Self-Represented Litigants. Literature Review

Transcription

1 E RICHARDSON, T SOUR DIN AND N WALLACE AUSTRALIAN CENTRE FOR COURT AND JUSTICE SYSTEM INNOVATION (ACCJSI) MONASH UNIVERSITY Self-Represented Litigants Literature Review

2 2 SELF-REPRESENTED LITIGANTS

3 Table of Contents Executive Summary... 7 How to read this Review Background... 9 Introduction... 9 Terminology Overview of issues raised in the literature Introduction An Increase in SRLs? Perceptions about SRLs Reasons for self representation Outcomes of matters involving SRLs and impacts on the judiciary Programming and policy responses to SRLs including ADR...19 International experiences of SRLs Reports on SRLs Introduction What do we know about self represented litigants? How many SRLs are there in federal courts and tribunals? What are the demographic characteristics of SRLs? What types of matters are SRLs appearing in? What are the effects or impacts of self-representation? On the self represented litigant? On the opposing (represented) party? On the court or tribunal? Research gaps Introduction Variables which could be recorded and measured Conclusions Contents 3

4 Appendix - References Select Bibliography Contents

5 Abbreviations AAT ABS ADR AIJA ALRC Cth IT NADRAC Administrative Appeals Tribunal Australian Bureau of Statistics Alternative Dispute Resolution Australian Institute of Judicial Administration Australian Law Reform Commission Commonwealth Information Technology National Alternative Dispute Resolution Advisory Committee SRCLS SRL VLRC Self-Representation Civil Law Service Self represented litigant Victorian Law Reform Commission Contents 5

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7 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) Individual or demographic characteristics that influence representative status (the term postcode justice has been used to describe the variable) 2) Case characteristics which dictate whether representative status will be significant to the processes used, the outcomes and the impact on the court or tribunal 3) 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

8 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. 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. 8 Executive Summary

9 1. I Background n Introduction 1.1. 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. 9

10 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 studies and reports on SRLs 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 Attorney- General 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) 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 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

11 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 following types of SRLs: 3 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 For a detailed discussion of McKenzie friends see 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), 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),

12 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 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) 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), 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

13 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 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

14 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) group 11 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 more positive accounts of SRLs. 13 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 because they cannot afford legal representation. 19 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 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 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 Duncan Webb, The right not to have a lawyer (2007) 16 Journal of Judicial Administration Family Court of Australia, Self-represented litigants: A challenge Project Report December December (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 (Canberra: Federal Magistrates Court of Australia, 2004). 16 Federal Magistrates Court of Australia, Annual Report (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), 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

15 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 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 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, 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 Family Law Council, Litigants in Person: A Report to the Attorney-General prepared by the Family Law Council. (Canberra, August 2000), 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 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 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),

16 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 that they were ineligible for legal aid. 27 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 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 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), 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), See also Victorian Law Reform Commission, Civil Justice Review: Report (Melbourne: Victorian Law Reform Commission, 2008),

17 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 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 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), 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 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 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

18 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 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 just outcome was achieved. 40 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 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 modified adversarial system 45 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 (accessed 20 May 2012) 42 Australian Law Reform Commission, Part One: Empirical Information about the Administrative Appeals Tribunal (June 1999) at (accessed 20 May 2012) 43 Australian Law Reform Commission, Part One: Empirical Information about the Administrative Appeals Tribunal (June 1999) at (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

19 Programming and policy responses to SRLs including ADR 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 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 or excluded from most ADR programs. 49 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 more flexible processes. 50 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 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 December (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),

20 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 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 Inquiry 54 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 rather than applicants. 56 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 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), 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 ) The Times (London, England) p 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

21 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 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

22 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 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 (accessed 20 May 2012). 22

23 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 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 court users, courts and their resources 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 solutions 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), 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), 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

24 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 of the High Court of Australia reported that 34 percent of special leave applications were filed by self represented litigants during , 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 Over a ten year period self represented litigants made up 25 percent of special leave applications in increasing to a high of 67 percent in , 77 to return to lower numbers again in 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 (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 (Canberra, High Court of Australia, 2011), High Court of Australia, Annual Report (Canberra, High Court of Australia, 2010), High Court of Australia, Annual Report (Canberra, High Court of Australia, 2009). 78 See the High Court of Australia Annual Report 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

25 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 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 not recorded. 80 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 , 336 people who commenced proceedings in the Federal Court were self represented and were mainly in migration appeals. 81 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 financial years 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 than at first instance when partial representation was more likely. 86 There had been a gradual increase of SRLs between 1995 and There were differences in numbers of SRLs between Family Court registries. 88 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 (Canberra, 2011), Federal Court of Australia, Annual Report (Canberra, 2011), Federal Court of Australia, Annual Report (Canberra, 2011), Federal Court of Australia, Annual Report (Canberra, 2011), Federal Court of Australia, Annual Report (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 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 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 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

