Litigants in Person in the Federal Court of Australia and the
Administrative Appeals Tribunal:
A Research Note Paper presented to the Sixteenth AIJA Annual
Conference Melbourne 4 - 6 September 1998 by Helen Gamble and Richard Mohr
Background and purpose of the research
Concerns at the numbers and demands of litigants in person have been
expressed in literature from the United Kingdom (Otton 1995) and the United
States (Goldschmidt 1998).
Some of these concerns were being expressed in Australia, including
commentary in the case law.
The Federal Court of Australia and the Administrative Appeals Tribunal
(AAT) decided to join the Centre for Court Policy and Administration at the
University of Wollongong and the Justice Research Centre, Sydney in a
collaborative research project to evaluate the impact of litigants in
person on the management of their business. The research was supported by a
Strategic Partnerships with Industry grant for collaborative research from
the Australian Research Council, and commenced in mid 1996.
The research was intended to be exploratory, in order to gain some
data which would assist in quantifying the issue, particularly regarding
change over time. It was also considered crucial that the nature and
perceptions of the interactions between litigants in person and the Court
and Tribunal should be understood from a number of relevant points of view:
the Federal Court and AAT, the legal profession and, significantly, the
litigants in person themselves.
Interview data, analysis of individual cases, a literature review and
case law commentary proved valuable in the interpretation of numerical
data. We recognized significant differences in the nature of the matters
brought before the two forums and in their procedures.
By taking careful account of these differences, we hoped to see the
two systems in their own terms, rather than to attempt inappropriate
comparisons.
The research has been characterized by a wide range of methods and
approaches, intended to illuminate the issues more than to provide
definitive answers to narrow questions. Throughout the paper we have tried
to ensure that the links between the methods used and the findings are
clear.
Research methods
In addition to the documentary research on case law, literature and
procedures, we carried out a time survey in the Sydney registries of the
Federal Court and the AAT for one week during which counter staff,
registrars and all those having direct contact with clients (litigants or
their legal representatives) kept records of time spent with each client,
and their representation status.
To study trends in the numbers of unrepresented litigants in the
Federal Court we sampled cases commenced in the General Registry, Sydney
and Brisbane, of the Federal Court during a three month period (March April
May) in each of 1992, 1994 and 1996. From its AATCAMS system, the AAT
provided a similar sample of three months (cases finalized March to May) in
each of the same three years taken from the General and Veterans' Division
in New South Wales and Queensland.
This data gave information on the actual numbers of litigants in
person and indications of the types of cases among all litigants in each of
the forums (see Table 1 below). At this stage, litigants in person were
identified by representation status at commencement.
Equivalent data was not available from the FEDCAMS computer database,
so registry staff sorted cases in the Federal Court manually.
To obtain more detailed information, in the Federal Court we examined
the files of all cases involving a litigant in person finalized between 1
July 1995 and 30 June 1996. There were 41 in Sydney and 16 in Brisbane. In
the AAT, a similar exercise with all cases finalized March to May 1996
yielded 184 cases involving an unrepresented applicant. Analysis of these
files gave more detailed information on the nature, progress and outcomes
of the cases and, in the Court, the awarding of costs and waiver of fees.
This analysis also allowed a more accurate identification of the
representation status of litigants. This revealed a more complex pattern of
legal advice and lack of representation than is revealed by raw data on
representation at commencement (discussed below).
All the cases from the Federal Court in 1996 and a representative
sample of AAT files were chosen for more detailed analysis. These were
matched with files of similar type, randomly selected, of represented
parties, and were examined to assess the way in which both types of cases
were managed. The analysis included an assessment of the progress and
outcomes of the cases.
Sample sizes for each aspect of the research were tailored to the
needs and the total population. That population was relatively small in the
Federal Court, so that all unrepresented applicants for a 12 month period
could be included in the file analysis and mail-out.
More selection was required in the AAT, due to the higher numbers of
unrepresented applicants, and the greater uniformity of case types.
