Handbook for Judicial Officers — Unrepresented, querulant and vexatious litigants

The Australian court system is an adversarial system. In this system, the court has a substantially passive role and relies on the parties to present all material that will be relevant/necessary to enable the court to make its decision. A SRL is not a qualified legal practitioner and usually does not have the expertise to provide the assistance to the court that a solicitor or barrister would. In the adversarial system, this lack of assistance from parties hinders the court in discharging its function^[4] — that is, to make decisions about disputes parties cannot themselves resolve.

Because SRLs are not properly qualified and are not officers of the court, they are:^[5]

Moreover, when a dispute involves one party who is self-represented and another who is represented by a legal practitioner, this appears to create an unlevel playing field. This in turn raises issues “about the fairness of the legal process facilitated by the court”.^[6] It might be said that the “playing field” of litigation is never truly level, even when both parties are represented, because of the varying skills and abilities between solicitors and counsel. However, the field is more markedly uneven in cases where a lay-person is on one side and a qualified practitioner is on the other. The disparity in skill and knowledge raises issues as to a court’s duty to assist the SRL. This is explored in more detail later in this paper. The obligation of the court to provide some advice (if not assistance) to SRLs,^[7] and a SRL’s lack of understanding of the process, necessarily means more time is required to finalise the proceedings.

A SRL does not only present challenges for the court; the court proceedings present challenges for the SRL. He or she is dealing with foreign and complex rules and processes (many of which might feel counter-intuitive to a lay person) and a language that sounds like English but nevertheless does not make any sense to him or her.

In addition to the procedural barriers, the SRL also faces administrative barriers which lawyers are generally not troubled by. Unlike lawyers, SRLs are not familiar with the appropriate forms to fill out and knowledge of such basic things as where the court building is located. They do not have working relationships with court staff. All of these can make the litigation process much harder to navigate.^[8]

The process of presenting a case before the court is also unfamiliar to SRLs and, again, may feel counter-intuitive:^[9]

There are a variety of reasons why people are self-represented. Some may not be able to afford to pay a lawyer. Some may feel they do not need a lawyer. For example, in uncontroversial matters such as an uncontested divorce the value of the dispute is seen to be disproportionate to the lawyer’s fees. Some may be disenchanted with the legal profession and hold the view that involving a lawyer will only make the dispute more acrimonious whereas they could resolve it themselves in an amicable fashion.^[10]

But, regardless of the reasons as to why someone is self-represented, it is clear from available data that SRLs continue to make up a significant proportion of litigants. In the 2011–2012 financial year, 27% of finalised cases in the Family Court involved at least one SRL. In 2007–2008, the figure was the same.^[11] In the High Court, 41% of special leave applications in the 2011–2012 financial year was filed by SRLs.^[12] In 2007–2008, that figure was 67%.^[13]

The significant number of SRLs coupled with the types of challenges they present to the court system should cause everyone in the court system to think about what can be done to tackle those challenges.

In 2001, the AIJA published the Litigants in person management plan: issues for courts and tribunals (“Litigants in person management plan”).^[14] This document was “intended to provide a range of information and ideas for courts and tribunals to draw on in formulating their own management plans”.^[15]

Since the publication of Litigants in person management plan, regardless of whether courts have adopted the ideas discussed in that document, courts in Australia have “increasingly undertaken initiatives designed to assist [SRLs] and to ease their impact on the court system”.^[16]

The Family Court, for example, has implemented various strategies to streamline the process for SRLs. These include providing do-it-yourself kits for guidance and assistance on completing some of the most common forms, including consent orders, financial statements and affidavits; providing compulsory training for all client service staff to help them recognise the need to spend more time with SRLs and assisting staff in tailoring services to meet the needs of the court’s different client groups; and providing information on the Family Court website including electronic versions of information brochures, kits and court forms which can be downloaded by SRLs; interactive information including a virtual tour of the court, a step-by-step guide to proceedings in the court and links to legislation and Rules of the court.^[17]

