Litigants in Person - With Martin Dillon
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Chris Patterson 0:00
Hello and welcome to The Law Down Under Podcast with barrister Chris Patterson. This podcast provides insights into the law in New Zealand and Australia, its application, and its future. Each episode features a guest who will inspire your interest in the law and deepen your understanding of the legal issues shaping our justice system here Down Under. Thank you for tuning in—enjoy the podcast!
I’m super excited today to have Martin Dillon join me in the studio for this episode. We’re going to be talking about litigation without a lawyer and what that really means. We’ll touch on some key areas, including access to justice. Martin is a litigation specialist based in Hamilton, New Zealand. He holds an Arts degree in Philosophy with a focus on ethics. In addition to his private client work, he is also an approved Legal Aid provider.
Martin runs a resource website called martindillon.nz, which started as CourtKeys.com—an Access to Justice project he launched in 2013, so well over a decade ago. His website answers frequently asked questions about law and legal processes in New Zealand. Martin has received awards for innovation and access to justice at the APEC Legal Awards (2022) and the Lawyer International Legal 100 Awards (2023). He is also the author of Civil Litigation for Non-Lawyers, published by Legal Drive in 2021. The book provides guidance on how to run a civil case in New Zealand courts, including how to commence claims in the District Court and High Court, what information is needed, and how specific documents should be prepared.
Martin, good morning! Thank you for joining me.
Martin Dillon 2:03
Good morning, Chris! Thank you so much for that kind introduction—it was really nice. I should mention that while the information from CourtKeys.com is still available, it has since been migrated to my current website, martindillon.nz.
Chris Patterson 2:27
Ah, I see! Well, it’s a fantastic resource. I encourage anyone listening to check it out—it’s full of straightforward, plain-English summaries of key legal issues. You’ve done great work with it, Martin.
Now let me ask you something I always ask my colleagues traveling from Hamilton: Did you make it through the Southern Motorway this morning without any dramas?
Martin Dillon 3:08
Yes, thankfully! It worked out better than Google predicted, so I feel like I’m winning today.
Chris Patterson 3:16
That’s good to hear! The Waikato Expressway is certainly something every region could benefit from replicating.
Let’s dive into your career in law. How many years have you been practicing now?
Martin Dillon 3:41
Since August 2007—that’s what it says on my practicing certificate!
Chris Patterson 3:46
What led you to pursue a career in law? What took you into law school? I see that you decided to do an Arts degree along the way.
Martin Dillon 3:57
In some ways, I fell into it. During high school careers evenings, the advice I received was to play to my strengths. I wasn’t very good at math or science but excelled in subjects like English, History, Geography, and Social Studies. When it came time to choose a career path, university was encouraged over trades or starting a business.
Law seemed like a good fit given my interests and abilities—and I’m glad I chose it because it’s been an exciting and fulfilling profession.
Chris Patterson 6:19
Here in New Zealand (and Australia), law is an undergraduate degree rather than a postgraduate one like in North America. You also studied Philosophy with a focus on ethics—did that influence your legal career?
Martin Dillon 6:54
Yes, absolutely! One key takeaway from studying Philosophy was learning how complex ideas can often be summarized succinctly. For example, ethics often boils down to treating others well—though what that means is debatable! Philosophy taught me critical thinking skills that have been invaluable in my legal work.
I sometimes joke about the "Keanu Reeves trifecta" when summarizing philosophical concepts. For instance, The Matrix touches on metaphysics by questioning whether our perceptions are independent of reality. Then there’s Bill and Ted’s Excellent Adventure, which humorously captures the essence of ethics with the phrase “Be excellent to one another.” Finally, Constantine explores themes of religion and belief systems, which align with philosophical debates about the existence and nature of God. While these are oversimplifications, they reflect how Philosophy can distill complex ideas into digestible concepts.
Chris Patterson 10:15
It seems Philosophy—particularly ethics and logic—aligns well with legal practice. Logic especially helps when analyzing evidence or building case theories. Let’s shift gears to discuss access to justice. What does “access to justice” mean to you?
