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Representing yourself

08 Aug 2016 - 16:55 | Version 6 |

This section provides some basic information and advice for people who have to attend a court or tribunal or intend to go to court as one of the parties.

A person involved in a dispute is often referred to as a party. Usually there are two parties in a dispute. In a civil matter the person who starts a legal action is called the plaintiff or applicant, depending on the type of matter; the person defending the action is called the defendant or respondent. In a criminal matter they are called the prosecution and defence, or if an appeal occurs, the appellant and respondent.

A party to a dispute can choose to either:
  • appear in person and present their own case
  • engage a lawyer to represent them.

Deciding whether to self-represent

Self-representation is permitted in all Northern Territory courts. In the Local Court self-representation is permitted in both criminal and civil matters [LCR r.1.15]. In the Federal Court self-representation is permitted under Order 4, rule 1 of the Federal Court Rules 2011. A person can also represent themselves in criminal and civil proceedings in the Supreme Court [SCR r.1.14]. In tribunals self-representation is always permitted, and as a consequence these bodies adopt a less formal style.

In some circumstances a person will need to get the court's permission before they can represent themselves. For example, a person who is a director of a company must ask the court if they wish to be represented by anyone other than a solicitor [SCR r.1.12; LCR r.1.15, Federal Court Rules 2011 r 4.01].

It is important for a person to make the decision to represent themselves, if that is what they wish to do, as early as possible. The decision to self-represent should only be made after serious consideration has been given to other options.

What does self-representation require?

A person who has decided to represent themselves should go first to the relevant court or tribunal and watch some cases in action. Almost all are open to the public. If they don't have time to do this, it is unlikely that they will have time to prepare their own case properly.

The person should weigh up what is at stake and ask themselves the following questions:
  • Do I have the time, energy and self discipline to devote to the preparation and running of the case? An easy way to determine how much time will be needed is to establish how much it would cost for legal representation. Divide this dollar figure by 100 and then multiply that figure by 10. That is a good guide to the number of hours a person of little or no experience, and average ability, will have to spend to do what is necessary to properly bring a matter through to the same stage quoted by the lawyer. For example a civil matter might cost $10,000 for a law firm to take to a specific stage. In that case the calculation for self-representation is: $10,000 / 100 = 100, then 100 x 10 hours = 1000 hours. It should be remembered that a skilled legal representative is already knowledgeable about the law, very familiar with legal processes and has spent up to seven years in professional education before practising. They will know all the traps, rules and shortcuts. A person who is representing themselves has no such knowledge. Also remember that this 1,000 hours might be spread, in fits and starts, over a year or maybe more. NTLAC can provide a person with an idea of how long their particular matter will take to run its legal course.
  • Have I got the skills to talk about and argue the case against the opposing party and at the hearing of the case?
  • Do I have the capacity to remain clear headed in the face of difficult decisions, and decide in my own best interests under pressure?
  • Am I prepared, given the importance of this particular case, to take the risk on myself?
  • Would I be able to get extra work and earn the extra money after tax that will pay for legal representation?
  • Is this decision a good economic decision?
  • What are my options?
A person doesn't have to be unduly hard on themselves, but they need to realise that self-representation is a challenge, especially if they haven't done it before. Having said that, a person who answered yes to the first three questions and no to the other three is in a position to represent themselves.

Consideration must be given to the issue of legal costs. It is usual for legal costs to follow the event; that is, the winner gets their legal costs paid, to a large extent, by the other side. However, there are cost free zones, such as the Small Claims Court of the NT, Residential Tenancies Board, Social Security Appeals Board and Administrative Appeals Tribunal (AAT). However, a person who comes up against a big firm in a place like the Supreme Court, and loses, may find themselves with a large costs bill. It is possible in a Local Court matter for a self-representative who loses to be liable to pay $2400 in costs for two one hour appearances before the magistrate. If the self-represented person is believed to be unable to pay the costs in a larger venue, such as the Supreme Court, the other side may seek security for its costs or seek to block litigation, by requiring them to put up their house or pay a cash deposit to the court. However, the other side must be able to prove that the person can't pay legal costs if they lose, because the right to legal redress and defence is a fundamental right.

A person who represents themselves may be able to recover some of their legal costs, such as the cost of paralegals who assist with research, typing and photocopying. To recover such costs, the person must provide proof of payment.

If the person is going before the Supreme Court of the Northern Territory, they have the right to access the Supreme Court Library. Legal information can also be found at a number of websites and accessed for little expense. One of the best is the Australian Legal Data Base (AUSTLII) at www.austlii.edu.au. For other ways of finding useful legal information see Finding the Law.

A lack of resources makes it impossible for NTLAC to represent everyone unable to pay for professional representation, but a person representing themselves can still consult NTLAC for free legal advice (see Legal Aid).

