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Nicholson, Robert --- "Can Courts Cope With Self-Represented Litigants? Visiting Judicial Fellow Public Lecture, September 2003" [2005] FlinJlLawRfm 7; (2005) 8(2) The Flinders Journal of Law Reform 139


‘CAN COURTS COPE WITH SELF-REPRESENTED LITIGANTS?’[*]

THE HON JUSTICE ROBERT NICHOLSON AO[†]

It is a great pleasure to be here under the auspices of the Federal Court Visiting Judicial Fellow Program and to deliver this public lecture. Lest those who might otherwise be attending the lecture in Lawyering, Procedures and Ethics think that this is a free period, I am very pleased that it has been announced that the subject of the lecture is examinable and ties in with the ethics dimension of the course.

What is proposed is to look at the subject of whether courts can cope with self-represented litigants on the presupposition that the issue is a very modern and important topic of a public nature in the law and for the operation of courts.

I VIEWS OF THE COURTS

Firstly, the examination commences by taking you to what the courts themselves have identified as the nature of the issue. I have avoided the word ‘problem’ for reasons which I will highlight later on.

In South Australia the Annual Reports of the Supreme and District Courts have not drawn particular attention to the issue although they have referred to the fact that there has been established a Community Relations Committee under the chair of Judge Christine Trenordin of the District Court to review services for self-represented litigants.[1]

In Queensland, the Supreme Court Annual Report in 2000/2001 stated that the number of unrepresented litigants has remained proportionately significant. In civil appeals it has increased so that they now represent approximately 29 per cent of all civil litigants before the Court of Appeal. This is significantly higher than in civil matters before the trial division. A matter involving an unrepresented litigant tends to take longer to hear and determine because often the standard of preparation is poor and the litigants are unable to clearly articulate the real points of the case. In addition, the outlines of argument are often filed late and are not served.[2]

In the annual review of Western Australian courts in 2001 it was said by the Chief Justice that the Family Court of Western Australia continued to operate under considerable pressure exacerbated by the ever increasing number of litigants who, for one reason or another, represented themselves without the benefit of legal advice.

In the Supreme Court of Victoria in 2000 it was said there was increasing but unquantified incidents in recent years of parties appearing unrepresented in civil cases. This reflected, it was suggested, the fact that legal aid funding for civil cases was notoriously limited. It was stated that a trial in which a party is unrepresented by counsel is likely to last longer and be more expensive.[3]

In the Federal Court of Australia in the 2001/2002 Annual Report it was pointed out that a committee of the Court had been established to give detailed consideration to the issues raised by the increasing number of self-represented litigants in the Court.[4] This is particularly to be understood in the context where the migration jurisdiction has resulted in appeals from Refugee Review Tribunal decisions from many people seeking to be refugees who do not speak the primary language of the country or the Court and who do not have the benefit of legal assistance.

The statement which sums it all up and shows the significance of the issue, is that which the High Court set out in its Annual Report for 2001-2002.[5] There it was stated self-represented litigants present special difficulties for the High Court. The number of self-represented litigants filing applications for special leave to appeal increased from 33 per cent of all applications filed in 2000-2001 to 40 per cent in the reporting year. Similarly, the percentage of single justice hearings involving self-represented litigants increased from 19 per cent in the previous year to 31 per cent during the reporting year 2001-2002. It was estimated that more than 50 per cent of the time of the Registry staff is taken up with self-represented litigants. The overwhelming majority of the applications for special leave were said to have no demonstrated factual or legal merit and did not qualify for a grant of special leave. It was said no other comparable final court of appeal is obliged to devote so much time of its members to so many proceedings with such small prospects of success.

As the Report pointed out, there is very little disincentive for self-represented litigants to bring hopeless cases to the court. They do not have to pay fees. They have very few assets. They may have a pensioner concession card or a health benefit card or they may have been an inmate of a prison or otherwise lawfully detained, entitling them to fee waivers so that the risks of a costs order are not meaningful to them and do not act as a deterrent in the event of a hopeless case.

There is also, said the Report, the issue of delay in the respondent gaining the benefit of the judgment in the court below which is an impact in costs terms for the other party.

