This essay examines the real take on and virtual view on Self represented litigants in the Victorian Law justice system. For what was observed first hand by myself in various Courts.
This paper also acknowledges by research and observation the growing number of self-represented litigants and the impact that development is having on legal service providers and the administration of justice generally. It discusses the reasons why persons become self-represented, the difficulties they may face and the issues they may cause Below is a table summarizing my court visit. REQUIREMENTS COURT VISIT 1 COURT VISIT 2 DATE AND TIME OF VISIT NAME AND TITLE OF JUDGE/MAGISTRATE TYPE OF PROCEEDING DETAILS OF LEGAL REPRESENTATION OBSERVATION ON FOMALITY OF PROCEEDING From the above cases, it is observed that SRL form they own view of the appropriate role of adjudicators and whether those adjudicators are fairly considering the case. At times the views formulated do fit awkwardly within the legal paradigm. As a result, the disparity between how the law defines the role of the adjudicator, however ambiguously, and how some self-represented litigants view that role can lead to a host of issues, including fairness concerns, bias allegations, and hearing management problems. In light of the growing numbers of SRL and recent trends towards more active adjudicators, these issues and views formed are particularly important. In 2000 The family law council observed various possible explanations for increase in SRL, and noted that no single reason could be identified.
However, remains at the top, is changes to legal aid funding and inability to afford a lawyer were recognized as the main reasons for being unrepresented. No conclusive data’s are available to determine why there are so many SRL flooding the judicial system.1 Some of those submissions acknowledged, however, that certain individuals may choose not to be represented, for reasons Such as :Many cannot afford representation, do not qualify for legal aid or do not know they are eligible for legal aid, and are litigants in matters which do not admit contingency or speculative fee arrangements. They may believe that they are capable of running the case without a lawyer, may distrust lawyers, or decide to continue unrepresented despite legal advice that they cannot win.2 Some litigants choose to represent themselves.
It is observed in the above court visits and in this research, that most Victorian court system, recently has observed a influx of SRL and now it has been seen as a norm, and in the hope of making administrative justice SRL is being given a lot of support by the courts, in some instances, decision makers directs SRL’s in propelling they matter to come to a fair judgement. This was observed in particular in the above case, by Magistrate Bourke, at the Magistrate Court Melbourne, who in passing any decision was very particular, he asked relevant questions directly to SRL about they work status, in reference tunderstanding the accused character and fine paying capability, whether the accused has dependents that may be directly or indirectly impacted by the decision. However, he in particular was not swayed or created any biasness. He looked equally into summary charge sheets, whether the charges were proven or not. In the case of Mr. Waymouth, the judge knew the accused personally. He delighted in recalling the accused father as his childhood Footy Umpire and court personally relate to how the accused may have been impacted by his father’s death that has made him to commit several offenses including this traffic offense that had bought him to court.
The accused was not only SRL he also was a known member to the judge. This made the case very interesting as to how the magistrate would pass the sentence. In this case the SRL was not asked to stand up when the decision was being made, whereas others represented and or unrepresented defendants stood up. It is part of the Magistrate court procedure that the accuse stands up as decision are being passed down. Although there was a great level of leniency in the way the matter was dealt, a little informal as it was. The decision was as strict as those passed on to others with similar traffic offenses. Similarly the Magistrate spoke with compassion to all defendents , represented or not .
To whom he felt had a chance of turning around and not repeating his/her offense. For a number of administrative courts, self-representation is the norm. In the hopes of making administrative justice more accessible for these litigants, many courts have been reconsidering how they operate, and this can include rethinking the role of the adjudicator. In this piece, I argue that active adjudication is an important tool to promote both fairness and efficiency in administrative justice. However, as the role of the adjudicator shifts, so too must our understanding of the notion of impartiality. As the adjudicative model adjusts to meet the needs of increasing numbers of self-represented litigants, the legal boundaries that define the adjudicator’s role must adjust commensurately. In a number of COURTS, the adjudicative model has begun to shift from a more traditional, passive approach to one in which decision-makers more actively adjudicate cases and direct the course of the proceedings. As seen in Jayshan Singhs Case, The mother was a SRL, she clearly was oblivious to the court proceedings and how and what was required off her.
She came with the pre-notion that what proceeded in the past few appearances at the family court is exactly what it will be. However, the Family court shifts its course of proceeding based on the relevance of the matter. Example, if it is a breach order application, or Intrim accomodation order changes such as holiday. Mention and or direction hearing.
This case was towards the final stage of the matter. It was to run through a 5 day contested hearing, which to the surprise of all parties, Judge Zelmk propelled the case to a final concilliation. This was in favor of the SRL as she was waiting for her legal aid to be approve and running a contested without representation would have been extremely detrimental in her case. Weather it was biasness of court procedure or not can not be identified.
