Discussion Papers by Ms Helen Powles and Mr Vince Bruce QC and a Commentary
upon the two papers by Mr Frank Jones

                           TABLE OF CONTENTS

     1) Litigant in Person 7  Helen Powles B. Com. LLB, Solicitor 
     2) Litigant in Person  Proposals for Reform Vince Bruce QC, New South
Wales Bar 17
     3) Commentary upon the preceding two papers by Frank Jones, Registrar,
High Court of Australia 27

     F O R E W O R D

     It cannot be disputed that parties to litigation need not only sound
professional advice, but also experienced representation when in court.
 Occasionally in the past, but now more frequently, litigants have appeared
in proceedings, even complex matters, without the benefit of professional
advice and representation.  Sometimes this cannot be avoided, but in the
absence of experienced and qualified input from both sides of the record,
the real issues for determination may not emerge for some time.  Usually,
this will mean that the proceedings  take longer than they should.  As a
result, the litigation will often be more expensive than it should, and
there is a risk that if the real questions for resolution are obscured by
the lack of representation, a miscarriage of justice may occur.  The impact
of the unrepresented litigant, especially in complex cases, on our system
of judicial administration is considerable, not only in the court room
itself but also in the court registry and in the court library where
unrepresented parties usually need to seek assistance.  Allocation of extra
public resources is required to meet the special needs which arise in this
way.
     
     Despite the significance of the issues generated by this phenomenon,
there has not yet been any study of these matters in this country, although
some work has been carried out in other jurisdictions, notably about "pro
se" plaintiffs in the United States.  These papers are offered as a first
step, in order to stimulate consideration and discussion of an important
aspect of judicial administration.

     We are grateful to our contributors, who cheerfully undertook their
tasks on a virtually honorary basis.  I would also like to thank Mr.
Justice Studdert, a member of our Advisory Committee, for his comments on
the draft.  We are also indebted to my associate, Graeme Orr, and, as
always, Professor Sallmann, for their work in editing the papers.
                                           B A Beaumont Chairman, Advisory
Committee, Chairman, AIJA  1990-92


             LITIGANT IN PERSON - DISCUSSION PAPER
                 Helen Powles B. Com. LLB, Solicitor

     INTRODUCTION

     The ever increasing proportion of the population unable to afford
professional representation, coupled with severe restrictions on the
availability of legal aid, has meant that a large number of litigants now
appear without representation even in complex cases.  This has created
problems for the courts in individual cases.  It has also had a significant
impact on the system as a whole.  However, very little study or research
has been undertaken in this important area of judicial administration.  (A
notable exception being a recent research project of Alan C. Dawson, for
the Centre for Court Policy and Administration at the University of
Wollongong, "Some Personal Litigants in the Federal Court of Australia",
November 1992.)
     
     THE LITIGANT'S `RIGHT' TO APPEAR IN PERSON

     Litigants are entitled to appear in person in most courts in
Australia.  In R  v Zorad (1990) 19 NSWLR 91 at 95, the New South Wales
Court of Criminal Appeal referred to the election open to an accused to
appear unrepresented in criminal proceedings as a "fundamental right".  The
main exception to this principle is in the High Court of Australia.  Order
69A, rule 11 of the High Court Rules states:

      "Save with the leave of the Court, which may be given in exceptional
circumstances, an application for leave or special leave to appeal shall be
made to a Full Court by a person entitled to practise in any federal court
as a barrister or solicitor or as both."

     This rule was introduced to enable a solicitor and, in special
circumstances, a litigant in person to make an application.  Prior to the
amendment, special leave applications could only be made by barristers (See
Collins (Hass) v R (1975) 8 ALR 150). 

     However, there are practical difficulties facing a litigant in person,
particularly in complex proceedings.  In Australia, costs recoverable by a
successful litigant in person are limited.  In Cachia v Haines (1991) 23
NSWLR 304, the New South Wales Court of Appeal held that litigants in
person are not entitled to costs for the time spent conducting and
preparing their case.  They can only recover out-of-pocket expenses.  The
High Court granted leave to appeal from this decision (see The Legal
Reporter Vol.13 No. 7 6/5/92), and the appeal is due to be heard in March
1993.   

     The Federal Court recently had cause to consider the quantum of costs
recoverable by a litigant in person successful in defending a Full Court
appeal (Secretary, Department of Foreign Affairs and Trade v Boswell, Full
Court, unreported, No. NG 283/92, 17 December 1992).  Ms. Boswell recovered
out of pocket expenses, including earnings lost as a result of having to
prepare for and argue her case on the appeal.  In coming to this result,
the Full Court rejected Handley JA's suggestion in Cachia v Hanes that to
award litigants in person costs representing time spent preparing and
conducting their own cases would be "mischievous".  Whilst feeling bound by
precedent to not allow her costs on a solicitor-fee scale, the court felt
that earnings foregone were characterizable as out of pocket expenses.

     The U.K. position is governed by the Litigants in Person (Costs and
Expenses) Act 1975, under which an unrepresented but successful party can
recover a notional amount in lieu of fees paid equal to two-thirds of the
fees a solicitor would receive (See Hart v Aga Khan Foundation [1984] 1 WLR
994). 

     One result of the rule allowing only out-of-pocket expenses is that
there is less incentive for the other party to the proceedings to settle
when litigating against an unrepresented person.  If the other party loses,
it will only have to pay the out-of-pocket expenses of the unrepresented
party (see Senate Standing Committee on Cost of Legal Services and
Litigation, Discussion Paper No. 6, "The Courts and the Conduct of
Litigation" at 94).  

     
     IMPACT UPON THE COURT SYSTEM OF LITIGANTS IN PERSON

     Restrictions on legal aid, combined with prevailing economic
difficulties, will lead to an increase in the number of people appearing in
person.  In this climate, the strain the unrepresented litigant places on
the court system should be considered. 

     When assessing the impact of an unrepresented party on proceedings, a
distinction must be drawn between complex and routine matters.  In
straight-forward or routine proceedings, there is an argument that
litigants in person should be encouraged as a way of reducing the cost of
justice.  In complex matters, however, the lack of professional
representation can be a serious burden for all concerned. 

     
     COMPLEX PROCEEDINGS

     The role of the trial judge in proceedings in which a party is
unrepresented has been the subject of much consideration, particularly when
the unrepresented party is the defendant in criminal proceedings (see
MacPherson v R (1981) 147 CLR 512;  R v Zorad (1990) 19 NSWLR 91;  R v
Gidley [1984] 3 NSWLR 168;  R v Lawson, unreported, NSW Court of Criminal
Appeal, 28 May 1990;  R v Cobley, unreported, N.S.W. Court of Criminal
Appeal, 17 July 1992).

     In MacPherson, confession evidence was led against an unrepresented
accused where there was a real issue as to the voluntary nature of that
confession.  The High Court ruled that the trial judge should have held a
voir dire to determine whether the confession was voluntary, even though no
voir dire was requested.  In defining the judge's responsibility to an
unrepresented accused, the High Court sought to draw a distinction between
explaining to an accused the choices available and advising what decisions
to make.  The judge's duty to an unrepresented party arises from the
overall responsibility to ensure that proceedings are fair.  (For an
interesting insight into the conduct of MacPherson from the point of view
of a volunteer law student who worked on the case, see Ms. N. Rogers "Up
against the Law" (1981) 6 Legal Service Bulletin 301-2.)  

