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Wednesday, 18 November 1959


Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - May I answer the honorable member for Chisholm (Sir Wilfrid Kent Hughes) in this way: Under the provisions of clause 14, the judge has several courses that he may follow. He may refer the matter to somebody else or he may handle it himself. I should not imagine that the judge hearing the case would offer to conciliate unless he thought that -he would succeed. That is what I said in my second-reading speech. Undoubtedly, if he intervenes and fails, additional costs will be involved. Whether another judge is brought in depends on the parties themselves. I think that there should be a provision, such as is contained in clause 15, to .encourage people to be frank.

I have had quite a deal of experience of endeavouring to settle cases. When you try to do that, the parties hold back for fear of something said during the negotiations being used if they go on with the case. They will not be frank before the judge for fear that he, unwittingly, will use it against them. I thought that the judge should not be forced on them for a further hearing without their consent. I do not think that there will be very .many cases in which the judge himself will offer to conciliate. I think that he will say to the parties, " There is a marriage guidance organization, if you want to go to it, or there is a conciliator ". But I think that I should provide for a judge to conciliate in some circumstances.

In -reply to the honorable member for Lang (Mr. Stewart), I would not attempt to provide what the fees and charges should be between the parties at that stage. I agree that if the matter has to be commenced again, there may be further fees, but, in the ordinary way, as I understand this jurisdiction, there is usually an agreed fee. This is not a case of solicitors charging item by item. They are inclined to take an agreed fee and see the case through. Look at the matter from the point of view of the bar. A barrister, having said that he will conduct a case, usually sees it through. Most of us, as young people, avoided divorce cases of any length as we would the plague, because the fees were so small, and towards the end of the case you were working for nothing.

I am sure that the legal profession will do in the future as it does now. Having taken on a case, the solicitor or barrister will see it through, even though very often the money runs out. However, I will consider whether I might bring before the various law institutes the remarks that have been made by the Morton commission and allow the institutes to circulate them to solicitors.







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