- You decide: Could you be your own lawyer?
- By Paul Donoughue
- 14/06/2019 Make a Comment (1)
- Contributed by: Michael_K ( 1 article in 2019 )
“Every man who is his own lawyer,” the English writer Henry Kett said, “has a fool for a client.”
But what if you don’t have a choice?
Legal help in this country is often prohibitively expensive or difficult to find.
Amid the revelations of the banking royal commission, many Australians are forced to stand up in courtrooms and represent themselves when they feel they have been wronged by a financial institution.
It’s a gruelling, confusing process. It requires enormous sacrifice. It’s prone to failure. Could you do it?
An unexpected $22,000 in fees
Lena Anderson bought a unit in Reservoir, in Melbourne’s north, in 2009.
In 2014, Bank of Melbourne (part of Westpac) paid what it said was an outstanding fee of $22,000 to Ms Anderson’s owners corporation, and added that debt to her loan, without telling her.
Lena Anderson fought a protracted dispute with Bank of Melbourne.
Ms Anderson considered the fee claim fraudulent because the owners corporation had already claimed some of that money back through insurance. She said the fact the bank paid it without her knowledge was “reprehensible”.
The bank refused to reverse the payment, and after first taking her claim to the Financial Ombudsman Service (FOS) she decided to stop paying her mortgage until the matter was investigated.
In 2015, the bank took her to court trying to get ownership of the unit.
She was represented at an early stage, but then had disagreements with the law firm.
A second firm asked for $15,000 to appear at trial, which she paid. Just before the court date, she said, they asked for another $10,000, which she could not afford.
WHAT WOULD YOU DO?
If you were in Lena’s situation, would you accept the default or fight the bank in court?
A salary and an art collection that didn’t exist
Anita Shannon and her husband Chris bought a property in Bakers Hill, Western Australia, in 2006 with a $452,000 loan through Yes Home Loans (YHL).
Recently moved from Sydney, the couple had their own company developing marketing software and had big plans for their future.
Though they didn’t know it at the time, YHL had the mortgage insured using a fraudulent application document.
The handwriting was not theirs. It gave Mr Shannon a random job title and a vastly inflated salary. And it said the couple had hundreds of thousands in assets, including art, none of which was true.
When the bank took the couple to court, seeking repossession of the land because they had failed to make repayments, the couple countersued, saying the whole arrangement was based on a lie.
The Shannons approached numerous community legal centres in WA but were told their case was too complex.
Law firms said either they were conflicted because they had worked for financial service providers, or they simply did not want to take one on.
WHAT WOULD YOU DO?
If you were in Anita and Chris’s situation, would you accept the default or fight the repossession in court?
The dream of an organic farm is lost
Single mother-of-one Tasha Keys bought a tea tree farm in northern NSW in 2009, hoping to harvest the oil organically and sell it.
But successive floods in 2010 and 2011, widespread in northern NSW and Queensland, impacted her crop, leading to a repossession two years later. She owed Commonwealth Bank $200,000 in loans.
Tasha Keys received a settlement offer from CBA after three years.
Ms Keys appealed to FOS, which sided with the bank, but she was unhappy with the decision.
CBA refused to release her from her debts on compassionate grounds.
She took the bank to court alleging a breach of NSW’s Farm Debt Mediation Act, which requires advance warning and mediation before a repossession can occur. They countersued her for the loan deficit.
“I went to every corner of the universe” to get legal representation, she said — including Legal Aid and pro-bono assistance through the NSW Law Society — but found little help.
WHAT WOULD YOU DO?
If you were in Tasha’s situation, would you take the bank to court?
Fighting to win despite losing two properties
Melbourne couple Ana Ganesh and Ganesh Radhakrishnan had six loans spread across three properties, including the family home, from NAB. All up, they borrowed $1.45 million.
In 2010, they say, they asked the bank for an offset account — they wanted to use their rental property income to offset their interest — and believed that, after signing a form, that’s what they had been given.
However, after defaulting in 2012, they discovered that what they had actually been given years earlier was an entirely new line of credit, one that had substantially risen their liabilities by including all three properties.
When they defaulted on one loan, the couple say, they were hit with a recall for all six loans, totalling almost $1.5 million.