Martin Dillon 13:15
To me, access to justice means more than just getting your foot in the door at court—it’s about achieving outcomes that align with what an impartial observer would expect based on the law and facts of the case. Some people take a broader view by questioning whether laws themselves are just—but my focus has been on improving people’s ability to navigate existing legal systems effectively.
Chris Patterson 14:46
That’s interesting. Why do you think access to justice is such an issue today?
Martin Dillon 15:08
There are several reasons. One is financial barriers—legal representation can be expensive, and many people fall into a gap where they don’t qualify for legal aid but can’t afford private lawyers either. Another issue is the complexity of legal processes, which can be daunting for those without legal training. I’ve also seen cases where power imbalances between parties make it difficult for individuals to pursue justice effectively.
Chris Patterson 17:34
I agree. Conflict is inevitable, and our justice system provides a mechanism for resolving disputes without resorting to destructive means like violence. But as you mentioned, costs and complexity often deter people from using it effectively. What are your thoughts on how we can address these barriers?
Martin Dillon 19:29
One way is by simplifying legal processes and making them more accessible to non-lawyers. Another is providing better education about legal rights and procedures—starting as early as high school. I also think there’s room for innovation in how we deliver legal services, such as through online resources or alternative dispute resolution mechanisms.
Chris Patterson 19:29
At a basic level, we’ve got to draw a distinction between differences in ideas and thoughts. People come to situations with different views, and that’s healthy. Diversity in ideas is one of the hallmarks of our species—it has enabled us to evolve and progress the way we have. If we all thought the same and followed the same patterns, evolution itself would slow down greatly, if not completely stop.
But when those differences get in the way of people moving forward with their lives, that’s where my interest lies. When disputes arise that prevent people from getting on with their lives, how do we resolve those disputes? That’s where our justice system provides a mechanism—and an important one at that.
Here, I’m touching on the rule of law. It ensures society functions in a way that is acceptable and enables people to live fulfilling lives where they thrive rather than being repressed or missing out on opportunities. When people get stuck in disputes, it’s important that the system and its participants guide them efficiently through to the other side so they can move on with their lives and park that dispute.
Martin Dillon 21:09
Absolutely. There’s not much point in having the rule of law if the mechanisms to implement it can’t be accessed.
Chris Patterson 21:22
So, when defining access to justice, I’ve gone back quite far—to the Universal Declaration of Human Rights. This document from 1948 came shortly after World War II, arguably one of history’s most horrific examples of dispute resolution through violence.
The declaration states that access to civil justice concerns “the ability of individuals to have their rights vindicated and breaches of those rights compensated in a procedurally fair and transparent manner by neutral adjudicators in accordance with the law.” This is a fundamental right—and I think it sums up access to civil justice better than anything else I’ve come across.
Even our own New Zealand Bill of Rights Act (Section 27) is less clear—it simply talks about a right to natural justice before our courts but doesn’t explain why that’s important or how it’s to be done.
The issue is this: we’ve been in an access-to-civil-justice crisis for well over a decade now. Our Chief Justice Helen Winkelmann highlighted this back in 2014 during an address at Otago University. She was very clear about how many people within our society—an increasing number—can’t access civil justice. That fundamental right isn’t being met.
The question then becomes: what can be done about it? Or should anything be done at all?
Martin Dillon 23:37
That’s what really concerned me—and what motivated my work in this area. I saw so many people struggling with this issue during my volunteer work at Citizens Advice Bureaux and as a solicitor for law firms.
For example, I acted for banks and debt collection companies that frequently appeared before courts to enforce contracts made with large numbers of less fortunate individuals. At the same time, I’d receive inquiries from people who were being sued or threatened with lawsuits that didn’t seem fair—and upon reviewing their cases, I often shared their concerns.
These were individuals facing alleged debts that represented months—or even years—of savings for them. Yet engaging a lawyer wasn’t financially viable because legal costs could easily outweigh the amount at stake. For example, defending or pursuing a claim worth $50,000 or $100,000 could cost more than that amount once litigation risks and legal fees were factored in.
