Professional Documents
Culture Documents
4-15-2014
Nerida Wallace
Monash University
Recommended Citation
Sourdin, Tania and Wallace, Nerida, "The Dilemmas Posed by Self-Represented Litigants – The Dark Side" (2014). Access to Justice.
Paper 32.
http://www.civiljustice.info/access/32
This Article is brought to you for free and open access by Civil Justice Research Online. It has been accepted for inclusion in Access to Justice by an
authorized administrator of Civil Justice Research Online. For more information, please contact alan.shanks@monash.edu.
1
Professor Tania Sourdin, Australian Centre for Justice Innovation (ACJI) at Monash University contact
Tania.Sourdin@Monash.edu and Nerida Wallace of Transformation Management Services contact
nerida.wallace@transformation.com.au Parts of this paper are drawn from E. Richardson, T. Sourdin
and N. Wallace, Self-Represented Litigants: Gathering Useful Information, Final Report (ACJI, Monash
University, Melbourne, 2012), available at http://www.civiljustice.info/srl/2/; and Self-Represented
Litigants: Literature Review (ACJI, Monash University, Melbourne, 2012.), available at
http://www.civiljustice.info/srl/1/.
2
See E. Richardson, T. Sourdin and N. Wallace, Self-Represented Litigants: Gathering Useful Information,
Final Report (ACJI, Monash University, Melbourne, 2012), available at http://www.civiljustice.info/srl/2/;
and Self-Represented Litigants: Literature Review (ACJI, Monash University, Melbourne, 2012.), available
at http://www.civiljustice.info/srl/1/. See also E. Richardson and T. Sourdin, ‘Mind the gap: making
evidence-based decisions about self-represented litigants’ (2013) 22(4) Journal of Judicial Administration
191–206.
3
ALRC, Part two: The costs of litigation in the Family Court of Australia (Australian Law Reform
Commission, Sydney, June 1999); see alsoJ. Dewar, B. Smith and C. Banks, Litigants in Person in the
Family Court of Australia – Research Report No 20 (Family Court of Australia, Canberra, 2000).
4
Federal Magistrates Court of Australia, Annual Report 2002–2003 (Canberra: Federal Magistrate’s
Court of Australia, 2003).
2
Federal Court of Australia, Annual Report 2010–2011 (Federal Court of Australia, Canberra, 2011), 43.
5
J. MacFarlane, National Research Study – Self Represented Litigant Project (2013) Canada, 2013),
available at www.representingyourselfcanada.com (accessed 4 April 2014)).
6
J. MacFarlane, National Research Study – Self Represented Litigant Project (2013) Canada, 2013),
available at www.representingyourselfcanada.com (accessed 4 April 2014)).
7
See E. Richardson, T. Sourdin and N. Wallace, Self-Represented Litigants: Gathering Useful Information,
Final Report (ACJI, Monash University, Melbourne, 2012), available at http://www.civiljustice.info/srl/2/;
and Self-Represented Litigants: Literature Review (ACJI, Monash University, Melbourne, 2012.), available
at http://www.civiljustice.info/srl/1/. See also E. Richardson and T. Sourdin, ‘Mind the gap: making
evidence-based decisions about self-represented litigants’ (2013) 22(4) Journal of Judicial Administration
191–206.
There are other issues as the needs of this broad SRL population may be obscured by
a currently unknown, but probably small, proportion of the SRL population that is
regarded as ‘obsessive’,’ difficult’, engaged in ‘high conflict behaviour’ or more
simply as ‘mad, bad and dangerous.’ 8 It is this proportion of SRLs – according to many
commentators and people working in the justice sector - that appears to be resistant
to or unable to engage in litigation in a respectful, fair or timely manner and which
require more time, more energy are a greater focus of attention by those working
within courts and tribunals.
This paper is concerned with this group of SRLs, who may not be represented for a
range of reasons but who may, because of their behaviour, raise particular issues for
judicial officers, courts and tribunals and most importantly for the administration of
justice in the whole community. There is no specific or definitive data in Australia
about the size of this group or the impacts. However, there is some data about
mental health issues in the general community that is helpful. For example, large
scale studies in the United States in 2002 and 2008 9 suggest that more than 14% of
the United States population has a personality disorder and another 10% have
maladaptive personality traits.
