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Legal and Constitutional Affairs References Committee
Impact of federal court fee increases since 2010 on access to justice in Australia

CORKER, Mr John, Director, National Pro Bono Resource Centre

STEWART, Mr Malcolm, Vice President, Rule of Law Institute of Australia

Committee met at 09:02.

Evidence from Mr Stewart was taken via teleconference—

CHAIR ( Senator Wright ): Good morning everyone. I declare open this public hearing of the Senate Legal and Constitutional Affairs References Committee for the inquiry into the impact of Federal Court fee increases since 2010 on access to justice in Australia. The inquiry was referred by the Senate to the committee on 27 February 2013, for inquiry and report by 6 June 2013. The full terms of reference are available on the committee's website. The committee has received 32 public submissions for this inquiry, and all those submissions are available on the committee's website.

I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee, and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee. The committee prefers all evidence to be given in public but, under the Senate's resolutions, witnesses have the right to request to be heard in private session. It is important that witnesses give the committee notice if they intend to ask to give evidence in camera. If you are a witness today and you intend to request to give evidence in camera, please bring this to the attention of secretariat staff as soon as possible. If a witness objects to answering a question the witness should state the ground upon which the objection is taken, and the committee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may, of course, also be made at any other time. This public hearing is being televised within Australia's Parliament House and also broadcast live via the web.

I now welcome Mr Malcolm Stewart from the Rule of Law Institute of Australia, via teleconference, and Mr John Corker from the National Pro Bono Resource Centre. The Rule of Law Institute has lodged submission 4 with the committee, and the National Pro Bono Resource Centre has lodged submission 33. Do either of you wish to make any amendments or alterations to those submissions?

Mr Stewart : No.

Mr Corker : No.

CHAIR: I now invite each of you to make a short opening statement, and at the conclusion I will ask members of the committee if they have any questions.

Mr Stewart : Thank you very much, and I congratulate the committee on looking at this. I have read a number of the submissions, and I do not want to repeat what I think is very well articulated in them, but perhaps I could tease out some very short and important points. Wearing another hat, I am a litigation lawyer and I have had some considerable experience in federal and state courts. In terms of charging fees for accessing the courts, I see that as a little bit akin to a monopoly situation whereby one simply has no choice. If one wants to go to court to get redress and there is a federal law involved, you do not have a choice; you have to go to a federal court or a federal tribunal, and the fees are simply presented to you. You choice is to either accept and pay the fees if you can afford it, or not. And it is the bit about 'not' that is of most concern to the Rule of Law Institute. If you decide not to because it is too expensive and you cannot do it—and there may be a number of reasons for that; we are dealing here with fees—what happens is that you then have another choice to make: you either do nothing or you seek remedies of self-help.

I raise that from the point of view that one needs to treat these fees very carefully, because what happens as a result of people choosing not to go to court is quite serious. It is not just a matter that concerns those who are in dispute; there is a wider community benefit here in that the community does not want potential disputants who cannot access the justice system or the legal system in Australia taking remedies of self-help. So, I do not think this whole debate should be seen as one of, 'Well, you're a litigant in this; therefore, you're being charged a fee.' There is a significant community benefit in ensuring that there is proper access to justice and, as I say in my submission, that should be borne in mind when considering fees.

This brings up the other point of this being done, in effect, by regulation. This is where I really do congratulate the committee on taking this up, because effectively the executives are determining the fees, and there are much more important issues than a primary emphasis on costings here. And a third unrelated point regarding corporations that I do not think was necessarily teased out in the submissions is that we see corporations being charged much higher fees than individuals. That, to some extent, is okay, because mostly corporations are going to have the advantage that they will be going to court for business related reasons. I would imagine that for 95 per cent of corporations going to court is for business related reasons, so of course the fees are going to be deductible, and that needs to be taken into account. I think most individuals who are going to court will not be going there for business reasons—at least 95 per cent of them, I would think—and of course it is not deductible; they have to bear the full brunt of that in their after-tax income.

Mr Corker : Perhaps first I could introduce the National Pro Bono Resource Centre, which is based at the law faculty of the University of New South Wales, which is now in its 10th year. Its role is to promote the growth of pro bono legal services in the legal profession and to support the legal profession in its endeavours to provide pro bono legal services. We are funded by the Commonwealth and state and territory governments, but we are just a small cell of four people.