Chris Patterson 30:45
So this high threshold for listeners—let’s talk about that a little more. The threshold is really one where appeals are limited to procedural matters, such as breaches of natural justice. Can you give an example of where that might be met?
Martin Dillon 31:02
I once took an appeal from the Disputes Tribunal to the District Court because the referee had erroneously reversed the burden of proof onto my client. My client was a farmer who had just sold his farm and come into some money. As a matter of principle, he was unhappy with the outcome of the Disputes Tribunal case and wanted to challenge it. This was one of those rare situations where someone was prepared to fund an appeal purely out of principle. If memory serves, we succeeded because it was a clear procedural error—the referee had mistakenly shifted the onus of proof.
Chris Patterson 32:28
But in the absence of a procedural error, District Court judges don’t have jurisdiction to overturn a referee’s determination. Although earlier this year, the Rules Committee proposed changes that could help balance this issue. They suggested raising the monetary threshold for Disputes Tribunal claims from $30,000 to $70,000 as of right and $100,000 by agreement, while retaining procedural-only appeals for claims under $30,000. For claims above that threshold, they recommended allowing general rights of appeal to District Court judges. This could help address situations where significant sums are at stake and errors need correction.
Martin Dillon 33:02
That would be a welcome change. While the Disputes Tribunal is a great resource for resolving smaller claims efficiently, it’s important that parties don’t leave feeling aggrieved due to uncorrected errors in decisions—especially when larger amounts are involved.
Chris Patterson 33:48
Let’s stick with the Disputes Tribunal for a moment. Your book breaks down its processes well, along with those of other courts like the District Court and High Court. For listeners unfamiliar with how Disputes Tribunal hearings work, there’s a sequence: parties outline their facts and evidence, followed by a settlement phase where referees act as mediators to encourage resolution. If settlement fails, referees issue determinations promptly—usually within 30 days. This contrasts with defended matters in the District Court, which can take around 15 months for an outcome. Justice delayed is justice denied, as they say.
What are your thoughts on courts encouraging settlement between parties? Should they play a larger role in that?
Martin Dillon 36:21
Settlement should absolutely be encouraged—it’s already done in both the District Court and High Court through judicial settlement conferences. However, I have mixed feelings about the pressure placed on parties to settle. While motivations like litigation risk and costs make sense, I’ve seen cases where settlements were pushed without careful consideration of fairness or reality. For example, splitting claims “50/50” without fully examining the merits can lead to unjust outcomes.
Settlement discussions are worthwhile but need nuance and fairness applied to each case. Parties should go into negotiations prepared to be reasonable with one another.
Chris Patterson 36:21
Settlement needs to be encouraged. It is encouraged, at least in the District Court. I think they have judicial settlement conferences in the High Court as a matter of course under the rules. But if not, there’s definitely that facility. I’ve had judicial settlement conferences in the High Court, though I can’t recall whether it’s mandatory under the rules. However, I do have mixed feelings about the amount of pressure that gets put on parties to settle.
That pressure comes from real motivations—litigation risk and associated costs of going to a hearing. It all makes sense. But my concern is seeing settlement pushed forward in a way that lacks nuance or care. For example, I’ve seen cases where parties are told, “There’s a bit in this for both sides, so why not settle at 50/50?” That approach worries me because settlements like these might not reflect what an impartial observer would consider fair or just.
When settlements are rushed or oversimplified, they can result in unjust outcomes. For instance, a 50/50 split could mean significant financial differences—hundreds of thousands of dollars—when one party is clearly in the right and the other is not. Settlement discussions are worthwhile but require careful consideration of fairness and reality for each case.
Martin Dillon 38:05
I agree. Settlement discussions should be approached with fairness and reasonableness by both parties. Unfortunately, civil litigation sometimes allows one party to prolong harm against another throughout the case. For example, well-funded litigants can use delay tactics to force less-resourced parties into settling at undervalued amounts. This is particularly insidious when one party knows they’re in the wrong but leverages their financial advantage to pressure the other side into an unfair settlement.
