Chapter 10 - Self-represented litigants
The current [legal aid] arrangements are unfair and do not make
the justice system accessible. On the contrary the perception is that legal aid
is broadly unavailable and most people are not able to instruct lawyers to
represent them throughout the litigation process. The result is that many
people abandon their legal rights and others will be forced to pursue them as
litigants in person. Neither of these results is satisfactory.
evidence of a growth in the number of
self-represented litigants across the legal system;
the extent of any link between the level of
legal aid funding and the numbers of self-represented litigants;
the adverse effects of lack of representation on
access to justice; and
measures to minimise any detrimental effects on
access to justice.
Increasing numbers of self-represented litigants
issue for the legal system in recent years is the growing number of
self-represented litigants and the impact that development is having on legal
service providers and the administration of justice generally.
The Third Report
In its Third Report, the Committee commented
that changes over time in the percentages of self-represented litigants could
be used as indicators of how well the legal aid system is working. The
Committee noted that comprehensive data was not available on self-represented
litigants, and recommended that the Government collect, analyse and publish
data on unrepresented litigants in the Family Court, Federal Court, state and
territory Supreme and District Courts and courts hearing appeals from those
The Third Report also noted that, while the
Committee was relying on partial statistics and anecdotal information, the
'predominant view' in submissions to it was that there had been a significant
increase in unrepresented litigants and that this was largely attributable to
restrictions on legal aid funding. The
Government's response stated that the Government was 'supportive' of the
recommendation, but that implementation was a matter for the courts and
tribunals and would depend on their respective processes.
The current situation
there is still no comprehensive information across the legal system on the
number and proportion of self-represented litigants. However, attention to this
issue has grown, with most of the federal courts reporting in various levels of
detail on self-represented litigants in their most recent annual reports.
there is no comparative data, the court statistics that are available show an
increase in self-represented litigants in recent years. Anecdotal
information supports that view. The Family Law Council concluded in August 2000
that 'there can be no doubt that the number of unrepresented litigants is
increasing' in the Family Court. The
Committee heard similar sentiments from the Chief Justice of the Family Court
of Australia in March 2004:
When I came to this bench in 1988, it was comparatively rare to
have a case go ahead with someone who was unrepresented. If it did, they would
normally be someone who was deliberately wanting to be unrepresented, who
really had a bee in their bonnet or thought that they could do better than
anybody else. You did not find people of the sort we are talking about at the
moment coming to the court unrepresented.
Justice cited new statistics indicating that nearly half (about 47 per cent) of
litigants in the Family Court were unrepresented at some stage in proceedings. This
represented a substantial increase from statistics provided to the Committee in
the Family Court's earlier submission.
Federal Court of Australia noted in its most recent annual report that the
'growing number' of self-represented litigants in recent years had presented a
range of problems, and that in 2002-03, about 38 per cent of matters involved
at least one party who was unrepresented at some stage in proceedings. This figure
had steadily increased from about 28 per cent in 1998-99 to a peak of 41 per
cent in 2001-02.
analysis of data collected in the Federal Magistrates Court since 1 July 2002 indicated that about 19 per cent of applicants
seeking final orders in relation to children or property did not have a lawyer,
while 60 per cent of applicants alleging that a child order has been
contravened were not represented. While no comparison with previous years was
provided in that court's most recent annual report, the figures present
compelling evidence of the extent of the problem, particularly in light of the
implementation of measures to address the needs of self-represented litigants.
Is there a link with the level of legal aid funding?
Committee notes that many submissions to this inquiry linked the growing number
of self-represented litigants to restricted availability of legal aid funding. Some of
those submissions acknowledged, however, that certain individuals may choose
not to be represented, for reasons discussed later in this chapter.
addition, several community legal centres and lawyers' associations referred to
an increased demand for their services from people who have been denied or who
have exhausted legal aid funding.
to date also gives various possible explanations for the increase in
self-representation. The Family Law Council observed in 2000 that no single cause
could be identified. While changes to legal aid funding and an inability to
afford a lawyer were significant reasons for being unrepresented, the Council
suggested that more empirical data was needed to determine the reasons conclusively.
