Mapping a new path for self-represented litigants in VCAT: A commitment to conversation

This post is one in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to the justice system to ordinary readers. The very best post on each topic is published here.

By Alicia Crossley

The conversation

Self-Represented Litigants (SRLs) have often been associated with the age-old adage that ‘he who represents himself has a fool for a client’. These pervasive stereotypes that engulf SRLs fail to acknowledge that the choice to self-represent is often a rational response to external factors and reasonable perceptions about the public accessibility of the courts. With SRLs often having to navigate a process that may at times appear to be byzantine, can we really say that we are delivering on the promise of access to justice for all? Further, in this economy, with a tidal wave of SRLs, how can the legal system better respond to the needs of those who choose to, or have no choice other than to represent themselves?

This essay aims to answer these questions and consider ongoing initiatives and ideas for future reform within the specific context of the Victorian Civil and Administrative Tribunal (VCAT). However, rather than approaching this through abstract analysis, this essay will be pursued by imagining a conversation. Using a hypothetical case study drawn from the author’s personal student placement experience at VCAT, various stakeholders within the legal profession will exchange dialogue regarding SRLs. Each will give voice to a different perspective and provide commentary in a problem-solution format.

The setting of the conversation is as follows. The President of VCAT had recently overseen the publication of the 2018-2022 Strategic Plan, VCAT For the Future.  As he sits in his office, he thumbs through the final product, pleased with the way it accurately portrays the expansion of access to justice for all Victorians as a core VCAT commitment. However, as he reaches the strategic priority of inclusiveness and accessibility, he begins to question whether VCAT adequately addresses the expanding needs of SRLs, who make up the majority of those who bring claims to VCAT. In order to uncover specific problems and solutions, he invites individuals who he has encountered in his capacity as President to engage in a conversation. He sends copies of a case study, with names deleted, to a non-sessional Senior Member of the Civil Division, a lawyer experienced in VCAT claims, a law clerk working for Victorian Legal Aid (VLA) and an individual with experience as an SRL.

The case study

The case study involved a dispute in the Civil Claims Division at VCAT. The Applicant, Mr Jones, had brought a complaint against Huyuki, a Japanese car manufacturer regarding a shoddy paint job and issues with the LED dashboard screen on a car that he recently purchased from a Gippsland dealership. As a small business owner, Mr Jones had become increasingly frustrated after having to take time off sending the car in and out of repairs. He made an application to have the matter heard at VCAT, seeking a full refund from Huyuki. He decides to represent himself in the hearing and arrives thoroughly prepared for his day in court.

Despite his confidence, Mr Jones becomes overwhelmed by the process when the Senior Member presiding over the matter explains the need for him to obtain an expert report. After realising that obtaining the report may end up costing more than sending the car in for further repairs, Mr Jones queried whether he should just withdraw the matter despite wanting to continue as a matter of principle. The Senior Member encouraged Mr Jones to go ahead with the claim and seek additional advice from a lawyer. Mr Jones was granted liberty to apply for further orders and left VCAT feeling disillusioned with the system.

Being well-versed in the processes of mediation, the President organises for the four individuals to meet for an informal round-table discussion and to settle on the best ways to address the expanding needs of SRLs like Mr Jones.  They meet at VCAT and the conversation begins. Ms Brown, who has had experience as an SRL speaks first.

The SRL

“Mr President,” she begins. “As someone who has previously been in the same position as Mr Jones, I believe I should set things in motion by articulating why individuals choose to litigate in person and the issues they face. Despite the pervasive stereotypes that surround SRLs as being ‘unreasonable’ and ‘out of touch’ with their own limitations, a more nuanced understanding of why people litigate in person is required. The reality is that most SRLs are unrepresented, not self-represented.  That is, there is less choice in the matter than assumed. The cost of legal representation is too high for the ordinary individual to afford, so self-representation provides a minimal guarantee of access to justice for all members of society.”

