Tuesday, 12 June 2018

Court Filing Fees – a Barrier to Access to Justice

I sometimes wonder at decision-making from the Ministry of Justice when it comes to matters such as filing fees for access to courts and tribunals. For many years filing fees were relatively modest, and were generally rounded figures such as $100 or $1500 or something like that. A few years ago it was decided that the filing fees were inadequate for cost recovery, and they were all increased but this time to quite peculiar numbers, which were not even or rounded. The extra work which would have been imposed on the poor court staff must have been very annoying, let alone the complications for members of the public and lawyers using the system. The reason for increasing to these amounts was never explained, but must have been some sort of interior political compromise within the darker corridors of the ministry.

This has since been brought back so the fees are now rounded off again, but the essential problem is that the fees are far too high for ordinary members of the public to access the courts. If the fees are to be a form of cost recovery, then you really have 2 options. The first is a user pay basis, or the 2nd is to adopt an approach to recognise that the fees should be accessible.

There are some awful examples and some good examples. For a good example, in the Disputes Tribunal the fees reflect the value of the claims and are -
less than $2000 – $45
$2000 or more but less than $5000 – $90
$5000 or more – $180

But by some strange reasoning, if you want to bring a claim about an issue in a Body Corporate under the Unit Titles Act, the fees are for the first level of disputes $850, and for the 2nd level at $3300. The categories are not based on money value but on the nature of the dispute, so the first level disputes are things like repairs and maintenance or decisions of a body corporate. The 2nd level is about the sort of decision making which is in my experience quite common, issues such as the effect of the behaviour of an owner or occupier of a principal unit on other owners and occupiers – in other words neighbour to neighbour disputes within the building constituting the body corporate. These disputes are not high-value but can be very distressing for the occupants. So to charge $3300 for this sort of dispute demonstrates a clear lack of understanding of access to justice by whoever came up with this sort of figure. So I would call this an awful example, and a barrier to proper access to justice. I won't even go into why unit title disputes were dropped into the Tenancy Tribunal. But that underlines the lack of connection with the real world.

When we look at fees for many other tribunals, there are often very modest fees or no fees at all. There is no consistency across the many tribunals. For example, a very common form of dispute resolution is the Accident Compensation Review, where a disgruntled ACC customer can review decisions of ACC, without any filing fee. If you are dissatisfied with a decision from WINZ, then after the internal review, you can take an appeal to the Social Security Appeals Authority, where there is no filing fee. If you want to make a complaint to the New Zealand Ombudsman, or the industry ombudsman such as the Insurance and Savings Ombudsman, or the Utilities Disputes, who deal with gas and electricity problems, again, there is no filing fee.

If there is a consistent policy about cost recovery, then there should be a consistent approach across all tribunals and courts. But even the courts have inconsistencies. It is relatively inexpensive to lodge most matters in the Family Court, with no filing fees for parenting and contact disputes. But when you want to file an application to resolve relationship property, then there are some absurdly high fees which mean that disputes over small amounts of property cannot be brought in the court. It could be argued that the court should only deal with high-value property disputes, but in the context of a family dispute items of sentimental value or perhaps taonga of spiritual value, but without a high monetary value, it is difficult to access the court. A beneficiary who wants to recover their furniture and household effects simply cannot afford access to the Family Court. So a further bad example are the filing fees in the family court, which are $700 for the filing fee and $906 for the hearing fee for each half day. This latter fee is a hangover from the peculiar amounts I refer to before. Often recovery of items of modest value is of great importance to enable people to move on after separation. But these filing fees are something of a barrier. Again, a further barrier are the absurdly complicated forms which are required, again perhaps subject of more detailed criticism at another time.

In summary, the decision-making at this level of the government does not seem to engage with the people on the ground who need to access courts and tribunals.