     It was argued in the Court of Criminal Appeal in Gidley, on behalf of
the accused, that the trial judge should have warned the unrepresented
accused of the prejudicial consequences of a course he proposed to take.
 That submission was rejected.  Hunt J. said (at 181):

      "The duty of a trial judge to ensure that every accused has a fair
trial thus obliges him to give an accused who is unrepresented such
information and advice concerning his rights as is necessary to put him in
a position where he can make an effective choice whether he should exercise
those rights, but the trial judge should make it clear that he is not
advising the accused either that he should exercise those rights or how he
should conduct his case."

     Hunt J. went on to add, however, that the trial judge is entitled to
offer advice to an unrepresented accused:

      "He may express his own opinion as to what would best serve the
interests of the unrepresented accused if he feels it is appropriate but he
is not under any obligation to do so, and his omission to give such advice
does not amount to an error of law."

     There is a real possibility of conflict between the duty of a trial
judge to the unrepresented litigant and the primary role of the judge in
adversarial proceedings.  This conflict is perhaps heightened by the
distinction which the courts have attempted to draw between advising the
accused and explaining his or her rights, as that distinction may be more
academic than practical.  For example, in Zorad the trial judge rejected a
question put by the accused to a police officer because it was not in
proper form.  It was submitted, on appeal, that the judge should have
reformulated the question for the accused.  The court rejected this
argument saying that the judge has a duty to give an explanation as to the
form in which questions should be asked, but should not put questions in
that form for the accused (Zorad at 99).  In many cases, the process of
explaining the form in which questions can be asked, in a manner
understandable to an unrepresented accused, will involve reformulating the
question.  This can be difficult if fairness to both sides is to be
achieved. 

     Speaking for the Court of Criminal Appeal in R v Cobley,
Badgery-Parker J. reinforced the distinction between the judge's obligation
to ensure an unrepresented accused "has an adequate understanding of
procedure", and advising an accused on substantive law matters or giving
tactical advice as to how to exercise procedural options, which are outside
the judicial role.

     It has been suggested that dealing with unrepresented litigants should
be a core subject for judicial orientation.  See Justice Wood "The
Prospects for a National Judicial Orientation Programme in Australia",
paper delivered at the AIJA Annual Conference, August 1992.  

     A more practical consequence of the trial judge's duty to the litigant
in person is its impact upon the length of trials. In order to ensure a
fair trial, the judge will be required to give extensive advice to the
unrepresented party at various stages throughout the proceedings. The time
consumed by this advice is, if anything, lengthened by the limitation on
the judge's advisory role set out in MacPherson, Gidley and Zorad.  Judges
must be satisfied that accused persons understand their rights well enough
to enable them to make their own decisions on how to proceed.  Ensuring
this level of understanding will, in complex cases, be a lengthy process
which will increase court delays, add to the costs of proceedings from the
point of view of both the court and the other party, and deprive other
litigants of access to judicial resources.

     A person without legal training is unlikely to be able to discern the
real issues in a case.  It is likely, therefore, that material will be put
which is irrelevant to the questions before the court.   This can only tend
to lengthen proceedings.  Intervention by the court is not a complete
solution to this problem.  Due to the lack of representation, it will be
much harder for the court to become conversant with the issues in a case.
 A court will, therefore, be hesitant to limit the scope of evidence and
submissions before coming to a sound understanding of the nature of the
matter.

     The aborted Guinness II hearing highlights the problems that can
result from a litigant appearing in person in complex proceedings.  In that
case there were two co-defendants, one represented and the other appearing
in person.  The litigant in person did not qualify for legal aid but was
unable to afford the considerable costs involved.  Four months into the
trial, Henry J. stayed the proceedings on the ground that the defendant had
become mentally ill as a result of the pressure of conducting his own
defence.   Concern has been raised in the U.K. over the potential dangers
to the trial process of allowing defendants in lengthy criminal matters to
go unrepresented, and the Lord Chancellor's Department has recommended
empowering the courts in such cases to appoint an amicus curiae (see Home
Office "Consultation Paper on Long Criminal Trials", December 1992, paras.
3.12 - 3.15).   

     R v Morley [1988] 2 WLR 963 is a case where the trial judge was forced
to limit the scope of proceedings.  A burglary trial lasted 38 days due to
the manner in which the unrepresented accused conducted his defence.  The
trial judge refused many of his applications for witness summons, and
removed him from the court towards the end of proceedings.  As a result, he
was unable to make a closing address.  The Court of Appeal considered that
the trial judge, motivated by the need to limit the length and expense of
the trial, was justified.  It held that the judge had a duty to ensure that
court processes were not abused and that, in extreme cases, the right to
make a closing speech could be withheld.

     A response to these problems has been proposed by Justice Wood in "A
Time for Change - but How Much?" (Paper presented to National Complex White
Collar Crime Conference, June 1992).  He suggests that, in complex cases
where legal aid is not available, counsel be appointed by the court and
paid for out of the justice budget.  The Federal Court has a scheme with
the Law Society of Western Australia under which some assistance is
provided to litigants in person (see Federal Court of Australia Annual
report, 1990-91 at 30).  Under this scheme, a litigant can obtain a
certificate from a judge to apply for assistance under the Litigation
Assistance Fund in framing pleadings.  This can be of benefit not only to
the unrepresented party, but also to the court, as it enables issues to be
properly defined.  

     Litigants appearing in person are not in a good position to assess the
merits of their claim.  The frequency of frivolous and vexatious litigation
will be greater where the plaintiff is unrepresented.  This type of action
creates an undoubted burden on the court system, the extent of which should
be further investigated.  In a recent unreported Federal Court judgment,
French J. (Fisher v Westpac Banking Corporation, 18 August 1992) struck out
a home spun statement of claim that sought to rely, in part, on a
conspiracy to defraud claim, Magna Carta and anti-usury verse in the Book
of Deuteronomy, to invalidate mortgages over the applicants' home.  Whilst
holding that the pleading disclosed no cause of action and awarding costs
against the unrepresented applicants, French J. remarked that the
applicants seemed to be genuine people seeking to save their major asset,
who given proper legal advice may have had some tenable claim, but that the
advice they had received was more in the nature of "quackery".

     Procedural rules have been the focus of some criticism.  It is argued
by the Senate Standing Committee on the Cost of Legal Services and
Litigation that they can operate to discourage self-representation and make
justice less accessible (see Discussion Paper No. 6, "The Courts and the
Conduct of Litigation", at 89).  In complex proceedings, however,
procedural requirements serve an important purpose and there should be
careful consideration before they are dispensed with. Even if courts alter
the way they conduct their business, there will always need to be a
standard format followed so that greater efficiency can be achieved when
cases are conducted by people familiar with that format.  As Mason C.J. put
it recently:

      "the hearing and determination of cases is enhanced and expedited
when they are presented by able counsel who know how the court goes about
its business and for what it is looking."  ("The Independence of the Bench;
 The Independence of the Bar and the Bar's role in the Judicial System",
Keynote address to the conference of English, Scottish and Australian Bar
Associations, London, July 1992.)

