Response to the Issues Paper Concerning Changes to the Small Claims Jurisdiction

In developing this response the Society has conducted consultations with its Legal Practice Committee, Commercial Law Committee and Social Justice Issues Committee which brings together many decades of experience in the small claims jurisdiction in the Territory. The small claims jurisdiction and court reforms is of considerable interest to our membership, and for this reason the Society also notified its members of the proposed changes in The Practitioner.

SUMMARY

In summary the Society?s response to the Issues Paper are as follows:

• legislative reform of the small claims jurisdiction would be better served by:
  • the gathering of evidence that identifies the nature of problems within the jurisdiction and their causes;
  • more comprehensive consultation with members of the community, self-represented litigants, the legal profession and the judiciary;
  • waiting until the Productivity Commission has finalised its report into Access to Justice, in order to leverage off their investigations;
• a move towards a greater emphasis on more conciliatory based measures, and less focus on matters of procedural compliance; and
• an immediate focus on non-legislative improvements that directly assist self-represented litigants to better access and understand relevant information around this jurisdiction.

DISCUSSION

What are the issues?

The Society acknowledges reform of the small claims jurisdiction may be required to ensure it more directly meets the community?s need to access an effective and low cost dispute resolution mechanism. The Society is keen to work with the Government towards such reforms. Improvements in the workability of this jurisdiction can have a significantly beneficial impact on:

• community perceptions around the effectiveness of the justice system more generally; and
• unburdening court resources, by reducing the work load of higher courts.

The Society has a number of concerns however with the proposed options, mainly it?s concerned by the lack of inquiry into the existing performance of the Small Claims Court and the lack of consultation, most importantly with the members of the public, judicial officers and within the legal profession. The challenges experienced by court users and the court are not clearly articulated in the Issues Paper as a result.

The Society understands some of the issues currently experienced by this Court include:

• delays in the hearing of matters;
• legal costs, which include Court fees, service fees and solicitor fees, may at times exceed award; and
• difficulties experienced by unrepresented litigants in navigating the jurisdiction and presenting their matter to the Court,

and such issues should be addressed. These issues are not however an exhaustive list and the Society is mindful there may be a range of other issues which more heavily impact the effectiveness of this jurisdiction (reform of which would have a more beneficial impacts on this jurisdiction?s performance) but which have not yet been canvassed. The Society is interested in gaining a better understanding of the range of concerns and views from all court users. This information has not emerged because of the limited scope of the consultation audience and the short consultation period.

What do we know about this jurisdiction?

Based on limited consultation, the Society suggests some of the causes of the inefficiencies in this jurisdiction are more likely to be the result of the following factors:

• unrepresented litigants can be a burden on the limited resources of the Court, which will be further compounded if jurisdictional limits increase by up to 250%;
• varying practices of the judicial officer responsible for hearing the matter;
• a lack of awareness and education of unrepresented litigants about the small claims jurisdiction and the process for having their matter heard;
• funding limitations on the operation of the Court;
• the Court?s infrastructure limitations;
• an increase in use of this Court by members of the public, without legal assistance;
• incompatibility of an adversarial based Court in dealing with the needs of the public to access a participatory based, low cost dispute resolution mechanism;
• the lack of emphasis in the small claims jurisdiction on mechanisms that directly encourage parties to resolve their disputes prior to the Court hearing; and
• easily accessible information specifically prepared for self-represented litigants, such as:

• access to Court forms;
• information about the Court written in plain English language, such as a self-represented litigant handbook;
• making the relevant legislation more accessible;
• the provision of guidelines for self-represented litigants to better assist them navigate the small claims jurisdictions; and
• an information and resource website for the small claims jurisdiction that is more intuitive for self-represented litigants to use that will assist them to find the information they require.

If the object of reform is to deliver a better dispute resolution service to the community, then there must be more consideration around those aspects which directly concern facilitating the resolution of the dispute itself. Initial investigations by the Society indicate there is a need for Government to consider reforms beyond those which focus merely on compliance with procedural aspects of the jurisdiction. The small claims jurisdiction could be significantly improved if it encouraged or required parties to work towards a resolution of their dispute, prior to the Court hearing.

There are a number of useful examples of other courts which focus on the need for the parties to endeavour to resolve their dispute, prior to the matter reaching hearing[i]. To this end the Society supports consideration around, for example the use in this jurisdiction of mediation, conciliation, settlement conferences and improved case management systems. The Society believes the Small Claims Court would be greatly improved by incorporating measures of this kind into this jurisdiction. Such a shift in emphasis would result in a dovetailing of those matters which are genuinely intractable into the Court, and the resolution of other matters prior to Court.

More evidence is required

The Society is concerned the options suggested in the Issues Paper are not sufficiently informed or are they evidence based. The Society is further concerned its preliminary enquiries with its membership around improvements needed in this jurisdiction have indicated quite different reforms than those presented in the Issues Paper.

The Society is concerned reforms based on information unsupported by evidence, may result in unintended consequences that will heavily impact on the users of this Court, a significant portion of which are members of the public. For example the assumption that excluding lawyers from this jurisdiction will always result in a ?level playing field? is incorrect as the Society is aware some parties can be highly sophisticated in the small claims context, even though they are not represented by a practicing lawyer, an example being insurance companies and government.

The observations and experiences of self-represented litigants are most important and this information could be gathered in a number of ways, for example through the use of court user surveys or similar tools. Court Support Services is best placed to manage such a process, the results of which should provide a better indication of public?s views around the accessibility of this jurisdiction and more generally how well it meets the public?s needs for an accessible dispute resolution service.

A more effective small claims jurisdiction will directly improve arrangements that support access to justice for the community. Access to justice is increasingly a matter of concern for the Society, and this concern is shared at the national level. The Australian Government has referred this issue for inquiry to the Productivity Commission[ii]. The Commission has been given a period of 15 months to look into those issues which hinder access to justice in the civil dispute resolution context.

The Society considers, in light of these concerns and the process adopted by the Australian Government, that it would be imprudent for the NT Government to give effect to amendments to the small claims jurisdiction prior to the Commission?s findings. The Commission?s findings will in all certainty be of direct benefit to this Government in deciding how the small claims jurisdiction could be more effective for members of the public.

How can the Society assist progress reforms?

The Society is keen to work with the Government and assist it collect relevant information which could inform it of the nature of reforms that best target the effectiveness of this jurisdiction. The Society would also be very interested in conducting a more comprehensive consultation process with its membership and that of their clients in this jurisdiction over a more reasonable time frame to learn more about their experiences.

Immediate improvement to this Jurisdiction

The Society suggests there are a number of ways this jurisdiction could be improved in the short term without the need to enact legislative amendments or which requires a significant injection of funds. The Society believes improvements in the level of awareness and understanding about the small claims jurisdiction, which targets both the broader community and specifically members of the public who seek to access the small claims jurisdiction will be a valuable investment in the jurisdiction, (refer to the list of suggestions set out above concerning immediate non legislative improvements to assist self-represented litigants). Such measures could be undertaken whilst further information and consultations are being carried out by the Society and the Government.

The Society reiterates that it is keen to contribute to the improvement of this jurisdiction and it would welcome further discussion with your Department about how the Society could contribute to a more comprehensive consultation process with its membership, their clients and the broader community.