There’s a seminar coming up in exactly a week’s time at the Law Institute at which Alan Hebb is going to speak on disputes in VCAT’s Legal Practice List. He’s a good bloke and has more experience there than anyone else. He was very often briefed as Counsel Assisting the Tribunal, both at the Legal Profession Tribunal and at VCAT. Speaking generally, ‘Counsel Assisting’ are generally cast in the role of prosecutors. It is usually an office associated with disciplinary prosecutions and royal commissions. Though the old Tribunal, and now VCAT have important disciplinary jurisdictions, this was not Alan Hebb’s role.
Until very recently, when the practice was — so I hear — abandoned, Counsel Assisting were briefed by Legal Practitioners Assisting the old Tribunal, and then by Legal Practitioners Assisting VCAT’s Legal Practice List, to take otherwise unrepresented claimants through their evidence and cross-examine lawyers in professional negligence claims under the Legal Practice Act, 1996 and then the Legal Profession Act, 2004. They did not act for the claimants though, and were proscribed by the terms of their brief from giving legal advice. I hear too that the Legal Practitioners Assisting the Legal Practice List are no longer employed in that capacity.
One might think these two developments to be a terrible thing which has quietly slipped under the radar. In the case of the office of Counsel Assisting, I am not so sure, not because of any deficiency in those who held the office, who did a very diligent job fairly in often difficult circumstances, but because of what I perceive, at least in some cases, to be a structural difficulty with the whole concept of ‘counsel assisting’ a civil tribunal hearing a private civil dispute. I think it comes down to this: if the aim was to even up the playing field between unrepresented claimants and solicitors, perhaps what needs to happen is to simply pay for a barrister to appear for the claimant. That may be politically impossible, and would amount to an ad hoc form of legal aid. Here’s why I think that, based on years of experience. In my experience, unrepresented people did not prepare properly for their hearings, placing misplaced reliance on what they simply could not help but conceive of as ‘their barrister’. Because of the limited opportunity for preparation, inability to give legal advice, and primary duties to the Tribunal rather than to the claimant, the role played by Counsel Assisting was very different from a privately hired barrister, or even a Legal Aid beak. And once there were barristers ‘on both sides’, the tenderness which decision makers sometimes extend to the truly unrepresented probably was not dished out with quite the same enthusiasm as it might have been, with the result that hardly anyone ever got compensation.
I tell you, there are a lot of fruitloops out there. They are over-represented in the ranks of the unrepresented. But VCAT is a place where sane people who do not even have borderline personality disorders go and represent themselves often. It illustrates the proposition I believe in, which is that we should not chracterise the class of people who might be unrepresented litigants in a better system by those who are presently unrepresented. If the legal system is one in which you would have to be mad to represent yourself, what you will find is that those who represent themselves are mad.
With a bit of tweaking it seems possible to me that unrepresented people will actually be better off if they have to look after their own cases. They might twig to the fact that they can get advice about a case inexpensively from the Bar on direct access briefs, or from a solicitor, and then run it themselves, perhaps with unbundled legal services along the way. If only someone would write an Annotated Legal Profession Act so that unrepresented but intelligent claimants and solicitors were on a relatively even playing field. Must get around to that.
Depending on what role a mediator takes, the playing field can be evened up a bit by having a mediation between an unrepresented claimant. Whatever might get written about the impartiality and non-intervention of mediators, let me tell you that a fair-minded mediator levels the playing field. For a claimant with a limited budget for legal assistance, paying a few hundred bucks at the outset of a matter for legal advice, and 50% of a half-day mediation fee for a barrister who knows the law which applies to the dispute — another few hundred bucks — might be the smartest move they could make.
- Solicitors’ Liability Committee v Gray summarised by NSW Supreme Court judge
- Roisin Annesley’s Victorian Barristers’ practice guide
- Legal Services Commissioner’s obligations of fairness
- Justice Kevin Bell appointed VCAT’s President
- Bar cops criticism for experienced barrister’s failure to procure a practising certificate