Improving Access to Civil Justice - Further Consultation with the Legal Profession and Wider Community

The Rules Committee has released a further consultation paper on improving access to civil justice. This follows two earlier consultations dated 11 December 2019 and 2 May 2020. It has now identified proposed reforms. 

These proposals are significantly broader than the suggestions outlined in the previous papers. Feedback must be submitted by 5pm on 2 July 2021 to the Rules Committee.

They proposals involve:

1. increasing the jurisdiction of the Disputes Tribunal, and a number of specific proposals to enhance that Tribunal’s role in the civil justice system;
2. reforming the District Court to improve its structural ability to deal with civil claims; and
3. reforming procedures in the High Court to streamline its processes, especially prior to trial (including encouraging early judicial engagement with the substance of proceedings and reducing the burden associated with interlocutory applications) and the conduct of trials themselves.

Disputes Tribunal

Rather than introducing greater inquisitorial processes in the District and High Courts, the Committee favours expanding the role of the Disputes Tribunal, with it becoming a new “Community Court" or “Small Claims Court". In particular, the Committee suggests:

• increasing the jurisdiction of the Tribunal from $35,000 to $50,000 on the current scheme, or $100,000 if greater appeal rights are made available.
• requiring the Tribunal to “give effect” to the law, rather than its current remit of “having regard” to the law
• considering broader appeal rights to the District Court without undermining the effective operation of the Tribunal as an inexpensive and efficient place for resolving claims
• procedural changes, including public hearings, increased use of experts (subject to funding), Increasing the daily fees for referees to attract referees who can deal with claims of higher value, changing the title of referee to adjudicator and granting the Tribunal a limited costs jurisdiction. 

District Court

While the Committee felt that civil dispute resolution for claims in the District Court is not working well, it said that the main problems do not lie with the 2014 Rules. It noted the lingering effect of reforms in 2009 and the growing demands on judicial resources From the District Court’s criminal and family jurisdictions, which have taken away resources from the civil jurisdiction.

The Rules Committee said that reforms should focus on strengthening the institutional competency of the District Court’s civil jurisdiction to allow ”the fundamentally fit-for-purpose 2014 Rules to operate as intended. Some minor and targeted reforms might be considered as a secondary response…” (Improving Access to Civil Justice: Further Consultation with the Legal Profession and Wider Community 14 May 2021 para 57)

The Committee proposes:

• creating the role of Principal Civil Judge
• improving or restoring the civil registry expertise
• addressing the information barrier issues referred to in submissions from community groups
• the introduction of part-time Deputy Judges/Recorders appointed from the profession to deal with civil cases on a part-time basis. 
• introducing pre-action new protocols that a plaintiff must follow before commencing litigation in the District Court. For example, in debt collection cases, the creditor could be required to give a warning to the debtor that proceedings will be issued, urging them to seek advice or arrange a payment plan.

The Committee is looking for feedback on whether the 2014 Rules should be amended to allow for mor “flexible” processes to be used in determining the substantive claim. These could involve inquisitorial processes such as:

• allowing judges to direct that the proceeding be set down for determination on the basis of the initial disclosure alone.
• providing for the substantive determination of disputes using an ‘iterative’ process, where the issues in dispute are narrowed and resolved at successive hearings, with Judges allowing parties to call evidence more than once and in the order the Judge directs.

High Court

The committee is proposing streamlining the High Court’s procedures. The more onerous obligations in the existing rules would apply only if they were proportionate to the value, complexity, and importance of the dispute to the parties or wider community and/or necessary in the interests of justice.  

The proposals include:

• replacing discovery with disclosure rules. Parties will disclose all key documents they rely on in support of their claim/defence. They will also disclose adverse documents under the duty of candour. A Judge can require additional disclosure. 
• holding an initial issues conference where the plaintiff explains its case and outlines the evidence establishing it.  The merits of the claim would be fully addressed and discussed. The Judge will help to identify the key issues and what would be involved for a party to succeed or otherwise on those issues. Any further interlocutory steps and the requirement for trial will be identified. Finally, any potential for resolving the issue without trial can be investigated.  
• The guiding principle would be proportionality, including when considering further interlocutories. Rules r 1.2 of the High Court Rules and r 1.3 of the District Court Rules would refer to this principle.
• There will be a presumption that interlocutories will be dealt with on the papers, unless an oral hearing is directed. Oral hearings would be proportionate to the complexity and importance of the interlocutory dispute and the proceeding as a whole.
• There will be evidential changes, including that witnesses will give evidence by affidavit rather than a brief of evidence, and there will be limits on expert evidence.

These reforms, if implemented, will be significant and the Bar Association recommends that all those involved in civil justice should review the consultation document.

The Bar Association will submit on this document. If you have any comments on the proposals, please email our president.