Our Facebook Page
Representing Yourself in NSW Courts: an exercise in discrimination and bullying
The quote of the week and the precursor for this article was from a NSW barrister:
"If you want Justice don't come to the NSW Supreme Court go to Church... All you get here is costs...." Umm ... Not the answer I was looking for but from what I see mainly true! This article will consider how you will be discriminated against by the NSW court system when you choose what every NSW resident has the right to do and represent yourself through the NSW Justice system.
This week I stood in one of the Queen’s Square courts of the Supreme Court building in Sydney NSW and watched as a group of senior lawyers laughed and mocked the efforts of a senior member of the Sydney community when he was bravely representing himself and endeavoring to secure Justice in his case by gaining the assistance of the registrar in securing a pro-bono lawyer. He departed the court with the words “when will I ever see Justice in this court”? This systematically brought a further roar of delight, mocking and cajoling from the attending barristers and solicitors who were able witnesses to the event. Even the registrar himself failed to uphold common decency and decorum in his court room and quite frankly allowed the complete prejudice and discrimination of a client and allowed it to continue. The mocking even continued into the next case until I stated “Well I don’t find it funny” and the registrar then offered the offending lawyer a “recommendation for pro-bono assistance” putting an end to the scene. Quite frankly, it shouldn’t have taken for me to say anything, this kind of discrimination and systemic bullying of the system against those who represent themselves is endemic and I agree with the man. When a court full of the people who are the very one’s who are supposed to act in manner above that of the community, who are supposed to be the guiding light of truth and justice and who are supposed to uphold the laws of what is right and what is wrong in our society act in such an appalling, childish and discriminatory manner what conclusion are you left with? I don't think Her Majesty would be too amused at the use of her Court rooms in such a manner.
Let’s look firstly at how the Registrars perform within the Court system themselves.
In the first step of any legal proceedings you will encounter the Registrar. These people take your application review the document to make sure a) It is an appropriate and valid case; b) Check it is on the correct form and entered correctly; c) Approve and waive exemptions and reductions of fee’s; d) accept and file court documents and applications; and e) allocate you court dates for your cause. A simple enough process you would imagine. However, this is also the first point of resistance you will encounter in an effort to represent yourself and get your issue addressed. From practical experience you can expect:
- to be given as little information and assistance as possible;
- to be told the wrong thing and often intentionally misled or “not informed”;
- to have documents that you filed be either not filed or filed on the wrong number;
- to have documents “go missing”;
- to have documents approved that shouldn’t have been approved;
- to have documents not approved that should have been approved;
- no apology, commiseration or restitution for their errors;
- no justification or answer for why errors have been made or why no one did the right thing;
- not to expect your case to be called even though you are sitting right outside the court room;
- to be mocked, harassed, teased and discriminated against in the process; and
- not to expect the registrar to stop or justify any of the above behaviors.
In the Local Courts you can apply for apprehended violence orders but don’t expect to get any of them approved no matter how much violence or how real the violence that you are trying to apprehend is. In fact you will be given reasons and excuses such as:
- you are not allowed to “attach” any form of supporting evidence to the application no matter how relevant it is;
- that you have to only fill in the space provided on the form and use no other “space” at all even if it is insufficient space;
- not apply for more than 5 protected people - because there is no room on the form and this would require you filling in more than the space provided;
- not speak to the registrar unless by appointment;
- not be able to book an appointment with the registrar to speak to him anyway;
- not get a phone call from the registrar even though your number is required on the form;
- not be able to ring up and speak to the registrar;
- not have the registrar justify his actions; and
- be constantly discriminated against by the registrar at “his discretion” under the act;
What does this lead to? Further discrimination and the non apprehension of violence or rather put another way that the registrars at the local courts are ignoring the existence of violence, not applying the Personal Violence Act to apprehend the violence, and are allowing for violence to be perpetuated within our society. The Registrar’s state that if you have a fear for your safety go to the Police, the Police then send you back to the Registrar as it is not a domestic issue, the Registrar then either sends you back to the Police or utilizes his power to reject any application. How then do you apprehend the violence enacted on you when according to NSW legislation you only “have to fear or feel threatened” to have your issue addressed? Maybe we should take an Apprehended Violence Order out against the Registrar as they are the reason the violence is not apprehended – these issues are for the Court and the Judge to decide – not to be pre-judged by the Registrars who are out of their jurisdiction by filtering the cases and pre-deciding who gets Justice.
