Page 4794 - Week 15 - Wednesday, 14 December 2005
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procedural matter, and not something of particular substance. That was the basis on which we proceeded in 2003 and, of course, that was reflected in the advice that I received at the time.
We have examined those particular issues in the context of the bill that Mr Stefaniak has introduced, and it may be the case that the earlier view—that the amendments that were made in 2003 might apply to actions that might have been able to have been commenced before the legislation was introduced—is perhaps somewhat marginal as to its effectiveness in terms of whether or not it was really within the power of the Assembly to do that. By that I mean that the diminution of time occasioned by the provisions in relation to an action that arose before the commencement of the amendment act could, or might have been argued to, amount to an acquisition of property. On that view, of course, if that were the case, any reduction of time would have been considered to have been substantive rather than procedural—not, as I earlier indicated and as we believed, that the matters were procedural rather than substantive.
In that context, and in the context of the particular issues that one can acknowledge, without making any judgment about the likelihood of success of any action that is taken, or has been commenced, in relation to damage or loss that was suffered as a result of the bushfire—and I make no comment on that; I am aware that certain actions have commenced and I make no comment on whether or not the government has a view or is of the view that the actions will or will not be successful; those are now matters for the courts—in supporting Mr Stefaniak’s amendment and in proposing an amendment, I am not suggesting the government’s position is that there is a cause of action that would ultimately be successful.
But I certainly accept the point, the position that Mr Stefaniak has put in his presentation speech, accepting the level of trauma and the extent of the loss which people have suffered. I have no issue with anybody that suffered loss and believes that it is a loss in relation to which they believe there is an extant action. I have no desire to see them lose the ability or the capacity to take action to seek to enforce what they believe to be a right in relation to that loss by the passage of time in the context of all of the issues that they have had to deal with over the last three years—acknowledging that, under the amendments that were passed, time, of course, is now running particularly fast.
The amendment that I will move will, as I said, extend this to all people in the same position as those people that suffered loss as a result of the bushfire, rather than picking out a single class of potential litigant. We accept what Mr Stefaniak says—we accept the force of his argument and his position—and are happy to do that, but it seems to us that in that circumstance there probably is not a justification for excluding other potential litigants from access, essentially, to the same opportunity. So I just foreshadow that in the detail stage I will move an amendment to simply extend the class of potential litigant to whom the amendment will apply to all potential litigants who are in exactly the same position as those who would seek to pursue an action as result of bushfire loss.
In conclusion: the government supports Mr Stefaniak’s proposed bill but we will have an amendment which will broaden to all potential litigants the class of litigants to whom the provision applies.
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