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 from legal fees or amounts paid.136
SRLs may be less likely to be successful in their claim than represented litigants and are more likely to have their matter dismissed, discontinued or have costs awarded against them.137
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
32
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 provided to the SRL.142
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
disadvantaged.145
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
33 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 non- compliance of court directions and orders.149
Trials involving SRLs take longer than those involving legal representation.150
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.
34