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LITIGANTS WITHOUT REPRESENTATION: A DILEMMA FOR A
JUST SOCIETY?
BY THE HON JUSTICE ROBERT NICHOLSON, AO*
SYNOPSIS
One of the features of developing a just society is that more people
wish to assert perceived rights. Many wish to do so themselves
without legal representation. They are entitled by law to do so.
However, the courts are structured to operate on the basis of legal
expertise. An unrepresented litigant presents challenges to the opposing party
and to the presiding judge to ensure that fairness is preserved.
Courts cannot act in a way which places the other represented party
in an unfair position.
Likewise, court staff are called on to offer considerable assistance but
not advice to unrepresented persons. Yet the limits of their assistance
are difficult for an unrepresented person to understand. How can
these interests be reconciled satisfactorily? Can ‘a just society’ be well
served by an increase in unrepresented litigants?
‘Litigants without representation’ are litigants who, for one reason or another, are not
represented in court by any qualified legal practitioner. They are variously described.
They may be called
• ‘litigants in person’, or,
• ‘self-represented litigants’.
In this paper they will usually be described as unrepresented litigants.
A ‘JUST’ SOCIETY
The concept of a ‘just’ society takes its colour from our understanding of the word
‘just’. That word includes in its meanings that the subject to which it is applied is
‘based on right; rightful; lawful’; further, that it is in accordance with true principles;
equitable; - and even handed1: The question raised in relation to litigants who are
unrepresented by trained lawyers is whether our society, if it is or is to be a just
society, is even-handed in relation to them.
The justness in even-handedness arguably comes from the fact that lawful rights are
available to all irrespective of status, wealth or ability to engage legal counsel.
JUSTICE TO UNREPRESENTED LITIGANTS
There can be no doubt that in form our society has sought to be just in relation to
litigants who are unrepresented. There are two ways that this has occurred.
The first is that statutes or rules of court establish the right of an unrepresented
litigant to appear in person before many courts.
The second is that, by many judicial pronouncements, the courts have developed the
common law to contain a statement of the duties of judges in relation to
unrepresented litigants. Those statements are directed to ensuring justness for such
litigants and a balance of even-handedness with their represented opponents who
also require to be dealt with justly.
Let us look at two examples of such statements. The Full Court of the Federal Court
of Australia (Sackville, North and Kenny JJ) in Minogue's Case2 said:
‘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 represents.’
The Court continued at 446:
‘A trial judge often faces something of a dilemma. While he or she may
be bound to provide some advice and assistance to an unrepresented
litigant, the authorities make it clear that the Judge should not intervene
to such an extent that he or she cannot maintain a position of neutrality
in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA
389 at 397 (NSW CA), per Kirby P. However, the boundaries of
legitimate intervention are flexible and will be influenced by the need for
intervention to ensure a fair and just trial: Panagopoulos v Southern
Healthcare Network (unreported, Supreme Court, Vic, Smith J,
15 September 1997) at 6.’
In the Family Court of Australia, the Full Court3 constituted by Nicholson CJ,
Coleman and O-Ryan JJ in the Marriage of F in 2001, revised the guidelines in
relation to the role and obligations of the Court as first enunciated in In Marriage of
Johnson4 (1997). The new guidelines were expressed in the following terms and
direct attention to the issues of justness which arise in relation to unrepresented
litigants:
‘(i) A judge should ensure as far as is possible that procedural
fairness is afforded to all parties whether represented or
appearing in person in order to ensure a fair trial.
(ii) A judge should inform the litigant in person of the manner in
which the trial is to proceed, the order of calling witnesses and
the right which he or she has to cross-examine the witnesses.
(iii) A judge should explain to the litigant in person any procedures
relevant to the litigation.
(iv) A judge should generally assist the litigant in person by taking
basic information from witnesses called, such as name, address
and occupation.
(v) If a change in the normal procedure is requested by the other
parties such as the calling of witnesses out of turn the judge
may, if he/she considers that there is any serious possibility of
such a change causing any injustice to a litigant in person,
explain to the unrepresented party the effect and perhaps the
undesirability of the interposition of witnesses and his or her
right to object to that course.
(vi) A judge may provide general advice to a litigant in person that
he or she has the right to object to inadmissible evidence, and to
inquire whether he or she so objects. A judge is not obliged to
provide advice on each occasion that particular questions or
documents arise.
