Clayton Utz Insights
12 April 2012
By Sally Sheppard and Caroline Bush.
You don't have to do their work for them, but patience and plain-speaking will go a long way with unrepresented litigants.
There is an increasing number of unrepresented litigants appearing in courts and tribunals in Australia at every level, placing added obligations on courts and, in many cases, on the other parties to the litigation.
A small percentage of unrepresented applicants can be identified as vexatious, and they frequently target large organisations such as banks and government agencies. Whether vexatious or simply unrepresented, these sorts of litigants can be expensive opponents. In this article we'll focus on unrepresented litigants – the challenges they pose, the obligations on you and the court, and how to manage them both.
What are the issues with unrepresented litigants?
The numbers of unrepresented litigants in Australia's courts are growing. For example, the proportion of High Court applications filed by self-represented litigants increased from 25 percent in 1999-2000, to 67 percent in 2007-08.
Unrepresented litigants are not a homogenous bunch, but usually present various challenges to the conduct of litigation. They can have mental or physical disabilities, limited understanding of English and, of course, limited appreciation of the complexities of the litigation process and the role of the courts. While they have a right to represent themselves, that right can lead to disadvantages to themselves and to the courts, such as:
- without competent legal representation, the court will not receive the assistance that it ought to have in identifying and resolving questions of fact and law;
- the unrepresented party may be more emotionally affected by the subject matter of the case when compared to a disinterested practitioner;
- although some unrepresented litigants will be rational and intelligent, others are uncontrolled or undisciplined;
- unrepresented litigants may be less likely to understand and comply with the court procedural requirements;
- compromise, using ADR approaches, may be more difficult to achieve;
- hearings take longer; and
- a burden is placed upon the court to give some assistance to the unrepresented litigant and there is the difficult question of how far the court can assist the unrepresented litigant while still maintaining impartiality.
The role of the court – how far is too far?
Subject to the need for a court to maintain its position of neutrality, some assistance to an unrepresented litigant may be given so as to ensure a fair trial. The burden imposed on the court is to offer such assistance as it can reasonably render.
What does that mean in practice? The current law has been summarised as:
"Every judge … has an overriding duty to ensure trials are fair. A fair trial is the only trial that a judge can judicially conduct. … As part of their overriding obligation to ensure a fair trial, trial judges have a positive duty to give proper assistance to self-represented litigants. Most self-represented persons lack two qualities that competent lawyers possess – legal skill and ability, and objectivity. Self-represented litigants therefore stand in a position of great disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance… The matters regarding which the judge must assist a self-represented litigant are not limited… the proper scope of the assistance depends on the particular litigant and the nature of the case." (Tomasevic v Travaglini  VSC 337)
Judicial officers must still however observe a position of neutrality and preserve a fair hearing – they cannot:
- give unrepresented litigants a positive advantage;
- be their advocates;
- give legal advice; or
- formulate or conduct an unrepresented litigant's case for them.
Practical suggestions for dealing with unrepresented litigants
Unrepresented applicants do not always understand the roles of government agencies or the organisations they are in dispute with, and/or their lawyers. It is not uncommon to send very clearly worded letters to unrepresented litigants only to have them contact you to inquire whether you are acting for them. You should always make it clear when talking or corresponding to unrepresented litigants that you do not act for them and cannot provide them with advice. If an unrepresented litigant asks you what to do you must say that you cannot give them advice, and that they need to seek their own advice.
Unrepresented litigants may also attempt to show you advice which they have received from other lawyers, not understanding the consequences of the resulting loss of privilege.
At an early stage, it is worthwhile to refer an unrepresented litigant to whatever assistance schemes, both paid and free, are appropriate to the matter.
Courts can be a tremendous resource for unrepresented litigants. Staff are experienced in assisting unrepresented litigants and most courts have a lot of information, especially online.
Many courts have web pages specifically established for parties representing themselves. Those pages can help explain the litigation process, and unrepresented litigants should be encouraged to refer to them.
There are also a number of schemes that assist an unrepresented litigant in gaining legal representation or advice, or by providing procedural assistance, such as those run by the Federal Court, a number of the State Supreme Courts, and Court Network.
Mediation or other dispute resolution processes should always be considered and usually attempted, but may not be the practical, time- and cost-saving alternatives they can be where litigants are sophisticated, or competently represented. Some unrepresented litigants can be so committed to the justice of their cause, or focused on correcting a real or genuinely perceived wrong, that compromise may not be an option they are prepared to entertain, whatever the risks of fighting on.
Once you're in court, you should remember:
- it is not your role to provide advice and guidance on legal issues;
- if a judge's assistance could constitute excessive intervention, that should be raised, as a failure to do so could give rise to suggestions that a party acquiesced in the judge's course of conduct; and
- the general rule is that the fact that a litigant is unrepresented does not mean that you should not take all points, and advance all submissions, that would otherwise normally be open.
Formal guidelines for dealing with unrepresented litigants
If you're a Government agency, you will be bound by the relevant Model Litigant Policies, and they should be your starting point.
Both the NSW Bar Association and the NSW Law Society have published guidelines for barristers and solicitors dealing with unrepresented litigants. They contain several useful suggestions, including:
- ensure you record every communication with the unrepresented party in writing;
- use plain language;
- if using ADR, make sure the unrepresented party has a family member or friend for support, or use a mediator who can ensure that the person puts their case forward to the best of their ability – make sure there can be no actual or perceived inequality of power;
- consider the benefits of asking for hearing to be expedited rather than asking for unmeritorious claims to be struck out. Courts are reluctant to strike out claims by unrepresented parties, and an application may simply delay the proceedings and provide the unrepresented party with ammunition or a further sense of grievance; and
- treat the unrepresented party with respect, as you would a legal opponent.
 Annual Report of the High Court 2008-09, page 17. [back]
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.