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Litigants
in Person in the Federal Court of Australia and the Administrative
Appeals Tribunal:
A Research Note
Paper presented to the
Sixteenth AIJA Annual Conference Melbourne
4 - 6 September 1998
Helen Gamble* and Richard
Mohr*
Background and
purpose of the research
Concerns at the numbers
and demands of litigants in person have been expressed in literature
from the United Kingdom (Otton 1995) and the United States (Goldschmidt
1998). Some of these concerns were being expressed in Australia,
including commentary in the case law.
The Federal Court
of Australia and the Administrative Appeals Tribunal (AAT) decided
to join the Centre for Court Policy and Administration at the University
of Wollongong and the Justice Research Centre, Sydney in a collaborative
research project to evaluate the impact of litigants in person on
the management of their business. The research was supported by
a Strategic Partnerships with Industry grant for collaborative research
from the Australian Research Council, and commenced in mid 1996.
The research was intended
to be exploratory, in order to gain some data which would assist
in quantifying the issue, particularly regarding change over time.
It was also considered crucial that the nature and perceptions of
the interactions between litigants in person and the Court and Tribunal
should be understood from a number of relevant points of view: the
Federal Court and AAT, the legal profession and, significantly,
the litigants in person themselves. Interview data, analysis of
individual cases, a literature review and case law commentary proved
valuable in the interpretation of numerical data. We recognised
significant differences in the nature of the matters brought before
the two forums and in their procedures. By taking careful account
of these differences, we hoped to see the two systems in their own
terms, rather than to attempt inappropriate comparisons.
The research has been
characterised by a wide range of methods and approaches, intended
to illuminate the issues more than to provide definitive answers
to narrow questions. Throughout the paper we have tried to ensure
that the links between the methods used and the findings are clear.
Research methods
In addition to the
documentary research on case law, literature and procedures, we
carried out a time survey in the Sydney registries of the Federal
Court and the AAT for one week during which counter staff, registrars
and all those having direct contact with clients (litigants or their
legal representatives) kept records of time spent with each client,
and their representation status.
To study trends in
the numbers of unrepresented litigants in the Federal Court we sampled
cases commenced in the General Registry, Sydney and Brisbane, of
the Federal Court during a three month period (March April May)
in each of 1992, 1994 and 1996. From its AATCAMS system, the AAT
provided a similar sample of three months (cases finalised March
to May) in each of the same three years taken from the General and
Veterans' Division in New South Wales and Queensland. This data
gave information on the actual numbers of litigants in person and
indications of the types of cases among all litigants in each of
the forums (see Table 1 below). At this stage, litigants in person
were identified by representation status at commencement. Equivalent
data was not available from the FEDCAMS computer database, so registry
staff sorted cases in the Federal Court manually.
To obtain more detailed
information, in the Federal Court we examined the files of all cases
involving a litigant in person finalised between 1 July 1995 and
30 June 1996. There were 41 in Sydney and 16 in Brisbane. In the
AAT, a similar exercise with all cases finalised March to May 1996
yielded 184 cases involving an unrepresented applicant. Analysis
of these files gave more detailed information on the nature, progress
and outcomes of the cases and, in the Court, the awarding of costs
and waiver of fees. This analysis also allowed a more accurate identification
of the representation status of litigants. This revealed a more
complex pattern of legal advice and lack of representation than
is revealed by raw data on representation at commencement (discussed
below).
All the cases from
the Federal Court in 1996 and a representative sample of AAT files
were chosen for more detailed analysis. These were matched with
files of similar type, randomly selected, of represented parties,
and were examined to assess the way in which both types of cases
were managed. The analysis included an assessment of the progress
and outcomes of the cases.
Sample sizes for each
aspect of the research were tailored to the needs and the total
population. That population was relatively small in the Federal
Court, so that all unrepresented applicants for a 12 month period
could be included in the file analysis and mail-out. More selection
was required in the AAT, due to the higher numbers of unrepresented
applicants, and the greater uniformity of case types.