Questions on their experiences of the case concerned were put to
unrepresented applicants and respondent lawyers, first by mail and followed
up with telephone interviews by consent, with the assistance of an
interpreter where necessary. From the Federal Court Sydney Registry sample,
six of 19 lawyers responded to a set of questions, while four of 35
litigants responded. Of the AAT sample, 29 of 80 applicants in NSW and
Queensland responded. Since virtually all cases in the AAT were opposed by
the Australian Government solicitor, one more general interview was
conducted with a nominated lawyer.
Throughout the research, there was consultation with judges, AAT
members and registry staff about the conduct of the study, underlying
issues, and the interpretation of data. We also received comment from
judicial officers and key registry staff on the preliminary findings, to
inform this presentation.
Numbers of litigants in person Generally between 20 and 30% of
applicants to the AAT are unrepresented. Brisbane has approximately 80
unrepresented applicants (30% of applicants) in any three month period,
while the numbers in Sydney have gradually declined from 133 (1992) to 99
(1996), the proportions remaining between 20 and 25% (Table 1).
Table 1.
Unrepresented applicants in cases finalized (AAT) or commenced (FCA)
March-May (inc) 1992, 1994, 1996 1992 (n) 1992 (%) 1994 (n) 1994 (%) 1996
(n) 1996 (%) AAT Q'land 71 33.2% 86 34.3% 85 29% AAT NSW 133 21.1% 108
24.7% 99 21.2% FCA Brisbane 5 11.9% 5 10% 8 17.7% FCA Sydney 3 1.4% 7 3.4%
47 17.0% The Federal Court had between three and eight unrepresented
applicants in each three month period in each Registry over the three
periods since 1992, with the exception of Sydney in 1996, when there was a
vast increase to 47 in the three month period sampled. A smaller increase
in Brisbane in 1996 brought the proportions of litigants in person in each
registry to approximately 17% in 1996.
Brisbane has always had a higher proportion of litigants in person
than Sydney.
The 1996 figures for the Sydney Registry of the Federal Court require
further analysis. This reveals that 41 of the unrepresented applicants were
in migration matters, in keeping with a general increase in migration cases
in the past four years. From 1994 to 1996 the number of migration cases
more than tripled, and on 1998 trends to date, appear to have nearly
doubled again since 1996. The reasons for these increases in immigration
matters are beyond the scope of this study, as are the reasons for trends
in their unrepresented status. However, it has been possible to observe
that in migration cases, many having been prepared by immigration agents,
there is a greater tendency for the application to be withdrawn earlier in
the proceedings than in other matters. This may suggest that they engage
proportionally less resources of the Court. Other problems and queries
remain. With so many migration cases unrepresented, one may query how many
cases of substance fail through lack of means to present them adequately.
Moreover, they may have a greater impact under the Court's individual
docket case management system, introduced in Sydney in 1997.
Outcomes
In those cases analyzed in the Federal Court litigants in person are
less likely to be successful in their litigation than parties who are
represented. In 54% of cases (25/46) their application or appeal was
dismissed, compared with 31% of cases (15/49) in which represented parties
had their cases dismissed. Litigants in person are more likely to
discontinue their actions (24% or 11/46 cases, compared with 20% or 10/49
cases). Probably because their cases dismissed or discontinued more often,
litigants in person are more likely to be ordered to pay the costs of the
other party than represented litigants (68% or 34/50 compared with 38% or
18/47).
Applicants in person are less successful before the AAT than are
represented applicants. The decision of the primary tribunal was affirmed
or the action was withdrawn/dismissed in 68% of applicant in person cases
(358/524), compared with 43% of cases pursued by represented applicants
(176/410).
Time to finalization and stage of resolution
Unrepresented applicants spend less time in the AAT than represented
applicants. Average times in the Brisbane Registry are 6.6 months from
filing to finalization compared with 9.6 months for represented litigants.
In Sydney these are 5.3 months for unrepresented compared to an average of
7.7 months for represented applicants.
Litigants in person spend less time in the Federal Court than those
who are represented (5.6 months on average from filing to finalization,
compared with 8.4 months used by represented litigants, with medians of 3.5
and 6 months respectively).
Unfortunately, no assessment of the use of judicial resources could be
made from the data collected. Data were available on the numbers of
hearings required for each case, but there was no method available to
calculate time taken, either in hearings or outside the Court or Tribunal,
by judges and members preparing decisions and judgments.
