Transcript

Damien Carrick: Hello, welcome to the Law Report, Damien Carrick with
you. If you had to stand up and represent yourself in court, how would you
cope? It's probably something we should all be thinking about because hiring a
lawyer is expensive, and legal aid budgets are under extreme stress. So flying
solo in court is now becoming increasingly common. Today we're going to
explore what it's like to be a self-represented litigant in our civil and family
court systems, and also explore the impact these litigants are having on our
court systems.
Last week 'John' (not his real name) ran a three-day hearing in the Federal
Circuit Court in Brisbane that resulted in a confidential settlement.
John: The experience itself, just to be able to stand in front of a courtroom
and have your say is very stressing. It was confusing in the fact that not being a
lawyer, to actually knowing of the court process and what actually happens on
day one and then the first part of day one, or when there's a break and what
happens in each part of the day. And then when you're being cross-examined,
what you can say and what you can't say. Being a self-represented litigant,
when do you object to their questioning? All those sorts of things I was unsure
off, so that became quite difficult to get through I thought.
Damien Carrick: I presume the other side had legal representation?
John: That is correct. The questioning from the respondents was fine. The
judgewhen you are a self-representing litigant the judge makes sure that they
don't take advantage of your lack of understanding of the law process and
things don't get out of control.
Damien Carrick: I imagine that questioning witnesses would also be quite a
difficult thing for somebody who isn't trained.
John: It was, but you do have your affidavits that have been filed in the court
to go by, so that guides your questioning, makes it more discreet on what the
questions are going to be asked about, so you don't have to focus about
everything, it can be focused down into little chunks of information.
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Damien Carrick: What happened at the end of the three-day hearing?
John: We came to a settlement, an out-of-court settlement which I was quite
happy with and the other party was quite happy with as well.
Damien Carrick: So a success?
John: A success for both sides I feel, yes.
Damien Carrick: John, from Brisbane, not his real name. He acted for
himself after a lawyer quoted him $20,000 to represent him. John however did
get some guidance from the Queensland Public Interest Law Clearing House,
known as QPILCH. It gave him limited assistance with discrete tasks like
drafting documents or understanding the next legal step.
Elizabeth Pendlebury is coordinator and federal court solicitor with QPILCH.
She says self-representation isn't easy.
Elizabeth Pendlebury: I think it's difficult. People often express frustration
at the amount of time it takes to get litigation resolved. They also express
frustration at the complexity of the rules. I think that in a lot of ways self-
represented litigants have expectations of the court system that don't reflect
the reality of the situation. So there's a perception that if they can go to court
and get before the judge or 'have their day in court' as it is often phrased, that
everything will be all right. They don't expect to have to follow a lot of pre-trial
proceedings and steps to set out their case before having a substantive hearing
before somebody in the court system.
Damien Carrick: And do many self-represented litigants rise to the occasion
and are they able to represent themselves in an effective way?
Elizabeth Pendlebury: It really depends on the litigant, it depends on how
sophisticated they are themselves, how readily they wrap their heads around
the information that we are able to provide. We do have a lot of litigants that
run a trial themselves. We had one client who had a five-day trial after an 18-
month process of getting there in a litigation with his brother who also self-
represented. A property dispute basically, after a falling-out based on a shared
investment they'd made. But he was able to successfully get orders and also
then respond to an appeal that was brought later on.
Damien Carrick: What court was that dispute in?
Elizabeth Pendlebury: That was in the Supreme Court, and then later in the
Queensland Court of Appeal.
Damien Carrick: And did he win the appeal?
Elizabeth Pendlebury: He did, yes.
Damien Carrick: So there are people who can navigate the system well. But
presumably there are many who must be incredibly frustrated. Can you tell me
about some of those?
Elizabeth Pendlebury: Yes, a lot of people are frustrated with the delay and
the amount of time. We do have clients who discontinue because they didn't
realise what would be involved and once we explain to them they realise they
don't have the ability to be able to contribute the time that they'd need to be
able to progress the case, particularly bearing in mind that recent research
from the Justice Foundation of New South Wales has shown that
disadvantaged people typically have multiple legal problems, and legal
problems beget legal problems, as it were. So there's a lot of things going on in
these are people's lives. So they might have lost their job which led to their
bank taking steps to repossess their house which leads to litigation. And we do
see a lot of people who give up rather than fight the battle, as it were, in the
courtroom.
Damien Carrick: So you think people literally do have bad outcomes, even
lose their homes, because they can't cope with being a self-represented litigant,
and they might otherwise have a good case, that's what you're saying.
