|
Comments
on the Discussion Document
The
Association commends the Department for producing a clear and thoughtful
document; the arguments are well communicated and researched.
Our submission on the discussion document discusses some broad areas
and themes, and examines specific issues of access to justice and
public versus individual good in the context of the Disputes Tribunal
and Family Court jurisdictions. The Association makes specific
comment on access to justice issues, especially for those on low
incomes. We also make a number of recommendations.
Access
to justice
Civil
courts are an integral part of the structure of government itself.
It is therefore critical to a strong and safe society that there
be no barriers to any individual’s access to the courts and justice.
To that end, the Association argues that access to justice is the
dominant principle when addressing civil court matters and that
other issues such as cost effectiveness, cost recovery and equity
between users and taxpayers are subordinate. Therefore any
and all barriers that limit peoples’ access to justice, be it cost,
language or any other issue, should be identified and removed.
Cost
is a barrier
It
goes without saying that cost is a barrier to justice, especially
in a society where some people struggle to buy decent food, afford
adequate housing, pay electricity bills and access good healthcare.
Those that barely meet basic living costs are unlikely to use the
civil courts when they have been ripped-off by a retailer or tradesperson,
for example. The experience of bureaux suggests that any fee
deters many people on low income from accessing the court system.
Therefore people on low-incomes do not get justice.
The
inability of people to get justice must be of great concern of the
Government. The Association recommends that in the subsequent
reviews of each jurisdiction provision be made for targeted assistance
for people on low-incomes or the abolition of fees (see below for
specific recommendations for the Disputes Tribunal and Family Court).
Access to justice is determined, in large part, by a person’s ability
to pay. The discussion document covered this issue briefly,
and examined the option of exempting people from fees on the basis
of having already met a test related to ability to pay for services
(it was noted by the document that separate means testing of court
users would involve high transaction costs).
The
Community Services Card could be used in this circumstance; it would
mean that the Card becomes more of a true community services card,
and not just a health subsidy card. If this option were to
be explored further it would be necessary to ensure that those entitled
have the card [It is widely know that many people entitled to the
Community Services Card do not receive it, in particular those not
receiving a benefit but on a low income].
Public
versus individual benefits and goods
Civil
courts contribute benefits and goods to both society and individuals,
as has been outlined in the discussion document. The Association
suggests that, on balance, the greater good produced by the existence
and operation of the courts is to society. We discuss this
further in respect of the Disputes Tribunal and Family Court below.
Equity
While
there are good arguments for setting fees to reflect as nearly as
possible the actual costs of each service or stage of proceedings,
the Association would repeat our argument that equity of cost is
a subordinate issue to access to justice. We discuss this
further in respect of the Disputes Tribunal and Family Court below.
The
Disputes Tribunal
Value
of the Disputes Tribunal
The
Association suggests that there is significant benefit in providing
access to the type of dispute resolution offered by the Disputes
Tribunal, and that this good accrues to the individual and wider
community. The Tribunal offers a more accessible, simple,
fast, less formal and non-threatening place for resolving civil
disputes than the other courts.
The
Tribunal is especially valuable for the protection of consumer rights.
If consumers are able to realise their rights through the Tribunal,
a result should be a decrease in traders’ illegal or unethical actions
and rip-offs, thus providing future protection for consumers as
traders improve their behaviour. While the Tribunal is not
limited to consumer issues, consumer rights are a big concern of
many bureaux clients. Bureaux see thousands of cases each
year where traders ignore their responsibilities under the Consumer
Guarantees Act, and because there is no agency to police this, Citizens
Advice Bureau can only advise clients to take their case through
the Tribunal.
The
benefit to individuals that take disputes to the tribunal should
also not be underestimated. A Ministry of Consumer Affairs
review of the Disputes Tribunal found that the majority of its users
were happy with their experience of it and value its process [Ministry
of Consumer Affairs, 1994, Review of the Operations of the Disputes
Tribunals from a Consumer Perspective, Wellington]. There
is a sense of justice being done when they either ‘win’ their case
or it is mediated. Even when users considered the decision
was wrong, the process was regarded as fair. Most said they
could not have sorted out their dispute in any other way and indicated
that they would use the tribunals again if needed. These findings
were further supported in a 1997 Department for Courts’ research
project on the Disputes Tribunal [CRESA, 1997, Disputes Tribunal
research project, prepared for the Department for Courts].
