Unrepresented litigants and lay advisers

[1-0800] Introduction

The rules in relation to representation in the courts are contained in the UCPR at r 7.1.

[1-0810] The role of the court

The role of the court in cases where a party is unrepresented, and where there is a risk of that party’s case not being adequately presented to the court, was discussed in Reisner v Bratt [2004] NSWCA 22 at [4]–[6]. It was there noted that:

(a): Parties (natural persons) are entitled to appear unrepresented in proceedings before the court: see UCPR r 7.1(1); Judiciary Act 1903 (Cth) s 78.
(b): The court has a duty to give such persons a fair hearing, and it may be appropriate for the court to give some assistance to such persons in order to fulfill that duty.
(c): The court hearing a case between an unrepresented litigant and another party, however, cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator.
(d): In deciding what to do when a case is not adequately presented by an unrepresented litigant, it is appropriate to take into account that such circumstance can place far greater burdens of time and costs on the other party than would be involved if both litigants had competent representation. That arises from the circumstance that the time and costs involved in trying to understand and answer claims that are not formulated so as to clearly raise relevant issues can be much greater than where relevant issues are clearly raised; that adjournments are often required because the unrepresented litigant is not ready to proceed with the case; and that when the case is actually heard, the hearing may be much longer than if both sides were represented by a lawyer. See also Corporate Affairs Commission v Solomon (unrep, 1/11/89, NSWCA).
(e): Where a case is brought by an unrepresented litigant, and material required for the adequate determination of that case is not available, or is not presented to the court, it is not necessarily the case that the court should itself undertake an investigation of whether such material exists, and if so, seek to have it brought before the court so that it can be considered. It may sometimes be appropriate for the court to attempt to have such material made available, particularly if the deficiency of the material is obvious and can be remedied without prejudice to the other side. Otherwise, it would generally conflict with the court’s position, as an impartial adjudicator, for it to take steps to seek to improve an unrepresented litigant’s case by investigating whether there is more material available to support that case than has been presented to the court, and then taking steps to obtain it.

In Nobarani v Mariconte (2018) 265 CLR 236, the High Court allowed an appeal and remitted the matter for a new trial as the self-represented appellant was denied procedural fairness in the sense of a “substantial wrong or miscarriage”, as required by r 51.53(1) of the UCPR, because he was denied the possibility of a successful outcome. The trial judge made no directions for the taking of any steps, or filing or service of any documents by the appellant. The appellant was therefore denied the opportunity to cross-examine a significant witness, locate another witness and call an expert witness.

See further Equality before the law Bench Book, especially at 10.5 Sovereign citizens: further information.

[1-0820] Permissible intervention or assistance

The extent to which a judge’s assistance and intervention is permissible will depend upon the circumstances of the case, including the identity of the litigant, the nature of the case, and the litigant’s intelligence and understanding of it: Abram v Bank of New Zealand (1996) ATPR ¶41-507, and is incapable of precise definition: Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438. A balance needs to be struck between the need to avoid a compromise of impartiality and the need to avoid procedural or substantive injustice.

By way of guidance:

