Dialogue: Move to raise cost of justice requires urgent rethink

In dramatically raising court fees, the Government has put a thirst for revenue ahead of the delivery of justice, writes PATRICIA SCHNAUER*.

The Government's decision to dump huge fee increases on users of the civil court system displays an unhealthy mindset on the delivery of justice.

From a public policy initiative, it puts revenue-raising before the public good. Average New Zealanders wishing to assert their rights through our court system will be hit hard after such dramatic increases.

Court filing fees in the District Court, High Court and Court of Appeal will increase vastly at the start of next month.

Filing fees in the High Court will skyrocket from $120 to $900 and hearing fees for the first day of a case go from $650 to $2200. If the case is not completed in one day, every additional half-day will cost another $1100 - a 307 per cent increase.

Similar increases are reflected in the Court of Appeal.

In district courts - or the "people's court" - where last year 37,000 New Zealanders had their disputes resolved, fees will almost double. First-day hearing fees will increase from $145 to $450; extra half-day hearing fees will go from $255 to $450.

The Government says these fee increases will make the court system fairer. How is somewhat unclear.

Fees in the Disputes Tribunal will drop. That is worthy. But increasing civil court fees excessively is not, and it will seriously affect the delivery of justice.

The Minister for Courts, Matt Robson, says increases are justified because taxpayers should not have to subsidise large corporates who bring litigation.

The minister had better wake up. It's not only corporates who use the court system. Last year, only 34 cases were filed in the Auckland High Court commercial list. At the same time, hundreds of High Court civil applications were started.

The vast majority involved ordinary people seeking to have their disputes resolved.

Such cases cannot be heard in the Disputes Tribunal. The only alternative is to resolve them through the courts.

Imagine what happens if your house gets burned down and your insurance company won't pay out. Often large corporates brush aside consumers' initial objections. It is only when the customer gets serious and takes the insurance company to court that the person's rights are properly responded to.

To issue High Court proceedings will now cost $900. Consequently, it will be significantly harder for the average person to combat more powerful commercial interests and assert their rights.

At the same time, large corporates, which the Government says it is targeting, will simply absorb the costs. This leaves them in an even stronger position to fend off a worthy but not wealthy personal litigant.

There are many other examples where legislation requires particular disputes to be resolved in the High Court.

Take a first-home buyer. The vendor contracts to sell his house for $210,000, then refuses to settle. Because it exceeds $200,000, High Court proceedings are required. Now the "good guy" must pay the Government $900 to begin proceedings to recover what is lawfully his.

There has been much publicity about the building industry and the difficulties subcontractors have in getting paid. Some building contractors pay late and prolong the resolution of building disputes so as to obtain free credit.

At the same time as the Government is introducing legislation to help subcontractors, a minister is proposing to levy those same subcontractors substantial extra fees when they try to sue to collect their outstanding debts through the courts.

Every day people interact with each other. Conflicts of interest will arise; they are an inevitable part of a normal, functioning society.

We no longer resolve those conflicts by duels at dawn, or some other archaic method. It is a fundamental obligation of Government to provide a legal system to regulate activity among its people.

It's called living by the rule of law. No one has yet worked out successfully how to play rugby without a referee. Likewise, society can't function without courts to referee its daily operations.

As a matter of public policy it is wrong for any government to price the state-provided mechanism for dispute resolution beyond the average person.

Taken to the extreme, the proposed increases will see the legal system put beyond the reach of the average person and left to the domain of large corporates and people funded by legal aid.

The Government does not demand that every user of the health system, or every user of the education system, pay $900 before they can even start to use the Government service. Why then is it demanding that every user of the civil court system pay a vastly increased upfront fee?

A cynical public might deduce that the increased fees are to pay for the $2.3 million in new legal aid funding for community groups to contest applications under the Resource Management Act. Arguably, the paying users of the court system are now being asked to pay for that new Government policy.

The last two court fee increases - in January 1998 and the following July - did not exceed 10 per cent. The largest of these latest increases is 650 per cent. This is not a routine review of court charges but a whole rewrite of the court fee structure.

Such extreme revenue-driven policies do nothing to enhance our legal system. They require an urgent rethink.

* Patricia Schnauer, a former Act MP, is a public law specialist.