E RICHARDSON, T S OUR DIN AND N WAL LACE
AUSTRALIAN CENTRE FO R COURT AND JUSTICE S YS TEM INNOVATION
(ACCJSI)
MONASH UNIVERSITY
Self-Represented Litigants
Literature Review
SELF-REPRESENTED LITIGANTS
2
SELF-REPRESENTED LITIGANTS
Table of Contents
Executive Summary .............................................................................................................. 7
How to read this Review ........................................................................................ 8
1. Background ........................................................................................................ 9
Introduction ........................................................................................................... 9
Terminology ......................................................................................................... 10
2. Overview of issues raised in the literature ....................................................... 13
Introduction ......................................................................................................... 13
An Increase in SRLs? ............................................................................................. 13
Perceptions about SRLs ........................................................................................ 14
Reasons for self representation ........................................................................... 14
Outcomes of matters involving SRLs and impacts on the judiciary ...................... 17
Programming and policy responses to SRLs including ADR ..............................19
International experiences of SRLs ........................................................................ 20
3. Reports on SRLs ................................................................................................ 22
Introduction ......................................................................................................... 22
What do we know about self represented litigants? ............................................ 24
How many SRLs are there in federal courts and tribunals? .................................. 24
What are the demographic characteristics of SRLs? ............................................ 28
What types of matters are SRLs appearing in? ..................................................... 29
What are the effects or impacts of self-representation? ..................................... 31
On the self represented litigant? ......................................................................... 31
On the opposing (represented) party? ................................................................. 32
On the court or tribunal? ..................................................................................... 32
4. Research gaps .................................................................................................. 34
Introduction .......................................................................................................... 34
Variables which could be recorded and measured............................................... 34
Conclusions .......................................................................................................... 36
Contents
3
SELF-REPRESENTED LITIGANTS
Appendix - References – Select Bibliography ........................................................ 37
4
Contents
SELF-REPRESENTED LITIGANTS
Abbreviations
AAT
Administrative Appeals Tribunal
ABS
Australian Bureau of Statistics
ADR
Alternative Dispute Resolution
AIJA
Australian Institute of Judicial Administration
ALRC
Australian Law Reform Commission
Cth
Commonwealth
IT
Information Technology
NADRAC
National Alternative Dispute Resolution Advisory Committee
SRCLS
Self-Representation Civil Law Service
SRL
Self represented litigant
VLRC
Victorian Law Reform Commission
Contents
5
SELF-REPRESENTED LITIGANTS
Executive Summary
The mapping, exploration and articulation of the population of self represented
litigants in Australia and elsewhere is complicated by inconsistencies in the definition
of what is a self represented litigant (SRL) in the literature. The inconsistencies
appear to be due to the differing motivations and requirements of data collectors and
those who have reported on SRLs.
SRLs may choose and have rights to choose or not to choose representation, however
circumstances can also remove choice. In addition, many SRLs may not need much
support or representation particularly if they are attending Tribunal or other
proceedings where the processes are adapted to support self-representation. The
literature suggests however that in some circumstances, the outcomes for SRLs are
not as good as those with representation. The complexity or non-complexity of court
processes and the nature of the subject matter of the litigation may have an effect on
outcome and on the incidence of SRLs. The availability of legal aid has been said to be
a determining factor in family law yet the available data suggests that this may not
have influenced the number of SRLs and that other factors may be responsible.
Data on SRLs is scant in ongoing data collections and some of the data discussed in
the literature in this review is somewhat dated. SRLs change status throughout court
and litigation processes and quite simply their status is not ordinarily known to a
court or tribunal until late in the litigation proceedings. Ordinarily a court or tribunal
will not require this information unless it is has an impact on court processes. As the
impact depends on characteristics of the case, the need to collect the information is
often not a priority at the start of the proceedings when initial data is collected. It
may be hypothesised that this is why the literature reports such scant collections
despite the literature also suggesting that the remedy lies in the collection of a more
comprehensive set of information variables.
There are a range of desirable data variables arising from the literature on SRLs,
which fall into three groups;
1)
2)
3)
Individual or demographic characteristics that influence representative
status (the term ‘postcode justice’ has been used to describe the
variable)
Case characteristics which dictate whether representative status will be
significant to the processes used, the outcomes and the impact on the
court or tribunal
Court and tribunal processes which may be impacted upon or which
highlight a need for accommodation to different representative statuses.
Overall the literature reports that the pervasiveness of SRLs is reportedly greater than
in previous decades in all Commonwealth Courts and Tribunals with proportions
ranging between 17 and 93 percent depending on a number of factors which include,
Executive Summary
7
SELF-REPRESENTED LITIGANTS
but are not limited by, the nature of the case, the informality of the forum and the
availability of funded legal resources. Perceptions of an increase may be greater than
the reality. What is known is that a range of policy responses may have had an
impact on both the number and proportion of SRLs and the engagement and impact
on court and tribunals. However these have not been adequately measured.
How to read this Review
This Literature Review is divided into a number of sections.



8
An initial section gives an overview of the issues outlined consistently in the
literature.
Available statistical data which has been published is summarised in the next
section showing the numbers for each of the commonwealth courts and some
information from Victoria and Queensland state courts.
A historical timeline sets out the key reports in this field and the year in which
they were published as well as their significance. Finally reported gaps in the
data are identified and factors which the literature consistently reports as
worthy of measurement are listed. A select bibliography is provided.
Executive Summary
SELF-REPRESENTED LITIGANTS
1. I
n
Background
Introduction
1.1.
1.2.
This literature review explores the research and evaluation material that is
available about self-represented litigants. The review is specifically directed at
exploring what data gaps exist in relation to self-represented litigants (SRLs)
and has been undertaken as part of a project by the Australian Centre for Court
and Justice System Innovation (ACCJSI). The project is funded by the
Commonwealth Attorney-General’s Department and forms part of the
Attorney-General’s Department project to build an evidence base for the civil
justice system.
As noted by the Department, the significance of self-represented litigants (SRLs)
in the civil justice system has been unclear for some time and there continues
to be a lack of answers to questions such as:
 how many SRLs are there in federal/state civil matters?
 who are they?
 in what sort of matters are they most prevalent?
 are their numbers increasing and, if so, why?
 do they use more resources than represented litigants and, if so, how
much more?
 what strategies adopted by courts, tribunals and legal assistance bodies
best meet the needs of SRLs?
 what other strategies may be effective in meeting their needs?
 what strategies may reduce any additional demands SRLs place on
organisations in the civil justice system particularly courts and judges?
1.3.
This Literature Review considers available Reports and material and the
broader project by ACCJSI that will be completed by the end of June 2012 and
which will: investigate current data collections in federal courts and federally
funded legal assistance bodies with respect to SRLs; assess the quality and
accessibility of data; the extent to which it is capable of being analysed; and,
recommend measures to enhance the quality of data collected about SRLs to
underpin further research into SRLs and their implications for the effective
delivery of civil justice.
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SELF-REPRESENTED LITIGANTS
Terminology
1.4.
Multiple terms are used to describe self represented litigants in courts,
tribunals and the literature and there is no standard definition of the term ‘selfrepresented litigant’ to be found in the literature on SRLs. Descriptions include;
- self-represented parties, litigants in person, pro se litigants and unrepresented
litigants. A conceptual distinction is occasionally made between those litigants
that choose or prefer self representation and those that are self represented by
circumstances beyond their control such as a lack of financial resources. In the
latter case the litigant may be described as unrepresented rather than ‘self’
represented. However, this distinction is not consistently made in Australian
1
studies and reports on SRLs.
1.5.
Some examples of the way in which litigants without representation have been
described and which show the variety in definition include the following:
Litigant in person (unrepresented litigant) is an applicant or a
respondent with a family law matter, on track to appear in a court room
in ancillary proceedings, who has given his or her own address for
service on documents filed with the Family Court or Magistrates Court:
see Family Law Council, Litigants in Person: A Report to the AttorneyGeneral prepared by the Family Law Council. (Canberra, August 2000), 3.
Self represented litigant: anyone who is attempting to resolve any
component of a legal problem for which they do not have legal counsel,
whether or not the matter actually goes before a court or tribunal: see
Canadian Forum on Civil Justice, Alberta Legal Services Mapping Project,
An Overview of Findings from the Eleven Judicial Districts Final Report
(Canadian Forum on Civil Justice, July 2011).
1.6.
The word ‘litigant’ may also be a misnomer as often, strictly speaking, those
involved in Tribunal proceedings may not be litigants. However, in this Report
the word ‘litigant’ has been used to describe all those involved in court and
tribunal processes.
1.7.
The generic use of the term ‘self-represented litigant’ may also obscure the
reasons for and occurrence of SRLs in courts and tribunals. For example, SRL
does not accurately reflect the circumstances of the litigant or the nuances of
those circumstances such as background and experience (some SRLs may for
example be legally qualified or experienced as advocates). There are other
issues that emerge in data collections. For example, data that is collected by
courts on an ongoing basis (as contrasted with in-depth one-off studies) may
not reveal that:
1
The Family Law Council has suggested that there are further sub-categories including self-represented
litigants who have a meritorious claim and who are likely to be successful and the group of litigants who
have apparently unmeritorious claims but who are unrealistic about the likelihood of success and may
be pursuing litigation as a form of harassment or vexation: Family Law Council, Litigants in Person: A
Report to the Attorney-General prepared by the Family Law Council. (Canberra, August 2000).
10
SELF-REPRESENTED LITIGANTS
1.8.
1)
The SRL may be self represented at a hearing or trial but be well informed
with prior legal advice from internet based sources, community legal
centres, legal aid, duty lawyers or other private lawyers.
2)
The SRL may be accompanied by a non-legal person appointed by them
to assist them throughout the litigation and at the hearing or trial, often
without recompense; known as a McKenzie friend.2
3)
The SRL may be legally represented for part of the proceedings but not
for the entire duration so the records may show them moving in and out
of the category of a self represented litigant. This intermittent status is
difficult to track unless end-to-end data for the life cycle of the case is
collected.
4)
An SRL may be more likely to be represented in some types of processes
(for example, hearings) than in others (for example ADR processes).
5)
The SRL may be active or inactive for all or part of the time, appearing or
not appearing at different stages.
In Canada, attempts have been made to remedy this with identification of the
3
following types of SRLs:
1. SRLs with an overall lack of social resources.
2. Low income SRLs with some social resources
3. SRLs living with additional social barriers that interfere with accessing
justice.
4. SRLs unable to find an available lawyer and who wish to hire a lawyer.
5. SRLs who were previously represented.
6. SRLs in cases where representation is supposed to be unnecessary
7. SRLs who could access representation but prefer to self-represent. 4
2
A McKenzie Friend is a lay person used by the SRL to help him or her with taking notes and making
suggestions during the trial: see McKenzie v McKenzie [1970] 3 All ER 1034. For a detailed discussion of
McKenzie friends see
www.familylaw.co.uk/system/uploads/attachments/0000/8125/McKenzie_Friends_Practice_Guidance_J
uly_2010.pdf (accessed 20 May 2012). See also E Richardson, Self-represented parties: A trial
management guide for the judiciary (County Court of Victoria, 2004), 15-20
3
Mary Stratton, Alberta self-represented litigants mapping project Final Report. (Edmonton, Alberta:
Canadian Forum on Civil Justice, 2007) cited in Canadian Forum on Civil Justice, Alberta Legal Services
Mapping Project, An Overview of Findings from the Eleven Judicial Districts Final Report (Canadian Forum
on Civil Justice, July 2011), 89-91.
