The rights of self-represented litigants have recently been explored in the Supreme Court decision of Matsoukatidou v Yarra Ranges Council. In Victoria, self-represented litigants have the right to a fair trial under the Charter of Human Rights and Responsibilities Act 2006 (the Charter). This right is also protected in the ACT under the Human Rights Act 2004, and under the International Covenant on Civil and Political Rights (ICCPR) internationally. But what exactly is the content of this right and how does it operate in practice?
A self-represented litigant (SRL) is a person involved in legal proceedings before a court who does not have a lawyer representing them. Instead, they present their case to court themselves. SRLs usually lack the professional skill and objectivity necessary to effectively participate in legal proceedings. They may not have knowledge of the applicable law, and therefore struggle to present relevant arguments. SRLs also lack familiarity with courtroom formalities. The combination of these factors can limit the ability of SRLs to participate effectively in legal proceedings.
Access to justice
Given the problems raised by self-representation, some have argued that courts should not permit litigants to represent themselves. However, this argument overlooks the important role that self-representation plays in protecting the right to a fair trial and promoting access to justice. In particular, self-representation provides litigants with a path for overcoming some of the barriers to accessing the justice system.
The right to a fair trial includes the guarantee that everyone is equal before the courts and tribunals. An obvious obstacle to this is that many people are unable to afford the ever-increasing fees charged by lawyers. Unfortunately, the cost of legal representation is often too high for ordinary individuals to afford, and so self-representation can be the only option. Allowing individuals to conduct their own cases provides a minimal guarantee of access to justice for all members of society. In a society governed by the rule of law, everyone should be able to pursue justice, regardless of their economic status.
Those who cannot afford a lawyer may be able to access legal representation through legal aid. However, it is unrealistic for the public purse to offer this to everyone. Currently, a significant portion of the population is too wealthy to be eligible for legal aid, but not wealthy enough to afford a lawyer. Until the legal profession provides this group with affordable services, self-representation is their only option for accessing justice and enjoying their right to a fair trial.
Of course, SRLs may face other obstacles that prevent them from enjoying this right, such as where one party is well represented at trial and the other is not. However, if self-representation were not allowed, they would be shut out of the legal system before their case even reaches trial. Therefore, allowing self-representation is an important first step in protecting the right to a fair trial.
Some litigants may be unable to access representation due to the unpopular or controversial nature of their claims. For example, litigants seeking to challenge the authority of the court are unlikely to find a lawyer willing to assist them, because this would conflict with their duty as an officer of the court. This has been seen in New Zealand, where litigants sometimes argue that the law does not apply to them because Māori sovereignty was never ceded. Some litigants may also prefer to present their case themselves because of their personal beliefs (for example, a belief that lawyers cannot be trusted). Although self-representation cannot be equated to the fulfilment of the right to a fair trial, prohibiting self-representation would limit the ability of such litigants to access to a fair trial.
Maintaining public confidence in the courts
Self-representation also plays an important role in maintaining public confidence in the courts. If self-representation were not permitted, access to the justice system would likely become restricted and unequal. This may breach the right to a fair trial and undermine public perception of the courts’ legitimacy. Furthermore, research on procedural justice shows that when litigants feel that the court process has been fair, they are more likely to view the justice system as legitimate and authoritative, even if they did not win their case. Thus, ensuring access and a fair process for SRLs helps to maintain public confidence in the courts.
The recent Supreme Court decision of Matsoukatidou v Yarra Ranges Council found that courts must ensure fair hearing rights for SRLs under the Charter. This case involved a mother and daughter, Betty and Maria, who were representing themselves in relation to charges for failing to comply with a demolition in respect of their home after it had been destroyed in an arsonist attack. Betty and Maria were particularly vulnerable SRLs as Maria had a learning disability and Betty’s first language was not English.
During the hearing, the County Court judge did little to accommodate Betty and Maria’s needs. After the judge dismissed their case, Betty and Maria appealed to the Supreme Court, with the assistance of pro-bono legal representation. They argued that their right to a fair had been breached at the County Court hearing. The appeal was successful, with Justice Bell delivering a landmark judgement on the rights of SRLs under the Charter.
According to Justice Bell, ‘For the trial to be fair, participation by the individual must be effective’ [at 129]. For SRLs to participate effectively they must have a basic understanding of court procedures and applicable legal tests. In this case, the County Court judge provided no explanation or guidance on these matters. This put Betty and Maria at a further disadvantage as they were unable to direct their submissions towards satisfying the test. The hearing was also conducted too quickly for them to understand.
Justice Bell also found that in order to protect SRLs’ right to a fair trial, judges should conduct hearings with recognition of the disadvantage experienced by SRLs [at 170]. The Supreme Court held that Betty and Maria were not given an opportunity to present their case or to participate effectively in their trial and thus their right to fair trial had been breached.
This decision is helpful for both lawyers and policy-makers, as it provides guidance on what the right to a fair trial means in practice for SRLs. By laying out the ‘effective participation’ requirement, this decision paves the way for improved access to justice for SRLs.