This is not just a problem in New Zealand. In the United Kingdom fees were set at a very high level to access employment disputes, and the employment disputes system suffered badly with a substantial drop in the number of disputes, and many workers at the basic level were unable to access justice in dealing with very real one disputes. This was eventually resolved by the UK Supreme Court in 2017, who held that the filing fees were imposed unlawfully and that the charges impeded access to justice and breached both UK and EU law. Subsequently, the filing fees were abandoned. See https://www.ft.com/content/d3073fae-71e1-11e7-aca6-c6bd07df1a3c

Wednesday, 23 May 2018

Maori Representation on Local Council Wards

There have recently been a number of referenda on the subject of obtaining specific Maori representation on city and district councils around New Zealand. To the surprise of some, the concept has been rejected, most recently in Palmerston North and perhaps more surprisingly, in Whakatane, which has a significantly higher percentage of Maori compared to many other cities. Much of the intellectual thinking and some of the financial backing appears to come from the Hobson's Pledge group and Don Brash, who start from the position that this is somehow undemocratic. They suggest that appointing or electing a Maori representative is a race-based approach and undemocratic.

The problem is that they appear fixated by the concept of direct democracy electing representatives. There are in fact more sophisticated models designed to ensure that groups are represented in a way which enables a better voice for communities which may otherwise be marginalised. In particular I refer to what is called the multi-stakeholder model, which is particularly strong in a number of Internet organisations such as ICANN (Internet Corporation for Assigned Names and Numbers which can be found at icann.org, with full explanations and diagrams), the Internet Society and IETF (Internet Engineering Task Force). A good article on Internet governance by multi-stakeholder models is here https://www.internetsociety.org/resources/doc/2016/internet-governance-why-the-multistakeholder-approach-works/

At first blush, making a connection between the highly technical and international structures of Internet organisations may seem a little remote from representation on local councils in New Zealand. But the reason multi-stakeholder approaches were evolved, was to recognise that interest groups are often capable of marginalisation because of smaller numbers, despite the importance of that interest group. This approach is in my view a better model for looking at Maori representation rather than using a simplistic voting approach. The Treaty of Waitangi establishes the need for a partnership and recognises that both parties to the treaty have a stake in the future of New Zealand. So it cannot be a significant change to recognise that even though Maori may not have significant numbers in some councils, nonetheless they are a stakeholder because they hold te ahi kaa, a phrase used to demonstrate that they had for many generations lived on the land, where they built their cooking fires. That certainly extends of course before 1840 when the treaty was signed. Because of colonisation, the ratio of Maori to subsequent settlers declined significantly. But that does not take away their role as a stakeholder as the people of the land. So when a council is elected but does not have a representative of the local Iwi, then it has failed to recognise the treaty principle of Maori being a stakeholder. So on one hand the elected representatives on the council are the stakeholders for the general electorate, but a Maori representative represents the other treaty established stakeholder. That is not undemocratic but recognises that there are other voices who must be heard at the council table.

Friday, 9 March 2018

Update On Ombudsman

In November I posted on the High Court decision relating to the use of the term ombudsman in New Zealand.http://www.lahatte.co.nz/2017/11/ombudsman-and-statutory-protection.html The Court of Appeal has now considered the issue and overturned the earlier decision. The decision is here https://forms.justice.govt.nz/search/Documents/pdf/jdo/bf/alfresco/service/api/node/content/workspace/SpacesStore/6cd608df-b230-422f-9421-9da450f02536/6cd608df-b230-422f-9421-9da450f02536.pdf 

The Court of Appeal looked at the historical development and use of the term. They comment in paragraph 8 of the judgment, that the need for legislative protection of the term ombudsman was driven by a concern that the use of the term outside the Parliamentary context had become increasingly widespread. Sir John Robertson apparently wanted a complete prohibition although this met with some opposition, when the then Minister of Consumer Affairs considered that the term had passed into common usage. Of course since this discussion in 1990 and thereafter, the term has become far more widely used particularly in universities, not just in North America but extensively in Europe and other places. This particular barn door has not only been open but destroyed in the following 30 years. But this factor did not loom large in the decision of the Court of Appeal.

It appears that the successor to Sir John Robertson, Sir Brian Elwood, issued criteria for considering applications for use of the name. He devised a two-stage test, the first of which was to balance the public interest in the use of the name against the undesirability of proliferation. The second test was a more elaborate examination of the use of the term, although the eight tests would look familiar to any ombudsman under the International Ombudsman Association criteria. Sir Brian opined that applications would be rarely granted, and only three have apparently been allowed. The most recent was of course my own application in 2011, described by Justice Simon France as an outlier. The Court of Appeal commented that my approval did not in fact shed any light on the use of the statutory discretion to use the term.