(vii) If a question is asked, or evidence is sought to be tendered in
respect of which the litigant in person has a possible claim of
privilege, to inform the litigant of his or her rights.
(viii) A judge should attempt to clarify the substance of the
submissions of the litigant in person, especially in cases where,
because of garrulous or misconceived advocacy, the substantive
issues are either ignored, given little attention or obfuscated:
Neil v Nott (1994) 68 ALJR 509 at 510.
(ix) Where the interests of justice and the circumstances of the case
require it, a judge may:
• draw attention to the law applied by the Court in
determining issues before it;
• question witnesses;
• identify applications or submissions which ought to be put
to the Court;
• suggest procedural steps that may be taken by a party;
• clarify the particulars of the orders sought by a litigant in
person or the basis for such orders.
The above list is not intended to be exhaustive and there may well be
other interventions that a judge may properly make without giving rise to
an apprehension of bias.’
In similar view, the County Court of Victoria has prepared and issued ‘A Trial
Management Guide to the Judiciary’ in relation to self-represented parties. This
addresses the position judges must face both in criminal and in civil procedures,
drawing extensively on relevant case law.
In the context of these statements it cannot be doubted that, consistent with the law
and their duty to do so, courts and judges are most mindful of the issues involved in a
just society in relation to unrepresented litigants.
INCREASE IN UNREPRESENTED LITIGANTS
What then has given rise to the currency of the issue of the adequacy of treatment of
unrepresented litigants in courts? The issue has come into prominence simply
because of the extraordinary increase in all jurisdictions of unrepresented litigants.
There are a number of explanations that can be conjectured at for this development,
but its universality is beyond doubt. Examination of the number of cases containing
references in their headnotes to ‘litigants in person’ or ‘self-represented litigants’ or
related descriptions demonstrates the point.
One explanation is that legal aid has been restricted, but this is only a partial
contributing factor.
Another explanation is that persons are more conscious of legal rights and seek to
assert them even when they are unable to afford the cost of legal representation and
the hazard of losing their litigation.
Perhaps the rising number of unrepresented litigants is also reflective of the
increased standards of education as a consequence of which Australian citizens feel
that they are capable of articulating their case before a court.
INHERENT DIFFICULTIES IN BEING UNREPRESENTED
Next we must ask why there is any difficulty with this relatively recent development.
There are two points to be made. The first is that the system of common law
advocacy is a highly sophisticated one, dependent upon the professionalism of
advocates and the solicitors who brief them.
Courts alone cannot possibly deal with the preparation of litigation, nor the
presentation of arguments for consideration. The adversarial system brings to the
court conflicting viewpoints and conflicting evidence. It informs the mind of the court
of the different ways of looking at an issue.
Unrepresented litigants do not have the conceptual knowledge of the law or the
experience and training to enable them to contribute in a professional way to the
functioning of the court. The result is that when they increase in numbers, the
processes of the court are potentially seriously delayed and slowed down.
The presence of unrepresented litigants in increased numbers also has a significant
impact on parties who are represented. Those parties wish to have the issues
determined without incurring additional costs. They are also slowed down and
affected by having to deal with persons unskilled in the conduct of litigation.
There is a further area of difficulty. Not uncommonly unrepresented litigants lacking
the necessary professional training seek to pursue inappropriate avenues,
particularly at the interlocutory level. They go off down byways that are not central to
the determination of the issues. The court is unable to tell them that they are wasting
time. Both the court and the other parties have to face the determination of issues
that need not have arisen and, in more cases than not, are hopeless.
The impact of the rising tide of unrepresented litigants has been particularly felt in
courts having jurisdiction in relation to migration jurisdiction. Primary decisions on
applications for refugee status are made by the Refugee Review Tribunal. However,
whether by way of appeal or review the jurisdictions of higher courts are invoked.
More often than not the applicants or appellants are unrepresented and perhaps
additionally not skilled in the English language. This latter characteristic has been
addressed by substantial sums having been expended out of court budgets to
provide interpreter services and in that way to address the needs of a just society in
that respect. Additionally, many legal practitioners giving their services without
charge (described as pro bono services) have acted as solicitors or counsel for the
refugee applicants/appellants.
Probably the larger number of such litigants have, however, simply continued through
the process unrepresented.