Questions on their
experiences of the case concerned were put to unrepresented applicants
and respondent lawyers, first by mail and followed up with telephone
interviews by consent, with the assistance of an interpreter where
necessary. From the Federal Court Sydney Registry sample, six of
19 lawyers responded to a set of questions, while four of 35 litigants
responded. Of the AAT sample, 29 of 80 applicants in NSW and Queensland
responded. Since virtually all cases in the AAT were opposed by
the Australian Government solicitor, one more general interview
was conducted with a nominated lawyer.
Throughout the research,
there was consultation with judges, AAT members and registry staff
about the conduct of the study, underlying issues, and the interpretation
of data. We also received comment from judicial officers and key
registry staff on the preliminary findings, to inform this presentation.
Numbers of litigants
in person
Generally between
20 and 30% of applicants to the AAT are unrepresented. Brisbane
has approximately 80 unrepresented applicants (30% of applicants)
in any three month period, while the numbers in Sydney have gradually
declined from 133 (1992) to 99 (1996), the proportions remaining
between 20 and 25% (Table 1).
Table 1. Unrepresented
applicants in cases finalised (AAT) or
commenced (FCA)
March-May (inc) 1992,
1994, 1996
1992 (n) 1992 (%)
1994 (n) 1994 (%) 1996 (n) 1996 (%)
AAT Q'land 71 33.2%
86 34.3% 85 29%
AAT NSW 133 21.1%
108 24.7% 99 21.2%
FCA Brisbane 5 11.9%
5 10% 8 17.7%
FCA Sydney 3 1.4%
7 3.4% 47 17.0%
The Federal Court
had between three and eight unrepresented applicants in each three
month period in each Registry over the three periods since 1992,
with the exception of Sydney in 1996, when there was a vast increase
to 47 in the three month period sampled. A smaller increase in Brisbane
in 1996 brought the proportions of litigants in person in each registry
to approximately 17% in 1996. Brisbane has always had a higher proportion
of litigants in person than Sydney.
The 1996 figures for
the Sydney Registry of the Federal Court require further analysis.
This reveals that 41 of the unrepresented applicants were in migration
matters, in keeping with a general increase in migration cases in
the past four years. From 1994 to 1996 the number of migration cases
more than tripled, and on 1998 trends to date, appear to have nearly
doubled again since 1996. The reasons for these increases in immigration
matters are beyond the scope of this study, as are the reasons for
trends in their unrepresented status. However, it has been possible
to observe that in migration cases, many having been prepared by
immigration agents, there is a greater tendency for the application
to be withdrawn earlier in the proceedings than in other matters.
This may suggest that they engage proportionally less resources
of the Court. Other problems and queries remain. With so many migration
cases unrepresented, one may query how many cases of substance fail
through lack of means to present them adequately. Moreover, they
may have a greater impact under the Court's individual docket case
management system, introduced in Sydney in 1997.
Outcomes
In those cases analysed
in the Federal Court litigants in person are less likely to be successful
in their litigation than parties who are represented. In 54% of
cases (25/46) their application or appeal was dismissed, compared
with 31% of cases (15/49) in which represented parties had their
cases dismissed. Litigants in person are more likely to discontinue
their actions (24% or 11/46 cases, compared with 20% or 10/49 cases).
Probably because their cases dismissed or discontinued more often,
litigants in person are more likely to be ordered to pay the costs
of the other party than represented litigants (68% or 34/50 compared
with 38% or 18/47).
Applicants in person
are less successful before the AAT than are represented applicants.
The decision of the primary tribunal was affirmed or the action
was withdrawn/dismissed in 68% of applicant in person cases (358/524),
compared with 43% of cases pursued by represented applicants (176/410).
Time to finalisation
and stage of resolution
Unrepresented applicants
spend less time in the AAT than represented applicants. Average
times in the Brisbane Registry are 6.6 months from filing to finalisation
compared with 9.6 months for represented litigants. In Sydney these
are 5.3 months for unrepresented compared to an average of 7.7 months
for represented applicants.
Litigants in person
spend less time in the Federal Court than those who are represented
(5.6 months on average from filing to finalisation, compared with
8.4 months used by represented litigants, with medians of 3.5 and
6 months respectively).
Unfortunately, no
assessment of the use of judicial resources could be made from the
data collected. Data were available on the numbers of hearings required
for each case, but there was no method available to calculate time
taken, either in hearings or outside the Court or Tribunal, by judges
and members preparing decisions and judgments.