These average figures do not tell the whole story, since in the AAT
and, to a lesser extent in the Federal Court, litigants in person tend to
discontinue their cases early, or persist to a decision.
Table 2 demonstrates the differences in the stages at which those
cases involving litigants in person and those involving represented
litigants are finalized.
In the AAT there is a greater proportion of unrepresented cases
finalized before any conference (listing) than among cases involving
represented applicants. On the other hand, more of the unrepresented cases
go all the way to a Tribunal decision than do those involving legal
representation. Represented cases are more likely to be settled after one
or two conferences.
Table 2.
Stage of case disposal Represented & unrepresented applicants, Federal
Court & AAT Represented Unrepresented Represented Unrepresented Federal
Court Federal Court AAT AAT
Before appearance or conference 9.8 7.3 11.8 17.4 At /after 1st
appearance or conference 4.8 19.5 20.1 16.9 At /after 2nd + appearance or
conference 39.0 29.3 27.8 18.4 After hearing listing or day of hearing 4.9
4.9 16.7 8.2 Decided 41.5 39.0 23.6 39.1 TOTAL 100.0 (n = 41) 100.0 (n =
41) 100.0 (n = 144) 100.0 (n = 207) A similar picture emerges in the
Federal Court, where more unrepresented than represented parties
discontinue or settle before (or at/after the first appearance) than do
represented parties, while more of the represented cases are resolved at
the second or third appearance. Unlike the AAT, the same proportion of
represented and unrepresented cases are decided by the Court.
Use of registry resources
Since unrepresented applicants constituted 50% of all recorded client
contacts in the Sydney Registry of the AAT, but only 21.2% (NSW, 1996) of
cases involved unrepresented applicants, these parties are over represented
among registry staff client contacts. Registry staff spent nearly twice as
much time with each unrepresented applicant (10 minutes) as with each
represented applicant (5.5 minutes) and overall were devoting about five
times as much time to unrepresented clients as to the represented.
The picture is harder to quantify in the Federal Court. In the Sydney
General Registry of the Federal Court, (where in 1996 litigants in person
made up 17% of the Court's business) 42% of the counter supervisor's
contacts were with unrepresented parties. This may be explained in part by
the fact that these parties are referred almost automatically to the
supervisor by front line counter staff (whose client contacts were only 3%
unrepresented). Among deputy registrars, the other more senior staff having
primary contact with clients, 20% of their client contact time was spent
with litigants in person, only marginally higher than their proportion (17%
of our 1996 sample) in General Division cases. Lawyers took up the other
80% of the deputy registrars' client contact time.
While litigants in person do take up more registry time than those
with legal representatives, notably in the AAT, this is to be seen in the
context of assistance that the Court or Tribunal may be expected to provide
to the legal profession and the public. Although no attempts have been made
in this study to cost time, the amount of time allocated to litigants in
person does not seem extravagant when compared with possible costs of time
spent in hearings, and considering the amount of time lawyers themselves
spend consulting registry staff, on behalf of their clients.
Processes of the Court and Tribunal
There are differences in the functions of the Court and the AAT and
therefore in their approaches to litigants in person and unrepresented
applicants.
The AAT was established to deal with significant numbers of people who
were not expected to obtain legal advice and representation before
approaching the Tribunal, thus the presence of unrepresented applicants in
significant numbers does not cause the same consternation in the Tribunal
as it does in the Federal Court. Kirby, P. (as he then was) comments in
Burwood Council v. Harvey (NSW Court of Appeal, 1995) on the trend towards
'creation of expert tribunals with specialized judges and other members,
novel standing rights and modified procedures aimed to facilitate, if not
actually to encourage, persons to pursue, or defend, their legal rights
without the necessity of securing qualified legal practitioners to
represent them'. The AAT is proactive in consulting applicants, listing as
one of its performance indicators accessibility and responsiveness to the
needs of users, which is to be judged by 'users finding the Tribunal easy
and comfortable to utilize' (AAT Annual Report 1994-95, Chs 2 and 3). The
Tribunal has an Outreach program built into its dispute resolution process
and states plainly that 'parties are expected to play an active part in
identifying relevant legal and factual issues from an early stage in the
pre-hearing process'. The aim of the program is to 'encourage early
resolution of disputes or, where that is not possible, [to provide] a clear
framework within which the parties can prepare for hearing' (AAT Annual
Report 1994-95, 12).
