Justice Bell in Tomasevic v Travaglini (‘Tomasevic’). In Tomasevic Justice Bell also reviewed a number of other criminal and civil cases that had considered the level of assistance that judges should provide to unrepresented litigants. After reviewing the relevant authorities her Honour summarised the principles governing the assistance to be provided to unrepresented litigants as follows:
Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.
Most self-represented persons lack two qualities that competent lawyers possess — legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.
The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.
The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate.
Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented.
The assistance must be proportionate in the circumstances — it must ensure a fair trial, not afford an advantage to the self-represented litigant.
Although Tomasevic was a criminal matter, as Justice Bell’s summary of the principles was, in part, based on decisions in unlawful discrimination matters and other civil matters in the Federal Court, the above principles are likely to be relevant to unlawful discrimination proceedings.