Dealing with Unrepresented Litigants. NSW Bar Course. 17 May Practical tips for barristers page NSW Bar Guidelines page 15

Transcription

1 1 Dealing with Unrepresented Litigants NSW Bar Course 17 May 2010 Introduction and some statistics page 1 Some judicial perspectives page 5 Commentary upon the extent of the judicial duty page 8 Practical tips for barristers page NSW Bar Guidelines page 15 Conclusion page 17 Introduction and some statistics In preparing for this talk today, I have sought to find a method that would allow for a fairly dense area of the law to be discussed with informality and in a non-turgid way. I have looked at the available statistics as to the actual numbers of unrepresented litigants (called in this paper self represented litigants ) filing process in our courts and tribunals, the challenges thrown up to judicial officers deciding their cases and the limits placed upon them in the exercise of the judicial function and how we, as barristers, can better navigate cases in which the self represented litigant is our opponent. As barristers, whose role is to fulfil our obligations to the Court in conformity with the NSW Bar Rules and to represent the interests of our clients, we all immediately accept that dealing with selfrepresented litigants is not something that we would seek to do. I anticipate that our preference would be to face an opponent who speaks the same language, is interested to narrow the real issues and to provide assistance to the Court efficiently, expeditiously and in the language of our profession. But that preference is one that is going to be increasingly subjected to upset with the increasing incidence of self-represented litigants. Statistics as to self represented litigants are hard to find but by internet search of Annual Reports of the Commonwealth Courts and tribunals, I was surprised to find that the numbers are high. Starting at the top of the Australian judicial hierarchy: 1 The number of (High Court) applications for special leave filed in remained high, with over half of the applications filed by self-represented applicants. The proportion of applications filed by self-represented litigants which has increased from 25 per cent in to a high of 67 per cent in Fifty-three per cent of special leave applications were filed by self-represented litigants in Annual Report of the High Court , page 17, in relation to applications for Special Leave

2 2 The proportion of civil special leave applications involving immigration matters was 63 per cent in and 50 per cent during Eighty-nine per cent of the immigration applications filed in were filed by self-represented litigants Sixty-six per cent of the applications for leave or special leave to appeal decided by the Court during were determined on the papers, in accordance with the procedures in the High Court Rules 2004 governing the consideration of applications. Seventy-three per cent of the applications for leave or special leave to appeal decided during were determined on the papers. Turning to the Federal Court of Australia: 2 The Court delivers a wide range of services to self represented litigants. These services have been developed to meet the needs of self represented litigants for information and assistance concerning the Court s practice and procedure. The Court is now able to extract some broad statistics about the number of self represented litigants appearing in the Court as applicants in a matter (respondents are not recorded). In the reporting year, 1,686 applicants were identified as self represented. The majority of those were applicants in Migration Act matters. The Family Court of Australia 3.somewhat surprisingly states that fewer litigants are representing themselves. The percentages where self represented litigants figure in trials and decided cases remain, however, significant. Under the heading Social justice and equity impacts appears the following: The Court uses the proportion of self-represented litigants as one measure of the complexity of its caseload. Self-represented litigants add a layer of complexity because they need more assistance to navigate the court system and require additional help and guidance to abide by the rules. However, the use of legal representation can indicate that the parties consider their matter to be complex and best handled by trained legal representatives. Figures 3.32 and 3.33 show that an increasing proportion of the Court s cases and trials involve legal representation; fewer litigants are representing themselves. In the tables therein depicted for Litgants representing themselves, under the heading Finalized Cases, to it appeared: the proportion of litigants where both parties had representation had increased from 62 percent in to 74 per cent in ; the proportion where neither party had representation had fallen from 13 per cent in to 10 per cent in ; and the proportion where one party had representation had fallen from 25 per cent in to 16 per cent in And for litigants representing themselves in Trials, to : the proportion of litigants where both parties had representation had increased from 51 per cent in to 65 per cent in ; 2 Annual Report of the Federal Court of Australia, , page 35 3 Annual Report of the Family Court of Australia, , pages and 71

