Flying solo

When Alessandra Doney was faced with intractable mould in her bathroom, she contacted her landlord and received an unsuitable response. They went to mediation and, again, couldn’t resolve their dispute. Faced with the prospect of living with the mould or moving out and paying what was, for a newly employed 20-something, a considerable outlay to break the bond and pay the real estate for re-advertising the property, she took the matter to the NSW Civil and Administrative Tribunal (NCAT). 

“I thought we had a pretty good case,” says Doney. “We’d kept all the documentation, had photo evidence and were trying to be reasonable about things.”

But taking the matter to NCAT was far from the simple scenario she had envisaged. “On top of the stress that the problem was causing all the flatmates, I had to take a number of annual leave days to get the documentation ready and appear at the tribunal,” she says. 

“Then, with the documentation, you have to write in a really strict way and I didn’t really know what to put in there. In the end, the tribunal told us that we didn’t have enough evidence, we didn’t get a specialist and no-one had complained before so they made a decision in favour of the landlord. We had to pay everything involved with moving out on top of the lost time and, ultimately, broken friendships.”

While Doney had tried to follow the instructions on the NCAT site, she’s not singing the praises of self-representation. 

“I’d definitely never do it again,” she says, “It’s not there for people who don’t understand exactly what they have to do. And tenancy seems like the worst of it because the real estate agents who act for the landlords might be in there all the time.”

While the data around self-representation is somewhat nebulous, it is generally believed that in NSW, about one-third of all litigants self-represent. The numbers are clouded because people drop in and out of self-representation and they are far from a homogenous group.

According to the Department of Justice (DoJ), 88 per cent of plaintiffs in 2014 were represented at some point in Local Court civil claims. However, because most claims are not defended, only 5 per cent of defendants are recorded as having legal representation.

Anecdotally, the rise of self-represented litigants in courts was raised by Judge Stephen Scarlett at the Law Society’s Future of Law and Innovation in the Profession (FLIP) inquiry in September. He said an increase in people appearing in court without a lawyer was adding to court delays.

“Huge cuts to legal aid mean more and more people are self-represented litigants,” he said. “When I started as a judge in 2000, it used to be about 10 per cent of people, now it is more than 20 per cent of people. These cases take longer because you have to ensure procedural fairness, which means explaining things in detail.”

Among the many unexpected flow-on effects of the global financial crisis in 2008 was one that occurred in the halls of the NSW Supreme Court. Thanks to the collapsing housing market, an unusually large number of defaulting mortgagees started swelling the possession list. Many of those were self-represented litigants. 

“It was a complex time for people who were self-represented borrowers up against top-tier legal firms acting for the banks,” says Nerida Walker, a solicitor in Legal Aid’s civil section.

“Legal Aid ended up establishing a temporary mortgage assistance advice service at the Supreme Court to help self-represented litigants argue for a stay in those instances.”

While it’s an abnormal scenario, the Supreme Court’s experience illustrates the influence that self-representation can have on legal processes. Most obviously is the effect that self-representation can have on the capacity of courts to quickly and efficiently apply natural justice. 

“If a person represents themselves in court, they are entitled to, and do receive, the same consideration as someone who appears with a highly-paid lawyer,” says NSW Deputy Chief Magistrate Jane Mottleym. “People typically defend themselves because they can’t afford representation or think they can do as good a job as a lawyer.” 

Mottleym points out that pro bono schemes in which the self-represented are helped by solicitors and barristers ensure timely advice is given and that proceedings are conducted more efficiently before the court.

According to a spokesman for DoJ, “to get an accurate picture of who is unrepresented, you need to look at defended claims only” as defendants are more likely to represent themselves than plaintiffs. 

The Law & Justice Foundation reports that, for matters heard, 75 per cent of plaintiffs are represented, and 25 per cent of plaintiffs are unrepresented [while] 58 per cent of defendants are represented, and 42 per cent of defendants are unrepresented.

Across both criminal and civil law, LawAccess NSW, which began operations in 2001 as a joint initiative of the Attorney-General’s Department (now Department of Justice), the Law Society of NSW, the NSW Bar Association and Legal Aid NSW, is a starting point for people who have a legal problem. It has helped more than 2 million people and provided more than 200,000 sessions of legal advice since its inception. When it comes to family law, Legal Aid estimates that at least 30 per cent of litigants self-represent. According to Kylie Beckhouse, director of Family Law, Legal Aid NSW, self-represented litigants in Family Law fall into three groups. “One group falls in that gap between eligibility for legal assistance and capacity to pay for representation,” she says. “That has always been a large and difficult group for court systems to deal with. 

