Representing yourself

Overview

The term ‘self-represented litigant’ is often used to refer to people who decide to run their own proceeding in a court or tribunal without a legal representative.

In the Northern Territory, a person is permitted to self-represent in both criminal and civil matters before the Supreme Court and Local Court. Tribunals, like the Northern Territory Civil and Administrative Tribunal (NTCAT), are designed to enable and support self-represented litigants.

There are many reasons why people choose to self-represent. For example, they may have been refused legal aid, they may not be able to afford legal representation, and/or they may believe that they are the best person to present their case.

Regardless of the reasons, self-represented litigants are likely to face considerable barriers in presenting their case, which is why it is generally better for a party to a court proceeding to be represented by a lawyer. If this is not possible, the following information is provided to assist self-represented litigants, including people who are considering commencing proceedings without legal representation. It is not a substitute for legal advice or legal representation, which is highly recommended particularly when appearing before a court.

What to consider if you are deciding to bring a proceeding before a court or tribunal?

Everyone has the right to have their legal dispute determined by a court or tribunal. However, in the case of a civil matter, there are other options available that may save you the time, effort and money associated with appearing before a court or tribunal. Those options include:

• Offer of settlement – you may approach the other party and make an offer to settle the matter. If your offer is refused this may at least start a conversation that allows you to negotiate with the other party and arrive at an agreed position that settles the matter.
• Alternative dispute resolution – you may approach the other party and suggest that you participate in alternative dispute resolution, such as mediation, facilitated by a third party for the purpose of arriving at an agreed position that settles the matter.
• No action – you may decide to take no action (even though you have incurred a loss that you attribute to the actions of another party) to avoid the time, effort and money associated with commencing a proceeding before a court or tribunal. You may be able to recover the loss you have incurred through your own insurance or that of the other party thereby resolving the dispute.

In the case of a criminal matter, the Department of Public Prosecutions (DPP) will decide whether you are to be prosecuted before a court. Notwithstanding this, there is some scope for you to enter into negotiations with the DPP about the nature of the charges for which you are to be prosecuted and the agreed facts that relate to those charges. For example, if you enter a plea of guilty to a more serious charge the DPP may agree to withdraw less serious or duplicate charges.

What to consider if you are deciding to self-represent?

If you choose to commence, or are otherwise a party to a proceeding before a court or tribunal, when you are making a decision to self-represent, you are encouraged to carefully consider the following:

The Law

There are two main sources of law – case law and legislation. Case law is based on the decisions of judges in the superior courts like the High Court of Australia and the Supreme Court of the Northern Territory. Legislation is law made by Parliament.

In a court or tribunal, a case is decided by either a judge, jury, or tribunal member applying the law to the facts as found through the evidence that is presented in a trial or hearing. Therefore, to successfully represent yourself before a court or tribunal, you must have a sound knowledge of the law that applies to your case.

You must also have a sound understanding of the rules of the court or tribunal you are appearing before. Those rules set out the procedural steps that must be followed when preparing a case and appearing in a hearing before the court or tribunal. For example, the rules of the Supreme Court of the Northern Territory are found in the Supreme Court Rules 1987 and also Practice Directions that are issued by the Chief Justice from time to time. There are also other rules to consider, such as the rules relating to the admissibility of evidence in a hearing.

The benefits of legal advice and legal representation

When deciding whether to self-represent, it is important to consider the benefits of legal representation, including but not limited to obtaining guidance and support to navigate the law and related legal processes and procedures, which are complex. Legal representation can also help you to understand your rights, responsibilities and the potential outcomes of your legal matter.

When deciding whether to self-represent, it may assist you to obtain legal advice in the first instance, so you can make an informed decision about the most appropriate course of action to take. For example, in a civil matter, a legal dispute may be resolved without needing to initiate a proceeding in a court or tribunal, which can be time consuming and costly. The nature of your legal dispute will also determine whether a court or tribunal has jurisdiction to hear the matter. In a criminal matter, the critical decision to plead guilty or not guilty will determine how the matter proceeds before the court and the preparation that will be required to self-represent.

You can, at any time, change your mind and appoint a lawyer to represent you.

Your personal circumstances

When deciding whether to self-represent, it may assist you to ask yourself the following questions:

• Do you have the time to prepare and run your case?
• Do you have a sufficient understanding of the law to present your case according to legislation, case law and the procedural rules of the court or tribunal?
• Can you speak confidently to the judge or tribunal member hearing your case?
• Are you able to act in your own best interests in a court or tribunal setting, which can be highly pressured and emotive?

If you answer no to any of those questions, it is recommended that you seek legal advice and/or legal representation.

Whilst court and tribunal staff can answer questions about the procedural rules and processes of the court or tribunal, they cannot give you legal advice or help you to prepare or present your case.

Legal costs

Legal costs are a relevant consideration to factor in when you are deciding whether to self-represent.

