PROCEDURAL FAIRNESS IN THE COURTROOM

A SPEECH TO FEDERAL CIRCUIT COURT CONFERENCE IN BRISBANE 
ON 25 JANUARY 2017

I have been asked to address you on procedural fairness in the courtroom.  This is part of a bigger issue which I think that courts in Australia have failed to catch up with and adequately address yet.  That issue is the necessity for adaptation of our procedures and practices to take into account the rising tide of unrepresented litigants.  

We have tended to bury our heads in the sand.  We have pretended that the ever increasing numbers of self-represented litigants will end and that somehow we will get back to the old days when all parties were represented by lawyers.  Unrepresented litigants are not a temporary phenomenon.  We have to recognise that the nature of our role as judges has changed.  When it comes to unrepresented litigants, we cannot attempt to conduct cases by pretending that the parties are familiar with the practices and procedures of the Court.  Our role now involves explaining those practices and procedures, and perhaps going further and explaining some of the substantive issues involved.  That is effectively what the Full Court of the Federal Court has said in recent decisions.

In my experience, the most common ground in appeals by self-represented appellants from judgments of the Federal Circuit Court is denial of procedural fairness. I propose to consider what procedural fairness means; to discuss what the cases have said about its importance, and to discuss some of the practical issues by reference to recent cases.

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. 

At this stage, I will mention something which I anticipate many of you will be thinking: it is that these general statements are all very well, but Federal Court judges have no understanding of the Federal Circuit Court’s workload, the long lists and the high volume of self-represented litigants in areas like family law, migration and bankruptcy. There are two things to be said about that.  The first is, you’re probably right. Federal Court judges probably have little understanding of the time pressures involved in getting through a long list of unrepresented litigants. The second is, you’ve got more chance of getting sympathy from an obsessed, vexatious litigant than from the Court hearing an appeal from one of your judgments. Appellate judges have been described as being like the people who lurk in the hills until the battle is over and then descend and bayonet the wounded.  

At least in theory, a Court’s workload is to be taken into account when assessing the content of procedural fairness. However, that factor is very much subservient to other factors, as I’ll demonstrate by reference to a decision of the Full Federal Court in Shrestha v Migration Review Tribunal (2015) 229 FCR 301.

Shrestha involved an application before the Federal Circuit Court for judicial review of a decision of the Migration Review Tribunal.  Prior to the first return date, the solicitors for the Minister and the appellant agreed upon a timetable for the filing of evidence, submissions and listing of the matter for a final hearing.  However, on the first return date the primary judge said that he could not see that the application had any arguable grounds, and decided that the matter should be dealt with summarily notwithstanding the proposed consent orders.  His Honour proceeded to conduct the hearing on the following day and summarily dismissed the application. 

Although the Full Court was only dealing with the facts of that case, other circumstances cannot be ignored. In a later appeal against a refusal of the same judge to refuse to disqualify himself, ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, evidence was given that in a six month period the same judge had given 254 migration judgments, given ex tempore reasons in each of them and dismissed all except two – the Minister having conceded there was jurisdictional error in those two. In 65% of these cases, his Honour gave judgment at the first return date. It may be noted that in the latter case, the Full Court held that the statistics were irrelevant to the recusal application for several reasons, including that the statistics were for a period before the judgment in Shrestha. There’s no doubt that his Honour was very efficient in dealing with the Court’s high volume of migration cases, but was efficiency enough?

In Shrestha, the Full Court said that it is axiomatic that the requirements of fairness include the provision of a reasonable opportunity for the appellant to present evidence and make submissions.  The power of the Federal Circuit Court to summarily dismiss an application is subject to that obligation.  

In assessing whether there was a denial of procedural fairness, the Full Court acknowledged the relevance of the Federal Circuit Court’s workload. However, the Court seemed to give that factor very little weight, emphasising instead the High Court’s pronouncements on the fundamental importance of procedural fairness and the disadvantages faced by unrepresented applicants. The Full Court said at [53]:
The pressure of high volume decision making, such as that undertaken by the FCC in the migration jurisdiction, should be recognised. Essential tools in managing high volumes of cases include the show cause process…and the power…summarily to dismiss a judicial review application. The existence and utilisation of those processes do not obviate the need to consider the material before the Tribunal (rather than simply its reasons), nor to explain in plain terms to unrepresented applicants that they must identify to the court why the Tribunal’s decision was not made lawfully and by a fair process. Insisting to an unrepresented applicant that she or he identify a “jurisdictional error” is a pointless, and unfair, exercise. Further, the processes in s 17A and Pt 44 do not remove the obligation to give parties, whether represented or unrepresented, some reasonable time to regularise their materials and present their arguments. 

In fact, the Full Court suggested that extra caution should be applied in areas of high volume decision making, adding at [54]:
It is no fault of an individual litigant in a migration judicial review that there are thousands of other migration cases, nor that there are insufficient resources to provide all impecunious applicants with legal representation. Much is at stake for an individual litigant in the migration jurisdiction in the sense of fundamental rights, including her or his liberty in Australia by reason of the mandatory detention regime in the Act. High volumes of cases should if anything give rise to extra caution to ensure no injustices are being done because of judicial workload pressures. 

