FEDERAL COURT OF AUSTRALIA

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2.    The appellant have leave to amend his notice of appeal in the form of the Amended Notice of Appeal annexed and marked SZRUR1 to his affidavit affirmed on 15 November 2013.

3.    The appeal be allowed.

4.    The orders of the Federal Circuit Court of Australia made on 16 July 2013 be set aside.

5.    The amended application be remitted to that court for rehearing.

6.    The first respondent pay the applicant’s costs of the application to the Federal Circuit Court of Australia to date, as agreed or assessed.

7.     The first respondent pay the appellant’s costs of the appeal from the date on which the first respondent had notice of the proposed amended notice of appeal. Each party is to bear his own costs of the appeal up to that date.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Allsop CJ

1    I will ask Robertson J to deliver the first judgment.

ROBERTSON J

Introduction

2    The main issue in this appeal is whether the appellant was denied procedural fairness in the Federal Circuit Court where, being self-represented, the primary judge did not explain to the appellant that the Court would not act on statements from the bar table and that his allegation of fraud against his migration agent would fail in the absence of evidence as such. The appellant’s case in the Federal Circuit Court was that he did not attend the hearing in the Refugee Review Tribunal (the Tribunal) because the notice of the hearing, although sent to the address of a migration agent, was not given to him and he was not notified of its contents, in the circumstances which I set out below.

Background

3    This appeal is from the judgment of the Federal Circuit Court given on 16 July 2013 dismissing, with costs, an application to that Court seeking judicial review of a decision of the Tribunal dated 22 August 2012 affirming the decision not to grant the appellant a Protection (Class XA) visa.

4    The appellant has Chinese nationality. The Tribunal noted that he arrived in Australia on 22 October 2011. He applied to the Department of Immigration for a Protection (Class XA) visa on 16 November 2011. He attended an interview with the Department on 30 March 2012. On 4 April 2012 the appellant lodged amended written claims. The delegate refused to grant the visa on 11 April 2012.

The Tribunal

5    On 26 April 2012 the appellant applied to the Tribunal for review of that decision. That application gave the appellant’s residential address, mobile telephone number and email address in answer to the item on the form “Your contact details in Australia”. He answered the question “Do you want to appoint a representative to act on your behalf and to be your authorised recipient?” “No”. To the question “Where do you want us to send correspondence about your application?”, the appellant answered “To Me”, gave the postal address of 301/401 Sussex Street, Haymarket, NSW and gave the same email address as before.

6    On 23 May 2012 the Tribunal wrote to the appellant acknowledging receipt of the application. That letter was addressed to the appellant at 301/401 Sussex Street, Haymarket, NSW. That letter said that it was important that the appellant tell the Tribunal immediately if he changed his contact details “(such as your residential address, mailing address, telephone number, fax number or email address)”.

7    On 25 June 2012 the Tribunal sent a letter by registered post to 301/401 Sussex Street, Haymarket, NSW. The letter stated that the Tribunal had arranged a hearing for 9:30 am on 21 August 2012.

8    A response to the hearing invitation was received by the Tribunal on 4 July 2012 stating that the appellant would take part in the Tribunal hearing scheduled for 21 August 2012. At the foot of the form under the words “Signed on behalf of, and with the consent of, all applicants” the appellant’s name appeared in handwriting and underneath that handwriting was a signature in Chinese characters.

9    The Tribunal hearing record for 9:30 am on 21 August 2012 was marked “no show”.

10    In its written decision, the Tribunal found that its letters dated 23 May 2012 and 25 June 2012 had not been returned to the Tribunal as of 22 August 2012.

11    The Tribunal, at [29], wrongly stated that there had been no response to the hearing invitation. The Tribunal, at [30], correctly noted that on 4 July 2012 it received a response to the hearing invitation form that indicated that the appellant intended to attend the hearing.

12    The Tribunal noted that the appellant had given no details of an authorised recipient. In those circumstances, and under s 426A of the Migration Act 1958 (Cth), the Tribunal decided to make its decision on the evidence available to it, without taking any further action to enable the appellant to appear before it.

13    On 22 August 2012 the Tribunal sent a letter to the appellant by registered post to 301/401 Sussex Street, Haymarket’s NSW stating that the Tribunal had decided to affirm the decision under review and enclosing a copy of the Tribunal’s statement of decision and reasons.

