Equality before the Law Bench Book — Section 10 — Self-represented parties

Self-represented parties

Purpose of this chapter

The common law provides that everyone has the right to represent themselves in court in both civil and criminal matters — unless they have been ruled as vexatious. The court has a duty, in both civil and criminal matters, to give persons who represent themselves a fair hearing, and it may be appropriate for the court to give some assistance to such persons in order to fulfil that duty. The purpose of this chapter is to:

  • highlight the various reasons why people choose to represent themselves, the difficulties they face and the impact on the court of self-represented parties

  • provide guidance about how judicial officers may take account of this information in court — from the start to the conclusion of court proceedings. This guidance is not intended to be prescriptive, and

  • provide guidance about how to respond to the growing phenomena of “sovereign citizens” appearing in court.

10.1 Some information[1]

  • Right to self-represent — Common law provides that everyone has the right to represent themselves in court[2] in both civil and criminal matters — unless they have been ruled as vexatious.[3] Note, s 294A of the Criminal Procedure Act 1986 (NSW) prevents a self-represented person who is the accused in a prescribed sexual offence proceeding, or where a witness in the proceedings is vulnerable (s 306ZL(2)) from personally cross-examining the complainant.[4]

  • Duty of the court — The court has a duty, in both civil and criminal matters, to give persons who represent themselves a fair hearing, and it may be appropriate for the court to give some assistance to such persons in order to fulfill that duty. The court hearing a case between an unrepresented litigant and another party, however, cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator.[5]

  • Numbers of self-represented parties — Data about the number of self-represented parties (SRP) is collected inconsistently across jurisdictions. [6] Since the NSW Court of Appeal commenced keeping statistics on representation status in 2014, an average of about 20% of matters commenced in that court have at least one party who is unrepresented, or about seven a month.[7] A SRP may be the applicant, respondent or the accused.

  • The sovereign citizen movement is a group of loosely affiliated individuals who are connected by a shared antagonism towards government and a convoluted and conspiratorial interpretation of the law.[8] Self-identifying “sovereign citizens” believe that they possess an uncorrupted and true understanding of the legal system. According to this conception, individuals are ‘sovereign’ and not bound by the laws of the country in which they live unless they waive those rights by accepting a contract with the government. Such people generally deny the jurisdiction of the courts and the legitimacy of government and legal processes and have a conspiratorial world view.[9] See 10.5.

  • Why people choose to represent themselves — There are many reasons why people choose to represent themselves. For example, they:

    • may have been refused legal aid or presume they are ineligible

    • may not be able to afford legal representation[10]

    • may have been told by lawyers that their case had no merit, but believe that it does have merit

    • may have been perceived by lawyers as in some way too “difficult” (for example, they are unable to speak English or to communicate well or sufficiently logically)

    • may not trust lawyers

    • in the case of sovereign citizens, believe the system of law and courts have no validity over them

    • may believe they are the best person to put their case across

    • may have withdrawn instructions from their lawyer relatively recently and not had time to find alternative representation

    • may represent themselves for part of the court proceedings and engage a lawyer only for the part they consider (or have been advised) to be most important or critical.

  • Difficulties faced by self-represented parties — People who represent themselves — whether in potentially winnable cases or in cases that were hopeless from the start — come from all types of socio-economic and educational backgrounds. Whatever their literacy or educational level, whatever the type of matter, and to some extent however informal the court is supposed to be, they are likely to face considerable barriers in presenting their case — particularly if they are the accused or the other party is represented. For example, they:

    • may not understand the complexities of relevant legislation and case law

    • may not fully understand legal language

    • may not be able to accurately assess the merits of their case

    • may not fully understand the purpose of the proceedings and/or the interlocutory steps in the proceedings

    • may not fully understand and/or be able to properly apply the court rules — for example, what they must file when, the rules of evidence and cross-examination

    • in the case of sovereign citizens, may make allegations or use arguments which are ambiguous, inconsistent, unintelligible or incapable of being material facts or other material irrelevant in nature[11]

    • may not have emotional objectivity or distance, and be overly passionate about their case

    • may not be skilled in advocacy and able to adequately test an opponent’s evidence, or cross-examine effectively

    • may, as a result of many or all of these issues, be feeling anxious, frightened, frustrated, and/or bewildered. The case may have an impact, or start to impact, on their emotional and/or physical health.

Comprehensive data is lacking but it has been noted that outcomes for SRPs are not as good as for those with representation.[12] For example, a SRP may lose the opportunity for diversion and early intervention programs for first offenders and young people.[13]

10.2 The impact of self-represented parties on the court

The difficulties faced by self-represented parties in turn lead to difficulties for the court. For example:

  • The proper processes are unlikely to have been followed.

  • It may be much harder, and might take longer than usual, to get to the essence of what the case is about, particularly if the SRP is a sovereign citizen who may make nonsensical and voluminous submissions which generally have no foundation in Australian law. Effective communication may be difficult as the sovereign citizen may claim not to recognise or go by the name on the court papers and/or may claim the law does apply to them.

  • The required evidence may not be presented at all, or may be presented inadequately, be illogical or irrelevant.

  • It will almost always be necessary for the judicial officer to intervene much more than usual.

  • Finding the appropriate balance between intervention and neutrality can be difficult.

  • It is more difficult for the other party and/or the prosecution to deal with an unrepresented party than a represented party.

  • Some unrepresented parties will be querulant.[14]

These difficulties are likely to be compounded if both parties are self-represented.

Self-represented parties must be given the chance to present their case as positively as they can, in the same way as represented parties are given that chance.

Unless ways are found to minimise the difficulties that self-represented parties face and the consequential difficulties faced by the court, self-represented parties are likely to:

  • feel overwhelmed

  • feel uncomfortable, resentful or offended by what occurs in court

  • in the case of sovereign citizens, deny the jurisdiction of the court and legitimacy of the legal process

  • not understand what is happening or be able to get their point of view across and/or be adequately understood

  • feel that an injustice has occurred

  • in some cases be treated unfairly and/or unjustly.

These difficulties may be compounded if the self-represented party also happens to be a person from a non-English speaking or migrant background, Indigenous, transgender(ed), gay, lesbian or bisexual, or a person with a disability, or they practise a particular religion — see the relevant other Section(s).

On the other hand, the court has to show neutrality in any measures it takes to enable the self-represented person to present their case, and for example, deal appropriately with any self-represented person who does not follow directions and/or is clearly vexatious. Otherwise, it is the other party who is likely to feel that an injustice has occurred, or in some cases be treated unfairly or unjustly.

Section 10.3, following, provides additional information and practical guidance about ways of treating a self-represented party or a sovereign citizen during the court process, so as to reduce the likelihood of these problems occurring.

10.3 Practical considerations[15]

10.3.1 Before the court appearance

Many of the difficulties self-represented parties (SRP) both face and cause can be minimised with good pre-court preparation. The court may be able to assist in this at the same time as ensuring that there are no problems in relation to neutrality.

