Deputy Chief Justice Faulks Family Court of Australia is a Dickhead, judges and lawyers are liars that’s the truth the whole truth and nothing but the truth, they have no regard for truth and no intention of getting to the truth or delivering justice.

About NJCA

Managing People in Court Conference

National Judicial College of Australia and the

Australian National University

February 2013

2

INTRODUCTION

1. Most judges tend to couple the word self-represented litigant (SRL) with an

expletive. It is customary to regard them as difficult, time-consuming,

unreasonable, and ignorant of processes of the law.*

2. Some twelve years ago I wrote a paper in which I proposed that courts should

regard self-representation by litigants as a challenge rather than as a problem. In

revisiting the subject over a decade later, I find that my views about the matter

have not changed substantially. There have been some developments in all

courts in relation to SRLs but the challenge remains.

3. It has been said there are three things that can be done in relation to selfrepresentation

by litigants: one is to get them lawyers, the second is to make

them lawyers and the third is to change the system. Self-representation has

reached a level in many courts where it is common for at least one of the parties

to be unrepresented for one half of the time. This means that courts are no

longer dealing with a minority aberration but are being obliged to contend with

change which may require altering the way in which courts operate. If it

becomes the norm for many litigants to be self-represented, the justification for

retaining existing court procedures based on parties’ being legally represented

may no longer be valid.

4. This paper explores how each of the three suggestions could assist SRLs’

interaction with the court system and improve the conduct of litigation where an

SRL is involved. This paper does not purport to provide the answers. It is

acknowledged that the challenges presented by SRLs have existed for some time

and solutions have been difficult to find. His Honour, Justice Geoffrey Davies

(as he then was) said:

I believe that the question of how to cope with [the plight of the

unrepresented litigant] is the greatest single challenge for the civil justice

system at the present time.

* I acknowledge the invaluable assistance I have received in the preparation of this paper from my

Legal Associate, Ms Carrie Gan, and also from Mr Callum Musto. Many of the good things result from

their research on my behalf. They are, of course, in no way responsible for any of the shortcomings in

this paper.

3

… Cases in which one or more of the litigants is self-represented

generally take much longer both in preparation and court time and require

considerable patience and interpersonal skills from registry staff and

judges.1

5. What this paper aims to do is generate ideas and discussion about possible ways

to improve the situation.

THE CHALLENGE OF THE SELF–REPRESENTED LITIGANT

THE CHALLENGES PRESENTED BY SELF–REPRESENTED LITIGANTS

6. The Australian court system is an adversarial system. In this system, the court

has a substantially passive role and relies on the parties to present all material

that will be relevant/necessary to enable the court to make its decision. An SRL

is not a qualified legal practitioner and usually does not have the expertise to

provide the assistance to the court that a solicitor or barrister would. In the

adversarial system, this lack of assistance from parties hinders the court in

discharging its function2 – that is, to make decisions about disputes parties

cannot themselves resolve.

7. Because SRLs are not properly qualified and are not officers of the court, they

are:

independent of, and not governed by the duties owed to a court by a legal

practitioner upon which the operation of the court system is so highly

dependent. Those duties are duties of disclosure to the court, of avoidance

of abuse of the court process, to not corrupt the administration of justice

and to conduct cases efficiently and expeditiously.3

8. Moreover, when a dispute involves one party who is self-represented and

another who is represented by a legal practitioner, this appears to create an

unlevel playing field. This in turn raises issues “about the fairness of the legal

1 Geoffrey Davies, ‘The reality of Civil Justice Reform: Why we must abandon the essential elements

of our system’ (2003) 12(2) Journal of Judicial Administration 155,168.

2 Richard Stewart, ‘The self-represented litigant: A challenge to justice’ (2011) 20(3) Journal of

Judicial Administration 146, 155.

3 Hon Justice Robert Nicholson AO, ‘Australian experience with self-represented litigants’ (2003)

77(12) The Australian Law Journal 820, 821.

4

process facilitated by the court.”4 It might be said that the “playing field” of

litigation is never truly level, even when both parties are represented, because of

the varying skills and abilities between solicitors and counsel. However, the

field is more markedly uneven in cases where a lay-person is on one side and a

qualified practitioner is on the other. The disparity in skill and knowledge raises

issues as to a court’s duty to assist the SRL. This is explored in more detail later

in this paper. The obligation of the court to provide some advice (if not

assistance) to SRLs5, and an SRL’s lack of understanding of the process,

necessarily means more time is required to finalise the proceedings.

9. An SRL does not only present challenges for the court; the court proceedings

present challenges for the SRL. He or she is dealing with foreign and complex

rules and processes (many of which might feel counter-intuitive to a lay person)

and a language that sounds like English but nevertheless does not make any

sense to him or her.

10. In addition to the procedural barriers, the SRL also faces administrative barriers

which lawyers are generally not troubled by. Unlike lawyers, SRLs are not

familiar with the appropriate forms to fill out and knowledge of such basic

things as where the court building is located. They do not have working

relationships with court staff. All of these can make the litigation process much

harder to navigate.6

11. The process of presenting a case before the court is also unfamiliar to SRLs and,

again, may feel counter-intuitive:

… A plaintiff must frame the facts in a way which includes all legally

relevant allegations, and is not obscured by extraneous material. Thus, in

most civil claims, matters such as motive will be wholly irrelevant. This is

counterintuitive. From a layperson’s perspective, the task of the court is to

do justice. From such a viewpoint the malicious motivation of a contract

breaker is highly relevant – much more so, it could be argued, than the

fact that the breach is tenuously justified by a contractual force majeure

4 Richard Stewart, above n 2.

5 In Re F: Litigants in Person Guidelines (2001) FLC 93-072.

6 Duncan Webb, ‘The right not to have a lawyer’ (2007) 16(3) Journal of Judicial Administration 165,

172.

