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Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3064 ..

MR STANHOPE (continuing):

That is what we are doing. We are doing what the courts were codifying, including, in this particular piece of legislation, precisely what the law recognises as appropriate. We are simply codifying what has been expressed, by Woodward in this case, that it is appropriate to consider awarding costs:

... whenever it appeared that an action had been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success, because in such cases the action could be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts or the established law.

That is what we are doing. The courts already recognise it. It is already possible for it to happen. It already happens. It has been done as recently as today in the ACT. What we are doing is incorporating that into the law to make it more certain.

Members today have discussed the very important issue of test cases and the need for test cases to be able to proceed. I agree absolutely; I have absolutely no issue with that. Indeed, in any real consideration of access to justice and the development of the law, it is important that there always be an opportunity for particular issues to be pursued. We recognise that.

We recognise it explicitly in section 118B, relating to the application of part 10.2. We go to the very point of circumstances where justice requires it, such as the need to pursue a potentially new course of action or a potentially new understanding. We need to allow the law to develop; we need to ensure that it does not stultify. Section 118B (3) is designed to achieve just that purpose. It says:

... this part does not apply to a claim for damages if the court considers that it is in the interests of justice for the claim to be continued and makes an order to that effect.

That is what it is there for, and that is what it would achieve. These are provisions. Part 10.2 does not do anything particularly dramatic. It does not thwart the operation or development of the law. It is not startling, it is not radical and it is not to be feared. The government stands by this clause, and I commend it to the Assembly.

Question put:

That clause 22 be agreed to.

MR DEPUTY SPEAKER: Members, please resume your seats for the vote. The question is:

That clause 22 be agreed to.

There being confusion concerning the result of the previous question, the Speaker, having ascertained it was the wish of the Assembly and in accordance with standing order 165, again put the question:

That clause 22 be agreed to.

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