These average figures
do not tell the whole story, since in the AAT and, to a lesser extent
in the Federal Court, litigants in person tend to discontinue their
cases early, or persist to a decision. Table 2 demonstrates the
differences in the stages at which those cases involving litigants
in person and those involving represented litigants are finalised.
In the AAT there is
a greater proportion of unrepresented cases finalised before any
conference (listing) than among cases involving represented applicants.
On the other hand, more of the unrepresented cases go all the way
to a Tribunal decision than do those involving legal representation.
Represented cases are more likely to be settled after one or two
conferences.
Table 2. Stage of
case disposal
Represented &
unrepresented applicants, Federal Court & AAT
Represented Unrepresented
Represented Unrepresented
Federal Court Federal
Court AAT AAT
Before appearance
or conference 9.8 7.3 11.8 17.4
At /after 1st appearance
or conference 4.8 19.5 20.1 16.9
At /after 2nd + appearance
or conference 39.0 29.3 27.8 18.4
After hearing listing
or day of hearing 4.9 4.9 16.7 8.2
Decided 41.5 39.0
23.6 39.1
TOTAL 100.0
(n = 41) 100.0
(n = 41) 100.0
(n = 144) 100.0
(n = 207)
A similar picture
emerges in the Federal Court, where more unrepresented than represented
parties discontinue or settle before (or at/after the first appearance)
than do represented parties, while more of the represented cases
are resolved at the second or third appearance. Unlike the AAT,
the same proportion of represented and unrepresented cases are decided
by the Court.
Use of registry
resources
Since unrepresented
applicants constituted 50% of all recorded client contacts in the
Sydney Registry of the AAT, but only 21.2% (NSW, 1996) of cases
involved unrepresented applicants, these parties are over represented
among registry staff client contacts. Registry staff spent nearly
twice as much time with each unrepresented applicant (10 minutes)
as with each represented applicant (5.5 minutes) and overall were
devoting about five times as much time to unrepresented clients
as to the represented.
The picture is harder
to quantify in the Federal Court. In the Sydney General Registry
of the Federal Court, (where in 1996 litigants in person made up
17% of the Court's business) 42% of the counter supervisor's contacts
were with unrepresented parties. This may be explained in part by
the fact that these parties are referred almost automatically to
the supervisor by front line counter staff (whose client contacts
were only 3% unrepresented). Among deputy registrars, the other
more senior staff having primary contact with clients, 20% of their
client contact time was spent with litigants in person, only marginally
higher than their proportion (17% of our 1996 sample) in General
Division cases. Lawyers took up the other 80% of the deputy registrars'
client contact time.
While litigants in
person do take up more registry time than those with legal representatives,
notably in the AAT, this is to be seen in the context of assistance
that the Court or Tribunal may be expected to provide to the legal
profession and the public. Although no attempts have been made in
this study to cost time, the amount of time allocated to litigants
in person does not seem extravagant when compared with possible
costs of time spent in hearings, and considering the amount of time
lawyers themselves spend consulting registry staff, on behalf of
their clients.
Processes of the
Court and Tribunal
There are differences
in the functions of the Court and the AAT and therefore in their
approaches to litigants in person and unrepresented applicants.
The AAT was established
to deal with significant numbers of people who were not expected
to obtain legal advice and representation before approaching the
Tribunal, thus the presence of unrepresented applicants in significant
numbers does not cause the same consternation in the Tribunal as
it does in the Federal Court. Kirby, P. (as he then was) comments
in Burwood Council v. Harvey (NSW Court of Appeal, 1995) on the
trend towards 'creation of expert tribunals with specialised judges
and other members, novel standing rights and modified procedures
aimed to facilitate, if not actually to encourage, persons to pursue,
or defend, their legal rights without the necessity of securing
qualified legal practitioners to represent them'. The AAT is proactive
in consulting applicants, listing as one of its performance indicators
accessibility and responsiveness to the needs of users, which is
to be judged by 'users finding the Tribunal easy and comfortable
to utilise' (AAT Annual Report 1994-95, Chs 2 and 3). The Tribunal
has an Outreach program built into its dispute resolution process
and states plainly that 'parties are expected to play an active
part in identifying relevant legal and factual issues from an early
stage in the pre-hearing process'. The aim of the program is to
'encourage early resolution of disputes or, where that is not possible,
[to provide] a clear framework within which the parties
can prepare for hearing' (AAT Annual Report 1994-95, 12).