5

term, or that the plaintiff first breached the contract by failing to deliver

on time due to unavoidable external matters. …7

WHY ARE PEOPLE SELF–REPRESENTING?

12. There are a variety of reasons why people are self-represented. Some may not be

able to afford to pay a lawyer. Some may feel they do not need a lawyer. For

example, in uncontroversial matters such as an uncontested divorce the value of

the dispute is seen to be disproportionate to the lawyer’s fees. Some may be

disenchanted with the legal profession and hold the view that involving a lawyer

will only make the dispute more acrimonious whereas they could resolve it

themselves in an amicable fashion.8

13. But, regardless of the reasons as to why someone is self-represented, it is clear

from available data that SRLs continue to make up a significant proportion of

litigants. In the 2011-2012 financial year, 27 per cent of finalised cases in the

Family Court involved at least one SRL. In 2007-2008, the figure was the same.9

In the High Court, 41 per cent of special leave applications in the 2011-2012

financial year was filed by SRLs.10 In 2007-2008, that figure was 67 per cent.11

14. The significant number of SRLs coupled with the types of challenges they

present to the court system should cause everyone in the court system to think

about what can be done to tackle those challenges.

TACKLING THE CHALLENGE

WHAT HAS ALREADY BEEN DONE?

15. In 2001, the AIJA published the Litigants in Person Management Plan: Issues

for Courts and Tribunals (“Litigants in Person Management Plan”).12 This

7 Ibid, 171.

8 Ibid, 170-171.

9 Family Court of Australia, Annual Report 2011-2012, 62.

10 High Court of Australia, Annual Report 201-2012, 15.

11 High Court of Australia, Annual Report 2007-2008, 18.

12 Litigants in Person Management Plan: Issues for Courts and Tribunals, AIJA Courts and the Public

Committee (2001).

6

document was “intended to provide a range of information and ideas for courts

and tribunals to draw on in formulating their own management plans.”13

16. Since the publication of Litigants in Person Management Plan, regardless of

whether courts have adopted the ideas discussed in that document, courts in

Australia have “increasingly undertaken initiatives designed to assist [SRLs] and

to ease their impact on the court system.”14

17. The Family Court, for example, has implemented various strategies to

streamline the process for SRLs. These include providing do-it-yourself kits for

guidance and assistance on completing some of the most common forms,

including consent orders, financial statements and affidavits; providing

compulsory training for all client service staff to help them recognise the need to

spend more time with SRLs and assisting staff in tailoring services to meet the

needs of the Court’s different client groups; and providing information on the

Family Court website including electronic versions of information brochures,

kits and court forms which can be downloaded by SRLs; interactive information

including a virtual tour of the Court, a step-by-step guide to proceedings in the

Court and links to legislation and Rules of the Court.15

18. The Queensland Courts website has a specific section for SRLs. That section

provides information about advice and support available to SRLs, possible

avenues where SRLs can obtain legal advice, obtain a trial date, forms and

practice directions.16

19. Institutions other than courts have also implemented strategies to improve the

plight of SRLs. In 2008, Victoria Legal Aid published a DIY kit for family law

matters, How to run your family law case. Unlike the Family Court’s DIY kits

which relate only to specific forms such as an application for consent orders

form or an application for divorce form, the Victoria Legal Aid DIY kit covers

family law proceedings more broadly, including information on areas such as

13 Ibid, 1.

14 Forum on Self-Represented Litigants, AIJA and the Federal Court of Australia (2004), 3.

15 Family Court of Australia, Self Represented Litigants (29 January 2013) Family Court of Australia

<http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about/Media/Fact_Sheets/FCOA_SR

L>

16 Queensland Courts, Representing yourself in court (29 January 2013) Queensland Courts

<http://www.courts.qld.gov.au/representing-yourself-in-court>

7

alternatives to litigation, making an application and choosing the right forum for

the application, preparing an affidavit and preparing for a trial or hearing.17

20. The Queensland Public Interest Law Clearing House Incorporated operates a

(unique) service that provides free, confidential and impartial legal advice to

SRLs.18 This service is discussed later in this paper and it is argued that such a

service could be established nationally to assist SRLs in all jurisdictions.

21. Despite the efforts to date to assist SRLs in the court system, the challenge

remains and from the statistics available, it would seem that SRLs continue to

form a significant proportion of litigants in the system. Therefore, it is necessary

to explore what more can be done to address the challenge.

GETTING THEM LAWYERS

Legal Aid

22. If a person is self-representing because he or she cannot afford a lawyer, the

State may assist through the provision of Legal Aid. However, there is always a

finite limit to the amount of Legal Aid available. Although governments might

view Legal Aid as a funding black hole, the funding provided to Legal Aid is

always perceived as not enough. In the 2011-2012 financial year, New South

Wales Legal Aid had a total income of $243.6 million and a total expenditure of

$244.7 million19, leading to a deficit of $1.1 million. In the 2011-2012 financial

year, Victoria Legal Aid received total income of about $153.8 million and total

expenses of about $160 million – a deficit of $6.2 million.20 Even when Legal

Aid operates at a “surplus”, it is not a big one. Legal Aid Queensland achieved a

budget surplus of $3.025 million in the 2011-2012 financial year.21

23. The strain on Legal Aid funding is demonstrated by the recent changes to Legal

Aid in Victoria. Victoria Legal Aid changed some of their eligibility guidelines.

