Victorian Supreme Court rules that courts have fair hearing and equality obligations to assist self-represented litigants

Matsoukatidou v Yarra Ranges Council [2017] VSC 61 (28 February 2017)

Summary

The Supreme Court of Victoria has delivered an important decision on the obligations of courts to ensure fair hearing and equality rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) in the context of unrepresented litigants, and in particular where a litigant has a cognitive disability.

Facts

Betty and Maria Matsoukatidou (mother and daughter respectively) were charged by Yarra Ranges Council with offences under the Building Act 1993 (Vic) for failing to secure and demolish their home after it was destroyed following an arsonist attack. They each received fines (Betty with conviction) from the Magistrates Court of Victoria.

After their appeals to the County Court under the Criminal Procedure Act 2009 (Vic) were struck out for non-attendance, they applied for orders reinstating them. At the hearing, Maria and Betty appeared self-represented.  Maria has a learning disability and Betty's first language is not English. Consequently, they struggled to present their case and the judge dismissed their applications without adequately explaining the relevant procedure or applicable legal test. 

Maria and Betty sought judicial review of the orders made on the grounds that, in the way that the hearing was conducted, the judge failed to ensure their human rights to equality and a fair hearing under sections 8(3) and 24(1) of the Charter respectively.

Sitting in the Supreme Court of Victoria, Justice Bell had to consider whether a judge in the County Court is required to apply those Charter rights when hearing and determining legal proceedings. In this respect, submissions were made on behalf of Maria and Betty and the Attorney-General (who intervened).

Decision

Justice Bell accepted that courts and tribunals have an obligation to apply human rights in circumstances covered by section 6(2) of the Charter.

Equality under section 8(3)

The right to equality contained in section 8(3) of the Charter includes the right to equal and effective protection against discrimination, as defined in the Equal Opportunity Act 2010.

Justice Bell identified that Maria’s learning disability substantially diminished her capability to participate effectively in the hearing, including her ability to communicate with the judge.

The County Court judge should have recognised Maria as a person with a disability. Conducting the hearing on the basis she was an adult without a disability had the effect of disadvantaging her. As the judge failed to make any adjustments and accommodations in relation to the conduct of the hearing, a fundamental deficiency had occurred in relation to Maria's right to be equally and effectively protected from (indirect) discrimination. Consequently, her right to equality had been breached.

Fair hearing under s 24(1)

The right under section 24(1) of the Charter is not just to a fair and public hearing; it is to decision by a competent, independent and impartial court or tribunal after such a hearing.

Justice Bell identified that self-represented litigants are usually disadvantaged in all kinds of legal proceedings. Consequently, a judge has a duty to ensure a fair trial by providing due assistance.  These matters are not limited but may extend to issues concerning substantive legal rights as well as the procedure to be followed. Justice Bell stated "The proper scope of the assistance depends on the particular litigant and the nature of the case – the touchstones are fairness and balance".

With regard to whether a fair hearing had been conducted, the evidence revealed Maria and Betty’s applications for setting aside the strike out orders were listed for hearing in the County Court the day after being issued. The Council was legally represented through counsel instructed by a solicitor whereas Maria and Betty were self-represented. Justice Bell found that the County Court judge did not appear to take into account Maria and Betty’s English capacity. The hearing was conducted too quickly for their comprehension and this compounded the disadvantage they experienced.

In the light of them being self-represented, some assessment needed to be performed by the judge as to how the hearing would be conducted. For this purpose, the County Court judge needed to gain some understanding of their capabilities by appropriately engaging with them at the outset, which ought to have revealed that Maria had a disability.

Maria and Betty should not have been prevented from explaining how the loss of their home to arson had affected their participation in the criminal legal process. The loss of their home would have been a traumatic event.

As they were self-represented, the judge in the County Court hearing their applications was required to give them such advice and assistance to ensure their effective participation in the hearing and equality of arms with the legally represented party. As the judge failed to do so, Maria and Betty’s rights to a fair hearing under section 24(1) of the Charter were breached.

The orders of the judge of the County Court refusing Maria and Betty’s applications to set aside the strike-out orders were in turn set aside by the Supreme Court and their applications have now been remitted to a different judge for hearing and determination according to law.

Relationship between the Charter and common law

Justice Bell identified that in almost all cases, self-represented parties will be entitled to seek judicial review for breach of the rules of procedural fairness and excess of jurisdiction when a court or tribunal fails to apply the right to equality under s 8(3) and a fair hearing under s 24(1) of the Charter. He explained the obligations of courts and tribunals under the Charter to apply those human rights in proceedings are very close to, and in almost all cases coextensive with, their obligations under the common law to give self-represented parties such advice and assistance as well as ensure a fair trial.

Commentary

This important decision confirms that courts have a responsibility under the Charter to ensure that self-represented litigants can participate effectively in legal proceedings. Courts must ensure that self-represented litigants understand the relevant procedure and legal test and in particular must make reasonable adjustments to ensure a fair hearing for self-represented litigants with cognitive disabilities. Justice Bell unequivocally stated that the duty to ensure a fair hearing is “inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights". The case builds on Justice Bell’s 2007 decision in Tomasevic.

Betty and Maria Matsoukatidou were represented pro bono in the Supreme Court hearing on the Charter issues by Kylie Evans and Evelyn Tadros of the Victorian Bar, Colin Biggers & Paisley and the Human Rights Law Centre.

Gavin Warner is a Senior Associate at Colin Biggers & Paisley