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Tuesday, 21 June 1904

Mr McWILLIAMS (Franklin) - I am not anxious to bring lawyers, more than is absolutely necessary, into these disputes.

Mr Deakin - Not as lawvers.

Mr McWILLIAMS - I 'am speaking absolutely from a layman's point of view. Grave injustice may be done to the parties before the Court if we exclude assistance for which they are prepared to pay, and which they believe to be seriously necessary.

Mr Watson - We do not exclude that assistance, but simply provide that the cost of it may not be recovered from the other side.

Mr McWILLIAMS - I do not want to discuss the amendment which will have to be considered presently. According to the amendment which is to be proposed, all lawyers are to be excluded, but agents are to be allowed to appear; and very serious injury may be done to either an employer or an employe who is not a member of an employers or trades union. I regard both employers' organizations and workman's organizations as exactly on the same footing. The agent may be the paid secretary of either organization, and, with all due deference to the legal members of the House, I can see that this agent, with the coaching he will get from the solicitor to the particular union, may, in 'this Court, be as good as a great many lawyers.

Mr Watson - We are not discussing that point yet.

Mr McWILLIAMS - We cannot discuss the question before us without considering its effects. I want to place the nonunionists and unionists on both sides on exactly the same footing; and we can see that if we get an employers' association on the one side against a non-union body of workers, the latter will be seriously handicapped by a decided disadvantage. A layman not specially trained would have to appear in Court as against the skilled secretary or agent of the other side, who, to all intents and purposes, is a lawyer so fax as this particular Bill is concerned.

The CHAIRMAN - Do I understand the honorable member is going to connect these remarks with, the question before the Chair ?

Mr McWILLIAMS - Yes ; the clause before us deals with the costs which are to be allowed to the agent or to the solicitor. If we allow agents or solicitors to appear, whether on one side or the other, and one side brings a trivial case, and drives the other side into legal expenses, these ought to be paid by the party which loses the suit. Personally, I should like to exclude lawyers and agents altogether from this Court, and would be prepared to vote for a proposal to that effect. But if we do allow them to appear, I see no reason why, in the case of an employer or trades union trying to take advantage of, and work injustice by going behind, an award, costs should not be given. If the Court thinks that one side has been totally wrong in submitting a trivial case, that side ought to pay the expenses incurred by the other side, which has, as it were, been forced into Court.

Mr. KNOX(Kooyong). -The whole argument used from time to time by the Prime Minister has been " Trust the Judge." If he is prepared to trust the Judge in great matters affecting large industries, why is he not prepared in small matters of costs to trust to his discretion? This is another of the inconsistencies which run right through the measure.

Mr. McCAY(Corinella).- This is not a matter on which any legal member need shrink from speaking, because he will get his costs anyhow, but it is a question of who shall pay them. I quite agree with the honorable member for Kooyong, that if the Court can be trusted in matters of infinitely greater moment, it can be trusted in the matter of costs. It does" seem a pity to prevent the winning party from being indemnified, at any rate, to some extent, if he has justifiably been engaging legal assistance. The Minister of External Affairs pointed out last week that one reason for allowing penalties to go to parties was that they might be recouped what they were actually out of pocket for legal expenses, and the Prime Minister hurled at the honorable and learned member for Wannon the taunt that members of the legal profession h,id in a certain case divided up the sum of ^50, as to which, he said, the honorable and learned member seemed very anxious. If Ministers will apply that argument in this case, surely they will not say that it is unwarrantable to allow penalties to be imposed to reimburse the parties in respect of costs, and not to allow the Court to assess them as costs, but to compel it to assess them as penalties. Because the question is not whether lawyers are to have a hand in the matter, but as to who is to pay them.

Mr Watson - They will be minimized if they think that they will not get the costs allowed them.

Mr McCAY - Surely they will not get costs allowed them by this impeccable Court, except in a proper Case ?

Mr Hughes - Take a case where either no penalty, or only a nominal penalty of one shilling is inflicted, and where the costs might be relatively heavy.

Mr McCAY - If the penalties were nil or merely nominal, the Court would presumably follow the wholesome rule that, there being a contemptuous verdict, it should not cai ry costs.

Mr Hughes - I do not think that that would follow in an Arbitration Court.

Mr McCAY - It is not a very important matter, but I think that the Government may find afterwards that in their anxiety to do good they have done an injury to people whom it might be desirable to benefit. The fact that a party has to pay the costs or some costs on the other side, if he loses, is a very wholesome deterrent to speculative or casual actions. When a client is told how much it will cost him if he loses, very often it checks an otherwise litigious spirit. The provision as it stands is rather an encouragement to unnecessary litigation than a hindrance of it. People .with a just cause need not fear the omission of the words. It is not a vital matter, but, on the whole, I think that expediency and wisdom suggest an amendment.

Mr. DUGALDTHOMSON (North Sydney). - The Prime Minister has truly said that a similar provision is in. the Act of New South Wales; but, nevertheless, in almost all cases counsel appears for the parties in the State Court. That shows that the provision has not had the effect in- tended. If counsel is allowed to appear, then the party who is found responsible for unnecessarily bringing the case to Court should properly pay, whoever he may be. That seems only equitable. To my mind, a provision of the kind would deter people from bringing before the Court cases where there was very little prospect of getting a decision in their favour. It seems that in a new clause that will, be proposed at a later stage, the Ministry have decided to exclude counsel and agents. If counsel and agents are to be excluded by a later clause, I do not see much necessity for the provision before the Committee. I would suggest that the provision be omitted from this clause, and if the new clause be carried, inserted in that clause. Because it is contradictory to say in one clause that costs shall not be allowed to counsel, and to say in another clause that counsel shall not appear.

Mr Hughes - Only if both parties are agreeable.


Mr Hughes - Yes.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - If isintended to be carried, the provision might remain in here. I am sure that the experience of the Minister in the New South Wales Court is that, under a similar provision, counsel are very largely employed.

Mr Hughes - They are not excluded if the other party does not object.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - They are not allowed costs.

Mr Hughes - No.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - That is the provision with which we are dealing. I am sure that the Minister will agree with me that, although a similar provision is in the State Act, counsel are largely employed by each side- in fact almost invariably. I think that the equitable method is to allow the Judge to award the costs, or a portion of them, against one of the parties. I would suggest to the Prime Minister that he should not insist on this provision, but should depend entirely on the later provision which he intends to introduce, and that if he is defeated, then he should allow the costs of solicitor or agent to go to the parties who might be named by the Judge.

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