3 3 the proportion where neither party had representation had fallen from 12 per cent in to 5 per cent in ; and the proportion where one party had representation had fallen from 37 per cent in to 30 per cent in My internet search of other Commonwealth Tribunals such as the website of the Administrative Appeals Tribunal did not yield self represented statistics but its website linked me to other papers highlighting, inter alia, the Commonwealth s obligation to act as a model litigant in AAT proceedings. Featured was a Centrelink Discussion Paper 4 which recorded that self represented litigants included persons with: 1. cultural and language barriers 2. mental and physical disabilities; 3. location barriers; and 4. our Regulars. The Paper addressed potential review of a decision under s33(1aa) of the Administrative Appeals Tribunal Act 1975 (C th), which provides: In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding. The Discussion Paper expanded this obligation to include acting within the confines of the Commonwealth s obligation to act as a model litigant. Chief among its obligations, relevant to the self represented claimant, would be the Commonwealth s obligation to: (f) (g) (h) (i) not (take) advantage of a claimant who lacks the resources to litigate a legitimate claim; not (rely) on technical defences unless the Commonwealth s or the agency s interests would be prejudiced by the failure to comply with a particular requirement; not (undertake) and (pursue) appeals unless the Commonwealth or the agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest; and (apologise) where the Commonwealth or the agency is aware that it or its lawyers have acted wrongfully or improperly. While the model litigant obligations imposed by s55zf of the Judiciary Act 1903 (C th) and the Legal Services Directions 2005 (C th) bind the Commonwealth in courts and tribunals exercising Commonwealth jurisdiction, they are not applicable to non-commonwealth parties in adversarial litigation in courts in which barristers have occasion to appear. In the latter context, it will be seen that specific Guidelines have been devised by the NSW Bar Association, to which later reference in this paper will be made. 4 The obligation to assist: Model Litigants in AAT Proceedings Self represented litigants dated 26 August 2009 and prepared for the Commonwealth and Centrelink (but expressly disclaiming it represented the views of the Commonwealth, Centrelink or any Department )

4 4 My internet search of NSW Supreme and District Courts was not productive of any similar current statistics concerning self represented litigants. The upshot of the statistics located would appear to make it probable that you will be appearing for a party against a litigant in person in some court or tribunal on a not infrequent basis in the future. I would think that it is in recognition of that prospect that the NSW Bar Association now features this topic as part of its introductory course for new barristers. In my research, I came across a Forum on Self Represented Litigants held in Sydney on 17 September 2004 by the Australian Institute of Judicial Administration and the Federal Court of Australia. 5 The Forum had representatives from all major state and Commonwealth courts from across Australia and New Zealand. The Forum Report contained the opening comment that: The category of self-represented litigants (SRLs) is not a homogenous one. A distinction can be drawn between litigants who are forced to represent themselves (usually because they are unable to afford legal representation) and those who choose to do so, perhaps for a variety of reasons. There has been much discussion in recent years about a small proportion of selfrepresented litigants who may be classified as querulous litigants, that is, litigants whose approach to advancing their cause or matter is irrational or obsessive.. The Forum noted the implication for the administration of justice of increasing numbers of SRLs, the affect on court staff (creating stress and security concerns) and the consequence of lack of representation, some of which are cumulative including: SRLs are likely to have more difficulty in understanding and complying with procedural requirements applying to the preparation of their case, resulting in longer preparation time, more directions hearings and greater judicial supervision in the pretrial process; Hearings tend to take longer, because judges need to take more time in explaining court procedures to SRLs who are sometimes unable (or unwilling) to comprehend and comply with those procedures; SRLs are more likely to have difficulty in presenting their case in an effective way and in a way that complies with the rules of evidence; In jury trials it is said that there is an increased risk of mistrial, as a result of SRLs difficulty in understanding and complying with rules of evidence and procedure. The Forum also noted that a significant number of participants indicated that their court or tribunal kept no, or only minimal data, in relation to SRLs and where data was collected, less than half the participating courts and tribunals record the number of SRLs and only a very few kept records of the types of matters in which SRLs are involved with noted inconsistency in recording/entry of data such that statistics generated were unreliable. There was general agreement that courts should collect data on SRLs. 6 Among the matters discussed were the following 7 : Many SRLs want a hearing, they find it valuable and the court has to be able to accommodate that; ibid, page 6 7 ibid, pages 11-12

