Speech to Magistrates Conference

Self Represented Litigants: Paper presented to the Magistrates’ Conference Monday 14 June 2004

The Hon Justice Pierre Slicer – Supreme Court of Tasmania

Nature of the Problem

There has always been tension between theory and practice in the stated objective that all are equal before the law. It is a basic tenet of our democratic system that all have access to the Courts and each person the right to present his or her case[1]. Reasons which include economics, socio-economic background, impairment, and the like have always rendered it difficult for a tribunal to determine the causes of parties equally able to present and argue their cause. A further tension arises from an expectation that since all causes are important to the participant that there ought to be one first-class standard. As in all disciplines, such is impossible. The nature of the case, the seriousness of the outcome, and complexity of modern legislative and regulatory regimes require differing resources which, given the resources of even the average citizen, may be determined not by need but income.

Allied with this tension is the change in the self-perception of citizens. Australians no longer regard themselves as being subjects of the Crown, but as citizens with an increased expectation of rights which are obtained and held through the court process, rather than political or social demands and outcomes. Thus persons aggrieved see themselves as having been deprived of their “rights”. The courts are often at the fault lines of this tension made more difficult by a combination of motherhood statements appearing in legislation with a paradoxical requirement for mandatory penalties and the like.

A court cannot require a party to have legal representation[2] and the election of an accused to appear unrepresented is a fundament right not to be interfered with[3].

In the United Kingdom, the tension between economic demands and international obligations created by treaty is progressing through the courts and is, as yet, to reach the House of Lords[4].

The obligations of a judicial officer are further complicated by different expectations of those engaged in the political process and society at large as to our appropriate role. We are expected to be:

1 Social engineers in the delivery of outcomes which accord with the desired goals of the State and the general community. At the core of this expectation of social engineering lies the need for trust in the outcome of the application of laws. No matter how good or well-intentioned is legislation, if there be no trust in the fairness of the application of those laws to individuals, then there is engendered a feeling of cynicism or mistrust generally in the way in which we govern ourselves. Criticism of outcome is becoming more and more common.

2 More and more administrative and quasi-judicial functions are imposed upon judicial officers, both in the “delivery of service” and the implementation of cost efficiency and modern “management principles”. Additionally, many matters which ought remain administrative have been transferred to judicial officers as a means of lessening the political impact of particular decisions.

3 Judges. It is the last function for which we are chosen and which the community expects. The coinage of judgment has become debased and, in many instances, we are seen as “service” providers or a highly paid “elite” with a self-serving agenda. That traditional role has become more and more linked by administrative regimes which link a judicial officer with the public service bureaucracy.

The current tension between the Executive Government and the High Court arising from migration cases concerns not policy but access to the courts and tribunals and procedural fairness. The philosophy of that cause of tension and its impact in the United States is well stated in exchanges, primarily by Dworkin and Posner[5].

Along the fault lines engendered by the above factors travel the unrepresented litigant. Some are well meaning who have become enmeshed in the pickets of the law; some are naïve or ill-suited to take an appropriate part in the determination and application of the law; and some consciously patrol the fault lines seeking “justice”, fulfilment of an obsession, vehicles for expression of anger, or simply to meet an inner need.  An obsessed litigant with intelligence, but not resources, is well suited to inhabit the fractures or “fault lines”[6]. They are able to use the tension between the right of access and the obligation of a court to administer justice and conduct cases efficiently and expeditiously. Self-represented litigants are independent of, and not governed by, the duties to a court by a legal practitioner upon which the court system is dependent[7].

Purpose of Paper

This paper simply seeks to provide case references, academic publications and some data. Its aim is to do no more than provide a compilation of material which might be of assistance when a particular problem arises.