     The litigant in person places a strain on court support facilities.
 When a party is unrepresented, it is likely that the dealings registry
staff have with that party will be more difficult and lengthy.  Court
libraries are also affected by the litigant in person.  It takes
considerable time for library staff to explain to a litigant how to
properly conduct legal research.  A welcome development in this area has
been LIAC (The Legal Information Advice Centre), a joint project between
the Law Foundation of N.S.W. and the State Library of N.S.W., established
in April 1990.

     The law is, to a large degree, determined by decisions in significant
cases.  We have an interest, therefore, in the outcome of complex legal
proceedings which goes beyond the desire to see fairness achieved in each
case.  Our system of justice is adversarial and depends largely upon the
competent presentation of each side of an issue.  In Cachia v Haines, both
parties were unrepresented in the special leave application. The High Court
granted leave to appeal and commented that the Registrar of the Court would
make arrangements to have counsel assigned, without cost, to each party for
the hearing.  The Court clearly took the view that, as important issues of
principle were to be determined, the Court should have the benefit of
submissions by competent counsel.  The impact of any increasing tendency
for parties to appear in person in superior courts upon the development of
the law should be considered.
 
     ROUTINE CIVIL PROCEEDINGS

     Self representation in routine matters raises slightly different
issues.  It has been argued that the cost of justice will be reduced by
encouraging litigants to appear in person in small claims courts.  A number
of suggestions have been put forward as to how to increase
self-representation, including:

     (1) simplifying procedures in small claims courts to make them more
understandable to the average litigant (see Senate Standing Committee on
the Cost of Legal Services and Litigation, Discussion Paper No. 6, above at
93);
     (2) providing sufficient administrative staff in small claims courts
to assist litigants in preparing their cases (see Weller, Martin & Rubnha,
"In-Court Assistance to Small Claims Litigants" (1984) 3 Civil Justice
Quarterly at 62);
     (3) providing widespread community legal education;
     (4) adopting a flexible approach to the rules of evidence;
     (5) using no-costs rules, under which successful litigants are not
entitled to recover the costs of their legal representation (see Whelan,
Small Claims Courts 1990 at 221);  and 
     (6) prohibiting legal representation in small claims courts.

     The need to encourage self-representation arises where the cost of
legal advice is disproportionate to the value of the claim.  There is also
the  concern that wealthier litigants may obtain better results than poorer
ones due to their ability to obtain representation.  It has also been
suggested that the use of lawyers in small claims courts has the effect of
lengthening trials (see Weller, Martin & Rubnha, above at 66).

     Many of the suggestions for reform of the small claims jurisdictions
have an initial appeal.  On closer examination, however, a number of
potential difficulties arise.
     The suggestion that courts provide administrative staff able to assist
litigants in person requires careful consideration.  If this were to have
any real impact, the commitment to staffing levels and staff training would
have to be significant.  This would be a costly exercise.  It would be of
real concern if administrative staff offered what amounted to legal advice
without relevant legal training (see Weller, Martin & Rubnha, above at 72).
 Would litigants be entitled to rely on what they were told by court
administrative staff?   What redress would be available if that advice were
shown to be false?   If, on the other hand, the courts were to be staffed
by legally trained and experienced officials, there would be little overall
reduction in the total cost of proceedings, despite the removal of legal
representation.

     Weller, Martin & Rubnha's study of American small claims courts
(above) indicates that the success rate of defendants in simple proceedings
is affected by representation, whereas the likelihood of plaintiffs
succeeding is not.  A number of possible reasons for this are suggested.
 The assistance available to litigants provided by the administrative
officers of the court is of little use to defendants, who may take no step
in defending the claim until the day of the trial.  Also, establishing a
defence may be legally more challenging than presenting a series of facts
upon which a claim is based (see Weller, Martin & Rubnha, above, at 65-6).

     Moves to encourage self-representation in routine matters may,
therefore, prejudice defendants.  The expansion of court based assistance
for litigants, as a substitute for legal representation, is likely to
heighten the disadvantages.

     The widespread adoption of a no-costs rule for simple proceedings
should not be implemented without careful consideration.  The overseas
experience suggests that the rule does not deter a significant proportion
of litigants from obtaining representation (Whelan, above at 221).   Under
such a rule, a successful litigant who is represented will not obtain a
fair result.
     
     THE RIGHT TO COUNSEL IN CRIMINAL PROCEEDINGS

     In the United States, the courts have construed the sixth amendment of
the Constitution as requiring both federal and state governments to provide
representation for the accused in all serious criminal cases (see Johnson v
Zerhst (1938) 304 U.S. 458;  Gideon v Wainwright (1963) 272 U.S. 335).  It
is acknowledged in that country that an accused cannot be assured of a fair
trial unless counsel is provided.  The right to counsel is seen as an
important safeguard for ensuring equality before the law. 
     The position in Australia before Dietrich v R (1922) 109 ALR 385, was
quite different.  

     In McInnis v R (1979) 143 CLR 575 it was argued that the trial judge's
refusal to adjourn to enable the accused to attempt to obtain
representation resulted in a miscarriage of justice.  The majority in the
High Court said that, as the Crown case had been overwhelming, no
miscarriage of justice had occurred.  Murphy J. delivered a strong
dissenting judgment arguing that an accused had a fundamental right to be
represented by counsel.  He considered the strength of the prosecution case
to be irrelevant on the basis that it is impossible for an appellate court
to judge the strength of the case when the accused is unrepresented.

     However in March 1992, the High Court granted leave to appeal from a
decision of the Victorian Court of Criminal Appeal in Dietrich v. R,
unreported, 8 May 1989.  In that case the accused had applied
unsuccessfully for legal aid prior to the trial.  The Court of Criminal
Appeal rejected the submission that the accused had a right to be
represented by counsel at the trial.  O'Bryan J. said that the introduction
of such a rule was a matter for the legislature.   The High Court, by a
majority of 5-2, however, on fundamental principles of human rights, framed
a right of an indigent accused to legal representation, if so desired, to
defend any serious criminal charges.  This right was cast in the negative:
 an unrepresented accused is generally to be entitled to a stay in
proceedings until representation is available.

     
     LEGAL AID

     Most people who appear unrepresented before the courts are not
motivated by a desire to exercise the right to appear in person.  They
appear unrepresented due to financial necessity.  The cost of litigation,
particularly in complex proceedings, is high and the criteria for the
availability of legal aid are strict.  There exists a large group of people
who cannot afford the services of legal professionals and yet do not fall
within the income and asset thresholds applied in the National Means Test,
used by all Legal Aid Commissions in Australia to determine eligibility for
legal aid (see Senate Standing Committee on Cost of Legal Services and
Litigation, Discussion Paper No. 7, "Legal Aid" at 22).

     Legal aid is administered in each state in Australia by a Legal Aid
Commission.  The income and assets tests used to determine eligibility for
legal aid are standard throughout the country and, on any view, are strict.
     Merits tests are also applied by Legal Aid Commissions to limit those
who qualify for legal aid.  Merits tests are based on factors such as an
applicant's prospects of success and the value of the claim compared to the
likely cost of the proceedings.  The use of merits tests affects the extent
of self-representation, as litigants in person will often view the merits
of their claim more favourably than the Legal Aid Commission. 

