Legislative Assembly for the ACT: 2002 Week 9 Hansard (21 August) . . Page.. 2643..
Law Reform (Miscellaneous Provisions) Amendment Bill 2002
Mr Stanhope, pursuant to notice, presented the bill and its explanatory memorandum.
Title read by Clerk.
MR STANHOPE (Chief Minister, Attorney-General, Minister for Health, Minister for Community Affairs and Minister for Women) (10.49): I move:
That this bill be agreed to in principle.
Mr Speaker, the Law Reform (Miscellaneous Provisions) Amendment Bill 2002 abolishes three ancient common law actions: maintenance, champerty and being a common barrator. These doctrines are already on their final legs. In 1996 our Supreme Court treated maintenance and champerty as having little current relevant to the ACT law. There have been no recent reported cases involving maintenance, champerty or being a common barrator. This bill completes the process of abolishing these old doctrines.
Originally the common law developed these doctrines to deal with particular types of abuse of the judicial system. In feudal times, the common law was concerned to prevent a third person from "buying into" a dispute between two other people. The common law prevented a person, generally someone with great power, from lending financial support to one side in a legal dispute. This type of behaviour was called "maintenance" and the common law treated it initially as a crime. Later it was also recognised as a civil wrong.
The common law was particularly concerned about such behaviour if the person offering support did so in order to get some sort of valuable benefit. For example, the law strongly opposed cases where a powerful person assisted one side in a dispute in the expectation that they would receive some advantage in the result. This type of behaviour was called "champerty".
Finally, the common law was opposed to all types of quarrelsome behaviour that might lead to discord (the common law opposed both nags and common scolds alike). This bill abolishes the old common law offence of being a "common barrator". This was the offence of habitually moving, exciting or maintaining suits or quarrels. For example, it was an offence to suggest to someone on a number of occasions that they should sue another person. Over the years, these old common law doctrines have slowly waned in relevance in the face of renewed interest in access to justice. This process was well advanced by 1876, when the Privy Council observed:
... a fair agreement to supply funds to carry on a suit in consideration of having a share of the property, if recovered, ought not to be regarded as being, per se, opposed to public policy. Indeed, cases may be easily supposed in which it would be in furtherance of right and justice, and necessary to resist oppression, that a suitor who had a just title to property, and no means except the property itself, should be assisted in this manner.
Today the common law doctrines have been displaced by concerns about ensuring access to justice. In 1997 the Federal Court summed up the development of the law over the past century, noting: