In this chapter, the word ‘tribunal’ refers to both Commonwealth tribunals and to VCAT.
Engaging a lawyer
The legal system (especially the courts) is designed to have lawyers represent the parties involved in a dispute. For any case where you are a party, you can engage (hire) a lawyer to advise you and, in most cases, to represent you (see Chapter 2.1: Legal representation).
A lawyer’s job is to act on your instructions while still following the ethical rules of their profession. Lawyers can tell you about your options for how to handle your case and the possible different outcomes, based on their legal knowledge and experience.
Having received your lawyer’s legal advice, you can tell them how you want the case to be run and which options you want to take. This is called giving ‘instructions’. Your lawyer can then prepare your case and speak for you in court based on what you have told them you want to do and what outcomes you are hoping for.
Legal representation is helpful because lawyers have detailed knowledge of the law and legal procedures, which guide them to run a case to get the best outcome.
In most circumstances, you will need to pay to hire a lawyer. In some cases, there may be legal services that can act on your behalf for free.
For information about finding and hiring a lawyer, see Chapter 2.1: Legal representation.
If you cannot afford to hire a lawyer, you may be eligible to receive free legal advice and possibly representation from Victoria Legal Aid (VLA) or from a community legal centre (CLC). (For more information about this, see Chapter 2.2: How legal aid can help, and Chapter 2.4: Legal services that can help.) Note that the types of cases and the circumstances in which VLA or a CLC can represent you for free are quite limited.
If you are one of the parties in a legal case, you can choose to present your own case to the court or tribunal (referred to in this chapter as ‘self-representation’). Self-representation is permitted in all Victorian courts and tribunals, as well as in the Federal Court and the Federal Circuit Court. (For more information about the different courts, and the types of cases heard in them, see Chapter 1.2: An introduction to the courts.)
Self-representation in the Magistrates’ Court
In the Magistrates’ Court of Victoria, self-representation is permitted in criminal matters (under s 328(a) Criminal Procedure Act 2009 (Vic) (‘CP Act’)) and in civil law matters (under s 100(6)(a) Magistrates’ Court Act 1989 (Vic)).
Self-representation in the Family Court
In the Family Court of Australia, self-representation is permitted under rule 8.01 of the Family Law Rules 2004 (Cth).
Self-representation in tribunals
In tribunals, self-representation is always permitted. Tribunals are designed to be simple, low-cost jurisdictions that are very accessible for self-represented parties. In some circumstances, self-representation is the default position and you are required to seek the tribunal’s permission to have a lawyer or a legally trained advocate to represent you (s 62 Victorian Civil and Administrative Tribunal Act 1998 (Vic); s 32 Administrative Appeals Tribunal Act 1975 (Cth)).
In Victoria, the main tribunal is the Victorian Civil and Administrative Tribunal (VCAT). There is also the Commonwealth Administrative Appeals Tribunal (AAT), which deals with administrative decisions made under federal legislation.
Self-representation in cases involving family violence or sexual offences
In cases where family violence or sexual offences are alleged, you may not be allowed to represent yourself throughout the whole case. This is because certain witnesses are ‘protected’ – meaning only a lawyer who has no relationship with the witness is allowed to question them in court. If you are the alleged perpetrator, the court may say that you must have a lawyer to question (‘cross-examine’) the witnesses on your behalf.
If you are not eligible for free legal representation and cannot afford to pay a lawyer, in some cases, a court can order VLA to provide limited free representation to you for parts of your hearing. It is important to seek legal advice as early as possible in these types of cases (see Chapter 2.4: Legal services that can help).
Self-representation out of court
Self-representation also includes directly advocating on your own behalf with the other party in a legal dispute, without the dispute necessarily ending up in a court or tribunal. This could include advocating for yourself in relation to a debt or making a complaint and seeking an outcome (e.g. an internal review of a decision you disagree with, or an apology, or compensation). If you can access appropriate legal information and advice, and can put this into practice in advocating for yourself, a good outcome is possible, particularly in civil law disputes.
Going to a court or tribunal might be an option, but this can be avoided if your advocacy leads to an agreement to settle the dispute that both sides are happy with. Where cases are heard by a court or tribunal, negotiation to try and resolve the dispute by agreement is also generally encouraged at all stages of the legal process.
Making the decision to self-represent
You may choose to self-represent or you may not have another option. Either way, the skills and resources you are likely to need to represent yourself include:
- a good level of English reading and writing skills;
- internet access and the ability to use the internet to communicate and find information and resources;
- time and the ability to prepare and organise information and resources. This could include reading the relevant legislation and the rules of the court or tribunal. You may not need to do any research if your case is straightforward and you have obtained legal advice before your hearing about the law and court procedures relevant to your case. For example, many people can effectively self-represent in a criminal case where they are pleading guilty to a minor charge and they have received legal advice in advance. However, you may still need to gather character references and other documents to support your case;
- the ability to speak for yourself in a court or tribunal in front of a magistrate or the decision maker at a tribunal. You do not need to be an experienced public speaker, but you must be able to communicate clearly.
If any of the points above are challenging for you, this may indicate that you could be eligible for some form of free legal assistance, including representation. It is worth contacting VLA (tel: 1300 792 387) or a community legal centre (see Chapter 2.4: Legal services that can help) to discuss the challenges you experience to see if you are eligible for free legal help.
Attend court unless you are sure you do not need to
In certain circumstances, it may be possible for you to not attend court at all; but in many cases, you must attend. You should seek legal advice about this if possible, as you may be disadvantaged if you do not attend court. You can also always check what you must do by contacting the court or tribunal and asking the staff. Keep notes of any discussions you have with court staff (e.g. who you spoke to, the date and time, and what you were advised to do).
Attending court and COVID-19
Due to the COVID-19 pandemic, courts and tribunals across Victoria have developed processes to handle cases remotely by using online video conferencing, by allowing some people to attend hearings via telephone, and by dealing with some cases ‘on the papers’ (this is where written documents are submitted to the court or tribunal by both parties and the court makes a ruling based only on these documents). However, some matters still require the parties to physically attend hearings.
The rules can rapidly change to reflect the directions of the Victorian Chief Health Officer. Therefore, it is best to phone the court or tribunal where your case is listed (at least three days before your hearing date) to determine how you will participate in the hearing.