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Thursday, 30 August 1906

Senator DRAKE (Queensland) . - It seems to me to be a very unsatisfactory thing for a Court of Justice to be occupied in determining whether something is going to happen. I do not remember any Act of Parliament in which that expression is used. It is something quite new, strange, and portentous. I do not remember any Act under which a Court of Justice is required to sit and decide upon the probability of a thing. Of course, almost every case that comes before a Court is a matter of probability, but it is never so expressed in Acts of Parliament. A Judge and jury sit to try a case, and find certain facts; or a Judge sitting without a jury finds on evidence, after listening to both sides. But the word " probably " is here used. The Court is to hear evidence on both sides, and determine whether something will " probably " happen.

Senator Best - Is not " reasonable and probable cause " an expression familiar to the honorable senator?

Senator DRAKE - Certainly.

Senator Best - This is just the same.

Senator DRAKE - No. In cases of libel, where a person has " reasonable and probable cause " to say a certain thing the term is used. But that is what exists in the mind of a certain person. The " reasonable and probable cause " is urged as a justification for saying certain things. But I never heard of a Court being required to sit and decide whether a thing is " probable " or not.

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