Case: Rajski and Anor v Scitec Corporation Pty Ltd (unreported, Court of Appeal of New South Wales, 16 June 1986)
Outcome: considered
The respondent rejects the submission that the Tribunal 'manoeuvred' the applicant into a disadvantageous position. The respondent says that the applicant at no time requested assistance or guidance, and does not make any complaint that he was prevented from presenting his claim in the manner in which he intended. The Tribunal was merely refraining from interfering in the applicant's case: see Sullivan at 342-3. The respondent says that it was not incumbent upon the Tribunal to frame the applicant's claim on his behalf, and to have done so would have contravened the impartiality and neutrality which are vital to fairness between the parties: see Rajski and Anor v Scitec Corporation Pty Ltd (unreported, Court of Appeal of New South Wales, 16 June 1986). 53 The Full Court in Minogue then referred to the decision of Rajski, in which Mahoney JA observed (at 22-3 of his Honour's reasons): 'Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.' 54 I note also the observations of Samuels JA in Rajski with respect to the limits upon the assistance that a court or tribunal should provide to an unrepresented litigant. His Honour observed (at 6 of his Honour's reasons): 'In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent.' 55 I have set out above the medical evidence which was before the Tribunal at the time it made its decision. Much of that evidence relates to whether the applicant exhibited vertebral fractures. However, several medical experts linked the applicant's degenerative spinal change to his roping and climbing activities without specifically identifying vertebral fractures: see the reports of Dr Bull, Dr Millar, Dr Ness and Dr Garrick and the 1990 report of Professor Sambrook. The reports of Dr Cameron and Dr Billett, as well as the evidence of Dr Maxwell and Dr McGill, contradict the claim that the applicant's spondylosis was aggravated by his activities. 56 Some of the reports which formed part of the applicant's medical history raised the possibility that his spinal degeneration could be exacerbated without him having suffered a fracture. However, the evidence relating to this possibility was scant and derived from various medical reports which were part of the background to the applicant's claim, rather than the main portion of his medical evidence. Many of those reports were brief reports which were many years old. Despite the fact that the existence of compression fractures was clearly in dispute, none of the recent evidence of Professor Sambrook suggested that the applicant could have suffered an aggravation of his spondylosis even if the fractures did not exist. Further, the respondent's medical experts gave evidence that the applicant's condition was the result of normal degeneration, which is inconsistent with the position now pressed by the applicant. In these circumstances, the references in his medical reports mentioned above would have been insufficient, without further evidence, for the Tribunal to have made a finding that the applicant's spondylosis had been aggravated by his service without him having suffered a compression fracture.