, explained the duty in these terms:
The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.
The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in circumstances — it must ensure a fair trial, not afford an advantage to the self-represented litigant.
The joint judgment of McWhinney v Melbourne Health, after referring to this passage from Tomasevic, added:
These propositions are not controversial. It is well understood that a trial judge has certain obligations to assist a self-represented litigant, but those obligations are to be balanced against the requirement that the judge preserve his or her neutrality between the parties.
Court’s power to prevent abuse of process
The court has power to control its own processes. That power extends to preventing parties abusing the process of the court, for example by preventing a party from litigating an issue if to do so would amount to abusing the court’s process.[4]
[4]Neil Pearson & Co Pty Ltd v Comptroller-General of Customs (1995) 38 NSWLR 443, 451 (Kirby ACJ).
In the Magistrates’ Court, there is ample power in its rules[5] to strike out a defence or part of a defence, or give judgment in favour of a plaintiff, if the defence is found to be scandalous, frivolous or vexatious or is otherwise an abuse of process. It is also a contravention of the overarching obligation of any litigant to make any response to a claim that is frivolous, vexatious or an abuse of process, or which lacks any proper basis.[6] A finding of such contravention can be taken into account by the court when exercising any power in relation to a civil proceeding including that a party not be permitted to take specified steps in the proceeding.[7]
[5]Magistrates’ Court General Civil Procedure Rules2010 (‘Rules’); for example, see rr 23.01(2); 23.02(1).
[6]Civil Procedure Act2010 (Vic) (‘CPA’) s 18.
[7]Ibid s 28; s 29(1)(e).
Court’s power to order summary judgment
In addition to the power to order summary judgment under O 23 of the Rules, the Civil Procedure Act 2010 (Vic) also provides the court with broad flexible power to order summary judgment (even on its own motion) for a plaintiff if it determines that a defence has no real prospect of success.[8] As already indicated, in exercising that power a court may take into account any finding that a litigant has contravened an overarching obligation by seeking to press a defence that is an abuse of process or is frivolous or vexatious.
[8]Ibid s 63.
Factual Background
The claim for debt
The evidence before the magistrate established that Mr Tomasevic had been a long-term tenant of a caravan park at 93 Camp Hill Road, Somers. It traded as ‘Somers Holiday Village’. Until December 2013, the caravan park was owned and operated, by Belotti Pty Ltd (in liquidation). Belotti sold the land and assets of the caravan park to SHV (Vic) Pty Ltd in October 2013 with settlement of the sale taking place in December 2013. Debts owing to Belotti as owner of the caravan park were assigned to the purchaser, SHV, under the terms of the contract of sale.[9]
[9]Exhibit DAN-3 to the affidavit of David Nelson sworn 22 February 2016.
Apparently, before the sale to SHV (Vic), there had been ongoing disputes between Mr Tomasevic and Belotti regarding the payment of site fees and electricity charges and Belotti’s subsequent disconnection of services to the caravan park site. There is reference in the evidence filed by Mr Tomasevic in the appeal to a proceeding at the Victorian Civil and Administrative Tribunal (‘VCAT’) concerning that dispute.
SHV (Vic) is an entity related to Somers and another company Somers BTH Pty Ltd. After SHV (Vic) bought the caravan park, Somers and Somers BTH managed and operated the caravan park in partnership with one another. By a Deed of Assignment of Debt made between SHV (Vic), Somers and Somers BTH, on 30 June 2014 SHV (Vic) assigned to the other two companies the specific debt said to be outstanding by Mr Tomasevic.
On 5 December 2013, solicitors then acting for Somers, Lardners, sent a letter to Mr Tomasevic, demanding the payment of $10,052 in respect of outstanding site fees. The amount claimed substantially, if not wholly, comprised the amount owed to Belotti but assigned to SHV (Vic) and later assigned to Somers (and Somers BTH).
On 19 February 2015, a further letter of demand[10] was sent by Mann Legal, then acting on behalf of Somers, which acknowledged a partial payment of $1,005.30 made by Mr Tomasevic on 23 September 2014. The amount so demanded had risen to $14,792.47. The letter enclosed a copy of the Deed of Assignment of Debt between SHV (Vic), Somers and Somers BTH made the previous June.
[10]Exhibit DAN-6 to the affidavit of David Nelson sworn 22 February 2016.
The proceeding in the Frankston Magistrates’ Court was issued by Somers on or around 13 March 2015. The statement of claim pleaded the essential facts just described including the assignment of the debt owing by Mr Tomasevic from SHV to Somers, that notice of the assignment of the debt to Somers had been given to Mr Tomasevic and that the arrears of debt stood at $14,792.47.
On 27 April 2015, Mr Tomasevic filed a notice of defence. The only defence identified was this:
The complaint is not based on the ground of fact and evidence and fell far short of a reasonable action taken in a reasonable matter.
But the defence also referred to an accompanying affidavit sworn by Mr Tomasevic, which stated as follows:
All paragraphs mentioned in complaint Form 5A Rules 5.02(1) between 1 to 12 inclusive I (defendant) denied. I (defendant) strongly believe that the plaintiff manipulated the facts and fabricated the story in an attempt to obscure the truth and it is apparent this conduct is contradicting the (any) act.
This actions by a plaintiff is not based on reasonable action taken in a reasonable manner. The reasonable action taken in a reasonable manner is a complex matter, means that not only the reasonable action should be taken but in a reasonable manner as well.
Given the above, one can see how it would be difficult for Somers and the magistrate to identify how Mr Tomasevic proposed to defend the claim. The defence certainly did not address the matters pleaded in the statement of claim.
The conduct of the proceeding
As the gravamen of Mr Tomasevic’s appeal is that the magistrate failed to afford him procedural fairness at the hearing before him, it is necessary to canvass what occurred at the hearing in some detail. The trial was originally listed for two days. The hearing commenced with Mr Tomasevic confirming that he represented himself. Somers was represented by its solicitor, Mr Nelson. The magistrate commenced by saying,
‘Let me just read the affidavit attached to the defence. You are happy enough to ignore the fact that there is no real defence disclosed. Yes?’
