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Legislative Assembly for the ACT: 1997 Week 12 Hansard (13 November) . . Page.. 4205 ..

MR HUMPHRIES (Attorney-General) (9.12): I have to indicate my opposition to these amendments. It may appear to members of this place that widening the jurisdiction of the Small Claims Court in an informal jurisdiction where the rules of evidence are not applied and where representation is sometimes considered not to be necessary is an advance. In fact, some would probably wonder why we should not make all courts operate like the Small Claims Court. For some cases, that is a good question to ask. It is important to bear in mind that there is a drawback in operating in the small claims jurisdiction, and that is that the jurisdiction does not offer any opportunity for the payment of costs. People, members of this place included, might say that costs are a part of the legal process which can be a great disincentive to proceed with legal proceedings or to be involved in the court at all and that costs are a bad thing and should be excluded. That is not necessarily the case. In fact, it often is not the case.

Costs are a means whereby justice can be enhanced and better delivered. Say person A sues person B. If person A's action is without merit and is dismissed by the court and person B has incurred some costs in defending the action, in most other jurisdictions within the ACT there is the capacity for person B to have an order of costs made in their favour. Some see the threat of costs as being a bad thing, and sometimes it is. The costs, you must remember, are generally an instrument for justice. They are a means of redressing an injustice or a cost incurred by a litigant because of the activity or actions of another litigant in particular proceedings. We should not assume that to remove access to costs is just.

I will give you the practical example of a small business that deals, as small businesses often do, with a large number of clients. Say it supplies machinery or tanks or something of that kind. Obviously, in dealing with a large number of clients, from time to time this business may find that its clients do not pay for the services or goods supplied to them. When that happens, the business has to organise to recover the money. Very often that means taking particular parties to court. If a business operates a number of accounts and in any given year a number of accounts need to be pursued through action in the court, then the business will be in court fairly regularly to recover money that is owed to it. If they are only operating in a jurisdiction where they cannot obtain costs, then the costs imposed on that business are very much greater.

A business person may not be in a position to represent himself or herself in the court every time they need to take a matter to the court. There are a variety of reasons why they might need to be represented in the court. They may be busy in their business and not be able to attend the court for all the procedural hearings and other matters that accompany a matter before the court. They may not feel confident to argue a case before a court where legal principles are at stake. Do not forget that the Small Claims Court operates without the rules of evidence necessarily applying, but it certainly does not operate without the rules of law applying. You have to understand what the law is to be able to make your case. Many citizens in this community need to be able to access a lawyer and to have a lawyer represent them in a court to be able to make those cases.

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