Some of these changes came into effect on 7 January 2013. In family law

17 Victoria Legal Aid, How to run your family law case: A do-it-yourself kit to help you prepare a

family law case and represent yourself in court (February 2008).

18 Queensland Courts, Representing yourself in court (29 January 2013) Queensland Courts

<http://www.courts.qld.gov.au/representing-yourself-in-court/legal-advice-qpilch>

19 Legal Aid New South Wales, Annual Report 2011-2012, 68.

20 Victoria Legal Aid, Annual Report 2011-2012, 55.

21 Legal Aid Queensland, Annual Report 2011-2012, 38.

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matters, “funding of parents who do not resolve matters through mandatory

family dispute resolution will be limited to trial preparation”. Victoria Legal Aid

say that they are not funded to meet the growing demand in the family law

courts and their priority is to fund Independent Children’s Lawyers in matters

where the court has identified that this is important. Changes to eligibility

guidelines in criminal matters mean that “appeals in the Victorian Court of

Appeal and the High Court that do not have a reasonable prospect of resulting in

a lesser effective sentence or non-parole period will not be funded.” Legal Aid is

“prioritising conviction and sentence appeals that would have a bearing on the

overall period of imprisonment the client would be liable to serve.”22

24. There are also changes to eligibility guidelines which will come into effect later

in 2013. In family law, clients who are “found to have contravened orders in the

Federal Magistrates Court, the Family Court and/or the Magistrates Court

without reasonable excuse will not be eligible for funding or will have their

funding removed”. Independent children’s lawyers will appear personally for

children in final hearings in the Federal Magistrates Court and the Family Court

rather than instructing counsel. In relation to summary crimes, “only those

facing actual imprisonment will be eligible for a grant of legal assistance”.

However, duty lawyers will continue to provide advice and representation to

people charged with less serious offences who are not eligible for Legal Aid.23

25. Whatever may be the system for supplying Legal Aid the State cannot provide

legal assistance to every litigant because there is a limit to the amount of funding

that the State can inject into Legal Aid. In my opinion, the State also should not

provide legal assistance to every litigant. To do so would almost inevitably

encourage litigation or prolong it.

26. In addition, within the concept of providing Legal Aid the question of

proportionality must inevitably arise. Lack of means should not ensure that a

case that lacks merit is pursued interminably at tax payers’ expense. Moreover,

priority should probably (and properly) be afforded to some classes of cases

22 Victoria Legal Aid, Overview of eligibility guideline changes that came into effect 7 January 2013

(29 January 2013) Victoria Legal Aid <http://www.legalaid.vic.gov.au/4922.htm#>

23 Victoria Legal Aid, Overview of eligibility guideline changes to come into effect during 2013 – dates

to be confirmed (29 January 2013) Victoria Legal Aid <http://www.legalaid.vic.gov.au/4923.htm#>

9

rather than others. Criminal cases involving the serious risk of incarceration

would feature on most priority lists – as would cases involving children and

child abuse.

27. While Legal Aid is an important and established means of obtaining lawyers for

SRLs, there are clearly limits to its availability both because of funding issues

and eligibility criteria.

Pro bono lawyers

28. SRLs may obtain legal representation from a lawyer who does pro bono work.

There are a variety of organisations who provide pro bono legal services – Law

Societies, Bar Associations or some community legal services.

29. It is arguable that lawyers should not be expected to provide free legal services

any more than plumbers might be expected to provide free plumbing. However,

the professionalism of lawyers and the community-centric nature of Australian

society mean that lawyers, as with other trades-people and professionals, will

frequently provide services to those who cannot afford to pay for them and who

do not qualify for Legal Aid. It would be a mistake for Government to impose

the institutionalisation of such free services (other than through the provision

of government-funded Legal Aid). Governments ultimately must wear the

responsibility for providing what the individual cannot and for making policy

decisions about who is to be assisted and who is not. This is a community

obligation which must be subject to the priority allocated to it by the elected

government.

30. There are also ethical and practical issues associated with pro bono services.

One is the issue of liability and accountability when a client is dissatisfied.

Consider, for example, a client who is not able to pay for a lawyer and who is

ineligible for Legal Aid, but who has been able to obtain legal assistance

through a centre that provides pro bono services. If the client feels the service

may not have been up to the standards he or she would have received from a

paid lawyer, should the pro bono lawyer be held accountable? The service may

have put the client in a better position than if he had no legal assistance

whatsoever, but the client may not feel that the level of service was equal to that

10

which would have been provided by a privately retained lawyer.24 The ethical

questions raised by this issue are articulated by a US article about the ethical

issues of pro bono advocacy:

It seems dangerous for the profession to chastise those who are willing to

provide help when others will not, but whose performance does not meet a

client’s expectations. On the other hand, it is very important that the

assistance provided to individuals in these settings be held to an objective

standard, and failure to meet that standard means something must be done.

Determining this standard, however, may be more difficult …25

31. A pro-bono lawyer may suffer a moral conflict when providing pro bono

services. Helping a client who has drug issues, for example, may cause moral

conflict for some lawyers.26 This raises the question of what it means to “do the

public good”:

… it might be necessary to shift the perception that pro bono work should

align with the moral interests of those who are performing it, and rather

advocate the position that “doing public good” means assisting all those in

need, regardless of whether the volunteer sympathises with their plight.

The issue then becomes whether a lawyer would be able to perform a

service competently if he or she had a moral conflict with the outcome. …

Normally money is a good way to bridge this gap, but in the pro bono

sector, it may be far more difficult.27

32. Lawyers who undertake pro bono work provide a commendable and important

service. Pro bono lawyers are an excellent avenue through which SRLs can

obtain advice and representation. However, the availability of the service

depends on the availability of lawyers who are volunteering and, furthermore,

there are ethical and practical issues which may mean that pro bono services are

not suitable for every SRL.

