McMurtrie v Cth

[2006] NSWCA 148

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Unrepresented litigants
3. › Procedural fairness
4. › Role of trial judge in ensuring fair hearing
5. › Whether appellant denied procedural fairness
6. › Whether trial judge fulfilled duty to assist unrepresented litigant
1. Appeal
2. › New arguments on appeal
3. › Whether appellant entitled to raise factual basis not put at trial
4. › Where opponent could have conducted case differently
5. › Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
1. Evidence
2. › Oral evidence
3. › Proof of terms of lost documents
4. › Proof of conversations
5. › Difficulties of recollection over time
6. › Trade Practices Act 1974 (Cth), s 52
1. Contract
2. › Formation
3. › Government contracts
4. › Training for Aboriginals Programme
5. › Whether agreement for one year or four years
6. › Whether written agreement constituted by standard departmental form

Quick Take

A trial judge fulfils the duty of procedural fairness to an unrepresented litigant by providing opportunities to present the case, asking questions to assist in eliciting evidence, and alerting the litigant to procedural steps — but is not required to go further where the litigant fails to make proper use of those opportunities. An appellant cannot raise on appeal a factual basis not put at trial where the opponent could have conducted its case differently. The Watson v Foxman difficulties of proving conversations apply equally to attempts to prove from recollection the contents of lost documents.