11
SELF-REPRESENTED LITIGANTS
1.9.
More specific characteristics of SRLs such as language skills, education, personal
confidence, motivations or reasons behind self-representation are also not
revealed other than those described above. 5
1.10. Importantly, information collected to this or any other level of detail may not
be considered to be always necessary. As Moorhead and Sefton note in their
2005 report on unrepresented litigants in the United Kingdom, the significance
of whether a person is represented or not (and it would seem whether data
should be collected about it) will depend on:
 The nature of the dispute (the subject matter, the substantive law
governing it, and the consequences of an adverse result for the litigant);
 The relationship between opposing parties (especially, but not
exclusively, in family law);
 The formality (or otherwise) of the proceedings;
 The existence of special arrangements for unrepresented litigants (within
and without courts); and,
 The competence of the individual litigant to conduct cases unrepresented
(because of experience, intellectual skills and emotional objectivity).
6
1.11. In this report, except where specifically noted, the term SRL will be used to
describe the variety of these instances, and more generally where a person is
unrepresented by choice or by circumstance. It is expected that this will reflect
the situation in the data collected on SRLs; that is that the majority of courts
and tribunals are not collecting data that makes this distinction or any others.
Similarly, the Project Team notes that published reports and other studies may
not count or define SRLs in the same way.
4
Canadian Forum on Civil Justice, Alberta Legal Services Mapping Project, An Overview of Findings from
the Eleven Judicial Districts Final Report (Canadian Forum on Civil Justice, July 2011), 89-91.
5
John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia – Research
Report No 20 (Family Court of Australia, 2000).
6
Richard Moorhead and Mark Sefton, Litigants in person. Unrepresented litigants in first instance
proceedings. Department of Constitutional Affairs Research Series 2/05 (United Kingdom, 2005), 1.
12
SELF-REPRESENTED LITIGANTS
2.
Overview of issues raised in the literature
Introduction
An Increase in SRLs?
2.1.
The perception that the numbers of SRLs are increasing and have been
increasing over the past fifteen years is widespread and is largely attributed in
the literature to increased legal costs and changes to legal aid funding. 7 8
Australia is not alone in reporting this perception, with other countries, such as
the United States, New Zealand, Canada and the United Kingdom, also
reporting similar increases. 9 Studies conducted in Australia provide data and
7
Senate Legal and Constitutional Affairs References Committee, Access to Justice (Canberra:
Commonwealth of Australia, December 2009).Senate Legal and Constitutional Affairs References
Committee, Inquiry into the Australian Legal Aid System: First Report. (Canberra, Commonwealth of
Australia, 26 March 1997); Senate Legal and Constitutional Affairs References Committee, Inquiry into
the Australian Legal Aid System: Second Report. (Canberra, Commonwealth of Australia, June 1997);
Senate Legal and Constitutional Affairs References Committee, Inquiry into the Australian Legal Aid
System: Third Report (Canberra, Commonwealth of Australia, July 1998); Senate Legal and Constitutional
References Committee, Inquiry into Legal Aid and Access to Justice, June 2004. It was noted in Australian
Law Reform Commission, Managing Justice – A review of the Federal Civil Justice System Report No 89
(Canberra: Australian Government Print Services, 2000) that there was no clear statistical data to
support the claim that SRLs were increasing. However the Law Council of Australia, Erosion of Legal
Representation in the Australian Justice System Research Report (February 2004) found that there had
been a rise in SRLs based on a survey conducted and some statistical data.
8
This finding can be contrasted with an earlier report, Family Court of Australia, Self-represented
Litigants – A Challenge Project Report December 2000-December 2002 (Family Court of Australia, 2003),
3 where it was reported that the numbers of SRLs who are unrepresented throughout the entire court
process are low.
9
Richard Moorhead and Mark Sefton, Litigants in person. Unrepresented litigants in first instance
proceedings. Department of Constitutional Affairs Research Series 2/05 (United Kingdom, 2005); Kim
Williams, Litigants in person: a literature review – Research Summary 2/11 (Ministry of Justice, United
Kingdom, June 2011); Melissa Smith, Esther Banbury and Su-Wuen Ong, Self-Represented Litigants: An
Exploratory Study of Litigants in Person in the New Zealand Criminal Summary and Family Jurisdictions.
(Wellington, New Zealand: Ministry of Justice, New Zealand, July 2009); New Zealand Law Commission,
Dispute Resolution in the Family Court Report 82 (Wellington, New Zealand, 2003); Maria Barrett-Morris,
Mike Aujla, and Hugh Landerkin, The Self-Represented Litigant in the Courts: An Annotated Bibliography.
(Royal Roads University, 2004); M Stratton, Alberta self-represented litigants mapping project final
report. (Edmonton, Alberta: Canadian Forum on Civil Justice, 2007); Canadian Forum on Civil Justice,
Alberta Legal Services Mapping Project, An Overview of Findings from the Eleven Judicial Districts Final
Report (Canadian Forum on Civil Justice, July 2011);
13
SELF-REPRESENTED LITIGANTS
evidence supporting the increase however little on why this is occurring and the
impact it is having on the courts. 10
Perceptions about SRLs
2.2.
In the available literature, SRLs are often consigned to one homogenous (largely
problematic) group11 and it is assumed that they place a strain on the civil
justice system. 12 Whether this is the case is unclear and there are instances of
13
more positive accounts of SRLs. In court publications, for example there is
evidence of a cultural shift towards recognising SRLs as a legitimate client group
that courts need to accommodate. 14 Overwhelmingly, however, the perception
is that these litigants pose a problem for courts. This gives rise to assumptions
common to most literature and in journal and other articles including:
 Self represented litigants require more court time. 15
 Self represented litigants are more likely to require a hearing.
16
 Self represented parties increase costs for all parties due to a need for
more pre-trial proceedings, poor issue identification, greater time
responding to unclear and irrelevant evidence and more time spent in
hearings. 17
Reasons for self representation
2.3.
Although SRLs will ordinarily have a right to represent themselves which is
recognised in law,18 and indeed may choose to represent themselves, it would
appear that many SRLs, particularly in court hearings, are self represented
19
because they cannot afford legal representation. The literature raises
10
Rosemary Hunter, Ann Genovese, April Chrzanowski, and Carolyn Morris, The changing face of
litigation: unrepresented litigants in the Family Court of Australia (Research Report) Law and Justice
Foundation. August 2002. Hunter et al found that there was an increase in SRLs in first instance matters
but that numbers of SRLs on appeal remained consistent for the period of the study for the years 19951999.
11
Australian Institute of Judicial Administration and the Federal Court of Australia, Forum on Self–
Represented Litigants (Sydney, 17 September 2004).
12
Duncan Webb, ‘The right not to have a lawyer’ (2007) 16 Journal of Judicial Administration 165-178.
13
Duncan Webb, ‘The right not to have a lawyer’ (2007) 16 Journal of Judicial Administration 165-178.
14
Family Court of Australia, Self-represented litigants: A challenge – Project Report December 2000December 2002. (Family Court of Australia, 2003). Many Australian courts have developed Litigants in
Person plans and improved information and processes for SRLs.
15
Federal Magistrates Court of Australia, Annual Report 2003-2004 (Canberra: Federal Magistrates Court
of Australia, 2004).
16
Federal Magistrates Court of Australia, Annual Report 2003-2004 (Canberra: Federal Magistrates Court
of Australia, 2004).
17
Law Reform Commission of Western Australia, Review of the criminal and civil justice system in
Western Australia – Final Report Project 92 (Law Reform Commission of Western Australia, 1999), 153.
18
Cachia v Hanes (1994) 179 CLR 403; s 78 Judiciary Act 1903 (Cth).
19
Australian Law Reform Commission, The unrepresented party, Adversarial Background Paper 4,
(Australian Law Reform Commission, December 1996); Law Council of Australia, Erosion of Legal
14
SELF-REPRESENTED LITIGANTS
questions about whether SRLs are automatically disadvantaged as a result and
explores the reasons for that disadvantage and what can be done to offset it. It
is also argued that the right to self -representation exists alongside a right to
legal representation or at least the right to be meaningfully heard, which
includes a right to legal services and possibly a right to alternatives to
representation. 20 Principles of fairness, legitimacy and efficiency are put
forward to underpin this need for legal representation in the adversarial
system. 21 The exceptions are minor or routine matters but in complex matters,
most literature suggests that SRLs are likely to be disadvantaged without legal
representation. 22
2.4.
It has been suggested that the Australian legal system itself is ill-equipped to
deal with SRLs and is reportedly an alienating environment for many SRLs. This
literature suggests that much of the Australian legal (litigation) system is based
on professionalism and many SRLs could find themselves at a disadvantage to
adequately understand court procedures, rules of court, the language of the
law and to represent their cases in courts. 23 However, it remains unclear
whether SRLs are disadvantaged because the legal system is poorly designed to
accommodate SRLs or whether the difficulties arise due to the attributes of the
litigants themselves. 24 In addition, there is little if any attention paid to the
parameters and processes in the broader justice system that extends well
beyond litigation systems and includes the much larger Alternative Dispute
Resolution (ADR) system.
2.5.
Changes to legal aid funding in 1997 have been shown to be linked to increases
in self representation particularly in family law matters, however it is not as
clear a link in subsequent research. 25 Some litigants may not be eligible for legal
Representation in the Australian Justice System Research Report (February 2004); Melanie Dye, An
Evaluation of Services for Self-Represented Litigants in the Federal Magistrates Court (Canberra: Federal
Magistrates Court of Australia, October 2004); Melissa Smith, Esther Banbury and Su-Wuen Ong, SelfRepresented Litigants: An Exploratory Study of Litigants in Person in the New Zealand Criminal Summary
and Family Jurisdictions. (Wellington, New Zealand: Ministry of Justice, New Zealand, July 2009).
20
Family Law Council, Litigants in Person: A Report to the Attorney-General prepared by the Family Law
Council. (Canberra, August 2000), 15.
21
John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia –
Research Report No 20 (Family Court of Australia, 2000).
22
Australian Law Reform Commission, The unrepresented party, Adversarial Background Paper 4,
(Australian Law Reform Commission, December 1996).
23
Duncan Webb, ‘The right not to have a lawyer’ (2007) 16 Journal of Judicial Administration 165-178.
24
Lord Woolf, Access to justice: Interim report to the Lord Chancellor on the civil justice system in
England and Wales 1995, 119; Duncan Webb, ‘The right not to have a lawyer’ (2007) 16 Journal of
Judicial Administration 165-178.
25
John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia –
Research Report No 20 (Family Court of Australia, 2000); Rosemary Hunter, Jeff Giddings and April
Chrzanowski, Legal Aid and Self-Representation in the Family Court of Australia. (Griffith University, May
2003); Law Council of Australia, Erosion of Legal Representation in the Australian Justice System
Research Report (February 2004). However, the link between changes to legal aid funding and selfrepresentation is by no means clear cut as discussed in Family Law Council, Litigants in Person: A Report
to the Attorney-General prepared by the Family Law Council. (Canberra, August 2000), 9-11.