The judicial officer (for example, in any directions or other type of pre-hearing) may need to consider the following points, when relevant and/or appropriate:

  • Do any or all of the following for a SRP using simple and direct, non-legal language — for information on the rules of simple, direct and non-legal language see, for example, 2.3.3.4, 3.3.5.3 or 5.6.5.4.

  • Ask the Registrar to check with the Supreme Court that the SRP is not on the list of vexatious litigants.[16]

  • Check whether there is any possibility in a civil matter of resolving the matter via negotiation or mediation (by the court or externally) and, where relevant, make the appropriate directions to attend. If this is an option and is happening externally to the court, ensure that the SRP knows that they must tell the court immediately if the matter settles so that any court date(s) can be given to someone else.

  • Check whether the SRP understands that if the court makes orders at a directions hearing, they know what they are required to do and the timetable. In Nobarani v Mariconte (2018) 92 ALJR 806 the High Court allowed an appeal and remitted the matter for a new trial as the self-represented appellant was denied procedural fairness due to the way the judge had conducted the directions hearing. The trial judge made no directions for the taking of any steps, or filing or service of any documents by the appellant. The appellant was therefore denied the opportunity to cross-examine a significant witness, locate another witness and call an expert witness.

  • Check whether the SRP has exhausted the possibility of obtaining legal representation — via legal aid, a community legal centre, a pro bono scheme,[17] or a lawyer (and that they know how to access these). The District and Supreme Courts may refer unrepresented litigants to the court Registrar for referral to a barrister or solicitor on the court’s Pro Bono Panel under Div 9, Pt 7 of the Uniform Civil Procedure Rules. In doing this, the court may take into account the litigant’s means and capacity to obtain legal assistance, the nature and complexity of the proceedings, and any other matter the court considers appropriate.

  • In a criminal trial, consider adjourning the matter for a few days to give the accused the opportunity to find new lawyers, apply for legal aid or reconsider his or her position about his or her lawyers. If after every avenue has been explored and the accused remains unrepresented, and the accused is indigent, you should consider whether the trial is likely to be unfair if the accused is forced to proceed unrepresented: Dietrich v The Queen (1992) 177 CLR 292. Representation of the accused by competent counsel is not only a requirement of a fair trial at law, but is also essential to efficiency: R v Munshizada; R v Danishyar; R v Baines (No 2) [2019] NSWSC 834 at [40].[18]

  • Refer the SRP to written and verbal explanatory information about the court and its processes and/or references to appropriate organisations and/ or their websites — for example, the information booklet “Representing yourself in Civil proceedings in the Supreme Court of NSW”, the State Library’s Legal Information Access Centre and LawAccess.

  • If appropriate, provide information about applying to use a “McKenzie friend”[19] or lay advocate, and how either might help. Leave is not required for a McKenzie friend. However, the court has a discretion at any stage to refuse to allow the assistance of a McKenzie friend if it considers their assistance is not in the interests of justice. [20] Leave is required for a lay advocate to appear on behalf of an unrepresented party and will only be granted in exceptional circumstances.[21] For both McKenzie friends and lay advocates, matters to consider include: the complexity of the case; any genuine difficulties the self-represented party has in presenting or preparing their case; any risks resulting from reduced professional accountability and duties to the court; and the public interest in effective, efficient and expeditious disposal of litigation. Greater judicial caution in allowing a McKenzie friend or lay advocate to appear should be exercised in criminal proceedings.[22] An application seeking leave for a lay advocate to appear should be made before the hearing.[23] See also “Unrepresented litigants and lay advisors” at [1-0800] in the Civil Trials Bench Book, Judicial Commission of NSW, Sydney.

  • In the Local Court, refer the SRP to the Deputy Registrar. In other courts, refer them to the Registrar, or other court officer for assistance and advice. The Deputy Registrar may, for example, be able to:

    • Provide them with a list of appropriate avenues for legal representation.

    • Provide them with written and verbal explanatory information about the court and its processes and/or references to appropriate organisations and/or their websites.

  • Ensure they understand the nature of the test or standard of proof the court will use in deciding their case — that is, “balance of probabilities”, or “beyond reasonable doubt”.

  • Ensure they understand what is and is not allowed in court in relation to evidence, and what is and is not allowed in relation to expert witnesses.

  • Ensure they understand what they must file with the court and/or the other party before the court proceedings start, how to do this, how many copies to provide, the page numbering system to use, and the date by which they must do this.

  • Ensure they understand who and what they need to bring with them when they come to court — for example witnesses, any original documentary evidence including copies for the court and the other party. You may need to ask the SRP what steps they have taken to ensure any witnesses they intend to call attend court.

  • Ensure they understand how to subpoena documents from the other party or a third party, and the court process for gaining access to documents once subpoenaed. They may also need to be informed of other pre-trial matters that may arise, and the process for putting on or responding to a notice of motion.

  • An accused in a criminal trial should be provided with a daily transcript. An order form and fee waiver form should be organised through the Court Registry prior to the trial.

10.3.2 At the start of court proceedings

A self-represented party will not generally know how court proceedings run, who does what and in what order, and what they are allowed and not allowed to do in presenting their case or in testing the other party’s evidence. The duty to ensure a fair trial or proceeding to an unrepresented criminal defendant is greater than that owed to a civil litigant.[24]

It is therefore a good idea, at the start of the proceedings, to set the scene and the ground rules in relation to the process that will be followed, so as to help minimise delays and problems later on. If an accused in a criminal trial is determined to appear for themselves, you should ensure that they have all of the material upon which the Crown relies before the trial begins.

If the accused in a trial wishes to rely on an alibi, an enquiry should be made as to whether an alibi notice has been served.[25]

Note that the Criminal Trial Courts Bench Book[26] provides specific directions in relation to what to say at the start of criminal proceedings when the accused person is self-represented.[27]

In addition, and in all other cases, you may need to explain — in simple and direct, non-legal language (for information on the rules of simple, direct and non-legal language see, for example 2.3.3.4, 3.3.5.3 or 5.6.5.4):

  • The basic conventions — for example:

    • Who is in the court and their names and roles.

    • How to address the judicial officer(s) and the other party or their legal representative(s).

    • The need to ensure mobile phones are off or in silent mode.

    • That they can take notes but cannot record the proceedings and how to get access to any court recording of the proceedings.

    • The conventional order of proceedings including when their witnesses will be required. This may involve explaining the distinction between evidence and submissions.

    • To ask you if they do not understand anything or need a break.

    • That each side will get a full opportunity to present their case, but that only one person can speak at a time and that everyone must behave with politeness and respect.

  • The purpose of the proceedings — for example, whether the full case or merits of the case are being looked at, or whether something narrower is being looked at (for example, a dismissal application), and if necessary, explain why only a narrower issue is being looked at. It should be made clear what orders they are seeking or what orders are being sought against them.

  • Where should the unrepresented person sit in a criminal trial? Unless there are security concerns, the unrepresented person in a criminal matter would normally sit at the bar table so that their unrepresented status is not given undue prominence.[28]

10.3.3 The trial judge’s role[29]

  • Your role — that is, to make sure everyone is able to present their evidence as fairly and effectively as possible, to stay neutral and not favour either side, and then to decide the case.[30]

  • You might also wish to explain that you may well ask more questions than you do usually in order to check that you understand the self-represented party’s case, and that if any such question concerns the other party in relation to you remaining neutral they should say so at the time.

