SA’s universal pleading rules & access to justice for self-represented litigants By Ben D’Andrea

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

The 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 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

plagues complaints bodies and courts.’32 Often, querulants are unrepresented because they distrust lawyers or have been refused representation on the grounds that they have no case.33 They may be impecunious.34 On many occasions, they are mentally ill.35 Querulant litigants can be belligerent,36 refuse to accept adverse findings,37 and persist with hopeless actions at the expense of court resources.38

For example, in Draoui v Le (No 3) (‘Draoui’)39 Mr Draoui was 70 years old, representing himself against three defendants in relation to three separate motor vehicle accidents over the course of the previous 18 years.40 His history of involvement in the courts, both in criminal and civil matters, was extensive.41 His persistence was obsessive. Proceedings were instituted regarding the first accident in 2004, after which ensued 15 years of adjournments, applications for striking out, appeals, and re-listings.42 He was belligerent and uncooperative, falsely claiming not to understand English43 and lying about medical appointments to procure adjournments.44 He misplaced important documents provided by the defence (arguing that he was prejudiced as a result),45 refused to return to the witness box to be cross-examined,46 regularly accused the judge of bias,47 and even left the courtroom in anger during a witness examination.48

Non-Querulants

Conversely, non-querulants generally have a cause of action with some merit, but cannot afford legal representation and do not qualify for legal aid.49 While non-querulants conduct themselves with an appropriate manner and treat the court process with respect, their unfamiliarity with law and procedural rules still inflates the cost and increases the length of any proceedings in which they are involved.50 The issues caused by ordinary people forced into self-representation are different to those that arise from querulant litigants. However, as non-querulants are thought to make up the majority of SRLs,51 addressing these issues should be a priority for analysis and response.

THE UNIVERSAL PLEADING RULES AND SELF-REPRESENTED LITIGANTS

The object of the Rules is ‘to facilitate the just, efficient, timely, [and] costeffective … resolution’52 of legal disputes. However, compliance with court rules and procedural requirements are often one of the major stumbling blocks for SRLs.53 In many cases, ignorance of the pleading rules can start a cycle of pleadings being struck out, amended, filed, and struck out again.54 This drags out pre-trial processes, incurs costs for both parties and potentially deprives the SRL of their opportunity to pursue justice at trial. This result is clearly counter to the object of the Rules. Yet in other cases, the pleadings rules are an effective filter process, allowing meritless actions to be dismissed early in the process before considerable time and resources have been consumed. Ultimately, whether the Rules create a barrier to justice or serve as an effective filter depends on whether the litigant in question is querulant or non-querulant.

Querulants

As Draoui55 demonstrates, a querulant litigant can inflict substantial costs and stress on the Court and the other party if they see their case through to trial. If their claim can be dismissed or struck out before it reaches trial, much of this can be avoided. In Atkins v Susan Mary O’Toole Lawyers (‘Atkins’)56 and Francis v Cole,57 for example, the self-represented plaintiffs included numerous causes of action in their statements of claim, some of which were non-existent58 and many (if not all) of which were unsupported by the facts.59 In Atkins, the drafting of the plaintiff’s statements of claim further revealed a belligerent and openly hostile attitude towards the defendant.60 In both cases, the defendants successfully applied for summary dismissal of these claims on the grounds that they failed to disclose a cause of action, and were vexatious and an abuse of process.61 In these circumstances, it was the content of the pleadings that allowed the Court to dismiss the action. However, pleadings like these could just as easily be struck out for non-compliance with the rules in r 67.2.62 Either way, the Rules give the Court discretion to prevent mentally ill, belligerent, and uncooperative litigants from pursuing hopeless cases at great expense to all parties involved.

