Some of the proposals to change civil court fees should not go ahead because they will create barriers to access to justice and could even be considered unconstitutional, the New Zealand Law Society says.
The Law Society has released its comments on the Ministry of Justice consultation paper, Civil fees review, September 2012.
While it agrees some level of court fee is needed because of costs in providing a court system and to discourage frivolous applications, the Law Society says the paramount consideration has to be access to justice. It says the level of fee increase proposed for civil dispute resolution and civil enforcement costs in the District Courts – a 37% increase – may well create barriers.
Similarly, proposals to raise fees in the High Court for concession rate proceedings to 50% of the full fee will apply to judicial review proceedings, applications for declaratory judgments and appeals.
“These are all proceedings with a high public benefit, which offer constitutional protections, and help to hold the Crown and other public bodies and decision-makers accountable,” the Law Society says.
“High Court fees for these proceedings should remain unchanged. It should not be forgotten that the judiciary are the third branch of government. The public is entitled to have access to the courts as a fundamental part of our constitutional structure. Fees that create barriers to access are arguably unconstitutional.”
The Law Society says it also does not agree with the proposal for a prepayment system for hearing fees in the District Courts and High Court. These will have a serious negative impact on litigants, particularly individuals and small traders.
It also points out that the level of service that lawyers and the community receive from the courts can vary significantly.
“In any discussion of fee increases, consideration needs to be given to ensuring that a guaranteed minimum level of service is provided.”