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Civil litigation poor cousin

Briefs

Cite as: August 2015 89 (8) LIJ, p.11

Adopting a user-pays approach to civil court case  fees would trample on the notion of open justice,  a symposium on the Productivity Commission's Access to Justice Inquiry report has been warned. 

The December 2014 report recommended increasing court fees to recover a greater portion of the costs incurred when courts and tribunals are used to resolve a dispute. Productivity Commissioner Dr Warren Mundy told the Access to Justice – Taking the Next Steps symposium, hosted by the Australian Centre for Justice Innovation and the Australasian Institute for Judicial Administration in June, that the report focused on improving equity and efficiency in the civil justice system.

“The current structures are neither rational, equitable or efficient,” Dr Mundy said, adding civil matters were often treated as the “poor cousin” of the legal assistance system and received inadequate funding.

He said many matters could and should be dealt with through community services and community education, helping parties to resolve disputes privately, while court fees should reflect the cost of the court services used by parties and the parties’ capacity to pay.

But president of the Judicial Conference of Australia Justice Steven Rares said the report was “fundamentally flawed”. He said using court fees to recover costs was “simply misguided” and could deter people from pursuing justice.

Justice Rares said the recommendation ignored the role of judicial decisions in establishing the law for the whole of society and that higher fees could deny court access to someone challenging a government decision. He said it was the constitutional role of courts to hear and decide disputes and that the commission had failed to acknowledge the different functions of courts, tribunals and alternative dispute resolution (ADR) processes. “ADR cannot be a substitute for, or prerequisite to, access to the courts,” he said.

Chair of the LIV and the Law Council of Australia’s Access to Justice Committees Mark Woods said the report was “not anti-courts at all”.

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