Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Tuesday, 12 July 1904


Mr GROOM (Darling Downs) - I ' move -

That after the word " parties," line 8, the words "or by leave of the President" be inserted.

I have some diffidence in speaking on this subject, but I hold that, in the public interest, it is not right that counsel should be altogether excluded from appearing before the Arbitration Court. The clause as it stands means that one party out of fifteen interested in the case may block counsel from appearing, seeing that the consent of all the parties must ,be obtained. This Court will be called upon to decide very important constitutional questions ; but I do not wish to dwell on a point which has already been argued at length. The Judges themselves are the first to admit that on very important questions of law they are frequently indebted to counsel. Judges, as a rule, are very busy men, who have to deal with a number of cases one after the other, and have not time to make elaborate investigation and research. Had they to do so, it means that they would have to reserve judgment at very great cost, and time would thus be taken up which should be devoted to the hearing of evidence and arriving at decisions. After all, the decision, under such circumstances, is only a one-man opinion at the best. On the other hand, in the case of important constitutional questions, where counsel, who have made research and investigation, are allowed to appear and argue exhaustively, the Court is placed in a position to give a decision which, as the honorable and learned member for Indi has pointed out, may result in a great saving of expense. It is admitted, I think, that lawyers, as a rule, are accustomed to consider and decide what is and what is not relevant to an issue ;. and by their advice they have frequently saved the Courts a great deal of time, which would otherwise have been spent in the consideration of absolutely irrelevant matters. But I can quite conceive that in this Arbitration Court there may arise some questions of fact in the pre- sentation of which counsel may not be required ; and in such cases, by the consent of the parties, counsel need not appear. My amendment, if carried, would mean that in an important matter, in which one of the parties thought the assistance of counsel was necessary, they could apply on summons to the Court, and the President, if the case in his opinion was a proper one, could certify for the employment of counsel. My amendment is very similar to a section recently inserted in the Victorian Factories and Shops Act of 1896, and assented to on the 30th October, 1903. That Act provides -

Except as hereinafter provided, no barrister and solicitor or agent shall be allowed to appear before or be heard by the Court. By the direction of the Court, or with the consent of both parties to the appeal or reference, either party may, at its own cost, be represented by a barrister and solicitor or agent. In appeals by a minority of employers or employes, as provided under sub-section i of this section, the Court may give such directions for the representation of parties as may in the circumstances appear to be proper.'

The Court referred to in that section is one for hearing industrial appeals, and, consisting as it does of a Judge of the Supreme Court, is in much the same position as the tribunal under the Bill The Judge has power under the Victorian Act to direct, in cases which he deems proper, that counsel shall appear; and I ask the Prime Minister to accept what I believe is a fair and reasonable amendment. I do not ask that counsel shall appear in every case, no matter how small the cause may be. The honorable and learned member for Ballarat, and the honorable and learned member for Parkes take the view that only in cases where important questions arise counsel shall appear ; they do not ask that legal assistance of that kind shall be employed where small matters of fact are being investigated. In the important questions which are bound to arise in this Court, and in which the Judge may feel that he needs the aid of counsel, it would be wrong to deprive him of the assistance to which he is entitled. Even in important cases before the Full Court, where there are the combined forces of the Judiciary, we find Judges expressing their gratitude to counsel for the aid they have rendered. And in cases on circuit, in country districts, it is not unusual for Judges to admit that owing to authorities not being brought under their notice their decisions have not been altogether correct. Our desire is to make an absolutely efficient, although not a costly Court. I agree with the honorable and learned member for Indi that we should regulate the matter of costs in as fair a way as we think fit ; but that, whatever we do, we ought not exclude the assistance to which the Court is justly entitled. We know that by the co-operation which takes place naturally in the formation of society, various occupations are taken up by different persons ; the growth of lawyers and their class is the outcome of the society in which we live; it is really an expression of the wants of the community. As our community grows, and becomes more and more complex, the lawyer is in more extensive demand ; every new discovery creates a new branch of law. Electricity has brought into existence a whole set of statutes and decisions, regulating the control and management of industries carried on by means of this power ; and every branch of commerce - bills of lading, bills of exchange, insurance, contracts' - calls for legal assitance. As society becomes more complex, the more we need men specialized in questions of law. It is idle for people to think that we can do away with the lawyers. We must do away with complex civilization if we would do away with men whose special work it is to investigate the duties and rights of society. My desire is to have an amendment which will give to the Court the power and assistance to which it is entitled.







Suggest corrections