Whilst many people with mental health issues may be able to represent themselves
successfully and others may be less likely to commence court proceedings
(particularly if suffering from depression and anxiety), some with personality
disorders or maladaptive traits may be more likely to be involved in conflict and be
less able to negotiate agreed outcomes.
In particular, the cohort with high conflict behaviours is more likely to be involved in
court proceedings because they are less likely to resolve issues at an early time or act
in a rational manner. It is also possible that some in this group are more likely to be
self represented because they are unable to afford representation or may be less
likely to maintain relationships with legal practitioners. In order to explore this
cohort, and in the absence of definitive data on the size of this group, it is necessary
to explore the reasons behind self-representation, common perceptions about SRLs
and the impacts on the judiciary as well as possible responses.
8
Lady Caroline Lamb referring to Lord Byron in 1812.
9
Recent studies suggest that these figures may be higher although many personality disorders will not
generate high conflict behaviours. See B. Eddy, High conflict people in legal disputes (HCI Press, 2009.
See also US National Institute of Mental Health at http://www.nimh.nih.gov/health/publications/the-
numbers-count-mental-disorders-in-america/index.shtml#Intro (accessed 11 April 2014).The 2007
Australian Mental Health Study in 2007 suggested the figure in Australia was 20% - See
http://www.aihw.gov.au/mental-health/ (accessed 11 April 2014).
10
M. Stratton, Alberta self-represented litigants mapping project – Final Report (Canadian Forum on Civil
Justice, Edmonton, Alberta, 2007)), cited in Canadian Forum on Civil Justice, Alberta Legal Services
Mapping Project, An Overview of Findings from the Eleven Judicial Districts Final Report (Canadian Forum
on Civil Justice, Edmonton, Alberta, July 2011), 89–91.
11
Canadian Forum on Civil Justice, Alberta Legal Services Mapping Project, An Overview of Findings from
the Eleven Judicial Districts Final Report (Canadian Forum on Civil Justice, Edmonton, Alberta, July 2011),
89–91.
12
Senate Legal and Constitutional Affairs References Committee, Access to Justice (Commonwealth of
Australia, Canberra, December 2009); Senate Legal and Constitutional Affairs References Committee,
Inquiry into the Australian Legal Aid System: First Report (Commonwealth of Australia, Canberra, 26
March 1997); Senate Legal and Constitutional Affairs References Committee, Inquiry into the Australian
Legal Aid System: Second Report (Commonwealth of Australia, Canberra, June 1997); Senate Legal and
Constitutional Affairs References Committee, Inquiry into the Australian Legal Aid System: Third Report
(Commonwealth of Australia, Canberra, July 1998); Senate Legal and Constitutional References
Committee, Inquiry into Legal Aid and Access to Justice (Commonwealth of Australia, Canberra, June
2004.). It was noted in by Australian Law Reform Commission in Managing Justice – A review of the
Federal Civil Justice System Report No 89 (Australian Government Print Services, Canberra, 2000) that
there was no clear statistical data to support the claim that SRLs were increasing. However, the Law
Council of Australia in Erosion of Legal Representation in the Australian Justice System Research Report
(February 2004) found that there had been a rise in SRLs based on a survey conducted and some
statistical data. This finding can be contrasted with an earlier report by the Family Court of Australia in
which it was reported that the number of SRLs who are unrepresented throughout the entire court
process are low: Self-represented Litigants – A Challenge Project Report December 2000–December 2002
(Family Court of Australia, 2003), 3.