In the AAT, the preparation of the 'T' documents by the opposing
government agency ensures definition of the claim for the Tribunal.
The procedure is thought unobjectionable in the AAT because the
Tribunal's jurisdiction is to review administrative decisions on their
merits (Gidaro v. Secretary Department of Social Security (Federal Court,
1998); AAT Annual Report, 4-5).
In the Federal Court, there may be cause for concern if the opposing
side were to be involved in the preparation of documents designed to define
the matters in issue for the litigant in person.
As a superior court handling a variety of often highly technical legal
issues, there is much room for dispute about the form in which a case
should be presented. It is a forum in which lawyers can be expected to be
more comfortable than non lawyers. The Court does, however, recognize its
responsibility to hear non lawyers and has been careful in its reported
decisions to make them welcome. The following recent comment makes some of
the Court's concerns clear: Exchanges between the applicant and me
concerning such evidence reveal that the applicant may not, despite his
earlier legal representation, have earlier understood, if indeed he ever
fully understood, the distinction between an interlocutory hearing and a
final hearing. It is a matter of considerable regret that the applicant may
have assumed the conduct of his claims for interlocutory relief in these
matters without a full understanding as to the true nature of those claims.
However, the very real restrictions on the ability of the Court to ensure
that unrepresented parties properly understand its processes and technical
aspects of the law relevant to their proceedings in complex matters must be
acknowledged. Moreover, although the Court must do what it reasonably can
to assist unrepresented parties in the presentation of their cases to the
Court, it cannot do so in disregard of the entitlement of opposing parties
also to receive fair treatment from the Court.
Humphrey Xu v. Helen Liu (Federal Court, 1997)
Views of the process and of the other participants
The views of the participants in the process cast further light on
these issues. These views were gathered from interviews with litigants in
person, from lawyers opposing them in the Federal Court and from judicial
comment in reported case law.
The opposing lawyers interviewed commented that dealing with litigants
in person could be difficult and noted in particular: the need to
prepare and lodge documents for the litigant in person as well as for
their own client in order to progress the case;
the need to address large numbers of ambiguous and irrelevant
issues and evidence raised by the litigant in person;
litigants in person being permitted to use the forum as a
'soapbox';
judges being more 'timid' in dealing with litigants in person;
litigants in person rambling during the hearing with the judge
(or Tribunal member) being reluctant to interrupt;
judges feeling the need to explain things to litigants in person in
minute detail;
judges needing to 'disseminate' the litigant in person's
arguments;
orders being formulated and reformulated as the litigant in
person's evidence and assertions changed;
litigants in person having greater latitude in which to operate
because they are not bound by lawyers' ethics;
difficult personal conduct by litigants in person in court.
One of the lawyers summed up his experience of opposing a litigant in
person as 'like wrestling with smoke'. The lawyers saw themselves as
carrying a disproportionate burden of the unrepresented party's case, a
problem which does not arise in the AAT because of its reliance on the
government agencies involved to summarize the issues in the case. The
agencies' responsibility is explicit and the summaries are provided early
in the process. In the Federal Court, the opposing lawyers complained of
being drawn into this role in order to progress the case. There is evidence
in the reported case law of the difficulties the Court encounters in
assisting litigants in person to define the legal issues in their case:
Despite two attempts to plead a case, the applicants and, in particular, Mr
Morton have not put forward pleadings that disclose a reasonable cause of
action. Mr Morton has not been willing to abide by orders of the Court
designed to ensure that there is a factual foundation for any case pleaded.
... In my view, it would be grossly unfair to the respondents to allow the
proceedings to continue. After nearly three years there is no sign that Mr
Morton is able or willing to plead a reasonable cause of action.
Morton & Ors v. Vouris & Ors (Federal Court, 1998)
In a previous case involving the same litigant in person, the same
judge had complimented lawyers for the party opposing on the assistance
they had been willing to give the litigant during the hearing of the case
(Morton v Mitchell Products, Federal Court, 1996).
Litigants in person gave a range of opinions on the assistance they
received and the attitudes of Court and AAT staff and judicial officers and
members. They generally reported that staff were patient and understanding
and had 'bent over backwards to help', while acknowledging that staff were
limited to giving advice on process only and could not give legal advice.
As would be expected, there was a great range in the sophistication of
the litigants. Two of them said they did not know what happened at the AAT,
one said she did not know she had a case there at all. There was a
widespread view amongst those interviewed that they understood their case
(and to an extent, the merits of it), perhaps better than anyone else. Yet
they saw a number of barriers to the presentation of the case. These were
usually seen as technical difficulties, of not knowing how to fill in a
form, for instance.
I knew what had to be done but perhaps not how to do it correctly.
(Applicant, AAT) Difficulties were identified as problems with
language by a number of litigants. Two referred to difficulties
communicating in English.
These people did not refer to interpreters. Another applicant in
person, who had used an interpreter in the AAT, made clear some of the
further problems of running a case if one is not familiar with English.
I have two files about 300 pages each. It's impossible for me to know
which documents are important, and impossible for the courts to go through
all these. I want someone to pinpoint which documents [I need to take with
me to court.] (Applicant, AAT; referring to his FCA appeal.) While they
regarded the Registry staff as being helpful, three of the four Federal
Court litigants interviewed said they felt they had been disadvantaged in
court by not being represented by a lawyer (the fourth was represented by
the time his case went to court). One said 'one justice treated me in a way
that bordered on aiding and abetting the other party in my opinion' while
another said 'the Court is always patronizing if you haven't got a lawyer'.
The third said: It isn't so much the tribunal treating you differently but
rather what the courts are used to dealing with, and that is lawyers.
Courts expect things to be done a certain way and litigants in person are
outside of that and don't know how. As a result there are different
reactions to litigants in person, and that shouldn't be the way.
(LIP, FCA) Judicial comment in the reported case law reveals a keen
awareness of the courts' responsibilities in ensuring a fair hearing for
both the litigant in person and the represented party (Burwood Council v.
Harvey; Cachia v. Hanes; Rajski v. Scitec Corporation). Some
illustrative commentary was made by the Supreme Court of NSW, Court of
Appeal, in 1996 in Pupo v. Builders Licensing Board: It is always difficult
for a trial judge who is confronted with a litigant in person but his
Honour behaved, in this case, in the finest traditions by going to great
lengths in his endeavour to determine just what it was that the appellant
contested. His difficulty was compounded by their course of conduct in
having lengthy and detailed defences prepared by lawyers and then coming to
Court totally unequipped to advance those defences. ... In my opinion the
appellants have failed to show that his Honour in any way denied to them a
full and fair hearing.
The Federal Court also widely recognizes the difficulties faced by
litigants in person and by those parties opposing them.
To be fair to Mr Bourke, he was faced with a large number of questions
expressed in technical language and a number of his replies were
intelligible, if not necessarily expressed in language which a lawyer would
use.
Bourke v. Young, (Federal Court of Australia, 1992) Certainly, the
applicant, who was not legally represented at directions hearings in the
Tribunal, as he was not before me, failed to provide more than a few lines
in sketchy statement of the grounds of his application. But this is far
from uncommon in the case of unrepresented litigants, and cannot rationally
be regarded as in itself demonstrating a lack of bona fides.
Bourke v. Companies Auditors & Liquidators Disciplinary Board ,
(Federal Court of Australia, 1998) These criticisms of the statement of
claim are not criticisms of the applicants. They are faced with the
considerable task of identifying out of lengthy and complex dealings
involving the respondent those matters which may arguably give rise to a
cause of action.
Bride v. Stewart, (Federal Court of Australia, 1989) Mr Dudzinski's
approach to the litigation now appears to be that, in addition to pursuing
a multiplicity of actions seemingly regardless of specific relief which
might follow from them (but which might have the possibility of allowing
him to interrogate those who have angered him), he will agitate any order
where he is unsuccessful. It seems to me that Mr Dudzinski needs to give
careful consideration as to the future course of litigation and to bear in
mind the dangers of being too much the litigator to the exclusion of all
else. The other danger Mr Dudzinski faces ... relates to the question of
costs.