The Report went on to say that it is estimated that around 50 per cent of the time of the registry staff throughout Australia is taken up with dealing with self-represented litigants. It was said that very often this is a stressful experience for the staff as there is a growing trend for self-represented litigants to be very abusive and intimidating and sometimes intoxicated. Another new trend noted in recent years is for self-represented litigants who are dissatisfied with either the processes of the court or the decisions of the court to commence criminal or civil legal proceedings in other courts against registry staff and/or justices of the court. These brought with them associated legal costs of the court with no realistic prospect of recovery.

The Report concluded by stating that this growing ‘problem’ cannot be left unchecked and that the challenge for the future will be to contain or solve ‘the problem’ without adverse implications for access to justice.

Those are the words of the courts at the highest levels. There is felt a difficulty in the courts concerning self-represented litigants so it is fair enough to ask ‘can courts cope with the issue’?

The causes of the increase in self-represented litigants are not simple. The diminution of legal aid is one suggested cause. Another one may well be the nature of a particular jurisdiction, for example, the migration jurisdiction. There are less obvious factors. One may be an increased level of public awareness of legal rights and perhaps a view held by people as a result of rising education and awareness of legal rights that maybe, if they can hang on in there, get past courts such as the Supreme Court of South Australia, the Federal Court of Australia and take their cause up to the High Court, someone is going to recognise the justice of their case. On occasion this has occurred and so self-represented litigants are not necessarily discouraged by failure at the lower levels.

II DILEMMA IN PRINCIPLE

There is a conflict in fundamental principle for the legal system in this scenario. It is very important to remember that self-representation is, in fact, a right.

The statutory and rule making environments of the courts recognise the rights of parties to appear personally,[6] other than in relation to a corporation which appears through a solicitor.[7] With that exception people are entitled to represent themselves before courts in their litigation. The right being so recognised it must be asked why does the exercise of that right become regarded as a ‘problem’?

It is because of another fundamental principle which is in conflict with it. The system of adversarial litigation is built on duties owed by members of the legal profession to the court in the way they conduct themselves and the litigation for which they are responsible. These duties are fundamental. It would be utterly impossible for a judge running a court to investigate matters necessary to have litigation properly determined. The court is entirely dependent on an army of legal practitioners acting professionally in accordance with the duties. A solicitor also has a duty of honesty to the court. The barrister has such a duty to the court so that when a barrister says something to a judge in court, the judge can rely on that. The duties are duties of disclosure to the court, of avoidance of abuse of the court process, to not corrupt the administration of justice and to conduct cases efficiently and expeditiously. They require the presence of very high levels of professionalism and are the foundation of the way our court system is able to operate.

The conflict arises because the moment a self-represented person appears, that person is necessarily someone unqualified in the law and therefore not subject to any duties applicable to a solicitor or barrister. So there is a vacuum in the system. That has the consequence that the exercise of the right of self-representation, if it occurs extensively, has a very significant impact on the court system. It means the courts where that occurs are operating without the benefit of the duties that govern the exercise and function of what solicitors and barristers do. It is more than just the judge lacking the benefit of such duties; it is the other parties in the case who also do not have benefit of working with someone who is professionally trained and subject to those duties. Additionally the staff of the court also experience impacts from the presence of the self-represented litigant.

However, we must not lose sight of the fact that a self-represented litigant has a right to come to the court. So the real dilemma is, how can courts deal with self-represented litigants as the numbers grow and they increasingly impact on the courts and all those involved in them.

Justice Davies of the Court of Appeal in Queensland has said that ‘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’.[8] In his opinion ‘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’.[9]

They reflect the words of Chief Justice Mason in Cachia v Hanes[10] where he said ‘the right of a [self-represented litigant] to appear in person is fundamental, it would be disregarding the obvious to fail to recognize that the presence of [self-represented litigants] in increasing numbers is creating a problem for the courts.’ In Neil v Nott, the High Court said that ‘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’.[11]

III COURT INITIATIVES

Courts have taken a number of initiatives by way of response to the developments to endeavour to strike the balance between the principles which I have outlined in the context of the impact of appearances by self-represented litigants.

A Judicial Delineation

The first step is that there has been for some years, judicial delineation of the court’s responsibilities of all involved in the curial process where self-represented litigants are parties.

It is not just to the self-represented litigants that the responsibilities require definition. It is important that the court is not so busy assisting the self-represented litigant that there is an imbalance in relation to the other party who might be paying a practitioner and who would feel unfairly treated if the court puts all of the energy of the court towards helping the self-represented litigant. It is very important for judges and the court staff not to lose the perception of impartiality. It is on that foundation that public confidence in the courts rests.

