New Zealand Law Society - Review of unrepresented litigant appeal process suggested

Review of unrepresented litigant appeal process suggested

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Retiring Court of Appeal judge Lynton Stevens says a rapid increase in applications by unrepresented ligitants have caused a substantial increase in the administrative workload of Court of Appeal Registry staff and the Court's judicial members.

Speaking at his final sitting in Wellington on 5 August 2016, Justice Stevens said the reasons for the dramatic growth in lay or self-represented litigants were complex.

"One concerns the cost of legal services. In some quarters, sadly, pro bono work is discouraged. Another reason is the continuing pressure on the Civil Legal Aid Scheme. Some lay litigants prefer to be unrepresented: they have a dislike of lawyers and have no wish to retain one. Then there are the querulants who enjoy litigating, heap procedural complexity on procedural complexity and cannot wait for their case to come to Court," he said.

Justice Stevens said attempts by the Rules Committee to introduce new provisions in the High Court Rules requiring self-represented litigants to comply with the Rules foundered. He said perhaps the time was right to revisit such an initiative, as the numbers of self-represented litigants were now even higher.

Pressures felt in Court of Appeal

The pressures were inevitably felt in the Court of Appeal, with a rapid increase since 2010 in applications by unrepresented litigants for matters such as reviews of the Registrar's decisions and recall of judgments.

"In the case of unrepresented litigants, there is often a complete absence of objectivity or judgment. And there is no counsel to filter cases that would be an abuse of judicial resources," he said.

"Ten years ago, the litigant would be told by their counsel: 'Your appeal is unmeritorious. Appeal if you wish but you will be charged a lot for the privilege'. There, typically, unmeritorious appeals would have ended."

Time to review Court jurisdiction

Advancing the first of three propositions linked to improving access to justice, Justice Stevens suggested it was time to review the jurisdiction, both criminal and civil, of the Court of Appeal. Such a review would inevitably have a flow-on effect to other jurisdictions, particularly the High Court.

"If such a review takes place, all possibilities need to be on the table. A thorough consideration and recommendations are needed. At the forefront of available options there needs to be an enhanced leave mechanism."

Class Actions enhance access to justice

As his second proposition, Justice Stevens said passage of the Class Actions Bill and associated draft Rules was needed.

"Class actions enable costs to be shared where there is a common issue. Class actions facilitate access to justice by many who cannot afford the costs," he said.

"The learned President, writing extra-judicially, referred to the current Rules as being 'antediluvian' and Justice Miller has spoken, also extra-judicially, on a number of occasions urging reform. The current High Court Rules are essentially a vacuum in which my colleage Justice French was forced to struggle during the interlocutory phases of Houghton v Saunders, better known as the Feltex case."

Such a measure would enhance access to justice at a time when there was a marked growth in litigation funders.

"There is a draft Bill ready and waiting. The necessary Rules are drafted. What is now needed is some legislative time."

Auckland Court of Appeal sittings

As his third proposition, Justice Stevens noted that over 70% of the Court of Appeal caseload - both criminal and civil - was produced by the Auckland or northern region. The Court sat in its criminal appeal or civil appeal division in Auckland for approximately 22 weeks a year.

"The Court of Appeal, however, rarely sits as a permanent Court in Auckland, despite five of our number having close links to Auckland City," he said.

"I am sure that the Bar and many of their clients would appreciate it if this Court could see its way to sit more often as a permanent Court in Auckland. And perhaps in enhanced accommodation."

Justice Stevens began his legal career as a Crown prosecutor and partner at Meredith Connell in 1975 before joining Russell McVeagh as a partner in 1980. He became a barrister sole in 1992 and was appointed Queen's Counsel in 1997. He was appointed a High Court Judge based in Auckland in July 2006 and a Court of Appeal Judge on 1 July 2010.

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