More people turning to the courts are representing themselves, partly because of the pressures on the legal aid system. Photo: RNZ / Cole Eastham-Farrelly
The number of people representing themselves in civil cases in the district court has grown enormously in the past decade, prompting calls for better use of the Disputes Tribunal to relieve the pressure on the court system.
It follows a report from RNZ that the number of people representing themselves in Family Court have more than doubled in the last 10 years, while the number of lawyers willing to take on legal aid work was dropping.
The civil court resolves disputes between individuals and organisations, and more people turning to the court are representing themselves, partly because of the pressures on the legal aid system.
More than 70 percent of civil cases in the district court involved a self-represented party, data from the Ministry of Justice showed.
Data from official information requests showed 7232 (72 percent) of civil cases in the district court involved a self-represented party (applicant or respondent) at the end of June 2023, compared to 4175 (52 percent) at the same time in 2015.
The ministry said data was updated for the plaintiff at the time of filing and for the defendant, at the point they took action on the case.
But it was not able to readily confirm what proportion of applicants and respondents were litigants in person or corporations.
RNZ did seek clarification but did not receive any further data.
But a lawyer said it was litigants with limited legal experience navigating the court system that were clogging up the system.
Self-representing
Taz Dunstan has represented herself in civil court cases. She also advocated for others to represent themselves.
Dunstan said civil court was cost-prohibitive, with the costs associated with filing legal documents and court proceedings placing a significant financial burden on self-represented litigants.
She said it made it nearly impossible for many individuals to seek justice effectively.
"I would say any of the courts have made it very clear that justice has become unaffordable," Dunstan said, and instances where cases were dragged out or delayed further wore down litigants.
But Dunstan said her experience with legal aid lawyers had not been good, and she had not found representation to be what it once was.
She said she preferred to represent herself, but felt there was an uneven playing field between self-represented litigants and those with lawyers.
"People are conditioned to believe that the only way they will have a positive outcome in court is if they're legally represented."
A growing culture
Dunstan wanted more people to consider representing themselves.
"It would be great to have more advocacy of people, particularly McKenzie friends, people that have gone through the process with practical experience but aren't formally qualified, to say, you know, 'These are your rights, this is the book of law, these are your options available, this is a standard process, this is what you can expect.'"
She said "people shouldn't feel like they are not going to have a fair go if they can't afford for their rights to be heard in court".
New Zealand Law Society president Frazer Barton said there was an "increasing trend around the world" of people representing themselves, but he said for others in the court system it could be a bit of a nightmare.
Frazer Barton. Photo: NZ Law Society / supplied
He said there was "very clear evidence" that the number of people self representing in the civil court had "grown enormously over the last 10 years".
Although it was their legal right to self-represent, he said "what happens when people self-represent is that they have to work with the rules and procedures, and it complicates things for everyone and it becomes a nightmare for the judges and it slows the process down and creates inefficiencies".
In an adversarial system, he said that could create inequality between sides.
Access to justice
Data from the Ministry of Justice showed the number of civil legal aid grants in 2022 was 1351, 1.92 percent of the total number of legal aid grants.
Barton said for many lawyers, legal aid work had become "uneconomic". As a result, he said many lawyers were not taking on legal aid work, creating an access to justice problem.
Systemic change needed
University of Auckland law professor Mark Henaghan said in criminal court, defendants had the right to representation.
"Right to lawyers under our Bill of Rights Act says you have a right to a lawyer in a criminal case. So the state has to provide a lawyer otherwise the case can not go ahead."
University of Auckland law professor Mark Henaghan. Photo: Otago University.
He said while a few chose to self-represent, most did not. But this right to representation did not extend to other courts, such as civil.
That was reflected in Ministry of Justice data that showed a whopping 73 percent of legal aid grants in 2022 were for criminal court cases (51,477 people).
Meanwhile 1092 - 3 percent - of cases involved a self-represented party in the year ending June 2023.
Henaghan said it would be nice to see the Bill of Rights extended to other courts in the future.
National's courts spokesperson Chris Penk said it was a massive injustice that some people were not having their matters heard in a reasonable time.
"The old adage that justice delayed is justice denied certainly applies here."
He said there were many ways access to justice could be improved and the system sped up. He said having hearings online and outside of the hours 9am-5pm could make huge strides in addressing the backlog in the court system.
Chris Penk. Photo: VNP / Phil Smith
Penk said there was also much more that "can and should be done at tribunal level".
The Disputes Tribunal hearing is less formal than a court. A lawyer cannot represent a complainant and there are no judges.
Penk said expanding the scope of Disputes Tribunal and making its decisions enforceable would take a significant number of cases out of the district court system.
"It's in no one's interest to spend such a huge amount of money and time going to the district court when things could be settled much more readily at a dispensed tribunal level."
Penk said allowing junior lawyers to assist in legal aid cases under a supervising lawyer would also decrease the pressure on legal aid lawyers "and also provide some of that future-proofing of the system".
In a 2022 report "Improving Access to Civil Justice" the Rules Committee also identified a need to extend the monetary value of the disputes tribunal.
The report also found that the institutional capabilities of the district court's civil jurisdiction should be improved, a principal civil district court judge should be appointed, and there should be significant changes to the high court rules and the procedures for determining claims in that court.
Labour justice spokesperson Ginny Andersen declined to comment.
* This story was updated on 16/11/2023 to clarify that the Ministry of Justice could not say what proportion of litigants were individuals or corporates in its data.