(a): It is appropriate for judges to inform unrepresented litigants of their rights so as to diminish their disadvantage, through lack of legal skills, in conducting the hearing, although without conferring upon them a positive advantage over their represented opponent, and without advising them of the way in which they should exercise their rights: MacPherson v The Queen (1981) 147 CLR 512 and Rajski v Scitec Corp Pty Ltd (unrep, 16/06/86, NSWCA). In R v Zorad (1990) 19 NSWLR 91, the distinction between explaining the procedural choices available to an unrepresented accused, and advising as to what decision should be made, was emphasised. The restraints upon judicial intervention stemming from the adversarial tradition are not relevantly qualified merely because one of the litigants is self-represented: Malouf v Malouf (2006) 65 NSWLR 449 at [94].
(b): It can be appropriate for the court to intervene and to attribute an objection to the unrepresented party where potentially inadmissible evidence is sought to be tendered: National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309.
(c): In interlocutory matters, the court will normally be slow to terminate proceedings summarily because of defective pleading by an unrepresented litigant, at least where it appears that there is a viable cause of action which, with appropriate amendment and a little assistance from the court, could result in a pleading being placed in proper form: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536.
(d): A judge cannot permit an unrepresented litigant, even without objection, to give evidence from the bar table, without oath or affirmation: Randwick City Council v Fuller [1996] NSWCA 444. In most instances, it will be necessary for such a person to give evidence in chief in a narrative form, rather than by way of formal question and answer. (See also Evidence Act 1995 s 29.)
(e): The Evidence Act 1995 may require the judge to advise an unrepresented party as to the admissibility of certain categories of evidence, or of the need for leave, if evidence attracting a leave requirement is tendered: see s 192 of the Evidence Act 1995. Moreover, s 132 of the Act will require the judge to be satisfied that such a party is aware of the effect of those provisions of Pt 3.10 (Privilege), which would entitle that party to claim privilege or object to a question in accordance with its provisions. It will also be appropriate to alert the unrepresented party to the rules in Browne v Dunn (1893) 6 R 67 and Jones v Dunkel (1959) 101 CLR 298.
(f): While the granting of an adjournment remains a matter of discretion, it might more readily be granted to an unrepresented litigant, who has misunderstood procedural requirements and is, as a consequence, not in a position to complete the presentation of evidence, provided that no substantive or procedural injustice is done to the other party involved: Titan v Babic [1995] FCA 813; R v Leicester City Justices; Ex p Barrow [1991] 2 QB 260. See also Kelly v Westpac Banking Corporation [2014] NSWCA 348 at [42]–[43].
(g): It is appropriate for a judge to attempt to clarify the submissions of an unrepresented litigant, particularly where the substantive issues are being ignored or obfuscated by garrulous or misconceived advocacy: Neil v Nott [1994] HCA 23.
(h): It is generally appropriate for a judge to draw to the attention of an unrepresented litigant possible unfavourable consequences, including adverse cost orders, of a particular procedural step especially where the course sought to be pursued is unusual: Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367.
(i): It will also be appropriate for a judge to draw to the attention of the unrepresented litigant the potential availability of legal assistance through Legal Aid or pro bono schemes (see [1-0600]), and to gently identify the advantages of the litigant having professional assistance. In many instances there may be no entitlement either to legal aid or pro bono representation, and the unrepresented litigant may, in any event, prefer to present the case in person, either through mistrust of the profession, or for other reasons. In such a case, the issue should not be pushed, lest it engender suspicion concerning the willingness of the court to hear the case impartially, an inevitable problem in the case of the vexatious or querulous litigant.
(j): If the litigant in person is so disadvantaged by mental incapacity as to lack competency to manage his or her own affairs, then the court should appoint a tutor, or stay the proceedings until the litigant is competent, or until a tutor can be appointed: Murphy v Doman (2003) 58 NSWLR 51.
(k): An unrepresented litigant needs leave under the UCPR r 7.3 to obtain the issue of a subpoena.
(l): As to the costs recoverable by a successful litigant in person, see Cachia v Hanes (1994) 179 CLR 403.
(m): A solicitor acting for himself or herself will not generally be afforded the latitude allowed to an unrepresented litigant: Leybourne v Permanent Custodians Ltd [2010] NSWCA 78.

[1-0840] Assistance of lay advocates

The public interest in ensuring that litigation is conducted by those who are qualified, properly accredited and insured, who owe a professional duty to assist the court, and who are subject to an ethical and disciplinary code, will normally preclude representation by unqualified persons.

It has been recognised that, in exceptional circumstances, it has been appropriate for the court to grant leave so as to permit a person who is not an admitted legal practitioner, holding a practising certificate, to represent a litigant: Damjanovic v Maley (2002) 55 NSWLR 149; O’Toole v Scott [1965] AC 939. This has been regarded as an incident of the inherent right of the court in regulating its own proceedings, although it was also the subject of express provision in the District Court Act 1973 (s 43(i) now repealed): see Damjanovic v Maley, above at [33]–[34].

Where the discretion has been preserved, it is to be exercised sparingly, particularly by higher courts, and it will normally be confined to a situation of emergency, such as the illness of the unrepresented party, or unexpected language difficulties: for example, Portelli v Goh [2002] NSWSC 997.

Considerable caution needs to be exercised where it appears that the lay advocate is making a practice of seeking to represent unrepresented litigants: D v S (rights of audience) [1997] Fam Law 403 and Noueiri v Paragon Finance Plc (No 2) [2001] EWCA Civ 1402.

The circumstance that the litigant has a distrust of, or an aversion to lawyers has been held to be an insufficient reason (Teese v State Bank of New South Wales [2002] NSWCA 219); as has the fact that the litigant had known difficulties with the language: Damjanovic v Maley, above.

A party cannot, by way of power of attorney, grant a lay advocate a right to appear in court, on his or her behalf: Giniotis v Farrugia (unrep, 19/8/85, NSWCA).

