Before the court hearing: Preparing to represent yourself at a hearing
Find out about the court of tribunal
When preparing to self-represent, ask or read about the court or tribunal you are going to appear in. You can speak to the staff of the relevant court or tribunal. If possible, visit the relevant court or tribunal and observe other hearings; this will give you a good idea of how your case may be conducted.
Pay attention to the kind of language used and find out the meaning of any words you do not know. Take notes of the procedures and roles of different people. If you are familiar with the court’s procedures and atmosphere beforehand, presenting your own case may not be as stressful. It might also help to read the Act of parliament that regulates the particular court or tribunal, so you know what its powers are.
Court procedures and rules
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. Each court in the hierarchy (see the diagram in Chapter 1.2: An introduction to the courts) has its own 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. It is important to comply with these rules; for example, if your case is adjourned because you have failed to prepare the documents properly and on time, you might have to pay the other party’s legal costs.
Tribunals are less formal and less adversarial than courts; the procedures and rules at tribunals are also less strict. All this makes it easier for an individual to present their own case.
If you are representing yourself, you may 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 procedures you must 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 you have done, and any legal advice you have sought.
Find the law and other legal information
When preparing to self-represent, you need to read about the relevant area of law. This could include reading:
- the relevant Acts of parliament (i.e. legislation);
- cases reported in law reports that show how the law is applied to particular factual circumstances;
- textbooks on particular points or types of law.
(See also ‘Finding the law’ in Chapter 1.1: Where our laws come from.)
Information 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’ at the end of this chapter).
Information sheets are often available from government departments (e.g. online from the Victorian Government Department of Justice and Community Safety) and from courts and tribunals.
Accessing legal information during COVID-19
Due to the COVID-19 pandemic, many public facilities (e.g. libraries) are currently closed to the public. In most cases, the best way to access legal and procedural information is online. To find out how a particular venue or service is impacted by COVID-19 restrictions, and how you can still access their services and resources, contact the venue or service via phone or email or visit their website.
Other sources of help
Other sources of help and advice (that can be accessed in person, by telephone and online) include:
- Federation of Community Legal Centres Victoria (FCLC) (www.fclc.org.au) – on the FCLC’s website, you can find information about the CLCs in Victoria and their contact details. Most CLCs have their own websites that include extensive and detailed self-help resources for members of the public. Many CLCs specialise in a particular area of the law (e.g. mental health law, employment law, discrimination, social security, tenancy, consumer law and seniors rights) and provide information about that particular area of law.
- VLA’s Legal Help phone line (1300 792 387) and website (www.legalaid.vic.gov.au/find-legal-answers) – VLA’s website hosts an extensive range of legal information on many topics and areas of law that is written in plain English and translated into different community languages;
- Victorian register of legislation (www.legislation.vic.gov.au) – this register has all the current Victorian Acts and Bills;
- federal register of legislation (www.legislation.gov.au) – this register has all the current Commonwealth Acts;
- Justice Connect (www.justiceconnect.org.au) – this is a community legal service that delivers free legal services and connects members of the public to free legal assistance from the private legal sector. Justice Connect also provides a
- self-representation advice and information service to assist people who are representing themselves in certain types of cases in the Victorian County Court or Supreme Court, and in the Federal Court or Federal Circuit Court (see www.justiceconnect.org.au/our-services/self-rep-service);
- clerks and registrars of courts and tribunals – you can ask clerks and registrars for information (by phone, email or in person by visiting the information counter at the court or tribunal); contact details for courts and tribunals are available on their websites;
- Victorian Court Network volunteers (www.courtnetwork.com.au) – you can speak to these volunteers in person at the Victorian courts where they are located. Similar to court staff, Court Network volunteers are not legally trained; however, they can provide information to help you familiarise yourself with the court environment and processes;
- Independent Mental Health Advocacy Service (IMHAS) (www.imha.vic.gov.au) – if you have a case before the Mental Health Tribunal – or you want to know your rights under the Mental Health Act 2014 (Vic) – you can receive non-legal advice, advocacy and information from the IMHAS.
Legal costs of the other party
It is important to know whether or not you may have to pay the other side’s legal costs if you lose the case; this could be an important factor in deciding whether to go ahead with your case.
Therefore, well before your hearing date, contact the court or tribunal to find out what the rules are in relation to legal costs. In some hearings, the party who loses the case must pay the other party’s costs. This is always the decision of the decision-maker (e.g. a magistrate) who hears the case, and you will have a chance to have your say about this issue.
However, in most tribunals, each party is responsible for their own costs, regardless of the outcome of the hearing, except in very specific circumstances.
For more information, see ‘Legal costs of the other party’ under ‘Representing yourself in a civil case’, below.