Non-Querulants

However, there are cases where the same rules have denied justice to non-querulant litigants, who have a legitimate claim and make a genuine effort to comply.63 In Badcock v Channel Seven Adelaide Pty Ltd, 64 Mr Badcock had attempted to bring an action in defamation against Channel Seven after his business failed due to negative coverage on A Current Affair. Bankrupt and without access to legal aid, self-representation was his only choice.65 Mr Badcock’s first statement of claim was struck out, but he filed a second that made a genuine effort to comply with the Master’s instructions.66 However, the Master determined that the second statement of claim remained ‘as a whole so riddled with defects that the pleading should not be allowed to stand’.67 For his third attempt, Mr Badcock found model pleadings on which to base his own.68 However, by relying on the model, he removed necessary particulars which he had included in the second statement of claim,69 and again, the statement of claim was struck out. Mr Badcock failed to file a fourth amended statement of claim.70 Mr Badcock’s genuine attempts to comply with the instructions of the Master distinguish him from a querulant litigant. Mr Badcock had even sought further advice from the Court and opposing counsel, however it would have been inappropriate for either to assist.71 Indeed, the Court later sympathised with him, writing:

this is not a case of proceedings which disclose no cause of action known to the law, or of proceedings which cannot by amendment be made to disclose such a cause of action … [Mr Badcock] has made a genuine attempt to comply with the Rules, [but] it would seem that his lack of pleading skills has brought him undone.72

Mr Badcock’s experience is a stark reminder of how procedural rules can deprive individuals of access to justice. While this case was decided under the Supreme Court Rules 2006 (SA), there appears to be nothing in the new Rules that would lead to a different result.

FINDING THE BALANCE

Legal aid is commonly suggested as a solution to the problems posed and faced by SRLs.73 However, recognising that a scarcity of resources may make it impossible to extend legal aid beyond

what is already offered,74 other ways of supporting SRLs are necessary to support access to justice. Without conducting major reform, this could include advice from the Bench, cooperation by opposing counsel, or unbundled legal services.

Assistance from the Bench

Recognising that self-representation is a legal right, and for some people their only option, laws and guidelines have developed concerning the assistance owed to a SRL by the Court itself. In Kenny, 75 Gray and Layton JJ observed 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.’76 This intervention should ensure that SRLs are aware of their substantive and procedural rights, and should redress as far as possible the disadvantage suffered by the SRL.77 Some assistance from the Bench will also help to avoid a SRL from feeling that they have been cheated of justice by a hostile legal system, and may avoid a long and costly appeals process.78 In the context of pleadings, this assistance might include ‘siev[ing] … through [defective pleadings] for the purpose of leaving intact such of the paragraphs as disclose a cause of action’.79 However, judicial officers must also be careful to maintain the perception of impartiality, and must not ‘become an advocate for the unrepresented person’.80 So, just as the Court cannot put words in the mouth of SRLs, it cannot read causes of action into pleadings that do not support them. Striking the balance between assistance and impartiality may well be one of the Court’s greatest difficulties in litigation involving a SRL.81 Indeed, the Court ‘cannot redress the balance completely because, if it does, it will appear to be acting favourably to the litigant in person and adversely to the litigant who is represented.’82 In turn, this can constitute a ground of appeal for the represented party,83 and drag the SRL back into court all over again. It therefore seems impossible for assistance from the Bench to adequately overcome the disadvantages suffered by a SRL without jeopardising the Court’s impartiality.

Cooperation by counsel

It is not only the Court that needs to strike a balance in matters involving SRLs. Practitioners opposing a SRL must balance their obligations as advocates for their client with their obligations as officers of the court.84 In Kenny, 85 this was said to include ensuring that necessary topics are raised in court, even where they would normally be raised by the other party, and avoiding pedantic objections.86 It could also mean that a solicitor might need to encourage a SRL to obtain free or affordable legal advice, use plain language in their correspondences, avoid burdening the SRL with unnecessary material, and provide the SRL with outlines of matters to be raised at hearings ahead of time.87 Failing to follow this guidance and treat a SRL fairly and courteously will likely breach the Australian Solicitors’ Conduct Rules 2015 (SA) (‘ASCR’),88 for example the duty not to take unfair advantage of another party’s error.89 Nonetheless, it remains completely inappropriate for a lawyer to provide their opponent with assistance or advice.