26 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 have remained reasonably steady for the past five years. 90 The proportion of finalised cases that had one litigant who was self represented was 16 percent in In finalised cases about 10 percent of cases neither party represented. 92 At trial, in percent of cases had one party who was unrepresented and 7 percent of cases where both parties were unrepresented 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 representation. 94 In 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 In family law matters in self represented litigants were present in approximately 17 percent of final orders, 20 percent of interim orders, 69 percent of divorce proceedings and approximately 46 percent of contravention orders. 96 These percentages were marginally less than the previous year ( ) for the same types of family law orders Administrative Appeals Tribunal Gamble and Mohr found that percent of parties are unrepresented litigants. 98 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 (Canberra: Family Court of Australia, 2011). 91 Family Court of Australia, Annual Report (Canberra: Family Court of Australia, 2011). 92 Family Court of Australia, Annual Report (Canberra: Family Court of Australia, 2011). 93 Family Court of Australia, Annual Report (Canberra: Family Court of Australia, 2011). 94 Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2011), Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2010); Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2009). 95 Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2008). 96 Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2007). 97 Federal Magistrates Court of Australia, Annual Report (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

27 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 State courts and tribunals have also reported on the numbers of SRLs with a data from two states presented here 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 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 trial. 104 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 proceeded before the Court Queensland: Data collected by the Self-Representation Civil Law Service, 107 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 (accessed 20 May 2012) 100 Australian Law Reform Commission, Part One: Empirical Information about the Administrative Appeals Tribunal (June 1999) at Tania Sourdin, Mediation in the Supreme Court and County Courts of Victoria (Department of Justice of Victoria, 2009), Victorian Law Reform Commission, Civil Justice Review: Report (Melbourne: Victorian Law Reform Commission, 2008), Tania Sourdin, Mediation in the Supreme Court and County Courts of Victoria (Department of Justice of Victoria, 2009), Tania Sourdin, Mediation in the Supreme Court and County Courts of Victoria (Department of Justice of Victoria, 2009), 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

28 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 at least one party was self represented per cent of self represented civil appellants in were successful in their appeals. 110 What are the demographic characteristics of SRLs? 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 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 Supreme Court of Queensland, Annual Report (Brisbane: Supreme Court of Queensland, 2011), Supreme Court of Queensland, Annual Report (Brisbane: Supreme Court of Queensland, 2011), 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 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 Self- Representation 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 year old age group: Tony Woodyatt, Allira Thompson and Elizabeth 28

29 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 sales/personal service occupations. 116 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 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 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 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 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 (Canberra: Federal Court of Australia, 2011), 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,

30 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 numbers. 125 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 abandoned. 127 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 necessarily take longer than those cases involving represented parties. 129 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 Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2011). 124 Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2003). 125 Federal Magistrates Court of Australia, Annual Report (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 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

31 SRLs may be less likely to obtain successful outcomes. 132 What are the effects or impacts of self-representation? 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 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 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 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 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

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 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

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 noncompliance 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 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), 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,

34 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 to numbers and types of matters 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

35 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) SELF-REPRESENTED LITIGANTS 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

36 o 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; Conclusions 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 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 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 the Project Director [email protected] 36

37 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, 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 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) 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, Select Bibliography 37

38 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) 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., 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, Chief Justice Nicholson in T v S [2001] Fam CA Australian Institute of Judicial Administration. Litigants in Person Management Plans: Issues for Courts and Tribunals. (Melbourne: Australian Institute of Judicial Administration, 2001) 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 Select Bibliography

39 West Heidelberg Community Legal Service. Unrepresented Litigants at What Cost? A report on the implications of unrepresented litigants in the Magistrates Court, Victoria. November, Rosemary Hunter, Jeff Giddings and April Chrzanowski, Legal Aid and Self- Representation in the Family Court of Australia (Griffith University, May 2003) Justice Robert Nicholson, Can Courts Cope with Self-Represented Litigants? September Family Court of Australia, Self-represented litigants - A challenge: Project Report December 2000-December 2002 (Canberra: Family Court of Australia, 2003) 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) Elizabeth Richardson, Self-represented parties: A trial management guide for the judiciary (Melbourne: County Court of Victoria, 2004) 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) Family Court of Australia and Federal Magistrates Court of Australia, Family Law User Satisfaction Survey Results 2011, (Canberra, December 2011 Select Bibliography 39

40 2012 Federal Magistrates Court of Australia, Review of the Dandenong Project (Canberra, Federal Magistrates Court, March 2012) 40 Select Bibliography

41 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 s 78 Judiciary Act 1903 (Cth). Litigants in Person (Costs and Expenses) Act 1975 (UK). Annual Reports Family Court of Australia, Annual Report (Canberra: Family Court of Australia, 2011). Federal Court of Australia, Annual Report (Canberra, 2011), 43. Federal Court of Australia, Annual Report (Canberra, 2010). Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2011), Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2010); Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2009). Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2008). Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2007). Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2006). Federal Magistrates Court of Australia, Annual Report (Canberra: Federal Magistrates Court of Australia, 2004). Select Bibliography 41

42 High Court of Australia, Annual Report (Canberra, High Court of Australia, 2011). High Court of Australia, Annual Report (Canberra, High Court of Australia, 2010). High Court of Australia, Annual Report (Canberra, High Court of Australia, 2009). High Court of Australia, Annual Report (Canberra, High Court of Australia, 2002). Supreme Court of Queensland, Annual Report (Brisbane: Supreme Court of Queensland, 2011), 14. Supreme Court of Queensland, Annual Report (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 (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

43 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 Rosemary Hunter, Jeff Giddings and April Chrzanowski, Legal Aid and Self- Representation 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 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 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

44 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 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

45 E Richardson, Self-represented parties: A trial management guide for the judiciary (Melbourne: County Court of Victoria, 2004). Select Bibliography 45

46 46 Select Bibliography