As the Uniform Civil Procedure (Fees and Other Legislation) Amendment Regulation (No 1) 2011 commences in Queensland, a local barrister, David Topp, says the introduction of fees is a retrograde step
To say that this regulation will have a substantial impact upon the ability of ordinary persons and businesses to vindicate their rights in courts of law is an understatement. The regulation increases both extant filing fees levied by the Supreme and District Courts of Queensland and further introduces new fees.
While the increase in the Supreme and District Court filing fees of themselves are modest, it is the introduction of a new suite of setting down fees that will apply as matters progress towards trial that will be firmly felt by litigants without deep pockets. Setting down fees have been introduced: $2500 plus $1000 per extra [2-4] day for corporate plaintiffs and $1250 plus $500 per extra [2-4] day for non corporate plaintiffs, is the new regime for Supreme Court trials. Counterpart fees for District Court trials are slightly lesser. For proceedings under the Corporations Act 2001 or Admiralty Act 1988, these fees lift even further: $3569 plus $1428 per extra [2-4] day for corporate plaintiffs and $1786 plus $712 per extra [2-4] day for non corporate plaintiffs. Issuing subpoenae, which was a free of charge process, now costs $73 per subpoena. Finally counterclaiming defendants now need to pay identical filing fees to those that their Plaintiffs pay; previously no fees were payable for counterclaims.
Whilst in some ways the ‘sting’ of these fees has been ameliorated by the November 2010 tripling of the former jurisdictional limit for claims in the Magistrates Court of Queensland (from $50,000 to $150,000), thereby moving many cases to a less costly forum, $150,001, the new District Court lower jurisdictional limit, is still not a huge amount of money to embark upon the cost, time and stress of contested litigation for. Factoring in these new setting down fees is something that District Court trial Plaintiffs will now have to do. Thereby increasing the distress to them that pending trial litigation obviously causes.
Clever Defendants will be alive to this possibility; far from increasing their incentive to settle, the psychological impact of litigation has ever so subtly shifted against Plaintiffs.
Some lawyers acting for Plaintiffs will, not unreasonably, feel more compelled than before to chase debts using the statutory demand procedure under the Corporations Act. After all statutory demands have no filing or setting down fees. However the words ‘statutory’ and ‘demand’ have always invoked fear in your present writer’s mind due to the very low threshold that debtors need to meet to argue ‘genuine dispute’ in order to have statutory demands set aside. My standard advice is that unless you have a judgment, never issue a statutory demand; the risk of having them set aside, and consequentially bearing an adverse costs order that in some cases can exhaust the amount of the initial debt, is more often than not too high. They often prove to be the ultimate false economy. However increasing filing fees has a necessary concomitant of seeing financially distressed creditor entities forced into using them more, not less.
The Bar Association of Qld emailed its members on Tuesday 30 August 2011 with a copy of its president’s letter to the Queensland Attorney General objecting to not only the introduction of the regulation but the lack of consultation with the profession about it.
As indeed it should have. The regulation will make accessing justice for creditor entities harder and give more get out of jail free cards to debtors.
1 September 2011 did not prove to be the finest hour for creditor justice in Queensland.
David Topp is a Brisbane barrister with a substantial debt recovery and insolvency practice interest
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