ALRC explained in its 2000 report on the federal civil justice system, Managing Justice:
Some litigants choose to represent themselves. Many cannot
afford representation, do not qualify for legal aid or do not know they are
eligible for legal aid, and are litigants in matters which do not admit
contingency or speculative fee arrangements. They may believe that they are
capable of running the case without a lawyer, may distrust lawyers, or decide
to continue unrepresented despite legal advice that they cannot win.
commented that while both anecdotal evidence and qualitative research suggested
the numbers of unrepresented litigants in federal civil jurisdictions were
increasing, this increase was:
not entirely attributable to legal aid changes. Some of these
unrepresented litigants might, under former guidelines, have secured legal
assistance. Others are outside the means test for legal aid and are unable to
afford legal services.
cited rising costs of litigation and simplification of court processes as
contributing factors to the increase in self-represented litigants. However,
the report noted that more than half (54 percent) of respondents to the ALRC's
1999 survey stated that the main reason they did not have a lawyer was either
their inability to pay or the unavailability or cessation of legal aid. This shows
a strong link.
Law Council observed that even if a direct causal link between cuts to legal
aid and the incidence of unrepresented litigants cannot be established, a perception
has emerged in the legal and general community that there is such a link. Moreover,
it is clear there have been indirect effects leading to hardship within the
Other reasons for
factors that may cause people to appear without a lawyer include individual
choice; the prohibition on legal representation in certain jurisdictions; and
lack of available lawyers.
these is discussed in turn below.
Legal Aid Commission suggested that the simpler initiating procedures in the
Family Court are the reason for some self-represented litigants in that court. Generally
speaking, individuals are not required to have legal representation (subject to
The Committee notes that in recent years, several courts have reported
significant efforts to simplify their procedures, rules and information so as
to improve access to justice. In
addition, some legal service providers run information sessions to assist
individuals with low-level matters such as divorce applications and traffic
also noted that people may perceive they will have a tactical advantage if they
do not have a legal representative. They may hope to obtain a stay of
proceedings indefinitely or to
exhaust the other partys resources.
criminal matters it is well-established that the accused person's right to a
fair trial must be protected. Some defendants may perceive they will have a
tactical advantage in refusing representation, since this may result in an
Prohibition on representation
In some jurisdictions
such as the Migration Review Tribunal, legal representatives may not appear.
This prohibition attracted some criticism.
submissions noted that litigants who are corporate entities or government
departments are not prevented from allowing an employee who is an in-house
solicitor to represent them. Thus
there may be a disparity in power.
Centre for Human Rights Law noted that unrepresented complainants may be
deterred from taking action in federal anti-discrimination matters because of
the disparity of resources and the risk of costs orders against them:
Many claims are brought against
governments and large companies, who will have access to effectively unlimited
resources in defending a claim, thus incurring a substantial legal bill which a losing complainant will be ordered to pay. This is too big a risk for most unrepresented
complainants, and operates as a very substantial deterrent to any litigation.
Advocacy Tasmania also pointed criticised the prohibition on
legal representation where involuntary detention may result:
Tasmanians who can be deprived of their liberty and
involuntarily detained in mental health facilities and drug and alcohol
facilities for period blocks of six months are not provided with representation
but a person before the magistrates court with a likelihood of a two month
prison sentence can receive representation. This is unjust and inequitable.
Unavailability of legal practitioners
Community Legal Centres Association (WA) Inc commented that the lack of available
lawyers in regional and rural areas may force litigants to represent themselves:
Many people are unable to access legal advice in their own
regional centre or town due to the fact that the legal aid services has already
advised the other person to the legal matter. The options for advice might be
to access a legal aid service over the telephone, or travel a significant
distance to seek legal advice. This situation regarding conflict of interest
can also lead to one person to a legal matter being represented, and the other
having to self-represent.
These issues are discussed in more detail in Chapter 6.
Committee notes that despite its 1998 recommendation that the Government
collect, analyse and publish data on the levels of self-representation in
courts and tribunals, there is still a lack of comprehensive data.
Consequently, it cannot be proven that changes to legal aid funding in 1997 are
directly and solely responsible for the increase in numbers of self-represented
there is much anecdotal evidence, both during this inquiry and the reports of
the ALRC and the Family Law Council, to suggest that lack of access to legal
aid is at least one of the major reasons for increased numbers of
Committee commends those courts and tribunals that have adopted the ALRCs
recommendation to report publicly on the numbers of self-represented litigants.
However, the Committee is concerned that some courts and tribunals have not
done so and considers it to be of the utmost importance that they do, in order
to allow for a more comprehensive assessment of the extent and impact of
self-represented litigants on the legal system.
