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Justice Winkelmann calls for better access to justice

By Sasha Borissenko 

Chief High Court Judge Justice Helen Winkelmann proposes that unless there is better access to justice, “we will live in a society where the strong will by any means, including violence, always win out against the weak”.

Justice Winkelmann’s observations came during the annual Ethel Benjamin address in Dunedin on 7 November 2014. Her speech was entitled “Access to Justice - Who Needs Lawyers?”

Justice Winkelmann says the Ethel Benjamin address is an event which serves as a reminder that the pioneers fought hard for equal education, for the right to vote, for economic fairness, and for the right to lead a life free of violence.

It also allows an opportunity to talk and think about the fights that lie ahead, namely access to justice, she says.

“For centuries judges and lawyers have worked together to ensure that all can enjoy the benefit of the protection of the law, including those who are vulnerable by reason of limited means, limited education, their minority status or their gender.

“As I reflect upon developments within the civil justice sector I see the weakening of the exclusive and central role that lawyers have played in our courts.”

If this continues, Justice Winkelmann says it will be not just to the detriment of the profession, but also to the detriment of civil justice in society.

“Unless we have this access, we will live in a society where the strong will by any means, including violence, always win out against the weak.”

As a result of the rise in court fees, for example, there are indications that far from being viewed as a democratic institution, civil courts are “regarded as a luxury service for which users should pay”, in addition, people who come before the courts are called customers, judges and lawyers are stakeholders, District Court centres are franchises.

“We are now to understand that we are part of a market for justice services and our product is being marketised.”

While Justice Winkelmann does not contend there should be no court fees, there is disconnect insofar as “access to justice should be available to all, and not just to those who can afford the price set upon access to the courts, only those who can afford that contribution should be required to pay. The fee regime should not operate to deny access to the courts.”

The continuing pressure on civil legal aid is also a problem, she says, which has reduced from $60m in 2010-11 to $49.4m in 2013-14. A fixed fee regime has been introduced and set at a level which has caused many practitioners to decline to do legal aid work. This is leading to more people having to resolve their disputes outside of the court system, which mightn’t always be possible, especially “for the already vulnerable”.

“Present levels of civil legal aid inevitably mean that many individuals cannot look to the courts to enforce their rights or obtain a remedy for a wrong. To the extent that those unable to obtain legal aid do come to the court unrepresented , this is a false economy…[because] of the greater demand that is placed upon court resources and court time by the unrepresented litigant.”

The profession could explore different pricing models including fixed price services and increased pro bono services. Although pro bono work is prevalent in New Zealand, “there is currently no focus upon facilitating access to the courts for those unable to afford legal representation”, she says.

The second half of Justice Winkelmann’s address suggests there is a growth in the unmet need for access to justice. She looks at the “justice gap” with regard to unrepresented litigants as an example.

The “fundamental aspects of our system of justice are built upon the assumption that parties will be legally represented”, she says. 

Unrepresented litigants will have difficulty preparing adequately if they are unfamiliar with the legal world, which results in “efficiency deficit”.

“The unrepresented litigant has none of the knowledge of the law to make decisions as to how a case should be pleaded, or what evidence is relevant to the case.

“The court system is for many a foreign land and the notion of bringing proceedings without legal representation can be compared to the fearful prospect of being stranded in a foreign land unable to speak the language, and without the money needed to find your way home.”

Simply simplifying rules of procedure or the current processes might compromise fair and open hearings. In addition web-based resources thanks to the Ministry of Justice while worthwhile, they are “unlikely to make up for the advocacy deficit”, Justice Winkelmann says.

Instead the judge proposes more pro bono legal assistance models, which have been implemented in Singapore and in most of the Australian states. Finally, adopting a more inquisitorial approach, which is the case as a result of the recent Family Court reforms, still requires that parties be represented, as seen in European civil law systems such as France, Germany and Italy.

But ultimately, there are no easy answers to the problems outlined, she says.

 “But the profession must take an active part in understanding the nature of the problem, and striving for a solution.

“To do this, the profession will have to innovate. It will have to be prepared to initiate and engage in debate about these issues and to question, and if necessary change, its current way of doing business.”

Last updated on the 16th September 2019