Any reference to CASACIR or its directors, shareholders, owners or operators relates to pre-14 February 2024 when the company was sold. In no way can anything said relate to the company or its new owners, operators, directors, and shareholders after that sale.
It has been identified that legal persons had a significant responsibility to provide honest assistance to the court (this was in direct and unequivocal agreement with the legislation and Rules). Note the following:
Pagone J: One of the reasons I’ve got to do this particularly slowly is, of course, because [she] is unrepresented and I need to make sure that she’s following all this.[1]
Pagone J: I think probably it might be desirable to do that because we have got an unrepresented litigant.
Southall: I think you’re right. With the greatest respect, Your Honour’s clearly right. The case is concerned with defamation and the meanings need to be set out clearly.[2]
Pagone J: But this is a court of pleadings and I have an unrepresented litigant.
Southall: Yes, I agree with that, Your Honour.[3]
Pagone J: I need to make sure that I’m not giving an unrepresented litigant an unfair advantage and at the same time, not giving you an unfair advantage.
Southall: Yes, both, I know. It’s an awkward situation.[4]
Pagone J: I don’t mean that offensively. All I mean by that is at the moment I’m not feeling the need to stop and interrupt Mr Southall and explain things to you as sometimes one has to with an unrepresented litigant.[5]
Pagone J: I will ask [Mr Southall] at some point to make sure that what I am saying about 40.10 is not wrong. He has a duty to his client but he also has a duty to the court so if what I’ve said about 40.10 to you is wrong, even though it suits his client, he has a duty to tell me that I’m wrong about it.[6]
Pagone J: Sadly, I can’t advise you and Mr Southall has a limited ability to do so also, partly because of the position that he has with his client and partly because he has no duty of care to you beyond a duty of care that arises when somebody is unrepresented[7].
Pagone J: The difficulty for her now is that if she had a mistaken belief about what was going to happen, first of all I need to be sure that it isn’t a mistake and I’m not saying things that are plainly wrong and that’s why I say to you, in addition to the duty you’ve got to your client, remember the duty you’ve got to the court and if I’m wrong, you should tell me I’m wrong.[8]
Pagone J: The more fundamental concern really is your question about an adjournment and it’s always difficult to know what to do when one has an unrepresented litigant and I am very sympathetic.[9]
Pagone J: … I am not inviting you to make an application tomorrow, that is a matter for you. I can’t advise you, I’m the person who has to decide the disputes between you.
Me: I understand.
Pagone J: And I can’t come down there and tell you what you ought to do. I can give you some limited assistance but it unfortunately is limited….[10]
Me: I didn’t know photos had to be discovered.
Southall: That’s your fault.
Pagone J: Mr Southall.
Southall: Sorry, Your Honour.
Me: I am an unrepresented litigant and however highly you esteem me, I still am a novice.
Pagone J: … I understand that and I’m sure that Mr Southall is genuinely sorry for the remark that he made which he ought not to have made and he knows he ought not to have made it.
Me: Yesterday he tried to prejudice my case by saying you should not give me as much leeway, if you like, or assistance as you would a normal person.
Pagone J: No, I think his point was somewhat more guarded that but I accept that what he said this afternoon he ought not to have said and I’m confident he understands that he ought not to have said it… What he was saying, I think, yesterday, was that you are actually a more articulated self-represented litigant than one usually sees in these and other courts and the kind of bending over backwards that sometimes judges feel they need to do for some unrepresented litigants is not something that he, as a matter of submission, thought that I needed to be worried in your case. I think he actually said on that occasion that he was actually putting it more or less as a compliment, although it was a complement against your interest.[11]
Pagone J: You, ordinarily, have the ability to re-examine yourself but I’m sure that Mr Southall will be very conscious of the fact that you are not represented and, therefore, that he will try to be a little more accommodating with the questions that he asks of you and how he permits you to answer.[12]
Pagone J: Mr Southall, I have expressed some views in one or other of my judgments, and I think possibly elsewhere, about the obligations and position of counsel when there’s been an unrepresented litigant. I haven’t referred you to them, but I’m not sure that you have found them – or no reason why you should have.
Southall: I’m aware of a general principle in that regard your Honour frankly, and I’m intending to abide by it as carefully as I can.[13]
Southall: Your Honour, the case is still on foot, the case hasn’t closed.
Pagone J: But your case is closed. You finished your case.
Southall: Yes.
Pagone J: So let’s look at the rules and the authorities to start with.
Southall: I haven’t looked at the rules, I’ve got to admit that.
Pagone J: Would you like some time to look to do so?
Southall: Yes.
Pagone J: I’ve got an unrepresented litigant – – -
Southall: Yes, I know.
Pagone J: And I need you to do this according to Hoyle.
Southall: I agree with that.[14]
Southall: Yes, I was just a little concerned about, if I understood properly what your Honour said about the particularisation as to lack of good faith.
Pagone J: You’ve identified what it is you rely upon in good faith, and this litigant has come to court to argue that case.[15]
[A legal representative] would be bound by professional obligations such as duties to the court and to the law.[16]
It is appropriate for a judge to attempt to clarify the submissions of an unrepresented litigant, particularly where the substantive issues are being ignored or obfuscated by garrulous or misconceived advocacy: Neil v Nott (1994) 68 ALJR 509 at 510.[17]
Section 56(3) of the CPA imposes a duty upon a party and its legal representatives, when opposed to an unrepresented litigant, to assist the court to understand and give full and fair consideration to the submissions of that litigant and to refer the court to evidence in the proceedings that is relevant to the submissions: Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 at [41], [42].[18]
[1] T19:6-9 (10 April 2013)
[2] T27:11-16 (10 April 2013)
[3] T50:2-4 (10 April 2013)
[4] T56:31–T57:4 (10 April 2013)
[5] T58:1-4 (10 April 2013)
[6] T61:14-19 (10 April 2013)
[7] T62:5-10 (10 April 2013)
[8] T64:13-19 (10 April 2013)
[9] T80:21-24 (10 April 2013)
[10] T113:24-31 (10 April 2013)
[11] T266:7–T267:6
[12] T332:8-13
[13] T352:14-22
[14] T468:22–T469:5
[15] T545:10-15
[16] Email from Schivo (then of the office of Ken Smith & Associates, man X, man Y and CASACIR’s solicitors), dated 19 November 2013 at 9.37am
[17] https://www.judcom.nsw.gov.au/publications/benchbks/civil/unrepresented_litigants.html, [1-0820] Permissible intervention or assistance at (g)
[18] Obid, [1-0863] Role of represented litigant and its legal representative