Unbundled legal services

‘Unbundled’ or ‘step-in-step-out’ legal services offer particular promise for SRLs facing difficulties in the pretrial stage.90 Under this system, lawyers provide selected services to clients, rather than representing them through the entire litigation.91 Unbundled legal services are designed to support non-querulant litigants who do not qualify for legal aid.92 In the context of pleadings, unbundled legal services would allow a litigant to have rules-compliant pleadings drafted by a solicitor without committing to ongoing representation at trial. Recalling Badcock (No 1), 93 assistance in overcoming early procedural hurdles may have been all that Mr Badcock required to go on and represent himself successfully at trial. It is for these reasons that unbundled legal services have been incorporated into legal practice in the United Kingdom,94 Canada,95 and most of the United States of America.96

However, there are compelling reasons for the slow adoption of unbundling in Australia. Complex matters often involve numerous interconnected and ongoing issues, which could lead to oversights and errors by lawyers retained, for example, only to draft a statement of claim.97 Furthermore, procedural requirements and professional conduct rules have developed on the assumption that a client will be represented throughout litigation, not in an unbundled fashion.98 Under the Rules, for example, a party requires leave of the Court to be represented by more than one law firm in a proceeding,99 and a law firm will be presumed to be representing a party from the time that the initial notice of acting is filed until a notice of cessation of acting is filed100 or a notice of acting is filed that nominates a new firm.101 This creates hurdles for solicitors and clients who wish to approach litigation in an unbundled fashion. While none of these issues are insurmountable,102 the lack of provision for any kind of unbundled legal services in the new Rules suggests that it may be some time before this option is made fully available to SRLs.

CONCLUSION

In litigation between represented parties, the rules of pleadings seek to facilitate the just, efficient and affordable resolution of disputes. However, in litigation involving SRLs, these same rules can in fact have the opposite result. Simply because they cannot afford legal representation, non-querulant litigants might find their legitimate causes of action stymied as early as the statement of claim. While some of their difficulties can possibly be overcome by assistance from the Bench or cooperation from opposing counsel, it is inappropriate to rely on assistance from parties that already have obligations of impartiality or to a client. Similarly, while unbundled legal services could ameliorate the difficulties faced by SRLs in the pre-trial procedural stage, the new Rules appear to make no provision for it. Instead, SRLs face many of the same barriers to justice under the new Rules as they have done for years.

The headline of this article references Badcock v Channel Seven Adelaide Pty Ltd [2005] SADC 32, [37] (‘Badcock (No 1)’). B

Endnotes 1 See, for example, Kenny v Ritter [2009] SASC 139 (‘Kenny’). 2 See, for example, Australian Law Reform

Commission, Managing Justice: A Review of the

Federal Civil Justice System (Report No 89, 29

November 1995). 3 See, for example, Margaret Castles, ‘Barriers to Unbundled Legal Services in Australia:

Canvassing Reforms to Better Manage Self-

Represented Litigants in Courts and in Practice’ (2016) 25(4) Journal of Judicial Administration 237. 4 See, for example, Draoui v Le (No 3) [2020]

SADC 23, Annexure I (‘Draoui’). 5 South Australia, South Australian Government

Gazette, No 39, 14 May 2020, 1200. 6 Uniform Civil Court Rules 2020 (SA) r 2.1 (definition of ‘pleading’) (‘UCCR’). 7 Ibid r 70.3(a). 8 Supreme Court Civil Rules 2006 (SA) r 104. 9 UCCR (n 7) r 70.3. 10 See, for example, Badcock v Channel Seven Adelaide

Pty Ltd [2006] SADC 7 (‘Badcock (No 2)’). 11 UCCR (n 7) r 142.2. 12 Ibid r 143.1. 13 Ibid r 143.2. 14 See, for example Francis v Cole [2019] SASC 179 (‘Francis’); Atkins v Susan Mary O’Toole Lawyers [2020] SADC 37 (‘Atkins’). 15 See Judiciary Act 1903 (Cth) s78; UCCR (n 7) r 25.6(2). 16 Kenny (n 2) at [13]; Cachia v Hanes (1994) 179