5 5 The major difficulty in a hearing is the inability of an SRL to identify issues clearly and find nuggets amongst illogical badly structured material; Particular difficulties are found in dealing with SRLs in relation to expert evidence; There are particular difficulties in cross examination eg. How do you put the rule in Brown v Dunn? One possibility is to get both parties to give evidence in chief first; It may be necessary for the bench to exercise greater control over the order and manner of the presentation of evidence by SRLs than would normally be the case; Querulous litigants pose particular difficulties; Closings in jury trials are a particular area of difficulty for SRLs where there may be risk of inappropriate things being said before the jury which can result in a mistrial; The need to prepare the unrepresented person for the hearing (suggestions include an SRL kit or written guidelines); There is a need to be clear about labelling people as vexatious or querulous and the terms should not be applied lightly; The power to declare someone a vexatious litigant is the ultimate point of control; Another strategy is for the court to limit interlocutory procedures so there is less opportunity for SRLs to abuse the process. On the topic of Judicial Education 8 was noted: Nearly half of the summaries received did not address this issue, or reported that there was no judicial education program relating to SRLs in their court or tribunal. Suffice to say, the Forum identified much to be done in the area of self represented litigants. It would be interesting to know the current status of its deliberations on the topic. We can observe that many of the concerns outlined in 2004 remain problematic today for judicial officers. Brief mention ought be made here of the listing of persons declared to be vexatious litigants on the NSW Supreme Court s website. Vexatious litigants is a discrete topic and not the province of this paper but accessing the list and reading the judgments detailing the various circumstances under which the vexatious litigant orders came to be made will be instructive. Some judicial perspectives In understanding how we, as barristers, ought deal with self represented litigants, it is useful to consider the challenge posed by the self represented litigant from the standpoint of the judicial officer hearing and deciding the case. As our paramount duty is to the court, we need to particularly understand the demands placed upon the judges. One of the touchstones for assistance provided to self represented litigants by the AAT paper referred to above was its reference to the Full Federal Court of Australia decision of Minogue v Human Rights and Equal Opportunity Commissioner [1999] FCA 85, indicating that what was required in the Courts: 8 iibid, page 17

6 6 depended on the litigant, the nature of the case (eg criminal versus civil) and the self represented litigant s intelligence and understanding; (was that) a judge should not intervene so as to be unable to maintain a position of neutrality; and should diminish the disadvantage of being unrepresented, but not so as to provide a positive advantage. It was accepted that the Court must explain matters and be lenient in standard of compliance but this does not amount to a Judge s responsibility to formulate and conduct the appellant s case for them. A judge should continue to see that rules are obeyed with proper exceptions. Minogue is interesting both for its facts 9 and for its review of the authorities as to the primary judge s duty to the unrepresented litigant. Prime in that review was the High Court majority s observation in Cacia v Hanes (1994) 179 CLR 403, at 415: Whilst the right of a litigant to appear is fundamental, it would be disregarding the obvious to fail to recognize that the presence of litigants in person in increasing numbers is creating a problem for the courts (42). 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 to the court administration or the court itself. Even so, litigation involving a litigant in person is usually less effectively conducted and tends to be prolonged (43).The costs of legal representation for the opposing litigant are increased and the drain upon court resources is considerable. On the other hand, there is no doubt that the inability of a litigant in person to obtain recompense for time spent in the conduct of successful litigation, must on occasions be a significant deterrent to the exercise of the right to come to court in person (44). The High Court was there considering a successful litigant in person s application to be recompensed for his costs, the Court holding that such entitlement extended only to money paid or liabilities incurred for professional legal services and not to time spent by a litigant in person who was not a lawyer preparing and conducting his case. The High Court also observed in Neil v Nott (1994) 121 ALR 148. (A) frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. It is generally agreed that the principles governing the role of the judge in civil proceedings involving an unrepresented litigant have been aptly stated in Rajski v Scitec Corporation Pty Ltd, Butterworths unreported judgments, 16 June 1986, NSW CA where Samuels JA said (at 14): In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer 9 Minogue was a prisoner serving a minimum 30 year sentence in Barwon Jail in Victoria for the murder of a policewoman and was seeking relief from HREOC alleging that the prison authorities had impeded his preparation of his petition for mercy by limiting his access to legal and computer resources, thereby breaching obligations allegedly imposed on domestic law by the International Covenant on Civil and Political Rights ( ICCPR ). The application was dismissed at first instance and on appeal to the Full Federal Court of Australia

7 7 upon a litigant in person a positive advantage over the represented opponent..at all events, the absence of legal representation on one side ought not induce a court to deprive the other side of one jot of its lawful entitlement An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent. In the same decision, Mahoney JA made the following observation (at 27): Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or put forward arguments which otherwise he might have done. Following the High Court s decision in Dietrich s case in 1992 (Dietrich v R, (1992) 177 CLR 292), the concept of self-representation in the criminal context where the accused was unable to secure legal representation, underwent review. The majority finding was to the effect that the trial of a serious offence should proceed without representation in exceptional cases only and in all other cases an adjournment should be granted in order that representation can be obtained. Deane J said there: that neither the prosecutor nor judge can or should provide advice, guidance and representation which an accused must ordinarily have for proper representation of the case it is not part of the function of the prosecutor or judge to advise an accused about legal issues or evidence or inquiries that ought to be made about possible defences or consequences in cross examination. Toohey J pointed out that a trial judge can be of only limited assistance where the match is not even and that a prosecutor needs to tread carefully with an accused in order to avoid compromising the prosecutorial role. The exacting nature of the task imposed upon the judge in civil and criminal trials has been well summed up by Bell J of the Supreme Court of Victoria in Tomasevic v Travaglini & Anor [2007] VSC 337 ( ) [139]-[141] where his Honour said: Every judge in every trial, be it criminal or civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected. Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of great disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to Justice. The matters regarding which the judge must assist a self-represented litigants are not limited. The judge must give such assistance as is necessary to ensure a fair trial. The proper scope