One point in the judicial hierarchy which has felt the full impact of this is the High
Court of Australia in relation to applications for special leave to appeal to that Court.
Recently, that Court has introduced Rule 41.10 in relation to unrepresented
applicants. It requires such an applicant to present his or her argument on a special
leave application in the form of a draft notice of appeal and a written case, the latter
of which shall not exceed ten pages. Where there is a failure to file the written case
within 28 days of the filing of the application, the application is deemed to be
abandoned unless it is otherwise ordered or directed.
Where an unrepresented applicant has filed a written case, any two justices may,
without requiring any party to the proceedings in the court below to respond to the
applicants written case, determine that the application should be dismissed.
The Sydney Morning Herald reported on 1 August 2005 that in 1995–1996 there
were 382 such applications of which only 20% involved unrepresented litigants.
However, of the 876 applications in 2004 – 2005, 510 (58%) were unrepresented.
Needless to say that newspaper reacted to the introduction of the new rule in an
article entitled ‘Busy High Court Makes It Harder For You To Speak For Yourself’.
But if there is no substance in an application for special leave, why would a just
society require that the applicant be heard?
COURT MANAGEMENT PLANS
Another way in which courts have endeavoured to get on top of the need to justly
address unrepresented litigants has been by the development of management plans
directed to that end. In the Australian Institute of Judicial Administration (‘AIJA’)
Report on Courts and the Public, authored by Professor Stephen Parker5, it was
suggested that every court should have such a plan so that systematic attention was
given to all the issues affecting such litigants.
In 2001, the AIJA published a document highlighting the issues for courts and
tribunals in respect of ‘Litigants in Person Management Plans’. This was referred to
court administrators in all courts of Australia. The Federal Court of Australia was the
first to develop such a plan. That plan identified the following matters as fundamental
to unrepresented litigants:
‘1. The complexity of the substantive law in a developed society
and statutory and judicial elaboration of procedural fairness and
efficiency make it difficult for many kinds of litigation to proceed
in an orderly way without the parties being legally represented.
2. There has long existed a generally capable and ethical legal
profession, the functioning of which has become indispensable
to the courts.
3. At a time when legal issues touching questions of human rights
and privileges, apt to impel individuals into the Court, have
expanded, there has been a contraction of government funded
legal aid, and there are limits to the extent to which legal
practitioners can, or should be, expected to work for nothing or
at marginal rates of remuneration.
4. Although the superior courts have become very dependant upon
the existence and general availability of lawyers to represent
litigants, it is a basal principle that people are absolutely entitled
to represent themselves in litigation which, of course, includes
the often complex processes of preparation for trial or hearing.
5. Such a right necessarily implies that the pretrial and the trial
processes should be such that a lay person of reasonable
diligence but quite limited means can have a reasonable
opportunity to assert or defend his or her position.
6. The perceptions of Judges and experienced registry staff are
that a small number of litigants in person are, for one reason or
another, much more difficult to manage than most and
necessitate a quite disproportionate amount of time, effort and
strain in dealing with them.
7. The perceptions of Judges and registry staff are that, in general,
unrepresented litigants are no more or less cooperative in their
attitudes to the Court and their opponent than those with
professional representation. However, whether from the fact of
non-representation or otherwise, there is a small group who
appear to see the instigation of litigation in utterly inappropriate
ways. Not all litigants in person are rational, wronged in legally
remediable ways or at all, or willing or capable of understanding
that there are legal limits on when, why and how the Court’s aid
should be invoked.
8. For such persons who have no available assets, costs orders
and the court’s fees regimen tend not to provide the deterrent
that they do for people who, in a practical sense, have some
assets to lose. The very rich, the very poor and the irrational are
unlikely to be much concerned by such matters.
9. There is a tension between the necessity for the court to remain
neutral and, where a litigant in person appears to be at risk of
foundering through ignorance, achieving a just outcome by
efficient means. The Committee is clear in its view that the
Court must do whatever it reasonably can to sponsor legal
assistance for apparently deserving litigants and that this needs
to be explained to all litigants in the Court and to the profession
and the public.’
The Plan and the AIJA Report which preceded identified that the impact of
unrepresented litigants was not only something with affected judges and counsel.
Additionally it had a very important impact on court staff.