Extent of the Problem

The number of unrepresented litigants has increased dramatically in the last decade[8] and their impact significant[9]. In the opinion of one Australian judge:

“the question of how to cope with [the plight of the unrepresented litigant] is the greatest single challenge for the civil justice system at the present time … cases in which one or more of the litigants is self-represented generally take much longer both in preparation and court time and require considerable patience and interpersonal skills from registry staff and judges.”[10]

The High Court has recognised the problem in the joint judgment of Mason CJ, Brennan, Deane, Dawson and McHugh JJ, when they said:

“Whilst the right of a litigant to appear in person is fundamental, it would be disregarding the obvious to fail to recognize that the presence of litigants in person in increasing numbers is creating a problem for the courts.”[11]

and stated the issue more bluntly in the terms:

“A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.”[12]

There are few accurate statistics within Australia, especially for courts of summary jurisdiction.

In its annual report 2001 and 2002, the High Court stated that the number of self-represented litigants filing applications for special leave to appeal increased from 162 (33 per cent of the total applications filed) in 2000/2001, to 197 (40 per cent in the reporting year). The percentage of single justice hearings involving self-represented litigants increased from 19 per cent in 2000/2001 to 33 per cent in the following year. The High Court estimated that more than 50 per cent of the time of the registry staff was taken up with self-represented litigants.[13] In the Federal Court the number of cases filed involving self-represented litigants has increased from 19.5 per cent in 1997 – 1998 to 40.8 per cent in 2002 and 2003.[14] In 2002, the Family Court estimated that the number of cases involving self-represented litigants was as high as 37 per cent.

In 1999 a study conducted by the Family Court showed that 35 per cent of contested cases involved at least one party without a lawyer. A study by Farrar indicated that 28 per cent of matters before the High Court and 17 per cent in the Federal Court involved a person without representation. American figures suggest that in some jurisdiction, eg, Domestic Relations Court, 88 per cent of the parties were without legal counsel, with both parties appearing unrepresented in 52 per cent of the cases.[15] A study conducted by Dewar of the Family Court in 2000 showed that 31 per cent of judges interviewed in that Court thought the unrepresented litigant in the sample cases participated in proceedings with confidence, but almost a third of the litigants interviewed said they were not confident at all in presenting their cases. The study revealed that judges felt that in 44 per cent of cases, the represented party was disadvantaged by the fact that the other party did not have a lawyer. Self representation often led to more protracted and more frequent appearances and greater delays, resulting in more days off work and increased legal fees for the represented party who was often unable to recover costs against an unrepresented party. Unrepresented parties were, however, in the system for a shorter time in that they are more likely to be dismissed or abandoned[16]. That study found that parties were less likely to settle and therefore more likely to go to hearing. A trend which occurred against a backdrop of reduced staffing levels. Often it is the counter staff that bore the brunt of the court user’s anger. However, increased stress was clearly evident in the responses of judges and registrars who participated in the study. A survey of judges showed that some treated unrepresented litigants in the same manner as they treated legal practitioners, but others “leant over” to assist unrepresented litigants to present their case. This resulted in a lack of consistency. 63 per cent of the judicial officers interviewed in the Dewar study felt that the unrepresented parties in the sample were disadvantaged by their lack of representation. The survey of those taking part showed that there was a disproportionately high number of unrepresented litigants from lower socio-economic groups with over half not in paid work. One half had not been educated beyond year 12 at school and the median net income was between $15,000 and $20,000. The majority of litigants interviewed indicated that it was simply a question of financial necessity and three quarters of those litigants could not afford a private lawyer. One quarter of respondents to the survey showed they chose to represent themselves because of an overriding distrust of lawyers or a belief they could do as good. Simplification of forms was given as a reason in only one case.[17]

A study conducted of registries of the Family Court of Australia and the Family Court of Western Australia in July 1998 showed that 61 per cent of unrepresented litigants were males, 85 per cent of whom had either not applied for legal aid or had been told that they were not eligible. Of those who had applied for legal aid, 84 per cent were unsuccessful. The study showed that in 35 per cent of cases, one or more of the parties did not have legal representation. Of 721 cases examined legal aid was refused or withdrawn during, or before the hearing:

· in 20 per cent of the cases;

· 55 per cent of cases involved an unrepresented male;

· 28 per cent female;

· 17 per cent, both parties were unrepresented;

· 8 per cent of parties were assisted by a duty solicitor;

· 4 per cent pro bono where legal aid had been withdrawn;

· in 81 per cent of cases, the unrepresented parties would have been assisted by legal representation

· and 75 per cent of cases indicated that the other party would have been assisted if the opponent had had legal representation;

· again, in their opinion, in only 39 per cent of cases did the unrepresented party understand the proceedings fully.[18]

The Australian Law Reform Commission[19] found that in the 1995/1996 reporting year, there were 32,886 applicants in person, compared with 28,133 in the 1994/1995 reporting year and 10,997 in 1981.