In the AAT, the preparation
of the 'T' documents by the opposing government agency ensures definition
of the claim for the Tribunal. The procedure is thought unobjectionable
in the AAT because the Tribunal's jurisdiction is to review administrative
decisions on their merits (Gidaro v. Secretary Department of Social
Security (Federal Court, 1998); AAT Annual Report, 4-5).
In the Federal Court,
there may be cause for concern if the opposing side were to be involved
in the preparation of documents designed to define the matters in
issue for the litigant in person. As a superior court handling a
variety of often highly technical legal issues, there is much room
for dispute about the form in which a case should be presented.
It is a forum in which lawyers can be expected to be more comfortable
than non lawyers. The Court does, however, recognise its responsibility
to hear non lawyers and has been careful in its reported decisions
to make them welcome. The following recent comment makes some of
the Court's concerns clear:
Exchanges between
the applicant and me concerning such evidence reveal that the applicant
may not, despite his earlier legal representation, have earlier
understood, if indeed he ever fully understood, the distinction
between an interlocutory hearing and a final hearing. It is a matter
of considerable regret that the applicant may have assumed the conduct
of his claims for interlocutory relief in these matters without
a full understanding as to the true nature of those claims. However,
the very real restrictions on the ability of the Court to ensure
that unrepresented parties properly understand its processes and
technical aspects of the law relevant to their proceedings in complex
matters must be acknowledged. Moreover, although the Court must
do what it reasonably can to assist unrepresented parties in the
presentation of their cases to the Court, it cannot do so in disregard
of the entitlement of opposing parties also to receive fair treatment
from the Court.
Humphrey Xu v. Helen
Liu (Federal Court, 1997)
Views of the process
and of the other participants
The views of the participants
in the process cast further light on these issues. These views were
gathered from interviews with litigants in person, from lawyers
opposing them in the Federal Court and from judicial comment in
reported case law.
The opposing lawyers
interviewed commented that dealing with litigants in person could
be difficult and noted in particular:
- the need to prepare
and lodge documents for the litigant in person as well as for
their own client in order to progress the case;
- the need to address
large numbers of ambiguous and irrelevant issues and evidence
raised by the litigant in person;
- litigants in person
being permitted to use the forum as a 'soapbox';
- judges being more
'timid' in dealing with litigants in person;
- litigants in person
rambling during the hearing with the judge (or Tribunal member)
being reluctant to interrupt;
- judges feeling
the need to explain things to litigants in person in minute detail;
- judges needing
to 'disseminate' the litigant in person's arguments;
- orders being formulated
and reformulated as the litigant in person's evidence and assertions
changed;
- litigants in person
having greater latitude in which to operate because they are not
bound by lawyers' ethics;
- difficult personal
conduct by litigants in person in court.
One of the lawyers
summed up his experience of opposing a litigant in person as 'like
wrestling with smoke'. The lawyers saw themselves as carrying a
disproportionate burden of the unrepresented party's case, a problem
which does not arise in the AAT because of its reliance on the government
agencies involved to summarise the issues in the case. The agencies'
responsibility is explicit and the summaries are provided early
in the process. In the Federal Court, the opposing lawyers complained
of being drawn into this role in order to progress the case. There
is evidence in the reported case law of the difficulties the Court
encounters in assisting litigants in person to define the legal
issues in their case:
Despite two attempts
to plead a case, the applicants and, in particular, Mr Morton have
not put forward pleadings that disclose a reasonable cause of action.
Mr Morton has not been willing to abide by orders of the Court designed
to ensure that there is a factual foundation for any case pleaded.
... In my view, it would be grossly unfair to the respondents to
allow the proceedings to continue. After nearly three years there
is no sign that Mr Morton is able or willing to plead a reasonable
cause of action.
Morton & Ors v.