This kind of behavior can make civil litigation feel less like a pursuit of justice and more like a game of endurance. That’s why I find criminal defense work refreshing—it’s usually more straightforward. The harm has already occurred, and the court case is about determining consequences rather than ongoing harm caused by litigation tactics.
Chris Patterson 41:25
You’re absolutely right. Any civil litigator who practices long enough will encounter situations where the process itself is manipulated to secure more favorable settlements. While this isn’t the purpose of our civil litigation system, it does facilitate such behavior at times.
The courts may claim they’re aware of these issues and try to prevent them, but in reality, these tactics often go unchecked. Settlements frequently end up as compromises that may not align with what an objective observer would consider fair or reasonable.
Martin Dillon 42:40
That’s exactly what I was trying to say—thank you for summarizing it so succinctly!
Chris Patterson 42:44
Let’s talk about your book now—Civil Litigation for Non-Lawyers. Why did you write it? What need or purpose were you addressing?
Martin Dillon 43:06
It didn’t start as a book—it began as a collection of handouts I created for my clients. I realized I was repeating myself with every case, explaining basic procedural steps like discovery or filing claims. These handouts helped clients understand what was happening and allowed us to focus on their specific cases instead of spending time on general explanations.
Eventually, I started publishing these materials on my website to make them accessible to others who might need them—especially people navigating smaller tribunals like tenancy disputes or motor vehicle disputes without legal representation. Over time, this collection grew into a more comprehensive resource.
Then Steve Keogh, a barrister and publisher, approached me about turning these materials into a book. He suggested framing it specifically for non-lawyers, which made sense given how I’d written it directly addressing readers as “you.” The goal was to provide clear guidance for individuals running their own cases in New Zealand courts.
Chris Patterson 50:59
For listeners unfamiliar with Steve Keogh—he appeared on an earlier episode of this podcast discussing legal publishing. Please check it out if you haven’t already!
Would it be fair to describe your book as a practical manual for running cases in courts like the District Court? You decode complex rules and provide step-by-step instructions for non-lawyers navigating processes like preparing claims or presenting evidence.
Martin Dillon 52:35
Yes, absolutely—that was the idea! The book simplifies court rules and procedures so that someone without legal training can follow along and navigate their case effectively.
Chris Patterson 52:39
Your book does an excellent job explaining these processes clearly—it’s well-written and accessible for laypeople unfamiliar with legal systems. However, I have two suggestions for future editions if you’re open to feedback.
First, while you touch on case theory (the combination of legal and factual arguments), you don’t explicitly frame it that way. Helping readers understand how judges evaluate competing case theories could be valuable—especially emphasizing the importance of considering opposing arguments.
Second, I think your book could benefit from a section on oral evidence—how to give it effectively and how to cross-examine witnesses. Many lay litigants struggle with this aspect because they don’t understand its purpose or how to prepare properly.
Martin Dillon 54:17
That’s great feedback—I’ll definitely consider those points for future editions! Oral evidence is tricky even for experienced lawyers; it took me years before I felt confident handling witnesses in court.
Chris Patterson 54:17
One thing that's missing from the objective in Rule 1.3—“just, speedy, and inexpensive determination”—is the concept of proportionality. In my experience, there’s often a conflict between the rules themselves and their application. On one hand, the rules exist to improve judicial accuracy, ensuring judges produce accurate judgments with minimal errors. On the other hand, lawyers often take a maximalist approach, turning over every stone to avoid negligence claims from clients. This approach can escalate costs unnecessarily.
At some point, there needs to be a cost analysis—what Lord Justice Eady called “the game must be worth the candle.” For example, if a claim involves $30,000 or even $300,000, that might represent an entire year’s savings for one party. Yet for another party—or even some judges—it could be considered a modest claim. The stakes are very different depending on perspective.
Do you think proportionality should be made a key principle of our rules to ensure the process is fair and accessible?
Martin Dillon 57:48
I think that would be great, but I struggle to see how it could be implemented effectively. You mentioned judicial accuracy as a justification for detailed procedural rules, but I find it hard to see how these rules directly improve judgment accuracy. Instead, they often create opportunities for errors or abuse by one party against another.