Dudzinski v. Secretary Department of Social Security and Department of
Employment Education and Training, (Federal Court of Australia, 1997) From
the data we take up two issues for discussion at this conference.
Identification of issues in dispute We have noted lower success rates
among litigants in person than among represented parties. This occurs
despite their greater use of registry resources, and a perception of
opposing lawyers that they too need to assist the unrepresented party.
Seeking reasons for these findings, we may note, from the judicial
commentary and the views of lawyers and litigants in person, that the need
to define a justiciable issue is often misunderstood by litigants in
person. In some cases it would appear they neither understood the legal
issues involved nor appreciated their need for legal advice. This was
particularly true of cases going to the Federal Court. Litigants reported
that the process of filing an appeal in the Federal Court, for instance,
was far more complicated than just filling in a form.
This may be because some understanding of the grounds for an appeal is
required.
I understood about legal stuff but not about lodging an application.
In the end I wrote 'injustice'. I didn't know what else to write. (LiP,
FCA) Interviews with lawyers and litigants, our review of case files and of
material provided by litigants, revealed that on many occasions the
statements of the cause of action of unrepresented litigants in the Federal
Court were defective. They were vague and unspecific in identifying the
issues on which a decision was required, and sometimes the application was
aberrant, reflecting no defined cause of action with which the Court could
deal.
The difficulty of proceeding without legal advice was often understood
only at an advanced stage in the case, if at all. In the early stages of a
case (particularly in the AAT) litigants said they felt they were able to
make a fairly clear cut distinction between their understanding of the
processes necessary to bring a case before the Tribunal and their
understanding of the substance of the case.
They were sure of their view of the facts of the case, and
acknowledged the assistance received from registry staff or non-lawyers in
completing the paper work.
The following comments demonstrate the way in which on applicant
discriminated between what he regarded as the requirements of the law and
his interests in the case: The Senior Member was very helpful at the first
telephone hearing ['conference'?]. Explaining the processes available
within the Act and the alternatives. He was helpful in getting us talking
[ie two parties]. It would've been a lot easier if I'd been able to get a
copy of the FOI Act. I'd asked DSS to delete something [from my file] -
they'd refused. Once I saw the Act [DSS sent it following suggestion from
the Snr Member] I could see that they didn't have the power under the Act
to delete something - only to 'amend' it. Now I realize that I can seek an
amendment under the Act, which I will do - back to DSS. It would've avoided
the whole matter at the AAT if DSS had clarified that 'deletion' wasn't
available. (Applicant, AAT) When required to refine their cause of action
beyond the original application, some litigants become confused and make
the decision to either seek legal advice or give up. Others do not
acknowledge the sophistication of the process they are engaged in and,
believing that they have simply to present a case in their own terms,
relying on facts, moral persuasion and appeals to personal notions of
justice, continue unaided. These people may never grasp the legal issues in
their case and will probably cause greater difficulties in appellate courts
than relatively informal tribunals.
The finding that litigants in person have difficulty distinguishing
legal issues from moral and social conceptions of 'justice' or wrongs,
suggests that consideration might be given to the possibility extra-legal
solutions.
While significant resources are devoted to litigants in person by
registry staff in both the AAT and the Federal Court, particularly by
senior staff of the registries, their brief is to advise on process, not
law. A commonly suggested solution is to offer early legal advice to
litigants in person (Genn & Richardson, 1994; Carter v.
Layton, Federal Court, 1992). In some cases this advice will assist
litigants in person to define the legal issues in their case.
Alternatively this may assist them to weigh the personal and financial
costs against the likely outcome/s and to make an informed decision about
whether to proceed. However, the recommendation to provide legal advice
neglects many other facets of the decision to litigate, in particular the
views of litigants in person themselves.
They may have different views of the purposes of litigation and the
functions of courts and tribunals which need to be understood.