  • Some sovereign citizens genuinely believe that their arguments represent the correct and true form of legal argumentation that ought to be followed by the legal system. These are not definitionally mala fides actors, but rather individuals who misunderstand critical elements in our legal system, such as the idea that legislation is not contractual. Given the fact that many adherents hold sincere but misinformed beliefs, courts should respond carefully when dealing with such litigants. Responses should be guided by a more structured form of engagement, instead of the mockery and minimalisation that may initially seem justified.[31]

  • What the central issues are that are being looked at/decided in these proceedings — and why anything else they thought was going to be dealt with cannot be dealt with — and then gain agreement with the parties that these are the only issues that will be dealt with. It may be necessary to ensure that they are aware of the distinctions between issues of fact and law, understand the finality of orders already made and are aware of the bounds of the judicial officer’s discretion to grant relief.

  • The order of events — who does what when, and the points at which they will get their opportunity to present/say what they need to present/say.

It may also be useful to check:

  • (Again) whether negotiation or mediation is appropriate instead.

  • That the SRP has filed the necessary statements and documentary evidence (and that the other party has received copies of these), and received any documents they issued a subpoena for.

  • That the SRP has their witnesses and any other documentary evidence there.

  • That if the SRP wishes to rely on any pre-prepared statements the other side has an opportunity to see them first so that any issues of admissibility can be canvassed at the appropriate time.

Note that you may need to exercise a greater degree of flexibility than you would in the case of a represented party if some of these issues have not been dealt with properly — bearing in mind the SRP’s likely lack of legal process knowledge and understanding.

You may need to adjourn the proceedings until any of these issues are dealt with properly.

You may need to summarily dismiss the application as an abuse of court process in the case of a sovereign citizen who claims for example the court has no jurisdiction over them for spurious reasons and/or they claim to not recognise or go by the name on the court papers.[32]

You may need to strike out the matter for disclosing no cause of action or strike out the defence if a pleading is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence or it if contains inconsistent, confusing or irrelevant allegations.[33]

Ensure that the SRP has understood the proceedings and had adequate opportunity to “vindicate” his or her rights. This may require you to explain the consequences of the SRP making an application for an adjourment or recusal, for example, in civil proceedings, in terms of costs and potential future proceedings.[34]

In jury trials, it may also be important to ensure that the jury is not unduly influenced (either in favour of or against a person) simply because they are representing themselves. You may therefore need to explain that there are many reasons why people choose to represent themselves and that they must not use the fact that X is representing themselves to influence them one way or the other. It is the evidence presented by both sides that they need to listen to carefully and make a decision about, not whether it was, or was not, presented by a legal representative, see 10.3.4.4.

10.3.4 As the court proceedings progress

10.3.4.1 The self-represented party’s evidence

It is important that the SRP is able to present their evidence as effectively as they can, otherwise they may lose their case, not because they had no case, but simply because it was poorly presented and/or led to everyone being too frustrated or confused to be able to listen effectively and/or understand what the self-represented party was trying to present.[35]

In civil proceedings, s 56(3) of the Civil Procedure Act 2005 imposes a duty upon a party and its legal representatives, when opposed by an unrepresented litigant, to assist the court to understand and give full and fair consideration to the submissions of the litigant in person and to refer the court to evidence in the proceedings that is relevant to the submissions. That duty is accentuated where the party is a substantial institution accustomed to litigating cases, often against unrepresented litigants.[36]

It is therefore a good idea to explain the ground rules set out in 10.3.2 before the self-represented party starts to present their case.[37] Doing this may help ensure that the self-represented party presents only the evidence needed, adheres to the rules of evidence, and presents their case in the best possible light.

You may also need to intervene whenever they seem to be struggling, or the court is not getting what it needs to be able to determine the matter(s) before it. You will need to do this without showing any partiality and without advocating or appearing to advocate on behalf of the self-represented person. A useful list of guidelines for judges in the context of civil proceedings has been set out by the Honourable Justice TH Smith of the Supreme Court of Victoria.[38] A number of cases have also looked at the bounds of judicial intervention in both criminal and civil cases, see R v Zorad,[39] R v Mercer [40], Burwood Municipal Council v Harvey[41] and Minogue v Human Rights and Equal Opportunity Commission.[42]

For example, using simple and direct, non-legal language, (for information on the rules of simple, direct and non-legal language see, for example 2.3.3.4, 3.3.5.3 or 5.6.5.4), and in a neutrally informative (as opposed to advisory or leading) manner, you may need to:

  • Explain to the SRP that it is their turn to present their case and how they must do this — for example, you may need, in a step by step manner, to:

    • State that this is their opportunity to prove that their version of events/ side of the story is correct.

    • Explain what test or standard of proof the court will use to decide their case — that is, “balance of probabilities”, or “beyond reasonable doubt”, and also where the onus of proof lies (that is, whether the law says that it is they who specifically need to prove their case, or the other side who needs to do this). Explain how the standard of proof applies to specific facts and the overall case put forward.

    • Explain that this means they must make sure the court hears or sees all their evidence (that is, all the facts and information they have that they think proves their case). However, they must not say what they think all these facts and information mean or add up to at this stage — they will get a chance to do that at the end of the proceedings/day in what is called their “final submission”. Although, for those who are defending themselves in a criminal trial, it will also be important to explain that they have the legal right to remain silent.

    • Explain that most people present their case by first giving their own evidence — that is, by saying/showing what they personally saw or heard happen, or did, once they have given their own evidence, they bring in their witnesses one by one, so that the witnesses can give their evidence (say/show what they saw or heard happen, or did). Explain the purpose of giving sworn evidence, the procedure for taking an oath or affirmation, and the obligation it entails.

    • Explain in basic terms what is allowed to be said/shown in evidence and what is not — paying particular attention to the fact that they can generally only say what they themselves directly saw or heard happen, not what someone else has told them they saw or heard.

  • Make sure the SRP gives their own evidence in a way that follows procedural rules and allows the court to understand what their evidence is — for example:

    • Ask them to move from the bar table to the witness stand, explain why this is necessary, and then swear them in and get their name and contact details entered into the record. For information about oaths and affirmations, see 4.4.2.

    • If they have a written statement and it is admissible, get it admitted into evidence in the usual way and confirm with them that it is a true and accurate record. Be aware however that the submissions of SRP’s and particularly sovereign citizens may be voluminous (downloaded from the internet) and irrelevant to the proceedings.

    • Say that they only need to say anything more if they have more evidence than they have put in their statement, or wish to correct a mistake, or clarify something in the written statement.

    • If they do have anything more to say, or have no written statement, suggest that they give their evidence by telling their story of what they personally know happened, starting from the first thing that happened and then the next thing, etc.