As all parties were happy to attend a final conciliation too. In speaking with the SRL, she told me that being a SRL is difficult as the Judge can be bias and or uncooperative at times in spite of SRL vocalizing that she is not sure what is required off her and felt she was victimized for this. This supports the fact that “Self representation is almost inevitably associated with parties who have poor knowledge of the substantive and procedural law. In disputes involving children, where the parties must present their cases in terms which best promote children’s best interests recent research indicates that self-represented litigants find this difficult to do.3 On the other hand she noted that the judge sometimes did kindly explain to her what the court processes are and how it is to run. It is seen that both court’s encouraged conferences among parties to reach an agreement to resolve the matter earlier. This is seen more in the magistrates court and children’s court as it encourages parties to settle they matters out of court proceeding , the magistrate directed the four parties to come to a resolution rather run a expensive contested hearing that was ready and scheduled. This was in favor of the SRL and to finalize the matter as this had ran for nearly 9 months and as part of the case the child was taken for reunification within 12 months with parents.
in this case and in many instances, this shift arises out of recognition that, without some assistance and direction from the adjudicator, many self-represented parties cannot meaningfully access the justice system. However, engaging in more active and directive styles of adjudication is not without pitfalls. Adjudicators must walk a very fine line. The jurisprudence tells that although decision makers assist parties so that they can access the legal process, they must not help (or be perceived to help) them too much. Decisions are overturned both because a decision-maker has failed to provide a sufficient level of assistance and because the decision-maker has provided a level of assistance that gives rise to a reasonable apprehension of bias. The challenge is to find the sweet spot that lies between enough help to ensure meaningful access to adjudication but not so much help as to create a reasonable apprehension of bias.
As we shall see in the jurisprudence, adjudicators sometimes struggle as they apply legal principles to define their role. Not surprisingly, understanding the role of the adjudicator presents even more of a challenge for the self-represented litigant, for whom the applicable principles can seem both legalistic, but also flexible to the point of arbitrariness. This paper continues to foretell the shift in adjudicative approach and setting out recent developments that have led adjudicators to play a more active role in shaping the hearing process and assisting self-represented litigants. Next, I consider the challenge of defining the scope and content of the impartiality obligations in light of these new approaches to adjudication. Finally, I look at the jurisprudential treatment of bias applications by self-represented litigants and consider whether any trends emerge from this jurisprudence, both in terms of what self-represented litigants perceive to be partial treatment by adjudicators and how these concerns can be addressed. It is often argued that self-represented litigants adversely affect access to justice this is due to increasing the costs of litigation and impairing the efficient and effective administration of justice.
For example, the National Council of Single Mothers and their Children Inc cited 1999 Family Court research which reported views amongst judges, judicial registrars and registrars that: 81 percent of the self-represented litigants would have benefited from representation; 75 percent of represented litigants would have benefited by the other party being represented; and 80 percent of child interest cases would have benefited from representation.4 The Federal Court reported that unrepresented parties ‘often take more time to present their appeal than those who are represented’.5 The High Court has recently estimated ‘around 50 per cent of the time of the Registry staff is taken up with self-represented litigants’.6 Submissions to the Committee echoed these views, arguing that self-represented litigants lack of awareness of their rights and emotional attachment to their case can lead to them not enforcing their rights,7 taking inappropriate action697 or pursuing unnecessary litigation.
698 In many cases, clients really cannot properly put their submissions before the court without assistance from a lawyer due to language, comprehension and fear of the court system.8 The adversarial process relies on competing litigants informing the decision-maker of all relevant facts and arguments. As the Kingsford Legal Centre observed: This means that persons facing the courts on lesser offences are often unrepresented, poorly represented by themselves or plead guilty to put an end to the matter whether they consider themselves innocent or guilty. The consequences often are; the increasing criminalisation of the disadvantaged possible receipt of a financially burdening heavy fine unnecessary social and family stresses stigma associated with a prior record loss of a just outcome through technicalities such as improper documentation loss of employment loss of good character and standing loss of self esteem through failure to understand legal and judicial requirements disempowerment due to unfamiliar legalisms.
9 In Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs 2014 FCAFC 61 (Arifin), the unrepresented appellant failed to comply with rule 36.01(2)(c) of the Federal Court Rules 2011, which required him to state “briefly but specifically, the ground relied on in support of the appeal”.10 Whilst Arifin serves as a reminder that the rules of the court should be equally binding on all parties irrespective of whether or not they have legal representation, the Full Court of the Federal Court in SZRUR v Minister for Immigration and Border Protection2013 FCAFC 146 (SZRUR) confirmed that the courts have an overriding duty to ensure that a trial is conducted fairly and in accordance with the law.11 The way courts cana minimise the the adverse effects that self-represented litigants have on the justice system are foremost re-prioritising and targeting legal aid funding and increased use of pro bono schemes .
Other suggestions are: improving community information; expanding the duty solicitor scheme; unbundling legal services; increasing the use of lay assistance; and initiatives by the courts.