15
SELF-REPRESENTED LITIGANTS
aid but do not have sufficient funds to afford legal representation or have a lack
of awareness of legal aid services,26 or be discouraged from applying believing
27
that they were ineligible for legal aid. Other litigants may represent small
businesses who are unable to afford legal fees or who may be particularly
affected by straightened economic conditions. There is little information
available about this group.
2.6.
A 2003 study found that the level at which means-testing for legal aid was set
created a group of people who were ineligible for assistance but could not
afford to pay for representation. 28 Some SRLs may be hampered by geographic
considerations, language difficulties or physical or mental disability. 29 Dewar et
al suggest a number of factors that may lead to a person’s decision to represent
themselves at the Family Court:
 difficulties in obtaining legal aid either at all, or for representation in
Court proceedings;
 the cost of legal services: these may be such that a litigant is unable to
afford them at all, or that an individual may be encouraged to make a
cost/benefit calculation that the costs incurred in employing a legal
representative outweigh the risks of pursuing litigation without a lawyer;
 disenchantment with lawyers;
 related to the above, a view that family law is not ‘real law’ and therefore
the skills of a lawyer are not really necessary;
 a wish to use the Court as a forum to air grievances, to seek revenge or as
an instrument of harassment;
 the growth in other sources of advice or assistance, such as Community
Legal Centres, support groups or Legal Aid bodies; or
 the simplification of Court procedures. 30
2.7.
Other reasons for self representation may include a belief in the merits of his or
case and a view that the SRL is the best person to present his or her case, rather
26
Melissa Smith, Esther Banbury and Su-Wuen Ong, Self-Represented Litigants: An Exploratory Study of
Litigants in Person in the New Zealand Criminal Summary and Family Jurisdictions. (Wellington, New
Zealand: Ministry of Justice, New Zealand, July 2009).
27
Family Law Council, Litigants in Person: A Report to the Attorney-General prepared by the Family Law
Council. (Canberra, August 2000), 9; Rosemary Hunter, Jeff Giddings and April Chrzanowski, Legal Aid
and Self-Representation in the Family Court of Australia. (Griffith University, May 2003).
28
Rosemary Hunter, Jeff Giddings and April Chrzanowski, Legal Aid and Self-Representation in the Family
Court of Australia (Griffith University, May 2003).
29
Senate Legal and Constitutional Affairs References Committee, Access to Justice (Canberra:
Commonwealth of Australia, December 2009), 90.
30
John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia –
Research Report No 20 (Family Court of Australia, 2000), 11-12. See also Victorian Law Reform
Commission, Civil Justice Review: Report (Melbourne: Victorian Law Reform Commission, 2008), 564.
16
SELF-REPRESENTED LITIGANTS
than a lawyer. 31 Some SRLs may choose to represent themselves even when
holding a grant of legal aid. 32 Changes to particular legislation over time may
also give rise to increases in litigation in particular areas, a proportion of which
will be instigated or defended by self represented litigants. 33 Cultural changes
may also have led to an increase in SRLs with self-help and internet resources
more widely accessible, coupled with an emerging ‘do-it-yourself’ culture. 34
2.8.
The above list suggests that there may be both negative and positive reasons
for self representation.35 Perceptions of an increase in the numbers of self
represented litigants may be driven by changes in funding, the economy and
court processes. In any event, SRLs increasing or otherwise will require
different types of assistance dictated in part by the different reasons behind
self representation as well as by the nature and complexity of the matters
involving SRLs. 36
Outcomes of matters involving SRLs and impacts on the judiciary
2.9.
The research on whether outcomes for SRLs are worse due to the lack of legal
representation is mixed. 37 Some studies have shown that SRLs are less likely to
be successful than those who have legal representation with a greater
likelihood of the case being discontinued, dismissed or having costs ordered
against them. 38 Poorer outcomes for SRLs may be related to difficulties with
negotiation and understanding and compliance with court procedures. 39 In
addition there is little if any exploration about outcomes involving non hearing
processes by which most cases are resolved in the civil and family areas. The
31
Family Law Council, Litigants in Person: A Report to the Attorney-General prepared by the Family Law
Council. (Canberra, August 2000).
32
Rosemary Hunter, Jeff Giddings and April Chrzanowski, Legal Aid and Self-Representation in the Family
Court of Australia (Griffith University, May 2003).
33
For example, changes to Part VII the Family Law Act 1975 (Cth) led to an increase in residence and
contact orders: see Family Law Council, Litigants in Person: A Report to the Attorney-General prepared
by the Family Law Council. (Canberra, August 2000) p 13.
34
Murray Hawkins, Emerging Trends in the Provision of Legal Services: Some Australian Experiences
(Speech presented to the Commonwealth Law Association Conference, Nairobi, 7 September 2007).
35
John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia –
Research Report No 20 (Family Court of Australia, 2000), 12.
36
Family Law Council, Litigants in Person: A Report to the Attorney-General prepared by the Family Law
Council. (Canberra, August 2000).
37
John Dewar, Bronwyn Jerrard and Fiona Bowd, ‘Self-representing Litigants: A Queensland Perspective.’
(2002) 23 The Queensland Lawyer 65-77.
38
Gamble, H & Mohr, R, Litigants in Person in the Federal Court of Australia and the Administrative
Appeals Tribunal- A Research Note. (Paper presented to the Sixteenth Annual AIJA Annual Conference
Melbourne. 4-6 September, 1998); Australian Law Reform Commission, Part One: Empirical Information
about the Administrative Appeals Tribunal (June 1999) at
http://www.austlii.edu.au/au/other/alrc/publications/dp/62/consultant_rept1/report1.pdf
39
Rosemary Hunter, Ann Genovese, April Chrzanowski, and Carolyn Morris, The changing face of
litigation: unrepresented litigants in the Family Court of Australia (Research Report) Law and Justice
Foundation. August 2002.
17
SELF-REPRESENTED LITIGANTS
focus has tended to be on the impact on court hearings – not the broader
impacts on the justice system or more specifically the impact on the court and
tribunal system where most disputes are resolved other than by judicial
determination.
2.10. In terms of hearing processes, although case duration might be shorter in some
cases when a SRL is involved, this does depend on whether the person was
inactive or active during the case, and in any event may not reflect whether a
40
just outcome was achieved. In a research report prepared as part of the
Australian Law Reform Commission Review of the Federal Civil Justice System it
was found that in the Administrative Appeals Tribunal, success at a hearing may
be linked to representation. 41 In that report an unrepresented person was
successful 22.5 percent of the time compared with 51.3 percent for
represented parties. 42 Matters in the AAT were more likely to be resolved by
consent when parties were represented compared to matters where the party
was self represented. These matters were more likely to go to hearing. 43
2.11. The literature reports that judicial officers can face onerous additional
obligations when dealing with self represented litigants that are likely to
lengthen the amount of time that a case will take before the court. 44 It has
been said that although the judge is the impartial arbiter in the adversarial
system in which Australian courts operate, it is often necessary for the judge to
depart from this role when dealing with SRLs. Court practice involves a more
45
‘modified’ adversarial system although notably some Tribunals expect this
and often do not practice in an adversarial manner.
40
The SRL may have failed, for example, to adequately present his or her case to the court (Law Reform
Commission of Western Australia, Review of the criminal and civil justice system in Western Australia –
Final Report Project 92 (Law Reform Commission of Western Australia, 1999), 154).
41
Australian Law Reform Commission, Part One: Empirical Information about the Administrative Appeals
Tribunal (June 1999) at
http://www.austlii.edu.au/au/other/alrc/publications/dp/62/consultant_rept1/report1.pdf (accessed 20
May 2012)
42
Australian Law Reform Commission, Part One: Empirical Information about the Administrative Appeals
Tribunal (June 1999) at
http://www.austlii.edu.au/au/other/alrc/publications/dp/62/consultant_rept1/report1.pdf (accessed 20
May 2012)
43
Australian Law Reform Commission, Part One: Empirical Information about the Administrative Appeals
Tribunal (June 1999) at
http://www.austlii.edu.au/au/other/alrc/publications/dp/62/consultant_rept1/report1.pdf (accessed 20
May 2012). Notably differences in representation are closely linked to matter type.
44
See E Richardson, Self-represented parties: A trial management guide for the judiciary (Melbourne:
County Court of Victoria, 2004);
45
Rosemary Hunter, ‘Litigants in person in contested cases in the Family Court’ (1998) 12 Australian
Journal of Family Law 171, 171; John Dewar, Barry Smith and Cate Banks, Litigants in Person in the
Family Court of Australia – Research Report No 20 (Family Court of Australia, 2000), 7.
18
SELF-REPRESENTED LITIGANTS
Programming and policy responses to SRLs including ADR
2.12. The perceived challenges posed by self represented litigants have resulted in
numerous programming and policy responses within Australian courts at both
the state and federal levels. These include increased assistance and written
information for self represented litigants (for example the outreach services
provided at the AAT), development of self-help services (including internet
based resources, online videos, off line videos), legal advice services,46 bench
books for judicial officers and the commissioning of a small number of studies
on the impact of self represented litigants. 47 Legal aid funding has also been
supported for certain types of hearings 48 and pro bono service support is also a
feature of some courts and tribunals.
2.13. Although many matters involving SRLs are resolved prior to hearing it is not
known how many of these cases settle through alternative dispute resolution
(ADR) processes. In many courts, until the 1990s SRLs were specifically included
49
or excluded from most ADR programs. Exclusion from ADR processes was
driven by concerns around power imbalance between SRLs and the represented
parties but inclusion in other programs was seen as desirable because of the
50
more flexible processes. Generally in the Family Court SRLs have been
encouraged to participate in ADR processes such as mediation and
conciliation. 51 In the AAT, conferences are commonly held with SRLs however
the practices in other courts and tribunals can be difficult to discern.
2.14. An evaluation of services for self represented litigants in the Federal
Magistrates Courts reported that in family law and child support cases, of 60
SRLs surveyed, 16 people were ordered to attend primary dispute resolution,
39 were not ordered to attend and 5 did not answer the question. 52 Of those
46
An example is the Self-Representation Civil Law Service (SRCLS) in Queensland. The SRCLS is modelled
on the Citizens Advice Bureau, which operates in the Royal Courts of Justice in London.
47
It is not known the extent to which these various initiatives have assisted SRLs or courts in dealing
with SRLs: see for example Victorian Law Reform Commission, Civil Justice Review: Report (Melbourne:
Victorian Law Reform Commission, 2008), 564 regarding a discussion on the impact on pro-bono
schemes. See also Melanie Dye, An Evaluation of Services for Self-Represented Litigants in the Federal
Magistrates Court (Canberra: Federal Magistrates Court of Australia, October 2004) for a discussion of
the various materials and services provided to SRLs and whether SRLs found them helpful.
48
Family Court of Australia, Self-represented litigants: A challenge – Project Report December 2000December 2002. (Family Court of Australia, 2003).
49
Australian Law Reform Commission, The unrepresented party, Adversarial Background Paper 4,
(Australian Law Reform Commission, December 1996).
50
Australian Law Reform Commission, The unrepresented party, Adversarial Background Paper 4,
(Australian Law Reform Commission, December 1996).