Elizabeth Pendlebury: Yes, definitely, it's not just because they don't have a
good case that they walk away.
Damien Carrick: QPILCH's Elizabeth Pendlebury.
It's tough being a self-represented litigant, but it's also difficult for courts who
have to deal with legal novices. Of course most self-represented litigants are
doing their best, but there is a small percentage that are described as
querulous. Tania Sourdin is a professor of law and dispute resolution at
Monash University. She's been researching this small group.
Tania Sourdin: Well, in some cases it's people representing themselves and
commencing multiple proceedings in different jurisdictions. In some instances
they will simply not follow directions but delay to really cause grief to the other
litigants involved in a case. In some cases the behaviour can be so bad that it
almost leads to stalking or other bad behaviour. And in some cases really they
will present information which is incorrect or inaccurate, or behave in a way
which makes it very difficult for a judicial officer to run a case in an appropriate
manner, and really to accord some dignity in terms of the processes that you
are going through.
And I think the some people who have behavioural and mental health
problems, these issues are magnified. And it is extremely difficult, some people
who might behave quite rationally in an ordinary social or work setting may
actually find that during the course of litigation their behaviour changes and
they are really not able to focus themselves or behave in a way which we would
regard as being more rational.
Damien Carrick: Can you talk to some of the cases that you're aware of
which fit this bill?
Tania Sourdin: I think you really only need to look at some of the reported
cases to see some similar names that come up again and again in the system,
and there are some litigants who are declared vexatious or in fact may be
declared vexatious for the purpose of some of the proceedings that they
launch. But I suppose when I review court transcript and also decisions that
are made, you will see that sometimes there is almost a baiting of the judicial
officer or the way in which the person talks to the person on the other side is so
appalling that really one wonders how justice can be done under those
circumstances.
Damien Carrick: Courts can decide that someone is a vexatious litigant, and
that can effectively bar them from our courts. How does that process work and
how often does that happen?
Tania Sourdin: It happens rarely in most jurisdictions because in the past it
has been quite a difficult process to follow through. There are amendments
proposed at the moment in Victoria which are trying to make it easier, if you
like, to move these proceedings through at different levels so that you don't
have to go up through the Supreme Court but you can in fact to make
applications at the County Court and magistrates levels.
It's not a complete answer though in that it only deals with part of the issue,
and it is a very serious matter to in fact declare that a person is vexatious and
prevent them from continuing or commencing court proceedings, particularly
if they do have a legitimate claim which might be buried underneath some of
the pieces that they've put in. And I think this is the difficulty as well in that
some of these are more obsessive self-represented litigants may have a
legitimate claim, it's just very hard to determine what that claim is and what
should proceed and what should, if you like, not proceed.
Damien Carrick: Tania Sourdin, professor of law and dispute resolution at
Monash University. Later this month Tania is a speaker at a conference on
self-represented litigants which is being organised by the Australasian Institute
of Judicial Administration.
Also speaking is Philip Misso, judge of the County Court of Victoria. He
manages the damages list. This includes public liabilities, slip and trip cases,
medical negligence, and also work and transport accident claims. He has to
deal with querulous litigants on a regular basis.
Philip Misso: And one of the features of them is that the way in which they
set their case up is almost indescribable when it is compared to what a trained
legal eye would see as a proceeding that's been legitimately presented, has a
legitimate base, has law which supports it, not necessarily successfully. And
unfortunately the difficulty then becomes that they come before me and I have
to be the one to tell them that unless there is some rectification of their cause
of action and it's produced in a conventional manner, there is an inevitability
I'll be dismissing their claim. And what often happens then is the first letter of
complaint. And I'm considered to be, in a sense, working against their
interests.
Damien Carrick: Putting up a brick wall.
Philip Misso: Yes. And unfortunately in some cases it tends to spiral. They
will then consider that my associates are part of their sense of a building-up of
resistance to what they have no doubt is a legitimate claim. They often are in
conflict with our filing staff at our counter. They will then produce
unfortunately lots and lots of emails and letters directed to me personally,
directed to my associates. Many of them have a belief that they will never shift
from that they've got a righteous cause.
Damien Carrick: They're inflexible.
Philip Misso: Totally inflexible. And then the day comes when the application
to dismiss it is made and I will say, look, I've given you three chancesI don't
know why three, it's the old thing we are stuck with, three strikes and you're
outwell, I sort of work on that basis and I think that's enough. And if I get to
the stage where I think, well look, there's no useful purpose to be served by
giving you another chance, well, inevitably I'm thinking I'm got to balance you
and your rights and giving you all the chances we can, and the rights of the
party who is your target. Inevitably I'm afraid they end up having their claims
dismissed.