14    Section 426A of the Migration Act was in the following form:

426A  Failure of applicant to appear before Tribunal

(1)    If the applicant:

(a)    is invited under section 425 to appear before the Tribunal; and

(b)    does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2)    This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

The proceedings in the Federal Circuit Court

15    The application to the Federal Circuit Court, as amended, was in the following terms:

1.    The Applicant was denied natural justice.

Particulars

a.    The matter was heard by the Refugee Review Tribunal in the Applicant’s absence and a decision was made on 21 August 2012.

b.    The Applicant engaged a Migration Agent whose address is 301/401 Sussex Street, Haymarket, NSW 2000.

c.    On 25 June 2012, the Tribunal sent a letter to 301/401 Sussex Street, Haymarket, NSW 2000 being the address of the Applicant’s agent but the Applicant was not informed by the agent that the hearing was set down for 21 August 2012 and therefore the Applicant had no knowledge that the matter was to be heard on that date.

16    The appellant appeared in person in the Federal Circuit Court. He had the assistance of an interpreter. The appellant did not give oral evidence but told the judge from the bar table that he expected to hear from his migration agent about the hearing date in the Tribunal but he did not. The appellant told the judge that the signature on the form responding to the invitation to appear was not his. The appellant also told the judge that he “entrusted” the migration agent to apply for his protection visa on his behalf and he did not authorise the agent to sign any documents on his, the appellant’s, behalf: the agent simply did not have the authority to sign the appellant’s own name for him.

17    The primary judge referred to SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 and to Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501 at [33] and said that he did not have the evidence which would satisfy him that a fraud had been perpetrated upon the appellant and, through him, the Tribunal. He did not know the circumstances in which the migration agent was allegedly retained. The documentation seemed to indicate that the migration agent did not wish to be considered the appellant’s migration agent, that he was to be only a post-box and that the appellant was well aware of his having signed the form. While it was possible that the appellant did not really understand the nature of the work to be conducted by the agent or why the agent should not nominate himself as such, this was only something that the court could speculate upon and did not assist it to come to a conclusion that the appellant was defrauded. The primary judge said that the appellant had provided no evidence to the court of what occurred. The only evidence that he gave was to read out from the bar table a statement by a person, who claimed that she would not be able to give evidence in court, that she heard the appellant telephone the migration agent and complain that he had not been told about the hearing in September 2012, over a month after the decision. The primary judge said one might wonder why, if the appellant received a copy of the decision sent to him at 301/401 Sussex Street, the agent had not given him advice concerning the hearing invitation. Again this was something not explained.

The appeal to the Federal Court

18    The notice of appeal to this Court as amended pursuant to leave granted at the hearing of the appeal was as follows:

Grounds of appeal

1.    The appellant was denied a fair hearing by the Federal Circuit Court Judge.

Particulars

a.    The appellant was an unrepresented litigant, who could not speak, read or write English, and had no understanding of the Australian legal system, amongst other things. In the circumstances it was appropriate for the Court to have assisted the appellant in order to present his case of a fraud by his migration agent.

2.    The Federal Circuit Judge made findings without any evidentiary basis (refer to paragraph 12 of the judgment).

19    The orders sought were to set aside the orders of the primary judge and remit the matter to the Federal Circuit Court for rehearing.

The submissions

20    Counsel for the appellant submitted that the appellant was denied a fair hearing by the Federal Circuit Court because he was not made aware of the legal rules and procedures as he was not invited to give critical evidence under oath or affirmation and be cross-examined on it. It was appropriate in the circumstances of the appellant for the Court to give some assistance to him in order to fulfil that duty of the Court, as the evidence would have been relevant to establishing the principal issue of fraud. The claim by the appellant in the Federal Circuit Court was that a fraud by a third party caused the statutory process of review by the Tribunal to miscarry such as to give rise to a jurisdictional error vitiating the Tribunal’s decision. However, the primary judge held that he did not have the evidence to satisfy him that a fraud had been perpetrated upon the appellant and, through him, the Tribunal.

21    The appellant submitted that primary judge did not consider as evidence towards establishing a fraud the appellant’s claim from the bar table that the signature on the response to hearing invitation form was placed there without his knowledge or authorisation.

