Self-represented litigants are a relatively common feature of civil litigation. This case demonstrates how easily a trial may miscarry even where the trial judge makes substantial efforts to ensure that procedural fairness is extended to a self-represented litigant. The case is Downes & Anor v Maxwell Richard Rhys & Co Pty Ltd (in liq)  VSCA 193.
Two brothers John and Bernard Downes appealed against a County Court judgment ordering them to pay the respondent $1.2 million plus costs and to give the respondent possession of certain property. The proceeding concerned a disputed deed relating to an alleged loan.
At trial the Downes’ were self-represented and neither gave any evidence. Their failure to give evidence led to the trial judge making a Jones v Dunkel [fn1] inference against them, notwithstanding his failure to alert the Downes’ to the potential consequences of not giving evidence.
The question on appeal was whether that constituted a denial of procedural fairness, such that a new trial should be ordered.
Osborn JA set out the relevant legal principles (citations omitted):
1. “The right of an unrepresented party to be heard requires that he or she be able to understand the bases on which he or she might contest the evidence led in support of a claim against them, and the manner in which he or she might answer such claim by adducing evidence in response” (at ).
2. “The judge must provide reasonable advice and assistance to the unrepresented party insofar as is necessary for a fair trial whilst recognising and respecting the rights of the opposing party” (at ).
3. “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. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial” (at ).
4. “A frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy … Concealed in the lay rhetoric and inefficient presentation may be a just case” (at -).
5. “The requirements of procedural fairness are inherently flexible and must respond to the circumstances of the particular case. It follows that the need to explain evidentiary rules and principles to a party in a particular case will depend upon the nature of that case and the course of the hearing” (at ).
6. “One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding” (at ).
The outcome on appeal
The Court of Appeal observed that the trial judge went to commendable efforts to explain procedural matters to the appellants and the distinction between submissions and evidence, including the opportunity they would have to give evidence.
However upon the conclusion of the appellants’ opening submissions (which they called a “presentation” and during which one of the appellants stated that he was going to give evidence) the following exchange occurred:
MR J DOWNES: Thanks for your time, your Honour. That’s covered what I had to say this morning.
HIS HONOUR: All right. Now, you don’t have to give evidence if you don’t want to. I might be wrong but my sense is that you want to rely on that presentation as the case for the defendants. Have I understood that right?
MR J DOWNES: That’s correct, your Honour, yes.
HIS HONOUR: I am grateful for that. Thank you very much, sir.
MR J DOWNES: Thank you, your Honour.
HIS HONOUR: Mr Bernard Downes, your brother has spoken for you and made the presentation on your behalf?
MR B DOWNES: Ok, your Honour.
HIS HONOUR: Thank you very much. I think it is back to you, Mr Lapirow.
The appellants did not give evidence and counsel for the respondent then commenced his final address. The trial judge subsequently made Jones v Dunkel inferences against the appellants based on their failure to give evidence.
In Osborn JA’s view the trial judge’s statement that “you don’t have to give evidence if you don’t want to” effectively invited the Downes not to give evidence and to rely on their submissions alone (at ). The appellants did not receive procedural fairness because the trial judge failed to:
- reiterate that they could seek to answer the respondent’s case by giving evidence;
- specifically foreshadow the possibility of the operation of Jones v Dunkel reasoning if they gave no evidence (at ).
In Whelan JA’s view:
“The defendants could not have known of, or anticipated, the application of [Jones v Dunkel] principles. Clearly, that possibility was relevant to their decision as to whether to give evidence. The judge then did apply those principles to the detriment of the defendants in his judgment” (at ).
In Beach JA’s view the appellants were inadvertently denied procedural fairness:
“… the judge’s statement that the appellants wished to rely on the ‘presentation’ as the case for the defendants would have misled unqualified people in the position of the appellants to believe that the presentation could be relied upon as an answer to the respondent’s evidence-based case. That of course was not so, as the judge’s reasons for judgment subsequently disclosed
… in a case where at least one of the appellants had indicated an intention to give evidence, I think the exchange referred to had the effect of misleading the appellants into the belief that their presentation could constitute an answer to the respondent’s case” (at -).
The decision of the trial judge was set aside and a new trial ordered.
This case is a good illustration of the difficult balancing act Courts are required to undertake in dealing with self-represented litigants. To avoid the possibility of a mistrial for procedural unfairness it may be the case that a trial judge’s attention should be drawn, if necessary, to appropriate or supplementary directions to be given to a self-represented litigant, even if that discloses a potential closing argument.
As Osborn JA said in this case (at ), a direction could readily have been given to the appellants to similar effect as the jury direction contemplated by Menzies J in Jones v Dunkel:
“In my opinion a proper direction in the circumstances should have made three things clear:
- that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence;
- that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence;
- that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.”
Cross on Evidence [8th ed] explains that the rule in Jones v Dunkel  HCA 8 may be partly summarised as follows:
“The unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case” (at ).