This is where the lawyer interjects. “I agree that the problem of impecuniosity is a driving factor for those who litigate in person, however, it must be acknowledged that a dichotomy exists between ‘can’t pay’ and ‘won’t pay’”. To which Ms Brown responds, “It’s true that some SRLs may feel better positioned than a lawyer to convey the details of their case. However, SRLs are primarily motivated by financial reasons. And it is not only the total cost of legal fees that is relevant. The client in the case study, Mr Jones, may be able to pay for a lawyer as a small business owner. However, it is also important to SRLs that the scale of the fee is proportionate to the value of the claim. Therefore, although Mr Jones may end up winning the case, if he loses more money by obtaining the expert report and paying legal fees, it would be, at best, a ‘Pyrrhic victory’.”

The President ponders for a moment to consolidate Ms Brown’s comments. “From what Ms Brown has told us, one of the main issues facing SRLs is the ability to pursue their claims and obtain legal advice in a cost-effective manner.” The President continues, “In the present case study, if legal representation was available at a reasonable cost, Mr Jones may have been advised earlier as to whether or not his case had merit to continue with.  Now, knowing that users of court services are perceiving the court as distant and unaccountable, Mr Smith, do you have any ideas on how to recalibrate your role as a lawyer to better address the needs of SRLs?”.

The Lawyer

“As a lawyer with a large amount of experience in VCAT claims, I can appreciate that there is most definitely a growing desire for clients to receive value through services that reflect their financial needs. The Productivity Commission identified that although around 14% of Australians live below the poverty line, only 8% of all Australian households qualify for legal aid. Further, Community Legal Centres around Australia had to turn away nearly 170,000 people throughout 2015-2016. Clearly, there is a need for services that address this ‘missing middle’.” Mr Smith continues, “while Self-Representation Services (SRS) are a fairly new innovation in the Australian legal landscape, I have long embraced the process of unbundled legal services, otherwise known as limited scope or discrete task representation. In the present case, Mr Jones may fall within what is commonly known as the ‘Justice Gap’. That is, as a small business owner, it is unlikely he would qualify for legal aid but would still struggle to afford legal representation. By unbundling my services, Mr Jones could eschew full representation by receiving assistance in ‘bite-sized chunks’ – splitting the levels of service into legal advice, legal task help and legal representation.”

“The SRS model keeps costs down as there no commitment for any further assistance beyond that limited scope. I offer both pro bono and paid unbundled legal services, as I have always been determined to participate in pro bono services but could never commit to ongoing casework. Simultaneously, there is an enormous untapped market of clients who will pay for unbundled legal services. It’s a win-win scenario. This solution will not always be appropriate, particularly in criminal proceedings within the Magistrates’ Court where litigants are only in court on the day their case is heard. However, within the context of VCAT, clients may be able to obtain advice on discrete legal issues or clarify their causes of action for upcoming mediations or hearings.”

This is where the VLA Clerk, Ms Taylor, responds. “While the unbundling of legal services is undoubtedly beneficial, we could go one step further in increasing access to justice for SRLs. Not all legal problems require a legal solution – lawyers need to ‘share the territory’ by allowing certain services to be carried out by paralegal professionals or other specialists like financial planners for a fraction of the fee.”

The VLA Clerk 

“Mr President,” Ms Taylor begins, “we have so far heard about the problem of impecuniosity amongst SRLs and the potential solution of unbundled legal services. In my experience at VLA, accessibility of the court and tribunal system has remained a common issue amongst SRLs. With service expectations changing, we must also change to meet these expectations.”

“For example,” continues Ms Taylor, “VCAT has recently agreed to pilot the innovative process of Online Dispute Resolution (ODR) to assist in overcoming the obstacle of inaccessibility for SRLs. As noted by VCAT past President, Kevin Bell, a party to a proceeding experiences justice when they can access the tribunal at a location convenient to them. ODR is a form of Alternative Dispute Resolution (ADR) that is facilitated via computer-based software. In the case before us, Mr Jones is bound by limitations of time and space as a small business owner in rural Victoria.

ODR creates procedural fairness, allowing all parties, even those who live in remote areas and are time-poor, to participate in ADR processes given parties do not need to physically meet. Further, aligning with the need for cost-effective justice, electronic file management may also result in significant cost savings by avoiding the hefty printing costs associated with an offline environment. While VCAT is already a less adversarial avenue than the Courts, ODR removes the possibility of animosity during mediation and levels the playing field between parties. This is particularly so with asynchronous ODR, where parties are given time offline to provide thoughtful, well-crafted contributions, rather than ‘first’ and often impulsive responses that can take place in real time face-to-face mediations.