It has been suggested that where an application is to be made for lay representation, then it should be made before the hearing, supported by appropriate evidence: per Hodgson JA in Teese v State Bank of New South Wales, above.

For a discussion on the policy and discretionary considerations arising, see Damjanovic v Maley, above, at [37]–[86] and Scotts Head Development Pty Ltd v Pallisar Pty Ltd (unrep, 6/9/94, NSWCA).

[1-0850] McKenzie friend

A McKenzie friend has no right to appear as an advocate, or to address the court on behalf of the unrepresented litigant. The role of such a person is confined to providing assistance and advice to the unrepresented litigant in conducting the case: R v Bow County Court; Ex parte Pelling [1999] 4 All ER 751; and see Damjanovic v Maley at [63].

While it appears that the use of a McKenzie friend does not depend upon the court granting leave, there is a discretion to prevent a person continuing to act in that capacity, for example, if that person is acting contrary to the efficient administration of justice: Noueiri v Paragon Finance Plc (No 2), above. In Satchithanantham v National Australia Bank Ltd [2009] NSWCA 268 a husband was not permitted to act as a McKenzie friend for his wife where his claimed undue influence upon her was an issue at the trial.

[1-0860] Amicus curiae

For a discussion of the circumstances in which the court may allow amicus curiae representation, see the judgment of Kirby P in Breen v Williams (1994) 35 NSWLR 522 at 532–533.

[1-0863] Role of represented litigant and its legal representative

Section 56(3) of the CPA imposes a duty upon a party and its legal representatives, when opposed to an unrepresented litigant, to assist the court to understand and give full and fair consideration to the submissions of that litigant and to refer the court to evidence in the proceedings that is relevant to the submissions: Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 at [41], [42].

[1-0865] Splintered advocacy

A litigant has no entitlement to address, whether by oral or written submissions, or otherwise conduct the case at a time when represented before the court: Malouf v Malouf (2006) 65 NSWLR 449 at [170], [179].

A court may, in its discretion, allow such an address, for example, if impecuniosity or accident left the litigant without representation on a particular occasion: Malouf v Malouf, above, at [174]. As to the undesirability of splintered advocacy, see Malouf at [169]–[179].

A court may permit a lawyer to address on a point of law, as amicus curiae, however, such a lawyer has no entitlement to charge a fee and the client cannot recover costs in respect of the lawyer’s assistance: Malouf at [175].

[1-0870] Employed solicitors

Contrary to the view once taken, (for example, Beaton v McDivitt (1985) 13 NSWLR 134), employed solicitors now have a full right of appearance as advocates and do not require the leave of the court. This initially arose by reason of s 87 of the Legal Profession Act 2004 (now repealed), and the definition provision in s 4, which did not differentiate in its definition of a barrister and solicitor between those who hold restricted and unrestricted practising certificates.

[1-0880] Companies and corporations

For the right to representation, which applies in relation to companies within the meaning of the Corporations Act 2001 (Cth), and for corporations other than a company within the meaning of that Act, see the UCPR r 7.1(2)–(4). See also the UCPR r 7.2 as to the requirement for filing an affidavit as to the authority of a Director or authorised person to commence or carry on proceedings in the Supreme or District Courts.

[1-0890] Local Court

See the UCPR r 7.1(5) for the entitlement of commercial agents or sub agents, and of licensed real estate agents, strata management agents and on-site residential property managers to commence and carry on the proceedings, referred to in this Rule, in the Local Court.

For the position of companies and corporations, see the UCPR at r 7.1(2)(b) and (4)(c).

Legislation

CPA, s 56(3)
Evidence Act 1995, Pt 3.10, ss 29, 132, 192
Judiciary Act 1903 (Cth), s 78
Legal Profession Act 2004 (now repealed), ss 4, 87

Rules

UCPR rr 7.1, 7.2, 7.3

Further references

“Representing yourself in civil proceedings”, Supreme Court NSW website
Australian Institute of Judicial Administration, Litigants in Person Management Plans: Issues for Courts and Tribunals, Australian Institute of Judicial Administration, Carlton, Vic, 2001
L Byrne and CJ Leggat, “Litigants in Person — Procedural and Ethical Issues for Barristers” (1999) 19(1) Australian Bar Review 41
Dr G Lester, “The Vexatious Litigant” (2005) 17(3) JOB 17
E Kyrou, “Managing litigants in person” (2013) 25(2) JOB 11
Judicial Commission of NSW, Equality before the law Bench Book, Section 10, “Self-represented parties”.