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Dealing with a self-represented litigant

Feature Articles

Cite as: April 2014 88 (04) LIJ, p.54

The rise of lay advocates presents new challenges to courts, lawyers, clients and the right to a fair trial. 

By Michelle Sharpe

The numbers of self-represented litigants (SRLs) appearing in courts and tribunals is inexorably growing as our economy slows and legal aid cuts bite. Practitioners, from all areas of practice, are now increasingly likely to be retained in a matter against an SRL. In order to achieve the best results for their clients, with as little stress as possible, practitioners should be prepared to meet the unique challenges thrown up by SRLs.

Research suggests that the number of SRLs in federal courts and tribunals has increased in recent years to proportions ranging between 17 and 93 per cent, depending upon the jurisdiction, nature of the case and availability of legal aid.1 The general downturn in the economy and further cuts to legal aid this year may mean that these rates climb higher still. It follows that all practitioners, irrespective of the area of law in which they practice, should develop some understanding of the unique difficulties that arise in matters involving SRLs and how they can best manage these difficulties. This understanding begins with an awareness of the rights of an SRL or lay advocate to appear, and the duties of the court to assist such individuals.

An SRL’s right to appear

A natural person who is a party to a proceeding, whether civil or criminal, has the unconditional right to represent him or herself in court in the ordinary course of litigation. This right is considered fundamental to our system of justice. Note that an application for leave or special leave to appeal does not fall within the ordinary course of litigation. Until leave or special leave is granted, there are no proceedings inter partes before the court. Consequently, an SRL must first obtain leave of the court to appear at the hearing of an application for leave or special leave to appeal. Conversely, a corporation can only ever appear in court through a lawyer.

Lay advocates

The courts have, however, the discretion to allow a lay person to represent a corporation or natural person in a proceeding, either generally or on a limited basis. The court’s discretion arises out of the inherent right of the court to regulate its own proceedings and the court rules.

The court’s discretion is exercised judicially “according to the requirements of justice”.2 The authorities are clear that it will usually be in the interests of justice for parties to be legally represented. Lay advocates are “unqualified, unaccredited and uninsured”.3 They do not owe any duty to their client or the court, and no disciplinary measures can be taken against a wayward lay advocate. Accordingly, an application for leave for a lay advocate to appear will be bound to fail unless the party is able to show (on affidavit evidence) that it cannot afford to engage a lawyer or, where the party is a natural person, that he/she cannot represent him/herself. Such an application will also usually fail in proceedings involving extensive evidence and complex questions of law. Further, lay advocates are unlikely to get leave to appear if they will be required to give evidence in the proceedings, if they have failed to show that they can represent the party dispassionately, or if they cannot demonstrate a sufficient grasp of court rules and procedure.

“McKenzie friend”

The court may grant leave to an unqualified person to act as a “McKenzie friend” to assist an SRL in court.4 The McKenzie friend typically may assist an SRL by taking notes and giving advice or suggestions to the SRL.

The McKenzie friend, however, does not perform the role of advocate and will not, save in exceptional circumstances, be permitted to address the court. The court will consider all of the circumstances of the case in exercising the discretion to grant leave to a McKenzie friend. These circumstances may include a party’s comprehension of English or whether an offer of legal aid has been refused.

“Professional” lay advocates and McKenzie friends

People who frequently act as lay advocates or McKenzie friends, whether paid or unpaid, may be acting in breach of the Legal Profession Act 2004 (Vic). Section 2.2.2 prohibits a person from engaging in legal practice unless that person is a legal practitioner. Any person prosecuted for a breach of this prohibition may be sentenced to imprisonment for a term of up to two years.

Court’s duty

The right of every person to a fair trial is ingrained in Australian law. It is incorporated into Australian law by the Charter of Human Rights and Responsibilities Act 2006 (Vic), and is also enshrined in the International Covenant of Civil and Political Rights, to which Australia is a party. The court has an overriding duty to ensure that the parties appearing before it receive a fair hearing, as outlined in the Civil Procedure Act 2010 (Vic).