The Committee recommends that all Federal courts and
tribunals should report publicly on the numbers of self-represented litigants
and their matter types, and urges state and territory courts to do the same.
Effects of self-representation on access to justice
submissions argued that self-represented litigants adversely affect access to
justice by increasing the costs of litigation and impairing the efficient and
effective administration of justice. For example, the National Council of
Single Mothers and their Children Inc cited 1999 Family Court research which reported
views amongst judges, judicial registrars and registrars that:
81 percent of the self-represented litigants
would have benefited from representation;
75 percent of represented litigants would have
benefited by the other party being represented; and
80 percent of child interest cases would have
benefited from representation.
In the Third Report, the Committee commented
that unrepresented litigants imposed significant additional costs on the
courts and other parties in the proceedings, quite apart from whatever
injustice they did to their own cause. The
Committee recommended that the Government examine and report on whether savings
made by denying legal aid are outweighed by the extra costs imposed on the
public purse by unrepresented litigants.
response the Government stated that it was considering the findings of two
reports published after the Committees Third
Report, the Family Law Councils Litigants
in Person and the ALRC's Managing
Economic cost not quantified
reports on which the Government response relied have not quantified the
economic costs of self-representation. The ALRC commented in 2000 that any
additional costs caused by self-representation 'remain unsubstantiated and
unquantified'.  The ALRC
suggested that further research may actually find that self-represented
litigants impose fewer demands on lawyers for opposing parties or on judges,
but noted judicial statements about the difficulties courts face where parties
Similarly, the Family Law Council did not quantify the economic effect of
self-represented litigants, but commented generally that in the Family Court they
increased costs for the courts, other litigants and pro bono lawyers.
inquiry, submissions to the Committee generally argued that self-represented
litigants increased the costs of litigation by increasing the time spent by
judicial officers, registry staff and opposing counsel on their cases, and the possible
increased likelihood of further litigation.
the Committee found little evidence of attempts to quantify the costs. One
submission from Westside Community Lawyers Inc estimated the additional costs
of self-represented litigants in the South Australian court system at $4.8
Demand on court and registry time
In its Third Report, the Committee observed
that self-represented litigants generally require more assistance from registry
staff and often take more hours of court time to conduct their case. The
Committee commented that the argument that extra costs imposed on the public
purse due to the denial of legal aid outweigh the costs that would have been
incurred in providing that aid was highly plausible, but there was no
empirical study to confirm that argument.
research by Dewar, Smith and Banks confirmed that
self-represented litigants are more demanding of the courts time. They
commented that judicial officers may experience frustration in dealing with
someone with lack of legal or procedural knowledge. The Chief
Justice of the Family Court of Australia gave the Committee an example of a
recent case where extra assistance for one party was needed in court:
quite often the unrepresented litigant just has no hope of
complying with the procedural requirements. I was sitting on a case in Cairns a
couple of weeks ago in which the father had not sworn an affidavithe had been
given numerous opportunities to do so; obviously English was not his first
language and he did not attempt to do itand I thought the only thing to do was
get on with it. I simply called him, took the evidence verbally That is quite
a difficult issue.
Federal Court reported that unrepresented parties 'often take more time to
present their appeal than those who are represented'. The High
Court has recently estimated 'around 50 per cent of the time of the Registry staff
is taken up with self-represented litigants'.
Other parties costs
has shown strong indications that a self-represented litigant also often wastes
the other partys time. Submissions
to this inquiry stated that lawyers found communicating with self-represented
litigants difficult on more complex issues and that judges tended to rely more
heavily on the legal representatives present.
Committee is disappointed that the Government has not commissioned research to
quantify the economic costs to the justice system of self-represented
litigants. The ALRC and the Family Law Council reports to which the Government
response referred do not quantify the economic effects of self-represented
Committee is disappointed that the Government continues to avoid collecting
empirical data on a fundamental issue in the legal aid funding debate: whether
the costs saved by reducing legal aid funding are outweighed by the costs
potentially caused by an increasing number of self-represented litigants.
Certainly there is strong anecdotal evidence during this inquiry, as well as
research, to suggest that such might be the case, particularly in complex
matters and in higher level courts.
The Committee recommends that the Commonwealth and
state/territory governments commission research to quantify the economic
effects that self-represented litigants have on the federal justice system,
including the costs these litigants impose on courts and tribunals, other
litigants, community legal centres and the social welfare system.