     The New South Wales Legal Aid Commission recently proposed the
introduction of a contingency fee scheme to cover legally aided civil
proceedings.  Plaintiffs falling within the means test would attempt to
find a solicitor prepared to enter into a contingency fee arrangement
(under which the solicitor would receive full payment of costs if the
plaintiff succeeds, but receive nothing if the case is lost).  Plaintiffs
 unable to obtain such a solicitor would still be entitled to have the
merits of their case considered by the Commission.  The Commission put
forward the scheme as a means of saving money on its civil list budget.

     Any further restrictions on legal aid could seriously compromise the
administration of justice.  Consideration should ideally be given to
expanding legal aid.  The court system would operate more efficiently if
all litigants involved in complex proceedings had adequate representation.

     The use of the merits test in serious criminal proceedings is of great
concern.  Legal aid administrators make assessments of the prosecution case
which have a profound impact upon the quality of justice the accused
receives. This is clearly unacceptable.  To borrow the language of Murphy
J., "courts should not allow the integrity of the judicial process to be
undermined by the financial exigencies of legal aid schemes." (See McInnis
at 592).

     Community Legal Centres, pro-bono, and contingency work

     There has been much room for growth and innovation in the provision of
free legal advice agencies, however there are obvious limits on the
financial and other capacities of such services to do justice to
impecunious litigants involved in complex matters. There is also room to
consider whether, granted the good work that is done on a charitable level,
pro bono schemes can be of great effect. Is it seriously to be expected,
especially in recessed financial times, that busy and experienced
solicitors and counsel will surrender their time to assist the needy?
 Experience with duty solicitors' schemes has shown that it is only the
very junior and by definition less capable practitioners, who volunteer
their time in return for experience. (See e.g. (1976) Legal Service
Bulletin at 95-6.)  

     Speculative funding of claims has a long history, especially in
personal injuries litigation, where plaintiffs are often, by necessity,
impecunious (see note by Justice Young in "Current Topics" (1992) 66 ALJ
616).  The role that could be played by contingency fee arrangements in
widening access to the courts, and the dangers of champerty, maintenance
and excessive litigiousness, are however, outside the scope of this paper.

     
     FUTURE DIRECTIONS

     First, there is a need for more information about the number and kinds
of cases in which unrepresented parties appear.  In her recent AIJA study
on Court Management Information, Patricia Lane has discussed the need for
better information of this kind.

     Additionally, the following policy issues arise for future
consideration:

     (1) Should litigants be encouraged to appear in person and if so, in
what type of matter?

     (2) Should legal aid be more readily available?  Are merits tests
appropriate in serious criminal cases?  Should the accused in a serious
criminal trial have an absolute right to representation? (The AIJA has
recently commissioned a study in this area.  See also "Legal Aid for the
Australian Community" (1990), a report by the National Legal Aid Advisory
Committee;  Senate Standing Committee on Cost of Legal Services and
Litigation, Discussion Paper No. 7).  

     (3) Should courts consider appointing counsel to be paid out of the
justice budget?  If so, should the criteria for deciding when court
appointed counsel are needed depend on the legal importance of the case, or
on issues of fairness between the parties? 

     (4) What is the appropriate role for the judge in proceedings where a
party is unrepresented?  Specifically, what power should the judge have to
limit the scope of proceedings?

     (5) What procedural reforms can be implemented to make the court
proceedings more accessible to the litigant in person?

     (6) Should any distinctions be made between litigants appearing in
person at first instance and on appeal?  Is there a case for extensive use
of written submissions in appeals involving an unrepresented party?

     (7) Should a case management system be applied in complex criminal
matters, and if so what form should it take and how should it be enforced?
  Should procedural rules regarding disclosure of evidence and admissions
in civil proceedings be tightened?    Is it fair to enforce certain
procedures to ensure a smoother prosecution of cases involving
unrepresented litigants, if such procedures are not applicable to ordinary
litigation?



LITIGANT IN PERSON - PROPOSALS FOR REFORM
                            Vince Bruce, QC

     INTRODUCTION

     The specification, though simply stated,  contains a number of
questions about the allocation of scarce court resources to overcome the
problems caused by the conduct of complex litigation by unrepresented
litigants.

     These questions can be highlighted by sub-dividing the categories of
persons and complex litigation which may be involved.  These subdivisions
include:

     1. Whether the litigation is criminal or civil;

     2. Whether the unrepresented litigant is:
      (a) a plaintiff/applicant;
      (b) a defendant/respondent, or
      (c) appearing on an appeal. 

     3. Whether the unrepresented litigant is:
      (a) eligible for legal aid but chooses not to use it;
      (b) not eligible for legal aid and financially able to afford the
costs of litigation, but chooses not to retain the services of legal
advisers;
      (c) not eligible for legal aid and not financially able to retain the
services of legal advisers. 

     4. Whether the unrepresented litigant is:
      (a) a vexatious or irrational litigant who is mounting a claim or a
defence without foundation; or
      (b) a person seeking to maintain a reasonable (if not necessarily
legally correct) position.

     5. Whether the unrepresented litigant is:
      (a) intent on conducting the litigation in a rational and sensible
way in order to achieve a proper result;  or
      (b) is incapable either by lack of intellect, training or emotional
factors of properly conducting the litigation.

     
     CRIMINAL LITIGATION

     There is, throughout Australia, significant delay in the resolution of
criminal matters.

     While this delay is perhaps not uniform throughout Australia,
presently in the NSW Supreme Court approximately 200 criminal cases have
been committed to the Common Law Division.  The judges of that Division
provide the nucleus of the Court of Criminal Appeal, which presently has
approximately 770 appeals pending.  In the NSW District Court there are
3,800 criminal cases pending.

     The effect of this workload is that there is a delay of approximately
two years in custody between committal and the determination of an appeal
in a typical criminal case.  In complex matters, that time lag will be even
greater; if the defendant is not in custody, that delay is further
increased.

     Plainly, in these circumstances, the courts have a duty to ensure that
all proceedings before them are conducted with the utmost speed consistent
with providing the accused a right to a proper and fair trial. To do
otherwise and cause or permit delay works an unacceptable burden upon those
whose cases are pending after being brought before the court.


     The Hearing

     In the conduct of criminal cases there is a duty on the trial judge to
give advice to unrepresented accused.  In MacPherson v. R (1981) 147 CLR
512 at 524, Gibbs C J and Wilson J said:

     "There is no limited category of matters regarding which a judge must
advise an unrepresented accused - the judge must give an unrepresented
accused such information as is necessary to enable him to have a fair
trial.  And although no doubt some accused persons refuse the offer of
legal representation for tactical reasons, an accused does not become
disentitled to a fair trial because he has declined, and even perversely
declined, an offer of legal assistance."

     In R v. Zorad (1990) 19 NSWLR 91 at 99, the New South Wales Court of
Criminal Appeal, in applying what was said by Mason J in MacPherson v. R
(at 534-535), stated:

      "[I]t is said that [the] judge gave to the appellant no assistance in
reformulating questions such as that which were not in proper form and
rejected for that reason.  The judge was under no duty to do so.  His duty
is to rule on the questions, not to formulate them.  His duty to give an
unrepresented accused such information and advice as is necessary to ensure
that he has a fair trial would include, if it became necessary, an
explanation as to the form in which questions should be asked, but not to
put the questions in that form for the accused.  The judge's duty is to
ensure that the unrepresented accused is put in a position where he is able
to make an effective choice as to the exercise of his rights during the
course of the trial, but it is not to tell him how to exercise those
rights:  MacPherson v R (at 535-535) and R v. Gidley (1984) 3NSWLR 168 at
180-181."

