Oct 10

It’s what you don’t know that can lead you to becoming unstuck

The Australian judicial system is adversarial in nature and depends on parties being able to effectively present their case. A person has the right to represent themselves in all Australian courts.

A central principle of the rule of law is that all parties involved in legal proceedings receive procedural fairness and access to justice. However, access to justice can come at a high price.   It is commonplace that disadvantaged and vulnerable people often need to choose between abandoning their rights and representing themselves in a complex legal system that was designed to interact with lawyers.

It is said that around 98% of self-represented litigants lose against a represented litigant in hearings. Whilst you can be a very intelligent person and knowledgeable in a field of expertise, not knowing the rules when it comes to conducting yourself in a court room setting can lead to a significant disadvantage.  Most self-represented litigants aren’t aware of the existence or meaning of the Uniform Civil Procedure Rules Qld 1999.

Whilst it may seem like a commercially sensible idea to represent yourself or sack your lawyers in a bid to save money, if the matter proceeds to a trial or a hearing, a self-represented litigant will be at a significant disadvantage if they are facing a represented litigant on the other side. Whilst Judges have an obligation to assist a self-represented litigant in the process, their hands are tied to the extent that they cannot give legal advice or tell the self-represented litigant how to run their case.  What this means is a self-represented litigant takes a significant risk in progressing a matter without legal representation.

Time and time again we see parties who approach lawyers after being self represented to seek advice about the effect of an order that has been made against them. In one case we were engaged by a self represented plaintiff who, whilst having had a reasonable case against the defendant, had ended up with an indemnity costs order against them in relation to an application filed by the defendant. Even though the plaintiff believed they had not been served with the defendant’s application to begin with, the effect of the indemnity costs order meant that in the circumstances it was, by then, just not cost effective for the plaintiff to continue its claim, even with legal representation.

If you are contemplating bringing proceedings against an individual or company and you are unsure about whether to engage a lawyer or whether to proceed, it makes sense to engage a lawyer for an initial consultation for what is in effect a minor investment to get some advice about which jurisdiction to bring your case in and what the process will be. This small investment may end up costing you thousands of dollars and potential orders down the track which may lead to not only you losing your case, but potential enforcement proceedings and at worst, bankruptcy or winding up proceedings against you or your company.

Whilst Google may be a tempting resource to seek answers to your legal questions, you need to know what to ask and that the results are coming from a reputable source. And even if you obtain some information from the internet you need to know the rules of the game for dealing with litigation and going to court.

For assistance with any court matters contact the Litigation Team at your Gold Coast Lawyers, McLaughlins Lawyers.

Author:    Matt Kollrepp

Director: Ian Kennedy

Date:        10 October 2018