Find out about the court or tribunal
When preparing to self-represent, ask or read about the court or tribunal you are going to appear in. Visit the relevant court or tribunal again and familiarise yourself with how hearings are conducted. Take notes of the procedures and the roles of the different people. 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, presenting your own case may not be as stressful. It might also help to read the Act of parliament that regulates that particular court or tribunal, so you know what its powers are.
All cases that come before 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 decides 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 evidence. The adversary system is based on the idea that the best outcome is reached by weighing up powerful arguments on both sides of the question, and deciding which side is more convincing based on the evidence presented.
For the adversary system to be fair and consistent, both parties must follow strict procedures and rules regarding evidence. 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 An introduction to the 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 case in the court, especially if the other side has a lawyer to help them.
Tribunals are less formal and less adversarial than courts, and have less strict procedures and rules; this makes it easier for an individual to present their own case.
If you are representing yourself, you may (but not always) receive some guidance from the judge or magistrate – or from the decision-maker at a tribunal – about what happens in the court or tribunal and the procedure you have to follow. However, they cannot advise you about the best way to present your case. If you are representing yourself, you must decide how to present your case, based on the preparation and research that you have done, and any legal advice you may have sought.
You need to read about the relevant area of law. General textbooks may direct you to other material you need to read, for example:
• relevant Acts of parliament (i.e. legislation);
• cases reported in law reports;
• textbooks on particular points or types of law.
(For other places to look for information about the law, see “Finding the law” in Where our laws come from.)
If you are appearing in court in a contested hearing, you should familiarise yourself with the basic rules of evidence by looking at an up-to-date evidence textbook, and reading the Evidence Act 2008 (Vic). A clear guide to presenting evidence in court is included in Max Perry’s book, Hampel on Advocacy: A Practical Guide to Basics (published by the Leo Cussen Institute, Melbourne, 2010 revised edition). This book is written for lawyers about how to represent their clients, but it also contains information about how to speak in court and how to present arguments and evidence.
The information you need – about courts and tribunals, how they operate, and the laws you need to know – is available at a number of libraries, including the State Library of Victoria and VLA’s public law library (see “Contacts”).
Aside from legal books, information sheets and pamphlets are often available from government departments (e.g. online from the Victorian Government Department of Justice and Community Safety), or a court or tribunal. While the information may be brief, it provides clear guidance.
Apart from printed materials, there are other sources of help and advice (that can be accessed in person and online):
• the Federation of Community Legal Centres Victoria (www.fclc.org.au);
• the website of the Australian Legal Information Institute (www.austlii.edu.au);
• VLA’s Legal Help phone line (1300 792 387) and website (www.legalaid.vic.gov.au);
• the Victorian register of legislation (www.legislation.vic.gov.au), which has all the current Victorian Acts and Bills;
• the federal register of legislation (www.legislation.gov.au), which has all the current Commonwealth Acts;
• the Law Institute of Victoria’s Find a Lawyer Legal Referral Service, which provides a searchable register of LIV member lawyers (i.e. private lawyers) who offer a free initial consultation (www.liv.asn.au/find-a-lawyer);
• Justice Connect, which is a community legal service that delivers free legal services and connects members of the public with pro bono or volunteer legal assistance from the private legal sector, and also provides a self-representation service for people representing themselves in the Federal Court or Federal Circuit Court (www.justiceconnect.org.au);
• you can speak to the clerks and registrars of courts and tribunals in person by visiting the information counter at the court or tribunal;
• websites of courts and tribunals (see An introduction to the courts);
• you can speak with Victorian Court Network staff in person at the Victorian courts where they are located (see www.courtnetwork.com.au);
• the Victorian Criminal Charge Book, the Uniform Evidence Manual and the Victorian Sentencing Manual are guides to applying the law in Victoria that are used by magistrates and judges; these guides are available on the Judicial College of Victoria’s website (www.judicialcollege.vic.edu.au).
Your effectiveness at a court or tribunal hearing depends on your ability to recall, and clearly state, the facts of your case. Most cases (whether criminal or civil) involve a dispute about facts. Therefore, it is important to:
• write down the facts;
• compile all the facts in an orderly manner. Pay attention to detail. Write things down in the order in which they happened (chronological order);
• divide your facts into segments that are easy for you to quickly identify. This is important because if you are not permitted to present one aspect of your case, you can quickly move to your next point;
• think about which facts are disputed in your case and which facts are agreed on. This will help you work out which facts you need to establish by presenting evidence;
• read the facts you have written down and decide how you will put each fact to the court or tribunal. If your case involves disputed facts, you will need to provide evidence to support your version. There are two ways to present facts to a court or tribunal; either:
– give the evidence yourself in your own words; or
– call someone else to give the evidence; that is, you call a witness.
If you have an “exhibit” (i.e. a document, video, recording, photo or other object that you believe is evidence of a particular fact), that exhibit usually has to be provided at court through a witness or by the person who produced or created the exhibit (e.g. by the person who took the photos of damaged property).