Some of them, I have to say, have got a basis, but it's very hard for them to
winkle it out, tease it out, because the fight becomes against me, against my
staff, against the filing people downstairs, and they start to lose sight of really
why they are there. We try our best to help them, but we are starting, in a
sense, with a lost cause before it even starts, if you follow me.
Damien Carrick: How can the courts better deal with these people?
Philip Misso: I've got a method, the tendency to make orders which are
unusual where it's the roadmap I try to set them. 'If you do these things, this is
the next stage you'll get to'
Damien Carrick: Signposting is very important, isn't it, because it's about
managing people's expectations.
Philip Misso: It's terribly important.
Damien Carrick: Let's now talk more generally about the great bulk of self-
represented litigants, the people who are doing their best in very difficult
circumstances. Do you think those people fare well in the system?
Philip Misso: What we try to do is by making these sorts of orders I described
before which are rather more the roadmap, we tend to do that very often or
certainly I do and certainly the other list judges do, so that the litigant has
things that they can tick off. And I'll give them time to do it. I'm a little less
tolerant if they don't, but I like to show a little bit of intolerance the second
time around because I think people need to be encouraged to move along. To
come along and just shrug their shoulders and say, 'I don't know what to do
and I haven't bothered to take any steps,' is really unacceptable.
But we now have a self-represented litigant coordinator, we have a video that
we give the self-represented litigants so that they can visually in an eight-
minute videowhich is short enough to keep people's attention but very
instructive nonetheless about the court, who the plaintiff is, who the defendant
is, how you prepare your case, what the expectation is, the things that you
should familiarise yourself with, court rules and things of that kind. We have a
booklet which we give to people. So we try to create that platform.
But of course the next thing is if you look at the County Court rules you'll
quickly put them down because they are fairly long, they are drafted in
language that is there for the benefit of lawyers who understand that sort of
language, it's very difficult for litigants to work out what that means. The law
well, the law is relatively well understood by me in the areas where I have some
skill, but for a litigant who has a negligence claim against an employer, to
understand what the law is and concepts of contributory negligence and trying
to get medical reports and doctors who charge a fair fee for what they do, these
people don't have money, trying to subpoena medical witnesses, trying to
handle all of this, the general things in practice and procedure become almost
impossible.
What I and some of the other judges do, we'll lean on the institutional
defendants and say, well, you can get this material, you can absorb the cost, we
expect you to do these things and to give that to the litigants and the personal
injury actions. So we can go some of the way down the track, but the point we
stop, and it's a little bit grey, is we have to be very careful that we don't go too
far to actually be the advocate for the self-represented litigant.
Damien Carrick: We have an adversarial system, not an inquisitorial system.
Philip Misso: Yes, so we have to be careful to preserve the position of the
judge and not compromise the position of the defendant, the target of the
litigation. That's quite hard because I have sat there on occasions thinking, I
think you do have a pretty good case, you just haven't had the means by which
you can pull it together. The particular problem occurs with litigants who don't
have English as their first language. I can't help feel that it's almost an
impossible task, but we've had a number who have been rather aggressive
about it and haven't done such a bad job.
Damien Carrick: They've won?
Philip Misso: In one case I can recall that another judge did where I managed
the case, the fellow did win, yes.
Damien Carrick: But generally speaking they don't come off too well.
Philip Misso: No, they don't. In fact I would think in the majority of cases
they don't come off too well. I might say that I'm talking about the damages
list. Judge Maree Kennedy conducts the commercial list where people I
suspect are probably better educated. They are in business after all, they
understand these things, the law isn't so far removed from their daily activities,
one would think. They tend to do a little better I expect. But in the damages
list, public liability claims where someone has slipped or tripped, medical
negligence claims, transport accident where someone is injured in a car
accident, an accident at work, that's the broad range of the central work we do
in the personal injury area, but they are pretty tough cases to prepare and run.
Damien Carrick: Judge Philip Misso, in charge of the damages list in the
County Court of Victoria. He says in contrast self-represented litigants
involved in commercial disputes tend in general to fare better because business
people often have the skills to navigate the system and to argue their case.
You're listening to the Law Report on RN, today looking at self-represented
litigants.
So far we've been speaking about self-represented litigants in the civil courts,
but it's also a huge issue in the family law jurisdiction. 'Kate' (not her real
name) acted for herself when her ex-partner sought to vary the care
arrangements for their children.