51
Australian Law Reform Commission, The unrepresented party, Adversarial Background Paper 4,
(Australian Law Reform Commission, December 1996).
52
Melanie Dye, An Evaluation of Services for Self-Represented Litigants in the Federal Magistrates Court
(Canberra: Federal Magistrates Court of Australia, October 2004), 16.
19
SELF-REPRESENTED LITIGANTS
that did attend, the majority (62.5 percent) did not find the service helpful and
this was largely due to ill feelings towards the other party. 53
International experiences of SRLs
2.15. The issues raised in Australian studies and reports on SRLs are similar to those
raised overseas jurisdictions including the United Kingdom, the United States,
Canada and New Zealand. In the United Kingdom the challenges posed by SRLs
in the UK were highlighted by Lord Woolf in the Access to Justice Inquiry54 and
interest has grown as numbers of SRLs have increased in the court system. 55 In
2005 Moorhead and Sefton in a study of unrepresented litigants in first
instance proceedings in civil and family cases in four UK courts that
unrepresented litigants were common with the majority of SRLs defendants
56
rather than applicants. It was a small group of obsessive and difficult SRLs
that caused the most problems for judges and court staff and for the majority
of SRLs the lack of representation was due to non-participation in the
proceedings altogether. It has been suggested recently that SRLs are likely to
increase in the United Kingdom in the future due to austerity measures in that
country reducing access to legal aid. 57
2.16. In New Zealand a research report of SRLs in criminal summary and family
jurisdictions has found that although there was a perception of an increase in
SRLs in family matters over recent years there was lack of data to substantiate
the perception. 58 Numbers of SRLs varied between regional jurisdictions and
made up between 7 and 17 percent of litigants. 59 Demographic data collected
in the study showed that in New Zealand SRLs were predominately male, aged
53
Melanie Dye, An Evaluation of Services for Self-Represented Litigants in the Federal Magistrates Court
(Canberra: Federal Magistrates Court of Australia, October 2004), 16.
54
Woolf, The Right Hon the Lord (1995), Access to Justice: Interim Report to the Lord Chancellor on the
Civil Justice System in England and Wales (HMSO, London); Woolf, The Right Hon the Lord (1996), Access
to Justice: Final report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO,
London).
55
R Moorhead and M Sefton, Litigants in person. Unrepresented litigants in first instance proceedings.
Department of Constitutional Affairs Research Series 2/05 (United Kingdom, 2005).
56
R Moorhead and M Sefton, Litigants in person. Unrepresented litigants in first instance proceedings.
Department of Constitutional Affairs Research Series 2/05 (United Kingdom, 2005).
57
Frances Gibb, Austerity bites: rise of the DIY litigant is this year’s challenge; The new Association of
District Judges’ president tells Frances Gibb his members face tough times. (April 5 2012) The Times
(London, England) p 77.
58
Melissa Smith, Esther Banbury and Su-Wuen Ong, Self-Represented Litigants: An Exploratory Study of
Litigants in Person in the New Zealand Criminal Summary and Family Jurisdictions. (Wellington, New
Zealand: Ministry of Justice, New Zealand, July 2009).
59
Melissa Smith, Esther Banbury and Su-Wuen Ong, Self-Represented Litigants: An Exploratory Study of
Litigants in Person in the New Zealand Criminal Summary and Family Jurisdictions. (Wellington, New
Zealand: Ministry of Justice, New Zealand, July 2009).
20
SELF-REPRESENTED LITIGANTS
in their mid-30s, appearing in care of children and domestic violence cases. 60
However in contrast to Australia and the UK most were likely to be in full time
employment. 61 The main reason for self representation was legal costs involved
in litigation. 62
60
Melissa Smith, Esther Banbury and Su-Wuen Ong, Self-Represented Litigants: An Exploratory Study of
Litigants in Person in the New Zealand Criminal Summary and Family Jurisdictions. (Wellington, New
Zealand: Ministry of Justice, New Zealand, July 2009).
61
Melissa Smith, Esther Banbury and Su-Wuen Ong, Self-Represented Litigants: An Exploratory Study of
Litigants in Person in the New Zealand Criminal Summary and Family Jurisdictions. (Wellington, New
Zealand: Ministry of Justice, New Zealand, July 2009).
62
Melissa Smith, Esther Banbury and Su-Wuen Ong, Self-Represented Litigants: An Exploratory Study of
Litigants in Person in the New Zealand Criminal Summary and Family Jurisdictions. (Wellington, New
Zealand: Ministry of Justice, New Zealand, July 2009).
21
SELF-REPRESENTED LITIGANTS
3.
Reports on SRLs
Introduction
3.1.
Commencing in the mid -1990s a number of government committees have
examined legal aid funding and access to justice and the relationship between
these issues and self representation. 63 In the Report of the Senate Legal and
Constitutional Affairs References Committee, Access to Justice (Canberra:
Commonwealth of Australia, December 2009) recommendations were made
regarding the need for courts to collect data on SRLs. 64 Further, in the late
1990s there were a series of studies conducted as part of the Review of the
Federal Civil Justice System by the Australian Law Reform Commission which
reported on numbers of SRLs in the Administrative Appeals Tribunal, the
Federal Court and the Family Court. 65 The level of information about each court
varied in detail, with more information about SRLs available in the AAT and the
Family Court compared with the Federal Court. The search for literature on
SRLs in Australia did not reveal detailed recent research on SRLs in Australia
with the most recent research being completed in approximately 2004.
63
Senate Legal and Constitutional Affairs References Committee, Inquiry into the Australian Legal Aid
System: Third Report (Canberra, Commonwealth of Australia, July 1998); Australian Law Reform
Commission, Managing Justice – A review of the Federal Civil Justice System Report No 89 (Canberra:
Australian Government Print Services, 2000), 36; Senate Legal and Constitutional Affairs References
Committee, Access to Justice (Canberra: Commonwealth of Australia, December 2009); Law Reform
Commission of Western Australia, Review of the criminal and civil justice system in Western Australia –
Final Report Project 92 (Law Reform Commission of Western Australia, 1999).
64
The following recommendations were made in relation to SRLs:
Recommendation 16 - The committee recommends that the federal, state and territory governments
commission research to quantify the economic effects that self-represented litigants have on the
Australian justice system, including court, tribunal, other litigant, legal aid system and social welfare
system costs.
Recommendation 17 - The committee recommends that the 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 likewise.
Recommendation 18 - The committee recommends that the federal, state and territory governments
jointly fund and establish a comprehensive duty solicitor scheme in identified high need areas
throughout Australia with a view to reducing the length of litigation and increasing judicial efficiency in
self-represented matters.
Recommendation 19 - The committee recommends that judicial and court officers receive training in
relation to assisting self-represented litigants.
65
These research reports are found here http://www.alrc.gov.au/dp-62 (accessed 20 May 2012).
22
SELF-REPRESENTED LITIGANTS
3.2.
Aside from these inquiries at the government and law reform level the
information on SRLs in Australia is found in two main sources: (1) one-off
studies and reports generally commissioned by the individual courts or other
interested bodies and (2) data collected by courts and reported in Annual
Reports. The major findings from these studies and reports are outlined below
under the heading Major Findings.
3.3.
Although the issue of self represented litigants has been the ongoing subject of
discussion and review in Australia, the evidence base to support the
understanding of the phenomenon is limited. The numbers of self represented
litigants in Australian courts and tribunals or the reasons behind self
representation are not known. Many Australian courts and tribunals do not
collect data on self represented litigants or collect minimal data, often
inconsistently. 66 As the Senate Legal and Constitutional Affairs References
Committee has noted, the data sets collected by federal courts and tribunals
did not:
…specifically identify self represented litigants within court systems,
making it difficult to determine the extent of and trends in selfrepresentation, as well as the impact of self represented litigants on
67
court users, courts and their resources.
3.4.
The Law Reform Commission of Western Australia has similarly commented
that ‘the lack of reliable quantitative data causes significant difficulties when
attempting to assess the magnitude of the phenomenon and develop
68
solutions.’
3.5.
The Australasian Institute of Judicial Administration’s (AIJA) Forum on Self
represented Litigants recommended in 2004 that each jurisdiction should keep
an accurate profile of the involvement of self represented litigants requiring the
collection of appropriate data regarding ‘the occasions on which SRLs appear,
the consequences in time of their appearances, whether they are successful or
not, the impact of their presence on costs orders, and any other relevant
factors’. 69 Courts are generally supportive of the need to collect data but there
are a number of constraints that may prevent or impact on the ability to do
so. 70 These include difficulties around knowing what data to measure, lack of
appropriately sophisticated case management systems, and difficulties
measuring the impact of self represented litigants on staff which would require
66
Australian Institute of Judicial Administration and the Federal Court of Australia, Forum on Self–
Represented Litigants (Sydney, 17 September 2004).
67
Senate Legal and Constitutional Affairs References Committee, Access to Justice (Canberra:
Commonwealth of Australia, December 2009), 92.
68
Law Reform Commission of Western Australia, Review of the criminal and civil justice system in
Western Australia – Final Report Project 92 (Law Reform Commission of Western Australia, 1999), 154.
69
Australian Institute of Judicial Administration and the Federal Court of Australia, Forum on Self–
Represented Litigants (Sydney, 17 September 2004).
70
Australian Institute of Judicial Administration and the Federal Court of Australia, Forum on Self–
Represented Litigants (Sydney, 17 September 2004).
23
SELF-REPRESENTED LITIGANTS
qualitative research methods. 71 Further, courts and tribunals are likely to limit
their data collection to data that is relevant to the needs of their court
operations rather than collecting a broad range of data on SRLs. One particular
difficulty arises where a litigant’s representation status changes throughout the
course a case (sometimes numerous times), which is difficult to record without
a sophisticated case management system. 72 Where data is collected reliability
may be an issue. 73 Some courts have resorted to other ways of gaining
supplementary information regarding self represented litigants through user or
client surveys and management systems that allows a client’s progress for each
visit to court to be tracked. 74
What do we know about self represented litigants?
How many SRLs are there in federal courts and tribunals?
3.6.
The following court snapshots provide an overview of the numbers of SRLs in
Australian courts operating in the federal jurisdiction:
3.7.
High Court - The Annual Report 2010-2011 of the High Court of Australia
reported that 34 percent of special leave applications were filed by self
represented litigants during 2010–2011, compared with 51 percent during the
previous financial year. 75 Immigrations applications have high numbers of self
represented litigants, comprising for example 93 per cent of the immigration
applications filed in 2009–10. 76 Over a ten year period self represented litigants
made up 25 percent of special leave applications in 1999-2000 increasing to a
high of 67 percent in 2007-2008,77 to return to lower numbers again in 20102011. 78
71
Australian Institute of Judicial Administration and the Federal Court of Australia, Forum on Self–
Represented Litigants (Sydney, 17 September 2004).
72
Australian Institute of Judicial Administration and the Federal Court of Australia, Forum on Self–
Represented Litigants (Sydney, 17 September 2004).
73
Federal Court of Australia, Annual Report 2010-2011 (Canberra: Federal Court of Australia, 2011), 43.
