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Unrepresented litigants and additional costs

Unrepresented litigants and additional costs

By Steven Sapountsis

Justice 


A recently decided case in the Supreme Court of Victoria involving an unrepresented litigant reminded me of the issue of cost transference that a member raised with me last year. Whether it’s because of an inability to afford the cost of lawyers or otherwise, it is undoubted that there is much unmet legal need and greater incidences occurring where parties represent themselves in litigation. While many self-represented litigants can present and argue their case well, it is generally beneficial for the party to be represented. In an adversarial legal system, an unrepresented litigant can present the court – and the represented party – with serious questions as to how far assistance should be offered to the unrepresented party. Further, questions can be raised as to how strict the court should be in enforcing the unrepresented party’s compliance with the court rules. In Cache v Hanes [1994] HCA 14 the High Court (per the majority: Mason CJ, Brennan, Deane, Dawson and McHugh JJ) identified these issues: “22. Whilst the right of a litigant to appear in person is fundamental, it would be disregarding the obvious to fail to recognize that the presence of litigants in person in increasing numbers is creating a problem for the courts . . . It would be mere pretence to regard the work done by most litigants in person in the preparation and conduct of their cases as the equivalent of work done by qualified legal representatives. All too frequently, the burden of ensuring that the necessary work of a litigant in person is done falls on the court administration or the court itself. Even so, litigation involving a litigant in person is usually less efficiently conducted and tends to be prolonged . . . The costs of legal representation for the opposing litigant are increased and the drain upon court resources is considerable”. The Supreme Court of Victoria takes the following approach to litigants in person, as summarised by Derham AsJ in Owerhall v Bolton & Swan Pty Ltd [2016] VSC 91 (omitting citations):

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