13
R. Moorhead and M. Sefton, Litigants in person. Unrepresented litigants in first instance proceedings
(Department of Constitutional Affairs Research Series 2/05, England & Wales, 2005), available at
http://www.familieslink.co.uk/download/july07/DCA%20view%20of%20LIPs.pdf (accessed 19 March 2014);
K. Williams, Litigants in person: a literature review – Research Summary 2/11 (Ministry of Justice, United
Kingdom, June 2011); M. Smith, E. Banbury and S. Ong, Self-Represented Litigants: An Exploratory Study
of Litigants in Person in the New Zealand Criminal Summary and Family Jurisdictions (Ministry of Justice,
Wellington, New Zealand, July 2009); New Zealand Law Commission, Dispute Resolution in the Family
Court Report 82 (Wellington, New Zealand, 2003); M. Barrett-Morris, M. Aujla and H. Landerkin, The Self-
Represented Litigant in the Courts: An Annotated Bibliography (Royal Roads University, 2004); M.
Stratton, Alberta self-represented litigants mapping project – Final Report (Canadian Forum on Civil
Justice, Edmonton, Alberta, 2007); Canadian Forum on Civil Justice, Alberta Legal Services Mapping
Project, An Overview of Findings from the Eleven Judicial Districts Final Report (Canadian Forum on Civil
Justice, Edmonton, Alberta, 2011).
13
R. Hunter, A. Genovese, A. Chrzanowski and C. Morris, The changing face of litigation: unrepresented
litigants in the Family Court of Australia (Research Report) (Law and Justice Foundation, August 2002);
Hunter et al found that there was an increase in SRLs in first instance matters, but that numbers of SRLs
on appeal remained consistent for the period of the study for the years 1995–1999.
14
J. Dewar, B. Smith and C. Banks, Litigants in Person in the Family Court of Australia – Research Report
No 20 (Family Court of Australia, Canberra, 2000), 11–12. See also Victorian Law Reform Commission,
Civil Justice Review: Report (Victorian Law Reform Commission, Melbourne, 2008), 564.
15
Family Law Council, Litigants in Person: A Report to the Attorney-General (Family Law Council,
Canberra, August 2000).
16
R. Hunter, J. Giddings and A. Chrzanowski, Legal Aid and Self-Representation in the Family Court of
Australia (Griffith University, May 2003).
17
For example, changes to Part VII the Family Law Act 1975 (Cth) led to an increase in residence and
contact orders: see Family Law Council, Litigants in Person: A Report to the Attorney-General (Family Law
Council, Canberra, August 2000)), 13.
18
M. Hawkins, Emerging Trends in the Provision of Legal Services: Some Australian Experiences (Speech
presented to the Commonwealth Law Association Conference, Nairobi, 7 September 2007).
19
See http://www.qpilch.org.au/ (accessed 19 March 2014)).
20
See the extensive work in Canada at http://www.representing-yourself.com/ (accessed 19 March
2014)
21
Australian Institute of Judicial Administration and the Federal Court of Australia, Forum on Self-
Represented Litigants (Sydney, 17 September 2004).
22
D. Webb, ‘The right not to have a lawyer’ (2007) 16 Journal of Judicial Administration 165–178.
23
D. Webb, ‘The right not to have a lawyer’ (2007) 16 Journal of Judicial Administration 165–178.
24
Family Court of Australia, Self-represented litigants: A challenge – Project Report December 2000–
December 2002 (Family Court of Australia, 2003). Many Australian courts have developed Litigants in
Person plans and improved information and processes for SRLs.
24
Federal Magistrate’s Court of Australia, Annual Report 2003–2004 (Federal Magistrate’s Court of
Australia, Canberra, 2004).
25
Federal Magistrate’s Court of Australia, Annual Report 2003–2004 (Federal Magistrate’s Court of
Australia, Canberra, 2004).
increase costs for all parties due to a need for more pre-trial proceedings,
poor issue identification, greater time responding to unclear and
irrelevant evidence and more time spent in hearings. 26
Despite these reports, recent research in the United Kingdom suggests that SRLs with
difficult behaviours are a ‘very small minority’, 25 at least in the lower courts.
