All cases that come before the Australian courts are decided according to what is called the adversary system. Under this system, the Judge or Magistrate plays the role of an independent arbiter who is supposed to decide issues of law without favour or prejudice.

The term "adversary" refers to the nature of the trial process, which pits two parties against each other in a "contest" that aims to test the opposing arguments and to discover the "truth". The adversary system is based on the idea that truth is best discovered by powerful arguments on both sides of the question.

For the adversary system to be fair and consistent, both parties must follow strict rules of evidence and procedure. Each court in the hierarchy, the High Court, the Federal Court, the Family Court, the Supreme Court, the County Court and the Magistrates' Court (see: diagram in Chapter 1*2 Courts), has its own particular rules, which must be understood and followed. If you do not understand these rules, it may be difficult for you to present your own case in the court, especially if the other side has a lawyer to help them.

Tribunals are less formal than the courts about rules of evidence and procedure, and make it easier for individuals to prepare and present their own case.

If you are representing yourself, you may (but not always) receive some guidance from the Judge or Magistrate who presides over the court, or from the person who presides over a tribunal, about what happens in the court or tribunal and the procedure you have to follow. However, they cannot give you advice as to the best way to present your case. It is, therefore, best to seek advice prior to any court or tribunal date or deadline.

It is critical to decide as soon as possible whether or not you will present your own case to the court or tribunal. This decision should be made only after carefully considering all of your options.

When deciding whether or not to self-represent, ask or read about the court or tribunal you are going to appear in. It might also help to read the Act of Parliament that regulates that particular court or tribunal, so you know what its powers are.

It is essential that you go to the relevant court or tribunal and familiarise yourself with how hearings are conducted. Almost all are open to the public. It may be useful to observe the hearing of a case similar to yours. If you don't have time to do this, it is unlikely that you will have time to prepare your case properly. Take notes of the procedures and the roles of the different parties. Pay attention to the kind of language used and find out the meaning of any terms you do not know. If you are familiar with the procedure and atmosphere beforehand, it may not be quite as stressful when you are presenting your own case.

When you have found out what is involved in representing yourself, you need to sit down and think about it very carefully. You may decide that this is not the best option for you, or that it would be too hard for you to do it on your own. If you need to get legal assistance, it is important to do so as early as possible before your case is to be heard. The legal assistance available to you may be limited to advice prior to your case being heard.

Weigh up what is at stake and ask yourself whether you:

Do not be too hard on yourself: recognise that it will be a challenge, especially if you have never done anything like this before. If you still feel able to answer yes to these sorts of questions when you know what is involved, then you are in a position to represent yourself.

Your decision to represent yourself may be because you can't afford to get a lawyer to represent you, and do not qualify for legal aid. Victoria Legal Aid (VLA) does not have the capacity to aid all the people who are unable to pay for a lawyer to represent them, but it may be able to provide you with some information or advice (see: "Victoria Legal Aid" in Chapter 2*4 Advice Directory for how to contact the VLA Head Office or regional offices). See also: "Other sources of legal information", Chapter 2*3 Legal Aid.

Even if you choose to represent yourself you are permitted to have any person of your choice attend the hearing as your "next friend". Your friend may take notes during the hearing, and may quietly make suggestions and give you advice. Your friend is most often not permitted to appear for you and may not advocate for you. In other words, you must do the talking and arguing yourself.

In certain tribunals, representation by a non-legal expert may be permitted. Contact the court or tribunal in which you will be appearing to find out what is allowed and how to organise it. (To find further information, see: "Specific tribunals and courts", at the end of this chapter.)