Indeed, in some instances, court staff had been bearing unrecognised burdens
resulting from challenges presented to them, sometimes even physical violence, by
unrepresented litigants who did not understand the scope of the staff member’s
duties and the limits to them.
The Management Plan of the Federal Court therefore provided for the
implementation of staff training to assist persons in registries managing difficult
situations involving unrepresented litigants. This particularly applied to counter staff.
The Family Court of Australia has been a leader in considering issues relating to
‘self-represented litigants’. This followed a report by the Court on future directions
and a commissioned report on ‘Litigants in Person in the Family Court of Australia’.
The result was the establishment of the Self-Represented Litigants Project with the
aim of developing a consistent national approach to the provision of services to such
litigants which were ‘sensible, effective and understandable and conscious of the
requirements of’ their requirements’.
It sought to improve current court services and to evolve deliveries that were clear,
consistent and understandable ‘to litigants of average ability’. More information on
that Project is available from the Family Court of Australia’s website6.
Indeed, most courts in Australia now have very informative websites designed to
assist the public in a variety of ways.
FORUM ON ISSUES
Such has been the rising impact of unrepresented litigants that the AIJA in
conjunction with the Federal Court of Australia convened a Forum on selfrepresented
litigants in Sydney on 17 September 2004. It was noted there that the
numbers of unrepresented litigants appearing in some courts now exceeded 50%.
The aim of the Forum was to bring courts and tribunals together to identify initiatives
being taken by them in relation to unrepresented litigants with a view to the exchange
of information on policies and strategies and the identification of the prospect of
common future action.
A number of themes emerged from the Forum. It was clear that the processes for
unrepresented litigants were very much related to the requirements of the particular
jurisdiction, the nature of the case and the parties to the proceeding. There was
common agreement that more data should be collected to profile when, where and
how unrepresented litigants were appearing in courts. Further, it was considered
there was a need to analyse the impact of fee waivers. It was thought early judicial
intervention or the application of alternative dispute mechanisms in cases involving
unrepresented litigants could be of assistance. The particular needs of
unrepresented litigants in regard to expert evidence and cross-examination were
marked as requiring further study. It was suggested that reliance on the oral tradition
of argument may need to be curtailed in the case of unrepresented litigants. The
need to further articulate the distinction between the delivery of advice and the
provision of guidance by staff was emphasised.
It was accepted that criteria should be developed for identifying unmeritorious claims.
These and other steps were all the product of the wide circle of courts and tribunals
represented at the Forum giving attention to the needs of a just society in relation to
unrepresented litigants.
JUDICIAL FRUSTRATION
Yet the frustrations of judges in particular situations continue. Examination of
decisions available through the internet in recent years involving unrepresented
litigants is illustrative of this. In Wentworth v Graham7, Ipp JA and Brownie AJA
concluded that the unrepresented litigant there has so abused the opportunity she
had been given to make oral submissions to the court that, for the protection of the
court’s own process, it should now prevent her from making any oral submissions.
This was a step taken on the basis that, while it would protect the court’s process
from being abused, it would not impede her in the exercise of her right of access to
the court. Their Honours considered this step was supported by Bhamjee v
Forsdick8.
In Laferla v Birdon Sands Pty Ltd9, Mildren J in the Supreme Court of the Northern
Territory said that all too frequently the burden of ensuring the necessary work of the
litigant in person is done falls on the court administration or the court itself, yet such
litigation is usually less efficiently conducted and tends to be prolonged. He did not
consider that there was any duty on opposing counsel to assist the litigant in person
although it was counsel’s duty to draw to the attention of the court any relevant
decision of which he or she had awareness.
In Markham Wayne Moore-McQuillan v Police10 (BC9801404), Bleby J in the
Supreme Court of South Australia evinced the difficulties that arise in a magistrates
court in the following passage:
‘The hearing had taken many days. There had been adjournments at
the request of the appellant. His cross-examination of the
complainant’s witnesses had been lengthy and, in many respects,
irrelevant. The appellant’s own evidence was of the same character. I
can well understand the learned magistrate’s impatience at the prospect
of further delays in the completion of the matter. Much of the learned
magistrate’s frustration arose out of the fact hat the appellant was selfrepresented.
