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Self-Representation in Legal Proceedings




You may be familiar with the old adage: “a man who is his own lawyer, has a fool for a client”. The notorious and mind-boggling criminal case of Darrell Brooks Jr., which was streamed worldwide on YouTube at the end of last year, was a perfect example of this.


Throughout the trial Mr Brooks continued to mercilessly dig a deeper hole for himself as part of his self-represented fiasco in the courtroom. Admittedly, this may be quite an extreme example, as anyone who relies on the sovereign citizen argument as part of their legal defence for driving into a crowd and killing six people, would likely be beyond assistance, even from the most skilled legal professionals.


Over the years we have encountered a variety of self-represented litigants in different jurisdictions. Unfortunately, the end result is almost always a sad one for the self-represented party (unless the matter is somehow resolved by consent), and it often involves a costs order at the conclusion of the proceedings against them. There are many reasons for this, and each case is unique, but the common thread can be described as - self-represented parties persistently show a lack of respect for the Court’s authority and misapprehension of the law and rules.


Case Study

Let us examine one of such recent cases - Newett & Newett (No 9) [2023] FedCFamC1A 23 (13 March 2023).


This was an Appeal by the mother, Ms Newett in the Federal Circuit and Family Court of Australia against the final parenting orders made by the primary judge, which provided for the three children of the relationship to live with the father while having limited, supervised visits with the mother.


Ms. Newett appealed the entirety of the parenting orders on 11 July 2022, then filed an Amended Notice of Appeal on August 26, 2022, listing 50 grounds of appeal.


Background

Mr. and Ms. Newett, born in 1975 and 1977 respectively, started living together in 2005, married in 2008 and separated in 2018. After their separation, they experienced a lengthy history of legal disputes. Interim parenting orders were made in March 2019, which transferred the children's residence to Mr. Newett and provided for supervised time with Ms Newett.


Throughout the proceedings, Ms. Newett faced difficulties, including multiple legal aid lawyers ceasing to represent her. The property and parenting disputes were scheduled for a final hearing on November 30, 2020, but the parenting proceedings were adjourned due to the Independent Children's Lawyer (ICL) withdrawing after Ms. Newett filed criminal charges against him. Ms. Newett walked out during the final hearing for her property matter and her appeal against the final property orders was also dismissed.


Ms. Newett initiated numerous other legal proceedings, including civil and criminal cases against various parties involved in the matter. All of these cases were largely unsuccessful, with many being dismissed.


Appeal

There are too many grounds of appeal for us to address all of them in this post, but the main grounds were dealt with as follows:


1. The appellant's submissions stated that the children were sexually abused by the father, with such an unacceptable risk of future abuse that they shouldn't spend any time with him. The appellant even referred to him as a pedophile at times. She argued that if the Court reviewed every piece of evidence she provided, it would be convinced of the abuse.


The Judges on Appeal determined that the primary judge was not in error in rejecting the “thousands of pages” on a Google Drive in which the appellant “dumped everything” on the eve of trial.


On Appeal the mother couldn't pinpoint the material supporting her allegations of sexual abuse. The Honourable Justices Aldridge, Kari & Brasch stated that it was her responsibility to raise a reasonable suspicion of error made by the primary judge. Error can only be established if the primary judge misinterpreted facts or principles or if the decision is unreasonable or plainly wrong. The appellant did not attempt to demonstrate why the primary judge's findings on this issue were incorrect and, accordingly, this ground of appeal failed.


2. The grounds and submissions included allegations of bias by a primary judge as well as a "vexatious, malicious judgment" to punish the appellant with a "life sentence," "judicial kidnap," and "fraud". The Honorable Justices on Appeal found absolutely nothing in the transcript or the appellant's material that met the standard of bias. The Court stated that “not ruling in favor of a party does not necessarily imply bias through bribes, favors, or threats.”


Below is just one example of the wild speculation by the appellant:

“Note His Honour [the primary judge] also had a prior history of being the Chair of Legal Aid Queensland and President of Queensland Law Society.


If bribery or some form of cover-up was involved; it may possibly be [the primary judge]. intentionally set [the appellant] up to fail by instructing Legal Aid (LAQ) and QLS Practitioners to operate in this manner towards [the appellant]. It is possible LAQ and QLS were being instructed as a puppet for His Honour”


The Court noted that at their heart, the grounds of appeal related to the primary judge’s exercise of discretion, and more specifically, that the primary judge exercised discretion in ways with which the appellant did not agree. Accordingly, the Court stated that the appellant’s subjective feelings about the orders did not make for a miscarried discretion.