It is unfortunate that the Court of Appeal may not have been made aware of the criteria of the International Ombudsman Association, because the eight tests outlined by Sir Brian Elwood, are very similar to the criteria adopted by the IOA. There does not seem to have been any analysis of the very considerable amount of research and analysis over the many years since his decision, and the academic and other research from IOA members, found among other places, on their website and in the peer-reviewed journal published by the IOA.

But in any event the organisation Complaints Limited, the applicant in the High Court and appellant in the Court of Appeal pressed their case based on alleged invalidity of the Elwood policy. The Court of Appeal considered the categories of discretionary powers from previous authorities and found that the particular use was based on (paragraph 47)

 "Powers that by dint of the nature of the subject matter justify the establishment of a carefully articulated policy, but always with the reservation that no case is to be automatically rejected because it does not fit the policy"

They considered that the effect of the stage 2 factors is that the policy effectively amounted to a complete ban on the use, which was not what Parliament intended nor was it consistent with section 14 of the New Zealand Bill Of Rights Act 1990 (freedom of expression). They considered that the policy unduly restricted the scope of the discretion to a degree not contemplated by Parliament and precluded the decision-maker from taking into account other relevant considerations, in addition to proliferation and the risk of confusion.

It is regrettable that no consideration appears to have been made of the criteria in the IOA standards to set up an ombudsman office. Both the New Zealand Parliamentary Ombudsman and Complaints Limited do not appear to have considered the use and the large body of research from the IOA. This may have cut short the need for judicial review to the Court of Appeal in my view.

A consideration of the IOA standards would have supported the Court of Appeal's view about the unduly restrictive policy. So it will be interesting to see if the term can now be used more widely as a result. My thoughts are that use of the IOA standards would be of assistance in creating any new policy about the use of the term.

Tuesday, 27 February 2018

When Judges Bend the Rules

I have been reading two separate items, the first being a blog entry by Joshua Rozenberg about Lord Denning, and a recent decision of the High Court overturning a District Court decision on a construction contract issue. The common theme between the two is that of judges bending the rules to suit the justice of the case. My thoughts started when I read this article:-

Lord Denning was notorious for bending his perception of common law to reach what he thought was the correct result despite principles of law or precedent which said otherwise. Of course, many of his ideas have now been exposed as being somewhat prejudiced – he did not approve of people of colour sitting on juries, made openly anti-Semitic comments and thought hanging was a good idea. But he is perhaps best known for his open and direct writing style. He did not hesitate to create new law, and in cases such as Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 he created a new concept of promissory estoppel, and Gouriet v Union of Post Office Workers and Others [1977] CA, where he said "Be you ever so high, the law is above you."

The House of Lords did not hesitate to overturn decisions from Lord Denning when they departed from the law. So while he was able to make some changes, the parties were obliged to appeal to get a conventional application of law.

So the High Court decision in Floorman Waikato Ltd v Mcrae [2017] NZHC 1063 illustrated a New Zealand District Court Judge looking at the equity of a case and making a decision attempting to exclude well-established construction contract law. The case was about a very small contract for floor sanding for Mr McRae. The flooring company had applied to the District Court for summary judgment for the outstanding account of $6872.50. This is of course well within the jurisdiction of the Disputes Tribunal which can hear claims up to $15,000. Nonetheless the plaintiff was entitled to seek summary judgment and did so on the basis that it had sent Mr McRae a construction claim under the Construction Contracts Act 2002. The act has a fast track method to enable contractors to protect cash flow, which means that when someone receives such a construction claim, and wishes to defend the claim, they must respond with a schedule in the statutory form. The failure to provide a schedule within the required time then entitles the claimant to apply to court for a judgment. That is all well and good, but in this case Judge Ingram considered that his residual discretion to refuse summary judgment should be applied, stating that he thought that the "manifest financial penalty which must attach to the operation of the Construction Contracts Act 2002, is offensive to my sense of justice in the circumstances of this particular case, and I do not accept it can fairly be brought within the terms of r 12.2, and I am not satisfied there is no defence to the plaintiff's claim." No doubt being aware that someone might cite his judgment for its precedential value, he then went on to say that he thought that the use of the act was inappropriate when the claim was within the jurisdiction of the Disputes Tribunal and where there was a layperson involved who did not know about the consequences of the act and the failure to provide a schedule. He indicated that he would transfer the application if he could, but that either party would need to file a claim in the tribunal.

