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Friday, 20 July 1906


Mr LONSDALE (New England) . - I realize that it is difficult to prevent an increase in litigation, but if we inserted in this Bill a provision that solicitors and barristers should not be compe tent to accept fees in respect of a case which they lost, we might do something in that direction. One can always find barristers and solicitors who are prepared to give opposite opinions on the same set of words, but the temptation to draw persons into litigation might be removed by the adoption of the suggestion I have made.


Mr Isaacs - I think that it would reduce litigation


Mr LONSDALE - If that rule prevailed, a solicitor, before advising a client to enter upon a law suit, would be very careful to consider what were the probabilities of success.


Mr Isaacs - Would not the honorable member go further, and say that a Justice whose decision was reversed ought to pay all the costs?


Mr LONSDALE - That, too, might be beneficial. The adoption of my proposal would be an interference with the liberty of the individual, but all our laws have that effect. It is because we are seeking to restrain the people from doing that which is not morally wrong - because we are creating offences by Acts of Parliament - that our litigation is increasing so rapidly. We are seeking to interfere with departments of trade and business about which we know nothing, and consequently we have this increase of litigation in the Commonwealth. I am sure that if the Australian Industries Preservation Bill is passed in its ' present form we shall need' two or three more Justices, so that it would be better to allow the further consideration of this Bill to stand over until that measure has been dealt with. If it becomes law, it is probable that in the first session of the next Parliament we shall have a further Judiciary Bill proposing to increase the number of Justices to six or seven. I believe that all who go to law are fools. My experience of the Courts is such that, whenever any one talks to me about going to law, I invariably say, " Even if you have never seen the man who is making the claim against you, it is better that you should settle it rather than contest it in the law courts. You will be better off, and the lawyers will be a little worse off, if you adopt that course." I feel disposed to vote against this Bill. I certainly should do so if I thought that its rejection would decrease the litigation in our Courts. It seems to me that some of the appeals now heard by the High Court might well be dealt with by other tribunals. The High

Court is to a large extent taking the business of all the Supreme Courts of the States. If we could do something to lessen the number of appeals, it would be well. We must make the law as cheap and as easy of access as possible. If the AttorneyGeneral would direct his undoubted ability to the preparation of a s;heme which would cheapen and expedite the processes of the law, I think it would be much better than the passing of a Bill of this kind. Litigants are often defeated by legal technicalities, but I do not think that a good cause should ever be lost 'because it has been placed before a court in disregard of certain legal technicalities. Judges should have power to refuse to be bound bv technical points, which, if upheld, would bring about injustice.


Mr Isaacs - My experience of the High Court is that its administration is entirely free from technicalities. The members of the Court have regard to the justice and merits of the cases put before them, and will not be bothered with technicalities.


Mr LONSDALE - The honorable member for Wilmot has made the contrary statement. I myself have no experience in the matter, and I hope that I never shall have. But, speaking on behalf of the general public, I say that all courts should deal with cases on their merits, apart from technicalities of every kind. It should be possible for a layman who has not money to put his case in his own humble way, and to get justice, if that case is a good one, even though forty lawyers may appear against him. At the present time a man who pleads his own case, however just it may be, is bound to lose his action. It is a blemish upon our civilization that men cannot protect their interests in the law courts without feeing lawyers to appear for them. The honorable member for Wentworth has suggested that the lawyers who are members of Parliament make work for their fellows outside, and, indeed, it seems to me that the technical mind of the lawyer is not calculated to give the best results in legislation. But most of our litigation arises from the crude way in which our legislation is drafted, so that there is room for differences of opinion as to the meaning of many legal provisions. If, in framing the Constitution', the Senate had been made merely a revising Chamber, without power to interfere in matters of policy, our legislation would be better than it is, and I opposed the acceptance of the Constitution, because, among other reasons, some such arrangement was not contemplated. The senators should be men of the highest knowledge and education," and the duty of the Senate should be to revise and simplify the measures passed by the Lower House. If the Senate had been so constituted, our legislation would be better than it is. Unfortunately, too, this Parliament has shown a desire to interfere in all departments of human activity,- branding as offences actions which do not infringe any moral law. But, unless men are interfering witta the freedom of, or are otherwise injuring, others, their actions should be unrestrained by legislation. I am afraid, too, that we are losing the idea that Parliament is a body whose duty it is to consider the interests of the whole people, and not of any one section. I scarcely know how to vote on this measure, but, as a protest against the legislation which has brought about the results which the appointment of additional Justices is proposed to remedy, I am inclined to vote against the second reading.







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