CLR 403, 415 (‘Cachia’); Collins v The Queen (1975) 133 CLR 120, 122. 17 Cachia (n 17). 18 Ibid 415. See also Kenny (n 2) at [23]. 19 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 993

UNTS 3 (entered into force 3 January 1976) art 14(d). 20 Cachia (n 17) 415. 21 See, for example, ibid; Australian Law Reform

Commission (n 3); Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into Legal Aid and Access to Justice (Final Report, 8 June 2004); Liz

Richardson, Genevieve Grant and Janina

Boughey, The Impacts of Self-Represented Litigants on

Civil and Administrative Justice: Environmental Scan of Research, Policy and Practice (Report, October 2018); Harry Woolf, Access to justice (Final Report, 1 January 1996). 22 Australian Law Reform Commission (n 3) 389; Senate Standing Committee on Legal and

Constitutional Affairs (n 22) 187-95; Richardson,

Grant and Boughey (n 22) 7. 23 Kenny (n 2). 24 Ibid [21] citing Woolf (n 22) 119. 25 See, for example, Australian Productivity

Commission, Access to Justice Arrangements (Inquiry

Report, 3 December 2014) 489-92. 26 Senate Standing Committee on Legal and

Constitutional Affairs (n 22) xxx. 27 Australian Productivity Commission (n 26) 1003. 28 Ibid. 29 See ibid 1003-4; Kate Lumley and Anne Murphy (eds), Equality Before the Law Bench Book (Judicial

Commission of New South Wales, 15th release, 2019) 10103. 30 Australian Productivity Commission (n 26) 48994; Richardson, Grant and Boughey (n 36) II. 31 See Emilios Kyrou, ‘Managing litigants in person’ (2013) 25(2) Judicial Officers’ Bulletin 11, 11. 32 Australian Law Dictionary (3rd ed 2018) online (definition of ‘querulant’) Oxford University

Press. 33 See for example Manolakis v Henderson [2018]

SADC 147. See also Australian Law Reform

Commission (n 3) 386. 34 See Draoui (n 5) Annexure I, paras 45, 53. 35 See, for example, ibid [65]-[70]; Francis (n 15);

Atkins (n 15). 36 For example, Draoui (n 5) [19], [72], [77], [78] and [85]. 37 For example, Manolakis v Henderson [2018]

SADC 147. 38 See for example Draoui v District Court of South

Australia [2011] SASC 11, [5] (‘this is the third time the applicant has requested the District

Court judge to disqualify himself … on the ground of apprehended bias.’). 39 Draoui (n 5). 40 Ibid [1]-[5]. 41 See R v Draoui [2008] SASC 188; Draoui v The

Queen [2009] HCA T78; Draoui v Police [2010]

SASC 141; Draoui v District Court of South

Australia & Anor [2010] SASC 151; Draoui v

District Court of South Australia [2011] SASC 11;

Draoui v District Court of South Australia & Anor [2011] SASCFC 15; Draoui v District Court of

South Australia [2011] HCASL 186; Draoui v The

Queen (No.2) [2014] SADC 103; R v Draoui [2015]

SASCFC 50; Draoui v Return to Work SA [2017]

SAET 135; Draoui v Return to Work SA [2019]

SAET 94; Draoui v Le & Ors [2019] SASCFC 105; Draoui v Le, Then and Anor [2019] SADC 85;

Draoui v Le & Anor [2019] SASC 114; Draoui v

Le, Then and Cock [2019] SADC 108. 42 See Draoui (n 5) Annexure I. 43 Ibid [111]. 44 Ibid [106]-[107]. 45 Ibid [75], [77], [117]. 46 Ibid [10], [15], [19], [41], [72], [82], [101], [113], [150], [309], [523], [543], Annexure I para 64. 47 See for example ibid [79], [85]. 48 Ibid [79]. 49 Castles (n 4) 238; Australian Productivity

Commission (n 26) 492. For an example, see

Badcock (No 1) (n 1). 50 See, for example, Badcock (No 1) (n 1). 51 Tania Sourdin and Nerida Wallace, ‘The dilemmas posed by self-represented litigants: The dark side’ (2014) 24 Journal of Judicial Administration 61, 62. 52 UCCR (n 7) r 1.5(1). 53 Australian Productivity Commission (n 26) 4945; Lumley and Murphy (n 30) 10104. 54 See, for example, Badcock (No 1) (n 1). 55 Draoui (n 5). 56 Atkins (n 15). 57 Francis (n 15). 58 Ibid [78]; Atkins (n 15) [1]. 59 Francis (n 15) [87]; Atkins (n 15) [37]. 60 Atkins (n 15) [42]. 61 Ibid [3]; Francis (n 15) [19]. 62 UCCR (n 7) r 67.2. 63 See, for example, Badcock (No 1) (n 1); Badcock (No 2) (n 11); Egan v Commonwealth Minister for

Transport (1976) 14 SASR 445. 64 Badcock (No 2) (n 11). 65 Badcock (No 1) (n 1) [32]. 66 Ibid [25]. 67 Ibid [26]. 68 Ibid [31]. 69 Ibid [28]. 70 Ibid [30]. 71 Badcock (No 2) (n 11) [28]. 72 Badcock (No 1) (n 1) [32]. 73 See, for example, Australian Law Reform

Commission (n 3) 390-1. 74 Castles (n 4) 238. 75 Kenny (n 2). 76 Ibid [17]. 77 Ibid [23]. 78 Sourdin and Wallace (n 52) 68. 79 Badcock (No 1) (n 1) [36]. 80 Kenny (n 2) [25]. 81 The difficulty of this task is recognised in, for example, Kenny (n 2); Hunter v Webb (unreported

Federal Court, 19 July 1996); and Lumley and

Murphy (n 44) 10201. 82 Hunter v Webb (n 82). 83 As was the case in Kenny (n 2). 84 See Australian Solicitors Conduct Rules 2015 (SA) r 3.1 (‘ASCR’); Kenny v Ritter (n 2) [26]; Law

Society of New South Wales, Guidelines for dealing with self-represented parties in civil proceedings (Guidelines, December 2016). 85 Kenny (n 2). 86 Ibid [26]. 87 Law Society of New South Wales (n 85) 3. 88 ASCR (n 85) rr 4.1.2 (duty to be honest and courteous in all dealings), 19.3 (duty to correct errors by other parties), 19.12 (duty to inform opponents if opponents make erroneous concessions), 22 (duties concerning communications with opponents), 30.1 (duty not to take unfair advantage of another person’s error), 34.1.1 (duty not to exaggerate legitimate claims, mislead, or intimidate), 34.1.3 (duty not to embarrass or frustrate another party). 89 Ibid r 30.1. 90 Castles (n 4) 237. 91 Ibid. 92 Ibid 240; Australian Productivity Commission (n 26) 641. 93 Badcock (No 1) (n 1). 94 See, for example, ‘Unbundling civil legal services’, Law Society (UK) (practice note, 4 April 2016) <https://www.lawsociety.org.uk/supportservices/advice/practice-notes/unbundling-civillegal-services/>. 95 See, for example, Federation of Law Societies of

Canada, Model Code of Professional Conduct (2017) 10 (definition of ‘limited scope retainer’). 96 See ‘Unbundling Resource Center: Rules’,

American Bar Association (web page) <https:// www.americanbar.org/groups/delivery_legal_ services/resources/pro_se_unbundling_ resource_center/court_rules/>. 97 Australian Productivity Commission (n 26) 646. 98 Castles (n 4) 240-1. 99 UCCR (n 7) r 25.1(2). 100 Ibid. 101 Ibid r 25.2(5). 102 See Australian Productivity Commission (n 26) 647; Castles (n 4) 242-3.