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Legislative Assembly for the ACT: 1997 Week 12 Hansard (13 November) . . Page.. 4206 ..

MR HUMPHRIES (continuing):

If a person has to operate in a court where no costs are awarded, when generally they have been successful in their cases and they have had their costs paid by the unsuccessful party they have taken to court, then you impose a significant cost on their business. Unfortunately, Mr Moore is not listening. I am making a quite important pitch for this - - -

Mr Moore: You have my full attention.

MR HUMPHRIES: Good. I am making the point that doing away with the capacity to order costs in all cases is not necessarily a just solution to a problem. If people need to be able to access the courts on a regular basis, as a small business often does, but are not able to recover costs when they are successful in the court or, alternatively, if they are sued from time to time for a variety of reasons and they are not able to recover the costs of defending those actions successfully in the court, then the costs to them or their businesses can become quite prohibitive.

If an individual sued by somebody else in the community does not feel confident about standing before a court and arguing their case, notwithstanding the lack of rules of evidence, it is an injustice to force that person to engage a legal representative because of the nature of their position but then not to allow them to recover the cost of doing so. In some cases that will lead to people discontinuing legal action, settling a matter on terms most unfavourable to them, not proceeding with the recovery of money owed to them, or whatever it might be, because they cannot afford to operate in a court without costs. I think members are sometimes under the misapprehension that if no costs are awarded it must be a good thing. That does not necessarily follow.

I want to conclude by noting the limits of courts in other jurisdictions. I think that many other jurisdictions have appreciated the point and have quite low limits for their Small Claims Court. In the Northern Territory the limit is $5,000, in Queensland it is $5,000, in South Australia it is $5,000, in Tasmania it is only $2,000, in Victoria it is $5,000, and in Western Australia it is less than $6,000. It is true that the New South Wales Consumer Claims Tribunal has jurisdiction up to $25,000; but a much narrower range of actions can be brought in that court and, as a result, it is not strictly comparable with the other jurisdictions. Also claims in that jurisdiction are heard by a referee rather than by a magistrate.

I would say to members that there is danger in moving these amendments tonight. This is an extremely large change to the Bill before the house. It might not appear to be much, but it is actually a very big change. There has been no consultation on this change. I have no doubt that the Law Society, the Bar Association and organisations out in the community responsible for dealing in the courts would be interested in expressing a view about the operation of the legislation. I realise that lawyers who argue in this matter may well have a vested interest that they will be arguing for. You might not want to hear what they have to say, but the fact is that they will have a case to put. There will be others who will have the same point of view. This Bill has been carefully canvassed with a large range of stakeholders, and I am concerned about coming forward tonight and throwing all that out the window and saying that we have decided at the last minute to bring forward amendments to double the jurisdiction of the court. I believe it is dangerous, and I urge members to be a bit cautious about doing this.

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