Fees
as a barrier to access
Fees
charged for the Disputes Tribunal service are a significant disincentive
for many in society to use the service. This was clearly demonstrated
in 1998 when the fee was increased, which had a marked impact of
the number of cases taken.
This
impact was possibly more significant than the figures show, because
at the same time the Department had started to improve and increase
publicity and awareness about the role of the Disputes Tribunal,
and Citizens Advice Bureaux were also increasingly recommending
to clients to take their case through the tribunal. It is
therefore likely that without a fee increase the Department should
have expected a marked rise in the number of cases taken.
We can only conclude that many people missed out on justice because
the Government failed to fulfil the outcome of ensuring that fees
do not deny access to courts.
Further,
the Association does not accept the Department’s argument that the
inequity created by the Tribunal’s graduated fee is the price paid
for retaining cheap access to civil disputes resolution. As
the discussion document notes, there is neither reason nor logic
why a claim should cost more to settle simply because it’s worth
more. In the case of the Disputes Tribunal, for example, the
average cost of a claim is $300, regardless of whether the claim
is for $700 or $7,000. In this example, the $700 claim incurs
a fee of $30, which is 10% of the cost, while the $7,000 claim incurs
a $160 fee, which is over 50% of the cost.
Our
colleagues in the United Kingdom, the National Association of Citizens
Advice Bureaux, are currently involved in discussions on a similar
review of civil court fees. Many of the issues and concerns
are the same, especially in regard to access for people on low incomes.
As
well as deterring an individual from accessing the court system,
high levels of court fees for small claims could have a wider public
policy implication. The low value claims which CAB clients seek
to make often relate to faulty goods or poor services - items for
which people, particularly on low income, can ill afford to pay
twice. However, if they feel unable to risk any more money by issuing
a claim in the courts, the deterrent effect achieved by the threat
of litigation, against, for example, provision of poor quality goods
or services, will be severely reduced, cultivating a cowboy culture
rather than stamping it out. People with little money to spare will
become even more of a target for dubious sales practices, and rip-offs
[National Association of Citizens Advice Bureaux (United Kingdom),
February 2000, Civil Court Fees: Response to the consultation on
fee charges].
The
Tribunal offers people an accessible venue to have their disputes
resolved outside of the mainstream court system. The Tribunal
is unique in that:
- it
only deals with relatively small amounts of money ($7,500 or less),
however these amounts are very significant to those taking cases,
often involving a household’s basic consumer purchase
- a
very significant proportion of those taking cases are on low incomes
or are self employed, and any fee is a barrier to them accessing
the Tribunal
- for
most the Tribunal is the only legal avenue for redress of their
dispute.
Therefore,
the Association strongly opposes any move by the Government to increase
the Tribunal fee. Instead, the Association strongly recommends
that the fee be abolished. The Association believes that this
would assist the Government to meet its objective of ensuring access
to justice for all.
The
Family Court
The
discussion document clearly recognises the special nature of the
Family Court. It would be objectionable if any barriers to
this service, such as higher fees, were introduced. The Association
strongly recommend that there be no fees increase for the Family
Court.
Table
II in the paper illustrates the estimated cost recovery in the various
civil courts. The Association feels that the very low proportion
of cost recovery in the Family Court is appropriate, for all the
reasons outlined in the discussion paper.
The
Association also recommends that it would be appropriate for targeted
assistance (low or zero fees) to be provided to those on low incomes.
The Community Services Card could be used to determine this assistance,
as discussed above.
Other
issues of access
The
Association wishes to note that cost is not the sole barrier to
the courts, and would suggest that the Department focus on the following
areas:
Promotion
and education of the courts and its services, including a focus
on the accessibility of the Disputes Tribunal and the interpreter
service.
Improving
processes within the courts’ system, including solving delays in
some of the Disputes Tribunals regionally.
Identifying
and addressing cultural issues that act as barriers within the Courts.
|
![To see what social issues we are currently working on [through advocacy and media]](../../images/socialp.GIF){kind=small}