A related issue which arises is to what extent the counsel acting for the other party has a duty to assist the court and to assist the unrepresented party. There is no bright line that can be laid down. The principles are, however, that the advice and assistance which the self-represented litigant receives from the court should be limited to that which is necessary to diminish, as far as possible, the disadvantage which he or she will ordinarily suffer but without thereby conferring a positive advantage over the representative opponent and without disobedience to the applicable rules.[12] What is important is that the court should be careful that there is not a failure to claim rights or an extinguishment of a possible claim.[13] That means the judge is always to be on alert that somewhere in this case of the self-represented litigant there may be the seed of truth that needs exposure and may support a successful claim. Judges go to great lengths to hear self-represented litigants out in order to give them the chance of exposing what might be a real basis of a claim. The limits on how far the court can go in doing that, however, derive, of course, from the need to avoid compromise of impartiality or the appearance of partiality.[14]

The Family Court of Australia has laid down a set of principles in this respect. In the Full Court of that Court in the case of In the Marriage of F[15] the Family Court laid down nine principles. They are that a judge must in the case of a self-represented litigant be sure to provide procedural fairness. Secondly, the judge should inform the self-represented litigant of the manner in which the trial is to proceed and make them at home in it. Thirdly, the judge should explain any procedures relevant to that litigation. Fourthly, the judge should assist the self-represented litigant by taking basic information from witnesses. Fifthly, the judge should explain the effect and perhaps the undesirability of the interposition of witnesses that might be proposed. Sixthly, the judge is required to advise them of any right to object to inadmissible evidence. Seventhly, the judge must advise the self-represented litigant that it is open to them to make this claim of privilege. Eighthly, the judge should consider whether to clarify the substance of the submissions, restate them and ask ‘is this really what you are arguing?’ ‘Is this the way you want to put it?’ Ninthly, the judge should draw attention to the law, question witnesses, identify applications or submissions which ought to be put to the court and so on.[16] The hazards that a judge faces in doing that are apparent as in the need for any judge to proceed in a careful way in order to ensure that while the case of the self-represented litigant can be assisted and brought out, it has not become an exercise in bias towards a self-represented litigant.

In criminal proceedings it is even more difficult because there is a jury present. In McPherson v R[17] in the High Court Chief Justice Gibbs and Justice Wilson said there is no limited category of matters regarding which a judge must advise an unrepresented accused and in Dietrich v The Queen,[18] Justice Deane referred to limitations to the operation of the fairness principle in stating that ‘while the prosecution has a duty to act fairly, and part of the function of the 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 [or her] case is to be properly presented’. Those delineations are an attempt by courts themselves to give guidance for the way these matters should be approached.

B Examination of Public Contact

The second step the courts have taken is to look at the way they deal with the public generally. In 1994 the Access to Justice Advisory Committee made recommendations for an action plan for reform of the justice system based around principles of equality of access, national equity and equality before the law.[19]

In 1998 the Australian Institute of Judicial Administration (‘AIJA’) published a report on the ‘Courts and the Public’ (‘the Parker Report’). It initially received some bad press but ultimately was a best seller. Subsequently, all the recommendations in it have been worked through by court administrators and very highly implemented where appropriate in courts at all levels across Australia. In that Report the point was made that statistical data about self-represented litigants was very hard to come by. A recommendation consequently was that there should be a self-represented litigants plan in each court so that courts not only try to deal with self-represented litigants but prepare a policy document to guide them as to how to do this on an ongoing basis.[20]

In 2000 the Australian Law Reform Commission reviewed the federal civil justice system and recommended that annual reports of courts and tribunals should publish data on the number of unrepresented parties. It said that in gathering such data they should develop a standard definition of ‘unrepresented party’ and information on case outcomes and case duration in matters where there is an unrepresented party.[21] In the case of the Family Court it was recommended consideration be given to simplified procedures including regard to the needs of unrepresented parties.[22] So there is a public wish to find out what is happening about unrepresented litigants when previously that information has not been available.[23]

In 1999 the Western Australian Law Reform Commission also recommended data collection to profile litigants, training and information to assist in even-handed dealing with self-represented litigants, a special case management track for managing them and a range of advice and assistance schemes.[24]

C Development of Self-Represented Litigants Management Plans

The third action taken by courts to address the issue of self-represented litigants has been the development of the management plans to which reference has been made. The AIJA took the recommendations of the Parker Report further and in 2001 issued a document entitled ‘Litigants in Person Management Plans: Issues for Courts and Tribunals’. It was said the management plan was not designed to eliminate all issues or problems to deal with self-represented litigants but it was intended to prevent small problems from becoming larger problems.[25] The AIJA document identified issues arising in relation to self-represented litigants including legal issues, the issue of access to data, the questions of representation and information strategies to tell self-represented litigants how the court functioned and what it was about.