The Queensland courts’ website has a specific section for SRLs. That section provides information about advice and support available to SRLs, possible avenues where SRLs can obtain legal advice, obtain a trial date, forms and practice directions.^[18]

Institutions other than courts have also implemented strategies to improve the plight of SRLs. In 2008, Victoria Legal Aid published a DIY kit for family law matters, How to run your family law case. Unlike the Family Court’s DIY kits which relate only to specific forms such as an application for consent orders form or an application for divorce form, the Victoria Legal Aid DIY kit covers family law proceedings more broadly, including information on areas such as alternatives to litigation, making an application and choosing the right forum for the application, preparing an affidavit and preparing for a trial or hearing.^[19]

The Queensland Public Interest Law Clearing House Incorporated operates a (unique) service that provides free, confidential and impartial legal advice to SRLs.^[20] This service is discussed later in this paper and it is argued that such a service could be established nationally to assist SRLs in all jurisdictions.

Despite the efforts to date to assist SRLs in the court system, the challenge remains and from the statistics available, it would seem that SRLs continue to form a significant proportion of litigants in the system. Therefore, it is necessary to explore what more can be done to address the challenge.

It has been mentioned above that the Family Court website provides a vast amount of information for SRLs.^[43] The benefit of this website is that the SRLs can access the information at their leisure and the information can help familiarise SRLs with court processes so they have a better idea of what to expect.

However, providing information on a website is clearly not going to assist SRLs with every issue that confronts them during the litigation process. While website information can provide SRLs with a basic understanding of the court and trial process, websites cannot provide detailed information in relation to the substantive aspects of the SRL’s case. For example, website information cannot advise the SRL about his or her prospects of success nor can it draft affidavits in accordance with the rules of evidence. A SRL requires more assistance than a website can provide to run his or her own case.

The effectiveness of website information is also dependent on how easy it is to access and how the information is organised so that the SRL can identify what information is relevant for their matter. Providing a link to different pieces of legislation will not be very effective if the SRL does not know the name of the relevant legislation, or does not know the relevant section and has to trawl through a long Act in order to find the law relevant to their matter.

The Alaska Court System Self-Help Centre for Family Law website is an example of a website that effectively provides information for SRLs.^[44] Information is divided into different categories such as “child custody for unmarried parents”, “child support”, “property and debt when ending marriage” and “grandparents — visitation and custody”. Each category is, helpfully, a link to the more relevant information. For example, the “grandparents — visitation and custody” link leads to relevant information such as “what rights do grandparents have regarding their children?”, “what forms are used to ask for grandparent visitation?”, and “how do grandparents try to get visitation with a grandchild?”.

While Australian courts provide information for SRLs, it is important that the information is set out in a way that is easily accessed by SRLs and organised in a way that is easy for SRLs to identify what is relevant for them.

Face-to-face information sessions held at the relevant court registry can be an effective way of providing SRLs with the relevant information. Face-to-face information sessions can be particularly beneficial because they give the SRL the opportunity to ask questions of a real person if there is an issue in need of clarification or explanation.

Alternatively, information sessions can by conducted by video, that is, SRLs attend the court registry in groups and view an information video. This is done in the family law jurisdiction in Indiana in the US. The “Family Matters” video is:^[45]

This paper will focus only on face-to-face information sessions.

The information sessions should not simply give SRLs an overview of the different stages of court proceedings and the various forms that may need to be completed. People may find it difficult to retain information in bulk and any information that is not needed for immediate processing may be easily forgotten.^[46] Instead, the information sessions should ideally be targeted at specific areas of the litigation process. For example, how to prepare an affidavit, subpoenas, cross-examination, court-etiquette. That way, SRLs can attend the information session(s) relevant to them and apply that knowledge immediately.

A question that arises in relation to face-to-face information sessions is whether they will be run by court staff or by volunteers from the legal profession. There are issues with both.

If the sessions are run by court staff, staff will need to be trained to ensure the information provided is correct. The question arises as to whether/how much funding will be provided for this. Training staff will require funding and, if some staff are occupied with providing information sessions, additional staff will be required to perform the court’s routine administrative work.