The experience is similar in tribunals. The publication of the Law and Justice Foundation of New South Wales examines statistics kept by the Equal Opportunity Tribunal of that State. Its study showed that when a complainant was unrepresented, matters took twice as long from referral to completion, twice as many directions hearings, and the final hearings themselves took longer to complete. The median time from referral to completion was:

· both parties legally represented – 9.0 months

· complainant unrepresented throughout – 17.5 months

· complainant unrepresented for part of proceedings – 8.5 months

· respondent unrepresented throughout – 6 months

Median number of directions hearings:

· both parties legally represented – 2;

· complainant unrepresented at preliminary directions hearing – 4.5

· respondent unrepresented at preliminary directions hearing – 1

Median number of hearing days:

· both parties legally represented – 2 days;

· complainant unrepresented at hearing – 3 days

The Industrial Relations Tribunal showed a decrease in representation pf 62 per cent to 58 per cent in the twelve month period 1994/1995.

In Tasmania, 1,094 new matters (excluding admissions) were filed in the Supreme Court in 2003 which comprised:

Writs: 679

Appeals 123

Miscellaneous 292

Registry officers calculate that in that year there were some 77 files (some of which had multiple causes) involving litigants in person. Three litigants in person alone generated 14 published judgments in the Court between 1999 and 2004[20]. New South Wales probably leads the nation[21].

In the Magistrates Court, there were 12,722 lodgements of civil matters in 2002 – 2003. In the same year, there were 73,378 lodgements for criminal or statutory offences. The statistics, which must be measured against a total population of 480,000 persons, show a more general increase in the use of Courts:

See Statistics document

The increase doubtless reflects a corresponding increase in the number of unrepresented litigants.

Who are the Unrepresented Litigants

Studies show the majority of unrepresented litigants to be from a particular socio-economic class and court records generally show, especially in the areas of criminal and family protection law, to be male. A general characterisation would be:

1 Individual with a simple problem, often involving a plea of guilty or consent to an order.

2 Individual with a complex problem which he or she is honestly attempting to resolve.

3 Person suffering from impairment.

4 Small corporation.

5 Litigant possessed with anger, effects of substance abuse or general attitude or grievance against authority, family or society in general.

6 The obsessed, deluded or vexatious.

Categories 1 and 4 do not appear to be matters which consume a large amount of time or which pose significant problems for the present system. Category 2 can be time consuming in the sense that it is the judicial officer who, either at a pre-trial or at the commencement of the hearing is required to at least discern what is the substance of the issue to be determined. This area can sometimes involve a perception of “taking sides”. Category 3 is probably beyond practical redress. Some resources are provided by the State or community organisations and matters such as language difficulty can sometimes be obviated through the use of interpreters.

Category 5 can sometimes be resolved through common sense and the personality of the judicial officer. Category 6, especially when merging with category 5, would appear to be the most troublesome and time consuming problem for the court administrators and the judicial officer.

In some cases any assistance proffered or advice given to advance the cause of a litigant in person will be unwelcome and unsuccessful. The study already referred to[22] suggests that the historic psycho-medical classification of “paranoid litigant” or “querulous” person, shows an equivalence between the modern and sociological response of “entitlement to legal rights” and the historic Marxists and/or Dickensian critique of the complexity and inequality of the legal system. Modern response through “alternative dispute resolution” and recognition of “complaint and victim” might resolve many difficulties, but transfers the remainder to a system “ill-equipped” to deal with the residue. The conjunction of “economic rationalism” by the right and “release to the community” by the left, suited both sides of the ideological divide, but left an institution of the state, bereft of political power, with the residual of the outcome. The study conducted, replicating the findings of the Family Court research, showed:

· a marked over-representation of males;

· increased involvement in a “complaint organisation” from 8.3 months (control sample) to 35 months;

· a longer period in registering the complaint or grievance;

· greater impact on available resources;

· inability to provide predictors (not encompassed in the other research).