     While the law stands as it does, a duty is cast upon the trial judge
to render such assistance to the accused as is necessary throughout the
course of the trial.

     In complex cases this obligation imposes a heavy burden on the trial
judge for a number of reasons, namely:

      (a) The issues are not limited.   When an accused is represented by
competent counsel, the effect is usually that the case is fought on a
limited number of issues.  However, when the accused is unrepresented all
issues are open and the trial judge has an obligation to advise the accused
on each of them.
      (b) The judge is frequently requested to interrupt to give advice on
matters of law and evidence.
      (c) It is sometimes felt that the judges go further in assisting an
unrepresented accused than they would if the accused were represented.
      (d) In many complex criminal cases, the accused are personable and
persuasive people with whom the trial judge must deal directly (without the
buffer or filter of counsel representing them).  This may well create added
pressures on the judge when the sentencing stage is reached.

       An example where this could have arisen is the recent New South
Wales case of R v Connell & Ors.   This was a Commonwealth prosecution of
four professionals for acts alleged to constitute conspiracy relating to a
company stripping operation by a deceased fifth person.  Three of the
accused were unrepresented, apparently because they were unable to afford
representation and were not provided with legal aid.  The trial commenced
in February and concluded in August.  After fifteen days deliberation the
jury was unable to agree on a verdict.   One can imagine the pressure that
would have been on the trial judge had the jury convicted, since he had
been advising three of the accused on practically a daily basis for over
six months.

     In order to limit issues and to overcome the problems referred to
above, it seems desirable to provide some form of assistance to
unrepresented accused in conducting their trial.   This assistance could
take any of the following forms: 

      (i) Assigning a public defender to give advice when called upon in a
particular case;
     (ii) Providing legal aid to enable advice to be obtained from the
private profession;
    (iii) Establishing a list of suitably qualified solicitors and counsel
who are prepared to provide their services free of charge for that purpose.
 The trial judge could appoint a person from that list prior to the
commencement of the trial.

       The assistance obtained from the person provided to the accused by
any of the above methods would desirably be directed towards the following
matters:

      (i) The ingredients of the offence charged;
     (ii) An outline of the rules of evidence and the way in which
questions should be framed;
    (iii) The right to give evidence or make a statement and the
consequences which follow;
     (iv) Particular matters as they arise during the conduct of the trial.

     I recognize that providing the advice referred to above would not
necessarily absolve the trial judge of the responsibility to advise the
accused, but if obtained before problems arose at trial, it would no doubt
enable accused persons to respond more quickly to advice given by the judge
and thereby conduct their defence in a more efficient manner.


     Case Management

     In cases where the accused is unrepresented, it would be appropriate
that there be proper case management from some time after committal, but
certainly well before the trial commences.

      Case management could include:

    1. (i) Requiring the Crown to:
       (a) state in clear, lay terms the charge which is made,
       (b) state the material facts on which it relies to prove the charge,
       (c) serve statements of all witnesses it proposes to call to
establish those facts,  
       (d) provide to the accused copies of all documents it proposes to
tender in evidence.
  (These documents should be provided in a bound and paginated form.)

      (ii) Requiring accused persons to:
       (a) nominate which material facts they dispute,
       (b) nominate which parts of the evidence which appears in the
statements are in dispute,
       (c) nominate or specify what evidence will be called to rebut the
matters in dispute,
       (d) indicate whether they are prepared to admit any of the nominated
facts which appear in the Crown's list.

      The difficulty with this procedure is that there is, at present, no
coercive power to secure such compliance. It may be that the only benefit
that would accrue is through the mitigating effect the admission of
non-contentious facts (or facts which are not genuinely in dispute) would
have on the penalty imposed on a convicted accused.

      A recent report for the AIJA on Complex Criminal trials by Professor
Mark Aronson, has recommended detailed changes in the law and practice in
this area.

     2. Questions of law which arise in the course of a trial of an
unrepresented accused frequently consume considerable hearing time, because
of the necessity for the trial judge to deal with them and advise the
accused. 

      A possible procedure for reducing court time involved at trial, and
improving the accused's position, would be to establish machinery for
pre-trial decisions or rulings on matters such as:

       (i) The adequacy of the indictment;
      (ii) The admissibility of evidence;
     (iii) Any question of law which appears likely to arise in the course
of the trial.

      At the pre-trial hearing(s) it would be desirable that the accused be
represented.  That could be done by a person selected in the manner
referred to above for the selection of a person to advise the accused; but
in any event, even if there were no representation, the type of question
referred to above could more efficiently be disposed of in a consolidated
hearing before any jury is empanelled.

     The right to counsel in criminal proceedings

     The foregoing is proposed on the basis that an accused has no right to
counsel and may be denied representation because of the vagaries of the
legal aid system.

     Even given the recent High Court decision that there is a right to
counsel (Dietrich v R (1992) 109 ALR 385), there will still be cases,
although fewer, where an accused will choose to appear unrepresented.
Accused who elect to follow that course may nonetheless avail themselves of
any advice provided by means of the procedures suggested above, but in the
present state of the law, they could not be compelled to do so.

     
     CIVIL PROCEEDINGS

     Where there is an unrepresented party (for whatever reason) who is
genuinely seeking to conduct litigation properly

     Save in the High Court of Australia, everyone of full capacity is
entitled to be heard, in person, by any court concerned to adjudicate
proceedings to which that person is a party.

     While that right exists, it is true, as Beaumont J submitted to the
Senate Standing Committee on Legal Constitutional Matters, that:

      "The ability to perceive the real issues in a complicated case should
not be underestimated and ... advocacy in these areas should not be seen as
a part-time occupation.  If a litigant appears in person in a complex case,
it is usually difficult for any sorting out of issues to occur."

     In complex litigation, many interlocutory procedures assume a greater
degree of importance and difficulty than they do in routine proceedings.
 Those procedures include:

      (i) Particulars;
      (ii) Affidavits and Statements;
      (iii) Discovery;
      (iv) Interrogatories;
      (v)  Subpoenas.

     Where litigants are reasonably well educated and rational, all of the
above matters can be dealt with by proper case management.

     Pleadings

     This area frequently gives rise to considerable difficulty where one
or other of the parties is unrepresented.  If one party has little legal
knowledge, the path to an acceptable set of pleadings setting out properly
justiciable issues is often tortuous, and traversing it may consume a great
deal of court time.

     The number of direction hearings which can take place where there is
an unrepresented party, who appears to have a case or a defence, can be
great and not necessarily productive. There have been cases where there
have been upwards of 70 pre-trial appearances.

     An ethical question to be determined is whether the courts and the
opposing party should be subjected to the time and cost consequences of a
party, who can afford to obtain proper representation, electing to appear
unrepresented. On one view, such a party should not be provided with any
assistance or judicial indulgence other than that accorded to a party who
was represented, so that the proceedings are dealt with by rulings being
made without frequent adjournments being given to enable the unrepresented
party to put his case in order.

