Unbundling our way to outcomes: QPILCH’s
Self Representation Service at QCAT, two years
on
Andrea de Smidt and Kate Dodgson*
Provision of legal representation has been determined to be a right in certain
criminal matters; and in civil matters, representation can be a determining
factor in reaching a successful outcome. The reality is, however, that not
everyone can be represented by a lawyer on their day in court. Our legal
resources are not limitless. Funding of community legal centres and Legal Aid
is not adequate, and the generosity of private practitioners working on a pro
bono basis cannot fill the whole gap. Following on from an earlier article
published in this journal, “Queensland’s Self-representation Services: A
Model for Other Courts and Tribunals” (2011) 20 JJA 225, this article
considers “unbundling” or “discrete task assistance”, and how this approach
to legal practice is continuing to be utilised by the Queensland Public Interest
Law Clearing House, now in the Queensland Civil and Administrative
Tribunal, to achieve the best outcomes for clients with the minimum of
resources.
INTRODUCTION
The Self Representation Service is an initiative of the Queensland Public Interest Law Clearing House
(QPILCH).1 The Service commenced operation in 2007, initially in the civil jurisdictions of the
Supreme and District Courts of Queensland and the Queensland Court of Appeal. In January 2010, the
Service expanded its operation into the jurisdiction of the Queensland Civil and Administrative
Tribunal (QCAT) and, more recently, a pilot service has commenced in the Federal Court and Federal
Magistrates Court in Brisbane.
The Journal of Judicial Administration published an article on the Self Representation Service as
a model for consideration by other courts and tribunals in April 2011.2 Since expansion of the Service
into QCAT, data has been recorded and compiled to track the progress of the Service and influence its
development in a measured way. The purpose of this article is to share this data, which demonstrates
the important role the Service plays in facilitating access to justice for some of Queensland’s most
vulnerable people.
IMPETUS
FOR THE
SERVICE
AT
QCAT
The Self Representation Service is the only one of its kind in Australia, developed to meet a
recognised need in all jurisdictions in which it operates. In QCAT, parties are generally required to
represent themselves; however, those parties will commonly still require assistance to commence
proceedings and prepare for their tribunal appearances. It is also true that while QCAT will sometimes
give leave for parties to be represented, many people lack the means to engage a lawyer.
As QCAT has assumed jurisdiction of former tribunals, including the Anti-Discrimination
Tribunal, the Guardianship and Administration Tribunal and the Children Services Tribunal, the
*
Andrea de Smidt is a solicitor and coordinator of the QPILCH Self Representation Service. Kate Dodgson is the paralegal for
the Service operating at the Federal Court and Federal Magistrates Court in Brisbane.
1
QPILCH is an independent, not-for-profit association incorporated in 2001 and is the leading facilitator of pro bono legal
services in Queensland. QPILCH refers individual matters to law firms and barristers, coordinates direct legal services for
particular disadvantaged client groups and undertakes law reform, policy work and legal education.
2
Woodyatt T, Pendlebury E and Thompson A, “Queensland’s Self-representation Services: A Model for Other Courts and
Tribunals” (2011) 20 JJA 225.
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QPILCH’s Self Representation Service at QCAT, two years on
outcome of QCAT proceedings will often have serious consequences on the welfare, dignity and daily
living of the people involved. Many of those people will not have had the benefit of legal advice, and
have limited knowledge and understanding of the law and processes required for them to meaningfully
assert their rights. The Self Representation Service aims to address this concern by assisting people to:
• understand the law, their legal rights and the perspective of the other party;
• observe court and tribunal rules and processes;
• be aware of potential orders and the effect of not complying with orders; and
• present their case in the best possible manner.
HOW
THE
SERVICE
OPERATES
The Self Representation Service is modelled on the Citizens Advice Bureau at the Royal Courts of
Justice in London. The Service is distinct from duty-lawyer or “door-of-the-court” schemes as clients
are offered assistance throughout the progress of their proceeding; ranging from assistance to draft
initiating documents, through to assistance to enforce a judgment made in their favour. The Service is
distinct from registry informational services as clients are provided with legal advice, including advice
about possible outcomes and strategies to realise outcomes.
The nature of the assistance provided by the Service is also distinct from that of a traditional
client-solicitor relationship as clients are not “represented” by Service solicitors. Clients remain
responsible for the conduct of their proceedings, including all appearances before, and communications with: QCAT, other parties and other parties’ legal representatives.
The Service offers any number of appointments (as necessary) to clients who are unable to afford
private legal assistance and who are ineligible for legal aid. Telephone appointments are offered to
clients in regional Queensland and to clients who, due to disability or other difficulty, are unable to
attend the QPILCH office located within the QCAT building.
