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

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