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Legislative Assembly for the ACT: 1997 Week 9 Hansard (4 September) . . Page.. 2875 ..

MR HUMPHRIES (continuing):

There are disadvantages which would flow if the small claims jurisdiction were to be provided for in tribunal proceedings. These include the consequences of small claims proceedings being conducted in an administrative tribunal as opposed to the judicial forum of a court. One such consequence relates to actions under Commonwealth law. Certain Federal jurisdiction is vested in a court of a State or Territory. Actions in those jurisdictions could not be pursued in a tribunal. Further, a decision given in an action taken under the trade practices legislation or the Corporations Law in a separate small claims tribunal would be unenforceable unless the decision was then registered in the Magistrates Court. I have been lobbied by members of the trade union movement in Canberra on the question of the jurisdiction of the lower courts in the Territory with respect to industrial matters.

It could be argued that a tribunal offers greater accessibility than a court. However, accessibility really depends more on the clarity, simplicity and lack of formality and legal technicality in the practices and procedures of a forum than on its formal structure. In New South Wales, small claims are dealt with within the court legislation, and this works well. The court has a good public recognition as the Small Claims Court. If their dispute has been given the attention of a court, litigants are more likely to be satisfied that they have had their day in court rather than having been accorded a perceived lower level of justice in a tribunal.

On balance, the Government decided that it is preferable that the small claims jurisdiction has the powers and procedural incidents of the court, but with less formal procedures. Rather than having separate, stand-alone legislation for small claims matters, as at present, the Bill inserts a new Part XXII into the Magistrates Court (Civil Jurisdiction) Act. This approach provides for the Small Claims Court within the legislative framework of the civil jurisdiction of the Magistrates Court. Procedures in the Small Claims Court which give that court its particular accessibility, such as that legal representation not be necessary, that no costs relating to such representation be awarded and that the usual evidentiary rules are not to apply, are provided for in the new Part.

Providing for the Small Claims Court in the civil jurisdiction Act will enable the small claims and general civil jurisdiction provisions to be more easily shared, where appropriate. For example, procedures relating to the payment into court of a bond, interpleader proceedings, the enforcement of judgments, fees and applications for transcripts will be in line and accessible in the one Act. An advantage of the integration of the legislation is that it is more likely to allow the cross-fertilisation of the less formal procedures of the Small Claims Court between the general civil and small claims jurisdictions.

In addition to the jurisdiction to inquire into disputes and actions where the amount involved does not exceed $5,000, the Bill gives the Small Claims Court jurisdiction to inquire into and determine disputes in relation to dividing fences and party walls under the Common Boundaries Act 1981 and rental bond disputes arising under the Landlord and Tenant Act 1949. Disputes about dividing fences and rental bonds are usually about amounts less than $5,000, do not involve complex legal argument and are generally between self-represented parties. They are the sorts of things that should be heard under the informal and inexpensive small claims proceedings.

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