Appointments are arranged by QPILCH staff who receive and assess applications from
prospective clients to determine the crux of a client’s legal issue and assistance required. QPILCH
solicitors and volunteer solicitors from participating QPILCH firms provide “discrete task” or
“unbundled” assistance through the appointment-based Service.
The “discrete task” or “unbundled” assistance provided during appointments typically falls within
the following categories:
• provision of legal advice, including advice about commencing proceedings, pre-hearing and
compulsory conference advice, advice about making interlocutory applications and complying
with or enforcing decisions;
• assistance to draft documents, including assistance to complete prescribed QCAT forms and
submissions, either statements or affidavits; and
• referral to other services, including non-legal support services.
The operation of the Service is funded by a non-recurrent grant of $127,882 received from the
Department of Justice and Attorney-General through the Legal Practitioner Interest on Trust Accounts
Fund.3 This funding employs one full-time solicitor and one part-time paralegal.
The involvement of volunteer solicitors on a pro bono basis expands the capacity of the Service
and provides solicitors with an opportunity to give back to the community and gain experience they
might not otherwise gain in private practice. The Service offers an accredited training program to
volunteers to equip them with the necessary skills to assist with discrete tasks and knowledge in
relevant areas of law. In the last financial year, the time contributed by participating firms (deGroots,
Dibbs Barker, Herbert Geer, Macrossans, MurphySchmidt, TressCox, Minter Ellison, McCullough
Robertson and Shine Lawyers) was valued by those firms at approximately $169,000.4
3
The uncertainty associated with the non-recurrent funding of the Service was relieved for another year as QPILCH’s
application to the Department to continue operations into the 2011-12 financial year was successful.
4
This figure does not take into account contributions of HWL Ebsworth and Cooper Grace Ward, which are now also
participating in the Service.
(2012) 21 JJA 246
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APPLICATIONS
RECEIVED AND APPOINTMENTS PROVIDED
Since commencement, the Service has received 337 applications for assistance and provided 382
appointments. The number of appointments provided to each client varies depending on a particular
client’s circumstances, including the stage in proceedings at which the client is referred to the
Service.5
FIGURE 1
Monthly applications and appointments
The Service was unable to assist 34 applicants, mostly because they fell outside the scope of the
Service.6 Four of these applicants were not assisted due to a conflict of interest. Twenty eight
applicants were assisted without the need for a scheduled appointment. In addition to receiving and
assessing applications for assistance, the Service fields an average of 23 enquiries per month, some of
which come from self-represented parties who ultimately apply to the Service for more structured
assistance.
5
The greatest number of appointments provided to any one client is 11.
6
The number of applicants the Service has been unable to assist has decreased over time as understanding of the Service’s scope,
processes and procedures, and referrals to the Service have improved.
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QPILCH’s Self Representation Service at QCAT, two years on
FIGURE 2
Number of applicants without appointment
REFERRAL
SOURCES
Self-represented parties were referred to the Service from a variety of sources, the dominant source
being QCAT registry staff, adjudicators and members.
FIGURE 3
NATURE
Referral sources: Number of applicants
OF PROCEEDINGS
The Service assists in matters within QCAT’s jurisdiction which are more likely to raise a public
interest concern, including anti-discrimination, children and young people, guardianship and
administration, information privacy, manufactured home, residential tenancy, retirement village,
administrative review and disciplinary matters. The Service also assists existing or prospective parties
in QCAT’s internal appeal tribunal.
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Applicants whose matters fall outside these areas, but who are particularly vulnerable and would,
as a result of this vulnerability, be likely to experience disadvantage during the course of their QCAT
proceeding, are also provided with assistance.
Approximately 80% of self-represented parties who seek assistance from the Service are
applicants to proceedings and approximately 20% are respondents.7
The high percentage of applicants to proceedings is in part explained by the areas within QCAT’s
jurisdiction in which the Service assists:
• in QCAT’s guardianship and administration jurisdiction, the Service frequently assists adults who
are subject to appointment orders seeking review of those orders;
• in QCAT’s anti-discrimination jurisdiction, the Service mostly assists complainants whose
complaints have been referred from the Anti-Discrimination Commission Queensland;
• in QCAT’s child protection jurisdiction, the Service mostly assists parents and carers aggrieved by
decisions of the Department of Communities (Child Safety Services);
• in QCAT’s administrative review jurisdiction, the Service assists people aggrieved by decisions of
governmental departments and agencies.
