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Legislative Assembly for the ACT: 1996 Week 10 Hansard (3 September) . . Page.. 2932 ..

MR HUMPHRIES (continuing):

To insert the name of only one of the two sides of that relationship into the name of the court does send the signal that this is the court for consumers, the court that deals with the consumers' interest, not about the interests of the other side of the equation. Quite often, Mr Speaker, in fact, possibly more often, there will be actions brought in the court to recover money from consumers who have not paid for a good or a service that has been received. I think it is most unfortunate to send a signal that somehow we are favouring one or other side of this equation. I think some kind of name that would encapsulate the notion of low-level disputes or disputes concerning marketplace transactions would be fine. If there were a phrase that members here could find that would capture the spirit of that idea, I would be very happy to entertain it; but to take a name which effectively says, "We favour one particular party" is not a good step to take.

Ms Follett: No; we include one particular party. We include them.

MR HUMPHRIES: By calling it the Small Claims Tribunal we do not. Well, we could. We could say the Consumer, Small Business and Small Claims Tribunal. We could do that, I suppose. It is a bit of a mouthful. I think it is wrong to take one side, one party, and to exclude the other.

Mr Speaker, let me touch also on the question raised by Ms Horodny which she proposes as an improvement - the idea of mandating, in effect, that all actions under $2,000 must commence in a small claims tribunal. There is some superficial attraction in that argument and that is an issue that has been debated in the past. I think the problem with that proposal is that, first of all, there is already a power there for a party to require that actions within the jurisdiction of the Small Claims Court be dealt with by the Small Claims Court. If I am sued by my next-door neighbour for a sum of money and I do not particularly wish to retain a lawyer to appear for me in the Magistrates Court, it is entirely at my discretion to have the matter referred to and dealt with by the Small Claims Court, or, under the new arrangements, the Small Claims Tribunal. So there was no danger at all that any person would be forced to have a matter in the Magistrates Court when they would prefer to have it heard in the Small Claims Court.

The reason that it is important that we preserve the capacity to commence an action in the Magistrates Court is that a very large proportion of the actions commenced in our courts are proceeded with without an appearance by or response by the defendant in the proceedings. In the instance of default judgment, which is a very common occurrence in our courts, it is important for the plaintiff, be he or she a consumer or a small business or anybody else, to be able to recover the costs of being able to go through the process of recovering a debt or some other money that is owed to that person.

I think it is most important, Mr Speaker, that we not effectively force somebody to incur a cost which they might otherwise not have to incur, in fact thereby making justice less accessible by forcing them to start in a court when there may not be an appearance by the other party and they may not be able to recover the cost of having to initiate that action in the first place. It is a matter that there will be some debate about, but I would urge members to consider whether it is in the interests of justice to allow people to be able to recover costs where there is no attempt by a defendant to defend proceedings. That would be most unfair, in my view.

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