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Unrepresented litigants in South Australia: a successful pre-trial framework? – By Paul Sigar
PAUL SIGAR, HONOURS STUDENT, ADELAIDE LAW SCHOOL
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This 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.
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
without assistance can be frustrating for the unrepresented litigant.26
This phenomenon is not exclusive to litigants. Judges too experience frustration. One judge claimed that it is “very rare” to see unrepresented litigants representing themselves in a competent manner.27 In an interview with judges from Hong Kong, a judge pointed out that some litigants do not even know what an affi davit is.28 Another judge noted that self-represented litigants are often unable to make submissions based on the rules of evidence.29 One judge described that these litigants sometimes ‘give speeches in the course of giving evidence’.30 Also unsurprisingly, self-represented litigants interrupting proceedings with shouts of “objection!” in the middle of the opposite party’s cross-examination is not unusual.31 Finally, all the eight judges interviewed opined that proceedings involving at least one self-represented party typically take longer.32
Suffi ce to say, these challenges are similarly present here in South Australia. The Law Society of South Australia (‘LSSA’) noted that most self-represented cases failed to identify real legal issue and produce the relevant evidence.33 Having encountered these problems, the South Australian courts administration authority has taken steps to increase accessibility of the justice system for unrepresented litigants, by publishing information on the website under the tab ‘represent yourself’,34 which provides information on, among other things, legal aid and civil claims.35 However, the effectiveness of this in addressing the problems posed by unrepresented litigants has yet to be seen materially. In fact, some information is inadequate. For example, for claims over $100,000, the webpage simply states that ‘it is advisable to seek legal advice’.36
Having said that, it also important to recognise that the court process was not and should not be designed or tailored for the use of self-representation. ALRI highlights that self-represented litigants ought to be aware that they bear the same responsibilities as professional practitioners,37 such as the need to fi le a defence within a time period, unless otherwise waived by court. Similarly, as rightly noted by the LSSA, “…the law is made up of legal concepts, such as a cause of action and its elements, and attempts to turn these into something else… are misplaced.”38 However, this is not to say that court processes cannot be simplifi ed or modernised to accommodate selfrepresented litigants. It is one thing to assist a litigant navigate through complex procedures and another to reform the system entirely for the exclusive use of unrepresented litigants. The latter makes professional representation redundant and diminishes professionalism around court proceedings, whereas the former optimises the use of the justice system for all parties involved, elaborated below.
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SETTING UP A PRE-TRIAL FRAMEWORK
When invited to comment on a draft recommendation on the most effective and efficient way to assist self-represented litigants, the LSSA responded with, “[it] is almost impossible to answer”.39 There is simply no one set formula that provides the best model to deal with self-represented litigants. But it must be stressed that any effective measures must entail ‘practical measures’, instead of mere ‘abstractions’, as noted by the Honourable Paul de Jersey CJ.40
Currently, the Uniform Civil Court Rules (‘UCCR’’) rule 12.1 grants the court wide range of general powers to ‘make any order it considers appropriate in the interests of justice’.41 These include making any order it considers is inconsistent with or in lieu of a provision of the UCCR, 42 ordering an amendment of a document,43 and even to give directions about the procedures to be followed.44 These powers are similar to that of the Queensland Uniform Civil Procedure Rules 1999 (Qld).45 However, unlike that of Queensland, the South Australian Supreme Court lacks a guiding framework on the exercise of such powers.
In 2014, the Queensland Supreme Court adopted Practice Direction 10 of 2014, 46 which established a Supervised Case List for self-represented litigants.47 This allows the courts to do two things, (a) identify cases involving at least one unrepresented party, by requiring all parties to notify the court if one of them is, or becomes, unrepresented,48 and (b) conduct supervision and review hearings on the case.49 By identifying such cases at an early stage, the court is able to allocate its resources more efficiently from the outset, and facilitate the self-represented litigants to direct their resources towards building a case theory and extracting real legal issues,50 such as through ‘unbundled’ legal assistance51 or from appropriate nonpractitioners.52 This process is theorised to be effective in expediting cases involving self-represented litigants.53 Two judges from Hong Kong recognised its significance and recommended the use of ‘unbundled’ legal assistance as a means to alleviate some of the problems discussed above.54
Following early identification, the court would be able to increase supervision on these proceedings,55 by conducting review hearings in stages.56 These review hearings require an assigned judge to conduct hearings with both parties as frequently as is needed to assess the progress of the proceedings leading up to trial.57 This allows judges to advise parties to narrow the scope of issues in contention, and make appropriate orders and directions, such as requiring the production of affidavits, as the case progresses.58 Having this court oversight assists the unrepresented litigants to navigate through their pre-trial obligations,59 which is often where litigants needed help the most.60 This ensures inexperienced self-represented litigants are given a fair opportunity to present their case.61
Contrary to what critics thought was a redundant reiteration of the Queensland Uniform Civil Procedure Rules 1999 (Qld), the Supervised Case List actually exists to complement it.62 It was set up for three main purposes, (a) to set up a transparent framework for what was initially a discretionary power, (b) to establish a formal guideline on how to deal with unrepresented litigants, and most importantly, (c) to properly and practically recognise unrepresented litigants’ rights.63 It also retains flexibility for case management.64
When it was first introduced, the Queensland Law Society welcomed its implementation, calling it an “important initiative”.65 Four years later, it would be proven a remarkable invention.66 In the Supreme Court of Queensland’s annual report, self-represented litigants in civil cases had a success rate of 28%, compared to 11.4% in the previous year in appeals.67 Meanwhile, the overall success rate of civil appeals (represented and unrepresented) was at 29.4%.68 The closing gap, and the fact that success rates were almost uniform whether represented or not, indicate that the initiative had contributed to levelling the playing field.