The Full Court cited several passages from High Court judgments concerning the fundamental importance of procedural fairness. In International Finance Trust Company Ltd v New South Wales Crimes Commission (2009) 240 CLR 319, French CJ said at [54]:
Procedural fairness or natural justice lies at the heart of the judicial function.  In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution.  It requires that a court be and appear to be impartial, and provide each party to the proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it... 

In Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, Gageler J said at [186]:
Justifications for procedural fairness are both instrumental and intrinsic.  To deny a court the ability to act fairly is not only to risk unsound conclusions and to generate unjustified feelings of resentment in those to whom fairness is denied.  The effects go further.  Unfairness in the procedure of a court saps confidence in the judicial process and undermines the integrity of the court as an institution that exists for the administration of justice.  

In Shrestha, it was held that the primary judge had failed to accord to the appellant procedural fairness. In particular, the appellant’s grounds of review had identified the need to procure and present a transcript of the hearing before the Tribunal, but the judge had given the appellant no reasonable opportunity to do so.  The appellant’s representatives received only 24 hours warning that the summary dismissal procedure might be invoked by the Court and that period did not allow the appellant’s legal representatives a fair opportunity to make submissions.

The Federal Court handed down a second judgment on the same day it decided Shrestha, in SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317. On the first return date the same judge asked the unrepresented appellant through an interpreter whether there was anything he had to say about why there was jurisdictional error by the Tribunal; and proceeded to summarily dismiss the application. The Full Court held that the primary judge did not accord the appellant procedural fairness because no reasonable opportunity was given to present evidence before the Tribunal, order the transcript of the tribunal hearing, or make submissions. The Full Court stated that where a party is legally represented, for a judge to proceed of his or her own motion and without notice to dismiss a proceeding summarily at the first return date, is likely to be an unfair process and inconsistent with the proper exercise of judicial power. The Full Court said that for a judge to proceed in that manner against a party who is an unrepresented Tamil asylum seeker is “an anathema to Ch III of the Constitution”.

In the same vein, in Hinton v Alpha Westmead Private Hospital [2016] FCAFC 107, the Full Court considered an appeal from the judgment of the Federal Circuit judge summarily dismissing a proceeding.  The appellant’s husband was deaf. She sought relief for alleged unlawful discrimination in contravention of the Disability Discrimination Act 1992 (Cth) for a hospital’s failure to provide sign language interpreting services to the husband for the scheduled birth of their child.  The matter came on before the primary judge for first directions.  The primary judge told counsel that the claim “seems to me on its face patently something that’s inarguable”.  His Honour adjourned the matter until later that day to hear “whether or not it’s an abuse of process and should be struck out”.  When the matter came back on that afternoon, the primary judge informed senior counsel why he considered the matter to be an abuse of process, and there was ensuing argument.  The primary judge proceeded to give an ex tempore judgment dismissing the proceeding.  

The Full Court concluded at [22]:
In the present case, at the first directions hearing, without notice and in the absence of the respondent which had consented to the short adjournment sought, the primary judge of his own motion moved to summarily dismiss the proceedings on the basis that the proceedings were “doomed” and about a “trifle”.  As noted, we consider the primary judge was wrong on both counts.  On any view, the factual and legal basis of the proceedings was by no means as straightforward as the primary judge assumed.  This was not a case where it was fair to expect that the appellant, by her counsel (whether senior or otherwise), to identify all of the material facts and legal principles upon which the claims depended in just under five hours…This is not changed by the fact that the appellant’s counsel managed to prepare a short written submission.  The request to be permitted to prepare a statement of claim, given the factual and legal issues involved and the general terms in which the complaint was expressed, was one which, in the circumstances of this case, the primary judge could not fairly deny…  

So the message from these cases is that the high workload of the Federal Circuit Court, even where there is a perception that an application is without merit, will not justify a failure to give a party adequate time to prepare and present his or her case.

I have said 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.  In oral argument in the application for review to the Federal Circuit Court, he claimed that his migration agent had fraudulently placed his signature on the Tribunal’s hearing response form without his authority and 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 Minister’s submissions emphasised that the appellant had signed consent orders under which he was to file affidavits containing any additional evidence by a particular date, but had failed to do so.  The Minister also submitted that the Court was required to strike a balance between the parties, and that it would have been procedurally unfair to the Minister if the appellant was permitted to lead evidence at the trial when he had not complied with the Court’s directions.  The Minister also argued that this course would run the risk of the Court being seen to advise the appellant.  

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.  

Justice Robertson concluded at [39]-[40]:
I see no difficulty as a matter of fairness in the primary judge telling the appellant that if he wanted the court to rely on his statements from the bar table it was necessary for the appellant to go into the witness box and make those statements formally after being sworn…I do not accept that such an explanation of the procedure would have run the risk of the court being seen to advise the appellant.  An explanation of the procedure could have been given while leaving it open to the appellant to choose whether or not to give evidence as opposed to speaking from the bar table.  