    • Intervene only when necessary and always neutrally — for example, you may need to intervene if you need to clarify what they are saying, they seem to have deviated from the point or from what the court is able to look at, they are presenting something inadmissible, they are presenting their evidence out of sequence, they are referring to documents that may need to be admitted into evidence, or they are taking up an inordinate amount of the court’s time.[43] If you do intervene, always explain why you are intervening, bearing in mind that the other party needs to be sure you are remaining neutral, and then ask whatever (brief) question(s) you need to ask to keep the matter going as efficiently and effectively as possible.

  • Explain that the other party may now want to question them about what they have said/shown — and that they should answer their questions truthfully.

  • As prescribed by law, intervene if the other party appears to be asking unfair or inappropriate questions — given that the SRP may not be fully aware of the rules about this. However, be careful to do so in a way that is neutral and always explain why you are intervening in a careful and non-provocative manner.[44]

  • Once cross-examination has finished, ask the SRP if they want to add anything more to their own evidence based on their answers in response to cross-examination (for example, to clarify any of the answers they just gave) and then let them do so — intervening, as necessary, as you did before. They should also be made aware that they can seek leave to add any new information that has not arisen.

  • If they neglect to clarify or explain something that you think needs factual clarification or explanation, ask them a neutral question designed to elucidate the facts — for example, “X asked you if … You answered … This appears to contradict what you said earlier. Can you explain this?” However, always explain why you need to do this, so that both the SRP and the other party can understand your motive and your neutrality.

  • If the SRP has introduced new or altered evidence, allow the other party to ask any final questions in the usual manner, intervening as necessary, as before.

  • Ask them to move back to the bar table and call their witnesses one by one in whichever order they think will best tell their story/explain their case to the court.

  • Make sure they present their witnesses’ evidence in a way that follows the rules and allows the court to understand what the person’s evidence is — for example, you may need to:

    • Remind them of the rules about what can and cannot be said/told.

    • Swear in witnesses as usual and then yourself get the witnesses’ names and details entered into the court record.

    • Ensure any written statement, if admissible, is admitted in evidence and explain that the self-represented person needs to confirm with the witness that their statement is true and accurate. The witness should be given the opportunity to correct the written statement if it is not true and accurate. Then suggest that they only need to ask any questions of the witness if in their view that witness has anything to say that was not in their statement and that will help prove their case.

      • If the witness does have more to say, or gave their evidence orally, suggest that it is best to ask their witness short questions, one by one, in a way that will get the witness’ story from them — starting from the beginning of their story. However, explain that they must not ask leading questions (ones where they are effectively telling the witness how to answer), and they must not ask questions that the witness is not qualified to answer.

    • Intervene only when necessary — that is, in the same manner as for the self-represented person’s own evidence — see above.

  • Explain that the other party may now want to question their witness about what they have said/shown — and that the witness should just answer the questions truthfully. Intervene as necessary, as before.

  • Once the cross-examination is finished, ask the SRP if they want to ask their witness anything more (for example, to give more information or clarify any of the answers they just gave) and then let them do so — intervening as necessary, as you did before.

  • If they neglect to ask their witness something that you think needs clarification or explanation, ask the witness a neutral, fact-elucidating type of question yourself. However, always explain why you need to do this, so that both the self-represented party and the other party can understand your motive and your neutrality.

  • If the witness has introduced new evidence or altered their evidence, allow the other party to ask any final questions in the usual manner — intervene as necessary, as before.

  • Explain what is going to happen next — for example, that it is now the other party’s turn to present their evidence, or it is now time for each party to give their final submissions.

  • In rare cases, you may need to consider referring them to the Supreme Court for that court to decide whether they are a vexatious litigant.[45] A small percentage of sovereign citizens may become obsessed, querulant and/or vexatious.

10.3.4.2 Testing the other party’s evidence

A SRP is unlikely to be able to determine issues of admissibility or to be able to test the other party’s or their witnesses’ evidence via cross-examination as competently as a legal representative.

In all fairness, therefore, you may need to intervene whenever:

  • There might be an issue of admissibility — for example, to stop leading questions or questions that the witness is not qualified to answer.

  • The SRP is not picking up on an aspect of the other party’s evidence that requires testing.

  • The SRP is using cross-examination to ventilate about irrelevant matters or in an unfair manner.

You will need to do this without showing any partiality and without advocating, or appearing to advocate, on behalf of the SRP.

Using simple and direct, non-legal language, (for information on the rules of simple, direct and non-legal language see, for example 2.3.3.4, 3.3.5.3 or 5.6.5.4, and in a neutrally informative (as opposed to advisory or leading) manner, you may need to:

  • Explain the rules and method by which the other party must present their side of the case. For example, it may be useful to say that the other party now has to present their side of the case using the same rules and method as they themselves had to follow when they presented their side of the case — for example, no leading questions and no questions that the person is not qualified to answer.

  • Explain that the SRP will get their chance to ask questions of the other party later — so they should not generally interrupt or say anything while the other party or any of their witnesses is presenting their story/case, even if they think the person has got it wrong or is telling lies. However, explain that they can interrupt whenever they think the other party or one of their witnesses is saying something that breaks the rules (for example, a leading question) and that you will then decide whether the other party has to stop presenting that way or can continue presenting that way.

  • Intervene if the SRP does not seem to be picking up on something that might be inadmissible, but otherwise let them present their evidence without intervention — if you do intervene, explain why you are doing so, and do so in a non-provocative way, so that the other party does not have any cause to think that you are being partial.

  • Before asking the SRP to start any cross-examination, explain the purpose of cross-examination (that is to test the other party’s evidence or to put the self-represented person’s version of the events to them, not to give opinions about why it’s wrong or inaccurate the time for giving their opinions is at the end of the proceedings, not now), what questions they can and cannot ask, and that it is best to ask short questions one at a time, and that they must be polite and respectful and not hector the witness. You might also wish to try to limit their cross-examination to a certain amount of time. Note that if the self-represented person is the accused in sexual offence proceedings, they are prohibited from personally cross-examining the complainant.[46]

  • As prescribed by law, intervene if their cross-examination is for example, off the point, not assisting in testing the evidence, disallowable, incomprehensible to the witness, not being appropriately answered or unfair[47]— and, for example, explain why the question cannot be asked, why it’s not helping to test the evidence, help rephrase the question for them, or explain how it must be answered. However, always do this in a way that shows you are being neutral.

  • Use of intermediary — if the party is a self-represented accused in a prescribed sexual offence proceeding, an intermediary should be appointed if the complainant is to be cross examined.[48]

  • Explain the purposes of re-examination including the right to object if new evidence is adduced.

  • Generally only ask your own questions of the other party and their witnesses after cross-examination by the self-represented party, and only when you need to clarify any particular point, or are unclear about the validity of their evidence. However, always explain why you are doing this to ensure that both parties understand that you are being neutral and simply trying to clarify what is being said.

10.3.4.3 Final submissions

There is a discretionary practice that the Crown not give a closing address in cases where an accused is unrepresented.[49] If, however, you do decide to exercise your discretion to allow the Crown to address, you should explain the situation to the accused and read to him or her the relevant parts of the Criminal Trial Courts Bench Book at [1-820] so that they understand they can address, what they can say, what they cannot say.

A SRP has the same right to present final submissions as anyone else. However, in order to do this effectively, they may need some guidance about the process.