Alternatives to self-representation

If self-representation is not the preferred first option, the following alternatives should be considered.
  • Negotiation: a potential litigant should ask the question 'is there any possibility that negotiation would settle the issue without the need for a formal hearing?' Most forums, including the Local Court in its civil jurisdiction, the Family Court, and most tribunals, provide time for preliminary negotiations to take place before attending a formal hearing. Often, if a person approaches an opposing party with a firm proposal to settle the matter, both parties will be encouraged to compromise and settle without further expenditure of time, effort and money. In criminal cases there is less scope for negotiation, especially when the defendant faces only one charge and definitely wishes to plead not guilty. However, if a number of charges are being faced, some may overlap. If that occurs, it may be possible to negotiate with the prosecutor to have any duplicate charges withdrawn. A person who has a number of charges against them would be wise to get legal advice prior to the day of the hearing. For procedural information about pleading not guilty in the Local Court, see Going to Court. For pleading guilty see Going to Court and Sentencing.
  • Next friend (McKenzie friend): a person representing themselves is permitted to have any person of their choice attend the hearing as their next friend. A next friend may take notes, quietly make suggestions and provide other assistance. A next friend is not permitted to appear for a person or advocate for them. In other words a person representing themselves must do the talking and arguing.
  • Other experts: in certain tribunals, representation by a non-legal expert may be permitted. To find out if this is permissible, a person should contact the relevant court or tribunal.
  • Amicus curiae: This Latin phrase means friend of the court. In some instances, such as where a person is unable to speak English well or to conduct their case themselves due to exceptional circumstances, the court may allow a person to advocate on their behalf. This is often found in the case of refugees and immigration matters before the Federal Court, and is allowed in other courts under these exceptional circumstances. The friend of the court must have 'standing'; that is, a right to appear before the court. This is usually conferred by virtue of the statutes that apply to the particular matter. For example in an immigration matter this is found in section 366A of the Migration Act 1958 (Cth).

Court appearances and the adversarial system

All cases that come before Australian courts are adjudicated according to the principles of an adversarial system. Under this system, the judge or magistrate plays the role of an independent arbiter who decides the issues of law without favour or prejudice.

The term adversarial refers to the nature of the trial process, which puts two parties against each other in a contest that aims to test the opposing arguments and to discover the 'truth'. In brief, the adversarial system reflects the notion that truth is best discovered by powerful arguments on both sides of the question.

In order to promote consistency and fairness within the adversary system, courts require both parties to adhere to strict rules of evidence and procedure. Each court in the hierarchy - the High Court, the Federal Court, the Family Court, the Supreme Court, and the Local Court - requires particular rules to be understood and followed. For this reason alone, many people do themselves a disservice by trying to present their own case in court.

While the courts have strict rules of evidence and procedure, tribunals are less formal and allow more scope for individuals to represent themselves. Generally, tribunals allow a lay person to actively participate in proceedings and to construct and present their case.

The role of a judge or magistrate changes in the case where a person represents themselves. Often a magistrate will provide advice on aspects of the proceedings and inform the self-represented person about their rights. Often, when a self-representative is on the witness stand, a magistrate will ask them questions in lieu of them having a lawyer. A judge or magistrate can't advise a self-represented person on how they should argue their case because it would amount to bias.

The barrister on the other side of the matter is not only fighting for their client; as an officer of the court, they are obliged to see that both sides of the argument are fairly put. Most barristers see to it that this occurs.

Before deciding to represent themselves, a person should ask and read about the court or tribunal they are to be heard by. It is essential that they go to that court or tribunal and sit in on some cases to understand how hearings are conducted. It is useful to take notes of procedures and the roles of different parties and where they sit, and the order in which they speak. A person who does this will feel less stressed when they actually appear.

Criminal matters

All criminal matters begin in the Local Court before a magistrate. The offences heard in the Local Court fall into three categories:
  • Indictable offences: the most serious offences, these are not heard to finality in the Local Court. Usually, a preliminary examination is held to determine whether or not the evidence against the defendant is sufficient to have them committed to trial.
  • Summary offences: the least serious offences, summary offences constitute the overwhelming majority of matters that go to the Local Court. These offences are determined summarily by the Judge.
  • An intermediate group of offences: these, though indictable, may be prosecuted on indictment or heard through to finality by a Judge, in some cases with the consent of the defendant.
  • See also Criminal proceedings.

Regulatory offences

Some offences are based on regulations, and the question of intention is not relevant. The facts come before the court and findings are based on those facts. An example of this would be an exceed .08 drink driving charge. Measures are made with the appropriate testing equipment and then, if these are found to be accurate and administered in accordance with the rules, a conviction ensues.