24 Elliot A. Anderson, ‘Unbundling the ethical issues of pro bono advocacy: Articulating the goals of

limited-scope pro bono advocacy for limited legal services programs’ (2010) 48(4) Family Court

Review 685, 694.

25 Ibid.

26 Ibid, 695.

27 Ibid.

11

Unbundled legal services

33. One way of expanding legal services available to SRLs, whether through Legal

Aid or pro bono services, is to provide unbundled legal services, that is, to

provide legal services for part of the legal proceedings rather than for the

whole. A litigant may be able to obtain legal advice initially “just to know where

[I] stand” or a litigant may obtain legal advice for the preparation of court

documents or obtain representation just for the trial.

34. There are advantages and disadvantages associated with unbundled legal

services. The most obvious advantage is that an SRL who lacks financial

resources can obtain legal assistance for some of the proceedings, if not for all

of the proceedings. An obvious disadvantage of unbundled legal services is that

the lawyer will not have as good a working-knowledge of the matter as a lawyer

who provides the “whole service”. If a lawyer has carriage of a matter from

beginning to end, he or she has a good working-knowledge of the facts of the

whole case (rather than segments of it). This means the lawyer is in a good

position to provide competent advice about the litigation. If a lawyer is

consulted only for one particular stratum of the litigation, he or she may be

given inadequate information or instructions which can, in turn, lead to less than

optimal advice – or possibly to negligent advice.

The Queensland Self Representation Service

35. In Queensland, the Queensland Public Interest Law Clearing House has set up

the Self Representation Service (“the SRS”). The SRS provides pro bono

unbundled legal services to SRLs and was modelled on the Citizens Advice

Bureau at the Royal Courts of Justice in London.28 This paper suggests that the

SRS is model of how unbundled legal service can and should be provided

nationally in Australia.

36. The SRS started operation in 2007. It initially assisted SRLs whose matters were

in the Queensland Supreme Court, District Court and Court of Appeal. The SRS

28 Andrea de Smidt and Kate Dodgson, ‘Unbundling our way to outcomes: QPILCH’s Self

Representation Service at QCAT, two years on’ (2012) 21(4) Journal of Judicial Administration 246,

247.

12

expanded into the jurisdiction of the Queensland Civil and Administrative

Tribunal in 2010. More recently, a pilot service has been implemented in the

Federal Court and Federal Magistrates Court in Brisbane.29

37. The SRS provides one initial appointment to all SRLs.30 However, for clients

who are unable to afford private legal assistance and who are ineligible for

Legal Aid, the SRS provides any number of appointments (as necessary) to

legally assist those clients.31 The type of unbundled assistance provided to SRLs

usually falls within the following categories:

• · Legal advice, including advice about commencing proceedings, prehearing

and compulsory conference advice, advice about making

interlocutory applications and complying with or enforcing decisions;

• · Assistance to draft documents, including forms, submissions and

affidavits;

• · Referral to non-legal support services.32

38. The SRS model is unlike the traditional client-solicitor relationship as the clients

are not “represented” by the SRS solicitors. The SRL clients “remain

responsible for the conduct of their proceedings” – they are responsible for

appearances before and communications with the court, the other parties and the

other parties’ lawyers.33

39. The existence of the SRS is dependent on a non-recurrent grant of $127,882

from the Department of Justice and Attorney-General. That budget is sufficient

to employ one full-time solicitor and one part-time paralegal.34 However, the

29 Ibid, 246.

30 Tony Woodyatt, Allira Thompson and Elizabeth Pendlebury, ‘Queensland’s self-representation

services: A model for other courts and tribunals’ (2011) 20(4) Journal of Judicial Administration 225,

226.

31 Andrea de Smidt and Kate Dodgson, above n 28, 247.

32 Ibid.

33 Ibid, 247.

34 Ibid.

13

SRS is also assisted by member firms whose practitioners provide pro bono

services.35

40. The SRS is beneficial to SRLs in various ways. By giving SRLs advice and

assistance about all aspects of litigation, including how to commence

proceedings, make interlocutory applications, complete forms, and draft

affidavits and submissions, SRLs are better prepared and have a better

understanding of the court process. The SRL can “better communicate their case

to the court and other party” and the court benefits from a better prepared

participant.36

41. However, the operation of the SRS also presents challenges.

42. One recognised challenge of operating the SRS is how to disseminate

information about the SRS to people who need it most. To that end, the SRS has

taken an “active approach” and “identif[ied] the [SRS] to key stakeholders and

thus ensure that appropriate referrals to the [SRS] are made.”37 Referrals to the

SRS are made by the courts, Legal Aid, legal practitioners, government

departments, the Queensland Bar, community organisations and other sources.

By far, the greatest number of referrals come from the courts. An annual email is

sent by the SRS to the new intake of judges’ associates so they are aware of the

service and judges can make appropriate referrals.38

43. One problem which the SRS, or a similar pro bono unbundled legal service

provider, might face is how to properly limit the scope of assistance provided.

When a person retains a lawyer, the parameters of the service are usually set out

in an engagement letter or a costs agreement. However, when someone is

providing unbundled legal services (especially when this is done pro bono), the

process of limiting the scope of the representation/assistance can be difficult

because “individuals are not guided by payment parameters”. If a service similar

to the SRS is established across Australia, the organisations providing the

service should have signed agreements with the SRLs that clearly detail the

35 Tony Woodyatt, Allira Thompson and Elizabeth Pendlebury, above n 30.

36 Ibid.

37 Ibid, 227.

38 Ibid, 228.

14

parameters of the service to be provided and the relationship that will be formed.