In the ordinary course, legal costs follow the event, meaning that the successful party is entitled to have their legal costs paid by the unsuccessful party. The amount payable in legal costs varies but can range from thousands to hundreds of thousands of dollars in complex and lengthy proceedings. For this reason, all parties must carefully consider the strength of their case and whether they have the capacity to pay the legal costs of the other party or parties if they are unsuccessful. In some cases, for a proceeding to continue, a party may be ordered to pay money into court or put up an asset as security for the costs of the other party.

Alternatives to self-representation

If self-representation is not your preferred option, however you are unable to retain your own legal representation, you should consider the following alternatives:

Free or low cost legal services and resources

If you are unable to retain your own legal representation, Legal Aid NT offers a range of services that may assist you, including legal information, legal advice, representation, family dispute resolution, and education services. You can call the Legal Aid Helpline on 1800 019 343 for further information in relation to how they may be able to assist you (see Legal Aid).

Legal information can also be accessed via a number of websites. For example, a guide for self-represented litigants in criminal and civil matters is available on the Supreme Court of the Northern Territory website. The websites of the Local Court of the Northern Territory and NTCAT are also user friendly for self-represented litigants with a range of information sheets that explain specific processes and procedures. AusLII at www.austlii.edu.au is an online free-access resource for Australian legal information, including legislation and case law. For other ways of finding useful legal information see Finding the Law.

A ‘next friend’, also referred to as a ’McKenzie friend’, is just another name for a support person who sits with you in a court or tribunal hearing. They have no legal standing and cannot address the court or tribunal on your behalf. A ‘next friend’ can provide moral support, assist with paperwork including the taking of notes, quietly offer non-legal advice, and prompt you to ask particular questions in a hearing. When you attend for your hearing, you should advise court staff that you are a self-represented litigant and have a ‘next friend’ assisting you. A ‘next friend’ is not a substitute for a legal practitioner.

Amicus curiae

Amicus curiae, otherwise referred to as a ‘friend of the court’, are generally not parties to the proceeding, but volunteer or are invited by the court to advise on a matter before the court, usually a point of law in a particular case. A friend of the court must have 'standing' to appear before the court, so in the ordinary course, they will be a legal practitioner. In the matter of The Queen v GJ [2005] NTCCA 20, the Court of Criminal Appeal of the Northern Territory stated “… I accept this Court has power as well as jurisdiction to permit counsel to appear as amicus curiae. Indeed that frequently occurs in this Court, particularly in cases where a person who has been found guilty of an offence wishes to appeal and is unrepresented. In those circumstances it is the long standing practice of this Court to allow counsel to appear as amicus curiae and to put such arguments in favour of the appeal or the granting of leave to appeal as may have been put properly by the appellant or would be appellant had he been legally represented”.

Dietrich application

_Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292_ was an important case decided in the High Court of Australia on 13 November 1992. It concerned the nature of the right to a fair trial in a criminal proceeding, and under what circumstances indigent defendants (defendants who cannot afford legal representation) should be provided with legal aid by the state. The case determined that although there is no absolute right to have publicly funded counsel, in most circumstances a judge should grant any request for an adjournment or stay when an accused is unrepresented.

A self-represented litigant may make a Dietrich application seeking an adjournment or stay of their criminal proceeding until legal representation is obtained in reliance on the decision of the High Court of Australia in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.

What to expect when you appear before a court or tribunal?

Adversarial process

If you are representing yourself before a court or tribunal, you are strongly encouraged to attend that court or tribunal and watch how proceedings, similar to your own, are conducted by legal practitioners. This will assist you to understand the rules, processes and procedures of the court or tribunal, including how to address the presiding judge or tribunal member, how to address the other party, and how to call and question witnesses.

Court and tribunal proceedings in the Northern Territory are adversarial in nature. This means that each party presents argument and evidence in support of his or her version of events to the court or tribunal, and either a jury, judge or tribunal member decides whether the party that commenced the proceeding has proved their version of events to the relevant standard. In a criminal matter, the standard of proof is ‘beyond reasonable doubt’. In a civil matter, the standard of proof is ‘on the balance of probabilities’.

Taking this into account, the basic task of the court or tribunal is to find the facts and apply the law to those facts to make a decision in a legal dispute. As a self-represented litigant you will need to present evidence that proves the facts of your case. You can do this through filing documents in the form of reports, photos or witness statements before the hearing or calling witnesses at the hearing who can provide direct information based on their own knowledge about a relevant fact. A witness may be a lay witness who can give evidence about what they personally saw, heard or experienced in relation to your case or an expert witness who can provide specialised evidence in areas where specific expertise is required which is beyond the knowledge of the court or tribunal, such as a forensic scientific expert who testifies about DNA evidence.

In order to promote consistency and fairness within the adversarial system, courts require both parties to adhere to strict rules of evidence and procedure when presenting evidence. For this reason alone, many people do themselves a disservice by trying to present their own case in court, because the rules of evidence and procedure are complex.

In a case where there is a self-represented litigant, the judge may assist by providing advice on aspects of the proceedings and inform the self-represented litigant about the rules of evidence and procedure. Often, when a self-represented litigant is on the witness stand, the judge will ask them questions in lieu of them having a lawyer. A judge cannot advise a self-represented litigant on how they should argue their case because it would amount to bias.