Using simple and direct, non-legal language, (for information on the rules of simple, direct and non-legal language see, for example 2.3.3.4, 3.3.5.3 or 5.6.5.4, and in a neutrally informative (as opposed to advisory or leading) manner, you may need to:

  • Explain the purpose of final submissions — that is, to summarise why they believe that the case should be decided in their favour.

  • Explain again what test or standard of proof the court will use to decide their case — that is, “balance of probabilities” or “beyond reasonable doubt”.

  • Explain that this is their chance to tell the court why they think they have proved/shown that their version of events/side of the story meets this test — that is, what precise parts of their own, their witnesses’ and/or their documentary evidence proves/shows this, and why the court should believe or prefer their evidence over the other party’s evidence. They might therefore also want to explain what they see as the problems with the other party’s evidence. If appropriate, they should tell the court what they think the outcome of the case should be/what they want from the court — as precisely as they can.

  • Generally allow them to make their final submissions without interruption — unless they are breaking any court rules or legal requirement, or you need to ask a question to clarify the meaning of any part of submission.

  • Explain that the other party is allowed to do the same — that is, explain why they think they have proved their case, and the problems they see in the SRP’s case, and that the SRP must not interrupt the other party as they do this.

  • If you are not giving your decision or full decision now, explain precisely when you will give a decision or when they will be notified about the decision, whether they will be required to attend and in what form they will receive it — If appropriate, explain by what date they must get their final submissions into the court in writing and how many copies to provide.

10.3.4.4 Guidance to the jury — points to consider

It is important that you ensure that the jury does not allow any concerns they might have about people representing themselves to unfairly influence their judgment.

This should be done in line with the Criminal Trial Courts Bench Book[50] or Local Courts Bench Book[51] (as appropriate), and you should raise any such points with the parties’ legal representatives first.

For example, you may need to provide specific guidance as follows:

  • Alert them to, or remind them of, the fact that there are many reasons why people choose to represent themselves and that they must not use the fact that X did so to influence them one way or the other.

  • In a sexual offence matter, remind them why the self-represented accused person was not themselves allowed to cross-examine the complainant, and explain that this fact must not affect the way in which they view the evidence.

  • Alert them to any of the points listed in the “Directions to the jury” parts of any other appropriate Section of this Bench Book — if, for example, the self-represented person is First Nations, from a culturally or linguistically diverse background, has a particular religious affiliation, is a person with a disability, or who is lesbian, gay, bisexual, transgender or intersex (if relevant).

10.4 Sentencing, other decisions and judgment or decision writing — points to consider

Your sentencing, decision(s) and/or written judgment or decision must be fair and non-discriminatory and preferably be seen by both the SRP and any represented party to be so.[52]

Points to consider:

  • Ensure that the fact that one or both of the parties was self-represented does not unfairly influence your sentence, decision and/or written judgment.

  • Consider whether it is appropriate to refer to the fact of self-representation, and/or to the difficulties that self-representation caused the SRP, the other party and/or the court.

  • In rare cases, consider referring the matter to the Attorney General for consideration as to whether he should refer the matter to the Supreme Court for that court to decide whether the SRP is a vexatious litigant.[53]

  • Ensure that the SRP is told of the outcome in a way in which they can understand the sentence, decision and/or judgment and what it means for them,[54] and if unhappy with it, are referred to the appropriate source(s) of advice or assistance about any avenues they might have for appeal.

10.5 Sovereign citizens: further information

Last reviewed: October 2023

The sovereign citizen phenomenon appeared in North America more than two decades ago[55] and has become more prevalent in other jurisdictions including Australia with the rise of social media. In 2023, judicial officers in Australia reported a “sharp rise”[56] in the number of cases brought by litigants asserting that the legal system does not apply to them.

As Harry Hobbs notes,[57] a brief survey of Australian cases reveals considerable creativity. Litigants have submitted that Magna Carta discharges them of their obligation to pay their mortgage,[58] that the Australian Constitution ceased to have effect upon Australia signing the Treaty of Versailles,[59] and that the presence of the Royal Coat of Arms above the bench means English common law supersedes Australian statutory law.[60]

Common to those claiming to be sovereign citizens are:

  • Refusing to respond to a name and calling themselves a “flesh and blood man” so as not to be subject to legal authority. This uses the “strawman” argument to say they have separated from the legal identity imposed on them by the government[61]

  • Using a “trust” or a dummy corporation to create a separate entity

  • Tendering documentation which does not comply with legal requirements may include affidavits with fingerprints[62]

  • Claiming lack of jurisdiction[63] or invalid court documents[64]

  • Claiming the Magna Carta, Bill of Rights, Acts of Settlement/Common Law invalidate the Australian Constitution and other current legislation[65]

  • Questioning the validity of the appointment of the Governor which affects the validity of legislation and judicial appointments[66]

  • Claiming to be fined before conviction.

  • Claiming a right to trial by jury[67]

  • Claiming First Nations sovereignty[68]

  • Refusing to enter a plea[69] or pay filing fees[70]

10.5.1 Select case law rebuttals to sovereign citizen pseudo legal arguments

Judicial officers are bound by their judicial oath to treat an unrepresented litigant fairly and with courtesy. In dealing with unrepresented litigants, including sovereign citizens, courts have summarily dismissed the application as an abuse of court process;[71] struck out the statement of claim pursuant to UCPR r 14.28 (pleading had a tendency to cause prejudice, embarrassment or delay in the proceedings) as it was unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence or it contained inconsistent, confusing or irrelevant allegations;[72] struck out the defence for not complying with the UCPR nor with the principles of pleading;[73] rebutted the pseudo-legal arguments;[74] or made orders to reject filings with that are defective.[75] Sovereign citizens are increasingly appearing before the courts (and lodging complaints with official complaints bodies like the Judicial Commission and Ombudsman’s Office), particularly since the rise of social media and the occurrence of COVID-19.[76] Such people generally deny the jurisdiction of the courts and the legitimacy of government and legal processes and generally have a conspiratorial world view.[77]

10.6 Further information or help

For information on free sources of legal information, advice or representation, see:

  • Judicial Commission of New South Wales, Pro Bono Schemes in NSW, 2nd ed 2023, Sydney. This brochure is published on JIRS under the “Publications” menu on the left-hand bar.

  • Court-based information and assistance:

    • District Court and Supreme Court pro bono assistance — An unrepresented litigant may apply for legal assistance under the Uniform Civil Procedure Rules, Div 9, Pt 7. If someone has obtained this type of assistance within the last three years, a judge must be satisfied that there are exceptional circumstances that justify another referral. A referral is not intended to be a substitute for Legal Aid. The court or judge may refer an unrepresented litigant in need of legal assistance to a registrar for referral to a barrister or solicitor on the Court’s Pro Bono Panel. Contact the Registry of the relevant court. Further information is available on the website of the Supreme Court of NSW, “Pro bono legal help”, accessed 26/9/2023.

    • The District Court website has information for legal assistance, accessed 26/9/2023. This provides information and links to LawAccess NSW, a free government telephone service; the LawAssist website; the Legal Information Access Centre; Legal Aid NSW; Women’s Legal Services; Community Legal Centres; and Legal services for Aboriginal people.