8 8 of the assistance depends on the particular litigant and the nature of the case. The touchstone is fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. From the Lexis Nexis online service 10 comes the following pithy précis of the burden cast upon the judge: If an applicant is unrepresented, there is imposed on the court a burden to render such assistance as it can reasonably render: Pickering v Chief Executive Officer of Centrelink [2006] FCA 477; Sarkisian v Australian Federal Government [2008] FC 981; Vranic v Secretary, Dept of Education, Employment and Workplace Relations [2009] FCA Although the court cannot be placed in the position where any of the litigants before it perceive it is assisting a litigant in person in a way which compromises the integrity and impartiality of the hearing, some forms of assistance, such as suggestions by the judge that an affidavit be filed, can often be appropriate: Wills v Australian Broadcasting Corporation (2009) 253 ALR 228 per Rares J. The status of an (unrepresented) applicant confers no licence to place to one side or to disregard the procedural requirements imposed by the Rules: SZNFR v Minister for Immigration and Citizenship [2009] FCA 8511 per Flick J. But a degree of latitude must be afforded: Underdown v Secretary, Dept of Education, Employment and Workplace Relations [2009] FCA 965 per McKerracher J. Commentary upon the extent of the judicial duty In November 2003, Justice Shaw of the NSW Supreme Court (as he then was) wrote a paper entitled Self-Represented Litigants in which he noted that with the contraction of Legal Aid funding in particular for migration or refugee cases and for family law cases, there had been an increase in self represented persons to a level of 31 per cent in the Federal Court and something more than 40 per cent in the Family Court of Australia with similar data in relation to the Local Court of NSW 11 and other tribunals. Justice Shaw observed that while the common law had long recognized the right of a litigant in civil or criminal matters to appear for themselves: the difficulties for courts and tribunals are obvious: in the absence of competent legal representation, the tribunal will not get the assistance that it ought to have in relation to questions of fact and law: the unrepresented party is likely to be more emotionally affected by the subject matter of the case when compared to a disinterested practitioner; although some self-represented litigants will be rational and intelligent, there is always the prospect of some person being uncontrolled or undisciplined; the conventional rule of ethics applicable to legal practitioners would not be enforceable; a burden is placed upon the court or tribunal to give some assistance to the unrepresented litigant, especially when the litigant might be faced by a competent legal opponent; and there is the vexed issue as to the extent to which the tribunal can assist the litigant, whilst maintaining its impartiality citing Kim Cull s A Profession Defined by Trust, Vol 40, No 2, Law Society Journal, March 2002, page 60 at 63

9 9 He also referred to a paper by Justice Robert Nicholson of the Federal Court of Australia (2003) 77 ALJ 820 entitled Australian experience with self-represented litigants 12 Nicholson J there stated that the number of cases filed in the Federal Court of Australia involving self represented litigants had increased from 19.5 per cent in 1997/98 to 40.8 per cent in and in the case of the Family Court of Australia, he ventured that the number of cases involving self represented litigants in that court might be as high as 37 percent. While noting the statutory and regulatory provisions grounding the right of any person to proceed in the court in person, he saw that that: set the stage for a conflict in principle in relation to self represented litigants who are not governed by the duties owed to a court by a legal practitioner. It is these duties upon which the operation of the Court system is so highly dependent (including the duty of disclosure, to the Court, avoidance of abuse of court process, to not corrupt the administration of justice and to conduct cases efficiently and expeditiously.) If the number of self represented litigants became substantial, the potential could exist for the non-application on a large scale of the seminal principles upon which the Australian curial system operates. This could impact on the effective operation of the common law courts as we now know them. He saw the central dilemma facing a court as being how far a court can assist a self represented litigant without losing the perception of impartiality so important to the discharge of the judicial function. A related issue is the extent to which duties fall on counsel for a represented litigant to assist the self represented litigant and thus assist the court to progress the litigation There can be no bright line laid down. The principles are that the advice and assistance which the self represented litigant receives from the court should be limited to that which is necessary as to diminish as far as possible the disadvantage which he or she would ordinarily suffer but without thereby conferring a positive advantage over the represented opponent and without disobedience to the applicable rules. What is important is that the court should be careful that there is not a failure to claim rights or an extinguishment of a possible claim...clearly, the scope of the duty of the court to a self represented litigant is determined by the particular circumstances of the case. However, the limits on how far the court may go in providing assistance to a self represented litigant derive from the need to avoid compromise of impartiality or the appearance of partiality and the avoidance of substantive injustice to the other party (See Studdder v King (unreported, SC NSW, McLelland CJ in Eq, 4 June 1993)). He noted with approval the comprehensive compilation of principles applicable to self represented litigants by the Family Court of Australia in In Marriage of Johnson (1997) 139 FLR 384 and In Marriage of F (2001) 161 FLR 189. He also noted with approval the website of the Family Court which stated proactively: Far from a problem that must be addressed, the self represented litigants are increasingly the new reality and all court services and procedures must address them as a permanent, significant and growing user group. In Re F: Litigants in person guidelines (2001) 27 Fam LR 517; FLC , the Full Court of the Family Court of Australia set out nine guidelines relating to cases involving litigants in person, 12 presented to the Fifth Worldwide Common Law Judiciary Conference in Sydney on 10 April 2003