In the Federal Court of Australia a committee has been established to prepare a management plan. The judges have resolved that (1) there should be an improved collection of data; (2) consideration should be given to the conditions under which fees are successively waived for self-represented litigants; (3) examination should be made of expedition of matters involving vexatious or obsessive litigants; (4) the case management system should accommodate data appropriate to the presence of self-represented litigants; and (5) that national user groups should be consulted in relation to the information needs of their members.[26]

D Addressing Staff Impacts

The fourth step taken by courts relates to the staff impacts of self-represented litigants. The current consideration about the impact of self-represented litigants, in addition to exposing the need for data had the consequence of exposing the enormous burden borne by staff in relation to self-represented litigants. That was not recognised some years ago. It was then thought judges bore the burden of the impact of self-represented litigants. Nowadays that impact is looked at in the context of the court as a whole. The AIJA Report identified particular problems in relation to staff as including lodgement of irrelevant material by self-represented litigants; a failure to understand procedural issues or follow advice in relation to them; a failure to understand the distinction between legal advice and advice on procedure; and stress on court staff, sometimes resulting from aggression and abuse. Training of staff in the management of difficult situations is envisaged in the management plan approved in the Federal Court and other courts.

One of the most difficult things that occurs in relation to self-represented litigants and their failure to follow guidance on procedural issues is that when self-represented litigants come to court, they think they have to take every step that is open under the rules of court. So instead of pursuing the main issues, they keep taking interlocutory steps because they see other people taking them. They do not understand the consequence of those steps and so become entangled in litigation. The difficulty is that even where a judge can see where the case should be taken to ventilate what is concerning the heart and mind of the self-represented litigant, he or she is foreclosed from stopping the interlocutory proceeding unless it fails at law.

E Collection of Data

The fifth step that courts have taken is to move on the data question. One of the difficulties in collection of such data is that a party may start a case unrepresented, may then attract some representation, may then become unrepresented again and so on, so that the system needs to accommodate changes. The proceeding may move in and out of the self-represented litigant category.

F Project Studies

The sixth step is the initiation of a particular project that focuses on self represented litigants. The outstanding example is a project initiated by the Family Court of Australia. That was the first court in recent years to recognise the new impact self-represented litigants are having on the work of the court. Through a committee involving judges and others, some novel thinking on the requirements of the court in relation to self-represented litigants has occurred. That has included the simplification of forms and procedures and the provision of kits and information sessions.[27] The Family Court’s website has been developed with the needs of self-represented litigants in mind. There is a permanent and significant user group with an interest in the issues of self-represented litigants.[28] The ‘short-term’ activities which were undertaken by the Court included reviewing all their publications to see whether they were communicative to self-represented litigants, to persons unskilled in the law; the establishment of a more integrated and coordinated approach to support programs; and the review of court processes and procedures for clarity. Another thing the Family Court did was to review the use of package material and touch screens. It established national protocols and guidelines. It developed internal and external communication campaigns to staff, clients and stakeholders and revised Rules of Court for fairness, clarity and comprehension. Its ‘long-term’ activities identified were regular contact with stakeholders, development of a framework for future evolution and development of evaluation plans for all activities against qualitative and quantitative performance indicators. Performance indicators for courts are very difficult and sensitive matters. The achievement of justice is not just a performance indicator requirement. It requires the proper balance of hearing evidence and determination according to law. So that the quickest determination according to some performance indicator will not necessarily be the just outcome and that is why the application of such measures to a judicial area is exceptionally difficult.

G Control of Meritless Litigants

The seventh initiative taken by courts is to endeavour to better control what are called meritless litigants. The difficulty is that the law relating to vexatious litigants had not proved useful to adequately controlling the initiation of such proceedings.