Although many of the difficulties which involve the above categories and allowing that they arise at the fault lines between theory and practice, it nevertheless remains the duty of judicial officers, as best they are able, to resolve them. However, in approaching the problem, we should remember that we are neither social workers nor responsible for the general problems of our society. There is often a deep desire to help the “underdog” or to make up for disadvantage. We ought recognise within ourselves that our powers and resources to redress wider problems is limited and we ought not travel with a cross or albatross because of our inability to so resolve.[23]

Resources

There is an excellent management guide entitled Self Represented Parties prepared for the County Court of Victoria, Elizabeth Richardson, 2004.

General Guidelines

The Full Court of the Family Court of Australia published a decision[24] which set out guidelines for Family Court trial judges when hearing cases involving self-represented litigants.

“1 A Judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial.

2 A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross-examine the witness.

3 A judge should explain to the litigant in person any procedures relevant to the litigation.

4 A judge generally [sic] assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation.

5 If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course.

6 A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise.

7 If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights.

8 A judge should attempt to clarify the substance of the submissions of litigant in person [sic], especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott(1994) 121 ALR 148 at 150).

9 Where the interests of justice and the circumstances of the case require it, a judge may:

— draw attention to the law applied by the Court in determining issues before it;

— question witnesses;

— identify applications or submissions which ought to be put to the Court;

— suggest procedural steps that may be taken by a party;

— clarify the particulars of the orders sought by a litigant in person or the bases for such orders.”[25]

There is also a set of guidelines prepared by the New South Wales Bar Association which might provide some assistance. They include[26]

“19 Generally cases involving self-represented litigants are more difficult and require more inter-personal skills of patience and adaptability on the part of the barrister. Barristers need to retain their objectivity and commitment to their various duties and obligations notwithstanding the frustration experienced, for example, when the motives of a self-represented litigant may be seen to be other than the pursuit of justice. This can occur, for example, in a migration case where the objective of the self-represented party may be to purely delay the proceedings to delay and/or frustrate a final decision.

20 Similarly, where a self-represented litigant is obsessed by the litigation and is unable to exercise rational judgment in relation to the dispute, great care needs to be taken not to become embroiled in apparently personal attacks or criticisms which may emanate. In such circumstances, it is suggested that any refutations of comments made occurs in as professional and non-personalised way as is possible.

…

36 Research shows that, in cases involving self-represented litigants, a great deal of time of the courts (and often that of the opposing party) is taken up at preliminary /interlocutory stages when the self-represented litigant’s lack of legal knowledge and, on occasions, lack of judgment about the case and the evidence become apparent.

37 It is suggested that to avoid future problems in the litigation pathway, the barrister ensure the self-represented litigant is sent a copy of the orders which have been made. Depending on whether there has been a history of difficulties either experienced or caused by the self-represented litigant – for example, of non-compliance with existing orders – it may also be advisable to ensure that the orders be accompanied by a letter setting out what action, orders etc, will be sought on the next occasion that the matter is before the court.

…

39 Where the barrister comes to the view that the entire action by a self-represented litigant is misconceived or, for example, that there is no evidence to support the action being maintained by the self-represented litigant, a barrister may be asked to advise on whether a strike-out application should be brought. The barrister should be aware that the reluctance on the part of some judges to entertain such actions is often increased when the opposite party is a self-represented litigant. Depending on the circumstances, it may be better in such cases to seek that the hearing be expedited.

40 The barrister should be aware that some judges may suggest an amendment to a pleading necessary to establish a cause of action – for example, on a strike out/ summary dismissal application – see Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536; Morton v Vouris (1996) 21 ACSR 497 at 513-4. The latter case also contains (at p 520) a practical outline of the difficulties barristers may experience when faced with a self-represented litigant who is prepared to make extravagant allegations without deigning to provide particulars (including allegations of misconduct on behalf of judicial officers). He is effectively immune from the constraints imposed by a potential or actual costs order. On his own evidence, he has no means to satisfy a costs order. In that case the trial judge, Sackville J, made orders granting the plaintiff leave to apply to amend a statement of claim, provided the application for leave was accompanied by affidavits in appropriate form showing there were facts which could probably be proved and which, if proved, would support the general statements made in the statement of claim.

