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

Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3337 ..

MR SMYTH (continuing):

subjected to a tedious and patronising lecture by the officers of Mr Stanhope's department some time after the bill was tabled.

While I have been assured that medical indemnity will be addressed in the second round of government legislation, I fear that that will be too late, as the earliest the second round can be passed will be in late November. Dr Kerryn Phelps, the national president of the AMA, has warned that if there is not a substantial solution by October "we'll all be in big trouble; there will be chaos". We know the insurance coverage of groups such as the equestrian industry will start to run out in October, so anything that happens after that date will be too late for them.

To my mind, to concentrate purely on tort reform is to miss the point. A personal injury litigation system is sustainable only if it is brought within a regulatory framework. The only sustainable personal injury systems in the country are the ACT motor vehicle third party scheme and the workers compensation scheme. The Liberal Party believes that the only real solution is to move to a no-fault scheme similar to the CTP and workers compensation schemes. However, we do not believe that all rights to common law should be extinguished. Tort reform does have its place, in our view. That is another reason that we are supporting this bill.

A few weeks ago, I met with a group of lawyers representing the ACT Bar Association, the ACT Law Society and the Plaintiff Lawyers Association, mainly to discuss my reform package, of which they broadly approved. However, they had concerns with the bill that we are discussing now. The main concern of these law bodies was the perceived restriction of trade imposed by chapter 10, which limits the amount of money a lawyer may be paid in cases worth $100,000 or less. Their concern was that this restriction would inhibit a lawyer's ability to properly prepare for a case. I might add that the Liberal Party does not feel that it is the best role of government to interfere in commercial contractual arrangements in this way.

It is also my reading of this bill that a barrister's fees could be counted as a disbursement rather than a lawyer's fees. In the ACT, despite the ability of a person to be both a barrister and a solicitor, the two are in practice as separate as in other jurisdictions. The engagement of counsel is a contract between the solicitor and the barrister, not the client and the barrister, and is classed as a disbursement. While I have received advice from officers of the Department of Justice and Community Safety that the wording of this chapter allows for that, I remain unconvinced, so we shall have to wait and see. However, given the current situation, I believe that this clause may have a deterrent value for vexatious claimants and legal practitioners.

Another concern I have is with part 2.2, which, while offering some protection to community groups, seems to me to leave the door open to plaintiffs to sue the government. As I have been advised, a litigant will often go after the best area of the loss distribution network in a case involving several defendants. In layman's terms, they go after the one with the deepest pockets. To my mind, this part places the ACT government as the prime point in the loss distribution network and may well place a heavy burden on the ratepayers of the ACT in years to come.

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