“Another group is those who are disenchanted with lawyers or those who wish to use court processes to air grievances, or to harass an ex-partner in the case of family law.” 

But it’s the final group that is both a pointer to the nature of future self-representation and how courts and tribunals can engage with them. 

“We see in our advice services an emerging DIY culture,” says Beckhouse. “These are people saying, ‘I’ve got access to information and I’m educated, therefore I’m going to give this a go’.”

For Nerida Walker, who has worked as a Legal Aid solicitor in the Family Law and for Civil Sections for more than 20 years, the biggest issue she hears from those who represent themselves is the complexity and formality of the legal system. 

“All courts have rules, practices and procedures, and how you need to adduce your evidence,” she says. “And when that information is presented to litigants, it’s invariably in a very formal and sometimes archaic way.” On top of this, for many self-represented litigants, their legal problem may be just one of the many problems they have. 

“Some people who appear before the courts have limited education, they may have mental health issues, or English might not be their first language,” says Deputy Magistrate Mottleym. “In these situations, judicial officers need to be patient, and speak clearly and in plain English.”

In tribunals such as NCAT, parties are generally encouraged to represent themselves, although they can be represented by a lawyer (or others) with leave of the tribunal. 

To that end, NCAT recently launched a number of new videos designed to help people navigate the system and many other courts and tribunals have followed suit. 

“At NCAT, it’s self-represented for good reason – to keep costs mostly non-existent,” says Walker. “But you are still presenting a legal argument to a tribunal, so you still need to be able articulate a case, to formulate an argument in a written form – with numbered paragraphs and multiple copies because you’re serving papers.” 

Courts are also increasingly thinking about that journey from a client point of view and a client experience, says Beckhouse. 

“One of the things we try do at Family Law Court registries is to help reduce the workload on an over-burdened court system,” she says. “Legal Aid’s focus is on integrating our duty lawyer and mediation services with the court processes. We focus on maintaining a close relationship with counter staff so that when a self-represented litigant attends to lodge documents, they can be transferred to a duty lawyer service.”

Legal Aid set up an Early Intervention Unit (EIU) in 2010 so that every Family Court registry in NSW has family law duty solicitors to provide advice, and help with drafting notices and appearing in court. 

According to Legal Aid, the EIU has resulted in 33 per cent of clients being redirected to alternative pathways, 16 per cent of matters finalised by the court with the EIU’s assistance, and, in 17 per cent of matters, the EIU negates the need for a new court application, or the application was discontinued with their assistance. Legal Aid estimates that 134 court days were saved. 

“Trying to meet people right at the door of the court really did allow us to triage their legal problems better,” says Beckhouse. “A lot of people need legal assistance but often through our intervention we aim to de-escalate the conflict.”

For Walker, the expansion over the past 15 years of external dispute resolution agencies has delivered some of the most effective gains in self-representation. Services such as the Financial Ombudsman Service, Credit and Investments Ombudsman, Telecommunications Industry Ombudsman and the Energy & Water Ombudsman NSW have “been a revelation for self-represented people trying to resolve disputes before they go to court”, she says. 

Attorney-General Gabrielle Upton says access to justice is “about making sure every person is able to have their ‘day in court’, regardless of their circumstances”. 

“Just as people who have legal training should be able to represent themselves, people who cannot afford a lawyer, or who aren’t eligible for Legal Aid should not be disadvantaged,” Ms Upton says. 

“The NSW Government offers practical, easy-to-understand information and services to help people deal with their everyday legal problems, including for self-represented litigants.” She points to free services such as LawAccess, which can help people understand the court process and prepare for a case.

For many self-represented litigants, early intervention is where the biggest gains can be made. 

“The sooner people can get free independent legal advice, the better,” says Walker. “As a lawyer, you want to make sure that people know as soon as possible how their problems can be solved. Whether they act on it then, that’s a matter for them. We often see people that we wish we’d seen earlier.”

Areas of demand and statistics on self-representation

The topics covered on the “Representing Yourself” part of the LawAccess website that have been selected based on demand from the contact centre:

• Debt – small claims
• Car accidents
• AVOs
• Fines
• Fences
• Employment rights
• Recovery of goods
• Driving offences & crime
• After someone dies, and
• Legal skills.