Recently in the Court of Appeal in England in a case of Bhamjee v Forsdick looked at the problem of meritless litigants that is, people who bring applications or actions, as the Court of Appeal said, ‘totally devoid of merit’.[29] The judges of that Court gave guidance on how such proceedings should be dealt with. Their views appear to be stronger than anything presently done in that respect in Australia.

The Court of Appeal stated eight propositions. The first was that if a court considers that a claim is totally devoid of merit, it should say so. Secondly, there should be a record kept of all orders made to remove such matters. Thirdly, procedural judges should be on the alert to identify meritless cases. Fourthly, a judge at any level of court should consider whether to make a civil restraint order if a litigant makes a number of vexatious applications in a single set or proceedings all of which have been dismissed as totally devoid of merit. Fifthly, if the litigant exhibits the hallmarks of persistently vexatious behaviour, the court should consider whether to make an extended civil restraint order that is far reaching. Sixthly, if an extended civil restraint order is found not to provide the necessary kerb, the court should consider whether the time has come to make a general civil restraint order. Seventhly, if the litigant who is subjected to an extended civil restraint order or a general restraint order continues to make applications which are devoid of merit, the court should consider whether it is appropriate to make any subsequent refusals of permission final, that is, to block them out of the court system. Eighthly, the other parties to the litigation may apply for any of these restraint orders and the court should make an order that is proportionate to the mischief complained of.

H Unbundling of Legal Services

The eighth step which courts have considered to properly address the impact of self-represented litigants is what is now called the unbundling of legal services. That breaks down what a case is about into its sequential parts. For instance, legal assistance paid or unpaid may be obtained to have a litigant bring in the claim in proper form. Alternatively, if the nature of the claim is clear, a lawyer may be called in for a pre-hearing procedural appearance or to prepare documents or assist with alternative dispute resolution or for the hearing itself.

Unfortunately, a judge having unbundled the legal services does not have access to any means of getting a lawyer, there is no fund in the court budget. Parliament does not give to the federal or state courts a budget item out of which a judge can engage a lawyer to assist the court. The Court is entirely dependent on the availability of pro bono services where the litigant is unable to afford legal representation and legal aid is unavailable.

Tribute should here be paid to all the pro bono lawyer schemes that operate throughout Australia and help courts at federal and state levels with self-represented litigants. Their assistance has become very obvious in relation to the migration jurisdiction in the Federal Court but it is equally important in other jurisdictions. Some of those pro bono services come from law students and they have on occasion resulted in a successful outcome for the person for whom they were appearing.

I Lay Representation

The ninth initiative in the courts is to develop the principle of lay representation, the ‘McKenzie Friend’.[30] It has long been recognised that a person who is not a lawyer may sit in court next to an unrepresented person and make notes or suggestions and give advice. In Australia it is now recognised that principle should not operate as an inflexible bar to reasonable assistance being given to the court.[31] In the criminal jurisdiction it has also been recognised that it is within the discretion of the trial judge whether the layperson can speak.[32]

McKenzie Friends, including the law students who appear as McKenzie Friends, may be better able to assist the self-represented litigant. It may be preferable to let the McKenzie Friend state the case in a clear manner. That is more assistance to the unrepresented person, to the court and to the opposing party than having a silent McKenzie Friend.

J Clarification of Duties of Barristers

The tenth thing that has occurred is that the Bar Associations have clarified the duties of barristers where they appear in a case with self-represented litigants.

K Rethinking Adversarial Procedures

Finally, there is some futuristic planning being engaged in by the Family Court. They have produced a booklet entitled ‘Self-Represented Litigants: A Challenge’ which records that the Court has had a ‘visionary workshop’. Justice Davies put his mind to a future system that might better accommodate self-represented litigants. A scheme has been discussed that might involve a questionnaire directed to each of the parties, replacing existing initiating and subsequent documents but attempting to put the finger on what is concerning the self-represented litigant, what it is the self-represented litigant really wants to argue when they are a claimant and what they want to say when they are a defendant. It is also proposes bringing the parties together through a court officer and giving the court officer power to determine which of the witnesses will be sufficiently relevant to be called.[33]

There is another proposal. There is another proposal because, interestingly, the self-represented litigants on the Family Court visionary project team expressed the view that the sooner a judge became involved in the process and the sooner the judicial determination, the better the process would be for them. They wanted the judge, they did not want the judge kept out while the court officer, in effect, determined the procedure.[34]

IV CONCLUSION

The lecture has attempted to outline the points to which the courts, the legal profession and the public have given consideration and taken action in the context of the interaction between self-represented litigants and the Australian curial system. The issue is one of ongoing concern and importance to the legal system. The expectations of justice by non-legally trained persons who represent themselves will continue to present a challenge to the performance of the courts and to the legal system. It is one in which an interest is merited because it concerns public confidence in the courts upon which law is dependent for its successful application and operation in the community.


