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Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3357 ..

MS DUNDAS (continuing):

The landmark cases in Australian law, such as Mabo, the stolen generation cases, and those concerning asbestos, silicone breast implants or tobacco companies, all have risky origins. Few lawyers would take these cases on if they had to issue certificates saying they had reasonable prospects of success.

We only need to look at the cases running at the moment regarding refugees to see why we need to maintain the status quo in this instance. In fact, the great leaps of common law have always been based on only a small chance of success. Common law has evolved over the years, and some of these tests cases have pushed this evolution forward. In fact, where would our law text books be without these cases that did not necessarily have a reasonable prospect of success?

We would be throwing out the baby with the bathwater if, in trying to cut down on frivolous or vexatious cases, we also stopped some of the great landmark cases of common law, which allow the common law to evolve and reflect the view of the judiciary and the community.

MR STEFANIAK (5.31): The opposition certainly has some sympathy with what the government is trying to do in part 10.2, and I will address my remarks to that, as I understand Ms Tucker's aim is to defeat not just 119, but all of 10.2.

There is certainly considerable strength in Ms Tucker's arguments. I would be interested in empirical evidence about spurious cases that are brought with no real prospects of success. Ms Tucker quoted a statistic that 90 per cent of cases that actually go to court end up with a verdict for the plaintiff. Of course, you also hear of certain courts being more plaintiff oriented or defendant oriented, and there might be something in that as well.

Regarding absolutely spurious claims that actually get to court, I would like to see some evidence of those. If this is defeated now, I note that the government intends to bring it again. I do not know if it is in part three, but certainly I think some evidence would be of great assistance to the Assembly.

There are some fundamental problems in relation to this matter. I think this is a big step. I also note that, in the government's favour, New South Wales has actually introduced this. I for one am very keen to see the ACT, wherever practical, follow New South Wales. Indeed, they follow us if we come up with some good ideas. I was delighted to see that they amended their Bail Act to reflect some of the excellent provisions that were put into ours last year. New South Wales certainly have provisions such as this, in fact that state has what is probably a more draconian piece of legislation than 10.2 in place already.

Reform of the law is terribly important. While there is provision here for a Donoghue v Stevenson-type situation, which a deputy registrar would assess, Ms Tucker and her assistants argue that, if the deputy registrar did not give such a case a run, why should that person not be entitled to have their day in court? It is very much a fundamental right that people have had for decades, if not centuries, in our legal system. Whichever way you look at it, 10.2 does restrict the ability of a citizen to go to court. I think Ms Tucker does raise a very valid point there.

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