It is important to read the Evidence Act 2008 (Vic). This Act sets out the rules about what type of evidence can be used in court, and what facts evidence can be used to prove. There are some strict rules. For example, in general, people are not allowed to say their personal opinion about something when they give evidence; they can only say what they directly saw or heard.
Once you have put together all of the facts, write down the final argument or proposition that you are aiming to prove. Write down a list of arguments in an orderly manner so that you can easily move from point to point. Make sure that each point in your argument can be backed up by evidence.
Keep checking that you are staying focused on the facts that are disputed. Do not prepare lengthy arguments or points about facts that are already agreed on or are not relevant to deciding the key issues in the case.
Ensure that your notes are well organised before the hearing. Do not be afraid to rely on your notes during the hearing. Be prepared to answer any questions that the magistrate asks you.
If your arguments are based on principles stated in another legal case, you should say so. Refer to the case by name and give a copy to the clerk sitting in front of the magistrate. If it is a lengthy case, tell the magistrate the relevant page number and paragraph number for the principle on which you are relying.
Communicating clearly in court is extremely important; you need to speak clearly and present your arguments in a logical, step-by-step way. You will not persuade the court by talking about things that do not relate to your case. If you have the chance, practise your argument by saying (or reading) it aloud, perhaps in front of family or friends, so that you become used to speaking in public.
A person who can provide information about a “fact in issue” may be called as a witness. A “fact in issue” is a fact that is in dispute (i.e. the other side has a different opinion or perspective of that fact). Be careful when deciding to call a witness. Your witness can be asked questions, or “cross-examined”, by the other side and asked questions by the magistrate, and their answers might not be helpful to you.
Generally, there is only one way to “give evidence” to a court or tribunal. You stand in the witness box, take an oath or affirmation to tell the truth, and then tell the court your information from your knowledge and belief. The other party may then ask you questions about what you have told the court.
With an oath, you swear to tell the truth on a religious book of your choice (e.g. the Koran or the New Testament). An affirmation means making a promise to tell the truth without a religious book. You can do either in court.
In most cases, written statements made by witnesses who do not attend court are not acceptable. This is because each party must have an opportunity in court to question the other party’s witnesses.
It is your responsibility to organise your witnesses to come to the court or tribunal. This must be arranged well in advance of the hearing date. Sometimes it is necessary to summons them formally (e.g. to satisfy their employer that they are required to come, or because you think they might not turn up). You can ask for help with summonses or subpoenas to witnesses from the clerks and registrars of the court or tribunal.
Check the cost involved in having witnesses come to court. Initially at least, you must pay the cost of bringing your witnesses to the hearing. If your witness is an expert (e.g. a doctor), or is losing income because of the time spent attending your case, you will probably have to pay a fee or reimburse your witness. You will need to negotiate this with your witness before the hearing day.
In some court hearings, the party who loses the case must pay the other party’s costs. This is always the decision of the magistrate who hears your case, and you will have a chance to have your say about this issue. However, in most tribunals, this rule does not apply; usually each party is responsible for their own costs, regardless of the outcome of the hearing. Contact the tribunal in advance to find out what the rules are in relation to legal and witness costs.
Is there any possibility that you can negotiate with the opposing party to settle the issue or narrow the issues in dispute before the court hearing? Most forums – including the Magistrates’ Court, the Family Court and VCAT – provide time for negotiations to take place between the parties before they attend a formal hearing. In many jurisdictions, negotiation is required. Settling the matter before the court hearing saves time, effort and money.
It may be that a lawyer is willing to conduct negotiations on your behalf, even if they cannot represent you at a hearing. Always ask your lawyer about the extent of help available to you. If you are told that you cannot obtain any further assistance, request a referral to an alternate legal service that could help you.
To ensure that your presentation to the court is the best that you can give, remember the following:
• careful listen to what is being said by everyone in the room, so that you can respond accurately;
• take notes during the hearing to help you to remember what was said, when it was said and who said it;
• remain polite and courteous, especially when under stress – disruptive or contemptuous behaviour or abusive language is unlikely to persuade the magistrate of the value of your case;
• only one person may speak at a time. If you are not sure whether or not it is your turn, simply ask, “May I say something, please?” This will ensure that you have your say, at the appropriate time;
• use “Madam” or “Sir” to address people if you do not know how else to address them; if you are speaking to a magistrate, you should address them as “Your Honour”;
• there are no fixed rules about what to wear, but a neat and tidy appearance is more likely to create a good and positive impression. Your head and eyes should not be covered by a hat or sunglasses, unless this is necessary for religious observance or due to a medical condition;
• make sure that you respond to the arguments made by the other side. Address each argument separately and refer back to the notes you have made during the proceeding;
• always feel free to tell the magistrate if you have further information that you believe is relevant to your case that they have not yet heard, or to request a brief break.
Note that you are allowed to have a friend present at the court hearing; they can support you by taking notes and giving you quiet advice. Your friend is not permitted to appear for you, and may not advocate for you. In other words, you must do the talking and arguing yourself.