  • Schemes of Professional Bodies:

    • Law Society of New South Wales Pro Bono Scheme — The Law Society’s Pro Bono Scheme can put eligible members in contact with law firms willing to provide their legal services for free or for reduced fees. This assistance can include legal advice, help with preparing documentation and representation in court.

      Pro Bono Solicitor — Law Society of New South Wales

      170 Phillip Street
      Sydney NSW 2000
      Ph: (02) 9296 0333
      Fax: (02) 9231 5809
      www.lawsociety.com.au/pbs

  • New South Wales Bar Association Legal Assistance Referral Scheme — The NSW Bar Association has a Legal Assistance Referral Scheme. When deciding whether to provide assistance, the NSW Bar Association considers a number of factors including the applicant’s financial resources, whether they have been refused legal aid or assistance elsewhere and the prospects of success of the case. Matters relating to cases such as personal injury, medical negligence, a neighbourhood dispute or an apprehended violence matter (AVO) are not included in the scheme.

    The New South Wales Bar Association

    Selbourne Chambers
    B/174 Phillip Street
    Sydney NSW 2000
    Ph: (02) 9232 4055
    Fax: (02) 9221 1149
    www.nswbar.asn.au

  • The New South Wales Bar Association Duty Barrister Scheme — The Duty Barrister Scheme is an initiative of the NSW Bar Association. They have been introduced to particular Local Courts to help people who cannot afford a lawyer, who do not qualify for legal aid and who have a matter before the court on the day. The duty barrister can provide legal advice and argue the case in court.

    The New South Wales Bar Association

    Selbourne Chambers
    B/174 Phillip Street
    Sydney NSW 2000
    Ph: (02) 9232 4055
    Fax: (02) 9221 1149
    Email:  

  • Legal Aid Commission of NSW /Law Access NSW — provides free legal advice and grants legal aid for matters in specified areas of the law. Applicants are assessed on their financial means; the merits of the case; and whether they meet Legal Aid policy guidelines. Applicants must fill out a Legal Aid Application Form, available from an Legal Aid office, from duty lawyers at local courts

    Legal Aid Commission of NSW

    323 Castlereagh Street
    Sydney NSW 2000
    Ph: (02) 9219 5000

    www.legalaid.nsw.gov.au/

  • Community Legal Centres — Community Legal Centres are independent non-government organisations that provide free legal advice, information and referrals on a range of issues. Of the nearly 40 community legal centres in NSW, some provide generalist assistance and some provide specialist advice (see www.clcnsw.org.au for their locations).

    Community Legal Centres NSW

    Suite 805, Level 8
    28 Foveaux Street
    Surry Hills NSW 2010
    Ph: 02 9212 7333
    Fax: 02 9212 7332
    Website: http://www.clcnsw.org.au/
    Email: clcnsw@clc.net.au

  • State Library of New South Wales, Legal Information Access Centre, accessed 26/9/2023.

10.7 Further reading

L Richardson, G Grant and J Boughey, “The impacts of self-represented litigants on civil and administrative justice: environmental scan of research, policy and practice”, Australasian Institute of Judicial Administration, 2018, accessed 26/9/2023.

MJ Beazley, AO, “Communicating the law: self-represented litigants in the Court of Appeal”, NCAT Annual conference, 2015.

M Castles, “Barriers to unbundled legal services in Australia: canvassing reforms to better manage self-represented litigants in courts and in practice”, (2016) 25  JJA 237.

L Flannery, “Dealing with unrepresented litigants in lengthy and complex trials”, 8 May 2019.

Judicial Commission of NSW, Criminal Trial Courts Bench Book, “Self-represented accused”, at [1-800]ff, <www.judcom.nsw.gov.au>, accessed 26 August 2019.

Judicial Commission of NSW, Civil Trials Bench Book, Sydney, “Unrepresented litigants and law advisors”, at [1-0800]ff, <www.judcom.nsw.gov.au>, accessed 26 August 2019.

Judicial Commission of NSW, Pro bono schemes in NSW, Sydney, 2019.

Judicial College, Equal Treatment Bench Book, “Litigants in person and lay representatives”, 2023 revision, London, Ch 1, at accessed 26/9/2023.

Law Council of Australia, “Erosion of Legal Representation in the Australian Justice System”, research project and report undertaken by Law Council of Australia in conjunction with Australian Institute of Judicial Administration, National Legal Aid and Aboriginal and Torres Strait Islander Legal Services, 2004, accessed 26/9/2023.

G Lester, “The vexatious litigant”, (2005) 17(3) Judicial Officers Bulletin 17.

D Netolitzky, “A rebellion of furious paper: pseudo-law as a revolutionary legal system” (2021) 59 Alberta Law Review 1.

D Netolitzky, “The organized pseudolegal commercial argument phenomen” (2016) 53 Alberta Law Review 609.

D Netolitzky, “A pathogen astride the minds of men: the epidemiological history of pseudolaw”, paper delivered at the Centre d’expertise et de formation sur les intégrismes religieux et la radicalisation (CEFIR) symposium: “Sovereign Citizens in Canada”, Montreal, 3 May 2018.

NSW Bar Association, “Guidelines for barristers on dealing with self-represented litigants”, October 2001, accessed 26/9/2023.

The Law Society of NSW, “Guidelines for solicitors dealing with self-represented parties”, April 2006, accessed 26/9/2023.

JW Perry, “The Unrepresented Litigant”, paper presented at AIJA 6th Conference, September 1998.

E Richardson, et al, “Self-represented litigants: gathering useful information”, Final report — June 2012, Monash University.

T Soudin and N Wallace, “The dilemmas posed by self-represented litigants: the dark side” (2014) 24 JJA 61.

E Richardson, T Sourdin and N Wallace, “Self-Represented Litigants: Literature Review”, Australian Centre for Justice Innovation, Monash University, 2012.

Supreme Court of Queensland, Equal Treatment Benchbook, 2nd ed, Ch 12, accessed 26/9/2023.

State Library of New South Wales, Legal Information Access Centre, accessed 26/9/2023.

D Webb, “The right not to have a lawyer” (2007) 16(3) JJA 165–178.

Faulks J, "Self-represented litigants: tackling the challenge", Paper delivered at Managing People in Court Conference, National Judicial College of Australia and the Australian National University, February 2013, accessed 26/9/2023.

G Zdenkowski, “Magistrates’ Courts and Public Confidence” (2007) 8(3) The Judicial Review 385.

10.8 Your comments

The Judicial Commission of NSW welcomes your feedback on how we could improve the Equality before the Law Bench Book.

We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.

In addition, you may discover errors, or wish to add further references to legislation, case law, specific Sections of other Bench Books, discussion or research material.

Section 14 contains information about how to send us your feedback.


[1] Much of the information in Section 10.1 is drawn from Judicial Studies Board, Equal Treatment Bench Book, London, updated 2008, Ch 1.3, at <www.judiciary.gov.uk>, accessed 4 June 2014; and Supreme Court of Queensland, Equal Treatment Benchbook, Supreme Court of Queensland Library, Brisbane, 2005, Ch 12, at <www.courts.qld.gov.au>, accessed 4 June 2014; and E Richardson, Self-represented parties: A trial management guide for the judiciary, County Court of Victoria, Melbourne, 2004.