Vouris & Ors (Federal Court, 1998)
In a previous case
involving the same litigant in person, the same judge had complimented
lawyers for the party opposing on the assistance they had been willing
to give the litigant during the hearing of the case (Morton v Mitchell
Products, Federal Court, 1996).
Litigants in person
gave a range of opinions on the assistance they received and the
attitudes of Court and AAT staff and judicial officers and members.
They generally reported that staff were patient and understanding
and had 'bent over backwards to help', while acknowledging that
staff were limited to giving advice on process only and could not
give legal advice.
As would be expected,
there was a great range in the sophistication of the litigants.
Two of them said they did not know what happened at the AAT, one
said she did not know she had a case there at all. There was a widespread
view amongst those interviewed that they understood their case (and
to an extent, the merits of it), perhaps better than anyone else.
Yet they saw a number of barriers to the presentation of the case.
These were usually seen as technical difficulties, of not knowing
how to fill in a form, for instance.
I knew what had to
be done but perhaps not how to do it correctly. (Applicant, AAT)
Difficulties were
identified as problems with language by a number of litigants. Two
referred to difficulties communicating in English. These people
did not refer to interpreters. Another applicant in person, who
had used an interpreter in the AAT, made clear some of the further
problems of running a case if one is not familiar with English.
I have two files about
300 pages each. It's impossible for me to know which documents are
important, and impossible for the courts to go through all these.
I want someone to pinpoint which documents [I need to take with
me to court.] (Applicant, AAT; referring to his FCA appeal.)
While they regarded
the Registry staff as being helpful, three of the four Federal Court
litigants interviewed said they felt they had been disadvantaged
in court by not being represented by a lawyer (the fourth was represented
by the time his case went to court). One said 'one justice treated
me in a way that bordered on aiding and abetting the other party
in my opinion' while another said 'the Court is always patronising
if you haven't got a lawyer'. The third said:
It isn't so much the
tribunal treating you differently but rather what the courts are
used to dealing with, and that is lawyers. Courts expect things
to be done a certain way and litigants in person are outside of
that and don't know how. As a result there are different reactions
to litigants in person, and that shouldn't be the way. (LiP, FCA)
Judicial comment in
the reported case law reveals a keen awareness of the courts' responsibilities
in ensuring a fair hearing for both the litigant in person and the
represented party (Burwood Council v. Harvey; Cachia v. Hanes; Rajski
v. Scitec Corporation). Some illustrative commentary was made by
the Supreme Court of NSW, Court of Appeal, in 1996 in Pupo v. Builders
Licensing Board:
It is always difficult
for a trial judge who is confronted with a litigant in person but
his Honour behaved, in this case, in the finest traditions by going
to great lengths in his endeavour to determine just what it was
that the appellant contested. His difficulty was compounded by their
course of conduct in having lengthy and detailed defences prepared
by lawyers and then coming to Court totally unequipped to advance
those defences. ... In my opinion the appellants have failed to
show that his Honour in any way denied to them a full and fair hearing.
The Federal Court
also widely recognises the difficulties faced by litigants in person
and by those parties opposing them.
To be fair to Mr Bourke,
he was faced with a large number of questions expressed in technical
language and a number of his replies were intelligible, if not necessarily
expressed in language which a lawyer would use.
Bourke v. Young, (Federal
Court of Australia, 1992)
Certainly, the applicant,
who was not legally represented at directions hearings in the Tribunal,
as he was not before me, failed to provide more than a few lines
in sketchy statement of the grounds of his application. But this
is far from uncommon in the case of unrepresented litigants, and
cannot rationally be regarded as in itself demonstrating a lack
of bona fides.
Bourke v. Companies
Auditors & Liquidators Disciplinary Board , (Federal Court of
Australia, 1998)
These criticisms of
the statement of claim are not criticisms of the applicants. They
are faced with the considerable task of identifying out of lengthy
and complex dealings involving the respondent those matters which
may arguably give rise to a cause of action.