Summary offences (non-regulatory)

These matters are commenced when a person is served an information. This document is usually served by a police officer and details the name of the person complaining, the name of the offender and the offence alleged. It may be accompanied by a summons, which specifies when and where a defendant has to appear. At the court a list is posted giving the courtroom details for all matters that day. If in doubt, a person should ask one of the court staff, called orderlies.

The purpose of the first appearance in court is to determine whether a defendant intends to plead guilty or not guilty. Usually the court orderly calls the names of all those due in that court. A person should make their presence known to the orderly so that their matter is called earlier. They should then sit in the back seats of the courtroom and wait for their case to be called.

Usually, these kinds of matters are heard before a Registrar. The Registrar calls a person's name when their matter is due to be heard. The person should then make their way to the microphone provided, where there is one, or to the bar table. The Registrar asks the defendant whether they are the called person. They are then asked how they plead. If they intend to defend the charge, they plead not guilty. A date for hearing will be set.

Making pleas

Pleading guilty

If a person believes the charge against them to be fair and intends to plead guilty, they should tell the Registrar. The Registrar then puts the case before a Judge.

A person who pleads guilty is given a discount in sentence by the courts when it comes to sentencing. However, a person who pleads guilty can not then argue with the court at sentencing time that they didn't do the crime, in an attempt to reduce the penalty. If a person is pleading guilty they are accepting responsibility for their act.

At the time of sentencing the court allows the defendant to put forward any reasons or mitigating factors why they should lessen the penalty. These might include:
  • pleading guilty
  • requirements to keep a job, such as keeping a driver's licence because a person needs to drive to work. However some drink driving disqualifications have automatic disqualification periods and the Judge does not have the power to allow a licence to be kept
  • family obligations, for example asking not to go to prison because there is no-one else to look after children
  • previous exemplary behaviour as a member of clubs or community associations
  • an unblemished record.
Character references can be handed to the magistrate for consideration as well. At sentencing the prosecution also reads out a list of the defendant's prior offences. These may have nothing to do with the offence and this can be pointed out at this time.

Whatever a person receives as a penalty, they should not argue with the Judge.

Pleading not guilty.

A person who pleads not guilty will have their matter adjourned to a hearing date. If the accused has not had a chance to consider the issues, they might ask for an adjournment so they can get legal advice before indicating what they wish to do.

The defendant has an opportunity to indicate how many witnesses they will be calling, and how much time they feel they need to prepare their case. The prosecution is provided with the same opportunity. When settling on a preferred date for the hearing, a defendant should make sure that the date doesn't conflict with other matters in their life. That does not mean that the court can be kept waiting, but it will usually try to fit a date around legitimate obligations, for example if the defendant has bought plane tickets for a holiday or has a child due to be born.

Matters of the law

Finding the law

An important part of preparing a case is knowing what the law is in the relevant area. The law library at either the University or at the Supreme Court is the best place to get the basic working knowledge needed. A person representing themselves will need information about:
  • the general area of the law you will be dealing with
  • legal advocacy and rules of evidence in general.
For information about where to find information about the law, see Finding the law.

Matters of fact

A person's effectiveness at a court or tribunal hearing will depend on their ability to recall and articulate the facts of the case. It is important to be prepared. To prepare well a person should follow this advice:
  • Write down all the facts they want the court to know, making sure that there are enough facts to prove their case.
  • Compile all the facts in an orderly manner, paying attention to detail. The most common system to use is to write down what happened in chronological order.
  • Divide the facts into easily identifiable segments. It is preferable to do this because, if for any reason a person is prevented from presenting an aspect of their case, they can move quickly on to their next point. The facts should support a person's argument about an element of the case. For instance, an element of the offence may be intention. The prosecution has to prove beyond reasonable doubt that the accused intended to commit the offence. The accused should have a list of facts that introduces a reasonable doubt or, even better, prove they had no intent.
  • Read through and consider each fact that is to be put to the court or tribunal. Plan how to present each fact. For example, a defendant could argue that 'Fred was angry'. The facts that are evidence of Fred's anger may be his red face, the way he stood, and what he did with his hands. Facts can be proved by:
    • testimony or evidence from the defendant
    • evidence from someone else (called a witness)
    • producing some other material, such as a video, that makes the point.
A defendant should be very careful to identify the source of any material and the way in which it was obtained, and learn about how this kind of evidence should be presented in court.

Witnesses

A person who can provide direct information based on their own knowledge about a relevant fact may be called as a witness. In general there is only one way to give evidence to a court or tribunal. The witness stands in the designated witness box, takes an oath or affirmation to tell the truth, and tells the court their information from their own knowledge or belief. Sometimes witnesses can give evidence by video conference. This needs to be organised with the court in advance.