FIGURE 4
CLIENT
Nature of proceedings
DEMOGRAPHICS
Both the amount and source of income of clients demonstrates that it is mostly low income earners
and people reliant on government pensions and allowances who receive assistance from the Service.
The gender of the Service’s clients is fairly evenly split between 50.75% female and 49.25% male.
Forty five per cent of the Service’s clients are 46-65 years old, 28% are 32-45 years old, 16% are
>66 years old, and 11% are <31 years old.
7
This approximate percentage was calculated using client data from January 2010 to July 2010 (inclusive).
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QPILCH’s Self Representation Service at QCAT, two years on
FIGURE 5
Income source
BARRIERS
TO ACCESSING ASSISTANCE
The Service aims to assist clients to overcome potential barriers to receiving assistance, including
barriers associated with language, disability, age and location. Eleven per cent of clients experienced
difficulty with spoken and/or written English language with a number of these clients relying on
assistance from family or friends during appointments. The Service accessed an interpreter through the
Commonwealth’s Translating and Interpreting Service on one occasion.
Twenty five per cent of clients indicated on their applications for assistance that they had a
disability. Following receipt of applications, the Service does not assess the nature of disabilities
beyond what is required to ensure that the client is appropriately accommodated. For example, the
Service will provide clients with poor literacy skills with face-to-face advice, and encourage
involvement of support workers to assist in disseminating advice; and the Service will assist clients
with a physical disability, who are unable to easily attend appointments in person, via telephone and
follow-up written advice. Likewise, elderly clients who may experience difficulty in attending the
Service office at QCAT are offered assistance via a telephone appointment which is generally followed
up with a written letter of advice.
The Service is acutely aware of the difficulties experienced by people living in regional, rural and
remote Queensland. From commencement, the Service has promoted its ability to assist clients outside
the greater Brisbane metropolitan area via telephone appointment. While the take-up of the Service by
such clients has improved, it appears more could be done to encourage referrals to the Service from
regional, rural and remote sources.
Further barriers present in the form of professional ethical issues, which must be tackled by
Service staff and volunteer solicitors; eg assisting clients who may not have legal capacity, or assisting
clients in matters which may be unmeritorious. Volunteer solicitors are trained to consider the issue of
capacity during appointments and raise any concerns with Service staff who may then address
concerns in consultation with senior QPILCH staff. In November 2009, the Service at the State
District and Supreme Courts produced a paper which considered the difficulties experienced by
self-represented parties who lack legal capacity to institute or continue proceedings.8 While existing
and prospective parties in QCAT face the same difficulties, the Service is not aware of any particular
8
“Incapable of Justice: Capacity and Self-Represented Civil Litigants” (QPILCH, November 2009), http://www.qpilch.org.au/_
dbase_upl/PTO%20submission%20Nov%202009.pdf viewed 16 March 2012.
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case, aside from cases within QCAT’s guardianship and administration jurisdiction, in which a client’s
legal capacity has been questioned. This raises the question: are parties without capacity being
identified and appropriately assisted?
Self-represented parties with unmeritorious cases are not excluded from receiving assistance from
the Service. QPILCH recognises the value that may be derived from providing these parties with an
appointment to manage their expectations and provide advice about discontinuing proceedings and/or
alternatives to resolve their disputes. Volunteer solicitors are trained to appreciate the difference
between assisting clients with weak but arguable cases from those which are clearly without merit.9 If
a client of the Service remains insistent on bringing or continuing unmeritorious proceedings, the
Service may, at its discretion, continue to provide limited assistance to the client by helping the client
to comply with tribunal processes and organise their material.
OUTCOMES
ACHIEVED BY THE
SERVICE
While it is clear from the success stories outlined below that the assistance provided by the Service is
of direct benefit to clients themselves, there are also consequential benefits for the opposing party and
QCAT. Formal feedback from clients and informal feedback from QCAT staff indicates that
self-represented parties who have received assistance from the Service are entering QCAT hearing and
conference/mediation rooms better organised and prepared with a clearer idea of procedures, possible
outcomes and compliance.
Self-representation success stories
A number of clients report back to the Service after obtaining a successful outcome, either formally by
completing the Service’s client evaluation form, or informally by visiting or telephoning the office.
The following are a selection of some of these stories.
• An elderly flood victim obtained an interim injunction to prevent her former lessors from
removing and destroying her possessions. The Service assisted the client to complete the
necessary application form and draft supporting submissions.
• A disabled pensioner successfully objected to an opposing party’s leave for representation
application and reached a settlement agreement with the opposing party at a compulsory
conference in an anti-discrimination matter. In the reasons for the decision on the leave for
representation application, Senior Member Endicott noted:
[Mr S] has not sought to be legally represented in the proceedings but quite sensibly he has clearly
obtained assistance from a legal adviser about his complaint and his contentions reveal the benefit
of his obtaining that assistance.
