Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 219 ALR 27
Outcome: referred to
The issue of assistance to be provided to unrepresented litigants was further considered by the Full Federal Court in Minogue v Human Rights and Equal Opportunity Commission . The Court there observed (at [27]): 'In Abram v Bank of New Zealand [1996] ATPR 42340 at 42347, a Full Federal Court, faced with an unrepresented litigant's claim that the trial judge had not given him appropriate assistance to present his case, made this comment: "What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case." We respectfully agree with this observation. Because the duty of the judge varies according to the factors identified by the Full Court in Abram , the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented ...' 59 Certainly, if it had been squarely raised as a material issue by the evidence (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 219 ALR 27 at [58] ), the Tribunal would have been required to consider whether the applicant had suffered an aggravation without suffering a fracture even if the applicant had not raised the issue. However, as outlined above, there was no recent or detailed medical opinion which supported the claim which the applicant now seeks to make. Brief references in dated medical reports were not sufficient to determine the issue in his favour. In these circumstances, the fact that the applicant was unrepresented was not enough to oblige the Tribunal to investigate the issue further. 60 I note the applicant's submission that the Tribunal improperly confined itself as a result of its question to the applicant at the outset of the hearing. I agree that, in the circumstances, if the Tribunal had in fact improperly confined itself, it would have been unfair of the Tribunal to rely upon the applicant's statement that he was not claiming aggravation to restrict its consideration of the issues. The applicant's statement was made in response to a question from the Tribunal. That question effectively asked the applicant to confine his claim, when there would have been no apparent advantage to him (and, in fact, a distinct disadvantage) in doing so. There was no indication from the transcript that the applicant understood the significance of the statement he was making, or that he could make submissions in the alternative. Without intending any criticism, I note that there is no suggestion in the transcript that this possibility was explained to him by the Tribunal or by counsel for the respondent. When an applicant is unrepresented, I do not consider that a Tribunal should exclude from its consideration a matter which is raised as a material issue by the evidence because an unrepresented party has agreed to do so, unless it is clear that the unrepresented party understands the implications of confining his or her claim. 61 However, as referred to above, I do not consider that the Tribunal failed to consider any material issue. The claim now pressed by the applicant was not a material issue before the Tribunal. Whilst it may have been possible for the applicant to have made a claim of the nature which he is now suggesting, it was not a claim which he made to the Tribunal, nor was it raised as a material issue by the evidence before the Tribunal. Accordingly, this ground of appeal must also fail.