Before the President has the chance to concur, Ms Brown responds. “Although you’ve noted clear benefits of ODR, it must also be acknowledged that for some SRLs, this could create further barriers to accessibility – particularly for those who are less digitally literate or have low levels of English. When I was litigating in person, direct contact with court staff and in-court services was imperative. The value of face-to-face contact cannot be understated. Do you have any recommendations for in-court services that will ensure interpersonal communications are not lost?”

At this point, VCAT Senior Member Watton responds. “In the matter before us, Mr Jones, like many other SRLs, is feeling disengaged from the system and is struggling to navigate through a legal maze that has begun to feel counter-intuitive. The quality of justice is not defined by reference entirely to a person’s experience at a hearing in the tribunal or the actual result ordered, but it is also about the message conveyed to the public that the institution of justice is working for them. An SRL’s capacity to ascertain self-help certainly adds to their experience of justice.”

The Senior Member 

“As a Senior Member at VCAT, I receive specialist training on working with SRLs, however the response to SRLs across the justice system as a whole has been largely ad hoc. While Members may be able to provide basic procedural assistance during hearings to ensure the right to a fair trial, our role is one of a neutral arbitrator. We cannot become de facto counsel for the SRL, lest the impartiality of the Tribunal and fairness to the other party is jeopardised. That being said, many SRLs come into VCAT with unmeritorious claims or fail to reframe their problem into a justiciable issue. Although a well-functioning tribunal and accessibility of services are of central importance, access to justice will begin with a person’s ability to understand their legal problem and is made aware of services that can assist them in narrowing the issues of their dispute. I believe this can best be achieved via a triaging’ model.”

“In a civil justice context, ‘triaging’ refers to assessing an individual’s problems and directing them to the most appropriate destination for resolution – for example, ADR mechanisms, an ombudsman, SRS services, non-legal service providers like financial counsellors or if eligible, Victorian Legal Aid. The ‘triage model’ must be implemented system-wide so that triage occurs at any stage of the justice system, be it visiting a Community Legal Centre or after a person commences proceedings in the formal justice system. Initial intervention can ensure that parties are provided with the best opportunity to resolve their dispute in its early stages and costs are kept low for both the individual and the public purse.”

“Beyond the need for further pro-se clinics like VLA and Justice Connect that provide free legal advice to SRLs, there is also a need for open and accessible non-legal information. Many SRLs choose to litigate in person because of the degree of openness that VCAT communicates. Given this projection of accessibility, basic information regarding procedures and practices must be readily available. I propose the re-introduction of the VCAT Self-Help Centre. Piloted in 2015, the VCAT Self Help centre explored the merits of utilising undergraduate law students to assist SRLs in better understanding the way VCAT operates. Therefore, while the undergraduates will not be able to provide legal advice per se, they would play an active role in managing SRLs expectations about how their hearing will develop and what procedures they would need to be aware of.”

A final note

The President pauses to digest the different comments and suggestions. “At its very core, VCAT exists for users – and it will not fulfill its function as a tribunal if it is not accessible to those for whom it was created for. As we’ve heard today through our round-table discussion, SRLs are not being a ‘fool’ for a client, but are simply responding to external factors, including VCAT’s projection of its accessibility to the public. The initiatives such as the unbundling of legal services, ODR services, Self-Help Clinics and the triaging model, all work to develop holistic strategies to better meet the challenges facing SRLs. I implore each of you who play a role within different parts of the Victorian justice system to work on implementing these initiatives that benefit SRLs and create flow-on efficiencies for the court system and other court users.”

*     *     *     *

As this essay has elucidated – the legal profession as a whole must adjust alongside the changing requirements of SRLs. There must be an active and continued engagement by all stakeholders, for other voices are surely needed to continue this conversation.

About Alicia Crossley
Alicia Crossley is a final year Law/Arts (Chinese Studies) student at Monash University. She has a keen interest in Alternative Dispute Resolution and areas concerning Social Justice. Connect with Alicia on LinkedIn.

Featured image by Dylan Gillis on Unsplash

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