Kate: Well, it was obviously pretty stressful. Actually I think the biggest
problem was the fact that the other party did have a lawyer, and so I think he
felt like he could push me around a little bit more than he may have if I had
representation. So yes, I felt a lot of pressure from the other side.
Damien Carrick: Was it a lot of work?
Kate: It was certainly a lot of paperwork and, not coming from a legal
background at all, that was a little bit challenging as well, to try to feel your way
through it, and obviously having to do all of my own research and make all the
phone calls and things to make sure that I had everything in place. But the
magistrate was very understanding of my position and did her very best to
explain everything in layman's terms for me, which I thought was pleasant.
Damien Carrick: And were you comfortable standing up in court arguing
your case?
Kate: I was fairly comfortable, yes. I thought the best thing is just go in and be
honest and go from there, so I was very confident from that point of view, just
to go in and make sure I was very truthful in all of my answers so that nothing
could go wrong from that end.
Damien Carrick: And you succeeded. So you were happy self-representing?
Kate: If I am 100% honest, if I had to give advice to anyone else, I'd say if you
are able, that I would have felt much more confident having somebody whose
profession is to give people guidance in that area. I think that that would have
maybe not made the situation so stressful.
Damien Carrick: Was there anyone there to guide you on the day, to help
you on the day?
Kate: Not on the day, no, but I did consult with a lawyer prior to going in who
actually made me feel a lot better about the whole situation and talked me
through it, and we sort of had worked out where the other lawyer was maybe
trying to push me in areas that he needn't have. So I think from that point of
view that really helped with my level of confidence.
Damien Carrick: Kate, not her real name.
The self-represented make up a substantial percentage of litigants in family law
disputes. Mark Le Poer Trench is a Sydney-based judge of the Family Court.
Mark Le Poer Trench: The annual report published by the court for the
2013 year shows that in trials, a little less than 30% had one or more parties
unrepresented. And across all the cases resolved by trial or otherwise
throughout the court, probably about 33%, 35%.
Damien Carrick: Presumably disputes take extra time because one party or
another is a self-represented litigant and aren't really across the law and the
rules. What sorts of areas do you see these sorts of blowouts?
Mark Le Poer Trench: Generally in my experience, I can only talk for
myself, where there is a case with a self-represented or unrepresented litigant,
cases tend to take a shorter time for determination than longer
Damien Carrick: A shorter time?
Mark Le Poer Trench: Yes, because self-represented litigants by and large
are very contained and controlled in their word usage. That's for most of them.
Of course there are others that tend to be the other way, that are extremely
verbose and perhaps have difficulty explaining in a logical and contained
manner what it is they want and framing questions that are one question at a
time rather than three or four wrapped up into one, they can extend the time
that a case would normally take.
Damien Carrick: Do you think that self-represented litigants fare as well as
represented litigants in terms of obtaining an outcome from the court?
Mark Le Poer Trench: I think it would depend on what sort of case it is. In a
parenting case, an applicant, whether represented or otherwise, with merit in
my experience would achieve the same outcome whether they are represented
or not represented. The other aspect of parenting cases is that they are less
adversarial cases and in a practical sense judges take on a far more active role
in those sorts of cases and would be required to enquire about I suppose areas
which might be deficient in the evidence of an applicant, self-represented. So
that a judge might ask, 'Well, where are you going to house the children? Who
is going to be there when you have the children with you? How are they going
to get to school?' Questions like that, which in a strict adversarial proceeding
would not be asked.
Damien Carrick: So the judges are trying to tease out the merits of a
particular proposal from the parties because they realise that maybe the self-
represented litigants might not be putting their best foot forward just simply
through lack of experience.
Mark Le Poer Trench: Yes. In a property case, that's an adversarial case,
and an unrepresented litigant in a property case could welfare differently if
they were represented because they have to put before the court evidence to
support the orders that they are seeking. And if they don't put before the court
evidence of their contributions in a manner in which the court can take those
into account, then they are likely to be unsuccessful.
Damien Carrick: There's a lot of discussion about people who say that
they've been victims of abuse or violence, and if the perpetrators are self-
represented they might cross examine the abuse victim. That sounds like a
terrible situation.
Mark Le Poer Trench: Well, it is. But in a practical sense, depending on the
relevance of the issue, the court has to deal with it. However, a judge controls a
court, a judge won't allow an alleged perpetrator to further abuse somebody by
questioning. And in those cases, as I said, the judge just has to control it. And
you're perfectly right, it can come down to a situation where an unrepresented
alleged perpetrator cross-examines an unrepresented alleged victim.