Some topics, such as cross-examination and preparing affidavits, raise further issues. First, these topics require staff to undertake some sort of legal training. In that case, it would be more appropriate for information sessions on these topics to be run by volunteer lawyers rather than by court staff.

However, a question arises as to whether information sessions on such topics should be run by the court registry at all. Topics such as cross-examination and preparation of affidavits fall into a grey area where information provided might constitute legal advice. A court must be impartial and independent and must not provide legal advice to a litigant. If a court were to run information sessions, whether through staff or volunteer lawyers, it would have to be careful to ensure the content does not constitute advice.

If the information sessions are run by volunteer lawyers, conflicts of interest can arise.^[47] For example, if the volunteer lawyer represents one party to litigation in his paid employment as a lawyer, and the opposing party is a SRL attending an information session run by the same lawyer, then that lawyer may be precluded from providing information to the SRL or from continuing to represent his or her client. This is even more so in circumstances where the information is on a topic which can cross the boundary of information into the area of legal advice.

The likelihood of conflicts of interest arising can be diluted by having at least two independent lawyers participate in the information sessions.^[48]

Where there is a SRL in proceedings before the court, the court has a role in providing the SRL with information. This role of the court has been the subject of some discussion in case law.

In Re F: Litigants in Person Guidelines^[49] (“Re F”) the Full Court of the Family Court considered the principles in Johnson v Johnson^[50] and set out revised guidelines for judges when dealing with SRLs. Those guidelines are:^[51]

The concept of the judicial officer’s role when assisting a SRL in court was considered inKenny v Ritter:^[52]

Both Re F and Kenny v Ritter recognise that when a SRL appears in court, there is a need for the court to provide the SRL with some assistance. However, what is also recognised is the conflict between assisting the disadvantaged SRL (the principle of fairness) and maintaining an appearance of impartiality and independence (the principle of impartiality)^[54] and, of course, being impartial.

Impartiality is a fundamental characteristic of the court system:^[55]

In an adversary system like ours, SRLs need assistance from the Bench because they are at a disadvantage. In an adversary system, it is up to the parties to run their case, to present the necessary evidence in order for the judge to make a finding in their favour. SRLs are required to do this as well, but their task is much more difficult because they are not familiar with the processes, the language is foreign, the rules are complex and the SRL has an emotional investment in the proceedings before the court which makes his or her task less objective and more difficult.

A judge can attempt to “level the playing field” by assisting the SRL in accordance with the principles set out in Re F and Kenny v Ritter. But the judge must take care not to assist the SRL so much so as to appear to be partial towards the SRL or to create disadvantages for the represented party. This is almost always easier said than done. The difficulty in achieving this balance is aptly summarised by the Full Court in Re F:^[56]

The presence of SRLs in our adversary court system represents a conflict in the fundamental principles upon which our court system is predicated — namely fairness and impartiality. It is possible for the judicial officer to provide the SRL with some assistance while at the same time preserving an appearance of impartiality, but the assistance which the judicial officer can provide is extremely limited. In circumstances where SRLs are a significant proportion of all litigants, perhaps the most effective way to assist manage SRLs is not to help the SRLs better understand and adapt to the existing system, but to change the system to reflect the needs of the SRL.

A big part of the reason why SRLs are such a problem in our court system is because our court system is an adversarial one where the judge is passive and relies on the parties to present all the relevant matters to the case in order for the judge to make a decision. For reasons discussed above, the SRL does not fit well in this system.

Perhaps one way to tackle the challenge of SRLs is to change the system and make it less adversarial.

The Family Court introduced the Less Adversarial Trial (“LAT”) in relation to children matters to provide an opportunity for a more understandable process, a fairer process, and a process where the litigants themselves have a more direct involvement in the proceedings and have a sense of ownership. The LAT was designed to enable litigants to understand the proceedings better and for the proceedings themselves to be more directive and hence more focused on the matters that had to be decided, rather than on the multiple issues that the parties may have felt were worthy of being dealt with.

