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Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3058 ..

MS DUNDAS (continuing):

number of consequential amendments, which would remove further sections of this bill if these clauses are defeated. I will speak to them all now in the hope of moving things along.

Clauses 22 and 23 are designed to prevent a lawyer from proceeding with an action where there is no reasonable prospect of success. This will limit the ability of people to bring forth test cases. Test cases are fundamental to the development of the common law system. I would like to provide the Assembly with some examples of test cases from Australia's history.

The nuclear test case against France established our right to live free of nuclear contamination. The 1982 case Koowarta v Bjelke-Petersen found for the first time that the Commonwealth could use its external affairs power to step into state affairs to include international treaties. The Tasmanian dam case of 1983, which prevented the damming of the Franklin River, was a legacy of this case.

Native title is a key area where test cases have succeeded, in a legal climate where a reasonable person would have to have concluded that there was no reasonable prospect of success. The Mabo case overturned the 200-year-old doctrine of terra nullius, and the Wik decision that followed it found that native title survived on many types of land where it was assumed, following Mabo, to have been extinguished.

More recently, we have had the tobacco test case, brought by Rolah McCabe, and the Bakhtiari judgment from the Family Court, which found the detention of child asylum seekers to be illegal. The plaintiffs and lawyers who argued these unpromising cases have done the community an enormous service, and our nation would be much poorer if they had been prevented from bringing these actions.

Test cases have also built our common law of negligence. In many landmark tort cases, like the original 1932 case of Donoghue v Stevenson and the 1984 case of Jaensch v Coffey, a reasonable person would have concluded that the action had no reasonable prospect of success. However, pursuing the cases gave the judges an opportunity to develop the law and formally recognise new types of harm and new approaches to viewing responsibility for wrongs.

I understand that the bill contains a provision in clause 118B (3) that would permit the courts to admit a course of action in the interests of justice where it does not satisfy the reasonable prospect of success test. But this is not a wholly satisfactory solution. The initial trial judge may be conservative and unwilling to find that the case should be pursued in the interests of justice. We are putting hurdles in the way of exploring these points of law. Under the current system, even if an initial trial court finds against the plaintiff and declares their course of action to be poorly founded, a higher court may grant leave to appeal the decision.

The rationale for the new "reasonable prospect of success"is to avoid tying up court resources, and time and resources of defendants, where there is not a strong case. As I said before, whilst we must talk about allocation of resources, the Democrats truly believe that the right of access to justice should be put first.

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