Justice for all – or access for some?
Issues in access to justice
Paper presented by the Hon. Justice Stephen Estcourt QC*
Australian Lawyers Alliance National Conference
24 October 2015, Hobart
Apart from an extremely valuable contribution by Justice Steven Rares on behalf of the Judicial Conference of Australia the recommendations of the Productivity Commission in Chapter 16 of its report entitled Report on Access to Justice Arrangements appear to me to have largely gone under the radar. They ought not to have done. In my view they represent the single greatest threat to access to justice, and consequently to the rule of law, that I have witnessed in my professional lifetime.
The Commission’s recommendations 16.1 and 16.2 are as follow:
Irrespective of the overall level of cost recovery that is adopted, fees charged by Australian civil courts and tribunals should be:
- underpinned by costing models to identify where court resources are consumed by parties
- charged at discrete stages of litigation — and for certain court activities or services — that reflect the direct marginal cost imposed by parties on the court or tribunal
- charged on a differentiated basis, having regard to the capacity of parties to pay and their willingness to incur litigation costs.
Factors used to charge fees on a differentiated basis should include:
- the amount in dispute (where relevant)
- whether parties are an individual, a not for profit organisation or small business, or a large corporation or government body
- the length of proceedings (for example, by basing hearing fees on the number of hearing days undertaken).
Fees should be reviewed every three years to reflect any changes in the costs of providing court services and the nature of services provided. Fees should be indexed to the relevant capital city Consumer Price Index increase in other years. Such reviews should include public consultation undertaken concurrently with those in recommendations 13.2 and 17.3 to minimise consultation burdens on interested parties.
The Australian, State and Territory Governments should increase cost recovery in civil courts and tribunals. The additional revenue should be directed towards improvements in court resourcing (recommendations 17.2 and 17.3) and legal assistance funding (recommendation 21.7).
In addition to applying the principles outlined in recommendation 16.1, courts and tribunals should recover their full costs in all cases of a substantial financial or economic value, with the court being able to defer or reduce fees only in cases where it would be in the public interest to do so, or to avoid a particular party being denied access to justice.
In resetting fees, the impost on parties should not materially increase in:
- cases concerning family violence, child protection, deprivation of liberty, guardianship, mental health, or claims to seek asylum or protection disputes dealt with by tribunals and courts that are of minor economic or financial value.
Access and the rule of law
In his paper, Rares J pointed to several problems with those two recommendations. His Honour said:
“Those problems are, first, that the Commission has assimilated tribunals, which are executive bodies, with courts, and so ignored the very different constitutional roles and functions of each. Secondly, the Commission has assimilated the role of courts with alternate dispute resolution (ADR) processes. That fundamentally misunderstands that the role of the courts is to quell controversies in a final, binding decision that is immediately enforceable. ADR cannot be a substitute for, or prerequisite to, access to the courts. Thirdly, the Commission has failed to appreciate that the differential fees that it advocates cannot achieve fair or just outcomes and will deny, not promote, access to justice. Fourthly, the apparent value of what is at stake or the identity of a party in any case is no guide to the public importance of a court decision that authoritatively quells that controversy. And, last, the use and setting of court fees by the executive government can deny access to courts including in cases where a person seeks to challenge governmental decisions.”
In this paper, I wish to focus on the last of those identified problems, “justice for sale”.
As was said in BGEU v British Columbia (Attorney General):
“There cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice”
The notion of access to justice has evolved. Clause 40 of the Magna Carta translates roughly from the original Latin as “To no one will we sell, to no one deny or delay right or justice.” This clause enshrined the notion of a formal right for citizens to have their grievances determined impartially by a court. Essentially it represented a movement away from the partisan and inconsistent justice meted out by monarchs, towards open, principled decision-making.
That principle is enshrined in Chapter III of Australia’s Constitution and in Article 10 of the UN Universal Declaration of Human Rights, which states that:
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charges against him.
The High Court protected the right to unrestricted access to courts by holding in Coco v The Queen that such access could only be removed by an express enactment of Parliament.
Today, that idea of a fundamental right to access the court system is understood in the context of providing effective means to assert legal rights. The thinking is that having rights does not do much good if one lacks the capacity (or the system lacks mechanisms) for their effective vindication.
This links to the key point: justice does not come cheap. It is a fact that the dominant barrier to parties seeking access to the civil justice system is the prohibitive cost associated with almost every stage of the litigation process. The connected factors of delay, complexity, procedural formality and an adversarial culture also represent barriers to litigants, especially those of a disadvantaged background. In a time of meagre government funding for legal aid and of limited availability of pro bono civil representation, those connected factors are particular hurdles for litigants and defendants who are forced to represent themselves. This retards a less obvious goal of access to justice reform: that is that in order to be truly accessible, the system should be understandable to those who use it.