Effective administration of justice
to the Committee argued that self-representative litigants impaired the
effective administration of justice by:
potentially compromising the role of the
being less able to assess the merits of their
case objectively, or to enforce their rights;
being less able to adduce relevant evidence and
provide cogent argument;
being less able to comply with accepted
procedure without direction;
forcing opposing counsel to act contrary to their
own clients best interests; and
increasing the likelihood of appeal.
Compromising the judicial role
judiciary must limit the assistance it gives to litigants to procedural
matters. Dispute resolution in the courts relies on the adversarial system, a
process in which each side, equally matched, presents its case in a
non-interventionist judicial officer.
involving a self-represented litigant judicial officers may need to take a more
active role, one which could give rise to perceptions of impartiality:
When only one party is unrepresented, a primary difficulty can
be maintaining the perception of impartiality. Judges need to ensure that all
relevant evidence is heard, relevant questions asked of witnesses, and that the
unrepresented party knows and enforces their procedural rights. The represented party may see such judicial
intervention as partisan, and judges must ensure they do not apply different
rules to unrepresented parties. Where
both parties are unrepresented, the parties may be difficult to control, the
case disorganised and wrongly construed. The difficulties associated with lack
of representation have been set down in several judgments and reports on the
Family Court, the Full Court in Johnson v Johnson (1997) 139 FLR 384 laid down guidelines on the assistance that the trial judge should
give to self-represented litigants. These are to: outline the procedures of the
trial; assist by taking basic information from witnesses; explain the possible
effect of requests for changes to normal procedure such as calling witnesses
out of turn, and the party's right to object; advise the party of his or her
right to object to inadmissible material; inform the party of his or her right
to claim privilege if this may exist; to ensure as far as possible that a level
playing field is maintained at all times; and to attempt to clarify the
substance of the submissions of unrepresented parties.
the research by Dewar, Smith and Banks on self-represented litigants
in the Family Court concluded that the guidelines in Johnson v Johnson were often seen as involving a conflict, or
at best being hard to fit into the realities of the Court. This research also concluded that:
Judicial officers and registry staff experience high levels of
stress and frustration when dealing with litigants in person, because of the
difficulty of holding a fair balance between the represented and unrepresented
The perceived tension between judicial impartiality and the need
to help litigants in person meant that a number of judges and Registrars
thought that their role as presiding officer was compromised by the presence of
a litigant in person.
Court of Australia told the Committee that the significance of the impacts of
self-represented litigants on the adversarial model of justice was
The Family Court emphasises case management and primary dispute
resolution techniques, and plays a more active role in proceedings involving
children than it does when determining financial disputes. This can reduce some
of the obligations and responsibilities placed on litigants in a strictly
adversarial system, but a number of access to justice issues and concerns about
a 'level playing field' remain.
Objectivity in assessing own case
and non-enforcement of rights
Court has stated:
an unrepresented accused is always at a disadvantage not merely
because they might lack sufficient knowledge or skills but because they can not
assess their own case with the dispassionate objectivity as the crown.
Law Council stated that:
Unrepresented litigants are often at a particular disadvantage
in family law as direct emotional involvement in proceedings can impede the
ability to reason clearly and objectively, and can also provide barriers to
to the Committee echoed these views, arguing that self-represented litigants
lack of awareness of their rights and emotional attachment to their case can
lead to them not enforcing their rights, taking
or pursuing unnecessary litigation.
Quality of evidence and argument
adversarial process relies on competing litigants informing the decision-maker
of all relevant facts and arguments. As the Kingsford Legal Centre observed:
In many cases, clients really cannot properly put their
submissions before the court without assistance from a lawyer due to language,
comprehension and fear of the court system.
Justice of the Family Court of Australia expressed similar views:
quite often the unrepresented litigant just has no hope of
complying with the procedural requirements When you go to the actual courtroom
situation it depends so much on the capacity of the individual concerned.
So often people are inarticulate; so often they are nervous.
