Page 19 - Week 01 - Tuesday, 14 February 2006
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One of the issues, and I will go into this in greater detail on the detail stage, is: what are the implications of standing out from a national scheme on an area of civil law, particularly where we already have a history of forum shopping? I think Mr Stefaniak certainly, with his experience, would be prepared to acknowledge the extent to which the ACT has been the destination of choice for people around Australia in relation to defamation, for a range of reasons. But just imagine if the ACT of all the jurisdictions around Australia moved away from the model in relation to issues around whether or not corporations can sue—mindful, of course, that every other place in Australia has adopted this model legislation except at this stage the ACT and the Northern Territory. Just contemplate this—
Mr Mulcahy: A bit like terrorism stuff, isn’t it, really?
MR STANHOPE: I will tell you what it would do. We would have to appoint another two or three Supreme Court judges. Defamation actions would only be pursued in one place in Australia by corporations, and that would be in the ACT.
The Liberal Party have raised three issues: the issue around defence, of whether it is the common law defence of truth or the more protective reputation of truth and public benefit; the question of whether corporations can sue; and the question of a cap. Just imagine a situation where every other jurisdiction in Australia has applied a cap and every other jurisdiction in Australia has accepted a provision where corporations, except those employing fewer than 10, or whatever the number is, cannot sue, but the ACT did not. Every defamation action initiated by a company would occur in the ACT and every defamation action where somebody was prepared to chance their arm on a payout of more than $250,000 would be initiated in the ACT. We would have to double the size of the Supreme Court. We would do nothing but defamation actions. Just ponder that.
You can say, “Well, it’s a question of principle. You should have held out. You shouldn’t have imposed a cap. You should allow corporations to sue.” But no other place in Australia would allow it. They have legislated; it has been passed. In New South Wales, Victoria, South Australia and Queensland, if you are a corporation you cannot sue. But, if the ACT manfully stuck to principle, people would say, “Come to the ACT and sue here. The Supreme Court has got nothing to do after all—and there is no cap. Not only can you sue in the ACT if you are a corporation; there is no limit on the extent of the damage.” Where is every action in defamation going to be initiated? It’s going to be initiated in the ACT. Where is every action going to be initiated? It is going to be initiated in the Supreme Court of the ACT.
The ACT Supreme Court would do nothing but defamation. We would be the defamation suing capital of the world, with absolutely no benefit to us at all, except an enormous cost. There would be no forum shopping; there is nowhere else to shop. There is a lolly shop called the ACT Supreme Court. You want to sue under an arrangement where we stand out on a cap. We do not like caps. The position that we have adopted as a government, through the civil law reform process, is one of enormous resistance to caps. But, in an environment where we are the last jurisdiction standing and everybody else has imposed a cap on damages for defamation, we would stand out. It is simply not tenable for a jurisdiction such as ours to stand out on the issue of whether or not
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