The central issue in Flightdeck Geelong Pty Ltd v All Options Pty Ltd  FCAFC 138 (14 August 2020) was the scope of a judge’s duty to assist an unrepresented litigant in the conduct of a trial.
The proceedings arose from a contract entered into by the respondent (All Options) on 19 March 2015 to purchase from the appellant (Flightdeck) an indoor trampoline business called ‘Airodrome Trampoline Park’.
All Options claimed that representations made by Mr Mathews and Flightdeck during negotiations in relation to the establishment costs of the business, its past revenue and profit, and its future profitability, were misleading and asserted that the making of them contravened s18 of the ACL.
Until about five months prior to the hearing, Mr Mathews and Flightdeck had been legally represented. At that time, Mr Mathews appeared at a directions without legal representation and sought to represent both himself and Flightdeck.
The primary judge informed him that if he wished to appear on behalf of Flightdeck he would need to seek leave to do so and that any such application would need to be accompanied by a supporting affidavit. Successive applications made by Mr Mathews for leave to represent Flightdeck and, subsequently, to adjourn the hearing date to obtain legal representation, were refused.
Mr Mathews and Flightdeck contended, in part, that the primary judge erred by denying Mr Mathews procedural fairness as a self-represented litigant in that he failed to adequately explain the processes of the trial and the legal consequences of his choices during the trial, particularly in relation to cross-examination and the tendering of evidence.
The court’s duty to the litigant-in-person
The court (Markovic, Derrington and Anastassiou JJ) commenced its consideration of this issue by noting that there existed a lack of clarity as to the obligations of a court to a litigant-in-person. Statements to the effect that, “Courts have an overriding duty to ensure that a trial is fair” or that judges must “ensure that trials are conducted fairly and in accordance with law” are axiomatic but do not offer any great assistance in the particular circumstances of a trial.
The extent of the court’s obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends on “the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case”. The court provided the following useful guide as to the type of assistance that it may be appropriate for a court to provide to a litigant-in-person:
- Ensuring the litigant has sufficient information about the practice and procedure of the court to make effective choices in the conduct of the matter. The failure by a judge to, for example, explain the difference between formal sworn testimony and statements made from the bar table and to explain the risks in not leading evidence where adverse inferences might be drawn, may amount to a denial of procedural fairness.
- Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous, for example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness.
- Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments.
However, the duty of the court does not extend to providing judicial advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf, nor to view a litigant-in-person’s case with a favourable eye.
Anthony Lo Surdo SC is a barrister, arbitrator and mediator at 12 Wentworth Selborne Chambers, Sydney, Lonsdale Chambers, Melbourne, and Outer Temple Chambers, London, Abu Dhabi and Dubai. Theresa Power is a barrister at 12 Wentworth Selborne Chambers, Sydney. The full version of these judgments can be found at austlii.edu.au.