They may be fearful of the other party or they may be so emotionally engaged
that they really cannot sit back and take an objective viewpoint. Indeed, you
often find, where people are unrepresented, that the same buttons that they have
been able to press during their relationship are pressed again in the course of
the courtroom situation and you get quite confronting situations between the
parties that are not of great help to the person determining the issue, so it
is a real problem. Of course, once you put English as a second language into
the context, it becomes worse. You may have someone who is not at the point of
normally needing an interpreter but who really is not able to grasp the
concepts as readily as someone who is a native English speaker, so there are a
number of problems there. We supply interpreters where necessary but again that
is of limited value if the person is not able to present their case.
Court's submission observed that in family law matters:
Self representation is almost inevitably associated with parties
who have poor knowledge of the substantive and procedural law. In disputes
involving children, where the parties must present their cases in terms which
best promote childrens best interests recent research indicates that
[self-represented litigants] find this difficult to do.
The National Council of Single Mothers and their Children submitted that
the consequences for children in family law matters was significant:
The National Council of
Single Mothers and their Children continues daily to hear of situations where
parents are unrepresented in very serious proceedings in the Family Court,
where they believe their children are exposed to serious harm and they
themselves are exposed to serious harm. Their capacity to do anything about
that using the legal processes of the Family Court is very limited because they do
not understand the legal proceedings. They do not understand how to get
evidence into the court, how to subpoena evidence and get it produced. They do
not know how to require certain procedures that would inform the court about
the childs safety. The consequence is that the childrenor any target of
violence continue to be exposed to serious harm. That is happening every day
in the Family Court. It would be better for those people if they could at least
have access to a lawyer who understood the proceedings and could help them.
also argued that inappropriate decisions can be made where one side is unable
to put forward effectively all relevant evidence and argument. As Advocacy
Tasmania explained in relation to criminal law matters where only the most
serious charges will qualify a person for legal assistance:
This means that persons facing the courts on lesser offences are
often unrepresented, poorly represented by themselves or plead guilty to put an
end to the matter whether they consider themselves innocent or guilty.
The consequences often are;
criminalisation of the disadvantaged
of a financially burdening heavy fine
and family stresses
with a prior record
loss of a just outcome through
technicalities such as improper documentation
loss of employment
loss of good
character and standing
loss of self esteem through failure to
understand legal and judicial requirements
to unfamiliar legalisms.
National Network of Womens Legal Services commented that inappropriate consent
orders in family law matters lead to lengthy and intractable litigation. The
Network referred to research which examined 100 enforcement applications in
1999: 88 applications were to enforce a consent order, with 32 cases resulting
in more restrictive contact arrangements. 
Counsel acting to disadvantage of
practitioner has an overriding duty to the court which may require him or her
to act more favourably to an opposing litigant who is unrepresented than he or
she otherwise would.
For example, counsel has a duty to bring the courts attention authorities
favourable to and evidence essential to the unrepresented litigants case.
Dewar, Smith and Banks reported that judges,
judicial registrars and registrars believed that in 41 per cent of family law cases
where one party was self-represented the other party was disadvantaged.
Minimising the adverse effects of self-represented litigants
Committee heard many suggestions to minimise the adverse effects that
self-represented litigants have on the justice system. These included
re-prioritising and targeting legal aid funding (discussed in Chapter 2) and
increased use of pro bono schemes (discussed in Chapter 9).
suggestions discussed in more detail below are:
improving community information;
expanding the duty solicitor scheme;
unbundling legal services;
increasing the use of lay assistance; and
initiatives by the courts.
Improving community information
litigants have access to a range of legal information to assist them - for
example, self-help kits, telephone advisory services and websites. This
assistance is provided not only by community legal centres, legal aid
commissions and law societies, but also various courts and tribunals.
Federal Magistrates Court, for example, has employed a project officer to
develop programs relevant to people representing themselves, as well as
establishing a pro bono scheme similar to that operating in the Federal Court. The Family
Court has also recently reviewed information about court processes and procedures
and amongst other measures has developed new brochures and launched a website
with a step-by-step guide to court proceedings. As the Chief Justice
of the Family Court of Australia explained:
it always seems to me
that you can help a self-represented litigant a lot by simplifying your
procedures, which we are trying to do, and by giving them more information
about how the system works. Again, we are trying to do that. We have a web site
which has an interactive capacity with a lot of information on it and people
are finding that very helpful. We also have pamphlets. For example, we recently
put out a Family Court book in Chinese and Arabic.
to this inquiry were divided on the benefits of improving the provision of
legal information to self-represented litigants.
