Davies v Commonwealth Bank of Australia Ltd (Credit)  VCAT 90 (28 January 2009) This case considered the correct approach to be followed in dealing with unrepresented litigants and balancing their rights to a fair trial and access to justice with defendants' rights.
Unrepresented applicants sought to challenge their mortgage with the CBA and seek various kinds of relief by raising arguments under the Consumer Credit (Vic) Code, the Fair Trading Act 1999 and the VCAT Act 1998.
The Tribunal noted that being unrepresented, the applicants could not be expected to draft particulars in a way a lawyer might. VCAT is framed to assist self-represented litigants to represent themselves and the Tribunal can determine a case as informally as the case permits.
Application of the Victorian Charter
The Tribunal articulated an approach to be followed by courts, tribunals (and, arguably, represented parties) in dealing with unrepresented litigants to protect the right to a fair trial and meaningful access to justice.
The Deputy President relied on the Supreme Court decision in Tomasevic v Travaglini  VSC 337 to articulate this approach. A court or tribunal must ensure the unrepresented litigant understands the process that must be followed and has 'a proper chance to put his or her case'.
Importantly, the Tribunal considered the limits of its role. The approach requires that '[E]xtra information and assistance need to be given, but the court or tribunal is not an advocate.' Accordingly, it will be sufficient if an unrepresented litigant can simply tell his or her story. To require an unrepresented litigant to 'fully characterise that story in terms of the law ... would deprive that litigant of access to justice'. In this case, the Tribunal required the applicants particularise their claim more clearly and with less repetition so that the CBA could properly reply: 'there must come a point beyond which the lack of particularisation of the claim can become so unfair to the other party that the claim ought not to proceed'.
The Tribunal ordered the applicants to file specific and precise details of their claim, the facts on which they rely and what exactly they seek from the Tribunal. As far as they can, the applicants are to say what laws relate to their claim and the CBA are to accept that being unrepresented, this statement will be incomplete. If the facts are clear, this will 'ensure a fair hearing for all, as the Charter ... requires.'
The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/90.html.
Phoebe Knowles is on secondment to the Human Rights Law Resource Centre from Minter Ellison