However, in those circumstances, a magistrate, despite
busy lists and the need for expedition, must ensure that a selfrepresented
litigant is not denied a fair hearing through ignorance of the
basic procedures of the court and of the rules with which he must
comply in presenting the case. It is not for a magistrate to advise a
litigant on the law or his rights. However, he or she must ensure that a
self-represented litigant at least understands that there are rules under
which parties must proceed, and ensure that he or she is not deprived
of a fair hearing by virtue of a failure to bring to that party’s attention
some of the more obvious rules which are second nature to legal
practitioners and those who regularly appear in the courts. The court
does have an obligation to protect a litigant in person from any apparent
procedural disadvantages that such a party may suffer simply through
ignorance of particular procedural rules.’
In Platcher v Australian Securities and Investments Commission11, the Full Court of
the Federal Court of Australia (Tamberlin, Emmett and Weinberg JJ) considered the
extent to which a trial judge was required to assist an unrepresented litigant.
Justices Tamberlin and Emmett in a joint judgment and in reliance on Minogue's
Case12 emphasised that the court must ensure that an advantage is not conferred on
an unrepresented party, although each case depended on its particular
circumstances.
Issues have arisen in recent cases concerning entitlement of unrepresented litigants
and unrepresented solicitor litigants to costs13 and in Ogawa's Case Kenny J in the
Federal Court of Australia said:
‘[42] Generally speaking, courts are more reluctant to make orders for
indemnity costs against litigants in person than against legally
represented litigants, although, in an appropriate case, they will make
such an order. In Bhagai v Royal and Sun Alliance Life Assurance
Australia Pty Ltd [2000] NSWSC 159 at [13] Hodgson CJ in Eq
observed:
… I accept that a court does have to make allowances for the
position of litigants in person, and to try to ensure that such a
litigant does not lose out because of lack of expertise; although
there is a limit to what the Court can do in that regard, while still
remaining an impartial determinant of a dispute. The Court may
in those circumstances refrain from making orders against
litigants in person for conduct that might be considered as
justifying orders for costs against represented litigants. By the
same token, litigants in person can cause great hardship and
expense to other parties, through making allegations and claims
that lawyers would recognise as allegations and claims that
could not reasonably or even properly be made, and through
making proceedings much longer and much more expensive
than they would otherwise be, but not focussing accurately on
the real issues in the case. Conduct of that nature by legally
represented parties would often lead orders to for indemnity
costs. Litigants in person my escape the consequence of
indemnity costs, but I do not think that the circumstances that a
party is a litigant in person is a ground for displacing the ordinary
result that costs follow the event.
As a Full Court of this Court (constituted by O’Loughlin, Whitlam and
Marshall JJ) observed in Bhagai v Global Custodians Ltd [2002] FCA
223 at [57], the Chief Judge did not say that litigants in person always
escape the consequence of indemnity costs. Indeed, the Full Court in
that case declined (at [60]) to interfere with the decision of the trial judge
to order indemnity costs against the unrepresented litigant.’
The breadth of the issues raised was acknowledged by Slicer J in the Supreme Court
of Tasmania in Mentyn v Law Society of Tasmania14 when he said at 35:
‘[71] The profession itself has a responsibility to understand and
accept the difficulties associated with self-represented litigants.
Amelioration of the problems ought not be confined to the Courts. The
issue raises procedural and ethical questions for legal practitioners.’
CONCLUSION
In this paper there has been an endeavour to evoke the atmosphere of the
courtroom, the problems that arise there in relation to unrepresented litigants and the
measures which have been taken by courts to address concerns in relation to
justness associated with such events.
What occurs at the front counters of courts is not reported in the law reports and is
only anecdotally assessable. It however rates in equal importance with what occurs
in the courts.
As the paper endeavours to make apparent, considerable work has been done by
judges, courts and staff to develop just procedures in respect of unrepresented
litigants. However, the increasing volume of such litigants and sometimes their
unreasonable persistence in courses which are not only inappropriate and
unproductive but challenging to all involved in the process of litigation, continues to
raise the issue whether courts are at risk if they are accessed by large numbers of
unrepresented litigants.
The requirements of justice dictate that an individual be at liberty to seek to invoke
the jurisdiction of the court. Yet if this occurs to a considerable extent the features of
the court process which is productive of justice may be unable to function as they
should do so.
Therein lies the dilemma, both for the courts and for a just society.
*Justice Robert Nicholson, AO; Justice of the Federal Court of Australia
.
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