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Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3066 ..

MS DUNDAS (continuing):

I have found, as the Law Society and Ms Tucker did, the tautological definition of the term "reasonable prospect of success"rather strange, and I agree that a definition that refers to an "arguable case"is more satisfactory, if we are to have this term introduced into our civil laws.

MR STANHOPE (Chief Minister, Attorney-General, Minister for Environment and Minister for Community Affairs) (5.24): The government will not support the amendment, Mr Speaker, acknowledging that the Law Society has made strong representations that the common law already offers sufficient deterrence and punishment for cases that do not have reasonable prospects of success. The society raises the possibility of negligence claims against solicitors and the awarding of costs by the courts as illustration of the measures that should already ensure that only matters with reasonable prospects of success are pursued.

It needs to be remembered, though, that part 10.2 is essentially about ensuring that lawyers make relevant applications for relief. The provisions penalise lawyers who use a scattergun or an undisciplined approach to a case because that approach increases the costs of litigation for all the parties involved. The part is based on provisions in New South Wales, although we have wound them back somewhat. I should indicate that similar provisions to this also apply in the United States and have done for many years.

I acknowledge also that the Law Society expresses concern that lawyers would be required to certify that a matter had reasonable prospects of success prior to the setting of a hearing date for the matter. The complicating aspect that the Law Society raised in this regard is that a lawyer cannot always control when a matter is allocated to a hearing date. As the court may set any matter down for hearing if it chooses, a lawyer might be placed in the unsatisfactory position of vacating the hearing date or discontinuing a matter. Both those situations result in costs for the client and the potential of exposing the lawyer to a negligence claim.

The Law Society has suggested to the government a workable alternative, which the government has adopted and which is included in amendments that I will move: that the requirement placed upon the legal profession be that a lawyer should not sign a pleading unless the claim, defence or cross-claim has a reasonable prospect of success. This introduces the certification of the reasonable prospects of a matter at a much earlier and less problematic stage than the setting of a hearing date.

The Law Society also expressed reservation about the definition of "reasonable prospects of success", but the government continues to maintain that the proposed definition sets a lower burden for determining whether a lawyer had a proper basis for claiming the fact. The proposed definition does not look to the lawyer's belief about the material but allows lawyers to accept the material on face value.

In addition, the wording in the definition proposed by Ms Tucker is not as clear and concise as the existing definition and does not give sufficient direction for lawyers. The government's view, and the reason for our opposing Ms Tucker's amendment, is that the integrity of this section needs to be maintained. That can only be done through the retention of the original definition.

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