The rules are primarily about ensuring natural justice—allowing both sides to present their case fully. But their complexity can make them inaccessible and difficult to follow, especially for litigants in person. Simplifying these rules could help improve access to justice without compromising fairness.
Chris Patterson 1:02:01
Simplification sounds like a good idea. However, one issue is that the Rules Committee is primarily made up of judges and senior lawyers—people who may not fully understand the experiences of ordinary court users. For example, many users are small business owners or individuals disputing modest sums like $30,000. These people pay taxes to fund the courts but often find litigation uneconomical due to costs and complexity.
Do you think there’s a case for including more diverse perspectives—such as representatives from community law centers or ordinary litigants—in the rule-making process?
Martin Dillon 1:06:50
Absolutely. Having representation from average court users would help ensure the rules are more practical and accessible. While judges and senior lawyers bring valuable expertise, they may lack firsthand experience with the challenges faced by everyday litigants in person or small businesses.
Chris Patterson 1:07:53
That’s a great point. It’s like having referees write all the rules for a sport without consulting players or coaches. You need input from all stakeholders to create fair and effective rules.
Martin Dillon 1:09:37
Exactly. Simplifying procedural rules and making them consistent across different courts and tribunals would also help improve access to justice. If people understood these rules better—perhaps through education in schools—they’d be better equipped to navigate legal processes.
Chris Patterson 1:15:11
Education about our legal system in schools is an interesting idea. Teaching basic civics—like how courts work and what rights people have—could empower individuals and reduce reliance on lawyers for straightforward cases.
Martin Dillon 1:17:08
Yes, it could also prevent people from being misled by unreliable sources online. Accessible legal education would help people make informed decisions about their cases and reduce frustration when navigating the system.
Chris Patterson 1:19:11
Litigants in person seem to be increasing in number, partly due to financial barriers. Many fall into that “disadvantaged middle band”—earning too much for legal aid but not enough to afford private lawyers. This group often ends up representing themselves out of necessity rather than choice.
Martin Dillon 1:21:08
That’s true. Legal aid is essentially an interest-free loan with strict eligibility criteria. Even if someone qualifies, they may still face repayment obligations that make litigation financially risky.
Chris Patterson 1:23:24
Exactly. And while legal aid provides cost protection for recipients, it can sometimes create perverse incentives—encouraging unnecessary litigation because recipients know their exposure is limited.
Martin Dillon 1:25:28
I’ve seen that happen occasionally. Some legally aided clients become disengaged or make unusual litigation decisions because they’re shielded from costs. It can be frustrating as their lawyer.
Chris Patterson 1:27:14
One way I address this is by writing directly to opposing counsel and outlining why settlement offers should be accepted. I also inform legal services if unreasonable behavior occurs during litigation—it helps keep things fair.
Martin Dillon 1:29:12
That’s a good strategy. It might not work in every case, but it’s worth trying to encourage better behavior from all parties involved.
Chris Patterson 1:29:12
Would you agree that litigants in person are not going to go away? In fact, there’s going to be more and more of them. The best thing we can do is embrace that reality and figure out ways to better empower them to navigate the civil litigation process. This way, it meets the great objective in Rule 1.3—being speedy, efficient, and producing a just outcome.
Martin Dillon 1:29:45
I think that’s a good short-to-medium-term solution. It’s a kind of triage solution premised on the understanding that there’s a significant number of people who fall into that gap—those who don’t qualify for legal aid but also can’t afford private lawyers. It’s not just financial barriers; it’s also the bureaucracy around accessing legal aid that deters many lawyers from taking on these cases.
Chris Patterson 1:30:00
I’m glad you raised that point. Having spent years honing my skills as a dispute resolution lawyer, I often find myself filling out lengthy legal aid forms and answering administrative questions from Legal Services. It feels like I’m acting more like a legal secretary than a lawyer. Sometimes I wonder if all the time and effort invested in my training could be better spent elsewhere.
