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

Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3349 ..

MS TUCKER (continuing):

a case. We should remember that claims of less than $50,000 usually do not even include loss of income. In other words, they are likely to be for children, pensioners and people out of the workforce.

While the notion is to maximise that part of the payout that goes to the plaintiff rather than their lawyer, in fact it will limit their opportunities to argue or establish the case. It is true that you can make an argument that the case is complex when you are in court and maybe have that argument accepted, but you have to do most of the work simply in order to get to court. Furthermore, this provision will not discourage unreasonable claims, as very few cases get to court if they are undeserving. Of course, even most of the deserving ones, say 80 per cent, are settled even prior to the briefing of counsel and the setting of a court date.

For these small-scale cases, the engagement of a barrister at the end of the process, when arguably the defendant may have chosen to settle at any time up until then, is quite a high proportion of this very limited budget. This amendment would allow solicitors to engage a barrister to plead the case outside of this fairly tight cap. In the majority of cases it would be $2,000 or less. In terms of the cost to the system, the total cost of payouts, the cost of running the court, it is not a lot of money. In terms of representing the plaintiff fairly, it would make a significant difference.

Rather than capping costs on the presumption that lawyers simply charge too much, perhaps we should do the research, find the facts, and put together a provable case. Given that we are prepared to ask insurance companies for the details of their business, rather than simply capping their premiums, why don't we ask the Law Society to provide that same information on plaintiff lawyers? In the meantime, given, I stress again, the extreme lack of evidence that problems around insurance and compensation are a result of lawyers charging too much for cases of this ilk, that is, poor people with moderate injuries, a little extra flexibility seems only fair and equitable.

MR STANHOPE (Chief Minister, Attorney-General, Minister for Health, Minister for Community Affairs and Minister for Women) (5.03): Mr Deputy Speaker, this is a difficult and testing issue. I must say that I do not think I have ever been quite as insulted as I was by the suggestion that I was providing a sop to lawyer bashers-a most cutting insult!

I, along with other members of the Assembly, have received some quite vigorous representations in relation to this provision. The government's intention was to seek to keep down costs in such matters, to impose a real cost discipline in relation to small insurance matters and claims. Initially, we identified a small claim as being a claim under $100,000. As members are aware, I have circulated an amendment to reduce that to $50,000, so we are looking at a circumstance in which we are talking about lawyers' fees or solicitors' fees of $10,000 on a $50,000 claim.

The argument propounded in relation to barristers is that their fees be regarded as disbursements and not fall within the $10,000. Indeed, it was not intended that they exceed that. But it was the government's view, and the legislation reflects it, that if a matter were sufficiently complex to require counsel, then the court could make a cost order under the provisions permitting costs in excess of the $10,000 provision.

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