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Tuesday, 21 June 1904


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - I doubt whether it is desirable to exclude the costs of solicitors or agents in this matter. I have no doubt that costs will be incurred ; and if parties very wrongly bring a case before the Court, why should they not be made liable for the whole of the costs ? It is not to be supposed that solicitors or agents will, by the operation of this paragraph, be excluded from acting.


Mr Watson - But we ought to discourage them.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - We shall not even be discouraging them. We may be encouraging the creation of a class of what may be called lay lawyers, who may become as proficient in this particular business as members of the legal profession. If men of that class prove themselves to be sufficiently efficient the demand for their services will extend, and- their fees will rise. Therefore, the paragraph will not prevent agents from acting for the parties. But it will make this difference - that if a solicitor or agent is employed, and costs are incurred,, while we make the party who is found to be in the wrong liable to- pay his own costs, we allow him to escape payment of costs- which have been incurred by the opposite party.' I do not see what is to be gained by that. It has to be remembered that this is to be a Federal Court. It will not be in the same position as a State Court. Cases .will be brought before it from distant parts of the Continent ; and that being so, the parties may have to be represented either by lawyers or agents, and costs will have to be incurred.


Mr Hughes - Woul'd it not make parties more ready to go to law if they knew that they could get their costs?


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - It will make them far more ready to go to law if they know that they can escape being mulct in costs if they lose.


Mr Hughes - They have to pay their own costs.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - But they escape being mulct in the costs which they have caused the opposing party to incur.


Mr Hughes - Suppose one of the parties chose to pile up the costs ?


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Of course they would be taxed. Even if this were considered to be a desirable provision in a State Act, it is far from being desirable in a Federal Act. If one party think they can put another party, who are remotely situated, to a great deal of expense without having themselves to pay a considerable portion of the costs, there will be a great temptation to do so. This is not a matter that affects employers or employes particularly. It is not as though we could' say that costs shall not be incurred. There would be nopossibility of carrying out such a provision. All that we can say is that costs shall not be allowed. There is one way in which costs are often run up unnecessarily, and that is in the matter of witnesses. In the case of the Federal Court, under some circumstances, witnesses' expenses will be a considerable item, because the Court will have to deal with cases affecting districts more or less distant in origin, or in respect to other areas affected. Since there must be representation of the parties, I. see no reason why reasonable costs should not be allowed. As- in an ordinary court case, the litigants would not, of course, get the whole of the expenses of their advocates, agents, or lawyers, but only such portion as might be taxed. Fbr these reasons- I suggest to the Prime Minister that he would gain nothing, but might lose something, by the provision as it stands. In any case, it is rather unfair that one who has imposed expense on another, quite unnecessarily, it may be, should escape the payment of costs.


Mr WATSON - I cannot see the matter in exactly the same light as does the honorable member for North Sydney. What is attempted to' be set up, wherever these Courts have been projected, is a Court of equity and good conscience, and not a Court dependent on legal technicalities, or the mere detailed interpretation of the actual language of a Statute. Under the Federal Constitution there will, I admit, be occasional questions of jurisdiction which, of course, do not arise in a State Court i but the central idea at which we should aim is to . avoid the technical part of the law, and to prevent it being made part of a dispute. Once we- take it for granted that these costs may be allowed, a solicitor, counsel, or agent will be nearly always employed, and in almost every instance some attempt will be made to have costs granted. Without the counsel, . solicitor, or agent, (he Coun, I admit, will have to depend on itself for an interpretation of the law ; there will be none of that assistance which, I dare say, is useful to a Court, as it may be to persons, in the wav of suggestions during the progress of a suit. But I think the balance of advantage lies with' there being no provision either for lawyers to be present in the Court, or for their costs to be allowed in regard to any particular case.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - But the lawyers are not excluded, so far as this clause goes.


Mr WATSON - That is so; but at a iater stage the Governent will propose that lawyers shall be excluded from the Court unless both parties consent. Even if that provision be carried, it will not have the effect of excluding the opinion of solicitors or barristers being sought, or solicitors being engaged to work up a case. There is no prohibition of that kind; but a; the same time it would be unwise to grant costs to either party in respect of the employment of agent, solicitor, or counsel. In New South Wales there is no power to g-rant costs of the kind. Although legal gentlemen may appear in the New South Wales Court, there is no power to grant costs in respect of their appearance, or of . any work performed by them. ' Under the New Zealand Act the provision is exactly the same so far as costs are concerned.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Is it proposed to exclude agents?


Mr WATSON - Notice has been given of a new clause dealing with that point. The honorable member for North Sydney said that in a Federal Court it would be impossible for parties at a distance to appear personally, and that they would have to be represented by an agent. The great probability is, however, that an employer in the back country of New South Wales or of Western Australia would be represented by an agent found for him by the employers Organization in Sydney or Melbourne, or wherever, a Court happened to sit.


Mr Mcwilliams - But suppose such an employer is not a member of the organiza tion? There are many employers who re fuse to join.


Mr WATSON - I am aware of that fact ; but in the great majority of cases such an employer would be represented in the way I have suggested. In other cases, it would be just as easy for an employer to appeal directly to the Court to view his circumstances, as it would be to get an agent. In any case, the trouble I see is that if once we allow the costs of agent, or solicitor, or counsel, to be given, we immediately encourage the stringing out of cases, and reliance on the technical points that' may not have, or should not have, any effect on the decision of the Court. That is the danger I fear ; and' I prefer, therefore, not to accept the suggestion of the honorable and learned member.

Mr. DEAKIN(Ballarat).- Personally, I am against all these restrictions, because I believe they do not conduce to the ends of justice, or to satisfactory, decision. I do not think this particular proposal, as to costs, is of first importance. But I do think that the amendment excluding counsel, which the Government promise at a later stage, is a matter of importance, and, when we reach the proposal, shall be prepared to argue it. At this stage I do not wish to go into the question ; it is only necessary now to enter a preliminary protest. It is quite a mistake to assume that the value of a member of the legal profession in a Court of this kind is confined to his knowledge of the law. A man who has had practice in . the Courts, and possesses experience with witnesses and juries, has gained a fund of knowledge which may not be usually described as legal, and may be accompanied, as it often is, with a lax knowledge of the law. Many of the first advocates and ablest crossexaminers, who- are of great value in a Court on any question of fact, are not strong in their interpretation of . the law. It is this practical value of the legal profession which the Government propose to . throw aside.


Mr Watson - Quite so; and, I think, justifiably.


Mr DEAKIN - I think that the clause as it stands, would weaken the procedure, and injure both parties to a suit ; but it is not necessary to develop the question- now.







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