…

62 Various appellate courts have set out the duties of judges and tribunal members at first instance in dealing with and giving assistance to self-represented litigants. One of the factors which will determine the extent of these duties is the existence of any particular evidentiary requirements binding on the court or tribunal – for example, if a tribunal or commission is bound by the rules of evidence or in the words of a formula often used, the court or tribunal can ‘inform itself of any matter in such manner as it considers just.’ – see s110(2) of the Workplace Relations Act 1996 (Cth).

63 The Full Bench of the Australian Industrial Relations Commission set out guidelines for members as to the assistance which could be provided by members of the Commission in Davidson and Aboriginal and Islander Child Care Agency (Unreported, AIRC, 12 May 1998) 534/98 as follows (at p 9): The assistance provided by a member may, depending on the circumstances, include:

(i) identifying the issues which are central to the determination of the particular proceedings;

(ii) drawing a party’s attention to the relevant legislative provisions and key decisions on the issues being determined;

(iii) asking a party questions designed to elicit information in relation to the issues which are central to the determination of the particular proceedings;

(iv) assisting a party to conform to the Brown v Dunn principle and other procedural rules designed to avoid unfairness; and

(v) drawing a party’s attention to the relative weight to be given to bar table statements as opposed to sworn evidence. A member may also intervene, to an appropriate extent, by asking questions of witnesses. Such a role is appropriate in the following circumstances:

(vi) to clear up a point that has been overlooked or left obscure;

(vii) to obtain additional evidence to better equip the member to choose between the witnesses’ versions of critical matters;

(viii) to exclude irrelevancies and discourage repetition;

(ix) to ask admissible questions which a party is unable, for the moment, to formulate; and

(x) to facilitate expedition in the progress of the proceedings.

…

65 The duties of trial judges in Family Court proceedings involving a self-represented litigant were set out by the Full Court in Johnson v Johnson (1997) FLC 92-764; (1997) 22 Fam LR 141. A barrister needs to be familiar with those obligations as it is clear that, unless they are complied with, a judgment emanating from a hearing carried out contrary to those guidelines is liable to be set aside on appeal.

…

70 The judge’s obligation is to ensure that he or she does not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation – see Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129.

71 The judge should not give legal advice to a self-represented litigant. This is because such an approach may not only give the appearance of unfairness to other parties but also it may be given without full knowledge of the facts – see Johnson v Johnson (op cit.)

72 There is a distinction between explaining procedural choices available and advising what decisions to make. For example, a judge may explain the form of questions to be asked but should not put the questions into that form – see McPherson v R (1981) 147 CLR 512; R v Gidley [1984] 3 NSWLR 168

73 Excessive intervention by the trial judge may breach the judge’s duty to observe procedural fairness to both parties, so constituting an error of law – see Burwood Municipal Council v Harvey (1995) 86 LGERA 389 per Kirby P. But what a judge must do to assist a self-represented litigant depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case – Abram v Bank of New Zealand [1996] ATPR 41-507.

74 Failure to object to excessive intervention may constitute a waiver or may estop a subsequent complaint. The objection should be taken at the earliest opportunity. See Vakauta v Kelly (1989) 167 CLR 568 at 572, 577; Livesey v NSW Bar Association (1983) 151 CLR 288.

75 Making a disqualification application can be one of the most difficult and stressful tasks for a barrister. The difficulty can be exacerbated in a case where a self-represented litigant is involved, as the judge may feel compromised (even to the extent of ‘walking a tightrope’) by the need to help self-represented litigants and at the same time remain, and appear to remain, impartial – see Research Paper pp 45-49. It is suggested that this is one area where, if time permits, a barrister might outline the scenario in which he or she is involved to a senior colleague before making such a submission.”

