Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3062 ..
MS TUCKER (continuing):
and the court procedure modification, the stage 3 reforms, had been implemented. At least then we would have had evidence on which to base the decision. Unfortunately, this government has chosen not to wait.
MR STANHOPE (Chief Minister, Attorney-General, Minister for Environment and Minister for Community Affairs) (5.06): I would make a number of points in response to concerns that have been expressed about this provision. At the outset I would point members' attention to the existing section 257 of the Magistrates Court (Civil Jurisdiction) Act of 1982. We are talking here about the application of the reasonable prospects of success test in section 118D of the civil law act.
For the interest of members, I will read the provision that currently applies to the Magistrates Court in relation to civil matters. And the Magistrates Court currently provides, in section 257(1), the following:
(1) If it appears to the court that a solicitor for a party to proceedings is responsible (whether personally or by an employee or agent) for costs in the proceedings having been incurred improperly or without reasonable cause, or having been wasted by undue delay or by any other misconduct or default, the court may, after having given the solicitor a reasonable opportunity to be heard-
(a) direct the solicitor to repay to his or her client such of those costs as the client has been ordered to pay to any other party to the proceedings; and
(b) direct the solicitor to indemnify any party other than his or her
client against such of those costs as are payable by the party
It is interesting to compare that with the section under consideration, 118D, which reads:
(1) If the court in which an action on a claim for damages is set down for hearing considers that legal services were provided by a lawyer or a client on the claim, or in defence of the claim, without the claim or defence having reasonable prospects of success, the court may (on its own initiative or on the application of a party to the proceeding) make either or both of the following orders:
(a) an order directing the lawyer to repay to the client (or to pay) all or part of the costs that the client has been ordered to pay to another party;
(b) an order directing the lawyer to indemnify a party other than the client against all or part of the costs payable by that party.
The language is almost identical. Members need to be aware of the fact that the Magistrates Court (Civil Jurisdiction) Act 1982 provides precisely for what we are currently debating and what some members are currently opposing. We need to make the point that this is not a particularly radical new proposal that we are considering here. To some extent it simply mirrors what happens in the Magistrates Court in any event.
We have all read the Canberra Times, which just today by coincidence has the headline, "Disgraced former lawyer to face court."I do not know when he was disgraced, but the story reads: