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Tuesday, 12 July 1904


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I quite agree with the honorable and learned member for Indi that honorable members who belong to the legal profession should not hesitate to express their opinions upon a question of this kind merely because it happens to be the practice to attribute to them a desire to make business for themselves. That is on a par with another objection which is often heard in Parliament, namely, that it is to the interest of members of the legal profession to make every Act of Parliament as complicated as possible in order that it may create business for their class. I think, however, that nowadays the majority of honorable members are too rational to suppose that that motive actuates honorable and learned members in this or any other House. Any honorable and learned member who would hesitate to express his opinion because of the suspicion I have indicated, would be wanting in his duty to the public. I agree with the honorable and learned member for Indi that the chief objection to be urged against this provision is that it would be against the best interests of the public, and certainly against the interests of the employers. As has been pointed out, there are in connexion with the trades unions a number of men who have displayed a considerable faculty for Court advocacy. Such men are selected on account of their special abilities, and become the regular counsel for the unions. On the other hand, many employers have no managers or other persons in their employment qualified to advocate their cases before the Court. Such employers would have to appear in Court against experienced advocates, who, although uncertificated because thev have not read for the Bar, or studied 1 in order to become a solicitor, are nevertheless highly capable and accomplished men.


Mr Watson - But the employers' unions have their secretaries.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - My opinion is that this is a deliberate attempt on the part of some one to create an entirely new occupation.


Mr Watson - Surely the honorable and learned member has seen the New Zealand Act?


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I do not say that the Prime Minister is actuated by any such desire. I have come to the conclusion that this is a most unfair proposal.


Mr Watson - The employers' unions have their secretaries, and the honorable and learned member knows it.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I listened to the Prime Minister with very great care, and I venture to say that he made out a very lame case. The Minister does not seem to know that at present every care is taken in the ordinary Courts to protect suitors against being called upon to bear any heavy expense that may be incurred by the other side in employing experienced counsel. In the minor Courts, such as the District Court, or the Petty Debts Court, no suitor can obtain costs from the other side above a certain scale. Therefore, if one party chooses to employ very expensive counsel the cost cannot fall on the other side. The very fact that the Prime Minister thinks that the other side will be at a disadvantage, if the employers have the right to engage counsel, is' an admission on his part that very great advantage attaches to the side which has the assistance of an experienced advocate. The Prime Minister seems to think that the experience gained in the State Arbitration Courts would apply to the Court to be created under the Bill. As has been pointed out, however, by the honorable and learned members for Ballarat and Indi, the Federal tribunal will be called upon to deal with constitutional questions of a very complex character. I would remind honorable members of the well-known Clancy case, in which the Judge of the New South Wales Arbitration Court held that he had jurisdiction, and was supported in that view by the Full Court. It was only when the matter came before the High Court that it was held that the Judge had travelled quite beyond his powers. The whole of such troubles might be averted if suitors had more eminent representatives before the

Arbitration Court. I should like the Committee to consider for a moment one of the anomalies which would arise under such a provision as this. We have in the Minister of External Affairs a member of the Bar. Up to about a year ago he was not so qualified, but he was at liberty to appear from time to time, and did appear, and does now appear, for his particular union, and for a number of other unions, in the Arbitration Court of- New South Wales.


Mr Mauger - But he is quite an exception.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - According to the argument of the Prime Minister, the moment that the Minister of External Affairs, experienced as he was before the Courts, was admitted to the Bar, and thus became qualified to appear before the Supreme Court of New South Wales, he should have been disqualified from appearing before the Arbitration Court.


Mr Frazer - The Minister of External Affairs advocates this provision as the result of his wide experience in the Arbitration Court.


Mr Isaacs - Would not the Minister be still qualified to' appear for his own union if he were one of its officers?


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - If he would-be so qualified, the clause has been drawn in a very subtle and misleading way.

An Honorable Member. - Could not a solicitor be appointed as an officer of a union ?


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I think that the provision aims at excluding professional men, whether solicitors or barristers, from appearing in the Arbitration Court as the representatives of either party.


Mr Isaacs - But would it not be possible for the Minister of External Affairs to appear if he were the officer of a union ?


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I do not think that is the intention.


Mr Kelly - It would be possible under the provision as it stands.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - The provision might be safeguarded in that respect ; but I contend that it should be absolutely negatived. The burden of proof regarding the necessity for the provision lies upon those who wish to place this embargo upon the liberty of a citizen. If I, as an employer, wish to have the assistance of qualified men who have studied, not merely the law, but the art of reasoning and public speaking, and the art of condensing that which has to be said within the smallest possible space, I should be free to obtain it. An employer might be single-handed. He might be in a small way of business, and not possess the faculty of clearly and effectively addressing- a tribunal such as the Arbitration Court, and yet he might be called upon to face the skilled representative of a large union. It is proposed to say to an employer thus placed. ".You must go into Court and represent your own case."