22    The issue of authorisation was referred to at page 8 of the transcript before the Federal Circuit Court where the appellant, through an interpreter, said that he “entrusted” the agent to apply for his protection visa on his behalf and “I simply did not authorise him to sign any documents on my behalf. He simply did not have the authority to sign my own name for me.”

23    Counsel for the appellant submitted that while the Federal Circuit Court need not have considered unsworn evidence, the Court should, however, have invited the appellant to give sworn evidence. There was a strong inference on the transcript and from the disadvantageous circumstances of the appellant that he was unaware that the statements he was making from the bar table would not be taken into account by the Court as evidence.

24    The appellant submitted that the Court had a duty to give unrepresented litigants a fair hearing and that it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty: Reisner v Bratt [2004] NSWCA 22 at [4]. Judges should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person. In order to ensure a fair trial the judge should explain to the litigant in person any procedures relevant to the litigation: Marriage of Johnson (1997) 139 FLR 384 at 406. The appellant referred also to MacPherson v The Queen (1981) 147 CLR 512, Abram v Bank of New Zealand [1996] FCA 1650 at [31] and Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at [28]-[29].

25    The particular circumstances of the case, in the appellant’s submission, included the following:

a.    The appellant did not speak, read or write English and he required a translator at the Federal Circuit Court hearing;

b.    He would therefore have needed some assistance to read and complete any forms required in his visa application and subsequent review process. It would be relevant to confirm whether this was provided by his migration agent;

c.    The appellant had arrived in Australia from China less than a year before, he had no legal training nor any understanding of the Court rules and procedures;

d.    The Court had already heard the appellant’s claim of fraud by the migration agent from the bar table and his sworn evidence as to whether his signature was falsely placed on the document would be relevant to establishing fraud;

e.    The Court was not able to find fraud by reason of a lack of evidence, and yet the litigant was present in Court and he could easily have given sworn evidence and been cross-examined; and

f.    Without any evidence whatsoever from the appellant about the conduct and representations of the migration agent, it would not be possible for the Federal Circuit Court to decide the matter one way or the other.

26    However the Court did not invite the appellant to give evidence under oath or affirmation. Such a step would not have resulted in any compromise of impartiality of the Court or injustice to the other party. The invitation would also have allowed the respondent to cross-examine him.

27    The appellant submitted that in order to ensure a fair trial the Federal Circuit Court Judge had to ensure that if the unrepresented person failed to put forward critical evidence which he might have done otherwise, it was not due to his lack of knowledge of legal procedure. Particularly if the judgment subsequently found that it became a key failing in the application. The failure of the Court to fulfil this duty prevented the appellant from an opportunity to present his case.

28    The appellant also submitted that the Federal Circuit Court Judge made findings without any evidentiary basis. This centred on the findings at [12] where the primary judge said he did not know the circumstances in which the migration agent was allegedly retained. The primary judge said the documentation seemed to indicate that the migration agent did not wish to be considered the applicant’s migration agent, that he was to be only a post-box and that the applicant was well aware of his having signed the form. It was submitted that the primary judge erred in attributing a certain motivation and intention to the appellant’s migration agent without any evidentiary basis; and attributing a certain knowledge by the appellant of the migration agent’s motivation and intention without any evidentiary basis.

29    The first respondent (the respondent) submitted that the appellant did receive a fair hearing in the court below.

30    The respondent drew attention to the fact that the matter was listed for directions in the Federal Circuit Court on 29 November 2012 and the appellant appeared with the assistance of an interpreter and signed consent orders which included orders that he file and serve any affidavits containing additional evidence to be relied upon by 17 January 2013 and that all evidence relied upon by the parties was to be presented by way of affidavit. On 18 February 2013 the appellant filed an amended application which was prepared by a solicitor following the appellant’s participation in the Minister’s panel advice scheme.

31    The respondent submitted that the Federal Circuit Court was required to strike a balance between self-represented litigants (who regularly make the applications) and the Minister (who is usually the contradictor). In the present case, part of the balance involved setting a timetable, at the outset of the proceedings, to which both parties agreed. It was apparent from those orders that if the appellant wanted to give further evidence he needed to do so by filing one or more further affidavits. The appellant had by this time filed an affidavit in support of his application.

