Legal Insights

Self-represented litigants - issues for government

• 18 September 2014 • 6 min read

There are increasing numbers of self-represented litigants in our courts and tribunals. Self-represented litigants, or SRLs, pose particular challenges, especially for government agencies (including local government). This article looks at what a SRL is, the issues they raise for government dealing with them and some tips to help manage them, as well as some proposed reforms relating to Australia's civil and justice system designed to make it easier for people to resolve their disputes.

What is a SRL?

There are different ways to define what a SRL is. They can comprise people who are active in court or tribunal proceedings (without legal representation), as well as people who are attempting to resolve a legal problem for which they do not have legal representation, whether or not the matter actually goes before a court or tribunal.¹

They are not necessarily vexatious litigants nor necessarily exhibit unreasonable complainant conduct,² although they may do so.

It seems without doubt that the number of SRLs is growing. In 2012, the Australian Centre for Justice Innovation, Monash University, found the number of SRLs in courts and tribunals is reportedly greater than in previous decades in all Commonwealth courts and tribunals, with proportions ranging between 17 and 93 per cent, depending on a number of factors that include, but are not limited by, the nature of the case, the informality of the forum and the availability of funded legal resources.³

Issues for government dealing with SRLs

It has been said that most SRLs lack three qualities that competent lawyers possess – legal skill and ability, and objectivity.⁴

This poses particular challenges for government dealing with SRLs.

A person may be a SRL to avoid the cost of legal representation but often they consider that they can handle their case best themselves. They often have a desire for control or to be heard. This means they are likely to be emotionally connected to the matter, making an early resolution of the matter more difficult to achieve. SRLs may also not understand the nature of 'without prejudice' discussions. To assist them, it can be useful to allow a support person to be present during the dispute resolution processes.

SRLs are less likely to understand and comply with court and tribunal processes. They may send communications to the court and tribunal without the other party's knowledge. Experience shows that more appearances are likely, hearings take longer and there is more chance of decisions being appealed. This all means higher legal costs are likely.

Courts and tribunals have an overriding duty to ensure proceedings are fair and so have a positive duty to give proper assistance to SRLs. Again, experience shows that courts and tribunals are reluctant to strike out claims by SRLs, and so any applications for strike-out or dismissal of proceedings may simply delay proceedings and provide the SRL with a further sense of grievance. A better approach may be to seek to expedite matters in which SRLs have no reasonable prospect of success. Courts and tribunals also seem more ready to grant adjournments requested by SRLs, especially if it is for the purpose of obtaining some legal assistance. It is always recommended that a SRL be told they should seek legal representation.
Lawyers acting for government clients opposed to SRLs also owe duties as an officer of the court. They must treat all opponents fairly, although this does not mean they cannot take all points and advance all submissions that would otherwise be open. They don't have a positive obligation to assist or take any action on a SRL's behalf. However, they are somewhat constrained in their ability to object to a SRL's evidence or cross-examination, even where it is irrelevant, repetitive or annoying. This does not extend, though, to where a SRL acts in a manner that is harassing, offensive or intimidating.

For government itself, it will be bound by the relevant Model Litigant Guidelines, and these take on a particular significance in matters involving SRLs. When dealing with SRLs directly, care should be taken to record communications in writing, particularly any offers of compromise.

Proposed Reforms

The Productivity Commission was recently asked by the Commonwealth Government to undertake an inquiry into Australia's system of civil dispute resolution with a view to 'promoting access to justice'. The Productivity Commission took this to mean it was to look at ways to make it easier for people to resolve their disputes.

In its draft report released in April 2014, the Productivity Commission has identified a number of barriers that prevent people from resolving civil disputes in a timely and affordable way and suggested ways to address these barriers.

For example, it notes that parties to a dispute have recourse to a range of low cost and informal dispute resolution mechanisms but many people have difficulty in identifying where to seek assistance. It believes that providing people with basic information so they can resolve their disputes privately and helping people connect with less formal mechanisms, such as ombudsmen, could significantly reduce the level of unmet legal need.

As a result, one of its proposed reforms involves raising awareness of ombudsmen by government and industry and requiring government agencies to contribute to the cost of complaints lodged against them. It suggests this will give government agencies incentives to resolve disputes quickly and efficiently, and make some use of internal dispute resolution options when it is more efficient to do so. It also proposes a reform that all government agencies (including local government) develop dispute resolution management plans that facilitate clear communication and use of low cost alternative dispute resolution mechanisms where appropriate. It calls on such plans to be released publicly.

The Productivity Commission will take into account submissions received in response to its draft report before issuing a final report in September 2014.

Conclusion

SRLs pose particular challenges of which government agencies should be aware, especially as their number appears to be growing.

Government agencies are encouraged to make more use of internal dispute resolution options and alternative dispute resolution processes in an attempt to resolve disputes quickly and efficiently. Consideration should also be given to developing a dispute resolution management plan if one does not already exist.

That said, early resolution of disputes may not be possible, especially where SRLs are emotionally connected to the matter. This is likely to mean that matters will take longer than usual to be determined.

1 Final Report – June 2012 – Self-Represented Litigants, Gathering Useful Information, E Richardson, T Sourdin and N Wallace, Australian Centre for Justice Innovation (ACJI), Monash University.
2 Refer to our earlier article on managing 'Unreasonable Complainant Conduct'.
3 Final Report – June 2012 – Self-Represented Litigants, Gathering Useful Information, E Richardson, T Sourdin and N Wallace, Australian Centre for Justice Innovation (ACJI), Monash University.
4 Tomasevic v Tomasevic [2007] VSC 337.

By Melanie Olynyk