argued that such information goes some way to mitigate vulnerability by
equipping self-represented litigants to run their case better. However,
critics pointed out that disadvantaged people are often unable to obtain or
understand the information, let alone apply it to their specific circumstances. For
example, Professors Rosemary Hunter and Jeff Giddings commented that:
Research on self-help services suggests that only some litigants
in person are sufficiently educated and empowered to make effective use of such
assistance (Giddings and Robertson, 2002b, 2003b) We believe that there may be
a critical difference in the value of self-help services depending on whether
the consumer has freely chosen to be a self-helper, or whether the choice is
thrust upon them. Self-help services are likely to be more successful when
self-representation is freely chosen, but much less helpful to disadvantaged
people for whom these services are a poor and often the only substitute for
the services of experts (Robertson and Giddings, 2001; Giddings an Robertson,
Further, it seems clear that the provision of generic legal
information on its own is of limited use to consumers. It makes many
assumptions about the capacity of non-experts to interpret and deploy legal
data in a legally meaningful way.
pointed to a review commissioned by Legal Aid Queensland on the provision of services by
video-conferencing. The review found that these services needed to be
supplemented with face to face meetings and recommended that circuit solicitors
be used for this purpose. The
National Network of Womens Legal Services also pointed to USA evaluations which generally concluded that
legal information services do not lead to the favourable resolution of legal
Mr Mark Woods on behalf of the Law Institute Victoria supported the provision of information and
training in relation to simple matters, denying that it was a form of
Victoria Legal Aid have
for some time run excellent programs on divorce applications, traffic
prosecutions and those sorts of cases where the ordinary paying member of the
public would not necessarily decide they need a solicitor but what they do need
is some assistance to understand what the hell is going on in the forum they
are going to find themselves in. The programs are hugely popular and the people
who give the instruction are well regarded. So people come to court in
circumstances where they would not ordinarily need to go to the expense of a
lawyer and they are able to properly present their case. They can understand
the terminology that is used, the practice that is going to go on, the limits
to what they can say in court and all those sorts of things. That obviously
meets an unmet need, and it is crucial that those sorts of programs continue
and indeed flourish.
Mr Woods stated that he believed
Victoria Legal Aid would like to expand those programs but ' they simply do not
have the money'. However, he argued
that such matters must be distinguished from more complex matters:
Those cases should be
contrasted with the sort of litigation for which an ordinary member of the
publicwho could afford itwould in fact engage a lawyer. Justice John Faulks
of the Family Court, who has chaired in person the courts inquiry into
litigants, has come to the conclusion that you have either got to get the
person a lawyer, make them a lawyer or change the system, and no amount of
instruction at a particular point in time in the law and the legal process will
equip a person to properly litigate a family law matter to the nth degree.
Committee believes that moves to simplify routine court processes and
procedures and to improve public knowledge of such matters should be applauded.
However, undue reliance on legal information services is ill-conceived without
ongoing evaluation of the extent to which they actually assist self-represented
litigants in resolving their matters. Such evaluation must focus on the extent
to which they contribute to resolution of the legal problem and not merely the
users satisfaction with those services.
The Committee recommends that the Commonwealth
Government fund and publish an evaluation of the legal information services
that it funds, in order to determine the extent to which those services assist
in resolving self-represented litigants legal problems.
The Committee urges providers of legal information
services to evaluate the contribution that those services make in resolving
self-represented litigants legal problems.
Expanded duty lawyer schemes
solicitor schemes operate in some courts to provide advice to self-represented
litigants on their matters. The Committee heard different views on the merits of
expanding such schemes.
Legal Aid Queensland, in supporting the duty solicitor scheme,
commented that self-represented litigants were better able to run their case
where a duty solicitor had assisted. The PILCH
commented that duty solicitor schemes may alleviate problems with inadequate
pleadings and preparation of evidence. The Committee
also notes the Federal Magistrates Courts description of the duty solicitor
scheme as an essential adjunct to efficient operation of the Court. The
Director of the Legal Services Commission of South Australia, Mr Hamish Gilmore, told the Committee:
There is an urgent need
for the establishment of a duty lawyer advice scheme to operate in every family
court registry and all magistrates courts. The number of unrepresented
litigants in both the magistrates court and the Family Court is resulting in
highly inefficient and potentially inequitable court proceedings, with court
delays for everyone being inevitable.