[2] See ss 36(1) and 37(2) Criminal Procedure Act 1986 (NSW) and UCPR r 7.1.

[3] See Vexatious Proceedings Act 2008 (NSW), s 8.

[4] If the self-represented person is the accused in sexual offence proceedings, see n 46.

[5] Reisner v Bratt [2004] NSWCA 22 at [4]–[6]; Malouf v Malouf (2006) 65 NSWLR 449 at [94].

[6] Senate Legal and Constitutional Affairs References Committee, Access to Justice, Canberra, December 2009, recommendation 17.

[7] M Beazley, “Communicating the law: self-represented litigants in the Court of Appeal”, paper presented at the NCAT Annual Conference, 2015, p 4.

[8] From H Hobbs, “Understanding and responding to pseudolaw”, NSW Supreme Court Judges Annual Conference, August 2023. For more on the sovereign citizen movement see: Francis Sullivan, ‘The “Usurping Octopus of Jurisdictional Authority”: The Legal Theories of the Sovereign Citizen Movement’ (1999) 4 Wisconsin Law Review 785, 786; James Evans, ‘The “Flesh and Blood” Defense’ (2012) 53(4) William and Mary Quarterly 1361; Joshua Weir, ‘Sovereign Citizens: A Reasoned Response to the Madness’ (2015) 19(3) Lewis & Clark Law Review 829.

[9] D Netolitzky, “A pathogen astride the minds of men: the epidemiological history of pseudolaw”, paper delivered at the Centre d’expertise et de formation sur les intégrismes religieux et la radicalisation (CEFIR) symposium: “Sovereign Citizens in Canada”, Montreal, 3 May 2018, p 2.

[10] The Productivity Commission, “Access to Justice Arrangements”, Inquiry Report No 72, 2014 at p 492, accessed 27/9/2023, found that most people who self-represent in courts do so involuntarily because they cannot afford a private lawyer or are ineligible for legal assistance.

[11] Deputy Commissioner of Taxation v Bonaccorso (No 3) [2016] NSWSC 1018 per Garling J at [11]; Szanto v Bainton [2011] NSWSC 985 per Ward J at [107].

[12] E Richardson, T Sourdin and N Wallace, “Self-represented litigants: gathering useful information”, Final report, 2012, Australian Centre for Justice Innovation, Monash University, p 11.

[13] See Law Council of Australia, “The Justice Project”, People experiencing economic disadvantage (Part 1), 2018, pp 33-34, accessed 26 September 2023.

[14] For a definition of querulant, see G Lester, “The vexatious litigant”, (2005) 17(3) Judicial Officers’ Bulletin 17.

[15] Unless otherwise indicated, the information in Section 10.3 is drawn from Judicial College, Equal Treatment Bench Book, “Litigants in person and lay representatives”, 2023 revision, London, Ch 1, at accessed 26/9/2023; Supreme Court of Queensland, Equal Treatment Benchbook, 2nd ed, Supreme Court of Queensland Library, Brisbane, 2016, Ch 12, accessed 27/9/2023; and the Honourable Justice TH Smith, Supreme Court of Victoria, “Possible guidelines for the trial of litigation involving unrepresented parties” in Australasian Institute of Judicial Administration Inc, Litigants in person management plans: Issues for courts and tribunals, Victoria, 2001, Appendix 2.

[16] See Vexatious Proceedings Act, Pt 2.

[17] For more information on each of these free sources of legal representation, see Judicial Commission of NSW, Pro bono schemes in NSW, Sydney, 2nd ed, 2023 published on JIRS under “Publications”; State Library’s Legal Information Access Centre and LawAccess.

[18] See also Judicial Commission, Criminal Trial Courts Bench Book, “Self-represented accused” at [1-810].

[19] A “McKenzie friend” attends the hearing and is able to sit with the self-represented party, take notes, quietly make suggestions and give advice: McKenzie v McKenzie [1971] P 33.

[20] Smith v R (1985) 159 CLR 532; Re Shaw (2001) 127 A Crim R 440.

[21] Damjanovic v Maley (2002) 55 NSWLR 149; Portelli v Goh [2002] NSWSC 997.

[22] Re B (1981) 2 NSWLR 372, R v Smith (1982) 2 NSWLR 608.

[23] Teese v State Bank of New South Wales [2002] NSWCA 219.

[24] See Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 at [56].

[25] Section 150, Criminal Procedure Act 1986.

[26] Judicial Commission of NSW, Criminal Trial Courts Bench Book, Sydney, “Self-represented accused” at [1-000]ff, accessed 8 September 2019.

[27] See also Judicial Commission of NSW, Civil Trials Bench Book, Sydney, “Unrepresented litigants and lay advisers” at [1-0800]ff, accessed 8 September 2019.

[28] See L Flannery, “Dealing with unrepresented litigants in lengthy and complex trials”, District Court twilight seminar, 8 May 2019, accessed 27/9/2023.

[29] An excellent example of the trial judges role is set out in L Flannery, ibid at [62]–[73].

[30] “The restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one of the litigants is self-represented.”: Malouf v Malouf (2006) 65 NSWLR 449 at [94].

[31] H Hobbs, S Young and J McIntyre, “The Internalisation of Pseudolaw: the growth of sovereign citizen arguments in Australia and Aottearoa New Zealand”, (2024) 47(1) UNSWLJ (forthcoming). Note that courts in Australia and Aotearoa New Zealand are increasingly attempting to respond to pseudolaw by making substantive and informed rebuttals, particularly of strawman arguments.

[32] See for example, Bradley v The Crown [2020] QCA 252.

[33] Szanto v Bainton [2011] NSWSC 985 at [107]; Deputy Commissioner of Taxation v Bonaccorso (No 3) [2016] NSWSC 1018 at [14]–[18].

[34] Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367. See also Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) (2014) 46 VR 283, in which procedural fairness was not afforded due to the trial judge’s failure to warn the unrepresented parties that their failure to give evidence could give rise to a Jones v Dunkel inference.

[35] as occurred in JE v Secretary, Department of FaCS [2019] NSWCA 162, where the NSW Court of Appeal held at [64] the unrepresented appellant failed to identify any error in the trial judge’s decision to dismiss her damages proceedings against the respondent.

[36] Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 at [41], [42].

[37] See n 35.

[38] TH Smith, Supreme Court of Victoria, “Possible guidelines for the trial of litigation involving unrepresented parties” in Judicial College of Victoria, Civil Proceedings, at www.judicialcollege.vic.edu.au/eManuals/MCBB/40262.htm, accessed 9 September 2019. See also Judicial Commission of NSW, Civil Trials Bench Book, above n 27, at [1–0820].

[39] (1990) 19 NSWLR 91.

[40] (1993) 67 A Crim R 91.

[41] (1995) 86 LGERA 389.

[42] (1999) 166 ALR 129.