Other important information that should be included in the signed agreements

include information about confidentiality and follow-up procedures.39

44. Another issue with pro bono unbundled legal services is that of lawyer/ “client”

privilege. Where the person privately pays for and retains a lawyer, privilege

applies to lawyer/client communications. However, where a lawyer is providing

pro bono unbundled legal services, that lawyer is not “representing” the “client”.

The person is not a “client” in the traditional sense of the word. Rather, the

lawyer is providing the person with assistance in discrete tasks. The issue of

privilege in relation to lawyer/ “client” communications should probably be the

subject of legislative prescription.

45. There is also the question of whether the services provided are covered by

professional indemnity insurance.

46. If the issues outlined above are properly addressed by Government, it would be

extremely beneficial for SRLs, the courts and the legal profession if a similar

service were implemented nationally across Australia.

MAKING THEM LAWYERS

47. If an SRL is not able to obtain any sort of legal assistance, an alternative means

of assisting SRLs is to provide them with some sort of training or information so

they can undertake their own litigation. (The SRS is one way of doing this.)

Obviously, the type of assistance provided to the SRL will depend on the needs

of the individual SRL. “[N]ot all [SRLs] are created equal” and some need more

guidance than others.40

48. Information and assistance can be provided to SRLs from a variety of sources –

court website, information sessions, and the Bench, to name a few. This section

examines each of these and the issues surrounding them.

39 Elliot A. Anderson, above n 24, 689.

40 John M. Greacen, ‘Self-Represented Litigants: Learning from Ten Years of Experience in Family

Courts’ [2005] The Judges’ Journal 24, 25.

15

Court websites

49. It has been mentioned above that the Family Court website provides a vast

amount of information for SRLs.41 The benefit of this website is that the SRLs

can access the information at their leisure and the information can help

familiarise SRLs with court processes so they have a better idea of what to

expect.

50. However, providing information on a website is clearly not going to assist SRLs

with every issue that confronts them during the litigation process. While website

information can provide SRLs with a basic understanding of the court and trial

process, websites cannot provide detailed information in relation to the

substantive aspects of the SRL’s case. For example, website information cannot

advise the SRL about his or her prospects of success nor can it draft affidavits in

accordance with the rules of evidence. An SRL requires more assistance than a

website can provide to run his or her own case.

51. The effectiveness of website information is also dependent on how easy it is to

access and how the information is organised so that the SRL can identify what

information is relevant for their matter. Providing a link to different pieces of

legislation will not be very effective if the SRL does not know the name of the

relevant legislation, or does not know the relevant section and has to trawl

through a long Act in order to find the law relevant to their matter.

52. The Alaska Court System Self-Help Centre for Family Law website is an

example of a website that effectively provides information for SRLs.42

Information is divided into different categories such as “child custody for

unmarried parents”, “child support”, “property and debt when ending marriage”

and “grandparents – visitation and custody”. Each category is, helpfully, a link

to the more relevant information. For example, the “grandparents – visitation

and custody” link leads to relevant information such as “what rights do

grandparents have regarding their children?”, “what forms are used to ask for

41 Family Court of Australia, above n 15.

42 Alaska Court System, Self-Help Center: Family Law (1 February 2013) Alaska Court System

<http://courts.alaska.gov/selfhelp.htm>

16

grandparent visitation?”, and “how do grandparents try to get visitation with a

grandchild?”.

53. While Australian courts provide information for SRLs, it is important that the

information is set out in a way that is easily accessed by SRLs and organised in

a way that is easy for SRLs to identify what is relevant for them.

Information sessions run at a court registry

54. Face-to-face information sessions held at the relevant court registry can be an

effective way of providing SRLs with the relevant information. Face-to-face

information sessions can be particularly beneficial because they give the SRL

the opportunity to ask questions of a real person if there is an issue in need of

clarification or explanation.

55. Alternatively, information sessions can by conducted by video, that is, SRLs

attend the court registry in groups and view an information video. This is done

in the family law jurisdiction in Indiana in the US. The “Family Matters” video

is:

intended to help litigants make an informed decision regarding legal

representation, provide resources for securing representation if they so

desire, and provide important information about the legal process and the

responsibilities they will be expected to fulfil if they represent themselves.

To avoid “information overload” for litigants, the video is broken down

into 30 short chapters which are designed to be easily understood by the

viewer. Chapters range from approximately one to three minutes in

length. … Although it is possible to view the entire video at one time, it is

suggested that litigants view it in sections as they progress through the

stages of their case.43

56. This paper will focus only on face-to-face information sessions.

57. The information sessions should not simply give SRLs an overview of the

different stages of court proceedings and the various forms that may need to be

43 Hon. Randall T. Shepard, ‘The Self-Represented Litigant: Implications for the Bench and Bar’

(2010) 48(4) Family Court Review 607, 612-613.

17

completed. People may find it difficult to retain information in bulk and any

information that is not needed for immediate processing may be easily

forgotten.44 Instead, the information sessions should ideally be targeted at

specific areas of the litigation process. For example, how to prepare an affidavit,

subpoenas, cross-examination, court-etiquette. That way, SRLs can attend the

information session(s) relevant to them and apply that knowledge immediately.

58. A question that arises in relation to face-to-face information sessions is whether

they will be run by court staff or by volunteers from the legal profession. There

are issues with both.

59. If the sessions are run by court staff, staff will need to be trained to ensure the

information provided is correct. The question arises as to whether/how much

funding will be provided for this. Training staff will require funding and, if

some staff are occupied with providing information sessions, additional staff

will be required to perform the court’s routine administrative work.