Mr Nelson agreed he was prepared to go ahead, and handed up a court book of the documents he intended to tender into evidence at the trial.
Mr Tomasevic then asked whether the documents in the court book should have been provided before the hearing. The magistrate explained that the court book included documents which would be tendered into evidence, during the course of the trial and the preparation of the court book was really just a courtesy to him. Mr Tomasevic then said that there were a lot of documents in the court book that he had not seen. Mr Nelson responded that although there had been no formal discovery Mr Tomasevic contacted his office after the complaint was filed and, following request, was provided with the documents that Somers relied upon in its statement of claim. The magistrate then asked the parties to make a note of what documents had not been previously provided, said he would address those documents as they came up in evidence, and would decide whether they were important enough to warrant adjourning the hearing. The magistrate asked Mr Tomasevic if he wanted an adjournment, and Mr Tomasevic said he did not.
Shortly prior to Somers opening its case, Mr Tomasevic indicated that he had a further question, which resulted in the following exchange:
DEFENDANT:
You mention few times already that I have not – that the defence was not provided.
HIS HONOUR:
well it’s not a – look the defence doesn’t satisfy the legal requirements but we’re going to - we’re leaving that aside. We’ll hear what you say when the occasion comes when you see give evidence which you probably will and when you ask questions we’ll work out what your defence is when we go. Nobody is getting excited about that it’s a contract of sale and your defence will be revealed in its full flower as we progress. Mr Nelson’s happy to proceed on that basis. He’s not making a song and dance about that. But it is obvious that the defence doesn’t tell me anything. But you will tell me as we go ahead what the problem is.
DEFENDANT:
Yes, make sure that I – that I understand, Your Honour. Now what it’s my understanding correct me if I am wrong in this, my affidavit which one is in in 488 notice of defence.
HIS HONOUR:
I’ve seen your affidavit, yes.
DEFENDANT:
Yes. I mention that that complaint between one and 12.
HIS HONOUR:
Inclusive you deny?
DEFENDANT:
I deny it and also this is not based on the fact.[11]
HIS HONOUR:
Yes.
DEFENDANT:
This is - - -
HIS HONOUR:
- - - well, you will tell us what the facts are in due course. That’s exactly what I mean.
DEFENDANT:
Yes.
HIS HONOUR:
Just take a seat. We’ll hear from Mr Nelson, and then we’ll hear from you as we go, all right.
DEFENDANT:
If Your Honour pleases.[12]
[11]Transcript of Proceedings, Somers Pty Ltd v Milan Tomasevic (Magistrates’ Court, CR F109205591, Magistrate Crisp, 15 October 2015) 3 (‘Transcript’).
[12]Transcript 4.
Mr Nelson then called his only witness, Mr Michael Hibbert, the sole director of Somers. His questions went to the matters pleaded in the statement of claim. The following documents were tendered in evidence:[13]
[13]All of which are exhibited to Mr Nelson’s affidavit filed on appeal.
exhibit ‘A’ – ASIC company search of the plaintiff;
exhibit ‘B’ – ASIC company search of SHV (Vic) Pty Ltd;
exhibit ‘C’ – contract of sale dated 2 October 2013;
exhibit ‘D’ – sale of assets of caravan park business agreement;
exhibit ‘E’ – statements and invoices to Mr Tomasevic;
exhibit ‘F’ – letter from Lardners solicitors to the defendant dated 5 December 2013;
exhibit ‘G’ – letter from Mann Legal to Mr Tomasevic dated 19 February 2015, enclosing the deed of assignment of debt dated 30 June 2014.
Mr Hibbert gave evidence that Somers took over all the books and records of the business when the caravan park business was acquired in 2013. At that time, Mr Tomasevic was in arrears of $10,052, and there were unpaid electricity charges of $649.78. He gave evidence that an invoice for site fees and electricity charges were usually sent out monthly. Mr Hibbert gave evidence about the assignment of the debts of the caravan park business, first, at the time that the business was purchased and second, in 2014 from SHV (Vic) to Somers. He confirmed that Mr Tomasevic had been notified of the assignments as required by the relevant deeds of assignment.
The magistrate observed that ‘there was no defence of that nature‘, which I take to refer to a defence based on an assertion that the debts had not been assigned from the earlier entities. Nothing in his written ‘defence’ or in the transcript of the proceeding suggests that Mr Tomasevic alleged any defect in the assignments although, as recounted below, in dealings with Somers before the proceeding, he had denied his indebtedness to Somers saying he only owed money to the previous owner.
Mr Hibbert gave evidence that site fees had only been charged to March 2015 when Somers, or a manager employed by Somers, obtained an intervention order against Mr Tomasevic preventing him from entering the caravan park. His caravan and annexe were still there, along with an unregistered motor vehicle. Mr Hibbert gave evidence that since November 2013 Mr Tomasevic had made one payment of $500 and three part‑payments of $1,005 towards the arrears.
Mr Hibbert said that he had no personal conversations with Mr Tomasevic about the debt. However, he later said that he did have a discussion with Mr Tomasevic about the first assignment of the debts upon the sale of the business. Mr Hibbert gave evidence that Mr Tomasevic told him that as Somers did not own the caravan park before December 2013, Mr Tomasevic did not owe any money as it was owed to the previous owner. If that was Mr Tomasevic’s view, it may have been held in ignorance of the assignments of debt. In any event, he did not appear to raise that question in the proceeding itself even after the magistrate raised it again as will be seen in the next transcript excerpt. In fact, if anything, as best as may be discerned, his point seemed to be that he did not owe the money to the previous owner although why that was so did not become clear.
At the conclusion of Mr Hibbert’s evidence‑in‑chief there was an exchange between the magistrate and Mr Tomasevic regarding the manner in which Mr Tomasevic should proceed in cross examination.[14] The italics are mine throughout the various extracts below to highlight some important elements.
[14]Transcript 20-3.
HIS HONOUR:
Mr Tomasevic, they have to be relevant questions, so because you’re unrepresented you may be – you may not ask relevant questions sometimes. The question is simply in this case is whether or not you have or have not paid these moneys. The question of to whom you may not have paid them is not really relevant I don’t think unless you say there’s some earth shattering point in relation to the assignment of debt, but that’s not really evident – there’s no suggestion of that in your defence, so what is your basic proposition here? Why are you saying you don’t owe the money? Because it’s not evident from your defence, so can you state in a nutshell what your defence is, just very briefly.