[*] This paper was presented as the Public Lecture for the 2003 Federal Court Visiting Judicial Fellow at Flinders University Law School on 16 September 2003. Portions of this paper draw upon earlier paper, ‘Australian Experience with Self-Represented Litigants’ (2003) 77 ALJ 820. The Editor would like to thank the Editor of the ALJ for their consent to this arrangement.

[†] Judge of the Federal Court of Australia.

[1] Advice from a judge of the Supreme Court of South Australia.

[2] Queensland Supreme Court, Annual Report (2000–2001) 20.

[3] Western Australia, Chief Justice, Annual Review of the Courts (2001) overview.

[4] Australia, Federal Court of Australia, Annual Report (2001–2002) 15.

[5] Australia, High Court of Australia, Annual Report (2001–2002) 7.

[6] For example, Federal Court Rules, Order 4 r 14(1); New South Wales Supreme Court Rules, pt 4 r 4.4.

[7] For example, Federal Court Rules, Order 9 r 1(1); New South Wales Supreme Court Rules, pt 11 r 1A.

[8] Justice Davies, ‘The Reality of Civil Justice Reform: While you must abandon the essential elements of our system’ (2003) 12 Journal of Judicial Administration 155, 168.

[9] Ibid.

[10] [1994] HCA 14; (1994) 120 ALR 385, 391.

[11] [1994] HCA 23; (1994) 121 ALR 148, 150.

[12] Rajski v Scitec Corporation Pty Ltd (Unreported, Supreme Court of New South Wales, Court of Appeal, Samuels JA, 16 June 1986).

[13] Ibid 27 per Mahoney JA; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536–37.

[14] Studer v Konig (Unreported, Supreme Court of New South Wales, McClelland CJ, 4 June 1993) in Equity.

[15] [2001] FamCA 348; [2001] 161 FLR 189.

[16] Johnson v Johnson (1997) 139 FLR 384.

[17] [1981] HCA 46; (1981) 147 CLR 512, 524.

[18] [1992] HCA 57; (1992) 177 CLR 292, 334–35.

[19] Access to Justice Advisory Committee, Access to Justice: an Action Plan (1994) xxix–xlvii.

[20] Ibid 166.

[21] Australian Law Reform Commission, Managing Justice: A Review Of The Federal Civil Justice System, Report No 89 (2000) 29[40].

[22] Ibid 37[10.3].

[23] Ibid 25[16].

[24] Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia: Final Report (1999) 154–70, recommendations 154, 199, 202, 205 and 206–12.

[25] AIJA, Litigants in Person Management Plans: Issues for Court and Tribunals, 1.

[26] Australia, Federal Court of Australia, Judges’ Meeting, Brisbane, 29–30 August 2002.

[27] Australian Law Reform Commission, Rethinking Family Law Proceedings (1997) [11.5], [11.6].

[28] http://www.familycourt.gov.au/litigants/html/brief.html.

[29] Ismail Abdullah Bhamjee v David Forsdick &Others (No 2) [2003] EWCA Civ 1113 (To be published in the All ER soon).

[30] McKenzie v McKenzie (1971) P 33 applying the principle in Collier v Hicks (1831) 2B and AD 663, 669; [1831] EngR 686; 109 ER 1290, 1292; an example of recognition appears in Galladin Pty Ltd v Ainnorth Pty Ltd [1993] SASC 3914; (1992) 60 SASR 145.

[31] McGregor-Dey v SA College of Advance Education (Unreported, Supreme Court of South Australia, Debelle J, 10 February 1994).

[32] Smith v The Queen [1985] HCA 62; (1985) 159 CLR 532, 534; Schagen (1993) 65 A Crim R 500.

[33] Family Court of Australia, Self-Represented Litigants: A Challenge, Project Report (2000–2002) 60.

[34] Ibid 62.