Written statements can be provided to the court, but the person attesting to the statement must be available to answer questions about it. If they don't attend, the statements won't be accepted by the court. This is so because the opposing side must have the opportunity to question or to cross examine a defendant's witness. Similarly, a defendant must be given the opportunity to cross examine a prosecution witness.

It is the defendant's responsibility to organise their witnesses to come to the court or tribunal. This must be done well in advance of the hearing date. Sometimes it is necessary to summons witnesses formally to, for example, satisfy an employer that they are required to come, or make sure they will turn up. The clerks in the court or the court registrar can help with the process of summonsing witnesses.

It is important to check the costs involved in bringing a witness to court. Initially at least, a defendant representing themselves will have to foot the bill for bringing them to the hearing. If the witness is an expert, such as a doctor or a plumber, or is losing income because of the time spent attending the case, the defendant will probably have to pay a fee or reimburse the witness. They will need to negotiate this with their witness in advance of the hearing. Receipts of all costs paid should be kept.

Usually costs follow the event; that is, who ever wins gets their costs paid by the other side. In criminal cases in the NT that amount is limited by the Justices Act [s.77]. In most tribunals, each side pays their own costs.

Presenting an argument

Once a defendant has put together all of their facts, they need to formulate the final argument or proposition they aim to prove to the court. They should write down the arguments in an orderly form to enable them to move from one point to the next; a person arguing their case should not be afraid to rely on their notes during the hearing.

If the arguments are based on principles, stated in a legal case, they should say so. The case should be referred to by name and a copy of it handed to the clerk sitting in front of the judge, magistrate or member. If it is a lengthy case, a flag or 'post it' note in the appropriate page and line where the principle is stated will assist proceedings.

Clear communication

It is absolutely vital for a defendant to make themselves understood. Good books on speechwriting and public speaking are available in most public libraries. Some simple rules to remember are:
  • speak slowly
  • don't mumble - lift the voice up
  • keep language as simple as possible
  • refer to a check list to ensure that everything that was intended to be said was said.

Having your day in court

To give themselves the best opportunity on the day, a person representing themselves should heed the following advice:
  • Pay careful attention to what is being said by everyone in the courtroom. A person should inform the court if they have a hearing disability, or ask to have something repeated if hey haven't heard properly.
  • Take notes during the course of the hearing. They will help a person remember what was said at various times and when it was said.
  • Don't lose your cool. A person representing themselves should remember that the business of the court is to get the facts and determine according to the law the rights and obligations of those involved. The community has deemed it necessary to have courts and it is in everybody's interest that they function properly. A defendant should always remain polite, try to make the court's business as efficient as possible, and maintain a good impression. A person has nothing to gain by drawing disapproval or reproof.
  • Only one person can talk at a time. A defendant who is not sure can ask the person presiding. For example when a Judge is presiding 'May I say something your Honour...'
  • A defendant who doesn't know how to address a person in court should use 'Madam' or 'Sir'.
  • Clean and tidy dress is more likely to create a positive impression.

Civil cases

Much of the above information also applies to developing and presenting a civil case. The following matters should also be considered.

Costs of the other party

It is important to recognise that in civil courts and some tribunals the losing party to a case is very likely to be ordered to pay the legal costs of the successful party. In some situations, for example in the Local Court, these costs can be worth more than the amount in dispute. To minimise the risk of having this happen, a person representing themselves in a civil matter should get objective advice about the strength of their case.

Some jurisdictions cannot award legal costs. In the NT this includes the NT Civil Administrative Appearls Tribunal (NTCAT) and Social Security Appeals. Others, such as the Local Court, can, when awarding costs, only base legal costs on a low hourly rate. The Commonwealth Administrative Appeals Tribunal has a general rule that each side should pay their own costs. Protection against an order to pay the other side's costs should be an important consideration for a person deciding to represent themselves.

Special rules and procedures

The legal system is set up for lawyers representing their clients in disputes. Some tribunals encourage self-representation, others place limits on the types of cases in which lawyers can appear.

Before a person embarks on self-representation they should obtain advice from a lawyer on the steps and procedures. Legal advice can be obtained from a number of organisations, including NTLAC, Darwin Community Legal Service, the North Australian Aboriginal Justice Agency, and the Top End Women's Legal Service (see Legal Aid).

It can also be useful to speak to the staff of the relevant court or tribunal. They can provide information about any special rules and time limits relating to documents that must be prepared. It is important to comply with any rules because a party who fails to prepare documents properly and on time, and the case is adjourned as a result, will probably have to pay the other party's legal costs. They may have their matter struck out and lose.

Both the Local Court and the Supreme Court have Practice Directions which outline the processes and procedures relevant to their jurisdiction. The full list of Practice Directions can be found on the individual Court websites.

Specific tribunals and courts

More detailed information about operation and procedures of specific courts and tribunals is available as follows:

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