DEFENDANT:
My defence is that, that Mr Hibbert may not aware of the facts. He’s all his evidence he give from the court probably he believes that is based on the fact and evidence.
HIS HONOUR:
Well it’s based on its documentation but why do you say you don’t owe the money.
DEFENDANT:
Because these facts, evidence don’t exist. So everything what he says is misleading the court.
HIS HONOUR:
Well, that’s not really going to help you defend the case. You have to have a concrete defence. I can’t just allow you to roam, traverse the facts on the basis that it’s all made up because you have to address what he said. What he said is that he has firm – the case is that you have debts owing on your site - - -
DEFENDANT:
But this is not true.
HIS HONOUR:
- - - of $12,569.18 and $12,0008.32. Now, if you’d paid them and you were producing proof of that, that would be a good defence for instance, if you said he made a mistake, but I take it you’re just saying what? That he’s made it up?
DEFENDANT:
Not correct. Made it up.
HIS HONOUR:
You have to decide - - -
DEFENDANT:
Not aware of - - -
HIS HONOUR:
You’ve got to say whether it’s incorrect or made up.
DEFENDANT:
It’s incorrect.
HIS HONOUR:
Do you say that – is your defence that you’ve actually paid the money owing? I think we’re all aware, it’s acknowledged, it’s implicit in your defence that you owe site fees and electricity, is that right?
DEFENDANT:
Your Honour - - -
HIS HONOUR:
You always have been liable to pay site fees and electricity.
DEFENDANT:
The law works in my viewpoint and what I have knowledge about the law, the person is innocent until proven guilty.
HIS HONOUR:
No, it’s not a criminal case. The question is whether you’re – now you’re not saying that you’re not liable for site fees and electricity, are you? Everyone is.
DEFENDANT:
No, Your Honour, but I not owing the money. This is not correct.
HIS HONOUR:
But why is it – we agree that you would normally owe the money to someone. Why is it that you don’t owe the money to anyone I suppose? What is that?
DEFENDANT:
Because, Your Honour, I am not owing the money to previous owner at all and I can prove that in fact in evidence.
HIS HONOUR:
Yes, but how do you prove that? How do you say that it’s not owed to the previous owner? Now we’re getting closer to what may be – what is the nub of your defence? Why do you say you didn’t owe the money? So what your defence is, is that you didn’t owe any money to the previous owner so you don’t owe it to this owner; is that right?
DEFENDANT:
Yes, not even to this owner as well. I pay it.
HIS HONOUR:
Yes, I know, but why do you not owe it to the previous owner?
DEFENDANT:
That is probably evidence for exhibit 1. I would like to read it.
HIS HONOUR:
I will just have a look at that. No, not Mr Nelson. Show it to me.
DEFENDANT:
Mr Hibbert said and it, I wrote here that I was neighbour, put him in writing anything, what is definitely wrong, this is the evidence.
HIS HONOUR:
Who’s written this?
DEFENDANT:
I did.
HIS HONOUR:
But just briefly why were you released from indebtedness by the previous owner? Why do you say you don’t owe anything to the previous owner?
DEFENDANT:
Because the previous owner play same game like Mr Hibbert and this is not surprising.
HIS HONOUR:
But what’s the game the previous owner was playing?
DEFENDANT:
That they try to kick me out from caravan park and resell this, my site, they offer me to buy by myself if I want for $180,000. This letter I would like to see as well.
HIS HONOUR:
I’ll leave you to ask a few questions for a while and we’ll see where you’re going with this, but as I said earlier, it wasn’t evident from the documentation, the affidavit is attached to your evidence what the defence was. I’m hoping it will become clearer when you ask questions and produce documents. Just give him back that document please. So go ahead.
DEFENDANT:
I would like to show to Mr Hibbert that he’s contradicting or not that I never contact him in writing and I think you can recall that I did
HIS HONOUR:
Well, you will suggest to him that you didn’t contact him in writing. That’s an affidavit sworn by you. There’s no point in him reading that.
DEFENDANT:
This is the fax I sent addressed to Michael Hibbert, Somers Caravan Park, fax number 9782 2400.
HIS HONOUR:
You want him to comment on that?
DEFENDANT:
Yes.
HIS HONOUR:
Just show it. You’re asked to read that, if you can Mr Hibbert.
DEFENDANT:
No, I can read it.
HIS HONOUR:
And then you’ll be asked a question.
WITNESS:
Well, I haven’t, I haven’t seen this, but it was sent to the caravan park. I don’t live at the caravan park. My manager at the time - - -
HIS HONOUR:
Well, that’s sufficient. You haven’t seen that before?‑‑‑Yes.
DEFENDANT:
So what you’re saying, Mr Peter Hibbert, that managers of caravan park did not provide you with this?---Well, they rang me and told me that you’d sent them this, obviously this document along the basis of what you’re saying here.
Yes, Your Honour?---But, you know, we had a subsequent phone conversation later than that, you and I, concerning that, you know.
(Indistinct) so now you can recall, is that correct, correct me if I’m wrong‑‑‑Well I never got this letter, so - - -
The question is you are aware because the manager provide you with it even if it’s addressed to you?---Yes.
Despite the obscurity of Mr Tomasevic’s written notice of defence, it can be seen that from the magistrate’s persistence in asking, Mr Tomasevic seemed to clarify that his defence was that he did not owe any debt to the previous owner (ie, Belotti). But as to why he did not owe that money was not made clear despite the magistrate’s efforts to find out. In one line, he claimed he had paid it but, as will be seen, he did not repeat that allegation for quite a long time. His Honour eventually allowed Mr Tomasevic to ask ‘a few questions for a while’ in the hope that the basis for not owing the money might be revealed.