Court Staff

Court staff bear the brunt of aggression, abuse and dissatisfaction in their general tasks and their failure to afford legal advice.[27] The size and inadequacy available to courts do not permit the maintenance of an infrastructure sufficient to deal with many of the issues. Such assistance as can be reasonably provided remains the task of Registry staff. In 2001, the AIJA published a research paper[28] containing proposals for change, some of which have been implemented by the Federal Court.[29] In Tasmania, the Supreme Court makes use of a service provided by the Legal Aid Commission which provides a duty solicitor who attends the Court to assist unrepresented litigants with their process and documentation.

Judicial Officers

The High Court has provided but general advice to Courts dealing with unrepresented litigants, advising:

“There is no limited category of matters regarding which a judge must advise an unrepresented accused–the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial.”[30]

and in considering the operation of the principle of fairness of trial:

“While the prosecution has a duty to act fairly and part of the function of a presiding judge is to seek to ensure that a criminal trial is fair, neither prosecutor nor judge can or should provide the advice, guidance and representation which an accused must ordinarily have if his case is to be properly presented.”[31]

Some limited assistance has been provided by authority.[32]

A précis of matters relevant to the responsibilities and constraints upon a judicial officers is:

1 Advice to unrepresented accused of any fundamental procedures or rights which could advantage their cause.[33]

2 Advice of consequence such as putting character in issue. There is no closed category.[34]

3 Failure to do so can result in a miscarriage.[35]

4 Resist becoming a surrogate counsel.[36]

5 An unruly defendant might be, as an ultimate remedy, removed.[37]

6 Rights cannot be compromised because of administrative needs.[38]

7 A judicial officer must inform an unrepresented person of the right to seek an adjournment.[39]

8 Common reasons include:

· opportunity to obtain legal representation;

· opportunity to secure the attendance of witnesses to obtain evidence;

· illness.

9 When deciding to grant an adjournment, the court must take into account, not only the interests of the accused, but the interests of the Crown, witnesses, jurors and the court.[40]

10 Unfairness arising due to matters external to the nature of the case. The court is better able to ensure fairness, but where it arises due to complexity, number of counts, etc, the court is less able and must not become involved in examination of the defendant’s case in an attempt to act as an amicus.[41]

11 Various States have particular legislation.[42]

12 Separate matters which are not the subject of this paper arise from legislation governing inquiry into means, etc. However they are sometimes raised in the context of an application for stay of proceedings.[43]

13 There appears to be greater flexibility when a judicial officer is dealing with pre-trial case-management or at a directions hearing.[44]

14 Experience suggests that, at least during the trial stage, the less said, especially in the case of an obsessed litigant, the better.[45]

There is a useful general article on the unrepresented litigant in criminal trials by Justice Mildren which contains a number of the references and authorities relevant to the issue.[46]

McKenzie Friend

Some assistance can be provided by a person able to make suggestions and taking notes.[47] The current position in the United Kingdom was stated by the Court of Appeal in R v Bow County Court; ex parte Pelling[48] which states:

1 In relation to proceedings in public, a litigant in person should be allowed to have the assistance of a McKenzie Friend unless the judge is satisfied that fairness and the interests of justice do not require such assistance.

2 A judge should give reasons for refusing a litigant in person the assistance of a McKenzie Friend.

3 The assistance of a McKenzie Friend is available for the benefit of the litigant in person and whether or not a McKenzie Friend is paid or unpaid for his or her services, he or she has no right to provide those services; the court is solely concerned with the interests of the litigant in person. The last proposition is unlikely to be met with approval in Australia, although the Migration Act does appear to allow for agents.

4 The High Court seems to have approved, with some limitations, the use of a McKenzie Friend.[49]

5 However there are problems with this approach. A McKenzie Friend is not subject to the same responsibility as counsel and may be outside of the traditional forms of discipline and control.[50]

Physical and Mental Impairment

In some cases, court facilities can be adjusted to accommodate a physically impaired person. There is authority for the obligation on a judicial officer to inquire as to the accused’s health.[51] Mental competence can cause problems.[52]

Various jurisdictions provide for a preliminary assessment of this matter.[53] There are occasions, because of documentation and the like where its is not necessary for the defendant to present his case from the dock.[54]

Cross-examination

1 An accused should be advised of the right to cross-examine.[55] However, a judge has a right to intervene.[56]

2 Limited advice as to the form of questions may be put but the judge should not formulate or suggest the actual question.[57]  The general right of a court to control cross-examination was considered by the High Court[58].