It seems likely, and some court decisions report this, that there is a small number of
SRLs who require more court time and are difficult to deal with and that this
population may be greater in higher courts. These SRLs may be difficult to deal with
because of personality disorders and behavioural factors, which may mean that a
particular SRL is more likely to be in dispute and less likely to act in a rational, logical
or helpful manner. It is also possible that some SRLs may initially engage in litigation
in a rational way, however, repeated interactions with other litigants and with the
litigation system may in fact affect the physical and mental health of the SRL, making
it less likely they can continue to engage in a positive, constructive or rational way in
other court-related interactions. 26
Courts indicate that they may have repeated interactions and long-lasting
connections, often over years or decades, with some SRLs who might be regarded as
‘obsessive’. There is evidence that some SRLs will launch multiple actions across many
jurisdictions and appeal most if not all of the decisions made in respect of the
litigation they are involved in. Attempts to control these SRLs through a declaration
that they are ‘vexatious’ can be difficult, time consuming and onerous for those
involved in making the applications. The typical legislative frameworks mean that
there are few cases where such proceedings are taken. 27
In addition sometimes the behaviour can be difficult or problematic but it may not be
‘vexatious’ (or cannot yet be defined in that way) in that the proceedings may not be
‘untenable’ or may lack some other quality. 28 In addition, Australian case law relating
to vexatious declaration suggests that the process is time consuming and difficult in
26
Law Reform Commission of Western Australia, Review of the criminal and civil justice system in
Western Australia – Final Report Project 92 (Law Reform Commission of Western Australia, 1999), 153.
25
See R. Moorhead and M. Sefton, M. Litigants in person. Unrepresented litigants in first instance
proceedings (Department for Constitutional Affairs Research Series 2/05, England & Wales), 2005),
available at http://www.familieslink.co.uk/download/july07/DCA%20view%20of%20LIPs.pdf (accessed 19
March 2014)).
26
See, for example, G. M. Grant. and D. M., Studdert, ‘Poisoned chalice? A critical analysis of the
evidence linking personal injury compensation processes with adverse health outcomes,outcomes’
(2009) 33(3) Melbourne University Law Review 865–885. On litigation neurosis, see F. Campbell,
‘Litigation Neurosis: Pathological responses or rational subversion’ (2006) 26(1) Disability Studies
Quarterly, available at http://dsq-sds.org/article/view/655/832 (accessed 5 April 2014).
27
See Mr R. Clark, Attorney-General, ‘Second Reading Speech Vexatious Proceedings Bill Bill’ in
Parliamentary Debates (Hansard) (Parliament of Victoria, Melbourne, 2014), 371, available at
http://www.parliament.vic.gov.au/images/stories/daily-
hansard/Assembly_2014/Assembly_Daily_Extract_Wednesday_19_February_2014_from_Book_2.pdf.
28
See Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2007] FCA 1069 at [44]; Ramsey v Skyring
(1999) 164 ALR 378 at [51]. See also Soden v Kowalski [2011] FCA 318 “For practical purposes, the test
of whether a proceeding is vexatious is whether it is, in Roden J’s words, “so obviously untenable or
manifestly groundless as to be utterly hopeless”.”
The dimensions of the issue are difficult to determine; however, the same UK
Research Report noted that such litigants could be described as ‘difficult’ and/or
obsessive and that ‘vexatious’ was not a term that could be usefully applied:
There are three main species of behaviour which, although not
uncommonly found in the same litigant, can individually or collectively
lead to the judgment that a litigant is difficult or obsessive:
• The making of far fetched or totally meritless claims;
• The making of repeated claims (or applications within cases)
of a similar type and/or against the same or similar litigants
(re litigation or harassment of individuals);
• Behaving in an abusive and/or uncooperative manner.
29
Bhamjee v Forsdick (No 1) [2003] EWCA Civ 799.
30
Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113.
31
See R. Moorhead and M. Sefton, Litigants in person. Unrepresented litigants in first instance proceedings
(Department for Constitutional Affairs Research Series 2/05, England & Wales), 2005), available at
http://www.familieslink.co.uk/download/july07/DCA%20view%20of%20LIPs.pdf (accessed 19 March
2014)).
Vexatious litigant is a term of legal art and for that reason we avoid
using the term here, though such litigants usually have to have indulged
repeatedly in the inappropriate issuing of claims or applications.
