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Thursday, 14 December 1905

Mr CHANTER (Riverina) - I am not at all satisfied with this clause. I can quite imagine a case in which the two parties interested may decide not to employ either counsel or solicitor.

Mr Groom - In a case of that sort, the Court would never exercise its discretion, unless it felt that very complicated issues were at stake.

Mr CHANTER - My experience of the High Court is the reverse of a pleasant one. ' The honorable and learned member for Parkes has said that under this provision it would be within the power of that tribunal to order the parties to any disputed election to be represented by counsel. If so, I say that the first paragraph of the clause is valueless, and I do not see much virtue in the second paragraph, which declares that in no case shall more than one counsel or solicitor appear on behalf of any party. I know that in the case which . I contested, three eminent barristers were engaged on the opposite side.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Only one counsel was paid.

Mr CHANTER - The clause further provides that the Court may award costs against an unsuccessful suitor, but that those costs shall be limited to £100. The honorable and learned member for Parkes has admitted that Mr. Blackwood's bill of costs amounted to something like £700. I am absolutely certain that as long as the High Court continues to act as the Court of Disputed Returns, counsel will be employed. I hope that the Minister will do something to meet what I am sure, notwithstanding the result of the division which took place on this question a Bay or two ago, is the wish of the Committee.

Mr. CAMERON(Wilmot).- I rise simply to correct a statement made by the honorable and learned member for Parkes. I understood him to say that in no case had two counsel appeared for the one party to an electoral dispute.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I said that two counsel did not appear at the same time in the Riverina case.

Mr CAMERON - In the case of the Denison election petition, my opponent was represented by two counsel, and they claimed thirty guineas each as their fee.

Mr. MALONEY(Melbourne).- I am aware that this clause has been taken from the Conciliation and Arbitration Act; but it seems to me that it may yet be capable of improvement. I propose to move an amendment which should enable us to settle the question without delay. If carried, it will render it impossible for a party to a petition before the Court to be put to large expense. I move -

That the words " or By leave of the Court " be left out.

Mr. GROOM(Darling Downs - Minister of Home Affairs). - I trust that the Committee will -not accept the amendment. The underlying principle of the clause is that, subject to certain modifications which are absolutely necessary, no party shall be represented by counsel or solicitor. In the first place, neither counsel nor solicitor are to appear except by consent of all parties. If the parties agree to counsel being briefed, no one can find fault with the adoption of that course. In the next place, a party is not to be represented by counsel or solicitor except by leave of the Court. It is quite possible that where the parties had refused to agree to legal assistance being retained, the presiding Justice would not exercise his discretion to allow counsel to appear. I feel confident that he would exercise it only when there was some important question of law to be investigated in the interests of the parties concerned.

Mr Chanter - Why should they pay for the interpretation of the law?

Mr GROOM - That is a remark which might be made in regard to all litigation. Under this clause, only one counsel may appear on behalf of any party, and the Justice, in exercising his discretion, 'would probably allow counsel to appear only for the purpose of dealing with certain questions.

Mr Maloney - If I were a party to a petition before the Court, and objected to counsel appearing, whilst my opponent, on the other hand, desired legal assistance, could not the Court compel me in those circumstances to agree to counsel appearing?

Mr GROOM - I might say that it was desirable to have counsel. We know that counsel appear before Elections and Qualifications Committees, and that there is no limitation as to the number who may be so retained.

Mr Maloney - If we had an Elections and Qualifications Committee we should do away with the right of counsed to appear before it.

Mr GROOM - I am sure that we should not do so. As a rule, Elections and Qualifications Committees are glad to have the assistance of counsel. Under this Bill we shall have a well-trained Justice to deal with election petitions.

Mr Mahon - Then he should be able to do without counsel.

Mr GROOM - No; counsel have often to make researches, just as private individuals have to do. The learned Justice might say : " This is a matter involving the interpretation of the Constitution, or the investigation of the history of the law of elections, and inasmuch as my decision will become part of the law of the land, I think that, in the interests of the whole community, counsel should be engaged."