The fundamental argument of our submission is really that pro bono legal services are the provision of a lawyer's professional time—in almost all cases, without charge to the client. While most law firms are willing to pay internal disbursements associated with a pro bono matter, such as phone costs, photocopying, printing and those sorts of costs, it is not the case for external disbursements, of which court fees are one. In a pro bono matter, largely, in litigation there is not an expectation that the matter will be generating revenue in order to cover the costs of disbursements associated with the matter—in fact, most pro bono matters are not even seeking damages or a financial payment from the court; more often a declaration or some other similar order.

We undertake surveys of the firms—in fact, last year we undertook a survey of all firms in the country with more than 50 lawyers. That indicated that less than 25 per cent of firms indicated they would meet the external disbursements. So, if they do not, then either the client has to pay or, in some cases, the firm will pay part of the fee—or the matter does not proceed.

When matters are taken on pro bono, generally, for litigation, firms and/or pro bono clearing houses make a careful assessment of that matter as to its merits. They form a view that legal assistance will not be available elsewhere and they will also look to the means of the person to afford to pursue litigation before they make that decision.

So, what we are really saying is that, as a matter of fairness, as a matter of principle, these matters should be treated in the court rules in exactly the same way as those under the grant of legal aid or the other exempt categories—but particularly legal aid, because of the similar assessment of that person's capability. In fact, pro bono will really only take on matters where legal aid is not available; that is a criterion that is applied right across the large firms in terms of their criteria for taking on a matter pro bono.

So, if you like, underneath that, what we would say is that pro bono operates on an unwritten bargain between government and the private sector. Each must contribute to make it work in terms of government's adequate contribution towards the legal assistance sector. So we would say the government's contribution in this case is a full exemption from the payment of court fees for matters that are pro bono.

There is an additional administrative argument—this is not a big issue, to be quite honest—that, of the number of people rejected on a project bono matter, most of them will be successful under the financial hardship test that presently exists in the rules. But that involves filling out a four-page form by the applicant, and often by the lawyer as well, then an assessment by the court staff. And in many cases—most cases, probably—there is an exemption, or a deferral of fees is granted by the appropriate court staff. In a sense what we would be saying is that there is an administrative saving related to making a clear exemption category for matters that are taken on on a pro bono basis. So there is even a saving by doing away with that process, which is essentially not producing much revenue for the Commonwealth or for the court—the Commonwealth, in any event. So that is the summary of the submission we are putting.

CHAIR: Thank you, Mr Corker. I might go to Senator Crossin to start.

Senator CROSSIN: Thanks very much. Mr Stewart, can I go to you first?

Mr Stewart : Sure.

Senator CROSSIN: In your submission, at the top of page 3, in relation to family law fees, that they were $60 but in 2013 that has escalated to $265.

Mr Stewart : Yes.

Senator CROSSIN: Is that just for the filing of a divorce application, is it?

Mr Stewart : Yes. I did not prepare this paper, Senator; it was prepared by my CEO, who is lecturing this morning at New South Wales uni—but I believe that to be the case. I will check that for you.

Senator CROSSIN: I think it is, given the context of the paragraph it is in. So the reduction in fees this year does not apply, then, to that? That will stay as it is?

Mr Stewart : I believe that to be the case, too, but I will check that as well.

Senator CROSSIN: So in your submission are you suggesting that people who cannot afford it, who are perhaps on a low income or from a low socioeconomic background, are even struggling to file for something as simple as a divorce?

Mr Stewart : Yes. If it is $265 then that is going to be akin to the weekly benefits they are getting, and that is going to make it very difficult for them.

Senator CROSSIN: Sure.

Mr Stewart : I have not heard anything anecdotally yet. I have number of friends who are family lawyers. They have not raised that with me, but I would be very interested to keep an eye on that to see how that pans out.

Senator CROSSIN: You can file that yourself, can't you? You do not need any law firm or lawyer to assist you there.

Mr Stewart : That is correct. It is a relatively simple form, and you can get assistance at the registry.

Senator CROSSIN: Yes. So that leads me to a question, perhaps to both of you: if someone is assessed as being represented by, say, a private law firm—not legal aid—on a pro bono basis, I take it from your submissions that you still have to go through the process of the court to get them exempt from fees. Is there not an automatic box that someone in the court ticks? For example, if you front up with a client, Mr Corker, and say, 'I am representing this client on a pro bono basis', the court fees are not automatically waived?

