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Tuesday, 12 December 1905


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - It is rather trying to be called upon to follow the honorable member in his oratorical flight by a prosaic commentary upon two or three practical speeches. The honorable member possesses an advantage over me in that he has quoted from some work upon a modern Utopia, with which I am not acquainted - a Utopia in which I understand the cost of counsel is 2s. 66., and that of an attorney is. 3d. I have no desire to deal with any imaginary community of that sort. We are living in the Australian Commonwealth, and the question under consideration is whether or not some alteration should be made in the law in regard to inquiries connected with disputed elections. I listened with great attention and curiosity to the speech of the honorable member for Riverina, and to that of the Minister who undertook to answer him. I am bound to say that the Minister's reply was very disappointing. He seemed entirely to lose sight of the principal points mentioned by the ' honorable member for Riverina. First of all, the latter took exception to the High Court as a tribunal for inquiring into disputed elections, and, secondly, he objected to the expenses which litigants were compelled to incur in appearing before it. He also gave the Committee some information in regard to his own costs. I confess that I was somewhat astonished when I heard his statement as to the costs to which he had been subjected. Fortunately, I have had information placed in my hands which satisfies me that that statement was very much exaggerated. For my own part, I think we should be acting very unwisely if we attempted to substitute another tribunal for that which has been appointed' by this. Parliament, for the purpose of inquiring into disputed elections. At the same time, although I belong to the profession for which the honorable member for Melbourne exhibits so much pity and contempt, I am perfectly prepared to assist trie honorable member for Riverina to dispense with the costs of appearing before that tribunal in connexion with matters of this sort. I object to the substitution of any Elections and Qualifications Committee for the High Court for several reasons. In the first place, I think that honorable members ought to be relieved as much as possible of the obligation to .inquire into matters which are outside their legislative duties. They certainly ought to be relieved of the obligation and unpleasantness of inquiring into matters which touch upon the interests of their fellow members. One does not need to be long in politics to have seen many cases in which it is abundantly clear that, although the members of parliamentary Committees may have had every desire to act in an impartial way, party feeling has played a very important part in their decisions.


Mr Webster - Can the honorable and learned member give an instance in point ?


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I can give many such instances. The honorable member is too fond of asking other honorabe members to supply particulars, in order that he may carp at them. Another reason why I object to the substitution of a parliamentary Committee for the present Court of Disputed Returns is that we have quite enough to do as legislators without being called on to adjudicate upon matters in which the interests of our fellow members are involved. Further, I submit that an Elections and Qualifications Committee is not as competent a body to deal with questions involving an interpretation of Statutes as are trained lawyers. So far as the employment of counsel is concerned, I can only say that the High Court has demonstrated to the people of Australia that far from being influenced by the weight of eminent counsel, the veriest fledgeling in the profession has as much chance before that tribunal as has the most eminent counsel at the Bar in any State, provided he has, facts and is able to marshal them. I am perfectly prepared to vote for an amendment which will have the effect of completely disqualifying the High Court from awarding costs to the successful party. The moment that is done, litigants appearing before it in connexion with questions of this kind will stand upon precisely the same footing as they do when they appear before an Elections and Qualifications Committee. I have heard honorable members urge that if we abolish the right to charge the unsuccessful suitor with costs, we shall allow the rich man to engage an array of counsel on one side, whilst the poor candidate will be unable to emulate his example. But I would point out that that power already exists in respect of any Elections and Qualifications Committee. There is no restriction upon the right of any suitor to engage the whole Bar of a State if he chooses to do so. We know very well that whilst a formidable array of counsel might exercise a very powerful influence upon the average Member of Parliament sitting upon such a body, it would not be likely to weigh very heavily with trained legal minds, such as, those which constitute the High Court. Therefore, apart from all other considerations, I maintain that that tribunal is more qualified in every conceivable way than is a Parliamentary Committee to deal with matters of this sort. It has been urged by the honorable member for Riverina that the High Court is influenced by the rules of evidence. I have yet to learn that those rules are anything more than common sense applied to the elucidation of truth. For instance, one of the rules is that hearsay testimony is not admissible. Very often a tribunal which is composed of laymen would allow A to relate something which he had heard some other person say. The rules of evidence provide that A can only swear to facts within his own knowledge. The laws of evidence, which have been spoken of as " technicalities," are the embodiment of common sense and worldly knowledge, as applied to the elucidation of truth, and must be adopted by any tribunal which professes to properly investigate any question remitted to it. I have, therefore, come to the conclusion that of the two tribunals, the High Court is eminently superior, because its members are paid for exercising their judicial ability, and because the appointment of an Elections and Qualifications Committee would necessitate honorable members doing work outside their legislative functions, with the further objectionthat they would be adjudicating upon matters in which their fellow members are interested. The strong point of the speech of the honorable member for Riverina was his own personal experience - a bit of autobiography. I think that I am fairly paraphrasing that speech when I say that he led the Committee to believe that the proceedings before the High Court had cost him £400, and that he believed the expenses of his opponent aggregated some thousands. As a matter of fact, although the whole of the costs which were incurred on behalf of the honorable member amounted to £400, when they were submitted to an officer of the Court for taxation - and it is only fair that the taxing officer should have his due - they were reduced to£251. The Committee ought also to know that the whole of that amount was paid by Mr. Blackwood. If the honorable member for Riverina had only contracted with his lawyer not to charge more than the taxed costs-


