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Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3354 ..

MS TUCKER (continuing):

The requirement in this bill to certify that the case has a reasonable prospect of success is really directed at the plaintiff lawyers in the 10 to 15 per cent of insurance compensation cases that go to court. As it happens, something like 90 per cent of these cases are successful once they get to court anyway, so clearly they had a reasonable prospect of success.

Issuing a reasonable chance of success certificate would simply end up as an additional cost to the plaintiff. Furthermore, of course, a large percentage of these cases are run on a no-win, no-fee basis. This is an arrangement where, if the lawyers lose the case, they do not get paid. Perhaps the government was not aware of this? I am sure they were.

In the case of pre-emptive defamation actions, where the balance of power is reversed, the ACT's new Defamation Act shifts the focus away from possible punitive damages and towards redress in any event. Furthermore, the power is available to the judges to make orders in regard to costs if it is clear that one party is pursuing an unwinnable case for no good purpose. Perhaps we should expand that power, and allow the courts to charge large corporations and their legal teams the whole cost of running the courts over unnecessary days if they were pursuing a case beyond reason, or simply trying to outwait the poorer party. I notice that this bill does not do that.

I understand that this proposal requires lawyers to issue the certificate later in the process than the New South Wales proposition. However, if we are talking about a fair operation of the law, and the rights of the individuals before it, there is no comparison worth making with New South Wales. Bob Carr has rather enthusiastically embraced "a blame the victim and blame the lawyer" mentality-let's not go there.

Until now, no jurisdiction in Australia has found it necessary to introduce such a provision. If the government wanted to make the case that we do need to go this way, it ought to hold off until its third stage of reform, later this year, which is specifically about making the processes of court more efficient, and actually incorporate the judges and the lawyers in a negotiated solution.

However, the point about using the certificate, even late in the process, is that the law is not just about winning. Many important cases would not have proceeded if the lawyer was potentially liable to pay all court costs merely because the court may find there was no reasonable chance of success. The issue here is those first steps in initiating actions that may have long-term implications, such as the snail in the bottle case, arguably such as the Mabo or Wik cases, such as defending the McDonald's libel suit, and so on.

While it would be open to court to find that there are overriding interests of justice, the Greens do not accept that community access to the law should be limited so tightly by the judiciary. You would be hard put to find a legal firm prepared to bet on the outcome of cases such as the ones I have mentioned. I asked Tamar Hopkins from Welfare Rights to provide me with a community legal centre perspective on this provision in the act. After consulting with others in her field, she offered these comments:

We believe that this development will have a major impact on the capacity of individuals to bring negligence actions. There are few lawyers who will take the personal risk that a decision maker will determine a case with small chances of

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