•
•
•
An immigrant from the former Yugoslavia obtained an order for compensation for discriminatory
acts committed against her by her former employer. The Service assisted the client to draft
submissions in support of her anti-discrimination complaint, which proved particularly valuable to
the client as English was her second language. When the employer failed to comply with the order
of the tribunal, the Service assisted the client to successfully enforce the order in the Magistrates
Court.
An elderly pensioner suffering from severe depression obtained a stay of a decision which
terminated the pensioner’s tenancy and provided for his removal from a property in which the
pensioner asserted an equitable interest. The Service assisted the client to complete the necessary
application form and convert his instructions into submissions in support of the application. The
stay secured the pensioner with a roof over his head pending resolution of the property dispute in
the District Court.
A concerned daughter successfully obtained an urgent appointment of the Public Trustee and the
Adult Guardian for her father who was at significant risk of being financially exploited by new
9
See eg: Dal Pont GE, Lawyers’ Professional Responsibility (4th ed, Lawbook Co, Australia, 2009) p 4: “The challenge is to
distinguish cases that are weak but arguable from those that are destined to failure. A lawyer may legitimately assist a client in
the former event – provided, of course, that the client is informed as to the weakness of the case and the likely consequences of
pursuing the matter – but not in the latter.”
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QPILCH’s Self Representation Service at QCAT, two years on
•
•
“friends”. The Service stepped the client through the process of making an urgent application to
QCAT to consider her father’s capacity and vulnerability.
A young man with an acquired brain injury successfully obtained a declaration of capacity after
his mother regained her health and was able to once again assist the man to manage his finances
on an informal basis. The Service assisted the client to complete the application form, prepare a
budget and draft a supporting affidavit.
A victim of domestic violence successfully re-opened residential tenancy proceedings instituted
against her and her ex-partner. An order had been made against the client and her ex-partner for
$6,784.44 in rent arrears; however, the client received no notice of the proceedings as she had left
the property and was residing in a women’s refuge. The Service assisted the client through a
series of appointments to complete the necessary forms, draft a statement setting out her story,
and prepare for the final hearing of the matter, which she attended by teleconference. Final orders
were made relieving the client of all liability for the arrears.
Diversion out of QCAT
The Service discourages self-represented parties with unmeritorious cases from instituting or
continuing proceedings. The rate of “diversionary success” is less than that achieved by the Self
Representation Service at the State courts.10 This may be attributed to lower filing fees and less
significant costs implications (in the event of an application being dismissed).
Most diversions occur within the administrative review and appeal jurisdictions of QCAT. These
diversions are viewed as success stories in their own right and include, for example:
• A man aggrieved by a decision of the Office of State Revenue about his liability to pay stamp
duty accepted the Service’s advice that his prospects of successfully reviewing the decision were
poor. The Service assisted the client to consider the relevant law, examine his evidence and reach
a conclusion to not commence external review proceedings.
• A man aggrieved by a decision of the Queensland Department of Justice and Attorney-General
not to grant him a registration certificate under the Property Agents and Motor Dealers Act 2000
(Qld) accepted the Service’s recommendation to not file an application to review the decision.
Although the man was desperate to resume work as a car salesman, he took on board advice about
how the law had been applied in similar cases and that his prospects of succeeding with the
review were negligible. The client intends on making a fresh application for a certificate when the
exclusionary period imposed on him has passed.
• A woman pursuing anti-discrimination complaints on behalf of her children accepted the
Service’s advice to not pursue an appeal of a QCAT decision to grant the opposing party leave for
representation. The Service advised the woman of the limited circumstances in which an appeal of
an interlocutory decision would be successful and the woman agreed that her energy would be
best spent preparing for the substantive hearing of the complaints.
• A man considering appealing a decision of QCAT to the Court of Appeal in relation to a minor
civil dispute decided not to commence appeal proceedings. The Service advised the man of the
limits of pursuing an appeal in the Court of Appeal, stepped through the written reasons provided
by QCAT, and assisted the man to understand the principles which would be applied in any appeal
application with reference to relevant case law.
Referrals for representation
Not all clients are able to self-represent and not all cases are appropriate to proceed without the
involvement of legal representatives. In its first two years of operation, the Service referred 10 cases to
QPILCH members for representation. The reasons for referral were varied including factual and/or
legal complexity, impact of outcome on the client (for example in disciplinary proceedings), and
client-related factors including disability or other particular vulnerability.
