Last Updated 1 March 2019
While anyone can try to represent themselves, it may be difficult for some people to successfully do so. It may be preferable for a person to have legal representation where:
- they are involved in cases that are complex or heard in superior courts
- they have a physical or intellectual disability
- they have a mental illness
- they have been impacted by domestic violence
- English is not their first language.
In some cases, if a person is not capable of making decisions about a legal proceeding, the Supreme Court or the Queensland Civil and Administrative Tribunal may make a finding that a person has ‘impaired capacity’. If this happens, that person is referred to as having ‘legal incapacity’ which means they can only start, defend or continue legal proceedings if they have a litigation guardian. A litigation guardian is someone appointed to make decisions on behalf of a person with legal incapacity and they must be represented by a lawyer.
Even in the absence of these circumstances, self-representation is generally not recommended. The structure of civil litigation is typically designed in a way that disadvantages self-represented litigants, and self-representation status does not entitle a party to any special treatment during legal proceedings.
Other options to self-representation are:
- unbundled (or discrete task) legal assistance—most lawyers can be engaged for a particular task (e.g. to provide advice on the likelihood of succeeding with legal action or to prepare a court document)
- direct briefing of a barrister—it is sometimes possible to engage a barrister directly without instructing a solicitor on what is called a ‘direct-brief basis’. Not all barristers are willing to work on a direct-brief basis, especially in complex matters. A community legal centre may be able to assist a person to find and liaise with a barrister willing to work on a direct-brief basis
- speculative and contingency fees—in cases where an order for compensation or other payment is likely (e.g. in personal injury cases or will disputes), lawyers may agree to provide representation on a ‘no win, no fee’ basis. This means that lawyers will deduct their professional fees from any eventual settlement (the Legal Profession Act 2007 (Qld) restricts the amount a lawyer can recover).
Litigants who engage a lawyer in one of the above ways should ensure they understand the terms of any agreement entered into with the lawyer. For more information, see Employing a Lawyer in the Accessing Legal Assistance and Resolving Disputes chapter.