Mr Tomasevic asked about a letter he sent to Mr Hibbert after Somers took over the operation of the caravan park in 2013. Although not in evidence, it appears it included a request by Mr Tomasevic for a meeting. Mr Hibbert responded that he left it to his managers to deal with it but said he did nonetheless have the telephone conversation referred to above. Mr Tomasevic then asked a number of questions concerning the manager’s jurisdiction to deal with the matter. Mr Hibbert repeated his response that collecting unpaid site fees was a matter for his managers, not for him. He asked again why Mr Hibbert did not meet with him.
The magistrate then interrupted Mr Tomasevic’s questioning. The following exchange took place with the magistrate again endeavouring to ascertain what was the essence of Mr Tomasevic’s defence to the claim:[15]
[15]Transcript 28-9.
HIS HONOUR:
Is this on the basis that you say that you can offset your debt for want of attention to your needs or servicing of the site or whatever? Because it’s not available.
DEFENDANT:
Your Honour, I had a request to talk about that, to have meeting or respond in writing. Now, he refuse to do that.
HIS HONOUR:
That would be a separate claim though.
DEFENDANT:
Yes. Now, this is obligation so then (indistinct) what was the duty of the new landlord and I would like you to see if he obey his professional obligation and then we call - - -
HIS HONOUR:
Just show it to him. Just take it and show it to him, yes.
DEFENDANT:
And here you are?---Thank you.
Can you read, Your Honour, Mr Hibbert, sorry?----Well, what? There’s a whole page. You want me to read the whole - - -
Just the page from the beginning and also the second - - -
HIS HONOUR:
It would be easier if you just told him what you think his default is. How do you think he defaulted?
DEFENDANT:
This is the access, Your Honour. I would like - - -
HIS HONOUR:
Sorry?
DEFENDANT:
To be recorded what’s said there.
HIS HONOUR:
What’s the point though? What are you talking about? What’s your complaint?
DEFENDANT:
That he did not professionally act as a landlord according to Residential Tenancy Act.
HIS HONOUR:
Yes, but in what particular way? In which particular suggestion?
DEFENDANT:
Yes, he will understand.
HIS HONOUR:
Well he won’t because he needs to know what you say he did wrong.
DEFENDANT:
Everything that’s says there, he did it all.
HIS HONOUR:
Everything. Well, what is everything?
DEFENDANT:
That’s why I ask him to read it.
HIS HONOUR:
That’s won’t help. You read it to him. You tell him all the ways he didn’t.
DEFENDANT:
Okay.
HIS HONOUR:
That document won’t help Mr Hibbert. It will assist you. Start at the beginning and say what he did wrong. It’s not going to help your case though, that’s the difficulty. It doesn’t provide you with a defence to the claim.
Mr Tomasevic then read through a document which appears to have been a statement about tenancy rights and complaint procedures. Mr Hibbert responded that he believed he had adhered to all of the requirements of an operator of a caravan park. Mr Tomasevic asked questions about the distinction between holiday residence and permanent residence. At this stage, the magistrate said, ‘These questions are not getting anywhere.’[16]
[16]Transcript 32.
Mr Tomasevic then showed Mr Hibbert a letter headed 4 July 2005 regarding advertising for the park. He then asked who was an annual tenant? The magistrate then again queried the relevance of the questions. Mr Hibbert responded to the effect that the distinction between holiday occupiers and permanent residence is relevant for purposes of capital gains tax exemptions on the sale of a site.
Mr Tomasevic then made a lengthy statement about the difference between different arrangements for holidaying at caravan parks. He asked Mr Hibbert as to whether the manager was required to cut grass and branches. He then put to Mr Hibbert that Somers did not own the site: it was leased from the Mornington Shire Council. Mr Hibbert denied this.
The following exchange indicates the rising frustration on the part of the magistrate with Mr Tomasevic’s approach to cross‑examination, and the apparent lack of relevance of his questions to any defence he might have.[17]
[17]Transcript 35-7.
DEFENDANT:
Now are you aware that this whole building it was first town called in Mornington Peninsula and is protected by the Mornington Shire and also those four bungalows was residence for those people working in town. Is that correct?‑‑‑No that’s not correct.
Your Honour, I’m positive that (indistinct) he’s stealing - - ‑ ?‑--We’ve got a – I’m not quite sure how this is relevant, Your Honour.
HIS HONOUR:
It’s not. Yes, well it’s not relevant obviously. I’m just trying to see what your – I’m not pretending to host as it were a rational defence here Mr Tomasevic, I’m just conforming with the unfortunate obligation of any trier of fact to suffer your questions until it – some sort of rational defences emerges in the interests of not being criticised for failing to give you a fair hearing. So that requires that – and it’s not really me that’s suffering. I can usefully undergo the same process in another case, but the difficulty is that it’s the plaintiff that has to suffer your struggle to, as it were, cobble up a defence and that can only be omitted to a certain extent and probably one of the hallmarks of the failure to evidence a rational defence is a protest from the witness box that the witness doesn’t know what you’re up to. So the long and the short of it is that so far your defence appears to be that you can – that this debt can be set off against defaults by previous owners to perform their obligations under the Residential Tenancies Act, or, indeed that opportunistically the amount can be offset because the new owner and subsequent assignees of the debt didn’t re‑perform or reiterate the obligations under the Residential Tenancies Act and so therefore you’re freed of the debt. But that’s purely opportunistic and unavailable. There is no set off of your debt against these complaints. That’s what you’re doing, isn’t it? You’re trying to say - - -
DEFENDANT:
No, Your Honour, my claim is to prove - - -
HIS HONOUR:
- - - well what are you saying.
DEFENDANT:
My claim is to prove sorry to interrupt you, that Mr Peter Higgins does not explain why he did not accept my proposition and why write an agreement as a new landlord was obligated professionally and say okay your annual tenant and that’s – you don’t pay rent or according to the (indistinct) he serve notice to vacate because I did not pay rent and I also here says that as well.
HIS HONOUR:
This is only a claim for the rent.
DEFENDANT:
Yes, if I don’t pay rent he sent me the notice to vacate this is the procedure official by (indistinct) - - -
HIS HONOUR:
- - - that’s another matter. The question today is you have to say why you don’t owe the rent. You have to make it clear why you don’t owe the rent.
DEFENDANT:
Because I pay everything what I should pay, Your Honour and this is because - - -
HIS HONOUR:
And so that’s your defence that you’ve already paid as much as your owed.
DEFENDANT:
Anything on what I was obligated and I will to come to the stage to prove it evidence that I did pay.
HIS HONOUR:
Well it would be better if you gave evidence because the questioning is not making it clear.
After lengthy circling around other matters, it again appeared that Mr Tomasevic maintained that his defence to the claim was that he had in fact paid the rent owing. The magistrate seemed to reach the conclusion that it would be more efficient to simply allow Mr Tomasevic to give evidence of facts to establish that defence, even if he had not put propositions of that nature to the plaintiff’s witness in cross examination.
But, before that could take place, there was then a further exchange between the magistrate and Mr Tomasevic in which Mr Tomasevic referred to Justice Bell and the magistrate’s obligation to assist self-represented litigants. The magistrate said that Mr Tomasevic was getting that assistance and made remarks indicating he thought Mr Tomasevic was simply intent on ‘setting up’ a Supreme Court case. The magistrate stated that he was not going to be intimidated by the prospect of an appeal to the Supreme Court, and that Mr Tomasevic was making a mockery of the proceeding. He then stated,
‘Unless you make it clear what your actual grounds are for non‑payment abundantly clear, this case will simply wander around all day inconclusively from the point of view of your defence.’[18]
He then told Mr Tomasevic that his obligation was to make his case and make it quickly.
[18]Transcript 38.
While the transcript does not make entirely clear everything that Mr Tomasevic said, it is reasonably clear that the magistrate formed the view that Mr Tomasevic was not going to comply with his request to articulate the basis of his defence or ask relevant questions of Mr Hibbert. So much appears from the following extract of the transcript:[19]
[19]Transcript 39, 40-2, 43-4.
HIS HONOUR:
No, you can’t do that. You can ask Mr Hibbert questions, sensible questions or you won’t be able to ask any at all I’m afraid. So you’ll have to make a choice as to whether you’re going to conduct your case sensibly or not or otherwise it can be left to a Supreme Court judge.
DEFENDANT:
Your Honour it sound to me as that you are more acting as an advocate for - - -
HIS HONOUR:
No, I’m simply trying to establish.
DEFENDANT:
- - - escape to - - -
HIS HONOUR:
Well look, just have a seat, just have a seat. I am not going to permit you to carry on with this. You can take the (indistinct).
DEFENDANT:
Your Honour, I ask you to withdraw yourself.
HIS HONOUR:
No, I’m not going to disqualify myself.
DEFENDANT:
And the President of the – this is my rights because you’ve not give me the opportunity - - -
HIS HONOUR:
- - - yes I think that’s probably right.
I think it’s probably better that you proceed directly to a Supreme Court appeal and I simply make an order on the basis that you’re – you’ve well and truly established yourself as a delinquent litigant and there is no end in sight to that delinquency and no rationality to your defence, and therefore I think that it’s an abuse of the court process to allow you – you’re abusing the court’s process and shouldn’t be allowed to continue.
The plaintiff’s right to a fair, proper and orderly hearing must be maintained and as I say, you are not entitled to make it your play thing or to abuse the privilege of appearing in court. I leave the question of whether or not I am right to the judgment of a judge and say no more about it.
At this stage I see no good reason to allow you to give evidence unless you promise to state succinctly and clearly your defence to the claim. If you are prepared to do that in the next hour, I am prepared to allow you to give evidence if you want that opportunity you’re welcome to it. You can take the witness box and you can spell out your defence clearly and succinctly why you don’t owe them money.
At this critical point, the magistrate was clearly offering Mr Tomasevic one final opportunity to give evidence that would reveal what his defence was, if indeed he had one. But Mr Tomasevic’s response to that opportunity effectively brought the proceedings to a close:[20]
[20]Transcript 41-4.
DEFENDANT:
Your Honour I would like to ask Your Honour a question.
HIS HONOUR:
Well do you want that opportunity or not?
DEFENDANT:
I want to learn something, so I will use analogy. If a blind person that’s coming to represent himself in the courtroom and I agree with you you’re the God in this courtroom.
HIS HONOUR:
No it’s not, that’s not the case.
DEFENDANT:
I accept it, I accept it. Would it be fair, would it be you obligation to assist this blind person or just say well get to the point this is not relevant, this is not relevant and this blind person is not really legal practitioner but (indistinct) like me.
HIS HONOUR:
Well it’s actually my obligation to, I at some point in time to identify when the process is being abused. That’s a matter of judgment, I think we have got well past that point and it seems to me that you’re simply here to humbug the plaintiff and obstruct his case rather than to advance any defence.
So on that basis you can’t be allowed to do that and it’s got nothing to do with the things that you’ve been talking about it’s actually the antithesis of what you’re talking about because it’s often forgotten that the other litigants have inalienable rights which I’ve just described to an orderly and proper hearing. They have complied with that obligation so I’m taking the view that you’re not interested.
DEFENDANT:
Your Honour I got the - - -
HIS HONOUR:
Unnecessarily disinterested in offering a reasonable even snapshot of your defence. There’s no alternative but to simply make an order.
I am satisfied that you are legally indebted for the $12,569.18 and $1,208.32. There is no defence – no rational defence disclosed in the first place and it should have been rejected by the Registry.
At this point, after hearing your efforts to participate in the hearing, I am certainly of the view that you’re not genuine about that and whatever defence might have been disclosable should have been evident by now. It isn’t. so it will have to be left to the wisdom of the Supreme Court judge as to whether or not the matter should have been suffered any further. I am happy to go along with that judgment. So it is $13,777.50 that is owing.
DEFENDANT:
Did you say you’d give me option of one hour?
HIS HONOUR:
No, I don’t propose to do that now. I think it would be a waste of time.
…
HIS HONOUR:
I’m also satisfied that the – well my earliest thoughts were that the defence was opportunistic basis on the proposition that the original debt was dissipated or surrendered or abandoned because of the sale by the original owner or the assignment to each of the assignees despite the formal assignment of debt or perhaps because of lack of notice. But none of that is evident from the written defence, and I’m satisfied at this stage because of an inability in my view to proceed any further that notice was given.
