The Hon. M. R. EGAN (Treasurer, Minister for Energy, Minister for State and Regional Development, Minister Assisting the Premier, and Vice-President of the Executive Council), on behalf of the Hon. J. W. Shaw [8.48 p.m.]: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

Mr President, this bill provides a number of measures to increase the jurisdiction of the District Court.

Before outlining these measures, I would like to take the opportunity of detailing the existing jurisdiction and workload of the District and Supreme courts.

The District Court currently has general jurisdiction to hear matters where the amount claimed does not exceed $250,000, whereas the Supreme Court has unlimited jurisdiction.

District courts in other Australian jurisdictions have a far greater civil jurisdiction. For instance, the District courts of Victoria and Western Australia both have unlimited jurisdiction in relation to personal injury matters. The District Court of South Australia has unlimited general jurisdiction.

It is of interest to note that statistics maintained by the New South Wales Supreme Court reveal that 52% of the verdicts and orders in the common law division in 1996 were, at face value, within the District Court’s existing jurisdiction, that is for an amount under $250,000.

Honourable members should be made aware of the significant inroads the District Court has recently made into the delays of that court. Currently the State average time period for civil matters in the District Court from commencement to finalisation is 14.8 months.

This period should be contrasted with the time period in the Supreme Court for the completion of matters where the current estimated time to dispose of a civil matter on hand is 32 months.

To ensure that judicial and court resources are utilised more efficiently, it is proposed to increase the jurisdiction of the District Court in a number of ways.

First, this bill increases the maximum amount for which civil causes generally may be brought in the District Court from $250,000 to $750,000.

Secondly, the bill gives the District Court unlimited jurisdiction to hear all motor vehicle accident cases. The bill defines these cases to mean a claim for damages to which part 6 of the Motor Accidents Act 1988 applies. The provisions of that part apply to claims involving death or injury caused by road vehicles, city and State trains, or ferries or other public transport watercraft.

Honourable members are advised that the District Court already deals with most of these cases and has the necessary skill and expertise to deal with the proposed increase in jurisdiction.

Moreover, in the vast majority of cases, the only distinction between motor accident matters heard in the District Court and those heard in the Supreme Court is the quantum of damages awarded. The issues in determining these matters are largely the same irrespective of which jurisdiction they are brought in.

As a safeguard, the parties to proceedings in the District Court will continue to be able to apply to the Supreme Court, pursuant to section 145 of the District Court Act, to have proceedings transferred to the Supreme Court.

Clause 12 of schedule 1 to the bill, however, modifies that right in relation to personal injury matters and motor accident claims.

An action for damages in respect of personal injury or death (other than a motor accident claim) may only be transferred to the Supreme Court if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $750,000 or that there is other sufficient reason for trying the action in the Supreme Court.

In the case of motor accident claims, the Supreme Court may only transfer such proceedings if it is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $1 million and that the case involves complex legal issues or issues of general public importance.

This mechanism will ensure that the Supreme Court only deals with those more complex motor accident claims and personal injury claims which require the attention of the Supreme Court and cannot otherwise be disposed of in the District Court.

As an additional measure, the bill provides that the Supreme Court may consider, as soon as practicable after the

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commencement, and before the hearing, of any action for damages in respect of personal injury or death, whether an order transferring the proceedings to the District Court should be made.

Where the Supreme Court forms a view that such an order should be made, the court is required to make an order effecting the transfer of the matter to the District Court unless it is satisfied, on criteria specified by the proposed amendment, that the matter should be retained in the Supreme Court.

The criteria are similar to those on which the Supreme Court decides on an application to transfer a similar action from the District Court to the Supreme Court.

In practice, the duty being placed on Supreme Court judges to consider whether an action is being brought in the appropriate jurisdiction will be exercised, as a matter of course, as part of the differential case management of matters in the Supreme Court.

It is also intended that the Supreme Court will rely upon this power to transfer not only matters filed in the Supreme Court after the commencement of the increased jurisdiction of the District Court, but any backlog of matters in the Supreme Court which may subsequently be identified as appropriate for determination in the District Court. The bill amends section 143 of the District Court Act to make it clear that the Supreme Court has the power to make such an order.

The bill also provides that, where a plaintiff in the Supreme Court applies to have the matter transferred to the District Court, the defendant is not permitted to oppose the application. This proposal is intended to encourage plaintiffs to transfer matters to the District Court without the intervention of the court.

By substantially increasing the jurisdiction of the District Court in this manner, a large number of matters - including the matters referred to earlier which currently fall within the jurisdiction of the District Court - will be re-directed to the District Court, which is the appropriate forum for these matters to be heard.

In addition, once these matters have been re-directed to the District Court, they can expect to be dealt with expeditiously by the District Court, utilising its efficient, and well proven, case management practices.

The removal of these matters to the District Court will also free up the Supreme Court to deal with its backlog of criminal matters.

Other than reduced court delays and a more efficient use of court and judicial resources, the parties to these proceedings can also expect to benefit from these measures.

For instance, plaintiffs who are to receive awards of damages, such as plaintiffs in motor accident claims and personal injury matters, can expect to receive those awards at an earlier time than would otherwise have been expected.

In addition, as the District Court sits in more regional locations and sits more frequently at those locations than the Supreme Court, the extension of the jurisdiction of the District Court will mean that litigants in regional communities will be able to have more of their civil disputes resolved within their own region without having to travel to Sydney, or to larger regional centres for sittings of the Supreme Court.

