Self-represented parties

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 information1

  • Right to self-represent — Common law provides that everyone has the right to represent themselves in court2 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 representation10

    • 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 nature11

    • 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.

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 considerations15

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.

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

10.3.3 The trial judge’s role29

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 Mercer40, Burwood Municipal Council v Harvey41 and Minogue v Human Rights and Equal Opportunity Commission.42

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.

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.

10.3.4.4 Guidance to the jury — points to consider

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

10.5 Sovereign citizens: further information

Last reviewed: October 2023

The sovereign citizen phenomenon appeared in North America more than two decades ago55 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 government61

  • 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 fingerprints62

  • Claiming lack of jurisdiction63 or invalid court documents64

  • Claiming the Magna Carta, Bill of Rights, Acts of Settlement/Common Law invalidate the Australian Constitution and other current legislation65

  • Questioning the validity of the appointment of the Governor which affects the validity of legislation and judicial appointments66

  • Claiming to be fined before conviction.

  • Claiming a right to trial by jury67

  • Claiming First Nations sovereignty68

  • Refusing to enter a plea69 or pay filing fees70

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.



1Much 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.

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

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

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

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

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

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

8From 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.

9D 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.

10The 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.

11Deputy 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].

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

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

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

15Unless 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.

16See Vexatious Proceedings Act, Pt 2.

17For 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.

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

19A “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.

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

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

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

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

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

25Section 150, Criminal Procedure Act 1986.

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

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

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

29An 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].

31H 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.

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

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

34Jeray 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.

35as 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.

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

37See n 35.

38TH 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.

43Section 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.

44Note 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.

45Section 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.

46In 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.

47See, n 36.

48Criminal Procedure Act 1986, s 294A.

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

50above, n 25.

51above, n 26.

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

53Vexatious Proceedings Act, s 8(6).

54Use 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.

55D 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.

56Sophie 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.

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

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

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

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

61See 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].

62See 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].

63Christie 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].

64Ennis 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].

65Carnes 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].

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

67ibid at [8]–[11].

68Anderson 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].

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

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

71Bradley v The Crown [2020] QCA 252.

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

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

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

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

76The 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.

77D 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.