SRLs are in a position of “grave disadvantage” since they lack the professional skill, ability and objectivity of legal practitioners. Courts, in meeting their duty to ensure a fair hearing (whether final or interlocutory), have a positive duty to give assistance to SRLs to redress this imbalance. This same duty is incumbent on masters or associate judges, magistrates, commissions and tribunals. In determining the scope of the duty, the Full Federal Court in the civil case of Abram v Bank of New Zealand considered that: “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”. 5

The authorities are clear, however, that the judge must do no more than what is required to diminish the disadvantage suffered by the SRL. To do otherwise would be unfair to the represented opponent and would jeopardise the appearance of judicial neutrality. It would then be open to the represented parties to bring applications for judges to recuse themselves on the grounds of apprehended bias.

The Full Court of the Family Court enunciated a non-exhaustive set of guidelines for dealing with SRLs in a trial in Re F: Litigants in Person Guidelines as follows:6

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 of which he or she has to cross-examine 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 calling of witnesses out of turn, the judge may, if 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.

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 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, the judge should 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, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated.

Where in the interests of justice and the circumstances of the case require it, a judge may also:

  • draw attention to the law applied by the court in determining issues before it;
  • question witnesses;
  • identify applications or submissions that ought to be put to the court;
  • suggest procedural steps that may be taken by a party;
  • clarify the particulars of orders sought by a litigant in person or the bases of such orders.

Bell J referred to the Family Court guidelines in Tomasevic v Travaglini and held that in hearing an application by Tomasevic, an SRL, the judge had a duty to:7

  • recognise Mr Tomasevic as someone who, as a self-represented litigant, was gravely disadvantaged;
  • explain to him the procedures that would be followed in the hearing and determination of the application;
  • explain to him the legal requirements that he had to satisfy, namely that the delay was due to exceptional circumstances and the informant’s case was not materially prejudiced;
  • encourage him to make submissions on relevant issues, but explain to him what was relevant;
  • discourage him from making submissions on irrelevant issues, but explain to him what was irrelevant;
  • ask appropriate questions to confirm Mr Tomasevic was fully putting forward the matters he wished to rely on, and ask for elaboration of any areas apparently not fully covered; and
  • before deciding the application, ask him if there was anything else he wished to add.

Legal practitioner’s ethical duty

The professional conduct and practice rules for solicitors and barristers define “opponent” to include SRLs. Consequently all of the ethical duties owed by practitioners to their opponents are owed equally to SRLs. These duties include, of course, the duty not to mislead an opponent.

Guidelines for dealing with SRLs

The law societies of Queensland and New South Wales have issued a helpful set of guidelines for lawyers dealing with SRLs, as has the New South Wales Bar Association. Briefly, these guidelines provide that lawyers should forewarn their clients of the inherent difficulties in proceedings against SRLs. Clients should be made aware of the fact that the chances of settlement are diminished, that the trial will likely run longer, their legal costs will be greater and that the court has a duty to assist SRLs. Clients should also be coached not to overreact to questions or behaviour by an SRL that might be aimed at antagonising them. Similarly, the guidelines caution lawyers not to become embroiled in any personal attacks or criticisms by SRLs, suggesting instead that lawyers refute such comments in a professional and non-personal way. The guidelines usefully advise lawyers that, to avoid the costs and delays occasioned by adjournments, they bring any non-compliance with interlocutory orders to the court’s attention as soon as possible and meticulously prepare their cases to give SRLs advance notice of their submissions. The guidelines warn against lawyers bringing applications to summarily dispose of matters, noting the court’s duty to SRLs and general reluctance to deprive SRLs of their day in court. The guidelines recommend instead that lawyers seek to expedite matters in which the SRL has no reasonable prospect of success. The guidelines exhort lawyers to be conscious of the duties of the court to SRLs and assist the court in fulfilling this duty, when appropriate. The failure of the court to meet its duty to SRLs may result in an SRL being successful in an appeal. The guidelines, however, also remind lawyers that if a court goes further than simply assisting the SRL, and acts in a way that gives rise to an apprehension of bias, that an application must be made at that time complaining of the conduct. Failure to do this will waive any right to complain later about the conduct.

Most SRLs are reasonable people who simply cannot afford legal representation. Only a minority of SRLs are what are described as vexatious litigants. Dr Grant Lester, consultant psychiatrist, Victorian Institute of Forensic Mental Health, has drawn a psychiatric portrait of the vexatious litigant. Lester describes vexatious litigants as suffering from a querulous paranoia, and asserts that a vexatious SRL can be identified “via the six V’s – they display volatile emotions, feel victimised, seek vindication, produce voluminous and vague communications, and vary their demands”.8

Lester maps out 10 guidelines for judicial officers in dealing with vexatious SRLs. In addition to Lester’s observation, five of these guidelines are equally applicable to lawyers. First, Lester recommends maintaining “rigorous boundaries”, warning that vexatious litigants “will rapidly form attachments to those they feel are ‘favouring’ them and feel catastrophically betrayed if the favourable treatment is not maintained”. Second, Lester advises that vexatious litigants are “responsive to hierarchy”, and recommends that the formality of court should be maintained. Third, Lester notes that while many vexatious litigants may appear to be “legally hyper-competent” they in fact have a poor understanding of the law, and he advises that all communication with vexatious litigants should be simple and repetitive. Fourth, be observes that vexatious litigants are “disorganised and overwhelmed” and that granting more time will simply lead to more confusion. Finally, Lester warns that any threat made by a vexatious litigant should be taken seriously. Lester advises judicial officers to be aware of their own psychological and physical safety, and that of all court staff.

Controlling a vexatious SRL

Lawyers should also be aware that the court has an inherent power to control the bringing of interlocutory applications, in the course of a matter of which the court is seised, to prevent a party from abusing the process of the court. The court may exercise this power either on the application of a party or on its own motion. In exercising this power, the court may order that an interlocutory application cannot be brought by that party except by leave of the court. Further, the court may also make orders as to the manner in which a party may bring an interlocutory application. In Wentworth v Graham, for example, Wentworth, an SRL, repeatedly refused to accept decisions made in the course of litigation and brought many applications, devoid of merit, appealing against these decisions or seeking to disqualify the judges who made them. Further, in the hearing of these applications she frequently refused to adhere to time limits for oral submissions. Finally, the court, on its own motion, made orders not only restraining Wentworth from bringing any application without leave, but also ordered that there would be no oral hearing of any application in which leave was granted. Instead, the hearings would proceed by way of written submissions alone.

It is, therefore, within the court’s power to restrain or control a vexatious SRL during a proceeding. As outlined above, formal guidelines issued by law societies may also assist lawyers to navigate the challenges of appearing against an SRL. In whatever way lawyers meet these challenges, however, it must be with an understanding of the SRL’s right to appear and the court’s duty to ensure a fair trial.



MICHELLE SHARPE, LLB(Hons) (Adel), PhD (Melb), is a barrister practising primarily in the areas of general commercial and regulatory law. She regularly appears in all jurisdictions, including VCAT.

1. E Richardson, T Sourdin and N Wallace, Self-Represented Litigants: Gathering Useful Information, Final Report 2012 at VIII.

2. Re Molnar Engineering Pty Ltd v E J Burns Vg (1984) 3 FCR 68 at 74.

3. Damjanovic v Maley [2002] NSWCA 230 at [79].

4. Mckenzie v Mckenzie [1970] 3 All ER 1034.

5. (1996) 18 ATPR 41-507 at 43, 341.

6. (2001) 27 FLR 189.

7. Tomasevic v Travaglini [2007] VSC 337 at [146].

8. Grant Lester, “The Vexatious Litigant” (2005) 17(3) Judicial Officers’ Bulletin 17.

Comments

Nerida Wallace
Excellent article. This is an emerging area for both court administrators and the profession and is being met with 'unbundled' legal service models by Government and encouraging DIY with new Internet businesses that offer partial assistance. The Australian Institute of Judicial Administration www.aija.org.au is dedicating a conference in April 15-17 to looking at how best to work with SRLs.
3/04/2014 11:22:34 AM


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