Evaluation of the recommendations relating to an SRS
1. The 2017 Access to Justice Review recommended that a Self-Representation Service (‘SRS’) be established in courts and VCAT to provide general legal advice to unrepresented parties and to support them through dispute resolution procedures.
2. The SRS could be based on one that was established in the County Court in 2013, or on the Queensland Public Interest Law Clearing House SRS that operates in Queensland courts. The QPILCH SRS offers parties “discrete task assistance” at the early stages of a claim: it can offer initial advice, explanations of the court process, the drafting of specific legal documents, access to technology, and free mediation.
3. An SRS promotes equality between parties, because it tries to level the playing field between one party that is represented and another party that is not represented. Rather than a self-represented litigant being ignorant of court processes, an effective SRS increases, in the words of the 2015 QPILCH cost-benefit evaluation report, “the ability of self-represented litigants to put forward the best possible case and present it in such a way that it is determined on the merits/not injured by a lack of representation.” This is something that a professional-represented opposition would already have.
4. An SRS could significantly improve access for unrepresented parties, because it can inform them how to literally use the court system, as well as support them to utilise it effectively for meaningful justice. One problem is that an SRS only enables SRLs who are already reasonably articulate, prepared, knowledgeable and confident to prepare and present their cases: the service will not dramatically improve the accessof high-needs parties, who cannot present their own case. For all other litigants, however, their access will be increased. SRS programmes enable parties to accessjustice by helping them understand what their legal rights are in a situation, and to determine whether litigation is both appropriate and desirable as a method for defending those rights. They also provide access to other parties, because they achieve cost and time savings. This increases the access of the parties, but also to parties in other disputes waiting on the court’s calendar. For example, the 2015 QPILCH cost-benefit evaluation found that the service saved the courts an estimated $372,176 per year from fewer court appearances, matters diverted away from a hearing, and fewer adjournments.
5. An SRS cannot entirely level the playing field between a professionally-represented party and a self-represented litigant (SRL), but it can increase the access of the SRL and improve fairness. Rather than a self-represented litigant being ignorant of court processes, an effective SRS increases, in the words of the 2015 QPILCH cost-benefit evaluation report, “the ability of self-represented litigants to put forward the best possible case and present it in such a way that it is determined on the merits/not injured by a lack of representation.” A represented party will still have the benefit of a professional lawyer preparing evidence, questioning witnesses, and making complex legal arguments in court, though – the ability to effectively argue the case will not be equal.
6. However, any amount that access is improved will result in the trial being closer to fair. SRS programmes enable parties to accessjustice by helping them understand what their legal rights are in a situation, and to determine whether litigation is both appropriate and desirable as a method for defending those rights. They also allow the court to determine the case fairly, because they help the SRL to ensure that the correct documents and submissions are put before the court. If these are missing, the court cannot base the outcome on them. In terms of user experience, all evaluations of existing SRS programmes indicate that they contribute to a perception on behalf of SRLs that the legal system is fair and just. Complete equality cannot be achieved, but supporting the access of SRLs increases the feeling of equity.