Within the legal system, principles of fairness, legitimacy and efficiency require that
court and tribunal processes are conducted fairly, and many judicial officers indicate
that this minority group of SRLs makes it difficult to conduct processes in these cases,
in a fair manner. It has been suggested that the Australian legal system itself is ill-
equipped to deal with SRLs and is an alienating environment for many. This literature
suggests that much of the Australian litigation system is based on professionalism,
and many SRLs could find themselves at a disadvantage to adequately understand
court procedures, rules of court, the language of the law and to represent their cases
in court. 32
It remains unclear what proportion of SRLs are disadvantaged because the legal
system is poorly designed to accommodate SRLs or whether the difficulties arise as a
result of the attributes of the litigants themselves. 33 For example, as previously noted,
there is proportion of SRLs who successfully navigate the court system relying on their
own resources. A further group may do quite well with only minimal coordination and
navigation assistance from the court. However either explanation may hide a smaller
group that distorts the system to the detriment of those whom they oppose in court
actions and consumes more court time and more resources. In Canada, this small
group has been called ’celebrity’ SRLs 34 –They may often be the focus of judicial and
court concern although they may represent only a tiny proportion of the SRL
population.
32
D. Webb, ‘The right not to have a lawyer’ (2007) 16 Journal of Judicial Administration 165–178.
33
Lord Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in
England and Wales (HMSO, London, June 1995), 119; D. Webb, ‘The right not to have a lawyer’ (2007) 16
Journal of Judicial Administration 165–178.
34
J. MacFarlane, ‘Self-Represented Litigants in Family Law’, Paper presented at ABA Conference, Miami,
3 April 2014.
35
See E. Richardson, Self-represented parties: A trial management guide for the judiciary (County Court
of Victoria, Melbourne, 2004). Case duration is likely to be longer in most cases where the SRL is
‘difficult and/ or obsessive and this is the most reported impact on the judiciary. Where the SRL is
inactive, cases may be shorter than average. However, a just outcome does not seem to be related to
SRL activity.
36
See M. Flaherty, ‘Self-litigants and Represented Litigants: A Sea Change in Adjudication’, in P. Oliver
and G. Mayeda (eds), Principles and Pragmatism: Essays in Honour of Louise Charron (LexisNexis, 2014),
Ottawa Faculty of Law Working Paper No. 2013-07 (October 2013), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2348708 (accessed on 19 March 2014).
37
R. Hunter, Family Law Case Profiles, (Justice Research Centre, Law Foundation of New South Wales,
Sydney, June 1999.).
38
Family Law Council, Litigants in Person: A Report to the Attorney-General (Family Law Council,
Canberra, August 2000); Law Council of Australia, Erosion of Legal Representation in the Australian
Justice System Research Report (February 2004).
39
Family Law Council, Litigants in Person: A Report to the Attorney-General (Family Law Council,
Canberra, August 2000).
40
Law Council of Australia, Erosion of Legal Representation in the Australian Justice System Research
Report (February 2004).
41
Family Law Council, Litigants in Person: A Report to the Attorney-General (Family Law Council,
Canberra, August 2000). Note Court staff may inadvertently extend time for further lodgements without
understanding the cost implications or the previous record of the applicant.
42
Law Council of Australia, Erosion of Legal Representation in the Australian Justice System Research
Report (February 2004).
43
J. Dewar, B. Smith and C. Banks, Litigants in Person in the Family Court of Australia – Research Report
No 20 (Family Court of Australia, Canberra, 2000).
44
Videos and supportive documentation relating to techniques used in court through the
Neighbourhood Justice Centre initiatives area available at
http://www.civiljustice.info/do/search/?q=NJC&start=0&context=2785725 (accessed 4 April 2014).are
available at http://www.neighbourhoodjustice.vic.gov.au/. See also http://www.civiljustice.info/njc/
(accessed 8 April 2014).
45
See B. Eddy, High conflict people in legal disputes (HCI Press, 2009.).