60. Some topics, such as cross-examination and preparing affidavits, raise further

issues. First, these topics require staff to undertake some sort of legal training. In

that case, it would be more appropriate for information sessions on these topics

to be run by volunteer lawyers rather than by court staff.

61. However, a question arises as to whether information sessions on such topics

should be run by the court registry at all. Topics such as cross-examination and

preparation of affidavits fall into a grey area where information provided might

constitute legal advice. A court must be impartial and independent and must not

provide legal advice to a litigant. If a court were to run information sessions,

whether through staff or volunteer lawyers, it would have to be careful to ensure

the content does not constitute advice.

62. If the information sessions are run by volunteer lawyers, conflicts of interest can

arise.45 For example, if the volunteer lawyer represents one party to litigation in

his paid employment as a lawyer, and the opposing party is an SRL attending an

information session run by the same lawyer, then that lawyer may be precluded

44 John M. Greacen, above n 40, 25 and 26.

45 John M. Greacen, above n 40, 30.

18

from providing information to the SRL or from continuing to represent his or

her client. This is even more so in circumstances where the information is on a

topic which can cross the boundary of information into the area of legal advice.

63. The likelihood of conflicts of interest arising can be diluted by having at least

two independent lawyers participate in the information sessions.46

Assistance from the Bench

64. Where there is an SRL in proceedings before the court, the court has a role in

providing the SRL with information. This role of the court has been the subject

of some discussion in case law.

65. In Re F: Litigants in Person Guidelines47 (“Re F”) the Full Court of the Family

Court considered the principles in Johnson v Johnson48 and set out revised

guidelines for judges when dealing with SRLs. Those guidelines are:

1. 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;

2. 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;

3. A judge should explain to the litigant in person any procedures relevant to

the litigation;

4. A judge should generally assist the litigant in person by taking basic

information from witnesses called, such as name, address and occupation;

5. 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

46 Ibid.

47 (2001) FLC 93-072.

48 (1997) FLC 92-764.

19

perhaps the undesirability of the interposition of witnesses and his or her

right to object to that course;

6. 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;

7. 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;

8. A judge should attempt to clarify the substance of the submissions of the

litigant in person, expecially in cases where, because of garrulous or

misconceieved advocacy, the substantive issues are either ignored, given

little attention or obfuscated …

9. 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 bases for such orders.49

66. The concept of the judicial officer’s role when assisting an SRL in court has

been more recently considered in Kenny v Ritter:50

49 In Re F: Litigants in Person Guidelines (2001) FLC 93-072, [253].

50 [2009] SASC 139.

20

The courts have recognised that when faced with a litigant in person, a

measure of judicial intervention is not simply permissible but necessary,

in order to ensure a fair hearing. The nature of the duty of a judge

conducting a trial with a self-represented party has been the subject of a

number of authoritative discussions. The general approach which a court

should take to a litigant in person in civil proceeding was addressed by

Samuels JA in Rajski v Scitec Corporation Pty Ltd:

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 it auxiliary role so as to confer upon a litigant in

person a positive advantage over the represented opponent. …

…

The scope of the duty of the court to the litigant in person is constrained

by the fact that the judge must endeavour to maintain the appearance of

impartiality.

…

… when the self-represented litigant is before the court, the judge must

ensure that a fair trial takes place. In order to achieve this, the judge is

required to assist the self-represented litigant. However, the judge must

equally ensure that despite any assistance to the litigant in person, the

perception of impartiality is maintained.51

[footnotes omitted, emphasis added]

67. Both Re F and Kenny v Ritter recognise that when an SRL appears in court,

there is a need for the court to provide the SRL with some assistance. However,

what is also recognised is the conflict between assisting the disadvantaged SRL

51 Kenny v Ritter [2009] SASC 139, [17], [19] and [23].

21

(the principle of fairness) and maintaining an appearance of impartiality and

independence (the principle of impartiality)52 and, of course, being impartial.

68. Impartiality is a fundamental characteristic of the court system:

The court, as one of the three arms of government, is the institution ultimately

and specifically charged with the function of resolving disputes and imposing

penalties for breaches of the rules of society (i.e. laws) …

…

It is suggested that public confidence in the court exists because there is a

presumption that the court is independent, impartial, fair and competent.53

[footnotes omitted]

69. In an adversary system like ours, SRLs need assistance from the Bench because

they are at a disadvantage. In an adversary system, it is up to the parties to run

their case, to present the necessary evidence in order for the judge to make a

finding in their favour. SRLs are required to do this as well, but their task is

much more difficult because they are not familiar with the processes, the

language is foreign, the rules are complex and the SRL has an emotional

investment in the proceedings before the court which makes his or her task less

objective and more difficult.

70. A judge can attempt to “level the playing field” by assisting the SRL in

accordance with the principles set out in Re F and Kenny v Ritter. But the judge

must take care not to assist the SRL so much so as to appear to be partial

towards the SRL or to create disadvantages for the represented party. This is

almost always easier said than done. The difficulty in achieving this balance is

aptly summarised by the Full Court in Re F:

… neutrality is a key feature of the adversarial system. Judicial assistance

cannot make up for lack of representation without an unacceptable cost to

matters of neutrality.

52 Richard Stewart, above n 2, 159.

53 Ibid, 149 and 151.

22

…

It is simply not possible to create a level playing field where one party is

represented by a professional and the other is not. Thus, to provide a

guideline to judges of this type, if applied literally, not only sets the judge

an impossible task but is likely to create unreal expectations on the part of

the litigant in person and at the same time give a false impression of lack

of impartiality by the judge to the party who is represented.54

71. The presence of SRLs in our adversary court system represents a conflict in the

fundamental principles upon which our court system is predicated – namely

fairness and impartiality. It is possible for the judicial officer to provide the SRL

with some assistance while at the same time preserving an appearance of

impartiality, but the assistance which the judicial officer can provide is

extremely limited. In circumstances where SRLs are a significant proportion of

all litigants, perhaps the most effective way to assist manage SRLs is not to

help
the SRLs better understand and adapt to the existing system, but to change

the system to reflect the needs of the SRL.