Mr Corker : That is correct, Senator.

Senator CROSSIN: You still have to go through the process of applying to get the court fees waived?

Mr Corker : You still have to complete the financial hardship form, which is a four-page form, and then that is further assessed by the court staff; and then a decision is made on whether or not there will be a fee exemption in place.

Mr Stewart : John, may I just ask: is that entirely discretionary, at the hands of the registry? Can they reject you?

Mr Corker : Yes, they can reject you.

Senator CROSSIN: Is that because, as a law firm, you may offer to take on a client pro bono because you are interested in the case rather than the fact that they cannot afford the court fees?

Mr Corker : I am not sure. In relation to why the system works that way, and what the historical position might be, my guess would be—and it is not more than that—pro bono has developed over a period of time and this is an opportunity, in a sense, to enshrine it a little bit more in the court rules and give it that similar exemption category, which would be an efficiency.

Senator CROSSIN: But am I right in feeling that not all pro bono cases are taken on on the basis that the client cannot afford representation? Are there instances where the client could afford representation but the firm has a particular interest in the subject matter and they do it pro bono for that reason?

Mr Corker : The only cases I can think of that may fall into that category—and, again, it depends on your definition of pro bono—are public interest cases. So there may be a town planning case, or a matter under the Administrative Decisions (Judicial Review) Act to perhaps challenge a government decision.

Senator CROSSIN: Sure. What about a workplace relations matter?

Mr Corker : In a workplace relations matter I would think that, almost exclusively, the client would be impecunious. I cannot think of a matter that would be taken on pro bono in that area where they would not be.

Mr Stewart : If I could just maybe add a little bit to try to assist you: in my experience it would be very rare for a firm to take on a job, for example, for someone who could pay but yet still be pro bono—but it is possible. It may be the case. I think I have heard about one in 20 years, where a firm in Melbourne took on a matter for reasons of self-promotion and did not charge, where they would otherwise have done so. But I think we can put that down to a very rare category.

Senator CROSSIN: Okay. I am assuming there are times when the courts decide there will be no exemption and people have to pay the fee, even though a firm may have somebody on a pro bono basis. Is that right?

Mr Stewart : Do you want to take that one, John?

Mr Corker : Sorry, could you repeat the question?

Senator CROSSIN: Are there times when the courts have assessed whether or not fees have to be paid, and they have come down with a decision that a fee does have to be paid, even though you may be representing someone on a pro bono basis?

Mr Corker : There is a case cited in our submission which is like that. It is the case of a refugee here on a temporary visa who has been working in a bakery and has managed to amass $4,000 in his bank account. He made an application to the court which has been refused on the basis that he has an asset and he could pay the fee. He has no other means of support in the Australian community, but through his own endeavour he has managed to amass that amount of money in his bank account. A law firm brought that refusal to the centre's attention on the basis they did not think that was particularly fair. That is an example of what you are talking about.

CHAIR: Are you aware of the potential fees in that case? What was the application fee or the fee being sought to be waived?

Mr Corker : It is a filing fee in a migration matter. I cannot put an exact dollar figure on it.

CHAIR: Perhaps you could take that on notice. I am interested in that figure in relation to the $4,000 in assets that the refugee had.

Mr Corker : Yes.

Senator CROSSIN: I know we have a Women's Legal Service representative as a witness later today in relation to their submission, but with your national perspective do you have any sense that women's access to justice is further impeded by the court fees and the amount that has to be paid, particularly if they are trying to pursue a matter they otherwise would not be able to pursue? In other words, if you collect data, do you have an over-representation of women who do not go to court because they cannot afford the fees?

Mr Corker : It is fair to say that women are recognised as a disadvantaged group within the legal assistance sector, and they have particular issues that give them that status. Almost by definition their access is more difficult in certain cases. If you take the divorce fee, which you were talking about, it is now $800 or reduced to $265 if you get the financial exemption. Again, it depends on who is filing for divorce—the man or the woman, the husband or the wife.

Senator CROSSIN: But you do not keep those statistics? I can ask that later but I wondered if you had a snapshot.

Mr Corker : No, I think from the National Pro Bono Resource Centre's point of view it is not an area where we have undertaken particular research in terms of women's use and their disadvantage.

