Small Claims and ODR: Victoria’s model approach

cropped-law-digital-1.png

The Australian state of Victoria has become the latest jurisdiction to advocate the principle of putting small claims online. It has done so in an Access to Justice Review which provides yet one more implicit rebuke to the approach of the Ministry of Justice of England and Wales in its Transforming our Justice System Vision Statement. The Victorians place their recommendations firmly within a consultative access to justice framework lacking from the English document.

The review’s context was a national Productivity Commission Inquiry Report in 2014 into access to justice arrangements. This had a brief from the Commonwealth Government that included the assertion that ‘for a well-functioning justice system, access to the system should not be dependent on capacity to pay and vulnerable litigants should not be disadvantaged’. The English paper expressly excluded the affordability of costs and the implications of the widespread demise of legal aid.  Accordingly, it did not take an approach dominated by the need to provide access to justice. It simply asserted that we had a legal system which was the envy of the world. It made not a single reference to escalating court fees; decreasing court usage or legal aid cuts. The Victorians, by contrast, are clear that access to justice underpins their whole justice provision: ‘Access to justice is fundamental to the rule of law … Government has a central role in providing an accessible justice system to support the rule of law … Government also has a role in informing people about their rights and responsibilities.’

The Victorians advocate ‘four key strategies’: better information; more flexible and integrated services; making better use of technology; and stronger leadership, governance and linkages. The review acknowledges, as ours does not, that ‘while the system is not broken, it is under considerable strain’.

The whole tone of the Victorian document is completely different from anything that has come out of our Ministry of Justice for decades. For a start, the Victorians are interested in empirical research: they want to know what is happening – ‘there are significant gaps in data, research and evaluation …  particularly in relation to legal needs’. And they are prepared to establish a diffused and decentralised way of finding out. Courts and tribunals which have ‘underdeveloped’ capacities to produce meaningful information about their users and role. But, the Review also wants to develop the Victorian Law Foundation as ‘a centre of excellence for data analysis, research and evaluation on access to justice’. (There may be nothing like being shown up by the success of the equivalent body in a neighbouring jurisdiction – in this case, New South Wales which has exactly this kind of law foundation.)  A little extra funding is even envisaged. Meanwhile, Victoria Legal Aid – the kind of statutorily created legal aid administrative body abolished in England and Wales (but not Scotland) – is volunteered for the task of being the ‘primary entry point for legal information and legal assistance’. For us, the Ministry places itself as the fount of all wisdom and it does not really see much need for research.

The Victorians also want to join the world of ODR – though not quite on the gungho basis advocated in the English document: ‘The Review recommends that the Victorian Government provide pilot funding and, subject to evaluation, ongoing funding for the development and implementation of a new online system for the resolution of small claims claims in Victoria’. Note the emphasis on piloting and evaluating – functions in which our Ministry sees no purpose. Furthermore, the Review specifically considers the issue of ‘the affordability of application fees’.

Further chapters deal with legal aid, pro bono and assistant for self-represented litigants.

It may well be that the Review has subtexts not discernible to readers on the opposite side of the globe; that the issue of legal aid funding is a little fudged; and it would be surprising if there were not critics of the Review among the constituencies that it surveys. But what a refreshing report to read. I recommend looking it up.

Leave a Reply