Legislative Assembly for the ACT: 2002 Week 11 Hansard (24 September) . . Page.. 3176 ..
MR HUMPHRIES (continuing):
If you are a person of considerable means and wealth, for example, you might see it as being in your best interests to buy into a civil action against your enemy and use that litigation in order financially to crush the other party. It might not happen very often, but one might well imagine that that would be extremely disabling to the defendant, or perhaps even the plaintiff, in such proceedings. It is a fairly common rule of thumb, and one that I have certainly encountered in my experience in the law, that most forms of litigation result in only one party clearly profiting, and that is usually the lawyer. In circumstances where litigation is likely to be financially damaging to the parties involved, then to maintain or even exacerbate that litigation could be seen as being quite a serious problem.
In supporting this bill today, the opposition's message to the government is that we need to carefully monitor what transpires in the territory as a result of these changes. We need to be clear and sure that a person cannot use our courts-and particularly to piggyback on somebody else's litigation-in order to effect some purpose which would be contrary to the public good, to do this in a way which would be a distortion of the purposes of the justice system, in particular as a means to settle scores against parties to whom they may be opposed and who may be financially much less well off than they are.
That said, it is hard to argue that the framing of these original common law doctrines has great relevance in the ACT. If abuse did arise, it would be quite clear that new common law or statutory doctrine would need to be formulated to make it clear that people cannot use our courts in a way designed to effect non-legal or non-litigious purposes contrary to the public good of the territory.
MR STANHOPE (Chief Minister, Attorney-General, Minister for Health, Minister for Community Affairs and Minister for Women) (3.46), in reply: Mr Speaker, I thank members for their support for these amendments. As members have indicated, the Law Reform (Miscellaneous Provisions) Amendment Bill abolishes the three ancient common law actions of maintenance, champerty and being a common barrator. 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.
Maintenance prevented a person, generally someone with great power, from lending financial support to one side in a legal dispute. Champerty is similar to maintenance. Support is offered to get a valuable benefit or advantage. Being a common barrator referred to persons who were habitually moving, inciting and 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.
These doctrines are on their final legs. They are no longer appropriate under the modern Australian legal system. There have been no recent reported cases involving maintenance, champerty or being a common barrator.
Both the offences and torts of maintenance and champerty have been formally abolished in many Australian and overseas jurisdictions. They were abolished in the United Kingdom in 1967. Most recently, in 1995, together with the common law offence of being a common barrator, they were abolished in New South Wales.