     If that approach is not adopted, or if the litigant is not able to
afford legal representation, then there are a number of possible procedures
aimed at arriving at the real issues, namely:

      (i) Providing legal aid for the purpose of settling the unrepresented
party's pleadings.  Such a system presently exists on a trial basis, in the
Federal Court in Western Australia. It operates where a Judge or Registrar
of the Court certifies that there is merit in providing assistance.  If the
Law Society deems that the litigant cannot afford the legal assistance
required, then assistance will be provided from the Litigants' Assistance
Fund;
     (ii) Establishing a free system of suitably qualified solicitors or
counsel who, at the request of the court, will assist in preparing the
pleadings.
    (iii) Appointing the Registrar or another officer of the court to
assist in the pleading.

     In circumstances where there is an apparently defective pleading, the
court could invoke whatever procedure exists to provide legal assistance to
the unrepresented party,  and require the assister to certify the
correctness of the pleading before the matter proceeds further.

     Interlocutory procedures other than pleadings

     Each of the interlocutory procedures listed above requires some
understanding of the legal process for litigants to properly utilize them,
and understand and comply with their obligations.

     In order to inform unrepresented litigants of the existence of the
procedures and their corresponding rights and obligations, they should be
provided with a copy of the rules of the court relating to such matters. 

     Further, they should have access to qualified legal advice in relation
to such matters, in the form of one of the methods set out above in
relation to pleadings.

     It should not be difficult to establish a panel of solicitors and
barristers who would be prepared to give advice to an unrepresented
litigant in complex litigation if requested to do so by the court.  

     The above proposals should be limited to unrepresented litigants who
are unable to afford proper legal representation. However, one possibility
for saving court time would be to require the litigant to obtain a pleading
which has been certified by a legal practitioner before the case could
proceed, and for that certification to be obtained regardless of the
ability of the litigant to pay for legal assistance.

     While it may be argued in an ideal world that all persons should be
able to appear and conduct their litigation before any court, in the
imperfect world in which we live, the consequences of delay to the courts
caused by litigants who choose to conduct litigation without the assistance
of legal representation should not be visited on other litigants who are
seeking to have their rights determined by a court whose time is being
consumed unnecessarily because of a lack of representation. 

     A more draconian solution for litigants who can afford legal advice,
but choose not to avail themselves of it, is to require them to bear the
consequences of their failures if they fail to comply with the rules.  The
court should not be delayed by seeking to assist them.

     Case management

     Where there is a party conducting litigation without legal
representation, then after pleadings have closed there could be a procedure
akin to that proposed for complex criminal trials, namely:

      (i) The plaintiff should state the material facts upon which s/he
relies to obtain the relief s/he seeks;
     (ii) The plaintiff should serve statements of all witnesses who s/he
proposes to call to establish those facts;
    (iii) The plaintiff should provide copies of all documents which s/he
proposes to tender in evidence;
     (iv) The defendant should state which of the material facts referred
to in (i) above s/he disputes;
      (v) The defendant should state any facts which s/he relies upon to
establish a defence;
     (vi) The defendant should serve statements of all witnesses who s/he
proposes to call to support the matters in (iv) and (v).
    (vii) The defendant should provide copies of all documents which s/he
proposes to tender in evidence.

     There could then be a preliminary hearing dealing with  matters such
as:

      (i) The validity of the pleadings (if such an issue still exists);
     (ii) The admissibility of evidence contained in statements and
documents proposed to be tendered;
    (iii) Any questions of law which appear likely to arise in the trial.

     The determination of these matters at a preliminary stage would enable
an unrepresented party to obtain advice and seek to overcome difficulties
caused, for example, by the rejection of evidence which s/he proposes to
tender.
     Such a hearing should speed up the trial and ensure that the real
issues are addressed during the trial. 

     Civil proceedings where there is an unrepresented party (for whatever
reason) who is vexatious or irrational

     The question of the control of vexatious litigants is beyond the scope
of this paper.

     However, experience shows that many plaintiffs and some defendants who
conduct complex litigation without representation often have the
characteristics of vexatious litigants, even though they may be involved in
only one piece of litigation.

     Nonetheless, judges hesitate to dismiss suits brought by unrepresented
parties for fear that there may be a good case concealed in the manner and
form in which the case is framed or presented. Similarly, they hesitate to
enter judgment for fear that there may be a good defence.

     Pleadings

     If an unrepresented litigant files a pleading which doesn't disclose a
cause of action or defence, and the matter appears complex, judges are
understandably reluctant to determine proceedings on the basis of that
pleading.

     I have suggested possible procedures or systems to enable
unrepresented litigants to obtain advice about the form of their pleadings,
but difficulties may arise if unrepresented parties persist with defective
pleadings after obtaining assistance, or if they refuse to seek or accept
such assistance.

     Should unrepresented plaintiffs decline legal assistance or refuse to
act upon legal advice which they obtain, it could be open to the court
either to stay proceedings until that assistance is availed of, or
alternatively dismiss the proceedings if no cause of action is disclosed by
the pleadings.  If unrepresented defendants decline legal assistance, it
should similarly be open to the court to strike out their defence and enter
judgment against them.

     Case management

     The procedure suggested above for case management of civil cases where
the unrepresented party is rationally seeking to resolve the litigation is
also appropriate for cases where the unrepresented party is not behaving
rationally.  However, it would achieve little if judges did not impose
sanctions for failure to comply with the procedure and conduct the trial on
the basis established during the pre-trial hearings.



LITIGANT IN PERSON -COMMENTARY
                              Frank Jones*


     INTRODUCTION

     I have been asked to comment on two research papers prepared for the
Advisory Committee by Vince Bruce QC and by Helen Powles.

     The specification for the project refers to "... the situation arising
when an unrepresented litigant seeks to conduct litigation, particularly
complex litigation."  
     The term "litigant in person" is sometimes used synonymously in court
circles  with "vexatious litigant";  while this may be the case in some
circumstances, it is not a general rule.   I would favour a more neutral
term, such as "unrepresented person".

     I have not restricted my comments to "complex litigation", as it is my
experience that an unrepresented person is more likely to appear in a
straightforward contractual dispute over services rendered or goods
supplied, or a negligence action for personal injuries, than in complex
commercial litigation.

     Vince Bruce QC has dealt in detail with procedures which could be
adopted in court proceedings at trial level, both in the civil and criminal
jurisdictions.

     
     CRIMINAL TRIALS

     The recent High Court judgment Dietrich v R (1992) 109 ALR 385 is
likely to have an impact on the listing of complex criminal trials where
there is an indigent accused person.  Trial judges will be reluctant to
begin trials in circumstances where an indigent accused requests an
adjournment on the basis that he does not have legal representation, for
fear that the trial will subsequently be found to have miscarried. 

     In an increasing number of jurisdictions, the determining factor as to
whether an indigent accused person receives publicly funded legal
representation is the perception of the relevant legal aid body of the
accused's chances of securing an acquittal at trial.  Legal aid was
available to Dietrich only if he pleaded guilty.  It is probable that as a
consequence of this decision, more accused persons will plead not guilty
and take their chances on gaining an acquittal at trial, and the number of
accused persons appearing unrepresented will be small.