46
PaulP. E. Mullen and GrantG. Lester, ‘Vexatious Litigants andUnusually PersistentComplainantsand
Unusually Persistent Complainants and Petitioners: From Querulous ParanoiatoParanoia to Querulous
BehaviourBehav.Behaviour’ (2006) 24 Behav. Sci. Law 333–349.
47
K. A. Beijersbergen, A. J. Dirkzwager, V. I. Eichelsheim, P. H. van der Laan and P.
Nieuwbeerta, (accessed 5 April 2014)Procedural justice and prisoners’ mental health problems:
A longitudinal study (2013) Crim Behav Ment Health, available at
https://www.ncbi.nlm.nih.gov/pubmed/24009140 (accessed 5 April 2014).
48
See H. W. Wales, V. A. Hiday and B. Ray, ‘Procedural justice and the mental health court judge’s role in
reducing recidivism’ (2010) International Journal of Law and Psychiatry, available at
http://dx.doi.org/10.1016/j.ijlp.2010.06.009. See also http://big.assets.huffingtonpost.com/gtown.pdf.
51
See T. Sourdin and A. Zariski (eds), The Multi-Tasking Judge (Thomson Reuters, Sydney. 2013) and in
particular Chapters 2, 3 and 4.
49
See T Sourdin and A Zariski (eds), The Multi Tasking Judge (2013, Thomson Reuters) and in particular
Chapters 2, 3 and 4.
50
See B. Eddy, High conflict people in legal disputes, (HCI Press, 2009.).
51
Justice E. Kyrou, ‘Litigants in Person’, Paper presented at the Managing People in Court Conference,
National judicial College, Canberra, 10 February 2013, available at http://njca.com.au/wp-
content/uploads/2013/07/Justice-Kyrou-.pdf.
Conclusion
The challenges posed by SRLs have resulted in numerous programming and policy
responses within Australian courts at both the state and federal levels. These
responses include increased assistance and written information for SRLs (for example,
the outreach services provided at the Administrative Appeals Tribunal), development
of self-help services (including internet-based resources, online and off-line videos),
legal advice services, 55 education specifically targeting at judicial skills, 53 bench books
for judicial officers and the commissioning of a small number of studies on the impact
of SRLs. 54 Legal aid funding has been supported for certain types of hearings, 55 and
pro bono service support is also a feature of some courts and tribunals and supported
by legal clinic work.
Many court and tribunal services have been adapted to support SRLs and some
tribunals and courts increasingly cater to this group of litigants. However despite this
work, it is clear that some SRLs are not supported adequately and require more
support if they are to pursue legal rights. In addition, some SRLs may be treated
differently from other represented litigants and this may not necessarily be
advantageous or helpful. For example, although many matters involving SRLs are
resolved prior to hearing, it is not known how many settle with the assistance of an
ADR process and whether cases involving SRLs may settle ‘later’ because ADR is not
always available for this cohort. In some courts and tribunals, SRLs are specifically
excluded from ADR programs.
52
Justice E. Kyrou, ‘Litigants in Person’, Paper presented at the Managing People in Court Conference,
National judicial College, Canberra, 10 February 2013, 47, available at http://njca.com.au/wp-
content/uploads/2013/07/Justice-Kyrou-.pdf.
55
An example is the Self-Representation Civil Law Service (SRCLS) in Queensland. The SRCLS is modelled
on the Citizens Advice Bureau, which operates in the Royal Courts of Justice in London.
53
As with the Judicial College of Victoria from 2011 to 2014.
54
The extent to which these various initiatives have assisted SRLs or courts in dealing with SRLs is not
known: see, for example, Victorian Law Reform Commission, Civil Justice Review: Report (Victorian Law
Reform Commission, Melbourne, 2008), 564, regarding a discussion on the impact on pro-bono schemes.
See also M. Dye, An Evaluation of Services for Self-Represented Litigants in the Federal Magistrate’s
Court (Federal Magistrate’s Court of Australia, Canberra, October 2004) for a discussion of the various
materials and services provided to SRLs and whether SRLs found them helpful.
55
Family Court of Australia, Self-represented litigants: A challenge – Project Report December 2000–
December 2002 (Family Court of Australia, 2003).