Australian pro se defendant told to resubmit her defense
Last month, sixty-six year old Jeanette Beninca was “dumbfounded” to find she was being sued for $300,000 by Glenn Bruun, a policeman whose little finger was injured in a “paranoid episode” that left her mentally-ill son shot dead. She reponded that “I would rather go to jail than pay, because it is so unreasonable.” (see The Australian, “Mother defiant on son’s killing,” Oct. 15, 2006). However, according to the Sunshine Coast Daily, Mother who lost son in siege sued for $300,000, Oct. 14, 2006), “Mrs Beninca is asset-rich but cash-poor and ineligible for legal aid. She said she could not afford to pay a lawyer on her income and planned to represent herself at the hearing on November 9.”
Yesterday was Mrs. Beninca’s hearing at the District Court of Queensland, in Brisbane, Australia, before Her Honour Judge Helen O’Sullivan. Beninca did indeed appear without counsel. We do not know the nature of the “defence” presented, but ABCNewsOnline reported this morning, in “Mother urged to resubmit defence against policeman’s damages claim” (Nov. 9, 2006) that:
“Judge Helen O’Sullivan today formally struck out Mrs Beninca’s defence on the basis that it was not reasonable at law. Mrs Beninca, who is self represented, has been given a further three weeks to seek legal advice and resubmit her defence.”
Was Judge O’Sullivan’s intervention, which gives the pro se defendant a second chance to submit her theory of defense, proper? Your shlep Editor decided to see if Australian courts have practice guidelines that would help us understand Judge O’Sullivan’s action. We found a well-written, 17-page Guide for Unrepresented Litigants (Higher Courts) (Feb. 2006), which cautions that “Unless you are very experienced and have a good understanding of legal practice, the law of evidence, court procedures and the law about the particular dispute, you could be disadvantaged, particularly if the other side is represented by a lawyer.” It also briefly explains the role of the judge. with statements such as: “The Judge can explain the process of how the trial will be conducted, but cannot favour or be thought to have favoured you simply because you are not a lawyer” and “Natural justice or fairness requires that any assistance given to you by the Judge is limited to matters of procedure.”
More directly relevant to the judge’s role, is an online document for the Supreme Court of Queensland called the Equal Treatment Benchbook, which offers guidance to judges for maintaining fairness in many types of situations. Sec. 12 is concerned with Self-Represented Parties. The Introduction states that “Many issues arise for the Court when a party appears without legal representation which affect the capacity of the court to administer justice both fairly and efficiently.” It goes on to assert that the right to present a case yourself “must be balanced against the rights of other parties who are involved in the litigation, including the right … not to be involved in pointless litigation and to have the litigation conducted properly and with reasonable promptitude; and it must be balanced against the right of the public generally not to have the court’s time wasted.” It continues (emphasis added):
“What steps will be appropriate, in a particular case, to prevent injustice being done to parties who find themselves involved in litigation conducted in this way, must, of course, be determined in the light of the facts of that case: but it should be clear that it is proper that steps be taken to that end.”
The Benchmark discussion describes the various types of self-represented litigants and notes that “their ability to represent themselves varies greatly.” Despite the disclaimer that “the following information does not intend to criticise or detract from the right of a person to appear self represented,” the Benchmark goes on to say that “These people lack the skills and abilities usually associated with legal professionals. Their limited knowledge of the relevant law almost inevitably leads to ignorance of the issues that are needed for resolution of the matter in court.” Therefore:
How do those guidelines jibe with Judge O’Sullivan’s actions and with the practice in your jurisdiction? In the recently-promulgated Massachusetts Judicial Guidelines regarding self-represented litigants (see our prior post), the Commentary on Guideline 1.4 Application of Law cautions “Although self-represented litigants may not be treated more severely than other litigants, they are not entitled, because of their status, to be excused from relevant rules of procedural and substantive law,” citing several illustrative cases. On the other hand, the Commentary to Guideline 2.1 Prehearing Interaction notes that “In the judge’s discretion, the elements of claims and defenses, as well as the burden of proof may be explained in the same manner that they would be explained to a jury.” (and see our discussion of Prof. Jona Goldschmidt’s paper “Judicial Assistance to Self-Represented Parties: Lessons from the Canadian Experience“)
Mrs. Beninca appears to be a sympathetic defendant. Let’s hope that she gets some good legal advice and uses the next three weeks well. At this juncture, I am not willing to say that Judge O’Sullivan misused her discretion in an attempt to make sure that Mrs. Beninca is given a fair chance to present a competent defense.