CHANGING THE SYSTEM

72. It is so much more comfortable to play the game with people who know the

rules and play by the rules, for knowledge to prevail over ignorance, experience

over naivety and skill over bumbling. However, what we should ask ourselves

from time to time, is whether the practices we follow, the laws we make, the

laws we interpret and apply, and the processes by which we reach decisions

need to be as complicated as someone “on the outside” might find them to be.

73. There are three areas, or perhaps three targets, that I want to address under this

general heading. They are the courts, the Government (the legislature) and the

profession.

A less adversarial system

74. A big part of the reason why SRLs are such a problem in our court system is

because our court system is an adversarial one where the judge is passive and

54 In Re F: Litigants in Person Guidelines (2001) FLC 93-072, [221] and [242].

23

relies on the parties to present all the relevant matters to the case in order for the

judge to make a decision. For reasons discussed above, the SRL does not fit well

in this system.

75. Perhaps one way to tackle the challenge of SRLs is to change the system and

make it less adversarial.

76. The Family Court introduced the Less Adversarial Trial (“LAT”) in relation to

children matters to provide an opportunity for a more understandable process, a

fairer process, and a process where the litigants themselves have a more direct

involvement in the proceedings and have a sense of ownership. The LAT was

designed to enable litigants to understand the proceedings better and for the

proceedings themselves to be more directive and hence more focused on the

matters that had to be decided, rather than on the multiple issues that the parties

may have felt were worthy of being dealt with.

77. There are several features of the LAT which would make the court system

somewhat easier for SRLs to participate in.

Speaking directly to the judge

78. In the Family Court, on the first day of the LAT, both of the parties are usually

given an opportunity to speak directly to the judge about what they would like

for their children. When a party speaks directly to a judge, rather than through a

lawyer, this may elicit admissions and concessions which would not ordinarily

have been made by lawyers, whose principal job (appropriately in the adversary

system) is to be the champions of their clients. By taking control away from the

lawyers and speaking directly with the parties, judges are able to get a much

clearer picture of the relationship between the parents and the aspirations the

parents have for the children.

79. Of course, the benefits of having a party speak directly to a judge are premised

on the SRL being an articulate and reasonable person. A querulous litigant who

speaks directly to a judge may complicate the proceedings rather than simplify

them.

24

Judge finalises and settles with the parties the issues in dispute

80. Unlike a conventional trial where it is up to the parties to identify the issues in

dispute, in the LAT the judge identifies the issues in dispute early on in the

proceedings. The judge settles the issues in dispute (and in need of judicial

determination) before the finalisation of the LAT or hearing/trial commences.

This approach focuses the SRLs attention on what needs to be resolved, instead

of allowing the SRL to canvas matters which are not relevant to the issues in

dispute.

81. This approach also allows the judge to identify to the parties what sort of

evidence is required in order to assist him or her in determining the dispute.

Again, this approach helps to focus the SRL’s attention on adducing evidence

that is relevant rather than allowing the SRL to drive the proceedings and

adduce evidence that the SRL thinks is relevant.

Judicial consistency

82. This is an aspect of the LAT that is helpful to both SRLs and to lawyers. In a

LAT, one judge presides over the whole proceedings, from beginning to end.

This allows the SRL to become familiar with the judicial style. There is

consistency in the way the proceedings are conducted, and the SRL does not

have to repeat the history of the proceedings to a different judicial officer every

time the matter comes before the court.

Litigants sitting at the Bar table

83. Most judges prefer to have a triangle of dialogue that involves a judge and two

lawyers, preferably counsel, at the Bar table. In my opinion this is a

perpetuation of the “old boys club”-like environment associated with litigation.

The triangle of dialogue should be at least as broad as the litigants. After all, it

is their matter which is the subject of deliberation. When I conduct a LAT, I

prefer litigants to sit at the Bar table. This brings them within the triangle of

dialogue and enables them to have a better understanding of what is occurring.

It also tends to discourage the “old boy chat” that sometimes occurs between

counsel and the judge and vice versa.

25

84. This applies also when one of the parties is self-represented. These days it

would be difficult to imagine a judge excluding an SRL from the Bar table. If an

SRL is at the Bar table and, at the same time, the other litigant is sitting further

back in the court, there may be a temptation for that person to regard the process

as excluding him or her in favour of the SRL.

85. Others will judge the success of the LAT – but it represents at least a bold step in

reviewing the court processes that have been in place for decades. It is not

simply accepting that change is a bad thing and that what has been for a long

time “tried and true” should never change.

The Government

86. Legislation is often complicated and sometimes incomprehensible – even to

judges. The law is there to govern all of society, not just lawyers. It is therefore

important that all of society, not just lawyers, understand the law.

87. It is arguable that a law that is not easily understood, or understood with

difficulty, should not be a law. How is it that a person, a citizen, is expected to

comply with something which is extremely complicated or incomprehensible?

Each of you will have a different favourite piece of incomprehensible legislation

but let me share one of mine with you.

