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Thursday, 17 December 1992
Page: 5516


Senator COONEY (5.25 a.m.) —Some remarks ought to be made in reply to what has been said by honourable senators opposite. What has been bandied across the chamber today, from both sides, is an interpretation that each side has put on a set of facts. Both sides have acted as advocates. It can hardly be suggested that honourable senators opposite are going to bring to this issue a mind that is clear of particular perceptions. They hope that there may be political advantage to be gained. There is no denying on this side that we are going to go to the aid, if it were necessary, of the Speaker.

  What we are doing is exchanging perceptions. The actual facts of the matter are probably not greatly in dispute. The Speaker was injured when a bike collapsed under him. It is quite clear that that was negligent. The people who supplied the Speaker with the bike knew that it was a dangerous thing to do. An experiment was carried out which showed that the bike collapsed. I understand what honourable senators opposite are saying. They do not dispute that there was negligence. What is disputed is the amount that was paid to the Speaker. Honourable senators opposite say that the amount of just over $50,000, with costs, was too much.

  What I can say about the way it was handled is that there is no doubt that the Speaker got a settlement which was a very good settlement. That was done on the basis of an opinion from a Mr G. Stretton which no doubt honourable senators have got hold of. There was no suggestion that Mr Stretton was in any way under the influence of Mr McLeay. Mr Stretton is a solicitor or a barrister who is in private practice. Mr Stretton is a barrister or a solicitor who was briefed, as I understand it, by the Australian Solicitor, the old Crown Solicitor. They are the facts that we have got to work with. Honourable senators opposite put an interpretation on that and say, `Look, that is all consistent with the Speaker using improper influence'. That is the real charge being made, that of improper influence either in terms of reality or, as Senator Bishop touched on, improper influence that can be at least constructively placed upon the Speaker.

  The fact of the matter, and nobody has denied it, is that the Speaker was entitled to sue.


Senator Alston —Hey, Barney; I have just done my leg in. What do I get?


Senator COONEY —Let us say that Senator Alston had injured his leg very badly. Why should Senator Alston not sue if he has a serious injury? So the real problem is the extent of the damages; the way it was dealt with and the extent of the damages. This matter was dealt with by obtaining an opinion and, as I understand it—I have listened carefully to this whole debate—nobody has attacked the opinion of Mr Stretton. I do not know Mr Stretton. Honourable senators have not got up and said, `Mr Stretton, you were wrong in this. You approached this with mala fides and in some way you have given your opinion under the influence of the Speaker'. I have not heard it suggested at all from the other side that Mr Stretton was under the influence of the Speaker. I have heard it put that Mr Bolton was under the influence of the Speaker, but he did not make that assessment of damages.

  It was Mr Stretton who was at arm's length not only from Mr McLeay but also from the Parliament because he is outside the Parliament. I am happy to be corrected upon that but, as I understand it, he is a person who runs a private practice and he was the one who made the assessment. It was on the basis of his assessment that everything flowed. Can honourable senators opposite show me that Mr Stretton was in some way acting improperly? They have to show that it is more than making a generous assessment, they have to show that he in some way acted improperly because he was under the influence of the Speaker or because he wanted to curry favour. That has not even been alleged.

  So it is not Mr Bolton who is in the firing line, as it were; it is Mr Bolton acting on the advice ultimately from the Australian Government Solicitor and that office acting on the advice of Mr Stretton and that coming through to Mr McLeay. If Mr McLeay is offered an amount of money, why should he not take it? If Mr McLeay is told that his injuries are worth that much, why should he not take it? If Senator Alston gave advice to a client which was overgenerous advice—and in the old days he used to give advice, as I remember, and we would say that it was outrageous and then he would go and get the amount claimed—nobody criticised him for that. What they were saying is, `There is Richard Alston doing well again'. I would imagine, with great respect, that Senator Alston would have put a bigger figure on this, and come down, of course. If Senator Alston, as a responsible barrister—which he was, and a very good one, may I say, and one I always respected—gave that advice, he would have expected it to be accepted. That is what this is all about. Why should a person not take the advice of counsel?