Instead, the plaintiff appealed the decision. In the High Court Justice Paul Davison then had to overturn the decision, because of the very clear process outlined in the Construction Contracts Act. He said that in this case, judge Ingram was plainly wrong as the result of taking an irrelevant matter into account, and in his view that the act should not apply to residential renovations involving homeowners. So the end result was that the flooring company was able to obtain judgment or the claim together with costs, which I expect would have been very substantially greater than the judgment for the claim.

I don't know if Judge Ingram would be flattered or dismayed by the comparison with the approach of Lord Denning. But in a practical way, he sought to achieve some real fairness as between the parties, but regrettably fell foul of the explicit wording and procedure in the Construction Contracts Act. He was not able to use the discretion to refused to enter summary judgment to avoid the regrettably clear process.

I expect Mr McRae is somewhat disillusioned by the court process. The case illustrates the dichotomy between attempting to do the right thing and applying the law. Such niceties would be of little comfort after receiving the costs award.

Thursday, 14 December 2017

Lower Hutt City Council and Mediation

This is a short post just to comment on the story in the New Zealand Dominion Post daily paper, about dysfunctional relationships within the elected Council of the Lower Hutt City Council. This council is a principally suburban district adjacent to Wellington, with a relatively small population compared to some. Like many smaller local authorities, they appear to struggle to get good candidates to run for council, and when there, they appear to have some real difficulties with relationships with each other.

It is worth putting a link to the article to explain the background. This is https://www.stuff.co.nz/national/99805130/jps-wary-of-lower-hutt-plan-to-get-them-to-settle-scraps-between-councillors

The problem appears to be that the councillors have very different views on a number of issues including whether council staff should be paid the living wage (rather than the basic minimum wage) and also arguments about getting free meals while attending council meetings. It appears that because of these disputes, the council has had to refer to outside lawyers and considerable expense to obtain opinions about what appear to be fairly trivial matters.

So the councillors decided that they would use Justices of the Peace or lawyers prepared to work for free or at low cost when disputes arose. The point of my post is to wonder why they did not consider using the many highly skilled mediators who practice in Wellington and Lower Hutt. I am quite confident mediators would charge much less than lawyers, but more importantly, they have the skills to resolve the disputes rather than give legal opinions about the rights and wrongs. The suggestion that Justices of the Peace be used shows a basic misunderstanding of the role of a Justice of the Peace, echoed by the National Federation of Justices, who commented among others, that it would be fraught with difficulties.

There are two things we can take home from this story. Unfortunately the first is that there is still not enough knowledge in the community of the role of mediators. Any mediator would have seen this problem and immediately thought they could assist in resolving these disputes. The second is that no one contacted the two professional bodies who qualify mediators, AMINZ and the Resolution Institute, or Fairway Resolution Limited who also provide mediation services for community matters. I don't know if the Council will stumble across my blog, but I would be happy to point them to many of my mediator colleagues who could assist (as could I) in facilitating these issues and even training them to better techniques for dispute resolution on the council.

Friday, 24 November 2017

Pike River Mining Supreme Court Decision through the Lens of Restorative Justice

The recent decision of the New Zealand Supreme Court about the decision to offer no evidence in a prosecution of the mine manager, has attracted considerable publicity. The decision can be found at Anna Elizabeth Osborne And Sonya Lynne Rockhouse v Worksafe New Zealand
 [2017] NZSC 175 [23 November 2017].

The decision starts by pronouncing that "it is contrary to the public interest and unlawful for an arrangement to be made that a prosecution will not be brought or maintained on the condition that a sum of money is paid." Justice Ellen France summed up at the very end of the decision by commenting that the decisive feature of the case was that it was simply not possible to put any distance between the basis for payment of the money and the decision to offer no evidence.

The Pike River families who brought the case were pleased with the decision because they felt that Mr Whittall should have been prosecuted. He had of course used the proceeds of his directors insurance to make an offer of a substantial sum of money to the families of the victims, and so the prosecution against him was struck out.

