This chapter provides basic information and advice for people who are required to attend a An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. or A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. for a The time and place at which a court or tribunal hears the parties argue their case and makes a decision. to which they are a A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses..
In this chapter, the word ‘tribunal’ refers to both Commonwealth tribunals and to VCAT.
If you are one of the parties, you can choose to appear ‘in person’ and present your own case (referred to in this chapter as ‘self-representation’).
When is Presenting your own case in court without having a lawyer there to assist you. an option?
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.)
In the Magistrates’ Court, self-representation is permitted in criminal matters (under s 328(a) Criminal Procedure A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 2009 (Vic) (‘CP Act’)) and in civil matters (under s 100(6)(a) Magistrates’ Court Act 1989 (Vic)).
In tribunals, self-representation is always permitted. In Victoria, the umbrella tribunal is the Victorian Civil and Administrative Tribunal (VCAT). There is also the Commonwealth Administrative Appeals Tribunal.
In some civil and criminal cases, where family violence or sexual offences are involved, 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 A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. is allowed to question them in court. The court may say that you have to have a lawyer to question (‘cross-examine’) them on your behalf. For this reason it is essential to get legal advice for these types of cases.
Making the decision to self-represent
It is critical to decide as soon as possible whether or not you A document that sets out what a person wants to happen to their money and other property after they die. present your own case to the court or tribunal. You should only decide after carefully considering your options, and after you have found out what is involved in representing yourself.
To find out what is involved, visit the relevant court or tribunal to see 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 do not have time to do this, it is unlikely that you will have time to prepare your case properly.
After you have found out what is involved in representing yourself, weigh up what is at stake and ask yourself whether you:
- have the time to properly prepare your case;
- have the skills to talk about and argue the case before the opposing party and at the hearing of the case;
- have the The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. to remain clear-headed in the face of difficult decisions and to make decisions under pressure that are in your best interests.
If you answer yes to these questions, then you are in a position to represent yourself. If you answer no, do not be too hard on yourself; self-representation is challenging. If you can afford to pay a lawyer, or you qualify for legal aid funding, or you can access free or low-cost legal representation from a community legal centre, then you should seriously think about having a lawyer represent you.
Engage a lawyer
Alternatively, you can engage a lawyer to represent you (see Chapter 2.1: Legal representation). If you want to find out if a private lawyer can help you and what The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. are involved, contact the Law Institute of Victoria’s Find a Lawyer Legal Referral Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence. (see www.liv.asn.au/find-a-lawyer).
If you cannot afford to (1) An agreement to pay for the temporary use of something, for example a car. Also called renting or leasing. (2) To employ someone to do work. a private lawyer, contact your local community legal centre (see www.fclc.org.au); they may be able to provide you with free legal advice and representation.
You can also contact Victoria Legal Aid (VLA) as they may be able to represent you – while VLA does not provide free legal representation for all cases, VLA staff can provide information about the law and court procedure (see www.legalaid.vic.gov.au).
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 court. You should seek legal advice about this if possible, as you may be disadvantaged if you do not attend court. For example, if you do not attend court while on The procedure that allows a person who has been charged with an offence to be released from police control or prison until the hearing of the case. Courts can add conditions to bail. For example, they can require that people released on bail promise to come to the court on a set date, or put up an amount of money that they cannot get back if they do not appear as they promised. See also undertaking., you could be arrested and charged with breaching your bail undertaking.