Parties (natural persons) are entitled to appear unrepresented in proceedings before the court: see UCPR r 7.1(1); Judiciary Act 1903 (Cth) s 78.

The court has a duty to give such persons a fair hearing, and it may be appropriate for the court to give some assistance to such persons in order to fulfill that duty.

The court hearing a case between an unrepresented litigant and another party, however, cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator.

In deciding what to do when a case is not adequately presented by an unrepresented litigant, it is appropriate to take into account that such circumstance can place far greater burdens of time and costs on the other party than would be involved if both litigants had competent representation. That arises from the circumstance that the time and costs involved in trying to understand and answer claims that are not formulated so as to clearly raise relevant issues can be much greater than where relevant issues are clearly raised; that adjournments are often required because the unrepresented litigant is not ready to proceed with the case; and that when the case is actually heard, the hearing may be much longer than if both sides were represented by a lawyer. See also Corporate Affairs Commission v Solomon (unrep, 1/11/89, NSWCA).

Where a case is brought by an unrepresented litigant, and material required for the adequate determination of that case is not available, or is not presented to the court, it is not necessarily the case that the court should itself undertake an investigation of whether such material exists, and if so, seek to have it brought before the court so that it can be considered. It may sometimes be appropriate for the court to attempt to have such material made available, particularly if the deficiency of the material is obvious and can be remedied without prejudice to the other side. Otherwise, it would generally conflict with the court’s position, as an impartial adjudicator, for it to take steps to seek to improve an unrepresented litigant’s case by investigating whether there is more material available to support that case than has been presented to the court, and then taking steps to obtain it.

It is appropriate for judges to inform unrepresented litigants of their rights so as to diminish their disadvantage, through lack of legal skills, in conducting the hearing, although without conferring upon them a positive advantage over their represented opponent, and without advising them of the way in which they should exercise their rights: MacPherson v The Queen (1981) 147 CLR 512 and Rajski v Scitec Corp Pty Ltd (unrep, 16/06/86, NSWCA). In R v Zorad (1990) 19 NSWLR 91, the distinction between explaining the procedural choices available to an unrepresented accused, and advising as to what decision should be made, was emphasised. The restraints upon judicial intervention stemming from the adversarial tradition are not relevantly qualified merely because one of the litigants is self-represented: Malouf v Malouf (2006) 65 NSWLR 449 at [94].

It can be appropriate for the court to intervene and to attribute an objection to the unrepresented party where potentially inadmissible evidence is sought to be tendered: National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309.

In interlocutory matters, the court will normally be slow to terminate proceedings summarily because of defective pleading by an unrepresented litigant, at least where it appears that there is a viable cause of action which, with appropriate amendment and a little assistance from the court, could result in a pleading being placed in proper form: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536.

A judge cannot permit an unrepresented litigant, even without objection, to give evidence from the bar table, without oath or affirmation: Randwick City Council v Fuller [1996] NSWCA 444. In most instances, it will be necessary for such a person to give evidence in chief in a narrative form, rather than by way of formal question and answer. (See also Evidence Act 1995 s 29.)

The Evidence Act 1995 may require the judge to advise an unrepresented party as to the admissibility of certain categories of evidence, or of the need for leave, if evidence attracting a leave requirement is tendered: see s 192 of the Evidence Act 1995. Moreover, s 132 of the Act will require the judge to be satisfied that such a party is aware of the effect of those provisions of Pt 3.10 (Privilege), which would entitle that party to claim privilege or object to a question in accordance with its provisions. It will also be appropriate to alert the unrepresented party to the rules in Browne v Dunn (1893) 6 R 67 and Jones v Dunkel (1959) 101 CLR 298.

While the granting of an adjournment remains a matter of discretion, it might more readily be granted to an unrepresented litigant, who has misunderstood procedural requirements and is, as a consequence, not in a position to complete the presentation of evidence, provided that no substantive or procedural injustice is done to the other party involved: Titan v Babic [1995] FCA 813; R v Leicester City Justices; Ex p Barrow [1991] 2 QB 260. See also Kelly v Westpac Banking Corporation [2014] NSWCA 348 at [42]–[43].

It is appropriate for a judge to attempt to clarify the submissions of an unrepresented litigant, particularly where the substantive issues are being ignored or obfuscated by garrulous or misconceived advocacy: Neil v Nott [1994] HCA 23.

It is generally appropriate for a judge to draw to the attention of an unrepresented litigant possible unfavourable consequences, including adverse cost orders, of a particular procedural step especially where the course sought to be pursued is unusual: Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367.

It will also be appropriate for a judge to draw to the attention of the unrepresented litigant the potential availability of legal assistance through Legal Aid or pro bono schemes (see [1-0600]), and to gently identify the advantages of the litigant having professional assistance. In many instances there may be no entitlement either to legal aid or pro bono representation, and the unrepresented litigant may, in any event, prefer to present the case in person, either through mistrust of the profession, or for other reasons. In such a case, the issue should not be pushed, lest it engender suspicion concerning the willingness of the court to hear the case impartially, an inevitable problem in the case of the vexatious or querulous litigant.

If the litigant in person is so disadvantaged by mental incapacity as to lack competency to manage his or her own affairs, then the court should appoint a tutor, or stay the proceedings until the litigant is competent, or until a tutor can be appointed: Murphy v Doman (2003) 58 NSWLR 51.

An unrepresented litigant needs leave under the UCPR r 7.3 to obtain the issue of a subpoena.

As to the costs recoverable by a successful litigant in person, see Cachia v Hanes (1994) 179 CLR 403.

A solicitor acting for himself or herself will not generally be afforded the latitude allowed to an unrepresented litigant: Leybourne v Permanent Custodians Ltd [2010] NSWCA 78.