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Legislative Assembly for the ACT: 2003 Week 8 Hansard (19 August) . . Page.. 2865 ..

MR STEFANIAK (continuing):

down to three years for adults, down from six. In the case of children, with the amendments, it will be a maximum of 12 years.

I like the way in which you can get around the incompetent parent syndrome. It does happen that some parents, for whatever reason, are not necessarily going to do the right thing by their children and lodge a claim when they should; but, if the potential defendant knows that there is a problem, they can actually force the issue. I think that is quite a good way of going about it.

The reasonable chance of success provision was a very contentious issue when the Assembly looked at it probably over 12 months ago now. At the time, the majority of the Assembly, my party included, thought that it might have some real problems, that it might be a little bit too onerous, and we decided as an Assembly to reject the government's suggestion then. They government went away and reconsidered the problem. I do not think the problem is quite the same now as it seemed to be with the profession. I think that its members are still concerned. They have probably spoken to my colleagues as well in relation to their concerns. But I do note that the government is putting it forward again and we are quite prepared to accept it and see how it actually goes.

I note from the attorney's speech that part 10.2 of the 2002 bill has been reintroduced. The idea behind that is to ensure that parties do not incur costs for claims or defences that do not have reasonable prospects of success and that the bill provides that the court can allow claims to continue where the interests of justice so dictate. That type of claim will lead to a desirable advance within the common law. If you do not do that, you will probably never have Donoghue v Stephenson cases. It is important, I think, that there is the ability there for a court to say, "On balance, this should go ahead."Apart from that, I think that the reasonable chance of success provision, where it appears in the actual litigation process, is, on balance, quite reasonable. We are certainly prepared to back the government on that and see how it actually pans out.

Mediation is an area where lots of advances have been made, probably only in the last 10 years. It is not suitable all the time. I have seen in practice that sometime you simply cannot get both parties to sit down to mediation because both parties are completely intransigent or one party is and the other one is a bit easier to get to sit down at a table and try to sort things out. But mediation is something which often can be very successful and save people a lot of angst and save lots of costs at the end of the day. Whilst mediation does not assist in all cases, it is something that is desirable for a court to order and I am pleased to see that it is part and parcel of effective case management.

I turn to partial codification of the law of negligence. We are codifying the criminal law and, because of a series of crises, this is probably a desirable step as well. At least one of the amendments I will move in the detail stage goes to an improvement to the codification and greater consistency with other parts of the codification than we have at present. That is a minor point. But, on balance, I think that the codification there is a sensible point, as is the one on contributory negligence.

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