There’s no doubt that the debt was incurred. It may well, not be that was the defence because it is now emerging that the opportunity to avoid the debt is posited on the basis of defaults by the previous landlord for want of a better description or present landlord by default or by dint of assignment in their obligations as landlords under the Landlord and Tenancy Act. That would have found a setoff which is essentially what would that involve and therefore that could not be eschewed reasonably in this proceeding and furthermore, it’s certainly not flagged in advance.
As I say, I’m of the view that it’s a disservice to the plaintiff and the legal system to tolerate an opaque scattergun approach to defence of a court case. The High Court has said of all litigants that they are obliged to spell out their cases in no uncertain terms at their peril and what I say today is that the weight of authority is behind those who say that the court’s legitimate litigation is not to be trifled with and the point has been reached, Mr Tomasevic, that your defence has not emerged. And you apparently refused to divulge it but prefer to traverse events in a confusing, deliberately confusing and non-relevant way.
So that’s the consequence, the orders are made and you’ve had as much of a hearing as can be tolerated by the plaintiff.
Rightly or wrongly — that is the matter I must now consider — the magistrate formed the view that Mr Tomasevic was abusing the process of the court by harking back to irrelevant events and refusing to identify any relevant defence. His Honour was, it seemed, concerned that Mr Tomasevic was ‘trifling’ with the process of litigation and doing a disservice to the legal system and the plaintiff.
Did the magistrate err by not giving Mr Tomasevic guidance and assistance?
In his amended notice of appeal, Mr Tomasevic spelt out these specific grounds of appeal relevant to this general issue:
(1)The judge did not perform his duty to give Defendant, as a self-represented litigant, certain guidance and assistance and thereby breached the rules of natural justice
(2) The Magistrate did not:
-acknowledge the Defendant was appearing without legal representation against plaintiff who was represented
- explained to Defendant the procedure that would be followed.
-explain to Defendant how he might go about ongoing his case or assist him to do in any way.
-offer to Defendant an adjournment to obtain legal representation or advice
(3)The Defendant was in position of “grave disadvantage” – because he lacked two critical qualities possessed by competent lawyers:
- professional skill and ability and
- objectivity
The general principles in MACPHERSON V R [89]
(4)People who choose to defend themselves and appear self-represented means the trial cannot be unfair on that ground.
…
(9)The Magistrate did not direct his attention – as a self-represented litigant – to the salient points of law and procedure with respect to the duty of a judge to ensure a fair trial by giving due assistance to a self-represented litigant taking into account the fundamental human Right of equality before the law and, access to justice specified in the International Covenant on Civil and Political Right.
In his affidavit, Mr Tomasevic devoted some further paragraphs by way of submission on this ground, in these terms:
26The Magistrate did not allow the self-represented litigant to cross question the witness upon his best ability and objectivity, nor did the Magistrate assist the Plaintiff to present his case.
…
32In Plaintiff’s view this case requires and deserves an analysis of the Law with respect to the duty of a judge to ensure a fair trial by giving due assistance to a self-represented litigant, taking into account the fundamental human rights of equality before the law and access to justice specified in the International Covenant on Civil and Political Rights enhanced by Charter of Human Rights and Responsibilities Act 2006 – self-represented litigant – duty of course and tribunals to assist – scope and application of duty.
It is apparent that Mr Tomasevic does not descend to any particularisation of how he was specifically disadvantaged by some lack of guidance and assistance in the conduct of his case before the magistrate. In fact, the ‘grounds’ are substantially iterations of principles taken from particular pronouncements of the courts on the topic whether they are specifically applicable to this case or not. For example, the claim that the magistrate did not offer an adjournment is inconsistent with Mr Tomasevic stating that he wished to proceed and not to seek an adjournment. Ground number 3 is simple a repetition of Justice Bell’s words in a case which also featured Mr Tomasevic.[21]
[21]Tomasevic v Travaglini [2007] VSC 337 [79].
Somers submitted that Mr Tomasevic was not in a position of grave disadvantage at the hearing before the magistrate. Rather, it argued that by October 2015 he was an experienced litigant, self‑represented litigant and advocate. Somers’ written submissions enumerate a number of proceedings in which Mr Tomasevic had been a party in litigation, both represented and self‑represented. The proceedings include the following:
(a) in 2003, he was a self-represented defendant in the case of Zegarac v Tomasevic,[22] being a de facto property case;
[22][2003] VSC 150.
(b) in 2005 he was a represented appellant in this Court in the case of Tomasevic v State of Victoria, an appeal from VCAT;[23]
[23][2005] VSC 402.
(c) in 2007 he was a self-represented plaintiff in the case of Tomasevic v Travaglini,[24] an application in respect of a decision of a County Court judge to refuse the appellant’s application for leave from a decision of a magistrate;
[24][2007] VSC 337.
(d) he was a self-represented plaintiff in the County Court in the case of Tomasevic v the Department of Education and Training,[25] concerning his entitlement to compensation under the Accident Compensation Act, a trial which ran for some eight sitting days;
[25](Unreported, County Court of Victoria, Howie J, 2 November 2007).
(e) in 2012, he was a represented appellant in the case of Tomasevic v State of Victoria,[26] a case concerned with the interpretation of the Whistle Blower’s Protection Act;
(f) in 2014, he was a self-represented appellant in this Court in the case of Tomasevic v Melbourne Injury Lawyers,[27] an appeal from an associate judge concerning granting leave to solicitors to file and serve a notice of ceasing to act; and
(g) in 2015, he was a self-represented applicant in this Court in the case of Tomasevic v Norwicki Carbone,[28] being an application to extend the time within which to review a bill of costs.
[26][2012] VSC 148.
[27][2014] VSC 434.
[28][2015] VSC 302.
I agree that this list of cases demonstrates that Mr Tomasevic is not at all typical of the kind of self-represented litigant who appears in court with little or no experience of procedures or substantive law. Indeed, my reading of the transcript of the proceeding before the magistrate, and my own observations of Mr Tomasevic appearing on the appeal, lead me to conclude that he is more than usually capable of conducting an adversarial proceeding. He was well able to articulate his reasons for adjournment; understood and accepted my suggestion that his doctor give evidence; capably lead evidence from his doctor on some issues of relevance and accepted my rulings on questions that were irrelevant; understood and made an informed choice on whether to accept an adjournment with the necessity of further hearings in the future, or adopt the course of allowing the court to decide the matter on the written materials with the various advantages and disadvantages that would entail.
