The Greek Conference - Mykonos, September 2005 Papers

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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

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:

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 .

1 The Macquarie Dictionary (2nd ed, 1992) p 956

2 Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 445

3 In Marriage of F (2001) 161 FLR 189 at 225 – 227

4 (1997) 139 FLR 384

5 Professor S Parker, Courts and the Public (1998) AIJA 166

6 www.familycourt.gov.au

7 [2003] NSWCA 307

8 (No 2) [2003] EWCA Civ 113

9 Butterworth's Cases - BC9804305; Supreme Court of the Northern Territory

10 Butterworth's Cases - BC9801404; Supreme Court of South Australia

11 Butterworth's Cases - BC200401321, Federal Court of Australia

12 See Note 2, above

13 See for example from Butterworth's Cases; Crocker v Commissioner of Taxation (Cth) (BC200206965) and Lawrence v MD Nikolaidis and Co (BC200303669) and Ogawa v University of Melbourne (No 2) (BC200406484)

14 Butterworth's Cases; BC200401286; Supreme Court of Tasmania

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Copyright 2005. Greek Legal and Medical Conference