The proposals announced yesterday by the ACT Attorney-General, Terry Connolly, to streamline legal claims below $5000 are welcome. They may go a small way to changing the view that the law in Australia is only for the very rich who can afford lawyers or the very poor who have legal aid. The proposal is to force people with claims under $5000 into the Small Claims Court, to be renamed the Small Claims Tribunal. Previously, plaintiffs had an option: to go to Small Claims or go to the Magistrates Court. The critical difference is that the Magistrates Court can award costs. The Magistrates Court also applies the rules of evidence and other procedures more strictly than the Small Claims Court.
Mr Connolly pointed out that corporations and big organisations, including the ACT Government, tended to use lawyers and the Magistrates Court, whereas ordinary people tended to pursue their claims in the Small Claims Court. To the Government’s credit it will be bound by its own rules. Under the new system all under-$5000 claims will go to the Small Claims Tribunal. It will deal with cases more quickly. The tribunal head will be able to be more active and questioning in the search for a resolution. Given the small amounts of money involved it seems that more importance should be given to quick and cheap resolution of disputes and less to procedural fairness and technicality.
That is not to say that fairness should go out the window. If the system does not provide cheap and quick resolution in small cases people do not pursue them and justice is denied. It brings the whole system into contempt. Of course, getting the court element of dispute resolution right is only part of the problem, as many litigant is aware. Enforcement of court orders, especially for small amounts, is another matter. Mr Connolly has argued that forcing smaller claims into the tribunal (where costs are not awarded) is fairer to ordinary litigants who might be intimidated against defending claims for fear of heavy costs awards.
Conversely, it could be argued that it is unjust to expect people and corporations to be out of pocket for chasing recalcitrant debtors. It may be that they will abandon many small claims because they will cost more to chase than they are worth. This may engender a climate of people thinking they need not pay small debts to corporations because they will not be pursued. This could result in greater contempt for the system than Mr Connolly is trying to prevent. On balance, however, it seems important to attempt to take costs out of the justice equation where possible. In the US costs are rarely awarded. The main trouble in Australia is that costs have tended to dominate many legal disputes or at least become a very critical factor in deciding their resolution. It should not be thus.
A further important element of Mr Connolly’s scheme will be its educative and path-breaking role. If less strict adherence to the enormously complex rules of procedural “”fairness”” is shown to deliver quicker, cheaper and better justice overall, it may be that the Small Claims Tribunal approach can be widened. One of the important assurances that the streamlined approach will not get out of hand is that the tribunal will be headed by a legally qualified person _ usually a magistrate, but also in cases of less than $1000 in legally qualified court staff.