ACCESS TO JUSTICE
Unrepresented litigants in South Australia: a successful pre-trial framework? PAUL SIGAR, HONOURS STUDENT, ADELAIDE LAW SCHOOL
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his paper looks into the problems posed by unrepresented litigants in South Australia, and proposes a pre-trial framework to deal with cases involving at least one unrepresented party. Unrepresented litigants typically impede the efficiency of courts to operate.1 This paper will argue that the South Australian courts are able to effectively navigate through these problems by setting up a supervised framework to deal with unrepresented litigants, to: (a) ensure early identification of cases involving unrepresented litigants that may affect the efficiency of court proceedings, and (b) allow the courts to conduct review hearings of these cases in stages. This twopronged approach will hopefully alleviate the problems of backlogs and inefficiency. As will be argued, this can be achieved without sacrificing the important principle of judicial impartiality. The methodology deployed in this research is mainly comparative analysis of other similar common law adversarial jurisdictions, such as Queensland, Alberta, and Hong Kong, with some case studies involving empiricalanalytical data.
INTRODUCTION Unrepresented or self-represented litigants are on the rise in Australia,2 and it is widely recognised as one of the major challenges in the Australian legal system.3 Among the most common reasons for self-representation include the inability to afford legal services and the ineligibility to access legal aid,4 with few exceptional cases of preference of self-representation.5 For the purposes of this paper, the latter will not be discussed, as it exists in the outlier cases and it concerns a completely different range of issues like personal preference and mistrust in the legal professions,6 which are unlikely to change even if the courts were to operate differently.
24 THE BULLETIN March 2021
It is generally recognised that unrepresented litigants are more at risk of losing their case irrespective of the merit of their case.7 This is understandably so because unrepresented litigants often lack the requisite legal knowledge to assert or defend their rights in courts.8 This can be problematic as it effectively denies the fundamental right of access to justice for unrepresented litigants.9 According to the Hon. Paul de Jersey CJ, access to justice is not simply ‘access to courts’;10 it also includes practical accessibility,11 which could be improved with early judicial intervention or supervision of cases in general.12 As will be explored, this approach is particularly helpful for unrepresented litigants. Meanwhile, the adversarial system is almost exclusively designed for litigants to be represented by competent practitioners. It is described as ‘essentially a professional system… designed around professional people’,13 where parties are expected to positively and effectively present their case. 14 This means parties will compete professionally to prove or disprove certain facts, and they get to control the proceedings in courts with minimal judicial intervention.15 The concept of having judges play minimal role throughout the proceedings is crucial to our judiciary. It preserves judicial impartiality and upholds the notion of natural justice and procedural fairness.16 However, the adversarial system requires that unrepresented litigants essentially step in the shoes of a lawyer.17 This inevitably creates an uneven playing field for inexperienced unrepresented litigants.18 Having outlined the important concepts of access to justice and judicial impartiality in the adversarial system, this paper will explore the possibility of a framework for early court involvement in cases involving at least one unrepresented party, while also striking a balance between these important
concepts so as to afford maximum access to justice without sacrificing other fundamental principles. As will be argued, the need for early court involvement stems from the challenges posed by unrepresented litigants to the court system which impedes efficiency of court proceedings.19
PROBLEMS POSED BY UNREPRESENTED LITIGANTS One major problem posed by unrepresented litigants is that they often require a significant amount of a court’s time and resources.20 This is especially so during pre-trial stages. In Queensland, approximately 53% self-represented litigants sought assistance from legal services at the interlocutory or pre-trial stage.21 Whilst there is insufficient data on South Australia, the figure should reflect a degree of generalisation since the issues faced by unrepresented litigants are typically universal.22 According to anecdotal and empirical data from Queensland, inefficiency of pre-trial proceedings involving one unrepresented party could be attributed to various factors, including litigants being unsure and unaware of the next steps in proceedings, their failure to understand legal concepts, and the unfamiliarity with the court system and the technical requirements of, among other things, the rules of pleading and pre-trial obligations.23 There are also some mistaken expectations from unrepresented litigants of the court’s rules and procedures, such as having a ‘clear map’ of what is going to happen in the proceedings,24 which is often not the case. According to Alberta Law Reform Institute’s (‘ALRI’) report, the ‘complexity in the language and substance of court forms and procedures is often the biggest hurdle’ for self-represented litigants.25 Understandably, navigating through complex rules and procedures