Preparing to present your case and your evidence
Your effectiveness at a court or tribunal hearing depends on your ability to recall, and clearly state, the facts of your case. Cases that end up being dealt with by a court or tribunal usually involve a dispute about facts.
In a case, the facts are ‘disputed’ when the two opposing parties do not agree about what happened. In such cases, the court or tribunal will decide which version of the facts it accepts based on the evidence presented to the court or tribunal.
For example, you are applying to VCAT for an order to make your landlord repair damage to your home. If your landlord disagrees and thinks there is no need for repairs, then the facts are in dispute. If you and your landlord can’t reach an agreement, you may need to provide evidence that supports your version of the facts at a hearing.
In a case, the facts are ‘undisputed’ when the two opposing parties agree about what happened.
For example, the police claim that you were driving while your licence was suspended and you accept that this is true.
In such cases, you do not need to provide evidence to support your version of the facts. Also, the court or tribunal will not decide which version of the facts is correct.
Instead, you need to focus on making arguments to the court about which penalty would be the fairest and most appropriate for you, given you are accepting the police’s version of events and accepting responsibility for the offence.
Preparing the facts
It is important to:
- Write down the facts as you know them.
- Try writing the facts in chronological order (that is, in the order of when they happened) – this could be a list or timeline of important events or actions that show what happened from your perspective.
- Work out which facts are disputed and which facts are agreed on. This will help you work out which facts you need to prove by presenting evidence. For the facts that are disputed, add references to your chronological list that link each disputed fact to specific evidence to prove that fact.
- There are two main ways to present evidence to a court or tribunal to prove a fact; either:
- give the evidence yourself in your own words about what you have directly done, said, seen or heard; or
- call someone else to give the evidence about something they have directly done, said, seen or heard; that is, you call a witness.
If you have an ‘exhibit’ (i.e. a document, video, recording or photo 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 created the exhibit (e.g. by the person who took the photos of damaged property).
Rules of evidence
The Evidence Act 2008 (Vic) sets out the strict rules about what type of evidence can be used in court, and what facts evidence can be used to prove. 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.
If you are appearing in court for a hearing that will involve evidence and arguments about disputed facts, you can familiarise yourself with the basic rules of evidence. A clear guide to presenting evidence is court is included in Max Perry’s book, Hampel on Advocacy: A Practical Guide to Basics (2010, Leo Cussen Institute, Melbourne). This book is written for lawyers about how to represent their clients, but it contains good information about how to speak in court and how to present arguments and evidence.
Preparing to present your arguments
Once you have put together all the facts, write down the final argument that you are aiming to prove. Also write down a list of points to support your final argument. Make sure that each point can be backed up by evidence.
Keep checking that you are staying focused on the facts that are disputed. Do not prepare lengthy points about facts that are undisputed or are not relevant to deciding the key issues in the case.
Ensure that your notes are well organised before the hearing and that your arguments are clearly written so you can easily move from point to point. 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 points or arguments are based on principles stated in another legal case, you need to say so. Be prepared to refer to the case by name and have a copy of the case ready to give to the clerk sitting in front of the magistrate. If it is a lengthy case, you will need to tell the magistrate where the principle is on which you are relying (i.e. the page number and paragraph number).
A person who can provide information about a disputed fact (also called a ‘fact in issue’) may be called as a witness. 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 hearing, 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. Contact the tribunal in advance to find out what the rules are in relation to witness costs.
You are allowed to speak to a witness who is being called by the other party if you need further information about their evidence to help you prepare your case. However, you must be extremely careful in doing this and always seek legal advice about how to proceed before speaking to a witness for the opposing side. Speaking to a witness out of court may not benefit your case and you are at risk of saying something that could get you into trouble. Trying to influence, intimidate or cause a witness in a court case to change their evidence is a criminal offence.
Is negotiation possible?
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 and strongly encourage this. In many jurisdictions, negotiation is required. Settling the matter before the court hearing saves time, effort and money.
However, be aware that in situations involving allegations of family violence, negotiation that involves any contact between the parties is unlikely to be appropriate and may not be allowed by law.
A lawyer may be willing to conduct negotiations on your behalf, even if they cannot represent you at a hearing. Always ask your lawyer or legal service about the extent of help available to you.
If you are representing yourself in negotiations with another party in a legal dispute, always save copies of all correspondence and take detailed notes of any conversations (e.g. note the date, time, names of those involved and what was said).
Even keep notes of unsuccessful attempts to contact the other party to the dispute as this may be helpful at a later stage to demonstrate that you were pro-active in trying to resolve your case. There are times when it is not appropriate or it is prohibited (not allowed) for you to contact the other party directly (e.g. if your case is a family violence matter and there is a court order prohibiting the parties from having contact). You must not breach a court order or otherwise break the law.