In the Family Court of Australia, the Federal Court of Australia and the Federal Magistrates Court of
Australia, the case management system Casetrack should allow for data to be extracted on selfrepresented litigants. However, the recording of self-represented litigants in this case management
system is not a mandatory field so the statistics may not be reliable.
74
Australian Institute of Judicial Administration and the Federal Court of Australia, Forum on Self–
Represented Litigants (Sydney, 17 September 2004).
75
High Court of Australia, Annual Report 2010-2011 (Canberra, High Court of Australia, 2011), 28.
76
High Court of Australia, Annual Report 2009-2010 (Canberra, High Court of Australia, 2010), 14.
77
High Court of Australia, Annual Report 2008-2009 (Canberra, High Court of Australia, 2009).
78
See the High Court of Australia Annual Report 2001-2002 for a discussion of the special difficulties for
the High Court regarding SRLs including problems associated with the costs of delay, disruption and
inefficiency. See also Chief Justice M Gleeson, The State of the Judicature, (Paper presented to Australian
Legal Convention, Canberra, 10 October 1999) cited in Family Law Council, Litigants in Person: A Report
to the Attorney-General prepared by the Family Law Council. (Canberra, August 2000).
24
SELF-REPRESENTED LITIGANTS
3.8.
Federal Court of Australia – Studies have suggested that 17 percent of parties
in the Federal Courts are self represented. 79 The Federal Court of Australia
reports some statistics regarding SRLs in its Annual Report. However in the
Annual Report 2010-2011 the Federal Court notes that while its case
management system is able to extract some broad statistics about the number
of self represented litigants who are appearing as applicants, respondents are
80
not recorded. Further as the field for self represented litigants is not a
mandatory field in the Court’s case management system the statistics
presented in the Annual Report are indicative only. In 2010-2011, 336 people
who commenced proceedings in the Federal Court were self represented and
81
were mainly in migration appeals. The top four causes of actions were
appeals, administrative law matters, bankruptcy and corporations’ matters. 82
Over half of SRLs were in the New South Wales Registry. 83 These patterns are
broadly consistent with Annual Report in the preceding 2009-2010 financial
84
years.
3.9.
Family Court of Australia – Research in 2002 by Hunter, Genovese,
Chrzanowski and Morris indicates that in contested cases approximately 31
percent of litigants at first instance were unrepresented and 18 percent of
litigants in appeal cases had been unrepresented at some stage during the
matter. 85 Litigants at appeal were more likely to be fully unrepresented rather
86
than at first instance when partial representation was more likely. There had
87
been a gradual increase of SRLs between 1995 and 1999. There were
88
differences in numbers of SRLs between Family Court registries. These figures
79
Helen Gamble and Richard Mohr, Litigants in Person in the Federal Court of Australia and the
Administrative Appeals Tribunal- A Research Note. (Paper presented to the Sixteenth Annual AIJA Annual
Conference Melbourne. 4-6 September, 1998).
80
Federal Court of Australia, Annual Report 2010-2011 (Canberra, 2011), 43.
81
Federal Court of Australia, Annual Report 2010-2011 (Canberra, 2011), 44.
82
Federal Court of Australia, Annual Report 2010-2011 (Canberra, 2011), 44.
83
Federal Court of Australia, Annual Report 2010-2011 (Canberra, 2011), 44.
84
Federal Court of Australia, Annual Report 2009-2010 (Canberra, 2010).
85
Rosemary Hunter, Ann Genovese, April Chrzanowski, and Carolyn Morris, The changing face of
litigation: unrepresented litigants in the Family Court of Australia (Research Report) Law and Justice
Foundation. August 2002.
86
Rosemary Hunter, Ann Genovese, April Chrzanowski, and Carolyn Morris, The changing face of
litigation: unrepresented litigants in the Family Court of Australia (Research Report) Law and Justice
Foundation. August 2002.
87
Rosemary Hunter, Ann Genovese, April Chrzanowski, and Carolyn Morris, The changing face of
litigation: unrepresented litigants in the Family Court of Australia (Research Report) Law and Justice
Foundation. August 2002.
88
Rosemary Hunter, Ann Genovese, April Chrzanowski, and Carolyn Morris, The changing face of
litigation: unrepresented litigants in the Family Court of Australia (Research Report) Law and Justice
Foundation. August 2002.
25
SELF-REPRESENTED LITIGANTS
are reasonably consistent with those reported in more recent years. 89 Recent
annual reports of the Family Court of Australia indicate that numbers of SRLs
90
have remained reasonably steady for the past five years. The proportion of
finalised cases that had one litigant who was self represented was 16 percent in
91
2010–11. In finalised cases about 10 percent of cases neither party
represented. 92 At trial, in 2010-2011 28 percent of cases had one party who
was unrepresented and 7 percent of cases where both parties were
unrepresented. 93
3.10. Federal Magistrates Court of Australia - Annual reports for the Federal
Magistrates Court have reported that in the past three years that there in
approximately 36 percent of cases at least one party didn’t have
94
representation. In 2007-2008 16.5 percent of total filings in family law
matters in the Federal Magistrates Court were by self represented litigants,
with 70 percent divorce filings were by self represented litigants. 95 Numbers of
self represented litigants in general federal law matters in the Federal
Magistrates Court were not available in 2007-2008. In family law matters in
2006-2007 self represented litigants were present in approximately 17 percent
of final orders, 20 percent of interim orders, 69 percent of divorce proceedings
96
and approximately 46 percent of contravention orders. These percentages
were marginally less than the previous year (2005-2006) for the same types of
family law orders. 97
3.11. Administrative Appeals Tribunal – Gamble and Mohr found that 20-30 percent
98
of parties are unrepresented litigants. In a research report prepared for the
Australian Law Reform Commission Review of the Federal Civil Justice System
more than a decade ago, it was found that levels of representation varied
89
The data reported in recent annual reports from the Family Court is understandably much more
limited than the data found in the 2002 research report by Hunter, Genovese, Chrzanowski, and Morris
therefore precise correlations are difficult.
90
Family Court of Australia, Annual Report 2010-2011 (Canberra: Family Court of Australia, 2011).
91
Family Court of Australia, Annual Report 2010-2011 (Canberra: Family Court of Australia, 2011).
92
Family Court of Australia, Annual Report 2010-2011 (Canberra: Family Court of Australia, 2011).
93
Family Court of Australia, Annual Report 2010-2011 (Canberra: Family Court of Australia, 2011).
94
Federal Magistrates Court of Australia, Annual Report 2010-2011 (Canberra: Federal Magistrates Court
of Australia, 2011), Federal Magistrates Court of Australia, Annual Report 2009-2010 (Canberra: Federal
Magistrates Court of Australia, 2010); Federal Magistrates Court of Australia, Annual Report 2008-2009
(Canberra: Federal Magistrates Court of Australia, 2009).
95
Federal Magistrates Court of Australia, Annual Report 2007-2008 (Canberra: Federal Magistrates Court
of Australia, 2008).
96
Federal Magistrates Court of Australia, Annual Report 2006-2007 (Canberra: Federal Magistrates Court
of Australia, 2007).
97
Federal Magistrates Court of Australia, Annual Report 2005-2006 (Canberra: Federal Magistrates Court
of Australia, 2006).
98
Helen Gamble and Richard Mohr, Litigants in Person in the Federal Court of Australia and the
Administrative Appeals Tribunal- A Research Note. (Paper presented to the Sixteenth Annual AIJA Annual
Conference Melbourne. 4-6 September, 1998).
26
SELF-REPRESENTED LITIGANTS
depending on the review jurisdiction with SRLs much more prevalent in social
welfare cases compared with veteran’s affairs matters.99 According to the ALRC
report most applicants received some kind of assistance from legal
representation at some stage of proceedings. 100
3.12. State courts and tribunals have also reported on the numbers of SRLs with a
data from two states presented here 3.13. Victoria: Data collected in July 2008 found that 3 percent of litigants at the
County Court of Victoria and 4.5 percent of litigants in the Supreme Court of
Victoria were self represented. 101 In the Court of Appeal 11.4 percent of cases
commenced were cases involving one unrepresented person between May
2006 and April 2007. 102 In the Supreme Court the majority of plaintiffs SRLs in
July 2008 were partially represented, compared with the majority of
defendants who were fully self represented. 103 Most disputes at both the
County Court and Supreme Court involving SRLs were dismissed or
discontinued, struck out or finalised at negotiation, with only 21 percent of
cases in the County Court and 12 percent in the Supreme Court finalised at
104
trial. In the Magistrates’ Court of Victoria, it appears data on self represented
is not collected, however a study conducted of the mention court in the
Heidelberg Magistrates’ Court in October 2002 found that 41 percent of cases
on one day involved an unrepresented litigant, 105 and 50 percent of such cases
106
proceeded before the Court.
107
3.14. Queensland: Data collected by the Self-Representation Civil Law Service,
found that in the period 1 July 2008 to 31 October 2010, the service received on
average 16 new applications a month for assistance, and the majority of these
99
Australian Law Reform Commission, Part One: Empirical Information about the Administrative Appeals
Tribunal (June 1999) at
http://www.austlii.edu.au/au/other/alrc/publications/dp/62/consultant_rept1/report1.pdf (accessed 20
May 2012)
100
Australian Law Reform Commission, Part One: Empirical Information about the Administrative
Appeals Tribunal (June 1999) at
http://www.austlii.edu.au/au/other/alrc/publications/dp/62/consultant_rept1/report1.pdf
101
Tania Sourdin, Mediation in the Supreme Court and County Courts of Victoria (Department of Justice
of Victoria, 2009), 84.
102
Victorian Law Reform Commission, Civil Justice Review: Report (Melbourne: Victorian Law Reform
Commission, 2008), 563.
103
Tania Sourdin, Mediation in the Supreme Court and County Courts of Victoria (Department of Justice
of Victoria, 2009), 84.
104
Tania Sourdin, Mediation in the Supreme Court and County Courts of Victoria (Department of Justice
of Victoria, 2009), 84.
105
Although the word litigant is used in this report in fact these cases most likely involved criminal
matters, although the information on the type of cases in this data are not reported in the study.
106
West Heidelberg Community Legal Service, Unrepresented Litigants At What Cost? A report on the
implications of unrepresented litigants in the Magistrates’ Court, Victoria (November 2002).
107
The SRCLS provides free legal advice to self-represented litigants in the civil trial jurisdiction of the
Supreme and District Courts and the Court of Appeal in Brisbane.
27
SELF-REPRESENTED LITIGANTS
are provided with some form of assistance. Many of the people seeking
assistance from the Service had already commenced actions. 108 The number of
self represented litigants in civil cases in the Court of Appeal of Queensland has
increased consistently over a three year period with 42 per cent of civil matters
109
at least one party was self represented. 9.3 per cent of self represented civil
appellants in 2010-2011 were successful in their appeals. 110
What are the demographic characteristics of SRLs?
3.15. The literature on SRLs reports that SRLs have following characteristics:
 SRL applicants are more likely to be male rather than female 111 (there is
some limited research suggesting that women are more likely to resolve
their disputes using ADR).
 SRL respondents are more likely to be male in family court matters. 112
 SRLs are more likely to be young (median age 35 years), unemployed, and
to have lower education levels. 113
108
Tony Woodyatt, Allira Thompson and Elizabeth Pendlebury, ‘Queensland’s self-represented services:
A model for other courts and tribunals.’ (2011) 20 Journal of Judicial Administration 225.