32    The respondent submitted that particularly in circumstances where the appellant, who was assisted by an interpreter at the directions hearing, was given a reasonable pre-hearing opportunity to file such evidence, the primary judge did not deny him a fair hearing in proceeding to determine the matter after hearing all that he had to say at the final hearing and without advising or prompting him to add any further evidence. The course contended for by the appellant that the primary judge should have informed him that he could give sworn oral evidence was not necessary to achieve procedural fairness, particularly in view of the directions already made. Indeed, the respondent submitted, there was a real likelihood that it would have been procedurally unfair to the Minister if the appellant had been permitted to lead evidence at the hearing that had not previously been filed and served in accordance with the Court’s directions. It would also run the risk of the Court being seen to advise the appellant.

33    Further, the respondent submitted, there was simply nothing said to the primary judge from the bar table which, merely by being sworn, would have made out a case of fraud in not notifying the appellant of the hearing date.

34    The respondent referred to what was said by the appellant in answer to the submissions on behalf of the respondent before the primary judge that there was no evidence before the Court of any act of fraud committed upon the appellant. The appellant said “I cannot produce any evidence in relation to this specific migration agent”.

35    The respondent submitted that whether or not the signature on the response to hearing invitation form was that of the appellant or that of someone else and whether or not the appellant was informed of the hearing date there was no evidence to show any fraud on the appellant or on the Tribunal. Mere mishap or even negligence would not suffice.

36    As to the second ground of appeal the respondent submitted that the primary judge was not intending to reach any concluded view as to the nature of the appellant’s engagement of the agent or what had taken place between them. In circumstances where the primary judge was well aware of the paucity of evidence before him the appellant’s contention that his Honour made findings of the nature led should be rejected.

Consideration

37    In Hamod v State of New South Wales and Anor [2011] NSWCA 375 the Court, Beazley, Giles and Whealy JJA, said:

Courts’ duty to unrepresented litigants

[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v R [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94–95. In MacPherson Mason J, at [31] 534, noted that:

A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as “fair”.

[310] However, the court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]–[53].

[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the 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. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.

[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v New South Wales (No 2) [2006] NSWSC 914.

[313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:

But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant.

[314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.

[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:

A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.

[316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.

38    In my opinion the submissions of the respondent do not deal adequately with the statement made from the bar table by the appellant that he did not authorise the migration agent to sign any documents on his behalf. It appears that the primary judge did not refer in terms to this statement.

39    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 having been sworn. It is not at all clear that the appellant understood that procedure without it having been explained to him by the primary judge. I infer that the appellant was unaware that the statements he was making from the bar table would not be taken into account by the Court as evidence. The transcript appears to show the primary judge encouraging the appellant to “tell” the judge matters from where he was.

40    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.

41    I am unable to place any weight on the appellant’s non-compliance with the procedural orders for the filing of affidavits. The primary judge did not explore with the appellant, as a consequence of any choice by him to seek to give oral evidence once that choice was explained to him, why he had not filed affidavit evidence in accordance with the consent orders made on 29 November 2012. The appellant may have had a reason or he may not. If he did not have a reason for non-compliance then the primary judge may have been justified in not permitting the appellant to give oral evidence.

42    Similarly, I am not persuaded that it is an answer that there is a real likelihood that it would have been procedurally unfair to the Minister if the appellant had been permitted to lead evidence at the hearing that had not previously been filed and served in accordance with the Court’s directions. That point had not been reached because the primary judge had not explained to the appellant the procedural choice that he had.

43    In my opinion, in the circumstances, the failure to explain the procedure to the appellant was not fair and it could have affected the outcome. I take into account not only that the appellant was self-represented but also that he could not speak or read English. I also take into account the importance to the appellant of the subject matter of his application to the Federal Circuit Court. As I have noted, the primary judge did not apparently advert to the appellant’s statement that he did not authorise the migration agent to sign any documents on his behalf.

44    As I have indicated, the respondent submitted that there was nothing said by the appellant before the primary judge which would have made out a case of fraud. In my opinion the answer to that contention is that the primary judge did not give adequate reasons for that conclusion. Although the primary judge noted at [10] the appellant’s statement that the signature on the relevant response to hearing invitation form was not his, the primary judge did not expressly consider, assuming that what the appellant said from the bar table was treated by the primary judge as evidence, the evidence by the appellant that the signature was not his and he did not authorise the agent to sign any document on his behalf. Therefore the matter would have to go back to the primary judge for lack of sufficient reasons.