Bride v. Stewart,
(Federal Court of Australia, 1989)
Mr Dudzinski's approach
to the litigation now appears to be that, in addition to pursuing
a multiplicity of actions seemingly regardless of specific relief
which might follow from them (but which might have the possibility
of allowing him to interrogate those who have angered him), he will
agitate any order where he is unsuccessful. It seems to me that
Mr Dudzinski needs to give careful consideration as to the future
course of litigation and to bear in mind the dangers of being too
much the litigator to the exclusion of all else. The other danger
Mr Dudzinski faces ... relates to the question of costs.
Dudzinski v. Secretary
Department of Social Security and Department of Employment Education
and Training, (Federal Court of Australia, 1997)
From the data we take
up two issues for discussion at this conference.
Identification
of issues in dispute
We have noted lower
success rates among litigants in person than among represented parties.
This occurs despite their greater use of registry resources, and
a perception of opposing lawyers that they too need to assist the
unrepresented party. Seeking reasons for these findings, we may
note, from the judicial commentary and the views of lawyers and
litigants in person, that the need to define a justiciable issue
is often misunderstood by litigants in person. In some cases it
would appear they neither understood the legal issues involved nor
appreciated their need for legal advice. This was particularly true
of cases going to the Federal Court. Litigants reported that the
process of filing an appeal in the Federal Court, for instance,
was far more complicated than just filling in a form. This may be
because some understanding of the grounds for an appeal is required.
I understood about
legal stuff but not about lodging an application. … In the
end I wrote 'injustice'. I didn't know what else to write. (LiP,
FCA)
Interviews with lawyers
and litigants, our review of case files and of material provided
by litigants, revealed that on many occasions the statements of
the cause of action of unrepresented litigants in the Federal Court
were defective. They were vague and unspecific in identifying the
issues on which a decision was required, and sometimes the application
was aberrant, reflecting no defined cause of action with which the
Court could deal.
The difficulty of
proceeding without legal advice was often understood only at an
advanced stage in the case, if at all. In the early stages of a
case (particularly in the AAT) litigants said they felt they were
able to make a fairly clear cut distinction between their understanding
of the processes necessary to bring a case before the Tribunal and
their understanding of the substance of the case. They were sure
of their view of the facts of the case, and acknowledged the assistance
received from registry staff or non-lawyers in completing the paper
work.
The following comments
demonstrate the way in which on applicant discriminated between
what he regarded as the requirements of the law and his interests
in the case:
The Senior Member
was very helpful at the first telephone hearing ['conference'?].
Explaining the processes available within the Act and the alternatives.
He was helpful in getting us talking [ie two parties]. …
It would've been a
lot easier if I'd been able to get a copy of the FOI Act. I'd asked
DSS to delete something [from my file] - they'd refused.
Once I saw the Act [DSS sent it following suggestion from the
Snr Member] I could see that they didn't have the power under
the Act to delete something - only to 'amend' it. Now I realise
that I can seek an amendment under the Act, which I will do - back
to DSS. It would've avoided the whole matter at the AAT if DSS had
clarified that 'deletion' wasn't available. (Applicant, AAT)
When required to refine
their cause of action beyond the original application, some litigants
become confused and make the decision to either seek legal advice
or give up. Others do not acknowledge the sophistication of the
process they are engaged in and, believing that they have simply
to present a case in their own terms, relying on facts, moral persuasion
and appeals to personal notions of justice, continue unaided. These
people may never grasp the legal issues in their case and will probably
cause greater difficulties in appellate courts than relatively informal
tribunals.
The finding that litigants
in person have difficulty distinguishing legal issues from moral
and social conceptions of 'justice' or wrongs, suggests that consideration
might be given to the possibility extra-legal solutions.
While significant
resources are devoted to litigants in person by registry staff in
both the AAT and the Federal Court, particularly by senior staff
of the registries, their brief is to advise on process, not law.
A commonly suggested solution is to offer early legal advice to
litigants in person (Genn & Richardson, 1994; Carter v. Layton,
Federal Court, 1992). In some cases this advice will assist litigants
in person to define the legal issues in their case. Alternatively
this may assist them to weigh the personal and financial costs against
the likely outcome/s and to make an informed decision about whether
to proceed. However, the recommendation to provide legal advice
neglects many other facets of the decision to litigate, in particular
the views of litigants in person themselves. They may have different
views of the purposes of litigation and the functions of courts
and tribunals which need to be understood.