88. The Income Tax Assessment Act has grown from a relatively thin pamphlet to a

two-volume Act – the 1936 Act and the 1997 Act. The 1997 Act was enacted in

an attempt to simplify the 1936 Act which had been amended so many times that

it became thousands of pages long and very complex with subsection after

subsection being created. An example of how complex the Income Tax

Assessment Act 1936 had become is s 102AAZBA which concerns the modified

application of CGT, in particular the effect of certain changes of residence:

For the purposes of applying this Act in calculating the attributable

income of a trust estate of a year of income (in this section called the

attributable income year), where:

(a) disregarding the assumption in paragraph 102AAZB(b), at any

time (in this section called the residence-change time) during

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the attributable income year or an earlier year of income, the

trust estate ceased to be a resident trust for CGT purposes, and

became a non-resident trust estate; and

(b) the trust estate owned a CGT asset at the residence-change

time; and

(c) a CGT event happens in relation to the asset during the

attributable income year; and

(d) section 104-170 of the Income Tax Assessment Act 1997

(CGT event 12) applies to the asset in respect of the change of

residence for the purposes of the application of this Act apart

from this Subdivision;

then sections 411 to 414 (inclusive) apply to the asset as if:

(e) those sections had effect for the purposes of calculating

attributable income under this Subdivision instead of Part X;

and

(f) any reference in those sections to an eligible CFC were a

reference to the trust estate; and

(g) any reference in those sections to a commencing day asset

were a reference to the asset; and

(h) any reference in those sections relating to the eligible CFC’s

commencing day or the day following the eligible CFC’s

commencing day were a reference respectively to the

residence-change time or a time immediately after the

residence-change time; and

(i) subsections 412(2) and (3), and paragraphs 414(3)(b) and

(4)(b), referred only to the market value of the asset

concerned.

89. A lawyer might find this provision difficult to understand. A lay person would

almost certainly find this provision difficult to understand. There are some

27

things which contribute to this. First, the section is number 102AAZBA. The

numbering shows how complicated the tax rules are and how often they have

been amended – there are so many rules in place and the rules have been

changed so often that legislators had to resort to numbering the section with five

different letters. Second, there are many words in the section which have

legislative definitions. For example, “attributable income”, “trust”, and “resident

for CGT purposes”. In order to understand what these terms mean and to

understand s 102AAZBA itself, the lay person must flick back and forth

between this section and the interpretation section of the Act. Third, the

interpreter must read and understand sections 411 to 414 and then apply those

sections to the asset in the manner stipulated by s 102AAZBA. Finally, there are

terms which are technical terms whose definitions are not easily found in the

Act. For example, “an eligible CFC” is not defined in s 102AAZBA nor is it

defined in the interpretation section of the 1936 Act. Difficulty in finding the

meaning of this term will make it difficult for any reader to understand this

section.

90. Legislators and drafters might reasonably say they have been forced to be more

complicated in their drafting and obliged to amend the Act again and again to

prevent lawyers from finding ways of circumventing what is there. What seems

to happen is that an initially relatively straightforward concept has accretions of

complications plastered onto it as, increasingly, clever lawyers find increasingly

complicated ways of getting around the original provisions. When an accretion

is added to an accretion the interaction between the various laws becomes

difficult, if not impossible to follow.

91. I suggest that there should be a new statutory office created of a “Legislation

Ombudsman”. This would be a person to whom bad drafting or

incomprehensible parts of legislation can be referred. The Legislation

Ombudsman’s job would be to report such legislation to Government, which

might reasonably accept an obligation to do something about bad pieces of

legislation. I am not sufficiently naïve as to believe that there would be a rush to

fix the problems revealed. In fact, I suspect they would receive a very low

legislative priority. Nevertheless, Governments ought to take some pride in

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their work and the institutionalising of a process of identifying bad or difficult

legislation may serve to bring the need to draft comprehensible legislation to the

forefront of the minds of legislators and drafters.

92. Drafting less complicated and more comprehensible legislation ensures that laypeople

and not just lawyers can understand it. SRLs who are able to understand

the law will be able to better present their case in court.

The profession

93. The legal profession is one which guards its turf jealously. To an SRL, being in

a court room feels somewhat like being in an old-boys’ club where members of

the club are speaking to each other in a strange language known only to them,

where the members know each other quite well and are disparaging and

discouraging of interlopers.

94. There are some judges and lawyers who strive to explain proceedings to SRLs

and to provide appropriate assistance where needed. However, there are others

who might resent the presence of SRLs and who “wish to turn back the clock to

a time when they did not exist in large numbers”.55 In order to better manage

SRLs, it is necessary to change this attitude.

95. Training would play an important role in doing so. Training on the handling of

SRLs should become a standard part of the orientation of new judges. This

training should address the ethical issues in assisting SRLs and equip judges

with the skills to manage SRLs in the court room.56 Training about SRLs should

also form part of the curriculum of the courses required for admission to

practise. Practitioners should be aware of their obligations when involved in

proceedings where an SRL is the opposing party.

CONCLUSION

96. There is no silver bullet to the challenge of self-representation in our courts.

There are a number of suggestions in this paper which may or may not find

favour with the community, Government, lawyers or judges. However, if courts

55 John M. Greacen, above n 40, 26.

56 Ibid, 27.

29

remind themselves that access to justice requires that it should be to all “without

fear or favour, affection or ill-will”57 then it follows that we should place all of

our processes, language, practices and assistance under the microscope of that

access to justice to determine whether, in a world in which the self-represented

are a large proportion, we are showing sufficient awareness, courtesy,

consideration and ultimately fairness and justice to those who appear before the

court without a lawyer. After all “Sir Gerard Brennan used to say that we may

never attain perfect justice, but that doesn’t mean we can’t aspire to it”.58

57 Oath of Office.

58 ABC Radio National, ‘The Law Report’, Judges Lose Sleep Over Work Stress, 5 February 2013

(Sally Brown).