     Vince Bruce QC acknowledged that his proposals were dependent on the
High Court deciding in Dietrich that an accused person had no right to
counsel and could therefore be denied representation because of the
"vagaries of the legal aid system".  He foreshadowed that if the court
upheld the right to counsel, there would still be accused persons who would
wish to defend themselves.  I doubt whether any accused person properly
advised will now wish to take a chance defending himself when, if legal
assistance is refused, the trial judge can confidently be requested to
grant an adjournment in order to try and secure legal representation.

     If some accused decide to represent themselves, or if a trial judge
takes the view that legal representation will never be available to a
particular accused, there may be some trials proceeding with unrepresented
accused.

     In those circumstances I do not believe that a trial judge or the
prosecution can take for granted the co-operation of the accused.  An
unco-operative, unrepresented accused leaves the trial judge in the
position of having to assist the accused on the one hand, yet rein in the
accused if s/he engages in prolix cross-examination of witnesses or similar
conduct.

     The courts recognize that unrepresented accused are disadvantaged, not
merely because they invariably have insufficient legal knowledge or skills,
but because those accused in such a position are unable dispassionately to
assess and present their case in the same manner as counsel for the Crown.
(see McInnes (1979) 143 C.L.R., per Murphy J at p.590).

     The difficulties confronting a trial judge where the accused is
unrepresented were referred to in various judgments in Dietrich.   Mason CJ
and McHugh J, stated (at 5):

      "The hallowed response that, in cases where the accused is
unrepresented, the judge becomes counsel for him or her, extending a
"helping hand" to guide the accused throughout the trial so as to ensure
that any defence is effectively presented to the jury, is inadequate for
the same reason that self- representation is generally inadequate:  a trial
judge and a defence counsel have such different functions that any attempt
by the judge to fulfill the role of the latter is bound to cause problems."

     Dawson J (at 51) stated:

      "The assistance which the trial judge can give to an unrepresented
accused is limited, but its effect ought to be to redress as far as
possible any imbalance in the presentation of the prosecution and defence
cases and to ensure that the procedures adopted fairly reflect the case
which the accused wishes to put in his defence."


     
     CIVIL TRIALS

     Vince Bruce QC succinctly paraphrases the difficulties facing courts
in the coming decade when he states:

      "While...in a ideal world...all persons should be able to appear and
conduct their litigation before any court, in the imperfect world in which
we live, the consequences of delay to the courts caused by litigants who
choose to conduct litigation without the assistance of legal representation
should not be visited on other litigants who are seeking to have their
rights determined by a court whose time is being consumed unnecessarily by
a lack of representation."

     Unrepresented persons should not be denied the right to appear in
court to present their case, however this right should be qualified by
requiring that there be an arguable case, and that the case has been
prepared in accordance with the rules of the court.  It may be that some
form of judicial certification should take place before the matter is
listed.

     Control of litigation should begin with the initiating process.  It is
at this time that the unrepresented person should be prevented from
initiating proceedings until such time as the court (judge, master, or
registrar) is satisfied that the intended proceedings are not, on their
face, frivolous, vexatious or an abuse of the court's processes. I am
aware, that in courts with high volume registries, this would require very
close scrutiny of originating processes and perhaps an upgrading of the
qualifications of filing counter attendants or their supervisors.  The
savings to both potential defendants and court resources would far outweigh
the increase in court administration costs.

     This filtering procedure would ensure that potential defendants were
not subjected to unnecessary costs.  If a judge, master or registrar formed
the view that the process should be issued subject to the cause of action
or relief sought being more particularized, then the procedures set out at
pages 10 and 11 of Vince Bruce QC's paper might be explored.

     There is merit in the system of referring cases to a panel of
solicitors and barristers which can, on request by the court, assist in the
preparation of pleadings.  The High Court has done this occasionally on an
ad hoc basis.  However, I fear the repercussions which may result from such
an arrangement if the unrepresented person subsequently wishes to sue the
solicitor for negligence.

     I disagree with the suggestion that court officers assist with
pleadings.  Traditionally, courts have instructed their officers that
assistance to unrepresented persons be limited to information which will
enable those persons to comply with the procedural requirements of the
rules, such as the appropriate forms to be used.

     Vince Bruce QC also suggests that in order to inform unrepresented
persons of the practice and procedure of the court, they should be provided
gratis with a copy of the rules of court.

     I disagree with this proposal on a number of grounds, primarily the
cost to the court.  The "user pays" principle, which governments have
forced upon the courts, means that the courts now have to pay for copies of
their own rules.  The provision of free copies to litigants would be too
expensive for the courts to carry.  The second ground on which I disagree
is that, notwithstanding the provision of a set of rules, the unrepresented
person would constantly be asking court staff to "show me the appropriate
rule" and "what does this rule mean".  This would involve staff, some of
whom are not legally trained, volunteering advice, and could lead to
unrepresented persons in stating in court, "I was informed that this was
the appropriate rule by X in the registry".  Court staff should not be
subjected to verballing in this manner.

     A guidebook, setting out in an easy to read style the various
procedures to be completed in preparing cases for hearing, with references
to the appropriate rules of court in the various jurisdictions, would be of
assistance to unrepresented persons and practitioners alike.  It would also
relieve court staff of a great number of the enquiries they presently
receive from unrepresented persons.  This could be in a similar form to the
handbook which the judges of Commercial List of the Supreme Court of
Victoria have recently introduced (the Guide to Commercial List Practice). 

     I agree with the case management procedure proposed by Vince Bruce QC
at pages 12 and 13 of his paper.  However, the success of that procedure
depends upon two factors: firm judicial control, and the co-operation of
unrepresented persons.  I think we can count on firm judicial control being
administered; co-operation of unrepresented persons is, as I have
previously stated, not to be taken for granted. Experience has shown that
unrepresented persons are not averse to using court procedures to seek
extensions of time to comply with judicial timetables, and then appealing
any refusals of that extension.  To ensure compliance with court
procedures, strict rules providing self-executing orders for striking out
of actions for non-compliance should perhaps be contemplated.

     It may be said that imposing of such rules on unrepresented persons
would unfairly discriminate against them.   However, there is a
countervailing public interest that the processes of the courts not be
abused, and that persons not be subjected to costly litigation without
merit.

     Anecdotal evidence in the High Court is that a significant number of
persons who have been unsuccessful at trial have funded their appeals
themselves:  either because their funds have been exhausted or they are
disillusioned with their legal representation, they decide to proceed
through the appellate process unrepresented.

     
     APPEALS

     As is the case in respect of criminal trials, there appears to be no
published statistical information as to the number of civil proceedings
instituted by unrepresented persons in various jurisdictions, nor is there
information concerning the number who become unrepresented after the trial
stage and proceed to appeal.

     Different considerations apply to criminal and civil appeals at the
intermediate appellate level.  The availability of legal assistance usually
continues to convicted persons for serious crimes.  However, the level of
assistance for civil appeals is severely limited.


     CIVIL APPEALS

     Unrepresented persons are as disruptive to the appellate process as
they are at the trial level, perhaps even more so because of the limited
judicial resources available to appellate courts. 

     As a result of the unavailability of legal assistance, it appears that
an increasing number of unrepresented persons are conducting their own
civil appeals.

