Queensland: Litigious one day, not so much the next?

Yesterday, the Queensland State Government announced a raft of new and increased court fees which will take effect as and from tomorrow, September 1 2011. Comments by the Attorney General in today's Courier Mail suggest that the increases are aimed mainly at big businesses which are "prepared to pay big money for their legal representation or commercial mediations".

Whether or not any litigant is "prepared to pay big money" to resolve disputes is debatable. It is sometimes the case that disputes are simply not capable of resolution outside of the court process. For example, many financial institutions find themselves defending unmeritorious claims or having to contend with unrepresented litigants who are driven more by emotion than a rigorous analysis of their legal rights and entitlements.

Equally, insolvency practitioners and commercial clients are often forced to issue proceedings urgently with a view to protecting assets or evidence from removal from the jurisdiction or from outright destruction.

Accordingly, in our view, it is to misapprehend the rights and obligations of financial institutions, insolvency practitioners and commercial enterprises to imply that litigation is a "choice". Somewhat alarmingly for insolvency practitioners, the relevant Schedule of Fees provides that a "liquidator, receiver, administrator or other person acting for, or on behalf of, a corporation in a proceeding must pay the fee payable by a corporation." Those fees are, in some instances, almost three times the fee payable by individuals.

Whatever view one takes of these initiatives, one thing appears certain: the raft of new fees are likely to further tip the scales in favour of alternative dispute resolution as the most preferable manner in which to decide commercial disputes in Queensland. Some of the new fees, for example, apply when setting down matters for trial and when seeking a venue for the hearing of a dispute.