{"id":274,"date":"2006-11-09T17:06:04","date_gmt":"2006-11-09T21:06:04","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/shlep\/2006\/11\/09\/aus-pro-se-defendant-told-to-resubmit-h"},"modified":"2007-03-23T16:52:17","modified_gmt":"2007-03-23T20:52:17","slug":"aus-pro-se-defendant-told-to-resubmit-her-defense","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/shlep\/2006\/11\/09\/aus-pro-se-defendant-told-to-resubmit-her-defense\/","title":{"rendered":"Australian pro se<\/i> defendant told to resubmit her defense"},"content":{"rendered":"
Last month, sixty-six year old Jeanette Beninca was\u00a0“dumbfounded” to find she was being sued for $300,000 by Glenn Bruun, a policeman whose little finger was injured in\u00a0a “paranoid episode”\u00a0that left her mentally-ill son shot dead.\u00a0 She\u00a0reponded that “I would rather go to jail than pay, because it is so unreasonable.” (see The Australian<\/em>, “<\/font>Mother defiant on son’s killing<\/font><\/a>,” Oct. 15, 2006).\u00a0\u00a0However, according to the\u00a0Sunshine Coast Daily<\/em>, <\/font>Mother who lost son in siege sued for $300,000<\/font><\/a>, 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.”\u00a0\u00a0<\/font><\/font><\/div>\n
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Yesterday was Mrs. Beninca’s hearing at the District Court of Queensland<\/a>, in Brisbane, Australia, before Her Honour Judge Helen O\u2019Sullivan<\/a>.\u00a0 Beninca\u00a0did indeed appear without counsel.\u00a0 We do not know the nature of the “defence” presented, but ABCNewsOnline<\/em> reported this morning, in “Mother urged to resubmit defence<\/a> against policeman’s damages claim” (Nov. 9, 2006) that:\u00a0<\/span><\/span><\/font><\/font><\/div>\n
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“Judge Helen O’Sullivan today formally struck out Mrs Beninca’s defence on the basis that it was not reasonable at law.\u00a0 Mrs Beninca, who is self represented, has been given a further three weeks to seek legal advice and resubmit her defence.”<\/span><\/span><\/div>\n<\/blockquote>\n
Was Judge O’Sullivan’s intervention,\u00a0which gives\u00a0the pro se<\/em> defendant a second chance to submit her theory of defense, proper?\u00a0 Your shlep<\/em> Editor decided to see if Australian courts have practice guidelines that would help us understand Judge O’Sullivan’s action.\u00a0 We found a well-written,\u00a017-page <\/font>Guide for Unrepresented Litigants (Higher Courts)<\/font><\/a> (Feb. 2006),\u00a0which cautions that\u00a0“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\u00a0briefly 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.”<\/font>\u00a0\u00a0<\/p>\n
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More directly relevant to the judge’s role, is an online document for the Supreme Court of Queensland\u00a0called the\u00a0Equal Treatment Benchbook<\/strong><\/em><\/font><\/a>, which offers guidance to judges for maintaining fairness in many types of situations.\u00a0 Sec. 12\u00a0is concerned with Self-Represented Parties<\/em>.\u00a0\u00a0\u00a0The 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.”\u00a0 It goes on to assert that\u00a0the right to\u00a0present a case yourself\u00a0“must be balanced against the rights of other parties who are involved in the litigation, including the right \u2026 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\u2019s time wasted.”\u00a0\u00a0It continues (emphasis added):\u00a0\u00a0\u00a0<\/p>\n

“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<\/em>.\u201d<\/p><\/blockquote>\n

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The Benchmark<\/em> discussion describes the various types of self-represented litigants and notes that “their\u00a0ability to represent themselves varies greatly.”\u00a0 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<\/em> 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.”\u00a0 Therefore:<\/font>\u00a0\u00a0<\/p>\n
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“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 \u201cfeelings of fear, ignorance, frustration, bewilderment and disadvantage, especially if appearing against a represented party.\u201d 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\u2019s lack of legal knowledge.”<\/font><\/div>\n<\/blockquote>\n
One general statement of the judge’s role, from the leading Full Federal Court case of Abram v Bank of New Zealand<\/em> [1996, ATPR 41-507], says that \u201cwhat a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant\u2019s intelligence and understanding of the case\u201d.\u00a0\u00a0 The following excerpts offer more specific guidance that seems relevant to the Bruun v. Beninca<\/em> case:<\/font><\/div>\n
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