Aid Commission of NSW stated that in August 2002 it had established a pilot
duty solicitor scheme at the Parramatta Family Court and Federal Magistrates
Service complex. A pilot at Newcastle was also commencing.
The aim of these services is to assist a client on a particular
day at court in drafting simple court documentation, assist in a simple court
appearance, assist in negotiating a settlement of the matter if possible and/or
refer the client to appropriate services.
This can include alternate dispute
resolution, counselling, and referral to a private practitioner or assistance
with a legal aid application for continued representation by LACNSW.
The scheme is quickly becoming a necessity, as demonstrated by
the large numbers of matters that are being resolved on a final basis through
the service. For many of those assisted,
it also avoids all the associated personal cost and stress associated with
ongoing litigation and saves the Court both time and cost.
Northern Territory Legal Aid Commission stated that it was considering
implementing a duty solicitor scheme, but that potential conflicts of interest
may make it hard to identify suitable lawyers to advise self-represented
limited resources, duty solicitor schemes cannot assist all self-represented
litigants. Availability is often restricted, for example, to only those accused
who are likely to be imprisoned if convicted. The Kingsford Legal Centre argued
that the decision as to who should receive assistance should be left to the
duty solicitor, as he or she would be best placed to determine which people could
not adequately represent themselves.
submissions argued for increased funding to enable duty solicitors to represent
all matters at first instance and all family law cases. However, the
Legal Services Commission of South Australia noted that its duty solicitor
scheme would need to be greatly expanded to advise all clients on their first
occasion before the Magistrates Court. Of the 29,065 cases before the South
Australian Magistrates Court in 2001, 16,579 involved self-represented
litigants at some stage in the proceedings.
submissions argued that reliance on the duty solicitor scheme to fill the gaps
in legal aid funding was not a satisfactory solution. Generally, their criticisms related to the
lack of time that duty solicitors had to prepare their casessome submissions
cited five minutesand the claim that because duty solicitors only assist with
guilty pleas, pressure is therefore placed on self-represented litigants to
Law Society observed that the rates for duty solicitors are significantly below
market rates. This has two effects: junior solicitors with limited experience
fill those positions and solicitors can assist clients with very little of
their case preparation or negotiations.
Committee considers that an expanded duty solicitor scheme would provide
benefits to the justice system by assisting self-represented litigants to
prepare their evidence better and narrow the issues in dispute. However, a duty
solicitor scheme which merely performs a role as a mouthpiece, with solicitors
consulted only minutes before the matter is heard, will not adequately address
the problems raised by lack of legal representation.
As discussed in Chapter 6, the Committee considers that
the duty lawyer scheme suggested by the Legal Services Commission of SA in
relation to rural, regional and remote areas could usefully be adopted in all
states and territories. The Committee believes that the Commonwealth Government
has a fundamental responsibility to lead by example in this area and to assist
with the provision of funding to the LACs for a duty lawyer scheme. It would
also be appropriate for the state/territory governments to contribute funding
to such a scheme.
The Committee recommends that the Commonwealth
Government and the state/territory governments provide funding to establish a
comprehensive duty solicitor scheme in all states and territories of Australia.
The scheme should offer, at the very least, a duty solicitor capacity in courts
of first instance (criminal, civil and family) and should provide legal advice
and representation on all guilty pleas, not guilty pleas in appropriate
matters, adjournments and bail applications, and assistance for
self-represented litigants to prepare their evidence and narrow the issues in
Unbundling legal services
legal services refers to giving legal assistance and support at various stages
of proceedings without providing full legal representation. As the ALRC
Clients often prepare their own documents with the assistance
and oversight of lawyers, gather their own evidence and appear for themselves
at interlocutory case events. Such
clients are more likely to reserve their limited funds for representation at
the hearing if this becomes necessary.
Court of Australia described the potential advantage of unbundling:
Limited legal assistance can then be applied most effectively
and strategically Availability of 'unbundled' services would increase access
to advice and possibly targeted representation [for self-represented
there are concerns about unbundling within the legal community. The Shoalcoast
Community Legal Centre highlighted the following:
- professional legal
liability issues. Solicitors providing such services do not have full carriage
and control of a legal matter and could expose themselves to the risk of a
professional negligence where a client is unhappy with the ultimate outcome of
- Ethical and
Statutory Legal obligations on practitioners which do not currently recognise
the concept of unbundled legal services. Lawyers have a duty to act in the best
interests of their clients and under the NSW Legal Professional Act and the
Civil Liability Act, a solicitor or barrister must not act for a client if
there are not reasonable prospects of success. Such obligations may be
difficult to ascertain and fulfil in the provision of limited or discrete task
Court referred to possible solutions explored by Professor Dewar, including amendment of lawyers' ethical rules and statutory immunity
for work not covered by a retainer. The Attorney-General's Department is said to
be 'actively considering' these matters.