Understanding the
purposes of litigation
As reported above,
lawyers do not settle as early or as late as those who are not represented.
Their way of using the Court and Tribunal may indicate that lawyers
have a different understanding of the role of litigation in dispute
resolution. Lawyers may be using these facilities on behalf of their
clients to assist in negotiating a resolution of the action. Those
who are unrepresented, on the other hand, are less likely to use
the forum as an adjunct to settlement, and have reported that they
expect the Court or Tribunal to deliver 'justice'. Many litigants
simply take it for granted that a case will run its course to determination.
The concept of 'settling' a case was quite unfamiliar to most litigants
in person interviewed. Some had unconventional views of 'settlement.'
I never settled the
case - they did! (Applicant, AAT)
Settled, by force.
[The agency] threatened to make it very hard for me if I
continued my case. (Applicant, AAT)
Implications of
the findings
This study does not
offer a definitive answer to one of the most important questions
in today's courts, that is, whether the numbers of litigants in
person are increasing or decreasing in any general sense. It does,
however, sound a note of caution over assumptions that the greater
occurrence or visibility of litigants in person in certain jurisdictions
constitutes a national or international phenomenon or a general
crisis. Data collection by courts and tribunals needs to be far
more sophisticated if it is to facilitate better informed or more
easily executed studies in future. In the absence of reliable data
and focussed research it is difficult to test common assumptions.
Data collection methods are required to identify unrepresented litigants,
the stages at which people are and are not represented, the nature
of their causes of action, and the services used and outcomes achieved
by litigants in person compared with represented parties.
This study has raised
some issues for discussion and further investigation. Courts, tribunals,
legal aid and justice policy agencies may need to consider the implications
of the mix of legal and non legal issues upon which unrepresented
parties seek to litigate. They may also consider the possibility
that lawyers and litigants in person have different views of the
uses of litigation. A better appreciation of the views of litigants
in person, and how these may differ from the views of the judge,
registrar and practitioner may prove helpful in dealing with these
parties.
This study did not
set out to identify those parties and causes which have never reached
a court or tribunal, for want of legal advice or personal confidence.
If we are to take seriously requirements for access to justice and
equality before the law, then studies which address these issues
may be of equal importance.
References
AAT Annual Report
1994-95, Canberra: AGPS.
Genn, Hazel and Genevra
Richardson. 1994. Administrative Law and Government Action. Oxford:
Clarendon Press.
Goldschmidt, Jona,
Barry Mahoney, Harvey Solomon, and Joan Green. 1998. Meeting the
Challenge of Pro Se Litigation. A Report and Guidebook for Judges
and Court Managers. Chicago: American Judicature Society.
Otton, the Right Honourable
Lord Justice. 1995. Litigants in Person in the Royal Courts of Justice,
London: an interim report of the working party establised by the
Judges Council under the Right Honourable Lord Justice Otton. London:
Judges Council.
Case law
Bourke v. Companies
Auditors & Liquidators Disciplinary Board [1998] 742
FCA (26 June 1998)
Bourke, and Others
v. Young, and Others (Federal Court, 10 February 1992)
Bride and Others v.
Stewart (Federal Court, 25 October 1989)
Burwood Council v.
Harvey (Supreme Court of NSW, Court of Appeal, 23 & 24 February
1995)
Cachia v. Hanes and
Another (1994) 179 CLR 403
Carter v. Layton,
(Federal Court, 26 August 1992)
Dudzinski v. Secretary
Department of Social Security [1997] FCA 2 (6 August 1997)
Gidaro v. Secretary,
Department of Social Security (Federal Court, 24 April 1998)
Humphrey Xu v. Helen
Liu (Federal Court, 31 July 1997)
Jeffrey R Morton v.
Mitchell Products [1996] 828 FCA 1 (18 September 1996)
Jeffrey R Morton v.
Vouris [1998] 394 FCA (23 April 1998)
Pupo v. Builders Licensing
Board (NSW Supreme Court, 13 September 1996)
Rajski v. Scitec Corporation
Pty Ltd (Supreme Court of NSW, Court of Appeal, 16 June 1986)
Statutes
Administrative Appeals
Tribunal Act 1975
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