So maybe you need a lawyer – well there are pro-bono lawyers – and these can be court appointed but don’t expect much more than the refusals you’ve already had from other lawyers. Moreover, if it is a case that the system doesn’t want heard then don’t expect anyone to risk their reputation or fight for truth and Justice because they only fight for what they get paid for (win, lose or draw) and if it’s not worth the risk to their reputation they will out price your case and find reasons to refuse it. Furthermore, if taking your case will put them in competition with the status quo of the system or challenge it in an way that involves changing the system expect them to rapidly withdraw and actively encourage you to remove your case. So representing yourself does have some advantages and I would add the following:
- NO ONE knows or understands your case better than you and why waste your time and money convincing someone else you are right when you already know you are;
- You already have a fuller understanding of the events and the case - you are only deficient in the intricacies of the legal process (hence why you feel you need a lawyer) and it doesn’t take long to learn those;
- Having to construct and be across ALL the paperwork yourself makes you acutely aware of the case, the acts, the arguments, the dates and the process and gives you a better understanding of it;
- You are not polluted by the negative thoughts of pessimists and reductionists who can not see the end goal; and
- You are not constricted by an onus to the system and adherence to the socio-political spheres of the legal system in the way a lawyer is;
However, get used to the following terms and gain a full understanding of what they mean because they will become very familiar, very quickly. For example the term “vexatious” is all too loosely thrown around. In order for something to be defined vexatious there has to be proof that it is and the burden of proving that is on those who all too willingly use it as a scare tactic. Ask them to support their statements before you rule them defamatory. In much the same way “abuse of process” or “abuse of power” or “no case defined” are all too often used as subterfuge for “we have no case to defend our actions so will criticize your evidence and the weakness that you represent yourself and use it against you”. Everything requires JUSTIFICATION….. ASK FOR IT…..
Get familiar too with the meaning of “due process”, “procedural fairness”, and the process of being “denied natural justice of the law”. It will faster equip you to defend any “vexatious” attack you will inevitably receive. Moreover, if you actually have to have a court appointed pro-bono lawyer make sure they fully read and understand your case before they have any meeting with you or attempt to make any decisions in regards to your case with you. Do not be rushed bullied or harassed into anything you don’t agree with – take your time, step back, research it, think about it and then when you are ready respond. Argue the point and expect to be heard you have a RIGHT to be heard and to UNDERSTAND what is going on.
As a final thought – on the way out of the court having received the adjournment we were seeking I trapped a group of about eight of the lawyers/barrister in the lift, who had laughed at the man representing himself, on the way down and I stated “I wonder how well these lawyers would perform if they where placed out of their depth on a hospital floor and had to perform someone else’s job to the best of their ability?” – “Just how would they feel then? How would they go? Wouldn’t be so funny then, would it?” Try tackling a system that treats you as an outcast, a rebel, and an activist while ridiculing you for doing what you have every legal and moral right to do. Moreover, a system that otherwise does not represent you effectively or correctly and give you no Justice.
The same week in the local court I met an Aboriginal man who had represented himself and beat all the charges as he stated “no lawyer was going to represent my case properly – better off doing it myself”.
In the Consumer, Trader and Tenancy Tribunal I met a single mother of three children who was defending her third tribunal hearing for being behind in her rent when the whole time the real estate agent and landlord had failed in their statutory obligations to maintain the property - sounds familiar! It appears Justice comes with a price in Australia and especially in New South Wales, you only get the Justice if you can cover the costs, it doesn’t matter how right or how wrong, or how much evidence you have it’s all about costs.
Simon Dorante-Day BA, BEng, MRGC
(c) ATSIPHJ 2011