The following are a selection of cases referred for representation:
10
Only four out of 10 clients when advised that their case did not have legal merit withdrew proceedings in QCAT, whereas an
average of six out of 10 clients withdraw proceedings on receipt of similar advice in the Court of Appeal.
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•
A group of retirement village residents were represented in proceedings in which they
successfully overturned a Building Services Authority decision to refuse part of an insurance
claim for defective building works.
• A couple with intellectual disability were represented in proceedings instituted to review a
decision by the Department of Communities (Child Safety Services) to restrict contact with their
children. The couple reached a negotiated outcome during the final hearing of the matter.
• A couple were represented in proceedings initiated by their daughter’s physician who had filed an
application seeking appointment of the Adult Guardian and Public Trustee for the daughter.
• An elderly woman was referred for representation to pursue a claim for an equitable interest in a
property which was originally the subject of a residential tenancy dispute. The Service provided
assistance to the woman in collaboration with a community legal centre in regional Queensland
prior to the referral.
• An Iraqi refugee was represented in proceedings instituted to review a decision of the Queensland
Medical Board to not allow his registration. The Board was convinced by the representative’s
arguments to recognise the work performed by the doctor during his time in Jordan when he was
waiting for resettlement and allowed the doctor’s application for registration.
In two cases, QPILCH went on the record after providing initial assistance through the Service.
The first case involved a young woman who QPILCH had previously assisted to obtain an
appointment of the Public Trustee for the purpose of settling Supreme Court proceedings for specific
performance for the sale of her home (the woman had agreed to auction her home while admitted in
hospital for post traumatic stress disorder). When the Public Trustee’s appointment was expanded
beyond what was initially sought, the Service assisted the client to institute proceedings in QCAT and
then referred the matter for representation. Due to QPILCH’s familiarly with the case, it went on the
record to instruct counsel who had accepted the referral request. The client was successful in her
application for a declaration of capacity and a refund of legal and administrative fees removed by the
Public Trustee from the client’s account. The client was ecstatic to regain control of her affairs and
recoup lost funds, just prior to Christmas.
In the second case, an indigenous man was referred to the Service when it became apparent to the
QCAT presiding member that the man had not received legal advice in relation to disciplinary
proceedings instituted by the Nursing and Midwifery Board of Australia which had potential
significant implications for the man. The Board had proposed that the man be excluded from applying
for registration as a nurse for a period of 10 years. The Service provided the man with a number of
appointments to prepare submissions in response to the disciplinary proceedings, which addressed the
client’s mitigating circumstances including his alcoholism, depression and marriage breakdown. The
matter was then referred for representation. QPILCH went on the record to instruct counsel when no
firm was able to fulfil this role. The agreement reached during a compulsory conference of the matter
was significantly more favourable to the client than what would have eventuated if the orders initially
proposed by the Board were relied upon.
FEEDBACK
FROM CLIENTS
Each self-represented party who receives assistance from the Service is provided with a client
evaluation form in which they are asked to provide feedback about the assistance provided by the
Service and their experience in QCAT.
Feedback received about the Service’s first two years of operation at QCAT was overwhelmingly
positive. Clients indicated that the Service was accessible, that staff and volunteers were attentive,
friendly and respectful, and that the assistance provided enabled clients to feel more confident about
representing themselves.
A selection of comments provided by clients of the Service include:
“I believe one of the contributing factors to [my] success was the assistance I received from QPILCH
staff as they advised me of the format and content that would be appropriate in the compilation of my
submission to the tribunal. This allowed me to express the issues as they needed to be presented.”
“QPILCH gave me courage and strength to go as far as I did.”
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QPILCH’s Self Representation Service at QCAT, two years on
“…I thank your organization for its assistance and important ‘moral support’ when I had nowhere I
could afford to turn to. Please pass on my gratitude to your volunteer lawyer.”
“I am extremely grateful to the solicitor I saw for her comments and advice. I tried my best to follow
her instructions and wish to report that the Tribunal Member actually commented that I’d done a good
job and if everybody did what I’d done it would make her job so much easier.”
THE
NEXT TWO YEARS
The Service has now established itself within QCAT and the broader community as performing a key
role in facilitating access to justice for some of Queensland’s most vulnerable and disadvantaged
people. Subject to receipt of further funding and ongoing support of the private profession and QCAT,
the Service will continue to assist existing and prospective self-represented parties to achieve the best
possible outcomes.
In addition, the Service recognises the unique position it holds and the consequential role it must
play in identifying issues for reform and advancing the needs of self-represented parties. The Service
looks forward to pursuing these functions in the future.
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