Self-representation

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Notice

This page is currently under construction and the information provided should not be relied upon as being accurate.

Introduction

There is a perception that self-representation has increased in Australia over the last two decades in response to the reduction in civil legal aid, the increasing costs of legal representation and development of the notion of ‘do-it-yourself’.

The recent Productivity Commission report Access to Justice Arrangements[1] noted the fact that there is not enough information available to conclusively determine the level of self-representation in Australia. On the information available it was noted that across federal jurisdictions the number of self-represented litigants (SRLs) varies but suggests that over the last decade the proportion of SRLs has decreased. Conversely, data from across state and territory jurisdictions suggests that numbers of SRLs have increased.

LawRight, formerly the Queensland Public Interest Law Clearing House Incorporated operates a Self Representation Service[2] in a number of jurisdictions in Queensland. By connecting clients with pro bono lawyers, the service assists self-represented litigants in those jurisdictions to navigate the court and tribunal processes and complete the legal tasks necessary to progress litigation. Its operation of the service allows LawRight to collect data from SRLs and identify recurring issues.

Who self-represents?

A SRL is a person or business who is appearing, or is on track to appear, in a court or tribunal without legal counsel.

The recent Productivity Commission report Access to Justice Arrangements[1] noted that it was difficult to describe SRLs as a homogenous group. This is because legal matters and circumstances differ between SRLs and jurisdictions. The Productivity Commission also referred to other studies which suggested that SRLs were more likely to be male, and reliant on welfare.

Applicants of LawRight's Self Representation Service are overwhelmingly from low-middle income households. Forty-nine percent of applicants in the most recent financial year received government payments from Centrelink. Eighty percent had household incomes of less than $52,000.

LawRight receives a number of applications from parties who were represented at the beginning of their proceedings but have, as the proceedings continued, become self-represented. Usually an inability to continue to meet the costs of representation is behind this.[3]

The Productivity Commission noted that the information presented by LawRight is reflective only of applicants to the Self Representation Service, a service specifically for litigants who cannot afford legal representation, so LawRight's data therefore may not be representative of all SRLs.

QPILCH would note, however, that this segment of our data is captured from all applicants to the Self Representation Service, irrespective of whether that person is eligible for assistance.

Other demographic data collected by LawRight shows that between 2007 and 2011 half of the applicants to LawRight's Self Representation Service were from people between 46 -65 years old. Only 3% of clients were under the age of 30. In addition, no pattern in relation to the gender of applicants was present. Between 2007 and 2011 54% of applicants were male, and 41% were female. However in 2012-2013 these statistics stood at 50% male, 50% female, and in 2013-14 45% of applicants were male, and 49% female (with the remainder being applications from couples or small corporations/businesses).

Why do people self-represent?

The phrase “choose to represent” implies a genuine decision that has been made between competing options. In LawRight's experience, very few self-represented parties would identify as “choosing” to represent themselves.

As LawRight noted in its response to the Productivity Commission’s initial discussion paper, failure to access the courts is not limited to the very poor, but is also difficult for many wage earners. The increasing cost of litigating a dispute, including the cost of legal assistance and any potential cost orders made against unsuccessful parties, creates a significant barrier to access to justice, particularly at the superior court level. The financial cost of resolving a dispute, where it can be estimated, is often not proportional to the matters at stake.

When the Self Representation Service closes a file, the client is sent an evaluation survey. In response to the question about why they are self-represented, these survey results indicate that:

  • 72.7% cite the costs of representation;
  • 38.2% could not obtain legal aid;
  • 30.9 % thought they could handle the case themselves;
  • 12.7% did not trust lawyers to represent them;
  • 10.9% did not want to pay a lawyer;
  • 5.5% felt that a lawyer would not be able to represent them in the best way;
  • 5.5% indicated that they had sacked their lawyers;
  • 3.6% said that no lawyer was willing to act for them;
  • 1.8% cited time pressures;
  • 1.8% cited a bad experience with lawyers previously.

It is acknowledged that this information is only gathered from people who are eligible for assistance from the Self Representation Service, so may not be indicative of the wider SRL population.

The recent Productivity Commission report on Access to Justice Arrangements[1] considered that there was limited evidence as to the relative dominance of the various factors that seem to contribute to the reason why a person self-represents. The Commission sighted the following as reported reasons for self-representation:

  • Choice;
  • Because legal advice is too expensive or legal aid is unavailable;
  • Changes to legal aid funding levels and guidelines; and
  • There is a requirement to self-represent.

When do people self-represent?

Some tribunals and small claims courts require people to attend hearings without a lawyer. The general rule in Australia, however, is that a person has a right to access the courts either in person (ie self-represented) or by way of a lawyer acting for them.[4]

Even where a person is accessing a jurisdiction which requires them to attend hearings without a lawyer, there is no rule preventing that person from accessing legal advice in order to prepare. Therefore, even in such jurisdictions, people who cannot access legal assistance can be at a disadvantage when compared to their opponent.

In terms of trends in areas for which assistance is sought, it is noted that clients approach the Self Representation Service in the Queensland Courts, where assistance is offered in any area of civil law which falls within the courts’ jurisdiction, for help in a broad range of matters. These range from commercial and business disputes to nuisance and neighbour disputes, defamation and wills and estates cases. Occasionally patterns emerge; the most obvious being the rise of mortgage repossession cases in 2009-10 as the ‘global financial crisis’ impacted.

Impacts of self-representation

Self-representation is commonly noted as having a number of impacts, which can be summarised as falling within the following categories:

  1. Disadvantage to the self-represented litigant;
  2. Increased cost to the justice system; and
  3. Effects on the other parties to the litigation.

Disadvantage to the self-represented litigant

Increased cost to the justice system

Effects on the other parties to the litigation

  1. 1.0 1.1 1.2 http://www.pc.gov.au/inquiries/completed/access-justice/report
  2. http://www.qpilch.org.au/cms/page.asp?ID=60872
  3. We routinely see client’s with legal bills of over $100,000 in matters that have proceeded to a trial.
  4. Collins (alias Hass) v The Queen (1975) 133 CLR 120; Burwood MC v Harvey (1995) 86 LGERA 389 per Kirby P at 395.