Trkulja v Markovic

(2015) 49 VR 402; [2015] VSCA 298

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Self-represented litigants
3. › Duty of judge to ensure fair hearing
4. › Scope of assistance to be provided
5. › Where both parties are self-represented
6. › Whether judge breached duty by failing to provide appropriate assistance
1. Practice and Procedure
2. › Procedural fairness
3. › Civil trial
4. › Self-represented litigants
5. › Whether failure to warn of consequences of not adducing evidence constituted denial of procedural fairness
1. Evidence
2. › Inferences
3. › Rule in [name withheld] v [name withheld]
4. › Failure of party to give evidence
5. › Whether rule can fill gaps in opposing party's evidence
6. › Whether inference of publication available where evidence insufficient to support it
1. Defamation
2. › Publication
3. › Onus of proof
4. › Circumstantial case
5. › Whether appellant proved respondent published defamatory material
6. › Whether presence of images on computer hard drive sufficient to infer publication

Quick Take

Where both parties to civil proceedings are self-represented, the judge must provide an equal playing field and must be careful that assistance to one party does not confer a positive advantage over the other self-represented party. The scope of permissible judicial assistance is more constrained where both parties are unrepresented than where only one is. The rule in [name withheld] v [name withheld] cannot fill evidentiary gaps in a party's case; it only permits the court to draw with greater confidence inferences already open on the evidence.