Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3299 ..

MR STEFANIAK (continuing):

a modern form of the old imperial law that ameliorated the strict liability placed on innkeepers and common carriers by the common law.

Chapter 8 provides a new statutory formulation of existing law concerning occupiers' liability. That codifies the rules in the High Court case of Zaluzna in the early 1990s involving a slip in a supermarket. The government says it has done that for clarity. I note that the Law Society does not particularly like that. I also note that it does not regard it as being terribly important in the greater scheme of things.

There are a number of controversial aspects to this bill, particularly in relation to costs. I will deal with some of those now. The Law Society has some concerns about part 10.1. They are concerned that the government is not allowing them to contract out of arrangements, as can occur in New South Wales. Much of this bill is similar to New South Wales legislation, but in that respect it is not. The government says that the Law Society indicated they do that every time. There is a point of contention there. We will see how that part of the bill operates.

Barristers' fees are another contentious issue. Ms Tucker has an amendment. I will be interested to hear what she says in relation to that. The opposition is very keen to see whether she has a point. The profession is concerned about that. They say barristers' fees should not be included in costs but should be a disbursement. The government says that they are part of total legal costs.

I am pleased to see the government has taken note of the profession's concerns about $100,000 as the limit and dropped it to $50,000. That is sensible, because that applies in other jurisdictions. The $100,000 was picked because New South Wales, the first jurisdiction off the mark, went that route. Other jurisdictions, however, have limited it to $50,000. That is particularly applicable figure in the ACT, because that is the limit for a claim in the Magistrates Court. It makes eminent sense to make that change, and the opposition is very supportive of that. I understand the profession is quite happy with that. That is a good amendment the government will be moving when we get to the detail stage.

Part 10.2 deals with reasonable prospects of success. This is something the profession is very concerned about. There has been a tradition in the legal system in Australia, going back to the United Kingdom-it used to apply in the United States-that a person is entitled to their day in court. If they want to take an action, even if it is not a very smart action to take, they are entitled to have their day in court. They will suffer the consequences if their action does not have legs. The bill winds that back, although probably not quite as much as some people in the profession might fear. The government would say that civil law reform is going this way, that US courts already do it and that all the Law Society wants to do is keep the bad old ways.

The "reasonable prospects of success" test will not apply at any stage before a matter is ready to be set down for hearing. In a civil case, a hell of a lot of work happens before then. Having been involved in a few myself, I know that most of the work does. Quite often when you are ready to set a matter down for hearing, it is about time to start talking turkey and settle. At least that is excluded. That takes out a significant chunk of the time in most civil cases.

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .