ACCESS TO JUSTICE
Defeated ‘on the battleground of procedure’: South Australia’s universal pleading rules and access to justice for self-represented litigants BEN D’ANDREA, HONOUS STUDENT, ADELAIDE LAW SCHOOL
T
he disadvantages suffered by selfrepresented litigants (SRLs) have been the subject of discussion by courts,1 law reform bodies,2 and academic commentators.3 These disadvantages can not only result in justice being denied to the SRL, but can drag out litigation and cause costs to blow-out for their opponent and for the Court.4 While these difficulties can arise from a lack of knowledge of the law, they can just as often be caused by unfamiliarity with procedural rules. Following the entry into force of the Uniform Civil Court Rules 2020 (SA) (‘the Rules’) on the 18th of May 2020,5 it is worth assessing the implications of the new Rules for SRLs. This paper examines the Rules in the context of pleadings, one of the first major procedural requirements faced by litigants.
THE UNIVERSAL PLEADING RULES ‘Pleadings’ refers to the applicant’s claim and statement of claim, the respondent’s defence, and any counterclaims, cross claims, joinders and replies to defences that precede litigation.6 All pleadings must comply with the universal pleading rules contained in r 67.2 of the Rules, or risk being struck out.7 The Supreme Court Civil Rules 2006 (SA) required that a pleading be in contravention of the rules and an abuse of process to be struck out;8 however the new Rules require only that pleadings be in contravention of the Rules or an abuse of process.9 This appears to make it easier for the Court to strike out pleadings, and seems to encourage stricter compliance with the Rules. If pleadings are struck out and amended pleadings are not filed, an applicant’s action may fail10 or a respondent may have judgment entered against them in default.11 Where pleadings disclose no cause of action12 or are frivolous, vexatious or an abuse of process,13 the Court may instead dismiss
32 THE BULLETIN April 2021
the action in its entirety or grant summary judgment for the applicant.14 While striking out is available where pleadings are defective in form, dismissal looks to their content. For SRLs with little to no knowledge of the pleading rules, the threat of strike out or dismissal is considerable in the early stages of litigation.
SELF-REPRESENTATION At law All people have the right to represent themselves in civil and criminal matters, both under statute15 and at common law.16 In Cachia v Hanes17 (‘Cachia’), the High Court described the right to represent oneself as ‘fundamental’.18 Indeed, the right to self-representation is enshrined internationally in art 14(d) of the International Covenant on Civil and Political Rights.19 In reality Despite its lofty position as a fundamental right, courts are quick to point out the difficulties caused by SRLs. In Cachia,20 the High Court wrote: 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. … [L] itigation 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. As well as judicial commentary, the issues caused by SRLs have attracted the attention of a number of law reform and
government bodies.21 Generally, these bodies agree that SRLs are considerably disadvantaged compared to their represented counterparts, and that they increase the workload both of the Court and the other party.22 However, these difficulties cannot be blamed squarely on the litigants themselves. In Kenny v Ritter (‘Kenny’),23 Gray and Layton JJ agreed with Lord Woolf that ‘too often the litigant in person is regarded as a problem for the judges and for the court system, [but] the true problem is the court system and its procedures which are still too often inaccessible and incomprehensible to ordinary people’.24 In turn, the inaccessibility of the legal system raises the cost and lowers the availability of legal representation.25 The exact proportion of South Australian civil cases involving self-represented parties is not available, despite recommendations as early as 2004 that this data be publicly reported.26 In the Victorian,27 Queensland,28 and New South Wales Courts of Appeal,29 where the numbers of self-represented litigants are recorded, between 20% and 35% of civil matters include at least one selfrepresented party.
WHO IS A SELF-REPRESENTED LITIGANT? To understand the issues faced by SRLs, one must understand who these people are. There is no one-size-fits-all description of a SRL, although social and economic disadvantage are common.30 Kyrou J of the Supreme Court of Victoria categorises SRLs as either querulant or non-querulant.31 Both experience different problems over the course of a litigation, and both cause different problems for the court. Querulants A querulant is ‘an unusually persistent complainer, obsessively driven in pursuit of justice to the extent of morbidity, who