109
Supreme Court of Queensland, Annual Report 2010–2011 (Brisbane: Supreme Court of Queensland,
2011), 14.
110
Supreme Court of Queensland, Annual Report 2010–2011 (Brisbane: Supreme Court of Queensland,
2011), 14.
111
Australian Law Reform Commission, Part two: The costs of litigation in the Family Court of Australia,
(Sydney: Australian Law Reform Commission, June 1999); Rosemary Hunter, Ann Genovese, April
Chrzanowski, and Carolyn Morris, The changing face of litigation: unrepresented litigants in the Family
Court of Australia (Research Report) Law and Justice Foundation. August 2002; John Dewar, Barry Smith
and Cate Banks, Litigants in Person in the Family Court of Australia – Research Report No 20 (Family
Court of Australia, 2000); Tony Woodyatt, Allira Thompson and Elizabeth Pendlebury, ‘Queensland’s selfrepresented services: A model for other courts and tribunals.’ (2011) 20 Journal of Judicial
Administration 225. A higher percentage of male SRLs is consistent with findings in the United Kingdom
see Richard Moorhead and Mark Sefton, Litigants in person. Unrepresented litigants in first instance
proceedings. Department of Constitutional Affairs Research Series 2/05 (United Kingdom, 2005).
112
Australian Law Reform Commission, Part two: The costs of litigation in the Family Court of Australia,
(Sydney: Australian Law Reform Commission, June 1999); John Dewar, Barry Smith and Cate Banks,
Litigants in Person in the Family Court of Australia – Research Report No 20 (Family Court of Australia,
2000); Tony Woodyatt, Allira Thompson and Elizabeth Pendlebury, ‘Queensland’s self-represented
services: A model for other courts and tribunals’ (2011) 20 Journal of Judicial Administration 225.
113
Australian Law Reform Commission, Part two: The costs of litigation in the Family Court of Australia,
(Sydney: Australian Law Reform Commission, June 1999); John Dewar, Barry Smith and Cate Banks,
Litigants in Person in the Family Court of Australia – Research Report No 20 (Family Court of Australia,
2000); Rosemary Hunter, Ann Genovese, April Chrzanowski, and Carolyn Morris, The changing face of
litigation: unrepresented litigants in the Family Court of Australia (Research Report) Law and Justice
Foundation. August 2002; Rosemary Hunter, Jeff Giddings and April Chrzanowski, Legal Aid and SelfRepresentation in the Family Court of Australia (Griffith University, May 2003); Melanie Dye, An
Evaluation of Services for Self-Represented Litigants in the Federal Magistrates Court (Canberra: Federal
Magistrates Court of Australia, October 2004). Again this is also the situation in the United Kingdom see
Richard Moorhead and Mark Sefton, Litigants in person. Unrepresented litigants in first instance
proceedings. Department of Constitutional Affairs Research Series 2/05 (United Kingdom, 2005). In
comparison the age group of users of the Queensland Self-representation Civil Law Service was
predominantly in the 46-65 year old age group: Tony Woodyatt, Allira Thompson and Elizabeth
28
SELF-REPRESENTED LITIGANTS
 SRLs tends to come from culturally and linguistically diverse
backgrounds. 114
 The overall demographic characteristics including gender, employment
and income status may differ depending on whether the person is fully
self represented or partially self represented. 115
 SRLs that were employed were from a range of professional, trade and
116
sales/personal service occupations.
 Some SRLs may have impaired capacity which impacts on their ability to
self-represent or may have a disability. 117
 Some studies suggest that SRLs are more commonly defendants in
proceedings;118 however this finding was not the case in another
study. 119
What types of matters are SRLs appearing in?
 In the Federal Court of Australia, the majority of self represented litigants
are involved in migration appeals. 120
 In the Family Court of Australia 79 percent of applicants and 88.4 percent
of respondents in children’s matters were SRLs. 121
 In the wake of the recent global economic crisis assistance to SRLs with
mortgage and debt-related proceedings including land repossession
claims has been reported in Queensland. 122
 Family, child support, bankruptcy, migration, unlawful discrimination
have higher levels of SRLs. 123 Within the broad types, such as migration,
Pendlebury, ‘Queensland’s self-represented services: A model for other courts and tribunals.’ (2011) 20
Journal of Judicial Administration 225.
114
Melanie Dye, An Evaluation of Services for Self-Represented Litigants in the Federal Magistrates Court
(Canberra: Federal Magistrates Court of Australia, October 2004).
115
Rosemary Hunter, Ann Genovese, April Chrzanowski, and Carolyn Morris, The Changing face of
litigation: unrepresented litigants in the Family Court of Australia (Research Report) Law and Justice
Foundation. August 2002.
116
Australian Law Reform Commission, Part two: The costs of litigation in the Family Court of Australia,
(Sydney: Australian Law Reform Commission, June 1999).
117
Tony Woodyatt, Allira Thompson and Elizabeth Pendlebury, ‘Queensland’s self-represented services:
A model for other courts and tribunals.’ (2011) 20 Journal of Judicial Administration 225.
118
Tony Woodyatt, Allira Thompson and Elizabeth Pendlebury, ‘Queensland’s self-represented services:
A model for other courts and tribunals.’ (2011) 20 Journal of Judicial Administration 225.
119
John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia –
Research Report No 20 (Family Court of Australia, 2000).
120
Federal Court of Australia, Annual Report 2010-2011 (Canberra: Federal Court of Australia, 2011), 43.
121
Australian Law Reform Commission, Part two: The costs of litigation in the Family Court of Australia,
(Sydney: Australian Law Reform Commission, June 1999); see also John Dewar, Barry Smith and Cate
Banks, Litigants in Person in the Family Court of Australia – Research Report No 20 (Family Court of
Australia, 2000).
122
Tony Woodyatt, Allira Thompson and Elizabeth Pendlebury, ‘Queensland’s self-represented services:
A model for other courts and tribunals’ (2011) 20 Journal of Judicial Administration 225, 230.
29
SELF-REPRESENTED LITIGANTS
some matters will be more prevalent than others such as protection
visas. 124 In terms of family law matters in Federal Magistrates Court of
Australia 70 percent of divorce matters have self represented litigants,
and child support and contravention applications also have high
125
numbers.
What are the outcomes in matters where at least one party is self
represented?
 The degree to which an SRL is active in a matter appears to have an
impact on the duration of the case and also the type of case. Thus an
inactive SRL meant the case was of shorter duration and an active SRL
meant the case was longer in duration; family cases less likely to settle
without representation. 126
 Matters involving SRLs are more likely to be withdrawn, settled, or
127
abandoned.
 Matters where parties are fully represented may be more likely to be
resolved by negotiation and the chances of settlement increased
proportionate to the level of representation. 128
 Research suggests that in family law matters cases involving SRLs do not
129
necessarily take longer than those cases involving represented parties.
 Family law matters involving SRLs may even be shorter in duration than
those cases involving legal representation. 130
 Cases in the Family Court involving SRLs took a median of 3.2 months and
with many resolved after being listed for hearing but prior to hearing. 131
123
Federal Magistrates Court of Australia, Annual Report 2010-2011 (Canberra: Federal Magistrates
Court of Australia, 2011).
124
Federal Magistrates Court of Australia, Annual Report 2002-2003 (Canberra: Federal Magistrates
Court of Australia, 2003).
125
Federal Magistrates Court of Australia, Annual Report 2002-2003 (Canberra: Federal Magistrates
Court of Australia, 2003).
126
Kim Williams, Litigants in person: a literature review – Research Summary 2/11 (Ministry of Justice,
United Kingdom, June 2011).
127
Australian Law Reform Commission, Part two: The costs of litigation in the Family Court of Australia,
(Sydney: Australian Law Reform Commission, June 1999); Rosemary Hunter, Family Law Case Profiles,
Justice Research Centre, Law Foundation of New South Wales, June 1999; Family Law Council, Litigants
in Person: A Report to the Attorney-General prepared by the Family Law Council. (Canberra, August
2000).
128
Justice Research Centre, Part One: Empirical Information about the Family Court of Australia, Family
Court Research Conducted for the Australian Law Reform Commission, June 1999.
129
Australian Law Reform Commission, Part two: The costs of litigation in the Family Court of Australia,
(Sydney: Australian Law Reform Commission, June 1999).
130
Rosemary Hunter, Family Law Case Profiles, Justice Research Centre, Law Foundation of New South
Wales, June 1999.
30
SELF-REPRESENTED LITIGANTS
 SRLs may be less likely to obtain successful outcomes. 132
What are the effects or impacts of self-representation?
3.16. The presence of SRLs may impact upon the length of the trial, the practices and
procedures of the courts, create costs and delays for opposing parties, and have
an impact on the outcomes of cases. However, there are significant differences
between different courts, registries and jurisdictions. 133 Overall there are
significantly different impacts from self-representation on:
 the self represented litigant.
 the represented party.
 on the court or tribunal.
On the self represented litigant?
 An SRL may generally have a greater need for information, support and
advice. 134
 The impact on the SRL may vary between feeling intimidated or receiving
preferential treatment. 135
 The SRL incurs the cost of running his case which is not recoverable apart
136
from legal fees or amounts paid.
 SRLs may be less likely to be successful in their claim than represented
litigants and are more likely to have their matter dismissed, discontinued
137
or have costs awarded against them.
131
Australian Law Reform Commission, Part two: The costs of litigation in the Family Court of Australia,
(Sydney: Australian Law Reform Commission, June 1999).
132
Australian Law Reform Commission, Managing Justice – A review of the Federal Civil Justice System
Report No 89 (Canberra: Australian Government Print Services, 2000).
133
Rosemary Hunter, Family Law Case Profiles, Justice Research Centre, Law Foundation of New South
Wales, June 1999.
134
John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia –
Research Report No 20 (Family Court of Australia, 2000).
135
John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia –
Research Report No 20 (Family Court of Australia, 2000); Duncan Webb, ‘The right not to have a lawyer’
(2007) 16 Journal of Judicial Administration 165-178.
136
Cachia v Hanes (1994) 179 CLR 403; von Reisner v Commonwealth of Australia (No 2) [2009] FCAFC
172 (8 December 2009); Family Law Council, Litigants in Person: A Report to the Attorney-General
prepared by the Family Law Council. (Canberra, August 2000); Family Law Rules 2004 (Cth) reg 19.01.
The Australian position is also the situation in the United States however not in the United Kingdom (see
the Litigants in Person (Costs and Expenses) Act 1975 (UK)) or Canada (see Robert Flannigan, ‘Costs for
Self-Represented Litigants: Principles, Interests and Agendas’ (2007) 33 Advocates' Quarterly 447) where
SRLs are able to recover more of their own costs in running a case.
137
Helen Gamble and Richard Mohr, Litigants in Person in the Federal Court of Australia and the
Administrative Appeals Tribunal- A Research Note. (Paper presented to the Sixteenth Annual AIJA Annual
Conference Melbourne. 4-6 September, 1998.)
31
SELF-REPRESENTED LITIGANTS
On the opposing (represented) party?