Senator CROSSIN: What is your perception across the board about access to justice and the fees courts are charging? Do fees restrict certain types of clients? If so, who are they? Or does it force more people to look for legal aid assistance and pro bono work?

Mr Corker : It varies from court to court, from jurisdiction to jurisdiction. Within the Family Court there may well be real issues around this—that is my perception—but very little pro bono is done within the family law area because it is not an area of expertise for larger firms in any event, and the specialist family law practitioners are inundated with pro bono work. I am not able to comment, but I suspect that in that area it may well be providing greater barriers than it is in the Federal Court where things are taken on under the Migration Act or the Administrative Decisions (Judicial Review) Act. Usually the financial hardship application is granted by the registrar of the court or the court officer making that decision for those matters, so it has not been a barrier as such. But it is a clumsy process. My main point is there should be a pro bono legal exemption in the rules in the same way there is a legal aid exemption in the rules.

Senator CROSSIN: My earlier questions were trying to examine whether, if a committee such as this came up with that recommendation, it can be practically applied across the board and whether some firms take on a case just because they are interested in it rather than doing pro bono work because the person cannot afford it.

Mr Corker : There is a fairly rigorous assessment made. One way of dealing with that would be to have some sort of certification procedure. You could have the lawyer certified that they are acting pro bono at one level. You could have the pro bono clearing house certify that the matter is pro bono. There is a pro bono clearing house in each state and territory now and they conduct a fairly rigorous assessment. They do not take on matters lightly. The law firms themselves obviously have made the decision also.

Senator CROSSIN: You are saying there is an easier way of doing this; it could be a lot simpler, and if the boxes are ticked then the court should not have to assess whether fees should be paid.

Mr Corker : That is right. It would also be an acknowledgement by government of the importance of the pro bono legal sector. It would show that it recognises the contribution made by the legal profession in a more formal way.

Senator CROSSIN: That is probably a more important emphasis on the work.

CHAIR: Given that there is a growing acknowledgement of the importance of pro bono law, it has become a more formalised process although lawyers have provided professional services for needy litigants and this has always happened in the legal sector—and it should be encouraged—do you have any anecdotal evidence or any sense that this potential pressure for a firm to fund external disbursements to enable a case to proceed may be a disincentive for a firm to take on matters? You gave the example in your case study of the refugee for whom the firm paid the disbursement. Would there be some sense that there is moral pressure if a firm takes on the work and then discovers it cannot proceed because the person being funded does not have the means to pay for the court fees? Would that be a disincentive?

Mr Corker : That has been said to me a number of times, more by smaller firms than larger firms, because for them it presents a real barrier. They are willing to give freely of their professional time, but where money comes out of their pocket in a matter not based on recovering revenue then that presents a real barrier. Anecdotally it is coming more from smaller firms than larger firms, even though surveys show that only 25 per cent of firms are willing to pay external disbursements. The ones who do are the larger firms willing to pay that additional cost. In the scheme of things, in terms of the value of professional time put in, the quantum of the disbursement is tiny so they pay it and get on with the matter. But there is an underlying matter of principle or fairness involved. Pro bono is about free professional time and the disbursements associated with that, particularly where the client cannot afford it, we would say should form an exemption within the rules.

Senator HUMPHRIES: The argument you put about the inappropriateness of and problems that flow from cutting access to justice through increasing court fees are very well made. It is a sign of how chaotic and desperate our nation's budgeting has become that we end up having to look at these sorts of measures to balance the books. At the end of the day, I suppose an argument will be made that hard decisions need to be made in an environment where Australia is seriously in the red. Can you offer any insights into the situation we face where we need to make those sorts of decisions and how high we need to place access to justice in the scheme of things?

It is very odious to compare an issue like this with, for example, the level of Newstart payment, family support payment or baby bonus—all those sorts of things. How would you help us to frame the importance of access to justice in the scheme of the things that the Commonwealth government needs to spend taxpayers money on?