Mr McWilliams - That is pretty rough on Mr. Blackwood.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I will deal with that matter presently. The honorable member for Riverina led us to believe that the proceedings before the High Court had involved him in an expenditure of £400. It is true that the bill rendered by his lawyer did total that amount. But it is also true that an officer of the much-abused High Court reduced that sum to £251. and that the whole of it was included in the bill which was paid by Mr. Blackwood.


Mr Henry Willis - What would have occurred if the unsuccessful suitor had had no means ?


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I will come to that in a moment. Further, we were led to believe that Mr. Blackwood's costs amounted to some thousands of pounds ; but the honorable member for Melbourne, adopting language in keeping with his other nights of oratory, declared that they amounted to ,£5,000 or £6,000.


Mr Webster - He said £1,500.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Then the statement to which I refer must have been made by the honorable member for Darwin. I do not know whether the spread-eagleism of the United States, as represented by the honorable member for Darwin, is more exaggerated than is the oratory of the honorable member for Melbourne ; but, at all events, we were told by the latter that the costs amounted to some thousands of pounds, whilst the amount was swollen to £5,000 or £6,000 by the honorable member for Darwin. As a matter of fact, the costs incurred by Mr. Blackwood, who was said to have had an array of counsel, amounted fo £441, or £4*1 more than those of the honorable member for Riverina*


Mr King O'Malley - Those are only the costs of which we know.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I have Mr. Blackwood's bill of costs in my pocket. To the sum of £441 we have to add £251, the taxed costs of the honorable member for Riverina.


Mr Watson - Would not there be any additional charges for witnesses?


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - They are included in the bill to which I refer, and which I am prepared to show the honorable member. It is hardly desirable that the Committee should be tempted by exaggerated statements to accept- this amendment. When the original Bill was under consideration, the Prime Minister told us that an Elections and Qualifications Committee in this State had at one time involved one of the parties to a dispute in costs amounting to £2,000. It was said that that was an exceptional case, but the same remark might fie applied to Mr. Blackwood's case ; it might be said that, having regard to the scope of Mr. Blackwood's case, and the multiplicity of complications involved, that the one was as large as the other.


Mr King O'Malley - Why should Mr. Blackwood have had to pay for a blunder committed bv one of our own officials ?


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - That is another matter which is not in issue. The question is whether the law shall be so altered as to substitute for the High Court, as a Court of Disputed Returns, an Elections and Qualifications Committee; and whether the High Court shall be allowed to throw the cost of the successful party upon the unsuccessful one. I suggested to the Minister, and I suggest again, that if he desires to retain the High Court as the tribunal which is to settle complicated electoral disputes, and relieve honorable members of that unpleasant task, he ought to provide that it shall not have power to throw the costs of the successful party upon the unsuccessful one. I agree with the Minister, and I believe that most thinking men share with him the belief that it is well to retain the High Court as a Court of Disputed Returns. Speaking as a lawyer, I have no hesitation in asserting that if my suggestion be adopted the result will be that as long as one party sees that there is no chance of getting his costs from the other side it will be to the interests of both to keep their expenses as low as possible.


Mr Watkins - That is an admission.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - It is a jibe that is often used by Members of Parliament - and I shall not say by which class it is most frequently put forward - that the legal profession is that which is to be most pitied. I can only say that it is singular that every member of a certain party, at the first opportunity, enters that profession.


Mr Watson - It is good business.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Very good business. I am satisfied that unless the Minister is prepared to adopt the course which I suggest he will not save the tribunal which he favours. It is a matter of common knowledge that the High Court is not likely to be affected in any way by an array of counsel. Any man who is aware of the practice of that Court will bear out my statement that the merest fledgling at the Bar has just as much influence with it as has an array of .King's Counsel appearing before any tribunal in Australia. As long as a suitor is satisfied that he has a case, he may rest assured that if he retains some one who is competent to put it before the Court, the extent of his expenses will be less, certainly not more, than if he had' gone before an Elections and Qualifications Committee.







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