Shoalcoast Community Legal Centre also referred to concerns about access to
justice and the quality of legal services:
Unbundled and self-help services are more suited to simple
and/or standard form documents and discrete areas of work that can be completed
Moreover, we believe they are rarely suitable to most CLC
clients who have difficulty in dealing with the legal system or self
representing due to such factors as language and literacy skills, limited
education and analytical skills and lack of resources to access such things at
library research facilities and the internet etc. Some clients are facing
particularly emotional issues concerning family law and domestic violence and
need ongoing support to deal with the legal system. In our adversarial system
of litigation, full service representation is still necessary for litigants to
interpret and manage legal data and to properly adduce evidence.
jurisdictions specifically allow lay representatives to conduct matters. In others,
courts have the discretion to allow a McKenzie friend,
that is, a lay person to assist an unrepresented litigant in presenting his or
A McKenzie friend has no rights as an advocate or in
relation to the litigation, and may be excluded by the court. Applications
for such assistance tend not to be received favourably if the litigant has not
applied for or been refused legal aid.
this inquiry there was some criticism of reliance on these schemes. For
example, the Fitzroy Legal Centre commented that the use of amicus curiae, or
friends of the Court, and limited assistance through duty lawyer schemes were
nothing more than a stop gap and measures of last resort.
Measures taken by federal courts
years various courts have developed strategies both to assist self-represented
litigants and to manage them more effectively.
2002 the Federal Court adopted a Self Represented Litigants Management Plan
that includes various strategies, including improving the collection of
information; reviewing rules, forms, brochures and guides to ensure they are
clearly written and simple to use; providing further staff training on dealing
with self-represented litigants; and improving the rules and practices in
relation to vexatious, frivolous or repeat litigants.
throughout this chapter, the Family Court of Australia has also devoted
considerable time and resources to examining the needs of self-represented
litigants and the measures that might assist them. As discussed in Chapter 4, the
Chief Justice of the Family Court informed the Committee of a new trial that
has been commenced in Parramatta and Sydney 'to experiment with a less adversarial method
of conducting proceedings':
That is not just driven by the unrepresented litigants; that is
driven by the desirability of examining the way we conduct proceedings anyway
to see if there are better ways of doing it. We have opened in Parramatta
and Sydney a pilot which involves
this less adversarial process. It started last week [March 2004]. Just to
explain it briefly, it is done by consent; no-one is forced into it. If they
agree upon it, it gives the judge much greater control of the way the case is
conducted. The judge determines the issues and determines what evidence he or
she wishes to hear, in consultation with the parties. The judge will, where
necessary, direct that other evidence be obtained that parties may not have
sought to call before the court, so it is a more inquisitorial process which
has really borrowed to some extent from those in Germany and Francemore so
Germany. It does not exclude lawyers; in fact, we encourage lawyers to be
involved. It is in its early days, because it has only been running for a week,
but we have had about six references in Sydney
and three in Parramatta. Most of
them have been represented, so it suggests that there is a take-up by the
profession, which I find heartening in the sense that this means the project
will have a better chance of working.
Justice told the Committee that Professor Hunter would be evaluating the project based on the first 100 cases but that
because of the take-up for the program to date, that figure might be revised.
There is much
evidence to demonstrate a strong link between restrictions on legal aid funding
and the growing numbers of self-represented litigants. The Committee is
concerned about this increase and the impact it may have on the administration
of justice. The Committee is also disappointed that the Commonwealth Government
has not quantified the effect that self-represented litigants have on the
administration of justice and whether this cost is outweighed by savings
created by the limits imposed on legal aid funding.
considers the lack of empirical evidence on numbers of self-represented
litigants, their matter types, their needs and the costs they add to the
administration of justice is unacceptable. Effective policy development is
impaired without a clear objective understanding of the areas of need.
Committee urges governments to reconsider their commitment to legal aid funding
in light of the true economic effects and adverse impact on the administration
of justice that self-represented litigants impose.