10 10 modifying the guidelines previously set out in In the Marriage of Johnson (1997) 22 Fam LR 141: FLC The Re F guidelines 13 are as follows: 1. A judge should ensure as far as possible that procedural fairness is afforded to all parties whether represented or appearing in order to ensure a fair trial. 2. A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses. 3. A judge should explain to the litigant in person any procedures relevant to the litigation. 4. A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation. 5. If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course. 6. A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise. 7. If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights. 8. A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated: Neil v Nott (1994) 121 ALR 148 at Where the interests of justice and the circumstances of the case require it, a judge may: Draw attention to the law applied by the court in determining issues before it; Question witnesses; Identify applications or submissions which ought to be put to the court; Suggest procedural steps that may be taken by a party; Clarify the particulars of the orders sought be a litigant in person or the bases for such orders. (The above list was not regarded as exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.) The LexisNexis commentary 14 provides: ibid, page 4 of 18

11 11 A breach of these guidelines may result in procedural unfairness, which may in turn require a re-trial: See S v R and the Children s Representative (1999) 24 Fam LR 213; FLC See also In the Marriage of Sadjak (1992) 16 Fam LR 280; (1993) FLC per Nicholson CJ, Nygh and Purdy JJ where the particular needs of litigants whose first language is not English are discussed. See also In the Marriage of Su and Chang (1999) 25 Fam LR 558; FLC (FC). Notwithstanding the guidelines, the Full Court of the Family Court has since held that it is not incumbent on the judge to inform the litigant of the consequences of failure to cross examine or to make tactical decisions on behalf of the litigant in person as to which witnesses it might be useful to cross examine or as to the manner in which they should be cross examined. Nor should the judge offer legal advice to an unrepresented party because it may be unfair or have an appearance of unfairness to the other represented parties. It is considered however: 15 that the judge has a duty to ensure the proceedings do not become protracted especially where a party is unrepresented. Some useful guidance is provided by the Full Court in C and C (1998) 23 Fam LR 491; FLC The following points are especially important: (a) a party s right to challenge evidence by cross-examination has to operate within the broad parameters of s97(3), as determined by the court; (b) in general, the imposition of time limits on a party in the presentation of their case would amount to a breach of natural justice, but the requirements of natural justice may be waived where a party agrees to time limits being imposed, or fails to object to their imposition; (c) a trial judge should be cautious of rejecting apparently outrageous propositions out of hand, because if an appeal court finds some merit in the proposition but no findings in relation to it, then a re-trial may be necessary. Moving away from the Family Court, it has been found in other fora that judges ought inform unrepresented litigants of their rights to diminish the comparative disadvantage in the conduct of the proceedings without thereby conferring on them any advantage over legally represented opponents: MacPherson v R (1981) 147 CLR 512; Rajski v Scitec Corporation Pty Ltd, supra. This responsibility has given rise to the difficulty, on the one hand, of providing necessary assistance to one litigant without generating the appearance or the actual risk of partiality on the other: Titan v Babic (1994) 49 FCR 546 at ALR 455; Re Motion; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at ; Tardy v Secretary Department of Community Service and Health (NSWSC, McLelland J, 9 October 1990, unreported; Re Hunter; Ex parte Webb (FCA, Sheppard J, No 994/96, 19 July 1996, unreported. The proper extent of a judge s assistance and intervention will depend upon each particular case and each particular litigant in terms of the person s intelligence and capacity to understand the effect of his or her conduct: Abram v Bank of New Zealand (1996) ATPR By way of example, the tender of inadmissible evidence may be an occasion where the court should intervene and attribute an objection to the unrepresented party: see NAB v Rusu (1999) 47 NSWLR 309 whereas the court is not required to assist unrepresented litigants formulating questions in admissible form: R v Zorad (1990) 19 NSWLR 91. If a litigant in person is so disadvantaged that they lack competence to conduct their own affairs, the court ought appoint a tutor: Murphy v Doman (2003) 58 NSWLR 51. Other options for judges in courts which operate a pro bono referral scheme will include referral out to a barrister or solicitor for advice and/or, subject to merit being found in the action taken by the self 15

12 12 represented litigant, active representation. The Uniform Civil Procedure Rules provide for such referrals under Part 7 Division 9 (Court appointed referral for legal assistance). It is clear that the utility of such referrals is dependent upon the goodwill and willingness of legal practitioners to take up the load on a pro bono basis. In this respect see the NSW Bar President s call for participation in various pro bono schemes in In Brief dated 18 February (By way of aside, it is generally accepted that greater use of pro bono schemes would assist to decrease the incidence of self represented litigants. But one organization, the Public Interest Clearing House 16 has noted that many of its members have difficulties with referrals through the Federal Court of Australia Order 80 scheme because referrals often involve people who choose to remain self represented and to ignore legal advice and because once the referral is made, the practitioner is locked in even if he or she does not believe the client has a reasonable prospect of success. In a 2009 Victorian Law Reform Commission Report 17 called Helping litigants with problems and hindering problem litigants, one recommendation was for the appointment of special masters to assist self represented litigants in matters of some complexity to supervise matters that would otherwise absorb high amounts of judicial time beyond the proper scope of the judicial role and utilization of limited court resources. It is anticipated that such special masters, being senior legal practitioners, would become involved early and actively providing intervention and/or investigation of issues in dispute with the aim of adopting appropriate case management strategies and early resolution with power to report back to the court as to the future conduct of the matter. There seems real merit in this proposal.) Writing in the Australian Law Journal 18, Justice Ipp (then a judge of the WA Supreme Court) on the topic Judicial Intervention in the Trial Process wrote presciently: A factor currently inducing greater judicial intervention is the unrepresented party, who is becoming more and more prevalent. Citing MacPherson v The Queen (1981) 147 CLR 512, he referred (at page 370) to the court s acceptance that the trial judge should have intervened, of his own motion, by holding a voir dire to determine the admissibility of an alleged confession notwithstanding that the unrepresented accused had not objected to it. Their Honours held that there is no limited category of matters regarding which a judge must advise an unrepresented accused. Further, an unrepresented accused must be given such information as is necessary to enable him to have a fair trial. The judge s duty to an unrepresented party generally arises from the overall responsibility to ensure that proceedings are fair. That responsibility may be said to be a foundation of the judicial right and obligation to intervene, generally. In complex cases, the trial judge has an obligation to advise the unrepresented accused on each of the several issues. In practice, the judge frequently has to interrupt the proceedings to explain issues of law and evidence. It is inevitable that, at the very least, assistance is given. Often the judge will assist an unrepresented party by asking questions of witnesses. There is no obligation on the judge to do so, but particularly when the case of the unrepresented party has some merit and obvious questions have presented themselves but have not been asked, 16 Victorian Law Reform Commission, Civil Justice Review: Report, Chapter 9, page ibid, pages ALJ, 365 and 369