Nonetheless, Mr Tomasevic is not a lawyer. He does indeed require some guidance and assistance in understanding what is relevant and what is his task before the court. But, in my view, he was given such assistance and guidance has he reasonably required from the magistrate. The magistrate patiently explained on numerous occasions — at least until that patience ran out — that Mr Tomasevic needed to identify what it was that his defence to the debt claim was. When he strayed into irrelevancies, the magistrate attempted to explain that those issues did not amount to a defence. On my reading of the transcript, the magistrate was correct each time he did so and gave an adequate, if short, explanation of why the matter was not relevant.
It is true that the magistrate did interrupt Mr Tomasevic from time to time to question the relevance of some of his questions, but that was part of his legitimate function to ensure that the parties’ time and the court’s resources are not wasted by irrelevant matters. When he made it clear to Mr Tomasevic on a number of occasions that he had to spell out the basis of his defence, he was performing the proper function and role of a judicial officer endeavouring to identify and distil the issues in a proceeding.
Further, while the magistrate could not have been expected to know that Mr Tomasevic is an experienced litigant, Mr Tomasevic showed no signs of not understanding the procedure to be adopted at trial. And when Mr Tomasevic did have questions of the magistrate, such as his questions about the court book, the magistrate explained the position patiently and apparently courteously. Indeed, Mr Tomasevic only raised the need for any assistance after the magistrate pressed him to state the basis of his defence.
The magistrate correctly identified the specific guidance that Mr Tomasevic needed. He needed an explanation in plain language that, for his defence to succeed, he should state and prove why he did not owe the money to the plaintiff. This the magistrate gave, many times. And when Mr Tomasevic wandered from the task, the magistrate attempted to steer him back.
Mr Tomasevic’s problem was not so much that he was not given guidance and assistance. It was that he lacked objectivity in his own cause. That is not entirely unusual and sometimes litigants can be steered toward relevant matters when their objectivity prevents them seeing what is relevant and what is not. But, the offer of guidance and assistance must be met with the acceptance of it. In Mr Tomasevic’s case, he simply would not accept the guidance and assistance that was offered.
I am not satisfied that the magistrate failed to give him required guidance and assistance. These grounds of appeal must be rejected.
Did the magistrate err by not permitting cross-examination or evidence?
In his amended notice of appeal, Mr Tomasevic spelt out these specific grounds of appeal relevant to this general issue:
(6)The proceeding was listed for 2 days but the Magistrate “cut-short” for only 2 hours.
(7)The Magistrate did not properly consider the Defendant’s material as he heard and determined the application on the same day.
(8)He conducted a “short-cut” hearing and failed to assist Defendant to present his case and did not tell about the procedure that would be followed or the legal requirement that he had to satisfy, and to perform his duty to ensure a fair hearing.
In relation to each of these alleged errors of law Somers responded, in turn, as follows:
(a) the fact that the proceeding was heard and determined in less than two days is not itself an error of law;
(b) ground (7) is manifestly inadequate as it does not state how and in what way the magistrate did not consider Mr Tomasevic’s material; and
(c) as regards ground (8), Mr Tomasevic was given every opportunity to put his case and state what his defence was, which he failed to do despite being asked in the clearest terms.
I agree with Somers argument that, at the completion of Mr Hibbert’s evidence-in-chief, Somers had proved the matters alleged in its statement of claim, and as such, it was incumbent upon Mr Tomasevic to establish that he was lawfully excused from payment of the debt. At paragraph 21 of its written submissions, Somers further submitted as follows:
Thereafter the appellant’s questioning did not put his defence to Hibbert nor did it disclose a defence. The position did not change: his defence did not become clearer and the appellant did not produce any relevant documents in proof of is defence. To permit the hearing to continue was to permit not only a trial by ambush but an abuse of the processes of the Magistrates’ Court. The magistrate was right to proceed as he did.
As can be seen, this ground of complaint, and the response made to it, substantially merges with the next general issue as to whether the magistrate was correct in giving judgment when he did; that is, having curtailed Mr Tomasevic’s cross examination and without permitting Mr Tomasevic to go into evidence himself. But before turning to that final issue it is worth reiterating what had taken place before the magistrate terminated the cross-examination.
First, the notice of defence filed by Mr Tomasevic did not comply with the rules of pleading. Rule 13.02 of the Rules provides, among other things, that:
·a defence must state which of the stated facts in the statement of claim are admitted, denied, or not admitted;
·if the defendant intends to prove a fact different from that stated in the statement of claim, must state, with necessary particulars, the fact that the defendant intends to prove; and
·the defendant must state specifically, with particulars, any fact or matter which makes the claim of the plaintiff not maintainable.
Given that Mr Tomasevic had alleged that Somers had manipulated the facts and fabricated the story in an attempt to obscure the truth and that Somers’ actions were not based on reasonable action or taken in a reasonable manner, he plainly intended to prove facts different from that stated in the statement of claim. In those circumstances, the magistrate was bound as a matter of fairness to Somers to deal with the hearing in the manner in which he did. He tried to get Mr Tomasevic to put to the witness for Somers the ‘case’ that he proposed to advance to meet Somers’ claim. As observed in the passages extracted from Tomasevic v Travaglini and McWhinney v Melbourne Health set out above, the assistance given to a self-represented litigant must ensure a fair trial and not simply afford an advantage the self-represented litigant. The court must be astute to preserve its neutrality.
But, the point was reached where the magistrate had given Mr Tomasevic ample guidance in suggesting that he direct his cross examination to relevant questions: including by seeking through question and answer to help identify what the defence was in order to suggest what relevant line of questioning might be pursued. When that appeared not to work, the magistrate suggested that the better course would be to move directly to Mr Tomasevic giving evidence.[29] In my view, the magistrate not only had the power to do so[30] but was perfectly justified in taking this decision.
[29]As described at [40] above.