Mr Stewart : From a rule of law perspective, in a general sense, it is absolutely critical, and it has been since the Bill of Rights in 1687. It is a very important function of all democratic countries who have a developed legal system. Our legal system in Australia operates through three organisations: the parliament, the executive and, very importantly, the judiciary. If people cannot feel that their rights are being independently determined then there is a serious rule of law issue. That is for any reason, not just being able to access the court system. It is fundamental to our legal system, and has been since the Bill of Rights in 1687. It is not an exaggeration to say that the legal system we have is, to a large extent, responsible for the economic system we have. The two main groups, if I could put it this way, in society that believe in the rule of law are lawyers and economists, because they recognise that, if rights can be taken away from people without proper redress, the economy is going to suffer and people are not going to be willing to undertake the necessary investments. That is putting it quite highly, but I do mean that very sincerely. Is that what your question was looking for, Senator?

Senator HUMPHRIES: Yes it was, and that is a useful observation. Thank you.

Mr Corker : I repeat what Mr Stewart said, in that it is a fundamental tenet of the quality of our society in terms of access to justice. The rule of law is fundamental to the value of society. I am not sure that is broadly understood by the public or resonates that well with the public. We talk a lot about access to justice as a concept, but it tends to be a concept which has many meanings. It may, in a sense, help to look at it in the context of which groups of people need to access the court. If you think about it, if one of your relations needs to access the court or if you need access to justice, it has a much more personal meaning. We have seen disabled people helped through NDIS scheme. If you talk about those people's legal needs or if you talk about the legal needs of people with mental health problems—research has shown that they have multiple legal problems—you may start to get a broader message out about the importance of access to justice. If you put it in the context of a particular group, person or relationship, it tends to resonate a bit more as an argument.

The homeless persons legal clinics are a good example of an area where the private law firms have really embraced a group of people who have clear legal needs. Through partnerships with community agencies, they have developed a pretty good legal support system for a lot of homeless people. It does not necessarily keep them off the streets, but it is part of the solution to moving those people into better circumstances. I think if you can talk about access to justice in relation to a particular group who have need, it tends to resonate better.

CHAIR: Mr Corker, I think essentially underlying what you say in your submission is that a right that cannot be upheld is not really a right at all, or is not worth much. You are suggesting that perhaps a percentage of revenue that is raised through court fees and so on could be tied or directed to legal assistance funding to ensure that people who do not have other means to assert their rights or obtain legal information can do that. Would you like to expand on how you think that might work?

Mr Corker : I am not an expert in how the fees are distributed. I just noted, from looking at the annual reports of the courts, that the revenue raised through court fees does go back into general revenue and that if additional revenue is being raised through the increased court fees then, having regard to the need, it would seem appropriate that some of that—and it is now, of course—is put back into the legal assistance sector. I suppose I was just raising it as a matter for this committee in terms of some more formal way of making that relationship between the revenue raised and the payments back into the legal assistance sector. If the executive are setting the fees, as the point was made before, then the system may work better if it is clear that a certain percentage of that goes back into the legal assistance sector as such. The judiciary perhaps are more comfortable with that—it is clear model where fees are being raised and are being put to a certain use. Underlying this is a user-pays model: 'for those that can afford' seems to be the principle that the Commonwealth is pursuing.

CHAIR: Mr Stewart, submitters have been critical of the fact that the government has decided to retain a significant proportion of the increased revenue from the 2013 court fee increases to consolidated revenue. What is your view about that and how do you think revenue from court fees should be used? Are there any particular initiatives that should be applied? We have heard from Mr Corker with his suggestion that perhaps there could be some kind of formula where there is a percentage from revenue raised from court fees that could go to the legal assistance sector. Would you like to comment on that?

Mr Stewart : Yes. I think that is a good idea. These fees go back into consolidated revenue. I have seen the budget papers and found them quite difficult. I was not sure that they were as transparent as they could have been as to where money is going. Maybe I am not expert enough in accounts to properly understand that, but I certainly think that a percentage of the fees coming back to help those who are more needy to access the legal system is an excellent idea.

CHAIR: And what is your view about the Attorney-General's Department's submission where it states one of the effects of court fees is to send price signals to litigants, as well as reflecting the cost of services. That is what they say. What do you think about that? Is it reasonable to do that?

