Do unrepresented litigants require special treatment?

November, 2014


Key points:

Two recent decisions of the Full Court of the Federal Court of Australia highlight some of the difficulties faced by the courts when unrepresented litigants appear before them and the measures that should be taken to ensure that a fair trial is provided.

In Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 (Arifin), the unrepresented appellant failed to comply with rule 36.01(2)(c) of the Federal Court Rules 2011, which required him to state “briefly but specifically, the ground relied on in support of the appeal”. The Full Court observed that whilst it is sometimes appropriate to ignore such non-compliance and instead simply deal with the substantive merit of the application, the other parties and the Court are often placed “in a difficult if not invidious position”. In particular, the other party can be easily prejudiced and impressions can emerge as to the Court’s lack of impartiality. The Court emphasised that the Federal Court Rules had been designed for the benefit of all parties and the public interest in ensuring the proper administration of justice. Accordingly, the Court urged “greater hesitation and caution” before judges too readily depart from the requirements imposed by the relevant court rules when self-represented applicants appear before them.

Whilst Arifin serves as a reminder that the rules of the court should be equally binding on all parties irrespective of whether or not they have legal representation, the Full Court of the Federal Court in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 (SZRUR) confirmed that the courts have an overriding duty to ensure that a trial is conducted fairly and in accordance with the law.

In SZRUR, the Court allowed an appeal from the Federal Circuit Court on the basis that the unrepresented appellant was denied procedural fairness because the primary judge did not explain to him that the Court would not act on statements from the bar table and that his allegation of fraud against his former migration agent would therefore fail due to the absence of any evidence. The Court saw no difficulty, as a matter of fairness, in the primary judge telling the appellant that if he wanted the Court to rely on his statements from the bar table he had to enter the witness box and make those statements formally after having been sworn. The Court also took into account that the appellant was unrepresented, could not speak or read English and the importance of the subject matter of his statements to the success of his application. Accordingly, the primary judge’s failure to explain the procedure to the appellant was not fair and could have affected the outcome.

In allowing the appeal, Robertson J (with whom Allsop CJ and Mortimer J agreed) cited with approval the following principles set out in Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [306]-[316]:




Rohan White
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