[30]CPA s 49(3)(d).
Thereafter the opportunity existed for Mr Tomasevic to adduce his own evidence. But, as the transcript shows, the magistrate eventually decided to give judgment without awaiting for that to occur (assuming it was to occur). The refusal to permit Mr Tomasevic to give evidence is best analysed by considering what power the magistrate had to give summary judgment and whether he made an error of law in exercising that power.
Did the magistrate err by giving judgment when he did?
So, the real issue in this appeal is whether, by abruptly bringing the proceeding to an end after Somers had completed its case, the magistrate impermissibly denied Mr Tomasevic an opportunity to be heard in defence of Somers’ claim before giving judgment in its favour. In many if not most cases, to do so would involve the denial of a fair trial. But, in the circumstances of this case I am not satisfied that it did amount to a denial of a fair trial.
As a matter of compliance with the Rules and fairness to Somers, Mr Tomasevic should have identified his defence before the case began. But, without demur from Somers, the magistrate granted Mr Tomasevic the indulgence of revealing his defence through the manner in which he conducted his case in cross-examination or, when that did not work, through the opportunity to give evidence. But, nevertheless, he was only entitled to defend the case if he had a defence that had a real prospect of success.[31] Without there being any defence with a real prospect of success, either on the application of the plaintiff or on the court’s own motion, judgment could and should be given for the plaintiff once it was established that it had a legal and factual entitlement to the relief claimed.
[31]The meaning of this phrase as used in Part 4.4 of the CPA (Summary Judgment) was explained in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 at [29] per Warren CJ and Nettle JA (Neave JA agreeing).
In addition, courts are and should be astute to whether a litigant is misusing, and thus abusing, the legitimate purpose of the litigious process. If a litigant is considered to be using the process to further ends other than to advance or defend a claim on a proper basis, the court is entitled to halt the process.
In this case, Mr Tomasevic variously suggested that his defence was:
(a) that he had in fact paid the money (without demonstrating either by explanation, cross-examination or the identification of any potential evidence that he had any basis for that allegation other than assertion to establish that he had done so);
(b) that he only owed the money to the former caravan park owner (seemingly with no answer to the assignment of debts);
(c) that he had a cross-claim of some nature due to the conduct of the previous owner (which was never articulated and, in any event, was not likely to constitute a defence to the debt); and
(d) that Somers had fabricated the facts in support of its claim (again without demonstrating either by explanation, cross-examination or the identification of any potential evidence that he had any basis for that allegation other than assertion to establish that it had done so).
After the magistrate gave Mr Tomasevic one final chance to give evidence to establish whichever defence he sought to advance,[32] Mr Tomasevic preferred to sidestep that challenge by adapting an analogy used by Justice Bell in Tomasevic v Travaglini to exemplify the difficulties that can be faced by a self-represented litigant in understanding and participating in the procedures of an unfamiliar court of law. Whereas Justice Bell referred to a ‘deaf mute’,[33] Mr Tomasevic appealed to the image of a blind person.
[32]Above at [43].
[33]Tomasevic v Travaglini [2007] VSC 337 [66].
Rather than defend the case with evidence of a defence that could meet the claim, Mr Tomasevic ultimately indicated that he was only relying upon a self-represented litigant’s generic vulnerability in court processes. But, as the transcript appears to show, Mr Tomasevic was not really experiencing any difficulty in understanding or participating in the process. In my view the magistrate reasonably construed his behaviour as avoiding the requirement to identify a defence with a real prospect of success and to advance that defence by the processes of cross examination and adducing evidence. If Mr Tomasevic was not prepared to do those things, the magistrate was entitled to take the view he had no defence with a real prospect of success, was abusing the court’s process by using it to delay and obfuscate, and so to give summary judgment for Somers as he did.
Accordingly, I reject all the grounds of appeal based, in substance, upon the cutting short of the hearing and the giving of judgment.
Other matters
There were some residual grounds of appeal that can be dealt with in short compass. The first concerned the use of the court book and tendered documents. The specific appeal ground was this:
(5)The Defendant takes view that the Magistrate may be influences by Court Book prepared by Plaintiff’s counsel to assist his client in witness box – “to put the word in his mouth”
This ground perhaps was intended to cover a number of complaints about the use of the court book.
In circumstances where Mr Tomasevic did not exercise his right by operation of the Rules to serve a notice of discovery, the magistrate was correct to observe that there was no obligation to provide documents before the hearing. Further, the transcript reveals that the magistrate explained to Mr Tomasevic the status of the documents in the court book, and made it clear that he would be prepared to consider an application to adjourn the proceeding should Mr Tomasevic be taken by surprise by any of the documents tendered into evidence, if those documents were significant to the proceeding. Thereafter, no objection was taken at the hearing to the solicitor taking Somers’ witness to documents in the court book and adducing evidence from him in respect of those documents. As the magistrate pointed out, the preparation of a court book was really a courtesy to the court and to Mr Tomasevic.
Further, the evidence-in-chief was neither leading or in otherwise objectionable form.
In my view there is nothing in this point.
The final ground to consider related to an assertion that:
(10) In various occasion the Magistrate become as advocate to Plaintiff
It is possible that Mr Tomasevic was misapplying a principle that had been emphasised several times by Justice Bell in Tomasevic v Travaglini that in taking care to give a self-represented litigant appropriate guidance and assistance the judge must refrain from becoming the advocate of the self-represented litigant.[34] While that is true, obviously Mr Tomasevic cannot rely upon that complaint.
[34]Tomasevic v Travaglini [2007] VSC 337 [91], [129], [131], [142].
But, in so far as Mr Tomasevic intended to suggest that the magistrate became the advocate of Somers in the proceeding, I reject that submission. Somers was capably represented by its solicitor who lead all the evidence on its behalf without the court’s assistance. And, if Mr Tomasevic is suggesting that the magistrate’s decision to give summary judgment on his own motion demonstrated that his Honour was acting as advocate for the plaintiff, I also reject that argument. I have already explained why his Honour’s decision was justified and did not amount to any error of law.
Conclusion
For the above reasons, I reject all grounds advanced for the appeal.
The appeal must be dismissed with costs.
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