The Chief Justice said at [53]-[54]:
The appellant was not put into the witness box.  He was not told that to make out a case of fraud he had to deal with the fundamentally important issues…including the possibility of obtaining the presence of any migration agent for evidence in the court.  With respect, it was not appropriate to simply hear him from the bar table and dismiss his case…Procedural fairness required at least that this appellant be given the opportunity of going into the witness box to give evidence, with knowledge of the issues he had to address, including the exploration of the role of the migration agent…He should have been sworn and possibly, at the end of that evidence, he may have been required to be told of the inadequacy of the matters thus far, and of the issues that he had to address…

Mortimer J said at [59]:
In this case, the appellant needed sufficient information about the evidence required to make out the very serious allegations of fraud he deposed.  The appellant was not given sufficient information…He was not informed about the need for sworn evidence, nor was he informed, even in outline, about what kinds of issues he needed to address.

There are two points that emerge from SZRUR.  The first is that if an unrepresented litigant gives evidence from the bar table, it is not enough to simply conclude in a judgment that the evidence cannot be taken into account.  It is necessary to inform the litigant of the need to give sworn evidence.  In practical terms, the way I tend to deal with that issue is to have the unrepresented litigant sworn in at the bar table so that the litigant gives a mixture of evidence and submissions, and then invite the other party to cross-examine.

The second point is that SZRUR seems to go further than saying that the litigant must be informed of the practices and procedures of the Court.  The Chief Justice and Mortimer J indicated that the litigant should have been informed of the issues involved in making out a case of fraud.  There is room for minds to differ about whether informing the litigant about the evidence required to prove substantive issues goes too far.  The Minister’s submissions plainly viewed this as giving legal advice to a party.  However, the Minister did not seek special leave to appeal to the High Court.  

In the context of migration cases, I have mentioned the requirement in Shrestha that the Court must explain in plain terms to unrepresented applicants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process. It is not enough to merely say that they must demonstrate jurisdictional error.

Another relevant decision of the Full Court is  SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15.  In that case, the Full Court said at [36]-[38]:
…His Honour was required to give the applicant a reasonable opportunity to present evidence and to make submissions in support of his applications…In this case, the fact that the applicant was unrepresented exacerbates the procedural unfairness that he encountered.  The fact that a litigant is not represented may require a court to take steps to explain its processes and procedures to the litigant to ensure procedural fairness…In the hearing on 15 September 2015, the primary judge made no effort to explain to the unrepresented applicant how he might properly make an application for an injunction under the Federal Circuit Court’s rules.  Nor did the primary judge explain the other procedures that the applicant might have chosen to utilise.  His Honour might, for example, have drawn the applicant’s attention to the provision for notices to produce.  Bearing in mind that the applicant was unrepresented and that his own uncontested affidavit showed that the subject matter of his claim for injunctive relief was important to him, we consider that the judge’s failure to explain the Court’s processes and procedures was unfair to the applicant and involved an unreasonable exercise of power.  

In Spencer v Commonwealth of Australia [2014] FCA 1288, Mortimer J applied such an approach when considering objections to the admissibility of evidence tendered by an unrepresented litigant.  Her Honour said at 20]:
…Junior counsel for the State submitted that the rules of evidence are not applied in a weaker fashion simply because a party is self-represented.  In my opinion, the rules of evidence, like all other processes of the court designed to ensure a fair trial, must be applied in a manner which is conducive to the outcome of securing a fair trial…Where a party, in particular an applicant, is self-represented, the court has a more active role in ensuring the fairness of the trial – not only to the self-represented party, but also to the represented parties.  The manner in which a trial must be conducted is quite different…
[25]	[W]here there are objections which in my opinion have not been capable of being the subject of legal argument from a proper contradictor, and in circumstances where the framing of Mr Spencer’s case is being done by him without the benefit of legal representation, unless it is very clear that the evidence is inadmissible, then the fairness of the trial is enhanced, and procedural fairness is better afforded to Mr Spencer, by having the alleged infirmities and deficiencies in the evidence adduced by Mr Spencer exposed through cross-examination and submission.  Mr Spencer then knows, in a more informed way, the case which is being put against him on the facts.

Again, this view arguably takes matters too far, but the judgment was not the subject of any appeal.

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.

Further, a Court has an obligation to explain any relevant processes and procedures to the litigant. The Court’s obligation extends to explaining at least what the substantive issues are, although the extent to which the Court must go is unclear.

Finally, can I offer a practical reason why it is important to ensure that unrepresented litigants are fully accorded procedural fairness? In my experience, most litigants can accept the outcome of a case where they have had a fair hearing. However, no litigant will accept the result where they believe they have been denied a fair trial. Nothing makes an unrepresented litigant more distressed and angry. Taking a bit more time and exercising a bit more patience at an early stage can save a lot of trouble later. 

The growth in unrepresented litigants is a bit like climate change – undesirable, but inevitable and irreversible.  I firmly believe that we, as judges, cannot live in the past, but must consciously adapt our practices to deal with the changing judicial landscape.