[43] Section 135(b) of the Evidence Act 1995 (NSW) provides a general discretion to exclude evidence that is misleading or confusing. See also case management in s 69 of the Criminal Procedure Act 1986, and r 2.3(n) of the Uniform Civil Procedure Rules 2005.

[44] Note also that s 41 of the Evidence Act 1995 requires you to disallow improper questions (for example, misleading or confusing, or unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive) questions. The section also provides that questions must not be put to a witness in a “manner or tone that is belittling, insulting or otherwise inappropriate” or “has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability)”. The duty imposed on the court under this section applies whether or not an objection is raised to a particular question: s 41(5). Sections 26 and 29(1) of the Evidence Act 1995 also enable you to control the manner and form of questioning of witnesses, and s 135(b) of the Evidence Act 1995 allows you to exclude any evidence that is misleading or confusing.

[45] Section 8(1) of the Vexatious Proceedings Act provides that a court may make a vexatious proceedings order “in relation to a person if the court is satisfied that:

(a) 

the person has frequently instituted or conducted vexatious proceedings in Australia, or

(b) 

the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia”.

The order may be made on the court’s own motion or on application by the Attorney General (NSW), the Solicitor General, the appropriate registrar for the court, a person against or in relation to whom another person has instituted or conducted vexatious proceedings, or a person who, in the opinion of the court, has a sufficient interest in the matter: s 8(4).

Pursuant to s 13, if a vexatious proceedings order is made prohibiting a person from instituting proceedings then the person may not institute proceedings of the kind to which the order relates without the court’s leave under s 16.

[46] In prescribed sexual offences, a self-represented accused party is not allowed to personally cross-examine the complainant. Instead, the law states that the court can appoint someone else to ask the questions the accused person wants asked, who must then do this without providing any legal advice to the accused person, and as long as the judge rules that the questions are permissible. The jury must be told about this procedure, and the accused must be given an opportunity to make submissions about the proposed procedure. See Criminal Procedure Act 1986, s 294A, and the Judicial Commission of NSW, Criminal Trial Courts Bench Book, Sydney, “Self-represented Accused” at [1-800]–[1-890], accessed 11 September 2019. In the absence of legal aid or a “McKenzie friend”, you may need to seek advice from the appropriate senior member of your court about what to do. For a critical examination of s 294A, see BT Sully, “Section 294A Criminal Procedure Act — Unrepresented accused in sexual offence proceedings”, paper presented at the Cross-jurisdictional Seminar, Judicial Commission of NSW, Sydney, 8 March 2006.

[47] See, n 36.

[48] Criminal Procedure Act 1986, s 294A.

[49] See further MS v R [2017] NSWCCA 252 at [68].

[50] above, n 25.

[51] above, n 26.

[52] See also Judicial Commission of NSW, Sentencing Bench Book, 2006, Sydney; and R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [10]–[11].

[53] Vexatious Proceedings Act, s 8(6).

[54] Use simple and direct, non-legal language to do this — for information on the rules of simple, direct and non-legal language see, for example, 2.3.3.4, 3.3.5.3 or 5.6.5.4.

[55] D Netolitzky, “A pathogen astride the minds of men: the epidemiological history of pseudolaw”, paper delivered at the Centre d’expertise et de formation sur les intégrismes religieux et la radicalisation (CEFIR) symposium: “Sovereign Citizens in Canada”, Montreal, 3 May 2018, p 17.

[56] Sophie Kesteven and Damien Carrick, “Magistrates witness a ‘sharp rise’ in sovereign citizen cases brought before the Local Courts”, ABC Radio National, 8 May 2023, accessed 27/9/2023.

[57] H Hobbs, “Understanding and responding to pseudolaw”, NSW Supreme Court Judges Annual Conference, 26 August 2023.

[58] Arnold v State Bank of South Australia (1992) 38 FCR 484.

[59] Helljay Investments v Deputy Commissioner of Taxation [1999] HCA 56. See also Institute of Tax Research, Australia: The Concealed Colony (1999).

[60] Koteska v Magistrate Manthey [2013] QCA 105 at [15].

[61] See Wichman v Pepper Finance Corporation Ltd [2019] NSWCA 195 at [14], [18]–[24]; K Sheridan v Colin Biggers & Paisley [2019] NSWSC 528 at [10]–[12], [42]–[43], [59]; Christie v Cmr of Police [2014] QDC 70; R v Sweet [2021] QDC 216 at [3], [4], [10]; Adelaide City Council v Lepse [2016] SASC 66 at [14], [16], [27]; ACCC v Rana [2008] FCA 374 at [16]-[18], [27].

[62] See K Sheridan v Colin Biggers & Paisley, ibid at [15]; Woods v DCT [2018] FCA 1971 at [21]; R v Sweet [2021] QDC 216 at [5].

[63] Christie v Cmr of Police [2014] QDC 70; R v Buzzacott [2004] ACTSC 89 at [13]–[16]; Ashwell v Cmr for Consumer Protection [2015] WASC 337 at [25]–[29].

[64] Ennis v Credit Union Australia [2016] FCCA 1705 at [16]–[23]; Woods v DCT [2018] FCA 1971 at [15]–[16]; Lion Finance Pty Ltd v Johnston [2018] FCCA 2745 at [18]–[25].

[65] Carnes v Essenberg [1999] QCA 339; Nikolic v MGICA [1999] FCA 849 at [2], [5]; Anderson v Kerslake [2013] QDC 262 at [47], [71]; Hubner v Erbacher [2004] QDC 345 at [9], [10].

[66] Baker v AG (NSW) [2013] NSWCA 329 at [15]–[16].

[67] ibid at [8]–[11].

[68] Anderson v Kerslake [2013] QDC 262 at [10], [38]–[46], [65]–[70]; R v Anning [2013] QCA 263 at [39]–[45]; Coe v Commonwealth of Aust (1993) 118 ALR 193 at [2], [3], [22]–[29]; Maher v R [2021] NSWDC 212 at [12], [16]–[18].

[69] Anderson v Kerslake [2013] QDC 262 at [10]; R v Anning, ibid at [8]–[10]; Adelaide City Council v Lepse [2016] SASC 66 at [4].

[70] Woods v DCT [2018] FCA 1971 at [10].

[71] Bradley v The Crown [2020] QCA 252.

[72] Szanto v Bainton [2011] NSWSC 985 at [107], [120].

[73] Deputy Commissioner of Taxation v Bonaccorso (No 3) [2016] NSWSC 1018 at [14]–[18], [24], [33].

[74] See for example R v Sweet [2021] QDC 216 at [6].

[75] Re Gauthier (2017) ABQB 555 (13 September 2017) [6] (Canadian decision).

[76] The Judicial Commission reports complaints statistics in its Annual Report published on the Commission’s website report that 70% of all complainants to the Commission in the financial year 2021-22 were self-represented.

[77] D Netolitzky, “A pathogen astride the minds of men: the epidemiological history of pseudolaw”, paper delivered at the Centre d’expertise et de formation sur les intégrismes religieux et la radicalisation (CEFIR) symposium: “Sovereign Citizens in Canada”, Montreal, 3 May 2018, p 2.