Some of the more curious grounds of appeal were as follows:


Ground 9: Excess of Jurisdiction - The Making of Orders ultra vires


The Appellant submitted: “In my educated and well-researched opinion, the judgment of [the primary judge] itself is careless, contradictory and completely unlawful with Orders made ultra vires. Orders were made ultra vires as His Honour failed to apply the law consistent with s42 Family Law Act 1975 (Cth) (“FLA”), and failed to follow the law pursuant to s273B.4 Criminal Code Act 1995 (Cth) (“CCA”).”


Firstly, opening with “in my educated and well-researched opinion” was probably already a dead giveaway that this ground would fail and just plainly sounds silly and pretentious. Not a good start!


The Honourable Justices Aldridge, Kari & Brasch did not understand how the primary judge failed to apply s 42 of the Act, which is a section concerning the exercise of jurisdiction “in accordance with this Act and the applicable Rules of Court”. The Court determined that the primary judge clearly exercised jurisdiction and power under the Act and Rules. Section 273B.4 was irrelevant and did not apply to the primary judge. This ground of appeal failed.



Ground 45: Mistake of fact in relation to reason two witnesses did not provide an affidavit to the Court, and failure to cross examine or question [the appellant] on why the witnesses did not do so, resulting in negative finding against [the appellant’s] case per Jones v Dunkel, where a different result would have been found if [the appellant] had been questioned.


This ground of appeal related to an incident in the parking lot, during which as the Appellant alleged, the Father made threats to her witnesses and “orchestrated the whole event to traumatise” the Appellant . As the Appellant did not provide affidavits of her two witnesses who were present at the scene, the primary judge applied the long-standing principle of Jones v Dunkel – i.e. inference was drawn that the two aunts had no evidence that could have supported the appellant’s case. On Appeal the Court agreed with this and stated that it was for the appellant to run her case and present relevant witnesses. Where she did not, the inference drawn by the primary judge was open to him.


It was also clear from the transcript that the Appellant was in fact cross-examined by counsel for the Independent Children’s Lawyer on this issue.


Overall, this ground of appeal rightfully failed.


Ground 49: Apprehended bias by Victim-blaming and gaslighting of [the appellant] to present her as responsible for the controlling actions of [the first respondent].


The Appellant submitted that His Honour failed to consider [the appellant’s] reasonable fear of unlawful persecution by Queensland Police who advocated for [the first respondent] throughout the Family Law Proceedings and corrupted State Records to bolster his case including committing perjury in Domestic Violence Court proceedings. [The appellant] also had reasonable apprehension of family violence and being killed by [the first respondent] (or his associates in the ABF) by returning to the State of Queensland (available to be made on the evidence); and made judgment it was “her choice” not to see her Children or return to proximity of the Children.

.

The Honourable Justices on Appeal noted that the appellant engaged in an extensive debate with the primary judge, spanning nearly two pages of transcript, before ultimately agreeing to take an oath. The appellant had previously filed two applications requesting the primary judge's recusal, accusing him of supporting and overlooking bribery and corruption. The Court stated that the appellant was not allowed to make offensive remarks toward a judicial officer without any repercussions, even those that directly challenge the essence of the judicial oath or affirmation. The transcript showed that the primary judge had maintained impartiality and composure under challenging conditions. Statements made by judicial officers in an attempt to preserve decorum and poise during court proceedings did not equate to bias.


Ultimately, the Honourable Justices on appeal did not accept the premises contained within the above submission by the Appellant and thus the ground of appeal was not made out.


Outcome:


Overall, it is no surprise that the Appeal was ultimately dismissed, and the Appellant Mother was ordered to pay the legal costs of the Respondent Father in the sum of $14,113.50.


Takeaway


The above case highlights the potential risks and challenges faced by self-represented litigants in legal proceedings. The self-represented appellant in this case lost her appeal and faced significant difficulties throughout the process. She showed a misunderstanding of court procedures and rules and hindered her own case by making irrelevant and unsubstantiated submissions.


The appellant also became too emotionally involved in the case, which ultimately led to her demise. Litigation often involves deeply personal issues, and litigants may struggle to remain objective when advocating for themselves. The appellant's emotional involvement have negatively impacted her ability to present a coherent and persuasive argument.


Moreover, self-represented litigants often struggle to navigate the complexities of the legal system, adhere to proper court etiquette, and maintain a professional relationship with the judge and opposing counsel.


To ensure the best possible outcome, individuals involved in litigation should strongly consider seeking professional legal representation to guide them through the process and advocate on their behalf. Do not take chances with self-representation like Darryl Brooks or Ms Newett! Contact Surge Legal now for a free initial consultation.


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