13 13 the judge will, generally, inform the party of the omission to ask the questions or will himself or herself proceed to do so. Despite Justice Ipp s enthusiasm for judicial intervention at appropriate times, the actual experience of judicial activism appears more muted. Two recent decision of the Federal Court of Australia are cases in point: Nipperess v Military Rehabilitations and Compensation Commission (2006) 91 ALD 363 and Kasupene v Minister for Immigration & Citizenship (BC ). Nipperess, a decision of Cowdroy J held, inter alia, that the tribunal below was not bound to address each issue raised before it, but only required to address the issues which are material to the determination of the case, ruling that the evidence in support of a simple aggravation claim was so scant as not to require the tribunal to specifically address the issue in its reasons for decision. Referring to the decisions in Neil v Nott, Minogue v Human Rights and Equal Opportunity Commission and Rajski, Cowdroy J observed at [60]: When an applicant is unrepresented, I do not consider that a tribunal should exclude from its consideration a matter which is raised as a material issue by the evidence because an unrepresented party has agreed to do so, unless it is clear that the unrepresented party understands the implications of confining his or her claim. [61] However..I do not consider that the tribunal failed to consider any material issue. The claim now pressed by the applicant was not a material issue before the tribunal. While it may have been possible for the applicant to have made a claim of the nature which he is now suggesting, it was not a claim which he made to the tribunal nor was it raised as a material issue by the evidence before the tribunal. Accordingly, this ground of appeal must also fail. In the case of Kasupene, which was an immigration appeal decision, Flick J noted at [14] that when appearing before the Tribunal, s39 of the Administrative Appeals Tribunal Act provides that the Tribunal is to ensure that every party..is given a reasonable opportunity to present his..case. The opportunity must be a real and meaningful opportunity and not a hollow shell or an empty gesture..but it is no part of the Tribunal s task to ensure that a party takes the best advantage of that opportunity..neither the Act nor the common law imposes upon the tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled: Sullivan v Department of Transport (1970) 20 ALR 323 at 343 per Deane J. And it is no part of the Tribunal s task to make out an applicant s case for him: cf Abebe v Commonwealth [1999] HCA at [187], 197 CLR 510 at 576 per Gummow and Hayne JJ. [15] Although an unrepresented applicant is relevantly in no different position, both courts and tribunals are conscious of the difficulties confronting unrepresented litigants and are conscious of ensuring that any hearing is fair and just: Rogers v Law Coast Mortgagees Pty Ltd [2002] FCA 181 at [26] per Finn J....[19] Where one of the parties before the Tribunal is unrepresented, as in the present proceedings, the Tribunal is thus not absolved from itself considering the state of the evidence before it when determining the correct or preferable decision. The fact that an unrepresented party may not have advanced evidence peculiarly within his control; and of central relevance to the decision to be made, nor made a submission in respect of such material as is before the tribunal, may make the task of the Tribunal more difficult. In the case of an unrepresented party, the Tribunal will frequently not have the benefit of any guidance being provided by that party. But the task of the Tribunal remains the same..the more important and the more centrally relevant available evidence or an available submission may be to the decision to be made, the greater may be the necessity for the issue to be addressed

14 14 and resolved even if not otherwise addressed by an unrepresented party. Where the line is to be drawn will obviously depend on all of the circumstances of an individual case. [20] But it is not a line to be drawn so as to impose upon the Tribunal any general duty to itself secure evidence which has not otherwise been adduced or any general duty to pursue submissions not otherwise advanced.. [37]..the reasons of the Tribunal in the present proceeding reveal a careful consideration of the evidence that was presented and a careful consideration of the case being advanced by the Applicant. No doubt because the Applicant was unrepresented, no clear submission was advanced that any particular aspect of hardship to the Applicant was a discrete matter which had to be separately addressed and resolved in any manner different to that set forth in the Tribunal s reasons..but no particular piece of evidence could be identified which gave rise to any particular aspect of hardship which was not addressed by the Tribunal in its reasons. Unsurprisingly, this appeal was dismissed. The decision allows us to see how difficult it remains for an unrepresented litigant to succeed in appeals where a lack of evidence or submission in the court or tribunal below has sealed the fate of their appeal. Practical tips for barristers Having considered the difficulties presented to the courts by self represented litigants, it is time to canvass what practical recommendations are out there suggesting how we, as barristers, might seek to minimize the difficulty in presenting our client s case when our opponent is a self represented litigant. The subject is not without attempts to enlighten barristers and I have found two papers in the Bar Library prepared in 1992 and 1999 by fellow barristers which are helpful. The first is a paper prepared for criminal cases involving an unrepresented accused person by Richard Cogswell, then Crown Prosecutor, later NSW Crown Advocate and now NSW District Court judge and Patricia White, Solicitor. 19 The paper makes a number of recommendations. For the sake of brevity and utility, I have included the following extracted and paraphrased recommendations in bullet point format: the expectation is of a high degree of assistance to the unrepresented person and the objective must always be that there be a fair trial; unrepresented litigants should not be given an advantage which is not given to a person who is represented; always keep in mind the transcript which will potentially be read by an appellate court and run the case assuming there will be an appeal; preparation will always be more labour-intensive in such matters because you will be scrupulous in ensuring that the self represented person is provided with all relevant documents with evidence of service being available; consider whether any issues ought be dealt with on the voir dire; ensure copies of all relevant documents and authorities are available to the court and the self represented litigant in order to overcome any delay; confirm arrangements are in place for the self represented litigant to obtain a copy of transcript; be careful not to excite objection in the presentation of evidence by witnesses and anticipate Brown v Dunn deficiencies by your unrepresented opponent; communicate matters in open court ensuring it is recorded on the transcript; 19 ODPP, dated 3 November 1992, entitled Prosecuting a case where there is an unrepresented defendant or accused