     Consideration might be given to introducing a two tiered or
differentiated case management system (DCM), for appeals by unrepresented
persons.  This would enable a filtering to ensure that respondents did not
incur additional costs where there were no genuine grounds for appeal, or
where the unrepresented person was incapable of articulating intelligible
oral argument.  Court time would not be wasted on hearing entirely
unmeritorious appeals. 

     In general terms, an unrepresented person would have to satisfy the
court, a judge or a master, either by restricted oral argument (no more
than 15 minutes), or by written argument, that there was a prima facie
case, and that a notice of appeal should be served on the respondent.  It
may be that if the appeal is to proceed, it should be done on written
rather than oral argument, again as a means of saving court time and
hopefully reducing costs incurred by oral argument.

     CRIMINAL APPEALS

     Criminal appeals present different problems. It is not appropriate to
deprive an unrepresented convicted person of the right to appeal against
conviction or to seek leave to appeal against sentence.  It is appropriate,
however, to apply a DCM approach to the means of determining the appeal or
leave application. 

     Although there is no published statistical information with respect to
the number and kind of cases in which unrepresented parties appear, I have
ascertained that in the three eastern states, the percentage of
unrepresented convicted persons ranges from 5% - 30% of total criminal
appeals.  Of this percentage, 90% - 95% are appeals against severity of
sentence.

     Let us assume, for the purposes of this paper, that those convicted
persons who seek, without representation, to appeal against conviction or
to obtain leave to appeal against sentence, have had the opportunity to
apply for legal assistance, but they failed a merits test.  In such cases,
should they be given the same opportunity to present their appeal as the
convicted person who has either private means or legal assistance after
satisfying a merit test?  The answer must be yes, but to what extent. It is
at the appellate level that Vince Bruce QC's proposal that there be
established a list of suitably qualified solicitors and counsel who are
willing to provide a "pro bono" service has the most merit.  I would not
expect any practitioner to provide a "pro bono" service for a trial which
might go for weeks or months, however the handling of an appeal against
conviction or an application to appeal against severity of sentence does
not require the same sacrifice of time or money.

     The use of written submissions is now well established in appellate
courts throughout Australia,  both in civil and criminal jurisdictions.  In
the event that the "pro bono" proposal is not feasible, convicted persons
should be required to submit, in advance of the hearing, written
submissions setting out as briefly as possible the grounds on which the
conviction is challenged, or why the sentence is said to be excessive so as
to be outside the appropriate sentencing principles. 

     Most unrepresented persons do not take up a great amount of court time
orally presenting their criminal appeals, however to ensure matters are
disposed of expeditiously, time limitations should be imposed on oral
submissions.

     The use of court resources in the disposition of sentencing appeals is
worthy of consideration.  As I understand the position, the enabling
legislation of Courts of Criminal Appeal in the states requires a minimum
of three judges to hear appeals against conviction and sentence.  I would
advocate that only two judges need sit to hear sentencing appeals, provided
that where the court believed the matter required three judges, such a
bench would be constituted.  I would not envisage many appeals requiring
the full treatment.

     
     FUTURE DIRECTIONS

     I agree with Ms Powles that there is a need for more statistical data
concerning the impact unrepresented persons are having on the day to day
activities of courts throughout Australia.

     Registrars in most courts can readily recite a list of their
"vexatious litigants".  These, however, are usually limited to civil
proceedings, and are not exhaustive of all unrepresented persons engaged in
litigation in a particular jurisdiction.  What is required is a detailed
analysis of the extent of the problem, if indeed there is one.  Like most
of my colleagues in other jurisdictions, I am conscious of the disruption
that unrepresented persons have on both registry and court time.  However,
are the numbers in the various jurisdictions such as to justify the time
and expense of formulating and implementing new procedures to specifically
deal with them?

     Ms Powles raises a number of policy issues which are worthy of
consideration and comment.

     (1) Should litigants be encouraged to appear in person and if so, in
what type of matter?

     In my experience, on rare occasions the High Court has had the benefit
of coherent, well prepared argument from an unrepresented person.  I cannot
speak for other jurisdictions, but I assume for the purposes of this paper
that their experience is similar to mine.  As advocated earlier, I favour
tight judicial control of unrepresented litigation, with restricted oral
argument based on prior written submissions.

(2) (i) Should legal aid be more readily available?

     The answer is yes. However, given the country's economic position,
funding is likely to be cut further, with the consequence that legal aid
will be granted on a more restricted basis, with persons accused of serious
crimes being given preference.
     There have been a number of suggestions to enable legal aid funds to
be spread further, one of which is to limit the grant of funds to a
particular case by the allocation of a lump sum.
     The rationale behind lump sums is that counsel will present the cases
in a more economical manner, knowing that they will only be paid for a five
day trial.  The argument against lump sum fees is that they are fixed
arbitrarily by bureaucrats with no knowledge of the issues involved in the
case.
     The crucial factor in costing legal aid for trial is the proposed
length of the trial.  The person best able to assess the approximate time a
trial should take is a trial judge.  Why not fix the lump sum on the basis
of the trial judge's assessment of the issues and the time it should take
to try them?
     This may involve criminal trial courts conducting pre-trial hearings
to determine the essential issues to be tried.  However, since the practice
is now successfully used in complex criminal cases, I see no reason why it
should not be successful in the ordinary criminal trial.

      (ii) Is the merits test appropriate in serious criminal cases?

     The answer after Dietrich is probably no.  Persons accused of serious
crimes and committed for trial will be entitled to have their trial
adjourned in the event that legal assistance is not granted.  I would
expect assistance to be granted now in all serious cases.

     (iii) Should the accused in a serious criminal trial have an absolute
right to representation?
     Dietrich has answered this question in the negative.

     (3) Should courts consider appointing counsel to be paid out of the
justice budget?   If so, should the decision whether court-appointed
counsel is needed depend on the legal importance of the case, or on
fairness between the parties?

     To answer this question in the affirmative would reactivate the issue
resolved in Dietrich, namely the right of accused persons to have their
case presented by counsel at public expense.

     In the United States the constitutional guarantee of the right to
counsel provides the only means whereby indigent accused can obtain legal
representation;  however, the cost is horrific.  The federal appropriation
for defender services in United States federal courts in 1992 was $US190.6
million, and the figure requested for 1993 is $US275 million.  In addition
to these amounts, there would be a substantial increase to the running
costs of courts involved in administering such a scheme.
     (4) What is the appropriate role for the judge in proceedings where a
party is unrepresented?   Specifically, what power should the judge have to
limit the scope of the proceedings?

     I refer to my specific comments made elsewhere in this paper.

     (5) What procedural reforms can be implemented to make court
proceedings more accessible to the litigant in person?

     I do not think it is a case of making the courts more accessible to
litigants in person.  Rather it is a question of controlling litigation
initiated by those persons with effective case management practices, which
can be enhanced by procedural reforms such as screening procedures,
 restricting oral argument, and the use of written submissions.

     (6)  Should distinctions be made between litigants appearing in person
at first instance and on appeal?  Is there a case for extensive use of
written submissions in appeals involving an unrepresented party?

     My answer to both these questions is in the affirmative, for reasons
given elsewhere in this paper.

     I hope that the comments I have made will add to and further stimulate
debate on this important topic.

    * Frank Jones is the Registrar of the High Court of Australia but the
views expressed in this Commentary are personal views.
tary are personal views.