Apart from the fact that little attempt at restorative justice has been attempted to resolve the principal issues, this case does offer an interesting perspective on an aspect of restorative justice settlements where reparation may be offered. The purpose of reparation in this case was to avoid a conviction and the consequent sentence. But I suggest that the problem began when the reparation was negotiated without considering whether this should be done through a process of restorative justice conferencing. This left the families of the victims feeling the hurt of their tragic losses but an impression that the consequences of the many failures by the mine operators were left unpunished and therefore they did not obtain justice in the case. So the failure to involve the families in the discussion about the decision to offer no evidence resulting in reparation but no justice illustrates the need to carefully prepare for a restorative justice process.

The decision indicates that the proposal to settle the case did come with an offer by Mr Whittall to meet with the families to convey his personal empathy and condolences. There does not seem to have been an apology, although that is not mentioned.

Howard Zehr (cited from The Little Book of Restorative Justice) emphasises that crime is a violation of people and of interpersonal relationships, and that violations create obligations. The central obligation is to put right the wrongs. It is necessary to address the harms and the causes. So the decision to try to resolve the possible prosecution by payment of money and a meeting with the victims had some elements of an attempt to put right the wrongs. Zehr says that an effort to put right the wrongs is the hub or core of restorative justice. Putting right involves addressing the harms that have been done, and addressing the causes of the harms, including the contributing harms. Because it is victims who have been harmed, restorative justice must start with victims but is ultimately concerned about restoration and reintegration of both victims and offenders as well as the well-being of the entire community.

This is where the process became derailed. The company running the mine closed down and ultimately went into liquidation. Reading the press reports of the time, it is clear that the families felt that this was somehow an avoidance of the moral obligations. So Mr Whittall as the director was the person seen as the offender, and who had therefore the obligation to put matters right. At that time it was the Department of Labour who was responsible for prosecuting work safety offences. They therefore were in the role of a prosecutor. A prosecution process has nothing to do with addressing the harm that has been done or the cause of the harm. A Royal Commission was established to address the causes of the accident, and the families were invited to participate. There had been some attempts to engage with the families, with varying degrees of success. But a proper restorative process would start with the victims and work with them to address the harm. For very human reasons they would be seeking to find the fault behind the disaster, but the liquidation of the company and the  payment organised by Mr Whittall's lawyers appear to have been taken as avoidance of any fault or blame. There appears to have been little inclusive or collaborative processes and a frequent theme of the press reports interviewing the families, is that they felt left out and marginalised. A good example is the issue of entry to the mine to recover the bodies of the victims. It is clear the families felt excluded by a bureaucratic process, and that they have welcomed the commitment by the new government to enter the mines. Zehr talks about the need for respect, and it is clear that the Pike River families did not feel respected as part of the process.

So does the Supreme Court decision affect the restorative process where reparation may be part of an agreement that a charge not be prosecuted to a conviction? The court set out very clear guidelines, but did not discuss whether reparation in a restorative justice context would be affected by the principle that you cannot buy an acquittal. The difference may be the collaborative process of restorative justice, which was not an element in this case.

So how should this have been handled? A collaborative consensus driven process to looking at the causes, addressing the harm and addressing how the victims could be restored? I leave that thought to the politicians who sadly thought more of fault avoidance than a more holistic approach.

Tuesday, 14 November 2017

Ombudsman and the Statutory Protection

New Zealand was one of the first countries to introduce the office of the ombudsman after the Scandinavian countries. Our ombudsman scheme was established in 1964 under the Parliamentary Commissioner (Ombudsman) Act 1962 but it was not until the 1975 Ombudsman Act as amended in 1991 that the word "ombudsman" was protected by statute.

What changed since the origin of the office was a considerable expansion of the use of the term outside of the original use for the Parliamentary ombudsman scheme. In the United States, the term began to be used extensively for people appointed as an ombudsman to universities and similar tertiary institutions. There is a specific professional body where most affiliate, called the International Ombudsman Association, which operates an annual conference, a professional journal and training.

The New Zealand ombudsman became concerned about protection of the term and so arranged for an amendment to the act in 1991 restricting the use unless there was specific consent from their office. There are a number of statutory or industry bodies which were granted permission, including the Insurance Ombudsman (now called the Insurance and Savings Ombudsman) and the Banking Ombudsman. The only other permission was granted specifically to the office of the ICANN Ombudsman, where permission was given in 2011. That was of course an application which I made and which was granted subject to conditions that I not use the term in New Zealand because of the restrictions.