There are several features of the LAT which would make the court system somewhat easier for SRLs to participate in.

Legislation is often complicated and sometimes incomprehensible — even to judges. The law is there to govern all of society, not just lawyers. It is therefore important that all of society, not just lawyers, understand the law.

It is arguable that a law that is not easily understood, or understood with difficulty, should not be a law. How is it that a person, a citizen, is expected to comply with something which is extremely complicated or incomprehensible? Each of you will have a different favourite piece of incomprehensible legislation but let me share one of mine with you.

The Income Tax Assessment Act has grown from a relatively thin pamphlet to a two-volume Act — the 1936 Act and the 1997 Act. The 1997 Act was enacted in an attempt to simplify the 1936 Act which had been amended so many times that it became thousands of pages long and very complex with subsection after subsection being created. An example of how complex the Income Tax Assessment Act 1936 had become is s 102AAZBA which concerns the modified application of CGT, in particular the effect of certain changes of residence:

A lawyer might find this provision difficult to understand. A lay person would almost certainly find this provision difficult to understand. There are some things which contribute to this. First, the section is number 102AAZBA. The numbering shows how complicated the tax rules are and how often they have been amended — there are so many rules in place and the rules have been changed so often that legislators had to resort to numbering the section with five different letters. Second, there are many words in the section which have legislative definitions. For example, “attributable income”, “trust”, and “resident for CGT purposes”. In order to understand what these terms mean and to understand s 102AAZBA itself, the lay person must flick back and forth between this section and the interpretation section of the Act. Third, the interpreter must read and understand ss 411 to 414 and then apply those sections to the asset in the manner stipulated by s 102AAZBA. Finally, there are terms which are technical terms whose definitions are not easily found in the Act. For example, “an eligible CFC” is not defined in s 102AAZBA nor is it defined in the interpretation section of the 1936 Act. Difficulty in finding the meaning of this term will make it difficult for any reader to understand this section.

Legislators and drafters might reasonably say they have been forced to be more complicated in their drafting and obliged to amend the Act again and again to prevent lawyers from finding ways of circumventing what is there. What seems to happen is that an initially relatively straightforward concept has accretions of complications plastered onto it as, increasingly, clever lawyers find increasingly complicated ways of getting around the original provisions. When an accretion is added to an accretion the interaction between the various laws becomes difficult, if not impossible to follow.

I suggest that there should be a new statutory office created of a “Legislation Ombudsman”. This would be a person to whom bad drafting or incomprehensible parts of legislation can be referred. The Legislation Ombudsman’s job would be to report such legislation to Government, which might reasonably accept an obligation to do something about bad pieces of legislation. I am not sufficiently naïve as to believe that there would be a rush to fix the problems revealed. In fact, I suspect they would receive a very low legislative priority. Nevertheless, Governments ought to take some pride in their work and the institutionalising of a process of identifying bad or difficult legislation may serve to bring the need to draft comprehensible legislation to the forefront of the minds of legislators and drafters.

Drafting less complicated and more comprehensible legislation ensures that laypeople and not just lawyers can understand it. SRLs who are able to understand the law will be able to better present their case in court.

The legal profession is one which guards its turf jealously. To a SRL, being in a court room feels somewhat like being in an old-boys’ club where members of the club are speaking to each other in a strange language known only to them, where the members know each other quite well and are disparaging and discouraging of interlopers.

There are some judges and lawyers who strive to explain proceedings to SRLs and to provide appropriate assistance where needed. However, there are others who might resent the presence of SRLs and who “wish to turn back the clock to a time when they did not exist in large numbers”.^[57] In order to better manage SRLs, it is necessary to change this attitude.

Training would play an important role in doing so. Training on the handling of SRLs should become a standard part of the orientation of new judges. This training should address the ethical issues in assisting SRLs and equip judges with the skills to manage SRLs in the court room.^[58] Training about SRLs should also form part of the curriculum of the courses required for admission to practise. Practitioners should be aware of their obligations when involved in proceedings where a SRL is the opposing party.