Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3353 ..
MR STANHOPE: I move amendments Nos 7 and 8 circulated in my name [see schedule 4 at page 3372].
Amendments agreed to.
Clause 116, as amended, agreed to.
MR STANHOPE (Chief Minister, Attorney-General, Minister for Health, Minister for Community Affairs and Minister for Women) (5.17): I seek leave to move together amendments Nos 1 to 4 circulated in my name on the green sheet.
MR STANHOPE: Mr Speaker, I move amendments Nos 1 to 4 circulated in my name on the green sheet [see schedule 5 at page 3374].
Amendments agreed to.
Clause 117, as amended, agreed to.
Clause 118 agreed to.
MS TUCKER (5.18): I am opposing this clause and, by implication, this whole part, clauses 119 to 124, so I will address subsequent clauses in this part now.
Part 10.2, costs in damages claims if no reasonable prospects of success, is designed to ensure that parties to an action have reasonable prospects of success. The presumption underlying this provision is that it is lawyers who choose to proceed with court action when they do not have such prospects, so they must be dissuaded by the threat that they may have to pay the costs of the case.
The subtext is that lawyers in the ACT run their cases in a fairly slack way, and waste the courts' and other people's time through lack of discipline and rigour. The Greens are of the view that this is misguided in two fundamental ways. In the first instance, there is again no evidence that this provision is required, that the courts are in fact cluttered by worthless cases, or that, if effected, this part will have any significant consequence in facilitating the legal process.
Second, we hold the view that access to justice is a fundamental building block of our society. Tort law has evolved as a forum at which citizens can pursue matters of justice, and introducing this test will merely militate against public interest actions. As with the bulk of this bill, we are dealing in most instances here with individual plaintiffs and large institutional defendants, such as insurance companies. While this part technically applies to both parties, there is little doubt that the defendants would almost never be found to have no reasonable chance of success. If they chose to go to court, rather than simply settle, they could and would argue about the level of the award, if not the liability.