“Whatever their reasons for self representation, litigants in person may be stressed, usually as there is a lot at stake. It is to be expected that they may experience “feelings of fear, ignorance, frustration, bewilderment and disadvantage, especially if appearing against a represented party.” Judges should aim to maintain a balance between assisting the self represented litigant and protecting their represented opponent from problems arising from the self represented party’s lack of legal knowledge.”
One general statement of the judge’s role, from the leading Full Federal Court case of Abram v Bank of New Zealand [1996, ATPR 41-507], says that “what a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case”. The following excerpts offer more specific guidance that seems relevant to the Bruun v. Beninca case:
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12.3 Judge’s Role before a court appearance. . . . Judges should ensure that a self represented party leaves a directions hearing appreciating exactly what is required of him or her. A judge should always be ready to explain fully the precise meaning of any particular direction or court order.
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12.4 Judge’s Role During the Hearing . . At the beginning of the proceeding, the judge should also identify and if possible get the self represented party to agree upon the true issues in the case. Careful explanation is required so that the litigant agrees to proceed on the basis identified, and most importantly to appreciate why that decision has been taken. This may help to shorten the proceedings. . . . . . . If the substance of the submissions of the self represented litigant is clarified by the judge, it may help to eliminate any problems which arise because of garrulous or misconceived advocacy which causes substantive issues to be ignored, given little attention or obfuscated.
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Where the interests of justice and the circumstances of the case require it, a judge may: draw attention to the law applied by the Court in determining issues before it; . . . identify applications or submissions which ought to be put to the Court; suggest procedural steps that may be taken by a party; . . .
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[The court may] Offer the unrepresented litigant the option of [an adjournment] if necessary. This could mean reconvening later the same day or returning to court another day. [and] Allow or help obtain assistance for the unrepresented litigant.
How do those guidelines jibe with Judge O’Sullivan’s actions and with the practice in your jurisdiction? In the recently-promulgated Massachusetts Judicial Guidelines regarding self-represented litigants (see our prior post), the Commentary on Guideline 1.4 Application of Law cautions “Although self-represented litigants may not be treated more severely than other litigants, they are not entitled, because of their status, to be excused from relevant rules of procedural and substantive law,” citing several illustrative cases. On the other hand, the Commentary to Guideline 2.1 Prehearing Interaction notes that “In the judge’s discretion, the elements of claims and defenses, as well as the burden of proof may be explained in the same manner that they would be explained to a jury.” (and see our discussion of Prof. Jona Goldschmidt’s paper “Judicial Assistance to Self-Represented Parties: Lessons from the Canadian Experience“) Mrs. Beninca appears to be a sympathetic defendant. Let’s hope that she gets some good legal advice and uses the next three weeks well. At this juncture, I am not willing to say that Judge O’Sullivan misused her discretion in an attempt to make sure that Mrs. Beninca is given a fair chance to present a competent defense.-
Update (March 21, 2007): see our post on the California’s 265-page “Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers.” (CA Administrative Office of the Courts, Center for Families, Children and the Courts, January 2007) (SelfHelpSupport.org members have access online to the document). At the foot of that posting, you’ll find a list of similar resources discussed up to that date at shlep.
david giacalone
November 10, 2006 @ 3:03 pm
In preparing this posting, I noted that most self-help materials for litigants is from the perspective of the person filing a claim. As a result, today I posted help for the pro se defendant, which asks for help collecting links to materials written to assist the defendant/respondent who is in court without a lawyer.
shlep: the Self-Help Law ExPress » Blog Archive » California judges get Benchbook for handling pro se litigants
March 21, 2007 @ 11:44 am
[…] We’ve frequently stressed the important (and often difficult) role that judges have in the process of assuring fair access to justice for the self-represented litigant (e.g., here and there). Attempting to help the pro se party [called pro per in some western states] understand law and procedure and effectively present their case, while maintaining neutrality toward all parties to a suit, takes agility and skill, and an appropriate temperament. (see our post earlier this week on Ghostwriting in NJ) Judges in the California court system were given a great tool for understanding and fulfilling this role with the publication of a 245-page guide called “Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers.” (CA Administrative Office of the Courts, Center for Families, Children and the Courts, January 2007) (via SelfHelpSupport.org, where members can access the document) […]