Understanding the purposes of litigation As reported above, lawyers do
not settle as early or as late as those who are not represented. Their way
of using the Court and Tribunal may indicate that lawyers have a different
understanding of the role of litigation in dispute resolution. Lawyers may
be using these facilities on behalf of their clients to assist in
negotiating a resolution of the action. Those who are unrepresented, on the
other hand, are less likely to use the forum as an adjunct to settlement,
and have reported that they expect the Court or Tribunal to deliver
'justice'. Many litigants simply take it for granted that a case will run
its course to determination. The concept of 'settling' a case was quite
unfamiliar to most litigants in person interviewed. Some had unconventional
views of 'settlement.' I never settled the case - they did! (Applicant,
AAT) Settled, by force. [The agency] threatened to make it very hard for me
if I continued my case. (Applicant, AAT) Implications of the findings This
study does not offer a definitive answer to one of the most important
questions in today's courts, that is, whether the numbers of litigants in
person are increasing or decreasing in any general sense. It does, however,
sound a note of caution over assumptions that the greater occurrence or
visibility of litigants in person in certain jurisdictions constitutes a
national or international phenomenon or a general crisis. Data collection
by courts and tribunals needs to be far more sophisticated if it is to
facilitate better informed or more easily executed studies in future. In
the absence of reliable data and focused research it is difficult to test
common assumptions. Data collection methods are required to identify
unrepresented litigants, the stages at which people are and are not
represented, the nature of their causes of action, and the services used
and outcomes achieved by litigants in person compared with represented
parties.
This study has raised some issues for discussion and further
investigation. Courts, tribunals, legal aid and justice policy agencies may
need to consider the implications of the mix of legal and non legal issues
upon which unrepresented parties seek to litigate. They may also consider
the possibility that lawyers and litigants in person have different views
of the uses of litigation. A better appreciation of the views of litigants
in person, and how these may differ from the views of the judge, registrar
and practitioner may prove helpful in dealing with these parties.
This study did not set out to identify those parties and causes which
have never reached a court or tribunal, for want of legal advice or
personal confidence. If we are to take seriously requirements for access to
justice and equality before the law, then studies which address these
issues may be of equal importance.
References AAT Annual Report 1994-95, Canberra: AGPS.
Genn, Hazel and Genevra Richardson. 1994. Administrative Law and
Government Action. Oxford: Clarendon Press.
Goldschmidt, Jona, Barry Mahoney, Harvey Solomon, and Joan Green.
1998. Meeting the Challenge of Pro Se Litigation. A Report and
Guidebook for Judges and Court Managers. Chicago: American Judicature
Society.
Otton, the Right Honourable Lord Justice. 1995. Litigants in Person in
the Royal Courts of Justice, London: an interim report of the working party
establised by the Judges Council under the Right Honourable Lord Justice
Otton. London: Judges Council.
Case law Bourke v. Companies Auditors & Liquidators Disciplinary Board
[1998] 742 FCA (26 June 1998) Bourke, and Others v. Young, and Others
(Federal Court, 10 February 1992) Bride and Others v. Stewart (Federal
Court, 25 October 1989) Burwood Council v. Harvey (Supreme Court of NSW,
Court of Appeal, 23 & 24 February 1995) Cachia v. Hanes and Another (1994)
179 CLR 403 Carter v. Layton, (Federal Court, 26 August 1992) Dudzinski v.
Secretary Department of Social Security [1997] FCA 2 (6 August 1997) Gidaro
v. Secretary, Department of Social Security (Federal Court, 24 April 1998)
Humphrey Xu v. Helen Liu (Federal Court, 31 July 1997) Jeffrey R Morton v.
Mitchell Products [1996] 828 FCA 1 (18 September 1996) Jeffrey R Morton v.
Vouris [1998] 394 FCA (23 April 1998) Pupo v. Builders Licensing Board (NSW
Supreme Court, 13 September 1996) Rajski v. Scitec Corporation Pty Ltd
(Supreme Court of NSW, Court of Appeal, 16 June 1986) Statutes
Administrative Appeals Tribunal Act 1975 Revised: 13 January 1999
Please direct comments and questions to: Shelley
Johnson Faculty of Law University of Wollongong
WOLLONGONG NSW 2522
Phone (02)4221 4122 Fax (02)4221 3188 Copyright & Disclaimer