14 August 2008
New laws planned for Victoria and other states will make it harder for people to represent themselves in court, forcing them to spend a small fortune on legal fees to access justice, the Victorian State Government has been warned.
Monash University researcher Simon Smith said impatient judges and lawyers were pressuring legislators for new laws that would make it easier to seek and obtain court orders restricting vexatious litigants (people who repeatedly launch frivolous cases) from initiating legal proceedings.
Mr Smith has warned the new laws would also give judges greater ability to dismiss cases brought by the increasing number of people representing themselves, referred to as litigants-in-person.
"The judiciary and the bar are not happy about this trend for people to represent themselves. Rather than adapt to accommodate this, they are pushing for a wider mandate to be able to dismiss cases brought by litigants-in-person, who they see as time consuming and annoying," Mr Smith said.
"These new laws have already been adopted as the Vexatious Proceedings Act 2005 in Queensland as model uniform legislation intended for adoption in every state but I am urging Victoria and other states not to enact them."
Mr Smith is a former Supreme Court and High Court solicitor and insurance industry ombudsman who has more than 25 years experience as a lawyer. He recently completed four years of research into vexatious litigant laws. Mr Smith has highlighted his concerns in a formal submission to the Victorian Parliament Law Reform Committee's Vexatious Litigants Inquiry.
Mr Smith said litigants-in-person had traditionally appeared in only lower courts but had become increasingly common in superior courts such as the Supreme Court. This was due to factors including reduced availability of legal aid, high cost of legal fees, demystification of law, extended reach of the law and the growth in self-help culture through information kits, internet sites and clinics.
He said vexatious litigants, in contrast, were not common. Australia first adopted vexatious litigant laws in 1928 and the sanction had been used against only 47 people in 10 of Australia's 11 superior courts up to the end of 2007. The Family Court, which deals with many complex and emotional disputes, had made 195 vexatious litigant orders from 1976 to 2006.
Mr Smith said it was nonsensical that extensive efforts were being made to control vexatious litigants and litigants-in-person but there had been no concerted judicial or political response on the need to restrict corporations using the courts for strategic purposes following the Seven Network Limited v News Limited case, which involved $200 million in legal fees and was labelled scandalous by a judge.
Mr Smith said another concerning aspect of the new laws was the proposal to increase the power of non-judicial public servants to decide, in private, to refuse to accept documents that initiate cases.
"The lack of transparency, and thus accountability, surrounding the use of this pre-emptive power is inconsistent with a fair and accessible legal system and in future such changes may come under attack as being inconsistent with the human rights laws likely to be adopted in Australia," he said.
For additional information please contact Simon Smith on +61 3 9531 5278 or Monash media officer Ryan Pedler on +61 3 9903 4842 or +61 417 568 781. | 