ADR and the fundamental function of courts
In recent decades, courts and parliaments have sought to mitigate the costs of accessing civil justice by instituting incentives to utilise alternative methods of resolving legal disputes. These measures also aim to provide less formal, more time-efficient settings for resolving disputes. Alternative dispute mechanisms take cues from the ways things are done in business and bureaucratic institutions. They are focused on efficiency and efficacy.
Whilst it is easy to see the benefits of such reforms, the question arises whether they erode the quintessential role of the judicial arm of government. The further question arises whether that matters. Should we still direct reform at emphasising ADR or should we maintain a focus on enhancing access to justice through traditional court processes?
Put simply, the answer is yes to the second question. Courts provide a public good in upholding the rule of law, in maintaining standards of procedural fairness and in arriving at transparent, principled decisions that are both final and self-enforcing. That public good is no less essential to a democratic society than education or healthcare.
As Rares J said in his paper, courts are not alternate dispute resolvers. His Honour observed:
“17. There is a further fundamental flaw in the Productivity Commission’s understanding of the role of the courts in determining disputes. The Commission’s approach involves this syllogism: Courts resolve disputes. Alternative dispute resolution processes are services that also resolve disputes. Therefore, courts and alternative dispute resolution processes are the same. Accordingly, the Commission considers that the courts perform a “service” for the cost of which users, or some users, can be made to pay.
18. This argument is wrong because it does not understand the central role that the judiciary plays in our constitutional system of government under the rule of law. Courts are not voluntary dispute resolution processes, unlike all forms of ADR (except those ordered by courts). If parties choose to use ADR to resolve a dispute or difference they do so pursuant to an agreement. And, the resolution of the dispute by ADR processes creates a new set of rights and obligations for the parties that are not enforceable through the ADR mechanism if one party chooses to ignore them.
19. However, if one party chooses to use judicial proceedings to resolve a dispute, the party invokes the fundamental common law right of asking an arm of government to determine the legally enforceable rights and obligations in controversy. The court’s decision is a final, binding determination of the law, applied to the facts of the case, and can be coercively enforced by the court itself.”
Justice Ronald Sackville, in his 2003 address to New Zealand’s First Annual Conference on the Primary Functions of Government, criticised the assumption that courts are central to dispute resolution. His Honour opined that such an assumption is an oversimplification of the process because in reality, only a small fraction of matters filed with courts actually make it to the hearing stage.
Whilst alternative dispute resolution is predicated on the cost-effective and timely expedition of matters, those mechanisms lack the transparency of the court process. Settlements arrived at between parties, whether through mediation or conciliation, lack the detailed and principled exposition of a judgment handed down by a judicial officer.
The function of the courts as the final recourse for the redress of civil wrongs is central to the rule of law and is not some “spillover good” as Rares J put it in commenting on the Commission’s statement that:
“… a party would not contest a matter in court unless the expected private benefits of taking action outweighed the expected private costs of bringing the matter to court… the decisions of many parties to currently engage in litigation, even when the costs to themselves can be significant, necessarily implies that there are private interests at stake.”
In this instance, the concept of justice is subjective. To some litigants, for example a small business owner in a commercial matter, a fast tracked, private resolution of a dispute might amount to justice. To another litigant, justice might mean a public hearing and public declaration of the court’s decision. Nonetheless, as Sir Gerard Brennan CJ stated in his 1997 The State of the Judicature Address, the court system must be “reasonably accessible to those who have genuine need for its remedies.” 
Justice for sale – why the user should not pay
The reason why justice cannot be sold is clear. As noted by Brennan CJ in the address I have just referred to, the notion of “user pays” is only consistent with the rule of law to the extent that every genuine would be user can pay”  (emphasis added). His Honour said:
“It should never be forgotten that the availability and operation of the domestic courts is the unspoken assumption on which the provisions of our Constitution and laws are effected, on which the operation of the entire structure of government depends, on which peace and order are maintained, on which commercial and social intercourse relies and on which our international credibility is based.”
A key recommendation of the Productivity Commission’s Report on Access to Justice Arrangements was that parliaments should legislate to ensure court fees are more reflective of the cost of providing justice as a service.
In August of this year, Attorney-General George Brandis QC announced a plan to increase some Family Court filing fees as a response to the Productivity Commission’s recommendation. The planned increase of filing fees for applications for divorce from $845 to $1200 was expected to make $87 million over four years. Approximately 60% of those funds were to be allocated to recouping the cost of running the Court. The Abbott government had previously proposed to close Family Court and Federal Circuit Court registries and not replace judges upon their retirement if Parliament failed to pass fee increases, citing the need to retain the financial sustainability of those courts as incentive to vote for the increases.
What measures such as this fail to encapsulate is the fundamental and essential function of courts in dispensing justice in a modern, democratic society. User pays (or user supplements) policies treat justice as a service that can be bought rather than as a public good provided by the judicial arm of government.
As Rares J said in his paper:
“35. Court fees should not be used as a form of taxation or a mechanism to sell justice to litigants. Ch III of the Constitution establishes the Federal judiciary as an arm of government. Under s 52(ii), the Parliament may make laws to impose taxation. Taxation is the usual way in which the Parliament raises money to conduct the business of executive government and to provide the resources necessary to run both the other two arms of government, namely the Parliament and the judiciary. Imagine how unacceptable it would be if people were made to pay, let alone at user pay rates, separate charges to have access to a Senator, Member of the House of Representatives or Parliamentary Committee, or to petition to one of the Houses.”
Brennan CJ put it this way:
“Courts, being labour intensive, draw on the public purse for their maintenance. So do the political branches of government, the Parliament and the Executive. Governments have been attracted to the notion of “user pays” in order to assist in defraying the costs of the judicial branch, seemingly disregarding the fundamental importance of ensuring the enforcement of the rule of law.”
Perhaps the most poignant expression of that view is that of Sir Richard Scott:
“The civil justice system is an integral and indispensable part of the structure of administration of justice that must be put in place by every State in which public and private affairs are to be conducted in accordance with the rule of law; and … a policy which treats the civil justice system merely as a service to be offered at a cost in the market place, and to be paid for by those who choose to use it, profoundly and dangerously mistakes the nature of the system and its constitutional function.” (emphasis added)
Justice cannot be sold. As a profession we must resist any such notion. But as a profession we must press our professional bodies to focus far more attention than at present on reducing the costs of litigation. Cost budgets approved by the judge hearing the case and disclosure control have found considerable favour in the United Kingdom since the Jackson Report. That may be one way to achieve a lofty goal. To that end, I have attached to this paper two articles by my friend and colleague, His Honour Judge Simon Brown QC, who pioneered cost control reforms in commercial litigation in the United Kingdom Perhaps that is the subject I should have addressed at this conference.
* Judge, Supreme Court of Tasmania. The author gratefully acknowledges the assistance of his associate, Jessica Sabapathy. Any original thoughts in this paper are hers.
 The Hon Justice Steven Rares, ‘Is Access to Justice a Right or a Service’, a paper presented at the Access to Justice – Taking the Next Steps Symposium, 26 June 2015, Monash University.
 Productivity Commission, Inquiry report, Access to Justice Arrangements, released 3 December 2014, available at http://www.pc.gov.au/inquiries/completed/access-justice/report#contents [accessed 4 June 2015].
 Productivity Commission, above n 2, 58.
  2 SCR 214 at 230.
 ‘The 1215 Magna Carta: Clause 40’, The Magna Carta Project, trans. H. Summerson et al. http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_40 [accessed 19 October 2015].
 United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), http://www.un.org/en/documents/udhr/index.shtml#a10 [accessed 21 October 2015].
 Coco v The Queen (1994), 179 CLR 427 at 436, per Mason CJ, Gaudron and McHugh JJ.
 Roberts S and Palmer M, Dispute Processes: ADR and the Primary Forms of Decision Making (Cambridge University Press, 2005), p 47.
 Productivity Commission, above n 2, 2.
 R Sackville, ‘Some Thoughts on Access to Justice’, paper delivered at the First Annual Conference on the Primary Functions of Government, Faculty of Law, Victoria University of Wellington, New Zealand, 28 an d29 November 2003, 7.
 Ibid, 15.
 Ibid, 1.
 Sackville, above n 13, 4; Les Arthur, ‘Does case management undermine the rule of law in the pursuit of access to justice?’, (2010) 20 Journal of Judicial Administration 240, 240.
 Rares, above n 1, 5 (footnotes omitted).
 Sackville, above n 13, 11.
 Rares, above n 1, 5; Productivity Commission, above n 2, 536.
 The Hon John Doyle AC QC, ‘Commercial Litigation and the Adversarial System – Time to Move On’ (Speech delivered at the Supreme Court of Victoria Commercial Law Conference, Melbourne, 9 September 2013), 3.
 State of the Judicature Address, (1998) 72 ALJ 33 at 34.
 Brennan, above n 23, 36.
 Brennan, above n 23, 35.
 Productivity Commission, above n 3, 58.
 Jane Lee, ‘Attorney-General George Brandis to try raising divorce fees a third time’, The Age, 22 August 2015
 Rares, above n 1, 8.
 Brennan, above n 23, 35.
 Sir Richard Scott head of the English Chancery Division in a speech cited by Lord Ackner, Hansard, HL, 14 July 1997, 865.
 His Honour Judge Simon Brown QC, ‘Costs control’, New Law Journal, 6 and 13 April 2012, 498; His Honour Judge Simon Brown QC, ‘Costs control (2)’, New Law Journal, 8 June 2012, 773.