45    It is not necessary to consider in any detail the second ground of appeal. In my view the short answer to it is that the primary judge was not making findings of fact in the passage complained of but was merely illustrating, in his Honour’s view, the absence of evidence of what happened and thus the absence of evidence of fraud.

Conclusion

46    In my opinion, the appeal should be allowed, the orders of the primary judge set aside and the matter remitted to the Federal Circuit Court for rehearing. The respondent should pay the costs of the applicant before the Federal Circuit Court of Australia to date, as agreed or assessed. In this Court, the respondent should pay the costs of the appellant from the date on which the respondent had notice of the proposed amended notice of appeal. Each party should bear his own costs of the appeal up to the date on which the respondent had notice of the appellant’s proposed amended notice of appeal. The name of the (first) respondent should be changed to “Minister for Immigration and Border Protection”.

Associate:

Dated:    3 December 2013

REASONS FOR JUDGMENT

Allsop CJ

47    I agree with the reasons of Robertson J. I would add the following comments, in no way in derogation from anything that has fallen from his Honour.

48    May I commence these reasons by emphasising that I make no personal criticism of the learned Federal Circuit Court judge.

49    The appellant had a case before the Federal Circuit Court, a court established under Chapter III of the Constitution. The Federal Circuit Court was exercising the judicial power of the Commonwealth.

50    The judge had before him a self-represented litigant, with no facility in English, and no facility with the Australian legal system. The appellant, in an unsworn statement from the bar table, stated that someone, in effect, had forged his signature on a document provided to the Refugee Review Tribunal (the Tribunal), that is that it was signed without his authority. He identified a migration agent at the end of the hearing.

51    There is a heavy burden of proving fraud on an applicant who seeks to set aside an otherwise blameless decision of the Tribunal by reason of the fraud of some third party. The heaviness of that burden is identified in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 and Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501.

52    If I may say so, before the Federal Circuit Court the matter was hopelessly confused, and lacking in any presentable form. Nevertheless, there was before that Court a body of facts which might have founded a case that someone signed a form that represented to the Tribunal that the appellant knew of the hearing date, and was acting for himself, both matters being false. The person who signed that document should, on one view, be judged by the standards of ordinary decent people, that is, in this context, ordinary decent migration agents conducting their affairs with one of the most important tribunals that they will deal with in the interests of their clients. In relation to that standard, reference only need be made to Macleod v R [2003] HCA 24; 214 CLR 230 at 242, Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 162, referred to in a bankruptcy context in Marcolongo v Chen [2011] HCA 3; 242 CLR 546 at 559.

53    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 fundamentally important issues displayed in SZFDE and SZLIX 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. Dealing with litigants in person is difficult. SZLIX reveals the difficulty of the type of case that this litigant in person had. 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 that he had to address, including the exploration of the role of the migration agent. He was not afforded that fairness.

54    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. He may not have been able to do so, but that is not the point. These are difficult cases. Nevertheless, that difficulty does not mean that they should be dealt with other than with due procedural care and, where necessary, important formality.

55    The appellant is entitled, and was entitled, to a hearing reflecting the indicia of the exercise of the judicial power of the Commonwealth. He may well have lost his case, but he is entitled to lose his case after a hearing which has afforded him procedural fairness as an incident of the exercise of the judicial power of the Commonwealth.

Associate:

Dated:    3 December 2013

REASONS FOR JUDGMENT

Mortimer j

56    I agree with the orders proposed by Robertson J. I agree with the reasons for those orders given by the Chief Justice and Robertson J.

57    I wish to emphasise two matters, and in doing so I also make no personal criticism of the learned primary judge.

58    First, in my opinion, as the New South Wales Court of Appeal in Hamod v State of New South Wales and Anor [2011] NSWCA 375 has observed at [311], the primary judge was required to ensure the appellant had sufficient information about the practice and procedure of the court so that a fair trial was conducted.

59    In this case, the appellant needed sufficient information about the evidence required to make out the very serious allegations of fraud he proposed. 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.

60    Secondly, as the New South Wales Court of Appeal in Hamod observed at [312], the primary judge was also required to put an unrepresented litigant in a position to make an effective choice about how to conduct his case.

61    In my opinion, for the reasons outlined in more detail by the Chief Justice and by Robertson J, the manner in which this hearing was conducted by the primary judge failed to give the appellant the effective choice to which he was entitled.

Associate:

Dated:    3 December 2013