Procedural Fairness in the Courtroom & Self-Represented Litigants

On 25 January 2017, Justice Rangiah made a speech to the Federal Circuit Court Conference in Brisbane called, “Procedural Fairness in the Courtroom”.

He raised the issue of the necessity for adaptation of our procedures and practices to take into account the rising tide of unrepresented litigants.

He considers that the role of the judicial officers now involves explaining those practices and procedures, and perhaps going further and explaining some of the substantive issues involved due to the increase in self represented litigants.

“In a courtroom, procedural fairness is the requirement that each party is given a reasonable opportunity to present his or her case. What will constitute a reasonable opportunity for a party to present his or her case in a given situation depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise.
The Courts have an overriding duty to ensure that a trial is fair. It has been held, notably by the NSWCA in Hamod v New South Wales [2011] NSWCA 375, that the duty requires that a litigant does not suffer a disadvantage from exercising his or her right to be self-represented.

Of course, the Court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This creates a tension in the reconciliation of the Court’s duties.  There are two relevant aspects to giving parties a reasonable chance to present their case. The first is that parties must be afforded a reasonable opportunity to be heard. Claims that this requirement has not been complied with are often reflected in appeals involving summary dismissal of a proceeding by the Federal Circuit Court on the Court’s own motion.
The second aspect is that a trial judge has an obligation to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial. That does not extend to advising the accused as to how his or her rights should be exercised.  It has been emphasised that the function of the Court is not to give legal advice to or conduct the case on behalf of an unrepresented litigant. Rather, the judge has to put an unrepresented litigant in the position of being able to make an effective choice.”

“…it is well established that a trial judge has an obligation to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court. How the obligation operates in a practical sense is demonstrated by the judgment of the Full Court in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445. The proceeding concerned an unrepresented appellant who had failed to appear at his review hearing before the Refugee Review Tribunal…[because he] had not told him of the hearing date. The Federal Circuit Court found that there was insufficient evidence to prove fraud. In particular, the Court found that the appellant’s account could not be considered because it was given from the bar table.
In the appeal to the Full Federal Court, the appellant argued that he was denied a fair hearing before the Federal Circuit Court because he was not made aware of relevant legal practices and procedures, and was not invited to give evidence under oath so that his account could be considered…
The Full Court held that the Federal Circuit Court was required to ensure that the appellant had sufficient information about the practice and procedure of the Court so that a fair trial could be conducted. In this case, that obligation extended to informing the appellant about the need for sworn evidence.”

“…So, in summary, procedural fairness requires that a Court give any litigant a reasonable opportunity to present evidence and to make submissions in support of his or her case. Usually, the Court deciding of its own motion to grant summary judgment without giving the litigant adequate time to prepare will amount to a denial of procedural fairness…”

The full speech is held in the Federal Court Library:  http://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rangiah/rangiah-j-20170125