Ana Ganesh and her husband Ganesh Radhakrishnan are still fighting the National Australia Bank.
Confused, they asked for and were given a 140-page outline of their loans.
“Deliberately buried in the middle was a new contract’s details page that listed the [three properties] as security,” Ms Ganesh said.
“The acceptance page of the contract was absent.”
The dispute ended up in court, with the bank seeking repossession to repay its debts, and the couple arguing the bank “foisted” on them a loan they were not aware of and did not agree to.
The couple approached Legal Aid, with no luck. The Law Institute of Victoria suggested three law firms, each of which either cited a conflict of interest in declining to take the case, or charged more money than the couple could afford.
WHAT WOULD YOU DO?
If you were in Ana and Ganesh's position, would you accept the default or continue to fight on your own?
Making his repayments but losing his business
In 2007, Michael Sanderson got a five-year loan to buy a 1,000-acre farm south of Childers. He planned to harvest timber on the property.
Over several years, the bank got a series of valuations that differed significantly. As he was seeking to have the loan rolled over, confident in securing another five years, the value went from $900,000 to $435,000.
Michael Sanderson, who fought Bank of Queensland in court for six years.
Mr Sanderson’s loan was $462,500. He believes the changes in valuations were intentional, putting him into what’s known as non-monetary default — where a borrower finds themselves in default because of a change of circumstances, not from missing any payments.
Within 12 months, he was served with a notice of intention to sell and subsequently relinquished the property.
He said he approached 50 different lawyers, legal centres and universities looking help, but there was “absolutely nothing out there”.
WHAT WOULD YOU DO?
If you were in Michael’s situation, would you move on with your life, or represent yourself?
‘Like a penguin in the desert’
Many disputes with banks start out with the organisation’s customer advocate or the Australian Financial Complaints Authority, which was introduced in November and replaced other bodies, including FOS.
When the customer remains unsatisfied, that’s when things progress to the courts, which are rarely favourable to individuals, according to Gerard Brody of the Consumer Action Law Centre.
Community legal centres — low-cost alternatives to hiring a private lawyer — give advice to about 200,000 people each year, but turn away a further 170,000, the sector’s peak body says.
For them, cases involving financial disputes with major lenders are often too complex and take too long to litigate. They can provide phone advice but rarely representation in court.
Legal Aid, which is means-tested, is mostly only available for criminal and family law matters.
The legal sector argues the lack of affordable legal help is the result of successive government funding shortfalls.
In the most recent budget, the Morrison Government proposed an extra $20 million in baseline funding from next year.
The Law Council of Australia, the National Association of Community Legal Centres and other groups called that insignificant, citing a 2014 Productivity Commission report that put an acceptable figure at about $200 million.
In April, a Senate committee recommended the Federal Government put a levy on the largest financial institutions to raise funds for legal assistance and financial counselling for individuals and small business owners.
The Attorney-General’s Department told the ABC it was currently considering the Senate report’s findings, and noted the Government was reviewing funding for financial counselling.
While those who fought a financial service provider told the ABC they struggled to find a lawyer to help them, that was just one issue.
Just as many said that the solicitors and barristers representing their opponents took advantage of their unfamiliarity with the courts, delaying proceedings and refusing to cooperate.
“One of the frustrations we find, even at the very initial stages of trying to advise people about their rights, is that financial service providers are either unwilling or unable to provide relevant documentation,” Mr Brody said.
He said that, like governments, banks should be subject to model litigant rules, requiring their lawyers act fairly, not take advantage of opponents without resources and not rely on technical defences to beat claims.
“The law should never be used as a weapon,” Arthur Moses SC, president of the Law Council, the peak body for the legal community, said.
“Lawyers are expected to demonstrate appropriate patience during a trial involving unrepresented parties, as the courts recognise that unrepresented litigants may require additional support in terms of procedural explanation from the court.”
However, self-represented litigants told the ABC that support was rarely forthcoming.
They felt talked-down-to by judges and registrars and that their relative inexperience in court — one referred to themselves as “a penguin in the desert” — was glossed over during highly complex hearings.
As Mr Shannon, clearly still bruised by his experiences, said: “If you are not a lawyer, and you are not represented, you are treated as dirt.”