A Study of Deficient Pleadings by Litigants in Person
This study examines the delays caused by improperly-prepared pleadings by litigants in person (that is, self-represented parties). Beginning with Ninan v St George Bank Ltd (2013) 294 ALR 190 (‘Ninan’), the research indicates that deficient pleadings are typically filed because a litigant in person lacks knowledge of both procedural and substantive law, and that inefficient proceedings can result. These may be addressed with reform of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’) that provide for separate and consecutive assessment of pleadings, and earlier referral of litigants in person to legal assistance.
Assessment of Pleadings
In Ninan, defences and strike-out applications from the 10 defendants were filed before the Federal Court had assessed whether or not the statement of claim was in an acceptable form. Griffith J found that the appellants statement of claim was, independent of the respondents’ applications, irregular and did not comply with the Federal Court Rules 2011 (Cth).
Similarly, in Sporting Shooters Association v Judge  NSWSC 1783 (11 October 2013) (‘Sporting Shooters Association’) the plaintiff sought orders striking out the defence. McCallum J instead ordered that the statement of claim be amended. An amended statement of 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 a second defence. At least eight months elapsed between the original statement of claim being filed and the second defence being struck out.
Separate and consecutive assessment of pleadings may reduce such delays. In both cases, had the courts examined each pleading individually prior to service, the time spent filing, serving and responding to documents could have been reduced. UCPR r 10.1 currently requires almost instantaneous service on the other party after filing. Inserting the below rules 10.1A and 14.1A into the UCPR would instead require the court to examine the statement of claim before service, and thus no defence would need to be filed unless the claim was brought before the court in an acceptable form — a claim could not progress unless the court was satisfied it met the requirements.
Reform Proposal for Requiring Pre-Service Assessment of Pleadings
It is proposed that the following rules be inserted in the UCPR:
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.
Pro Bono Referrals
The above proposal does not holistically address the root cause of deficient pleadings. Litigants in person frequently do not have a sufficient understanding of procedural and substantive law. Despite the defendant’s pleadings maintaining a claim that could not be relied upon as a defence and being impossible to decipher in places, the defendant in Sporting Shooters Association did attempt to plead defences that a competent lawyer would have been able to file in an appropriate form.1 The UCPR allows the court to refer a litigant in person to a pro bono lawyer if satisfied that it is necessary for the administration of justice.2 McCallum J made such an order more than seven months after the first statement of claim had been filed.
The court should refer a litigant in person to a 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. As of April 2014 the proceedings do not appear to have been resolved. The proposed reform below would allow the court to make a referral under UCPR r 7.36 during the assessment of pleadings (the proposed rule 14.1A above), thereby reducing the delays discussed.
Reform Proposal for Earlier Referral to Pro Bono Lawyers
It is proposed that the following rules be inserted in the UCPR:
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.
As officers of the court, lawyers have a legal and ethical duty to assist in conducting proceedings efficiently.3 Litigants in person are not officers of the court and do not inherently owe that duty. They are therefore not required to exercise the same degree of care and skill when filing pleadings. The High Court of Australia 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.4
Research by the England and Wales Department of Constitutional Affairs contradicts this view. A report by the Department suggests that civil cases between represented and unrepresented litigants do not take longer to resolve and actually have fewer ineffective hearings.5 This implies an institutional bias against litigants in person by the courts.
It is also part of a lawyer’s duties to be competent6 and not to be intimidated by the rules and procedures of the court, especially the often public nature of hearings.7 Litigants in person are less likely to have this capacity.8 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 that this is detrimental to proceedings.9
A litigant is entitled to be self-represented.10 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 level of importance or a desire to keep proceedings simple.11 Litigants in person are often capable of competently conducting litigation on their own, with the assistance of a tutor, or through court direction.12 Accordingly, the reform proposals are unlikely to be useful or necessary where self-representation is voluntary, and courts would need to consider how best to approach this in accordance with established principles of access to justice.
The reform proposals discussed above are targeted at streamlining 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 and substantive law. It allows the courts to identify causes of action and defences that may be valid, and to make appropriate orders prior to the involvement of opposing parties. This would have a positive flow-on effect of reducing delays in proceedings for all litigants, and reducing costs for parties against whom adverse costs orders are made.
Sporting Shooters Association  NSWSC 1783 –. ↩
UCPR r 7.36(1); ibid . ↩
Civil Procedure Act 2005 (NSW) s 56. See also Virgtel Ltd v Zabusky [No 2]  QCA 349 (10 November 2009) . See generally G E Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5th ed, 2013) 579–582. ↩
Cachia v Hanes (1994) 179 CLR 403, 415. ↩
Department of Constitutional Affairs (England and Wales), Litigants in Person: Unrepresented Litigants in First Instance Proceedings, DCA Research Series 2/05 (March 2005) 112. ↩
G E Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5th ed, 2013) 579–582. ↩
Duncan Webb, ‘The Right Not to Have a Lawyer’ (2007) 16 Journal of Judicial Administration 165, 171. ↩
See, eg, Rappard v Williams  NSWSC 1279 (10 September 2013); A v City of Swan [No 5]  WASSC 204 (16 August 2010); Murphy v Doman (2003) 58 NSWLR 51. ↩
Webb, above n 7, 178. ↩
Malouf v Malouf (2006) 65 NSWLR 449, 450 (Mason P), 452 (McColl JA); Cappochianno v Young  NSWSC 879 (2 July 2013) ; Webb, above n 10, 170. ↩
Webb, above n 7, 170. ↩
See, eg, Moss v Eagleston  NSWSC 6 (4 March 2014) ; Rappard v Williams  NSWSC 1279 (10 September 2013) . ↩