3 Some States prohibit an unrepresented accused from cross-examining a complainant in sexual cases.[59] It would appear that time limits can be put on the cross-examination or at least has been held to be permissible in Victoria.[60]

4 A useful summation of the English position is found in R v Brown[61]

Evidence

Self-represented persons should be told that they are not permitted to give evidence from the bar table without being placed on oath or affirmation and should be advised that they are liable to be exposed to cross-examination.[62]

General advice should be given of the right to object to inadmissible evidence.[63] This has not, so far as I am aware, been examined in the criminal jurisdiction.

The rule in Brown v Dunn applies to unrepresented parties, whether the rule is criminal or civil.[64]

Suggestions

This paper does not attempt to suggest strategy. “Pit Ponies” only trudge forward waiting for enlightenment from the managers above. We can only redistribute the contents of the bucket of oats. Some suggested “small picture” techniques might warrant consideration. They include:

1 Flexibility. Attempt to identify the characterisation of the particular litigant. Methods effective with one may be counterproductive with another.

2 During the hearing, the less said the better. Work out the problem later. This is easier done with jurisdictions other than those which have a large volume of cases.

3 Stay clear of detail. It is a “black hole” from which there is no escape. If the issue is identified, then do not attempt to have the party restate the issue. Decide it later, even if it requires only a short adjournment.

4 Let the appellate process sort out the implications. “Preciousness” in matters of procedure can be used to avoid the consequences of “reality”. Do not allow subjective failings of outcome to influence a pragmatic approach to form.

5 Disengage in the care of a “focused” litigant. We cannot remedy all past harm and consequence.

6 We are trained as judicial officers to identify the issue and disregard the “dross”. Treat the “obsessed”, “pedantic”, and “ideological” litigant with the same intellectual methodology. Do not engage with the “emotions”.

7 Develop protocols which can identify or anticipate complex procedural problems and communicate that information to the judicial officer.

8 Use pre-trial conferences or pre-trial management as a vehicle for identification of the issue or require identification at the commencement of the hearing. If the phrase “obtain justice” is used, drink brandy, whisky, or Chardonnay, according to political ideology.

9 Papers relevant to the particular application ought be separated, in advance, before the hearing of an interlocutory application.

10 Where possible, exempt an unrepresented litigant from pre-trial or case-management requirements.

11 Encourage or require litigants to prepare, in advance of a hearing, a written statement which they can either read to, or provide to, the Court. They ought be confined to the terms of the prepared document.

12 Negotiate with legal aid commissions for “duty solicitor” advice on procedures and change the balance of emphasis from narrative to “options”.

13 Develop a “user friendly” form or documentation which requires the unrepresented litigant to identify and state the issue.

14 Require legal practitioners to recognise their responsibility in the need “to draft applications and interlocutory orders which are understandable to persons not trained in the language of the law and refined to define the precise issue to be determined ¾orders sought ought be provided to the opposing party in advance”.[65]

15 In the case of matters arising under suggestions 3, 4 8, 10 and 14, state, even if briefly, the basis of the course adopted, so as to alert any appellate court to the issue and at least require it to confront the matter, rather than avoid it by reference to “historic” principles or terms of reference.

Conclusion

The problem is not going to go away. My prediction is that it will become more prevalent and complex. The Executive is not, irrespective of ideology, committed to solution. The “pit ponies” must trudge on, but ought not, through their passivity, remain responsible for the outcome. The perception that judicial officers are but members of the ruling class is belied by generational change. We are more engaged with the community than previously. But, to those good and committed judicial officers, let me add suggestion 16. We are not equipped to rectify the past and ought not destroy ourselves as persons in the process. As judicial officers, we are responsible for our culture, its past, and its future. But we remain custodians of the culture, not its victims.