Attending court: Your options
NOTE: In this chapter, the word ‘tribunal’ refers to both state and Commonwealth tribunals.
This chapter provides basic information for people who are required to attend a court or tribunal for a hearing to which they are a party.
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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 your instructions and what you are hoping for.
Legal representation is helpful because lawyers have detailed knowledge of the law, legal procedures, and how to run a case to get the best outcome.
In most circumstances, you will need to pay for a lawyer. In some cases, there may be legal services that can help you for free.
For information about finding and hiring a lawyer, see Chapter 2.1: Legal representation.
If you cannot afford 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 2.3: 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.
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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 Circuit and Family Court of Australia (FCFCOA). (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 (Criminal Procedure Act 2009 (Vic) (‘CP Act’) s 328(a)) and in civil law matters (Magistrates’ Court Act 1989 (Vic) s 100(6)(a)).
Self-representation in the Federal Circuit and Family Court of Australia
In the FCFCOA, 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 (Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 62; Administrative Review Tribunal Act 2024 (Cth) s 66).
In Victoria, the main tribunal is the Victorian Civil and Administrative Tribunal (VCAT). There is also the Commonwealth Administrative Review Tribunal (ART), which deals with administrative decisions made under federal legislation. The Mental Health Tribunal (MHT) is another example of where people might self-represent. If you are participating in a hearing at the MHT, you are entitled to free legal advice from VLA or the Victorian Aboriginal Legal Service, and to be supported by an advocate from Independent Mental Health Advocacy (IMHA).
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In cases where family violence or sexual offences are alleged, you may be allowed to self-represent at times but not be allowed to represent yourself at certain points in the case, where the matter is contested. This is because certain witnesses are ‘protected’, meaning only a lawyer 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 2.3: Legal services that can help).
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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 legal information and advice and can put this into practice in advocating for yourself, a good outcome is possible, particularly in civil law disputes.
You might be able to avoid going to a court or tribunal if your advocacy leads to the dispute resolving. Where cases are heard by a court or tribunal, negotiation to try and resolve the dispute by agreement is also generally encouraged.
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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 relevant law and court procedures. 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; and
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 (1300 792 387) or a CLC (see Chapter 2.3: Legal services that can help) to discuss the challenges you experience to see if you are eligible for free legal help.
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In certain circumstances, it may be possible for you to not attend court at all, but in many cases, you must attend. You should contact the court or tribunal via phone or email or seek legal advice about this if possible, as you may be disadvantaged if you do not attend court. Keep notes of any correspondence with court staff (e.g. who you spoke to, the date and time and what you were advised to do).
NOTE: Parties are usually required to physically attend hearings. In certain circumstances, for example if you live in a remote location or live with disability, you may be able to request to appear remotely, but it is important you seek permission from the court first.
Attending court: Your options
Chapter: 2.2: Representing yourself in court
Contributor: Alice Meredith, Senior Lawyer, Victoria Legal Aid, and Thea Casey, Barrister
Current as of: 1 September 2024
Law Handbook Page: 57
Next Section: Before the court hearing: Preparing to represent yourself at a hearing