15 15 maintain a clear distinction between providing the defendant with appropriate information to ensure a fair trial and acting for that person; avoid familiarity in exchanges with the bench and court officers. In a second article applicable to both civil and criminal contexts in 1999 by Louise Byrne and Craig Leggatt, 20 general principles and recommendations including the following, extracted and reduced by me to bullet points, were advanced: a litigant in person is required to observe the distinction between evidence and submissions in civil proceedings; excessive intervention and assistance by the trial judge may amount to an error of law in civil proceedings and counsel must raise excessive intervention with the trial judge in civil proceedings; the trial judge should not give legal advice to a litigant in person in civil proceedings but can intervene and attribute an objection to evidence to an unrepresented defendant; counsel s paramount duty to the court will require counsel to act at all times to the possible disadvantage of his or her client in civil proceedings; in criminal proceedings i. an accused who elects to appear unrepresented should not expect to be given an advantage which is not given to an accused who is represented; ii. there is no limited category of matters about which a judge must advise an unrepresented accused - the judge must give the unrepresented accused such information and advice as is necessary to ensure a fair trial; iii. the trial judge must recognize there is a distinction between explaining the procedural choices available to the accused and advising as to what decisions ought be made. I commend both papers to you. It can be seen that there are many areas of overlap and practical suggestions reflected in the authorities referred to in this paper. They recognize the fine line that has to be walked by barristers in terms of meeting their paramount duty to assist the court and representing the interests of their clients. The 2001 Guidelines of the New South Wales Bar Association for barristers on dealing with self-represented litigants Before dealing with the NSW Bar Guidelines, I wish to make brief mention of certain of the NSW Solicitors Guidelines. The ones I am keen to emphasise are of general application to all advocates and summarise that in dealing with self represented litigants, solicitor/advocates should deal to the same standard as they would a represented party, should set parameters for so dealing and should advance all points, take all objections and make all submissions reasonably open to them in the advancement of their client s case. Further, they advocate that solicitors ought communicate with the self represented litigant in writing and explain in all dealings with the self represented litigant that they are neither acting for or providing advice to the self represented litigant. 20 Litigants in person procedural and ethical issues for barristers, in the Bar Review,

16 16 Although it is to be hoped that barristers will have the benefit of an instructing solicitor upon whom the obligation to correspond and communicate with the self represented litigant will fall, the importance of maintaining arms length written communication at all times will be obvious. Turning to the NSW Bar guidelines, while some of these guidelines may seem repetitious of matters of procedure already covered and reminiscent of the Family Court s guidelines referred to, many remain of general application to other courts and tribunals. The full Guidelines ought be considered but for the purposes of this talk, I have extracted and abbreviated what I regard as the key guidelines, again in bullet point format, for the sake of brevity: the barrister ought assess the likely impact of the self represented litigant s presentation of his or her case; the barrister must prepare the barrister s client to undergo cross-examination at the hands of the self represented litigant and set out for the client the court s duty to the self represented litigant so that that client has some understanding of the context in which the hearing is to be conducted; the barrister ought be aware of the need for there to be greater documenting of decisions involving the self represented litigant and increased court appearances; the barrister ought act professionally and courteously to counter anger, confusion and frustration (at all times) and when necessary, to turn the other cheek, to avoid confrontation and complaint; the barrister ought accept that the role will be generally more difficult and calls for patience and adaptability; the barrister ought retain objectivity, be tolerant of the litigant in person s attempt to delay or frustrate the final decision and avoid becoming embroiled in personal attacks; the barrister ought deal in advance with procedural aspects before commencement of the hearing paying particular attention to recording all interlocutory orders in place with notification being provided to the self represented litigant as to the consequences of non-compliance in terms of the effect on the court s timetable and costs; the barrister ought ensure that all communications are conducted by open letter so that such correspondence can be tendered if required; as to the anticipation of issues, the barrister ought ensure meticulous preparation to avoid any suggestion of trial by ambush being made by the self represented person; as to service of material in criminal matters, the barrister ought ensure inappropriate material is excluded from material provided to the self represented accused person (such as addresses of the complainant or protected witnesses); in the event a self represented litigant fails to turn up for the hearing, the barrister ought ensure a self-executing procedure is in place so that the Registrar may execute any required documents in the place of the self represented litigant; in any interlocutory proceedings, the barrister ought ensure that copies of all orders made are served together with notification of what action will be sought on the next occasion at court; in relation to any application/s to amend pleadings by the self-represented litigant, the barrister ought ensure that if leave is given, it is upon terms that affidavit/s will be provided to prove the facts upon which the amendments are to be based; as to any adjournment application/s, the barrister ought ensure that opposition to such application/s is approached with care; as to matters arising during the hearing, the paramount consideration is to ensure a fair hearing subject to the barrister drawing the court s attention to relevant issues;