Damien Carrick: Eleanor, I understand you were cross-examined by your
ex-partner in the Family Court. What was it like when you realised that this
would happen?
Eleanor: It was horrendous. The whole situation for me where I had taken
some time to leave my perpetrator, it had been a very horrific experience being
with him and then leaving him, and to then, after being brave enough to take
that leap and to get out of that situation, to cross-examine me directly was just
horrendous for me. It actually stripped me, I felt like I was standing there and
he just had all of his power back. And even though his questions may not have
seemed to have been that bad to other people, he knew which questions to ask,
he knew how to press the buttons of trauma for me. At the end of the day I
walked out of there not sure whether I could actually face the court the next
day, and I literally wanted to just throw myself in front of the first bus. It was
that bad for me.
Damien Carrick: What did the judge do in these circumstances when he was
asking you these questions?
Eleanor: The magistrate at the time had actually given him a warning before
questioning me, saying, 'Just make sure that you ask appropriate questions.'
But at no time did they seem to show any concern or seem that it was even
inappropriate for him to question me. And what was actually really bizarre for
me was that we were in the exact same courtroom that only just over a week
beforehand a magistrate had given an intervention order, which he clearly said
that it was not safe for us to be in the same vicinity as each other, and for him
to say that and then be in the same courtroom and have another magistrate
make the decision that it was appropriate for him to directly cross-examine me
just seemed really absurd.
Damien Carrick: Eleanor, not her real name.
Pasanna Mutha is the policy and campaigns manager with the Women's Legal
Service of Victoria. She says cross-examination by a violent ex partner often
frightens and intimidates survivors of domestic violence.
Pasanna Mutha-Merennege: We do see that happening. We also see a lot
of women who are faced with the prospect of going to trial and being cross-
examined by their abusive ex partner, they choose to settle before trial. And I
think that happens a lot, that they simply do not want to be unrepresented in
court and they will do everything that they can to avoid that happening.
Damien Carrick: So the prospect of being cross-examined by somebody that
they say has been violent towards them effectively silences them legally, that's
what you're saying.
Pasanna Mutha-Merennege: I think that's correct, I think that they are not
really given the opportunity to tell their story in court because of the prospect
of being cross-examined personally by their abusive ex-partner.
Damien Carrick: What does that mean for outcomes?
Pasanna Mutha-Merennege: It means that they may not get the best
outcome that they possibly could get. If they are not legally represented, they
have to negotiate an outcome, possibly with their ex-partner, and it may not be
the outcome that they are looking for.
Damien Carrick: I heard on ABC local radio in Melbourne the other day of a
case of a woman who was in a wheelchair because of the injuries sustained at
the hands of her ex-partner. She fronted up to the Family Court and she was
told that because her ex-partner was a self-represented litigants, her legal aid
funding was going to be withdrawn. In that case her lawyer decided to continue
to represent her without pay because I think the lawyer felt this was very
important, that he or she did this. But what does that case, as described on
local radio, tell us about the issues here in terms of funding?
Pasanna Mutha-Merennege: The situation is quite difficult in Victoria. So
since January 2013 a revision to the legal aid family law guidelines has meant
that if both parties have legal aid, both parties will lose their legal aid just
before the trial. So it actually means that you have two unrepresented parties
about to go to trial.
Damien Carrick: And if only one party has legal aid and the other one
doesn't, does the one with legal aid have it removed?
Pasanna Mutha-Merennege: Yes.
Damien Carrick: So this sounds like a very difficult situation. How would
you like to see it addressed?
Pasanna Mutha-Merennege: Primarily there needs to be an increase in
legal aid funding.
Damien Carrick: A difficult thing to argue for in this climate.
Pasanna Mutha-Merennege: It really is.
Damien Carrick: What about changes to the actual law?
Pasanna Mutha-Merennege: I think that in terms of the issue around a
self-represented person being able to cross-examine another party, in the
family law jurisdiction there aren't any legislative protections that actually
protect vulnerable witnesses. And at a Victorian level in sexual offences in
family violence trials they do have legislative protection. So a court can order
an unrepresented party to be represented for the purposes of cross-
examination. And so I think that there is real scope for that to be developed at a
family law level.
Damien Carrick: Pasanna Mutha from the Victorian Women's Legal Service.
That's the Law Report for this week. Next week we'll be looking at how self-
represented litigants fare in our local law magistrates courts. Do visit us online
at abc.net.au/rn, there you can find podcasts, audio on demand and program
transcripts. A big thank you to producer Anita Barraud, and also to audio
engineer Garry Havrilay. I'm Damien Carrick, thanks for your company.