That was not a difficult condition because my office was global within the ICANN community. There were only ever a small number of referrals to my office from New Zealand, and the complaint handling software was based in Los Angeles, California. On a practical level I did a lot of the work online, but sitting at my office in Wellington, New Zealand, although I also travelled extensively to the ICANN meetings around the world.

This issue has now been the subject of an application for judicial review by Financial Services Complaints Limited, which runs an industry based service and wanted to use the term ombudsman. They considered that since other similar bodies have been granted permission, this restricted them in their marketing of the services. Their application was ultimately declined in an interesting decision from Justice Simon France issued in March of this year. The reference is Financial Services Complaints Limited v Chief Ombudsman [2017] NZHC 525.

In his decision he refers to some of the history of the term and the reason why the term became restricted. Interestingly, there was some resistance to the restriction from officials and also from the Minister of Consumer Affairs, although because of the passage of time the details are somewhat murky. The then ombudsman Sir John Robertson managed to persuade Parliament to introduce the restriction however. The history was outlined in a paper which he presented to the International Ombudsman Institute, which is an international body of mainly Parliamentary ombudsman. Citing from the decision and from his paper it is interesting to note:-

"While I have not achieved the total prohibition sought in the first place, the statutory power which I now have to control the use of the term “Ombudsman” is a practicable and sensible solution to the problems which I foresaw in 1985, at least insofar as New Zealand is concerned. We are a small country population-wise, where the Parliamentary Ombudsman is a well-established and, relatively speaking, well-known and understood concept. It was, therefore, important not to allow the positive influence which the office has been able to bring over the past thirty years, to the understandably at times contentious edge between the authority of the state and the rights of the citizen, to be diminished unnecessarily by the word “Ombudsman” becoming trivialized. I think there is some magic in the name “Ombudsman” which needs to be nurtured and protected in the public interest."

Ultimately the decision rested on issues of statutory interpretation and Justice France concluded by saying:-

"The application fails. The Chief Ombudsman’s policy is not inconsistent with the statutory purpose. Although it is legitimate to ask when a consent will ever be given under s 28A of the Act, the restrictive policy cannot be said at this point to have closed the door to any successful application in the future. The decision was not unreasonable."

What attracted my attention however was not the argument which was raised and the basis on which the application was refused. There was considerable emphasis on the need to protect the term, but no discussion at all on the use of the term outside of New Zealand. I mention this because of the very extensive use in the United States and Canada and also now Europe for university and industry ombudsman. The current membership of the International Ombudsman Association as cited from their annual report in 2016 was 744 – including a number of members from New Zealand. The judge's attention was not brought to the existence of this organisation and the fact that if there is concern about use of the term, then it does not take into account the very extensive use overseas.

But further than this, the judge was obviously not told about more recent research on the use of the term. There have been a number of learned papers written by authors from Queen Margaret University in Scotland where there has been a centre for research on ombudsman, although they use the term ombuds. This aspect was not discussed either in the decision, because the judge was not referred to this research from what I can read from the decision. This research introduces a new angle to the use of the term because the authors consider that the term "ombudsman" is gendered and therefore can be abbreviated to ombuds. In a paper on the University website they talk about an attempt to introduce the gender neutral term to Northern Ireland, which was rejected, in the words of Varda Bondy and Margaret Doyle, stating that the attempt failed when the legislature were deemed arguments about brand recognition were more persuasive than arguments about equality. See https://ombudsresearch.org.uk/2017/04/25/how-an-attempt-to-introduce-a-gender-neutral-title-was-rejected-by-the-legislature/ for the full article. There is forthright comment about the failure to recognise inappropriate use of gender specific terms.

The purpose of my note is to consider whether some of the larger issues about the extensive use overseas and about the gender of the term should have been considered in this argument. I raise it because I wonder whether this needs to be looked at in a bigger sense. I speculate whether the term ombuds could be freely used in New Zealand, because of the specific and now perhaps old-fashioned term ombudsman does not recognise gender diversity. The last word will be from the Court of Appeal as I understand the matter is set down there for argument later this year.