 Lawyers for the parties opposing a SRL are more likely to have to assist
the SRL in the preparation and lodgment of court documents. 138
 Lawyers for the opposing party are more likely to have to address
irrelevant issues and evidence as part of the SRLs case. 139
 A party opposing an SRL or a witness for that party may be required to
undergo cross-examination by an SRL which may be traumatic in some
instances. 140
 The party opposing the SRL may expend or incur more legal costs as a
result of delays or time taken at trial by the SRL. 141
 The party opposing an SRL is more likely to feel a sense of injustice and
left feeling aggrieved with the court process because of the assistance
142
provided to the SRL.
On the court or tribunal?
 A judicial officer may be more likely to be required to spend time
explaining court procedures, rules of evidence and issue identification. In
the case of registry staff more time may need to be spent explaining
processes and assisting with the filling out and lodging of court forms. 143
 Working with SRLs can increase the pressure on the judicial officer to
ensure justice is served through the provision of assistance and
information. 144
 Judges and registry staff believe SRLs are often disadvantaged by the lack
of legal representation and that opposing parties are also
145
disadvantaged.
138
Helen Gamble and Richard Mohr, Litigants in Person in the Federal Court of Australia and the
Administrative Appeals Tribunal- A Research Note. Paper presented to the Sixteenth Annual AIJA Annual
Conference Melbourne. 4-6 September, 1998; Family Law Council, Litigants in Person: A Report to the
Attorney-General prepared by the Family Law Council. (Canberra, August 2000).
139
Helen Gamble and Richard Mohr, Litigants in Person in the Federal Court of Australia and the
Administrative Appeals Tribunal- A Research Note. Paper presented to the Sixteenth Annual AIJA Annual
Conference Melbourne. 4-6 September, 1998; Family Law Council, Litigants in Person: A Report to the
Attorney-General prepared by the Family Law Council. (Canberra, August 2000).
140
Family Law Council, Litigants in Person: A Report to the Attorney-General prepared by the Family Law
Council. (Canberra, August 2000); Law Council of Australia, Erosion of Legal Representation in the
Australian Justice System Research Report (February 2004).
141
Family Law Council, Litigants in Person: A Report to the Attorney-General prepared by the Family Law
Council. (Canberra, August 2000).
142
Law Council of Australia, Erosion of Legal Representation in the Australian Justice System Research
Report (February 2004).
143
Family Law Council, Litigants in Person: A Report to the Attorney-General prepared by the Family Law
Council. (Canberra, August 2000).
144
Law Council of Australia, Erosion of Legal Representation in the Australian Justice System Research
Report (February 2004).
32
SELF-REPRESENTED LITIGANTS
 SRLs are thought to increase the workload of the court or tribunal. 146 In
the Administrative Appeals Tribunal, registry staff reportedly spent twice
as much time helping SRLs. 147
 The assistance required to be given by the court to the SRL may give the
impression of bias against or create a perception of unfairness in the
represented party. 148
 There is a perception that SRLs are more likely to get away with noncompliance of court directions and orders. 149
 Trials involving SRLs take longer than those involving legal
150
representation.
 SRLs have been found to place judicial officers and registry staff under
greater amounts of stress. 151
 Other impacts reported by courts include the ; incorrect use of forms,
incorrect modes of applications, submissions and requests by way of
correspondence; requests for extensions of time and wrongly framed
requests for relief. 152
145
John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia –
Research Report No 20 (Family Court of Australia, 2000).
146
Law Council of Australia, Erosion of Legal Representation in the Australian Justice System Research
Report (February 2004).
147
Gamble, H & Mohr, R, Litigants in Person in the Federal Court of Australia and the Administrative
Appeals Tribunal- A Research Note. (Paper presented to the Sixteenth Annual AIJA Annual Conference
Melbourne. 4-6 September, 1998.)
148
Family Law Council, Litigants in Person: A Report to the Attorney-General prepared by the Family Law
Council. (Canberra, August 2000); Law Council of Australia, Erosion of Legal Representation in the
Australian Justice System Research Report (February 2004).
149
Law Council of Australia, Erosion of Legal Representation in the Australian Justice System Research
Report (February 2004).
150
Family Law Council, Litigants in Person: A Report to the Attorney-General prepared by the Family Law
Council. (Canberra, August 2000), 30.
151
John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia –
Research Report No 20 (Family Court of Australia, 2000).
152
John Dewar, Bronwyn Jerrard and Fiona Bowd, ‘Self-representing Litigants: A Queensland
Perspective’ (2002) 23 The Queensland Lawyer, 65.
33
SELF-REPRESENTED LITIGANTS
4.
Research gaps
Introduction
4.1.
This review has identified numerous gaps in the data collected on SRLs in
Australian courts and tribunals, both as reported in the literature and from the
fact that literature has not been found with expected reported data. Data is
reportedly not collected on SRLs in most Australian courts and where it is
collected it is not consistent. 153 The data collected on SRLs is generally limited
154
to numbers and types of matters.
4.2.
The lack of data collection has been attributed to difficulties within case
management systems to record information on SRLs, failure by staff to record
data consistently and inaccuracies in extracting data reports from the case
management systems. 155 Courts and tribunals have also reported uncertainty
about what data should be collected. 156 Although numerous one-off studies in
different jurisdictions, and the various reports cited above, have collected a
broad range of data, these studies are now somewhat dated. The past research
has highlighted the types of issues which arise in cases involving SRLs, yet the
type of data which is in fact routinely collected by courts and tribunals is far
more limited.
Variables which could be recorded and measured
4.3.
This literature review has highlighted a range of consistently reported variables
that are seen as relevant in the SRL area:
153
Australian Institute of Judicial Administration and the Federal Court of Australia, Forum on Self–
Represented Litigants (Sydney, 17 September 2004).
154
Australian Institute of Judicial Administration and the Federal Court of Australia, Forum on Self–
Represented Litigants (Sydney, 17 September 2004).
155
Australian Institute of Judicial Administration and the Federal Court of Australia, Forum on Self–
Represented Litigants (Sydney, 17 September 2004).
156
Australian Institute of Judicial Administration and the Federal Court of Australia, Forum on Self–
Represented Litigants (Sydney, 17 September 2004).
34
SELF-REPRESENTED LITIGANTS
 Age
 Gender
 Income – both income source and income amount
 Concession card status
 Education
 Location – ‘postcode justice’
 Referral gateway and information support
 Person or Company
 Plaintiff or Defendant (applicant/ respondent)
 Identity of opposing party(ies)
 Age of dispute – including date of initiation of case and date of
finalization of case and elapsed times between these dates.
 Previous involvement in litigation
 Pre filing processes (including past tribunal or other involvement)
 Type of matter
 What process was used – e.g. mediation
 SRL for all of the case or only part of it
 SRLs in separate/different cases or part of one case
 Case outcome or how were SRLs’ disputes finalized (also, consideration
needs to be given on how to control for case complexity)
 What court/ tribunal events did SRLs attend and how many?
 Case duration and factors impacting case duration
 Involvement of specialist lay representatives? (Can be just as effective as
legal representation see Ministry of Justice UK)
 Availability of pro-bono and duty lawyer schemes
 Nature of court/ tribunal support services

 Country of birth of person
 Main language other than English spoken at home.
 Proficiency in spoken English
 Indigenous Australian or Torres Strait Islander status
 Impacts:
o
Case duration
o
Problems faced in court
 Reasons for self-representation:
o
Belief that case was simple enough to be heard without a lawyer
o
Funding difficulties
o
Other reasons – i.e. ease of use of existing tribunal process
o
Availability of pro bono or unbundled legal services
o
Attendance at ADR or other processes
35
SELF-REPRESENTED LITIGANTS
o
4.4.
Characteristics of other party – i.e. the other party is the
government and has obligations to assist the SRL.
These factors may be grouped into three areas;
 Individual characteristics that influence representative status
 Case characteristics which dictate whether representative status will be
significant to outcome or as an impact on the court or tribunal
 Court and tribunal processes which may be impacted upon or which
highlight a need for accommodation to different representative status.
Conclusions
4.5.
This literature review is still a work in progress in that it is anticipated that the
Project Team may uncover ‘grey’ literature in the next stage of the Project.
‘Grey’ literature includes Reports and other materials that can be prepared
within courts and tribunals which may not be circulated or readily available.
4.6.
The next steps in the project include surveying courts and tribunals and seeking
input to determine whether there may be additional information or data
material that can be considered. The project team welcomes your comments.
Please email the Project Director – Tania.Sourdin@Monash.edu
36
SELF-REPRESENTED LITIGANTS
References – Select Bibliography
The below table is an adapted and updated table 157 from the Law Council of Australia,
Erosion of Legal Representation in the Australian Justice System Research Report
(February 2004).
Timeline of significant events, research and comment in relation to self represented
litigants in Australia, 1994-2012.
1994
Commonwealth Access to Justice Advisory Committee: Access to Justice: an Action
Plan
Law Council of Australia Submission Legal Aid Funding in the ‘90s
Mason, CJ in Cachia v Hanes (1994) 120 ALR 385 at 391
1995
Attorney-General Lavarch – The Justice Statement
1996
Attorney-General Williams – announcement of changes to legal aid funding
arrangements.
National Legal Aid: Meeting Tomorrow’s Needs on Yesterday’s Budget
ALRC Background Paper 4 The unrepresented party Background Paper 4 (Sydney:
Australian Law Reform Commission 1996).
1997
Australian Law Reform Commission. Review of the Adversarial System of Litigation
Senate Standing Committee on Legal and Constitutional Affairs: Inquiry into Legal Aid
1998
John Dewar, John Giddings and Stephen Parker, The Impact of Changes in Legal Aid on
Criminal and Family Law Practice in Queensland (“Griffith Legal Aid report”). (Faculty
of Law, Griffith University Queensland, 1998.)
157
Table 1: Timeline of significant events, research and comment in relation to self-represented litigants,
1994-2003.
Select Bibliography
37
SELF-REPRESENTED LITIGANTS
Helen Gamble and Richard Mohr, Litigants in Person in the Federal Court of Australia
and the Administrative Appeals Tribunal- A Research Note. (Paper presented to the
Sixteenth Annual AIJA Annual Conference Melbourne. 4-6 September, 1998).
Barry Smith, Study of the effects of legal aid cuts on the Family Court of Australia and
its litigants Research Report No. 19. (Family Court of Australia, 1998)
1999
Murray Gleeson Chief Justice, The State of the Judicature, (Paper presented to
Australian Legal Convention. Canberra 10 October, 1999).
Australian Law Reform Commission. Review of the Federal Civil Justice System.
Discussion Paper No. 62. (Canberra: Australian Government Publishing Service, 1999).
Rosemary Hunter, Family Law Case Profiles, (Justice Research Centre, Law Foundation
of New South Wales, June 1999).
2000
John Dewar, Barry Smith, CBanks, C. Litigants in person in the Family Court of
Australia. Research Report No. 20 (Family Court of Australia 2000).
Australian Law Reform Commission. Managing Justice – A Review of the Federal Civil
Justice System, Report No. 89. Canberra: Australian Government Publishing Service
AGPS., 2000.
Family Law Council. Litigants in Person: a Report to the Attorney-General, (Canberra:
Family Law Council, 2000).
NCOSS, Going it Alone (Law and Justice Foundation of NSW, 2000).
