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Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3351 ..

MR STEFANIAK (continuing):

The amendment is well drafted and I think that it is reasonable that those fees be included as disbursements. I think that applies in some places interstate which have been trying to come to grips with this problem as well. We are very happy to support the amendment.

MS DUNDAS (5.10): I, too, have been lobbied long and hard on this issue. After discussion and much consideration, I do not think that it is inappropriate to cap legal fees in the manner of the original bill. The bill, as it stands, sets the legal fees for small claims of no less than $50,000 at $10,000. To add barristers' costs on top of that, with absolutely no cap on their fees, could mean that some small claims could be taken up entirely by legal fees. If the award were for the small amount of $15,000 in damages, the legal fees could take all of it. I believe that, even though this amendment is carefully worded, it sets up a situation for a false cap of $10,000 to solicitors, plus unspecified barristers' fees. The argument put forward is that some of these cases are quite complex. Yes, some of them are, but that is why I will be supporting later the government's proposal on the ability of the court to award extra costs and fees, if required.

Amendment agreed to.

Clause 113, as amended, agreed to.

Clause 114.

MR STANHOPE (Chief Minister, Attorney-General, Minister for Health, Minister for Community Affairs and Minister for Women) (5.11): Mr Speaker, I seek leave to move together amendments Nos 4 and 5 circulated in my name.

Leave granted.

MR STANHOPE: I move amendments Nos 4 and 5 circulated in my name [see schedule 4 at page 3372].

The bill provides that if the amount recovered on a claim for personal injury damages does not exceed $100,000, the maximum costs recoverable for legal services provided to the plaintiff or defendant would be 20 per cent of the amount recovered or claimed, or $10,000. As we have just discussed in relation to the previous amendment, the government received a number of representations in relation to these provisions around legal fees. It was argued that the government should amend the provision to allow contracting out, but if this was done, the benefit of the provision would be lost as contracting out would become the norm; that the definition of "costs" should not include barristers' fees, an issue we have just debated and voted on; and that the trigger should be reduced from $100,000 to $50,000.

Having regard to those submissions, the government has agreed to reduce the trigger from $100,000 to $50,000 in these amendments. The reason for the reduction is that the intention of the government in presenting the bill was to impose a cost discipline in relation to small claims. The bill does not prevent a solicitor from claiming a reasonable return from acting for a client. It requires them to justify the costs when they reach

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