Mr Mahon - Does the honorable and learned gentleman think that a fledgeling lawyer is of any assistance to an experienced Judge?

Mr GROOM - Undoubtedly. It often happens that a young barrister, eager to win his spurs,puts before the Court more complete information than a busy counsel would do.

Mr Mahon - The honorable and learned member is arguing against the competency of the Judges.

Mr GROOM - No ; the most brilliant Judge in the world could not be expected to know of all the decisions which have been given on a particular branch of the law unless he had time to look them up.

Mr Mahon - But a Judge works only five hours a day.

Mr GROOM - His hours of labour are not represented by the time that he sits on the Bench. Then again, a Judge does not have an opportunity to look into the facts and the law of a case weeks before it entersthe Court; he has to deal with it at the first blush.

Mr Mahon - There is no compulsionon him to give his decision forthwith.

Mr GROOM - The reserving of judgment leads to increased cost. Our desire is that decisions shall be given as expeditiously as possible. I urge honorable members not to accept the amendment, for in the light of my own experience, I think that the presiding Justice would sometimes find it invaluable to have counsel appearing. By passing the clause as it stands,, we shall, in effect, exclude counsel from the Court in relation to the consideration of questions of fact. Practically, this will be simply a Court of investigation. I ask honorable members to consider the position of the parties themselves. A litigant might have a very complicated and difficult question of law to face, or awkward points raised by an astute opponent. Besides, I ask the Committee to remember the absolute helplessness of some persons, even in appearing before a Committee of Elections and Qualifications. It is not every man who is gifted with the power of speech and of reasoning, or is able to properly put his case before a tribunal.

Mr Mahon - Such persons have no right to be in Parliament.

Mr GROOM -A man might make an excellent Member of Parliament, and yet be unable to argue questions of law glibly and quickly.

Mr King O'Malley - All that is necessary is to have the numbers.

Mr GROOM - Questions affecting legal rights, the validity of ballot-papers, or a nomination, the acts of returning officers, and so on, may arise, and honorable members, by voting for the amendment, may be depriving themselves of the opportunity to obtain assistance in such cases. Moreover, I ask the Committee not to do the Court the injustice of depriving it of the assistance which is essential if we are to have sound decisions on important questions of law. If what is done now does not prove satisfactory, it will be possible for us to make further amendments of the law, and I have already promised to do my best to obtain a simpler procedure, so that we may have what all desire - an impartial Court, which will try cases in the most expeditious and cheapest manner possible.

Mr. CAMERON(Wilmot).- Before the establishment of this Court election petitions were heard by a Committee of this House, a procedure which, I believe, is followed in come of the States Parliaments. That Committee not being composed of legal men, there might have been some reason for giving it legal assistance ; but surely a properly qualified Judge should be able to decide cases coming before him without the help of counsel.' Of course, if all the parties wish to employ counsel, I have no objection to that being done, but I hope that the amendment of the honorable member for Melbourne will be carried.

Mr. CHANTER(Riverina). - When Parliament established the Court of Disputed Returns it provided that it should be guided by the substantial merits and good conscience of each case coming before it, without regard to legal forms or technicalities, or the laws of evidence. Our wish was to create a tribunal before whom any man could appear and state his case, without being hindered by a want of knowledge of legal procedure. The Court is not called upon to decide matters of law ; those can be dealt with by the Full Court. The marginal note of section 199 of the principal Act reads, "Real justice to be observed." I naturally feel very strongly about this matter, because I have been through the mill, and ground pretty small, and I know what a serious mistake Parliament made in setting up the present tribunal. I hope that we shall get back again to this Court, which is the highest in the land. Even if the clause is amended as proposed, there will be nothing to prevent a party who is sufficiently wealthy from , feeing eminent counsel to sit alongside him, and prompt him in regard to legal procedure. I want to prevent that sort of thing. I shall vote for the amendment, because I think that, if carried, it will improve the clause ; but I hope that we shall yet retrace our steps, and make a Parliamentary Committee the Court of Disputed Returns.

Progress reported.

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