Chief High Court Judge delivers a call to arms for lawyers

by NZ Lawyer28 Nov 2014
Her Honour, Justice Helen Winkelmann, Chief High Court Judge, has delivered a persuasive speech aimed squarely at the legal profession at an important commemorative event.

Winkelmann was the keynote speaker at New Zealand Law Foundation Ethel Benjamin address , presented by the Otago Women Lawyers’ Society (OWLS), which has hosted the annual event since 1997.

The commemoration is held in honour of Ethel Benjamin, who was the first woman to be admitted to practice in New Zealand - in Dunedin on May 7, 1897. 

The primary objectives of the address are to honour and preserve the pioneering spirit possessed by Ethel Benjamin, to encourage education and achievement in the women of today, and to stimulate debate about issues affecting social justice and gender.

And Winkelmann did just that. She admitted that her talk, entitled Access to Justice – Who Needs Lawyers?, was intended to be provocative, “but serious nonetheless”.

The esteemed judge discussed two key topics in the address. The first topic reflected on the increasing view of civil justice as a user pays system - a view which Winkelmann says, places little value on the role that civil justice plays in our society.

The second but related topic was the growth in the unmet need for access to justice. The judge asserted that a symptom of this justice gap is the increasing number of unrepresented litigants before the courts.

“What I would like to do is encourage debate about the first topic, the recasting of civil justice as a private benefit. As for the second, the growing justice gap, I aim to spark the profession to action,”
Winkelmann said.

“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. Ultimately I believe that if this continues it will be not just to the detriment of the profession, but also to the detriment of civil justice in our society.”

This is because there are indications that far from being viewed as a democratic institution, civil courts are becoming increasingly regarded as a luxury service for which users should pay.

The judge says there is now a new language that is used in connection with the courts: People who come before them are called customers, judges and lawyers are referred to as stakeholders, and District Court centres are referred to as franchises.

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

An obvious and major feature of this market approach is in the rise in court fees, which in New Zealand are set high and “undoubtedly act as a barrier to accessing the courts”.

In fact, in the most recent review of civil fees undertaken by the New Zealand Bar Association in 2012, it compared our fees to those charged in similar jurisdictions in Australia.

The conclusion was that even without converting from Australian to New Zealand dollars, individuals and small businesses in Western Australia, South Australia, New South Wales and Queensland were paying far lower than the proposed New Zealand daily charge of $3,200.

This high fee regime is denying access to the courts, with one spin-off being huge increases in the amount of unrepresented litigants, says Winkelmann. In the Auckland High Court registry 40% of judicial review cases have one or more unrepresented litigant, and 30% of appeals have one or more unrepresented litigant.

The consequences of this are directly affect the judiciary process, she says, including consuming a disproportionately significant amount of Registry time and length of trials.

Based on all of this evidence, there is an obvious and growing need for better access to justice, says Winkelmann.

“The legal profession has to help meet that need if it is to retain the central position it now has in our system of civil justice. It has exclusive rights of audience in court to represent litigants.

“If the profession is unable to provide that representation in a form and at a price that allows people to use those services, it will not be long before the question is asked why should that exclusivity be maintained?”

The judge went on to explore many of the strands that could help ease the burden on the judicial system in New Zealand.

Examples included moving away from the current 19th century model that “reigns supreme” and provides “no incentive for efficiency”. The profession could explore different pricing models including fixed price services, she says.

“It could also research overseas trends towards unbundling services. For example, a client might come to the lawyer just to have the pleading drafted, and to get some basic advice about the scope of evidence and legal principles, leaving the client to look after the rest.”

Supplementing all of this, of course, is the provision of pro bono services. And although the NZ profession provides thousands of hours of pro bono legal advice a year, there is currently no focus upon facilitating access to the courts for those unable to afford legal representation, Winkelmann says.

She emphasised that the legal profession should be doing these things because it is the right thing for a profession sworn to uphold the rule of law. More than that, if it wishes to retain its preferred status and exclusive right of audience before the courts, then it must show that it strives towards providing access to justice for all.

“The profession that Ethel Benjamin fought to enter was not an innovative profession. It failed to understand or respond to the social justice imperative for according women equal status. Back in the 19th century, it took Parliament to put the profession straight on this,” concluded Winkelmann.

“The challenges for the profession today are just as pressing as they were then — perhaps more pressing. It is for the profession to play its part, a critical part, in meeting the challenge to provide access to justice for all in our society. 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.”