This report examines the delays caused by deficient pleadings by litigants in person (also known as ‘self-represented litigants’). Beginning with Ninan v St George Bank Ltd1 the research indicated the deficient pleadings are typically filed because a litigant in person lacks knowledge of procedural and substantive law, and that inefficient proceedings can result from service of deficient pleadings. The recommendations for reform address this by providing for separate and consecutive assessment of pleadings and earlier referral of litigants in person to legal assistance under the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).

Assessment of pleadings

Nina and Sporting Shooters Association v Judge2 demonstrate that premature service of pleadings can increase the resources parties must devote to proceedings. In Ninan, defences and strike-out applications from the 10 defendants were filed before the Federal Court assessed whether the statement of claim was in an acceptable form. Griffith J found that the appellant’s statement of claim was, independent of the respondents’ applications, irregular and did not comply with the Federal Court Rules 2011 (Cth).3

Similarly, in Sporting Shooters Association the plaintiff sought orders striking out the defence. McCallum J instead ordered that the statement of claim be amended. An amended claim was submitted, but the defendant failed to file a new defence. After several months her Honour examined and struck out the original defence, and subsequently struck out the second defence. At least seven months had elapsed between the original statement of claiming be filed and the second defence being struck out.

Separate and consecutive assessment of pleadings may reduce such delays. Had, in Ninan and Sporting Shooters Association, the courts examined each pleading individually prior to service, the ‘back-and-forthing’ between the parties and the court would have been reduced. The reform proposed is the insertion of rules 10.1A and 14.1A into the UCPR (see Appendix). Rule 10.1 currently requires almost instantaneous service after filing. Rules 10.1A and 14.1A would instead require the court to examine the statement of claim before service, and thus no defence(s) would need to be filed unless the claim was brought before the court in an acceptable form. This means that a claim could not progress unless the court was satisfied it met the requirements.

Pro bono referrals

The above proposal does not holistically address the root problem of deficient pleadings. Litigants in person frequently do not understand procedural and substantive law. Despite his pleadings maintaining a claim that could not be relied upon as a defence and being impossible to decipher in places, in Sporting Shooters Association Mr Judge did attempt to plead defences a competent lawyer would have been able to file in an appropriate form.4 The UCPR allows the court to refer a litigant to a pro bono lawyer if satisfied it is necessary for the administration of justice.5 McCallum J made such an order more than seven month after the first statement of claim had been filed.

The court should refer a litigant in person to a pro bono lawyer as soon as it is apparent that they are unlikely to file their pleadings in the correct form but have demonstrated a potentially pleadable claim or defence. In Sporting Shooters Association the notice of motion seeking to strike out the defence was dated 1 February 2013 and the defendant was referred to a pro bono lawyer on 11 October 2013. The proceedings have not, to the author’s knowledge, been resolved at the time of writing (April 2014). The proposed reform (see Appendix) would allow the court to make a referral under rule 7.36 during the assessment of pleadings (proposed rule 14.1A), thereby reducing the delays discussed above.

Lawyer’s duties

As officers of the court, lawyers have a legal and ethical duty to assist in conducting proceedings efficiently.6 However, as litigants in person are not officers of the court they do not inherently owe that duty and therefore do not require the same degree of care and skill when filing pleadings. The High Court has raised concerns that as a result of this, litigants in person cause litigation to be conducted less efficiently, needlessly consume court time and resources, and increase the costs for opposing parties.7

Research by the Department of Constitutional Affairs (England and Wales) contradicts this. The Department’s report suggests that civil cases between represented and unrepresented litigants do not take longer to resolve and actually have fewer ineffective hearings.8 This demonstrates an institutional bias against litigants in person.

It is also part of a lawyer’s duties to be competent9 and not to be intimidated by the rules and procedures of the court, and the often public nature of hearings.10 Litigants in person are less likely to have this capacity.11 Webb indicates that although these issues create a contrast between how a lawyer and a litigant in person conduct proceedings, it is improper to assume this is detrimental to proceedings.12

Criticism

A litigant is entitled to be self-represented.13 Webb rebuts the presumption that litigants who act for themselves do so due to financial difficulty or ignorance, drawing attention to other reasons including the dispute’s perceived importance or a desire to keep it simple.14 Litigants in person are often capable of competently conducting litigation on their own, with the assistance of a tutor, or through court direction.15 Accordingly, the reform proposals are unlikely to be useful where self-representation is voluntary, and courts would need to consider how to approach this in accordance with established principles of access to justice.

Conclusion

The reform proposals discussed above are targeted at streamling proceedings so that a litigant in person is able to plead a statement of claim or defence in a way that gives them reduced pressure to comply with procedural law. It allows the courts to identify causes of action and defences that may be valid and make appropriate orders prior to the involvement of opposing parties. This has a positive flow-on effect of reducing delays in proceedings for all litigants, and reducing costs for parties against whom adverse cost orders are made.

Appendix: Reform proposal

7.36A Referral orders where pleadings struck out

If a court makes an order to strike out a pleading under rule 14.1A, the court may immediately make a referral under rule 7.36 if appropriate.

10.1A Court to assess filed pleadings before service

No pleadings are to be served on any other party until the court is satisfied that the pleadings require no further amendment and orders service, in accordance with rule 14.1A.

14.1A Assessment of pleadings

(1) Upon receipt of a statement of claim, the court must assess the claim and make at its discretion any orders for amendment or striking out, following rule 14.28.

(2) No invitation to the defendant to submit a defence is to be made until the statement of claim is in a form the court finds acceptable.

(3) Upon receipt of a defence, the court must assess the defence and make at its discretion any orders for amendment or striking out, following rule 14.28.

(4) No objections or applications in relation to a pleading are to be heard until pleadings are in a form that the court finds acceptable.




  1. (2012) 294 ALR 190 (‘Ninan’).

  2. [2013] NSWSC 1783 (11 October 2013) (‘Sporting Shooters Association’).

  3. Ninan (2012) 294 ALR 190, 192 [13]–[14].

  4. Sporting Shooters Association [2013] NSWSC 1783 [7]–[11].

  5. UCPR r 7.36(1); Sporting Shooters Association [2013] NSWSC 1783 [23].

  6. See Civil Procedure Act 2005 (NSW) s 56. See also Virgtel Ltd v Zabusky [No 2] [2009] QCA 349 (10 November 2009) [30]. See generally G E Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5th ed, 2013) 579–582.

  7. Cachia v Hanes (1994) 179 CLR 403, 415.

  8. Department of Constitutional Affairs (England and Wales), Litigants in Person: Unrepresented Litigants in First Instance Proceedings, DCA Research Series 2/05 (March 2005) 112.

  9. G E Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5th ed, 2013) 109–110.

  10. Duncan Webb, ‘The right not to have a lawyer’ (2007) 16 Journal of Judicial Administration 165, 171.

  11. See, eg, Rappard v Williams [2013] NSWSC 1279 (10 September 2013); A v City of Swan [No 5] [2012] WASSC 204 (16 August 2010); Murphy v Doman (2003) 58 NSWLR 51.

  12. Webb, above n 10, 178.

  13. Malouf v Malouf (2006) 65 NSWLR 449, 450 (Mason P), 452 (McColl JA); Cappochianno v Young [2013] NSWSC 879 (2 July 2013) [10]; Webb, above n 10, 170.

  14. Webb, above n 10, 170.

  15. See, eg, Moss v Eagleston [2014] NSWSC 6 (4 March 2014) [58]; Rappard v Williams [2013] NSWSC 1279 (10 September 2013) [89].