Martin Dillon 1:31:02
Exactly. The time it takes to justify a few hours of work for a legal aid client can make the entire process feel unproductive. There’s so much back-and-forth with amendments, explanations, and additional questions—it can feel like an endless cycle. At times, I’ve thought about never taking another civil legal aid case again—but then someone walks through the door with a compelling story, and I find myself taking it on.
Chris Patterson 1:31:57
It’s an important service, though. If the legal profession stopped providing legal services via Legal Aid, the access-to-justice gap would widen considerably. However, the system is inefficient. It would be great if Legal Services or Community Law could take over the administrative burden so lawyers could focus on representing clients.
Martin Dillon 1:33:18
Absolutely. If we simplified the process and trusted lawyers more to make decisions about necessary steps in litigation without excessive scrutiny from Legal Services, it would make things much easier.
Chris Patterson 1:33:48
Let’s move on to something else. You were talking earlier about litigants in person—how we need to embrace their presence in our system and ensure they don’t become an unnecessary burden on court resources. What can we do as a profession or society to make their journey through litigation more efficient?
Martin Dillon 1:36:21
Better information and education would be a good first step. Many litigants don’t necessarily need full legal representation—they just need accessible, understandable information about how to take each step in the process. Others need more help, but not necessarily from judges or high-cost resources. We could involve professionals who cost less than judges—perhaps lawyers under an improved legal aid system.
Chris Patterson 1:38:05
There’s been research into why people choose not to use lawyers, and it’s not always financial barriers. Some believe they can present their evidence better than a lawyer could or simply mistrust lawyers altogether.
Martin Dillon 1:38:28
Yes, mistrust is definitely a factor for some litigants in person. Others have fixed ideas about how their case should be run—often informed by TV shows or misinformation online—and they’re unwilling to accept advice from authoritative sources like lawyers or judges.
Chris Patterson 1:40:57
Your book does an excellent job addressing these challenges by providing clear guidance for non-lawyers navigating litigation processes. However, I think future editions could include sections on case theory and oral evidence preparation—two areas where lay litigants often struggle.
Martin Dillon 1:46:03
That’s great feedback—I’ll definitely consider adding those sections in future editions! Oral evidence is tricky even for experienced lawyers; it took me years before I felt confident handling witnesses in court.
Chris Patterson 1:48:04
Most civil disputes are resolved based on facts rather than law, so presenting evidence effectively is crucial. Witnesses must master their own evidence, listen carefully to questions, understand them fully, and answer them directly without argument or unnecessary elaboration.
Martin Dillon 1:51:12
I often reassure witnesses by telling them it’s not their job to win the case—it helps alleviate their anxiety. For many people, being interrogated in court can be incredibly nerve-wracking, even if they’re just witnesses rather than parties to the case.
Chris Patterson 1:52:31
Look, you're absolutely right. I mean, you've touched on a really important point, and that is for a lot of witnesses—and I'm just going to say 90% if not more—they are nervous. I'm really fortunate that my partner, who is an anesthetist, once shared an analogy with me. She tells her patients, "This is going to be an extraordinary day for you today, but it's just another day for me." She reassures them that she knows exactly how things will go and that they can trust her to take care of everything. But she also acknowledges their nerves because this is not an ordinary experience for them.
That got me thinking about how easy it is for us as lawyers to take it for granted that witnesses are completely relaxed. For them, it's not just another day—it’s extraordinary and often unsettling. Even experienced expert witnesses can find the process intimidating. As lawyers, we have a duty to guide them through it so they feel they've had a fair shot and aren't traumatized by the experience.
Martin Dillon 1:55:09
Chris Patterson, it's been great to be here. Thank you so much for having me. It's been a great time. I've enjoyed it—and thanks for plugging my book too. That was really nice of you.
Chris Patterson 1:55:23
Thank you for tuning in and listening to this episode of The Law Down Under Podcast. You're welcome to join in on the discussion via my podcast page, which you can access at patterson.co.nz—that's P-A-T-T-E-R-S-O-N dot C-O dot N-Z. Thanks for supporting the podcast, and tune in again for more on the law, its application, and the future of the law here Down Under.
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