Mr Stewart : I do not think so. The pricing is not just the filing fees. In the Federal Court—and elsewhere too: in the Family Court, where I am a little bit familiar—the fees go on. If you need to bring interlocutory applications during the course of proceedings, they cost something. Then we go into daily fees as well. I did read that section of the submission and I did not grab an instant understanding of it. I am not sure what the point of sending a price signal is. Yes, it is expensive. Once you engage a lawyer these days it tends to be expensive. I can say of the court systems that I have encountered, and very much all round on the federal level with the AAT as well, that they are run extremely efficiently. I do not think there are any more savings to be made there in the way court cases are managed. Alternative dispute resolution and the like—I do not think there are any more savings to be made there. That has been undertaken by the courts over the last 20 years and, I must say, very, very well. I just make that observation, too.

CHAIR: When I hear the word 'pricing' I tend to think of a market.

Mr Stewart : Yes.

CHAIR: And are the courts a market? The argument has been put in quite a lot of submissions that it is actually a monopoly. There is not much alternative, is there?

Mr Stewart : No. It is not a monopoly, and if it was a monopoly then in the private enterprise field we would have the ACCC looking at it carefully. That is why I am very keen to ensure, in what your committee is doing, that parliament gets to see this. It is not easy, but a lot of issues have to be taken into account, particularly the ones that John is referring to and that the committee is most concerned about—that is, that everyone have access to justice, particularly those on low incomes. That is something that, from a rule of law perspective, is very important.

CHAIR: Mr Corker, you are certainly welcome to comment on this. But looking at the argument on behalf of the department, in terms of the pricing signal, apparently one of the purposes is to direct litigants towards less costly forms of dispute resolution—and I imagine that that means less costly for the government, as well as perhaps less costly for the litigants but of course that is a choice that they could make for themselves if that were important to them—also to deter unmeritorious litigants, which may or may not be laudable aims. What would you say about that?

Mr Stewart : John, I am happy to comment on that but, by all means, if you wish to go first.

Mr Corker : No, you continue.

Mr Stewart : The notion of an independent judiciary is absolutely critical for the reason that community needs to be satisfied—not just themselves if they get in trouble but others throughout the community—that they are having their dispute resolved by someone who has looked at it independently and who is experienced as a judge.

Forms of alternative dispute resolution are important but, in some circumstances, that can be abused or not work properly. I do not want to get involved too much on another topic or at least a bugbear of mine. But if people are forced into mediation, sometimes that does not work because the reason people go to court—and, let me tell you, they do not do it lightly, with the costs involved—is that they have tried negotiating and it did not work. I have come across situations where people have been forced into mediation and the person on the other side is a bully. They feel that they have to get it resolved and the mediation has not worked for them. That is not happening all the time and, generally speaking, mediation does work. But to force people into other spheres is just the complete opposite of what we want to do, of having somebody independent look at it. Yes, it can be as a last resort, but if people want to go down that route then they should be entitled to do it and not be forced into other areas because of cost reasons. I am in opposition to the submission that you are referring to.

Mr Corker : I would just make one observation. We did some research about pro bono and ADR about 18 months ago. One area where we found that it was actually being used was in complex litigation where a person had been self-represented and the matter had therefore become incredibly complex and so, when it came to setting it down for hearing, it was found that ADR was actually being used because it was almost the only way that the litigant was going to resolve the matter. The alternative was for them to be on their feet for days, self-represented in court, which was in no-one's best interests at all. I think that, from the clients we have seen and through that research, it is not so much costs that are the barrier or are having an influence about whether people go down the ADR route or whether they go to litigation; I think a lot of them have tried ADR or thought about ADR or their lawyer has taken them down that path in the first instance. So, in a sense, litigation is already a last resort.

CHAIR: I might just follow up with one last question. In some cases there are certainly unmeritorious litigants or vexatious litigants and so on. Can I just get a brief comment from either of you about using price, using cost to deter unmeritorious litigants. Would it be preferable to have some alternative way of creating a barrier and is it possible? It probably is not possible to answer that quickly. You could always take it on notice, if you want to.

Mr Stewart : I am happy to take it on notice. I am not sure that that is going to work in the sense that unmeritorious litigants are going to factor all that in. I do not think price is going to keep them away. I think there might be other expenses and the like. I am not sure that that is necessarily a valid argument. I cannot see that stopping some of the litigants I have seen. That is my reaction to the submission.

CHAIR: I suppose the corollary of that is you have indicated you think costs may deter meritorious litigants.

Mr Stewart : That is the real problem.

CHAIR: Mr Corker?

Mr Corker : I am not sure I have much to add on that.

CHAIR: Thank you very much, both of you, for your attendance today.