It is worthwhile to note that in proceedings where one party is self-represented, the legal representative for the other party, is an officer of the court. This means that whilst they will argue for their client they also have an obligation to the court to ensure both sides of the argument are fairly put. Accordingly, when required, they may offer assistance to the court to achieve this outcome.

While the courts have strict rules of evidence and procedure, tribunals like NTCAT, are less formal. They are designed for self-represented litigants. Generally, tribunals allow self-represented litigants to actively participate in proceedings and to construct and present their case as they see fit.

Types of appearances

An ‘appearance’ is another way of saying coming before a court or tribunal. There are different types of appearances in both civil and criminal matters. When you appear before a court or tribunal, you must be ready for the type of appearance. For example, in a criminal matter your first court appearance may be before the Local Court for what is called a mention. This is a procedural hearing where the Judge will hear from you and the lawyer for the prosecution about what steps need to be taken to prepare the matter for trial. It is usually only a brief court appearance where the Judge will make orders and directions for the timely progression of the matter. A mention requires less preparation than a trial. The duration of a trial will vary from 1 day to several days depending on the number of legal issues in dispute and the number of witnesses to be called. At the trial, each party presents their case to the Judge, which generally includes an opening address by the prosecution and then the defence (or accused), calling of witnesses to give evidence, argument and summing up by the prosecution and then the defence (or accused).

How do I prepare for an appearance before a court or tribunal?

As a self-represented litigant you have the same obligations and responsibilities as a lawyer appearing in a court or tribunal. It is your responsibility to prepare your case and present it to the court or tribunal. This includes:

• preparing, filing and serving documents in your case using the correct forms and templates;
• researching the law that is applicable to your case;
• gathering evidence to support your case;
• organising the attendance of witnesses and interpreters for those witnesses if required;
• presenting your evidence in the hearing;
• examining (questioning) witnesses in the hearing; presenting your case (arguments) to the jury, judge or tribunal member with reference to the applicable law;
• following the rules of the court or tribunal, including time-frames for when certain documents need to be filed and served; and
• following the orders of the court or tribunal.

When you attend your court or tribunal hearing you need to be organised. You should make sure you have all the documents relevant to your matter, including those that the court or tribunal or other party has given you. If you intend to refer to a document during your hearing that has not been filed in the court or tribunal, you must have three copies: one set for you, one set for the other party and one set to hand up the judge or tribunal member. You will be expected to be able to tell the court or tribunal the page and paragraph number you are referring to in the document.

What should I do on the day of my hearing?

Attendance

You should arrive at least 30 minutes before the time of your hearing to give yourself plenty of time to go through security and find where your hearing will take place.

When you go inside the courtroom or tribunal room, give your name to the officer assisting the judge or tribunal member and let them know you are representing yourself. If you are unsure, ask them where you should sit.

When your case is called, stand up and move to the bar table if you are not already seated there. Do not walk in front of the bar table or approach the judge or tribunal member sitting on the bench at any time. Do not place your bag on the bar table. If you need to hand a document up to the judge or tribunal member give this to the officer assisting the judge or tribunal member.

Etiquette

You should attend a court or tribunal hearing dressed in neat clothing and suitable footwear. Suitable clothing includes a collared button up shirt; pants, skirt or dress below the knee; and clean closed in shoes.

Courts and tribunals are formal so you should behave appropriately and observe the following rules at all times:

• when you are entering or leaving a courtroom it is customary to bow your head in the direction of the Coat of Arms behind the presiding judge as a sign of respect;
• do not talk unless called upon to speak by the presiding judge or tribunal member;
• listen and follow the directions of the presiding judge or tribunal member;
• address the presiding judge in a court as ‘Your Honour’;
• address the presiding member in a tribunal as either ‘Mr’, ‘Ms’ or ‘Dr’ (as the case may be) and then using their last name;
• when you are speaking to the presiding judge or tribunal member you should stand;
• in a criminal trial do not speak to or approach any member of the jury;
• turn off your mobile phone or switch it to silent;
• take off any hat or sunglasses you are wearing;
• do not eat, smoke or chew gum; and
• do not record or publish any of the proceeding.

You may be asked to leave the court or tribunal if you do not observe those rules or otherwise disrupt proceedings.

Criminal matters

For information relating to criminal matters, see the 'Criminal Proceedings Chapters':

• Investigation and arrest
• Bail
• Going to court
• Sentencing

Specific tribunal and courts

More detailed information about Northern Territory courts and tribunals is available on their respective websites as follows:

• Supreme Court of the Northern Territory: https://supremecourt.nt.gov.au
  On the Supreme Court website you will find guides for self-represented litigants in criminal and civil cases.
• Local Court of the Northern Territory: https://localcourt.nt.gov.au/
• Northern Territory Civil and Administrative Appeals Tribunal (NTCAT): https://ntcat.nt.gov.au
  On the NTCAT website you will find information sheets that have been developed to assist self-represented litigants.