  Senator Alston says that he does not refer to the report. That is a criticism of the counsel who was involved. If counsel has written a bad opinion, perhaps one could criticise him for that. But if counsel writes an opinion that says, `Offer this much', and that much is offered, then why should not the person to whom it is offered say, `Yes, I will have it.'? That is what has happened here. The only way one can get over the problem is to somehow impugn Mr Stretton. He is the fellow who has to be hit on the head, as it were, not Mr Bolton. Mr Bolton is simply taking the advice he gets from the Office of the Australian Government Solicitor, which gave its advice on the basis of what Mr Stretton said.


Senator Alston —But Stretton gets his advice from the instructing solicitor.


Senator COONEY —Hold on a minute. Everybody gets instructions. One has to work on one's instructions. I hope the honourable senator never went out and investigated his own cases. Of course he goes forward on the basis of the medical reports provided to him.


Senator Alston —He doesn't form his own opinion.


Senator COONEY —He has been willing to get out and give an opinion and that is what he has come up with. On the basis of that opinion, the system goes into operation and they say to Mr McLeay, `We will offer you this much', and he says, `Thank you very much. I will take it'.


Senator Alston —No, he didn't. He asked for more.


Senator COONEY —He asked for more, but in the end he settled at what was offered. They said, `We are going to pay in'. I do not know whether they actually got to paying in or whether they threatened to pay in, but as soon as they threatened to pay in he said, `All right, I will weaken; I will give it away; I will surrender; I will run up the flag'. Instead of fighting on as we might have thought a courageous person would, he weakened and settled at the figure.


Senator Alston —Would you have given a discount for liability?


Senator COONEY —No. I looked at this. They were in possession of the bike, and it was a bike that they knew was not suitable. They warned the person in McLeay's office and said, `This bike is perhaps not suitable'.


Senator Alston —Not for the Robert Rays of this world.


Senator COONEY —No, it is not for the Robert Rays of this world. If they gave it to Robert Ray, he would be able to sue.


Senator Colston —Do they have two bikes?


Senator COONEY —I have seen Senator Colston at the gym. There would be no problem on liability in this case because of the knowledge that these bikes are not built for big people. With the evidence that they had warned somebody in the Speaker's office, it is quite clear that they had knowledge of the unsuitability of this bike. In supplying the bike, clearly there is negligence.


Senator Kemp —Did the staffer tell Leo?


Senator COONEY —Senator Kemp puts his finger right on it, because there is no evidence that the Speaker ever knew anything about it. Even if he did know that there may be some problems with it, it was still provided by a person who had the control of the bike and knew about the bike, so I do not think there would be any contributory negligence. One could certainly argue that there was not. There is just no evidence that he did know. There is no evidence at all in any of this material that Mr McLeay ever knew of the danger of this bike, whereas there is clear evidence that the person who provided the bike knew all about it.


Senator Alston —When you are making an offer, why assume he didn't know?


Senator COONEY —I do not know. I have to sit down because it is getting a bit late in the morning. All I say is that Mr Stretton is the fellow who those opposite have to get to.


Senator Alston —The jury is asleep.


Senator COONEY —Of course it is, because they know that the case is all over. They know that, if anybody is to be blamed, it is Mr Stretton. I am not going to blame a man who is obviously a person of note in the community. I am not going to condemn him. I think it is an opinion that he has got together well. He has given that advice and Mr McLeay—

  Opposition senators interjecting


Senator COONEY —He might have done that but there is no evidence that he has done that. They say, `Here is the offer on the basis of our opinion', and he says, `I will take it'. Now everybody comes and says, `You have got some sort of influence over Mr Bolton'. Of course he has, but what Mr Bolton did is irrelevant in this case. It is not Mr Bolton's problem: it is the Australian Government Solicitor's problem. There is no evidence that the Speaker had any influence at all over the Australian Government Solicitor and, as I keep saying, there is no evidence that he had any influence over Mr Stretton.

  Mr President, I am going to sit down. I do not invite Senator Alston to get to his feet but I will invite him later to say where there is any evidence to show that the Australian Government Solicitor or Mr Stretton was in any way influenced by Mr McLeay.