Following the success of the Queensland Supreme Court’s model in dealing with self-represented litigants, this paper proposes that similar measure be set up in the Supreme Court of South Australia. The LSSA has also previously agreed to some of the recommended practices of Practice Direction 10, such as the early exchange of documents.69 Establishing this Supervised Case List framework in South Australian jurisdiction would facilitate early judicial involvement in cases involving unrepresented litigants, and allow the court to supervise and review the progress of the case as and when needed. These review hearings would assist the court in exercising its discretion to make appropriate orders under r 12.1(2) of the UCCR. Similar to the operation of the Supervised Case List of the Queensland Supreme Court, this framework should be complementary to the UCCR. This ensures transparency and eliminates arbitrary exercise of broad discretionary powers enshrined in r 12.1 of the UCCR.
JUDICIAL NEUTRALITY IN THE ADVERSARIAL SYSTEM
It must be acknowledged that having a supervising judge may raise questions on judicial neutrality, and may even create appearance of bias towards the unrepresented litigant. In this instance, the LSSA recognises that there is a difference between simplifying a process and providing advisory service.70 Unlike the latter, the former does not challenge the notion of judicial neutrality nor undermine the adversarial system. On the contrary, it maximises the efficient use of the legal system. That said, the implementation of a court supervision probably lies somewhere between the two. As such, it warrants judicious implementation.
In order to ensure judicial neutrality throughout the proceedings, it is imperative that the principle of judicial impartiality be emphasised under the proposed framework. For example, the Queensland Practice Direction 10 expressly states that the Supreme Court was to ‘remain impartial’.71 To further enhance judicial neutrality, the supervising judge’s role must be clearly defined and outlined. For instance, the Practice Direction 10 clearly outlines that the supervising judge only has the power to hear updates and make directions and orders they deem appropriate.72 It does not empower the judge to take on an advisory role nor to actively assist the self-represented party. If the role of the judges is clearly defined and outlined, the supervision of cases is unlikely to undermine the adversarial system. As ALRI noted, as long as the rules apply even-handedly
without affording special concessions to the unrepresented party by virtue of their inexperience, judicial impartiality is preserved.73 This is because ultimately, it is still the parties that have to present their case, with limited to no substantive assistance from the court. The court supervision merely bridges the gap between inexperience and the need to comply with complex procedures. It stops short of providing direct intervention or being inquisitorial.
CONCLUSION
Having analysed the different problems posed by unrepresented litigants in various jurisdictions, Queensland’s model of a Supervised Case List has proven to be a successful and evidence-based approach in addressing these problems. Setting up a similar framework in the Supreme Court of South Australia would be instrumental in advancing the rights of unrepresented litigants in this State. As discussed above, these measures do adequately maintain the effectiveness of the adversarial process. Further, it is unlikely to undermine judicial neutrality as judges would continue to play passive and minimal role throughout the proceedings under this framework.
The proposed framework is the outcome of balancing the various fundamental principles of our judiciary. At the end of the day, it must be recognised, rather unfortunately, that there is only so much the court could do to assist an unrepresented litigant. In the words of the Albertan Court of Appeal, “[unrepresented litigants] are not entitled to command disproportionate amounts of court resources to remedy their inability or unwillingness to retain counsel. If they seek free lunch, they should not complain of the size of the helpings”.74 B
Endnotes 1 See generally Margaret Castles, ‘Self represented litigants: A major 21st century challenge’ (2015) 37(9) Bulletin of the Law Society of South Australia 14. 2 Senate Standing Committees on Legal and
Constitutional Affairs, Parliament of Australia,
Inquiry into Legal Aid and Access to Justice (2004) 182 (‘Inquiry into Legal Aid and Access to Justice’). 3 Castles, above n 1, 14. 4 Inquiry into Legal Aid and Access to Justice, above n 2, 187. 5 Ibid 185. 6 Castles, above n 1. 7 Raquel Dos Santos, ‘Self represented litigants in the Australian civil justice system 10 years of the
Self Representation Service in Australia’ (Paper presented at the National Access to Justice and Pro
Bono Conference, Adelaide, 23 March 2017) 5. 8 Ibid. 9 Honourable Chief Justice Paul de Jersey AC,
“Keynote Address” (Speech delivered at the
National Access to Justice and Pro Bono
Conference2010, Brisbane, 27 August 2010) <https://archive.sclqld.org.au/judgepub/2010/ dj270810.pdf> 4 (‘Keynote Address’). 10 Ibid 2 11 Ibid 3. 12 Ibid 3. 13 Alberta Law Reform Institute, ‘Alberta Rules of
Court Project: Self-Represented Litigants’ (2005) 3 (‘Alberta Rules of Court Project’). 14 Santos, above n 7, 3. 15 Alison Creighton, ‘An adversarial system: a constitutional requirement?’ (1999) 74 Australian
Law Reform Commission Reform Journal 65. 16 Ibid. 17 See generally Alberta Rules of Court Project, above n 13. 18 See, eg Iain McCowie, ‘Self-represented parties and court rules in the Queensland courts’ (2014) 24 Journal of Judicial Administration 18. See also
Rosemary Hunter et al, The Changing Face of
Litigation: Unrepresented Litigants in the Family Court of Australia (Law and Justice Foundation of New
South Wales, 2002). 19 See, eg McCowie, above n 18. 20 Camille Cameron, Elsa Kelly and Eric Wing Hong
Chui, ‘Judges Perspectives on the Impact of Selfrepresentation in Hong Kong Civil Cases’ (2006) 8(3) Australian Journal of Asian Law 261, 262. See also, McCowie, above n 18. 21 McCowie, above n 18, 19. 22 See 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 (The Australasian
Institute of Judicial Administration Incorporated, 2018) 8. 23 McCowie, above n 18, 21. 24 Ibid. 25 Alberta Rules of Court Project, above n 13, 57 citing the Canadian Bar Association, Task Force on Systems of Civil Justice, Report of the Task Force on Systems of Civil Justice (Ottawa: Canadian Bar
Association, 1996). 26 McCowie, above n 18, 18. 27 Cameron, Kelly and Chui, above n 20, 266. 28 Ibid 268. 29 Ibid. 30 Ibid. 31 Matthew Yeung and Janny Leung, ‘Removing
Linguistic Barriers to Justice: A Study of Official
Reference Texts for Unrepresented Litigants in
Hong Kong’ (2015) 28 International Journal for the
Semiotics of Law 135, 136. 32 Cameron, Kelly and Chui, above n 20, 271. 33 Law Society of South Australia, Submission to the Productivity Commission’s Draft Report in relation to Access to Justice Arrangements, 21
May 2014, 72 (‘Submission to the Productivity
Commission’s Draft Report’). 34 Court Administration Authority of South
Australia, Represent Yourself <http://www.courts. sa.gov.au/RepresentYourself/Pages/default. aspx>. 35 Ibid. 36 Court Administration Authority of South
Australia, Over $100,000 <http://www.courts. sa.gov.au/RepresentYourself/CivilClaims/
LargeClaims/Pages/default.aspx>. 37 Alberta Rules of Court Project, above n 13, 57. 38 Submission to the Productivity Commission’s
Draft Report, above n 33, 74. 39 Ibid 72. 40 Keynote Address, above n 9, 4. 41 Uniform Civil Court Rules 2020 (SA) r 12.1(1) (‘UCCR’). 42 Ibid r 12.1(2)(b). 43 Ibid r 12.1(2)(l). 44 Ibid r 12.1(3). 45 Queensland Uniform Civil Procedure Rules 1999 (Qld) r 5, 366, 658. 46 Supreme Court of Queensland, Practice Direction 10 of 2014 – Supervised Case List Involving Self
Represented Parties: Civil Jurisdiction Brisbane, 19
February 2014 (‘Practice Direction 10’). 47 Ibid. 48 Practice Direction 10, 1-3. See also McCowie, above n 18, 26. 49 Ibid 3. 50 McCowie above n 18, 28. 51 Ibid. 52 Productivity Commission (Cth), Access to Justice
Arrangements, Inquiry Report No 72 (2014) 17. 53 James Goh, ‘The self-represented litigants’ challenge: A case study’ (2018) 43(1) Alternative
Law Journal 48, 49. 54 Cameron, Kelly and Chui, above n 20, 279. 55 McCowie, above n 18, 27-8. 56 Practice Direction 10, 3. 57 Ibid. 58 Ibid 3-4. 59 McCowie, above n 18, 27. 60 Ibid 19. 61 Ibid 26. 62 Ibid 27. 63 Ibid. 64 Practice Direction 10, 3. 65 McCowie, above n 18, 29. 66 Supreme Court of Queensland (Qld), Annual
Report 2018-2019, (2019) 16. 67 Ibid. 68 Ibid. 69 Submission to the Productivity Commission’s
Draft Report, above n 33, 57. 70 Ibid 74. 71 Practice Direction 10, 2. 72 Ibid 3-4. 73 Alberta Rules of Court Project, above n 13, 66. 74 Broda v Broda (2001) 286 AR 120 [4].