Mary Mervat Rebehy, Unrepresented parties and the Equal Opportunity Tribunal: a
survey of Tribunals and recommendations for change, 2000.
2001
Chief Justice Nicholson in T v S [2001] Fam CA 1147.
Australian Institute of Judicial Administration. Litigants in Person Management Plans:
Issues for Courts and Tribunals. (Melbourne: Australian Institute of Judicial
Administration, 2001).
2002
Rosemary Hunter, Ann Genovese, April Chrzanowski, and Carolyn Morris, The
Changing face of litigation: unrepresented litigants in the Family Court of Australia
(Research Report) Law and Justice Foundation. August 2002.
38
Select Bibliography
SELF-REPRESENTED LITIGANTS
West Heidelberg Community Legal Service. Unrepresented Litigants at What Cost? A
report on the implications of unrepresented litigants in the Magistrates’ Court,
Victoria. November, 2002.
2003
Rosemary Hunter, Jeff Giddings and April Chrzanowski, Legal Aid and SelfRepresentation in the Family Court of Australia (Griffith University, May 2003)
http://www.nla.aust.net.au/res/File/PDFs/NLA_selfrep_FCA.pdf
Justice Robert Nicholson, Can Courts Cope with Self-Represented Litigants?
September 2003.
Family Court of Australia, Self-represented litigants - A challenge: Project Report
December 2000-December 2002 (Canberra: Family Court of Australia, 2003).
2004
Melanie Dye, An Evaluation of Services for Self-Represented Litigants in the Federal
Magistrates Court (Canberra: Federal Magistrates Court of Australia, October 2004).
Law Council of Australia, Erosion of Legal Representation in the Australian Justice
System Research Report (February 2004).
Australian Parliament Senate Legal and Constitutional Legislation Committee. Legal
Aid and Access to Justice (Canberra, ACT: Australian Parliament, June 2004).
Australian Institute of Judicial Administration and the Federal Court of Australia,
Forum on Self–Represented Litigants (Sydney, 17 September 2004)
http://www.aija.org.au/online/SRLForumReport.pdf
Elizabeth Richardson, Self-represented parties: A trial management guide for the
judiciary (Melbourne: County Court of Victoria, 2004).
2009
Access to Justice Taskforce Attorney-General’s Department, ‘A Strategic Framework
for Access to Justice in the Federal Civil Justice System’ (23 September 2009).
Senate Legal and Constitutional Affairs References Committee, Access to Justice
(Canberra: Commonwealth of Australia, December 2009).
2011
Family Court of Australia and Federal Magistrates Court of Australia, Family Law User
Satisfaction Survey Results 2011, (Canberra, December 2011
Select Bibliography
39
SELF-REPRESENTED LITIGANTS
2012
Federal Magistrates Court of Australia, Review of the Dandenong Project (Canberra,
Federal Magistrates Court, March 2012)
http://www.fmc.gov.au/pubs/docs/2012DandenongProject)Report.pdf
40
Select Bibliography
SELF-REPRESENTED LITIGANTS
Case Law
Cachia v Hanes (1994) 179 CLR 403;
von Reisner v Commonwealth of Australia (No 2) [2009] FCAFC 172 (8 December
2009).
Legislation
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) reg 19.01.
s 78 Judiciary Act 1903 (Cth).
Litigants in Person (Costs and Expenses) Act 1975 (UK).
Annual Reports
Family Court of Australia, Annual Report 2010-2011 (Canberra: Family Court of
Australia, 2011).
Federal Court of Australia, Annual Report 2010-2011 (Canberra, 2011), 43.
Federal Court of Australia, Annual Report 2009-2010 (Canberra, 2010).
Federal Magistrates Court of Australia, Annual Report 2010-2011 (Canberra: Federal
Magistrates Court of Australia, 2011),
Federal Magistrates Court of Australia, Annual Report 2009-2010 (Canberra: Federal
Magistrates Court of Australia, 2010);
Federal Magistrates Court of Australia, Annual Report 2008-2009 (Canberra: Federal
Magistrates Court of Australia, 2009).
Federal Magistrates Court of Australia, Annual Report 2007-2008 (Canberra: Federal
Magistrates Court of Australia, 2008).
Federal Magistrates Court of Australia, Annual Report 2006-2007 (Canberra: Federal
Magistrates Court of Australia, 2007).
Federal Magistrates Court of Australia, Annual Report 2005-2006 (Canberra: Federal
Magistrates Court of Australia, 2006).
Federal Magistrates Court of Australia, Annual Report 2003-2004 (Canberra: Federal
Magistrates Court of Australia, 2004).
Select Bibliography
41
SELF-REPRESENTED LITIGANTS
High Court of Australia, Annual Report 2010-2011 (Canberra, High Court of Australia,
2011).
High Court of Australia, Annual Report 2009-2010 (Canberra, High Court of Australia,
2010).
High Court of Australia, Annual Report 2008-2009 (Canberra, High Court of Australia,
2009).
High Court of Australia, Annual Report 2001-2002 (Canberra, High Court of Australia,
2002).
Supreme Court of Queensland, Annual Report 2010–2011 (Brisbane: Supreme Court
of Queensland, 2011), 14.
Supreme Court of Queensland, Annual Report 2010–2011 (Brisbane: Supreme Court
of Queensland, 2011), 14.
Reports
Australian Institute of Judicial Administration and the Federal Court of Australia,
Forum on Self–Represented Litigants (Sydney, 17 September 2004).
Australian Law Reform Commission, Managing Justice – A review of the Federal Civil
Justice System Report No 89 (Canberra: Australian Government Print Services, 2000;
Australian Law Reform Commission, The Unrepresented Party - Background Paper 4
(December 1996).
Canadian Forum on Civil Justice, Alberta Legal Services Mapping Project, An Overview
of Findings from the Eleven Judicial Districts Final Report (Canadian Forum on Civil
Justice, July 2011).
John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of
Australia – Research Report No 20 (Family Court of Australia, 2000).
Melanie Dye, An Evaluation of Services for Self-Represented Litigants in the Federal
Magistrates Court (Canberra: Federal Magistrates Court of Australia, October 2004).
Family Court of Australia, Self-represented litigants: A challenge – Project Report
December 2000-December 2002. (Family Court of Australia, 2003).
Family Law Council, Litigants in Person: A Report to the Attorney-General prepared by
the Family Law Council. (Canberra, August 2000).
Rosemary Hunter, Family Law Case Profiles. (Justice Research Centre, Law Foundation
of New South Wales, June 1999).
42
Select Bibliography
SELF-REPRESENTED LITIGANTS
Rosemary Hunter, Ann Genovese, April Chrzanowski, and Carolyn Morris, The
changing face of litigation: unrepresented litigants in the Family Court of Australia
(Research Report) Law and Justice Foundation. August 2002.
Rosemary Hunter, Jeff Giddings and April Chrzanowski, Legal Aid and SelfRepresentation in the Family Court of Australia. (Griffith University, May 2003).
Justice Research Centre, Part One: Empirical Information about the Family Court of
Australia, Family Court Research Conducted for the Australian Law Reform
Commission, June 1999.
Law Council of Australia, Erosion of Legal Representation in the Australian Justice
System Research Report (February 2004).;
Law Reform Commission of Western Australia, Review of the criminal and civil justice
system in Western Australia – Final Report Project 92 (Law Reform Commission of
Western Australia, 1999).
R Moorhead and M Sefton, Litigants in person. Unrepresented litigants in first
instance proceedings. Department of Constitutional Affairs Research Series 2/05
(United Kingdom, 2005).
Senate Legal and Constitutional Affairs References Committee, Access to Justice
(Canberra: Commonwealth of Australia, December 2009).
Senate Legal and Constitutional Affairs References Committee, Inquiry into the
Australian Legal Aid System: First Report. (Canberra, Commonwealth of Australia, 26
March 1997);
Senate Legal and Constitutional Affairs References Committee, Inquiry into the
Australian Legal Aid System: Second Report. (Canberra, Commonwealth of Australia,
June 1997);
Senate Legal and Constitutional Affairs References Committee, Inquiry into the
Australian Legal Aid System: Third Report (Canberra, Commonwealth of Australia, July
1998);
Senate Legal and Constitutional References Committee, Inquiry into Legal Aid and
Access to Justice, June 2004.
Melissa Smith, Esther Banbury and Su-Wuen Ong, Self-represented Litigants: An
Exploratory Study of Litigants in Person in the New Zealand Criminal Summary and
Family Jurisdictions. (Wellington, New Zealand: Ministry of Justice, New Zealand, July
2009).
Tania Sourdin, Mediation in the Supreme Court and County Courts of Victoria
(Department of Justice of Victoria, 2009), 84.
Select Bibliography
43
SELF-REPRESENTED LITIGANTS
M Stratton, Alberta self-represented litigants mapping project final report.
(Edmonton, Alberta: Canadian Forum on Civil Justice, 2007).
Victorian Law Reform Commission, Civil Justice Review: Report (Melbourne: Victorian
Law Reform Commission, 2008), 563.
West Heidelberg Community Legal Service, Unrepresented Litigants At What Cost? A
report on the implications of unrepresented litigants in the Magistrates’ Court,
Victoria (November 2002).
Kim Williams, Litigants in person: a literature review – Research Summary 2/11
(Ministry of Justice, United Kingdom, June 2011).
Lord Woolf, Access to justice: Interim report to the Lord Chancellor on the civil justice
system in England and Wales (1995).
Articles
Duncan Webb, ‘The right not to have a lawyer’ (2007) 16 Journal of Judicial
Administration 165-178.
Rosemary Hunter, ‘Litigants in person in contested cases in the Family Court’ (1998)
12 Australian Journal of Family Law 171.
Tony Woodyatt, Allira Thompson and Elizabeth Pendlebury, ‘Queensland’s selfrepresented services: A model for other courts and tribunals.’ (2011) 20 Journal of
Judicial Administration 225.
Robert Flannigan, ‘Costs for Self-represented Litigants: Principles, Interests and
Agendas’ (2007) 33 Advocates' Quarterly 447.
John Dewar, Bronwyn Jerrard and Fiona Bowd, ‘Self-representing Litigants: A
Queensland Perspective’ (2002) 23 The Queensland Lawyer, 65.
Maria Barrett-Morris, Mike Aujla, and Hugh Landerkin, The Self-represented Litigant in
the Courts: An Annotated Bibliography. (Royal Roads University, 2004).
Conference presentations and speeches
Chief Justice M Gleeson, The State of the Judicature. (Paper presented to Australian
Legal Convention, Canberra, 10 October 1999).
Gamble, H & Mohr, R, Litigants in Person in the Federal Court of Australia and the
Administrative Appeals Tribunal- A Research Note. (Paper presented to the Sixteenth
Annual AIJA Annual Conference Melbourne. 4-6 September, 1998).
Hawkins, Murray, Emerging Trends in the Provision of Legal Services: Some Australian
Experiences (Speech presented to the Commonwealth Law Association Conference,
Nairobi, 7 September 2007).
Books and monographs
44
Select Bibliography
SELF-REPRESENTED LITIGANTS
E Richardson, Self-represented parties: A trial management guide for the judiciary
(Melbourne: County Court of Victoria, 2004).
Select Bibliography
45
SELF-REPRESENTED LITIGANTS
46
Select Bibliography