Mr Mauger - The very fact that he would be called upon to contest a case against a large union would imply that he would be only one of a number of employers engaged in the same industry.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - It does not follow. There might be only one man following a particular branch of manufacture and employing a large number of men. This provision would have the effect of obliging such a man to go into the Court and argue his own case. I should like to put this matter upon common-sense ground. Who is the best judge of whether or not the Arbitration Court is assisted by counsel in dealing with the matters which come before it? Surely the Judge. What has been the experience of Judge Cohen, the president of the New South Wales Arbitration Court? He says plainly that he has derived great assistance from the presence of counsel in his Court. Still, in the very teeth of the experience of the Judge of the New South Wales Arbitration Court, the Prime Minister has asked the Committee to assent to a clause which would deliberately deprive certain citizens of the right to be represented by counsel. I can quite imagine the appreciation with which the Prime Minister would have quoted the opinion of Judge Cohen, if it had happened to fall in with the views he is now advocating. I submit that the experience of that Judge affords the most impressive evidence as to the objectionable character of the proposed new clause. The Prime Minister has urged that if experienced counsel were engaged by the employers, the other side would run a great risk of being beaten. Does not that amount to an admission that counsel would assist in thoroughly threshing out any matters which might come before the Court? He is now advocating that the very class of men who are qualified by their long training to conduct cases of this kind should be practically shut out of the Court, and should not be permitted to represent the interests of certain parties who are incapable of acting efficiently for themselves. I do not hesitate to express my opinion upon this matter, despite the feeling which I am assured exists in this Committee against the employment of legal assistance. When it' is attempted, in the face of the experience of a man like Judge Cohen, to prohibit lawyers from appearing before the Court, I think it should be obligatory on the Prime Minister, who is advocating th t course, to thoroughly satisfy honorable members that the clause which he . wishes to insert in this most difficult Bill is desirable in the public interests. There is one more anomaly of which the Committee should take note. Under this Bill it is admitted that many constitutional questions may arise. If this proposal be adopted, the public will be at liberty to obtain the advice of the most eminent solicitor, or member of the Bar, upon the many difficult points which may arise in connexion with this measure, but the moment their cases are brought into the Court, to be argued before the President and two assessors, their legal adviser will be told, " You cannot pass within the portals of that tribunal, because you are a trained man, and are possessed of great experience." Will honorable members allow such a principle to" be embodied in the legislation which we place upon our statute-book? Will it not be sufficient if we provide that in all cases a reasonable scale of fees shall be charged, and that, no matter how much one party to a dispute may choose to pay to its counsel, it shall not be able to recover from the other party more than the* amount laid down in that scale ? That, I think, would be a much more rational course to adopt, and it would be more consistent with the experience of Courts of Law for hundreds of years past. Thus if one side chose to engage the services of counsel to whom it paid a hundred guineas, it would not follow that the other side, assuming that it lost its case, would have to pay that amount. The costs would subsequently come before a taxing officer, who is empowered to say to the successful litigant, " You had no right to pay this fee; it is too large. You can recover only ;£io from the other side." In connexion with the District Courts of New South Wales a very low scale of fees obtains. Under it the fees of counsel are fixed at one. guinea, two guineas, three guineas, five guineas, or seven guineas, according to the amount involved in the suit. Thus, although one of the litigants may mark fifty guineas on the brief of counsel, because some important principle may be involved in a particular case, he is only allowed - if he succeeds - to recover from the other side only, perhaps, two guineas or three guineas. I trust that the Committee will give serious consideration to this matter, and that they will not countenance an innovation which, I say, is unheard of.


Mr Watson - Unheard of ! What about the legislation of New Zealand and Western Australia?


Sir John Forrest - No such provision operated in Western Australia during the period that I was engaged in State politics.


Mr Watson - Yes; the right honorable member has forgotten.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - It is a provision which is unheard of in connexion with any Court in Great Britain or Australia.


Mr Watson - What about Western Australia?


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - The right honorable member for Swan says that no such provision is operative there.


Sir John Forrest - It was not contained in the Bill which I introduced; but a new Act has since been passed.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) -The new statute has not been operative long enough to enable us to form an accurate opinion as to its effect. I trust that the Committee will not be carried away by the craze that lawyers usually wish to prolong legal proceedings, in the face of the experience of the President of the New South Wales Arbitration Court.







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