Litigants in general will benefit from the more efficient use of court and judicial resources.

Honourable members should be made aware that, in the recent budget, the Government allocated $1 million to enable additional resources to be provided to the District Court to deal with an increase in jurisdiction of that court and the subsequent transfer of the backlog of Supreme Court matters.

These additional resources will ensure that the increase in the jurisdiction of the District Court will not adversely affect the matters currently awaiting determination in that court.

This bill also provides a number of other measures to increase the jurisdiction of the District Court. First, the bill extends the equity jurisdiction of the District Court over claims involving money in the form of debt and damages to the extent of its new monetary limit of $750,000.

This will allow the District Court to deal with those ancillary equitable issues which may arise from time to time in cases coming before the court involving a claim for debt and damages.

Currently, petty nuisance and trespass cases involving injunctive relief must be tried in the Supreme Court, minor obligations cannot be specifically performed and actions at law cannot be defended by cross-claiming for equitable relief without transferring the matter to the Supreme Court.

These difficulties often result in added costs and delays to litigants, particularly country litigants who may have to travel to the Supreme Court in Sydney as opposed to having their matters disposed of by the District Court in their region.

The additional equitable jurisdiction for the District Court provided by this bill will address these problems. Not only will there be a more efficient use of court resources, but there will be greater access to justice for the community, particularly the rural community.

In short, the District Court will be able to deal with ancillary equitable issues in such matters without the need for separate proceedings to be commenced in the Supreme Court.

The bill also provides that a claim under the De Facto Relationships Act 1984, the Testator’s Family Maintenance Act 1916 or the Family Provisions Act 1982 involving not more than $250,000 may be brought in the District Court. Currently the court has jurisdiction to hear matters under the Testator’s Family Maintenance Act or the Family Provision Act involving amounts not greater than $20,000, but has no jurisdiction to hear matters under the De Facto Relationships Act.

These measures will relieve the Supreme Court of dealing with relatively minor matters which are currently dealt with in the Supreme Court by masters.

At the same time, the increase in jurisdiction of the District Court to deal with these matters will provide greater access to members of the community by allowing proceedings under these Acts to be brought before the more widely located District Court.

In conclusion, I again emphasise the benefits to be derived by the measures to increase the jurisdiction of the District Court which are provided by this bill.

•there will be a more efficient use of judicial and court resources;

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matters in both the District and Supreme courts can expect to be dealt with more expeditiously;

the time period for plaintiffs who are to receive awards of damages will be greatly reduced; and

access to justice to members of the community, particularly in regional areas of the State, will be improved.

I am sure that honourable members will agree that these are desirable outcomes.

Finally, I am advised that both the Chief Justice and the Chief Judge of the District Court strongly support the increase in the jurisdiction of the District Court provided by this bill.

I commend the bill to the House.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [8.48 p.m.]: The Opposition is not opposed to the District Court Amendment Bill. However, though it agrees with the concept of an increase in the jurisdiction of the court, it will move amendments to alter the amount of the jurisdictional changes. The effect of this legislation is threefold: first, to increase the jurisdiction of the District Court in personal injury cases from the current level of $250,000 to $750,000; second, to transfer the administration of all motor accident claims to the District Court so as to remove completely from the Supreme Court any motor accident claims; and third, to provide a mechanism whereby difficult cases, if I can use that general expression, are transferred from the District Court to the Supreme Court for consideration.

I understand that the Chief Justice of the Supreme Court and the Chief Judge of the District Court strongly advocate the view that the jurisdiction of the District Court should be raised to $1 million for personal injury cases. In their submissions to the Government, the New South Wales Bar Association and the New South Wales Law Society advocated $500,000 as the jurisdictional limit. The Attorney General sought to resolve the difference by determining $750,000 as the jurisdictional figure. According to my information there has been no rational basis for determining whether the jurisdictional limit should be $1 million or $750,000. If there is a rationale, it is to be found in the Chief Justice’s desire to lessen the workload of the Supreme Court by getting rid of as much personal injury work as he can and, therefore, allowing the Supreme Court Common Law Division to get on top of its massive backlogs.

The Government has made a clear decision that it will not allocate resources for additional permanent judges in the Supreme Court. My recollection is that a Supreme Court judge costs between $500,000 and $700,000 per annum. The Government has said: no more judges. The Supreme Court has massive backlogs and cannot get any more judges. To deal with this a mechanism is to be introduced to flick cases out of the Supreme Court and into the District Court. On information available to me, no analysis has been undertaken of the total impact. Will there be massive increases in court delays? Will more judges be needed? If so, how many? What procedural changes will be introduced? No analysis of that type has been undertaken.

It is not often that one sees a coalition of views between the legal profession and the insurance industry. In my experience it has been rare that those two industries have agreed. Yet on this occasion I received a letter from the Insurance Council of Australia indicating its opposition to the legislation, and it went so far as to send a delegation of its senior officers together with its New South Wales President, Brian Keane, who is the Managing Director of AAMI. They indicated to me the council’s strong opposition to the Government’s proposals. In fact, I received a delegation of 12 from the Insurance Council, Bar Association, Law Society and Australian Plaintiff Lawyers Association. They all came together because of their concern about the proposed legislation and because of their desire to show their solidarity.

I will give an example of reasons for their concern. They say that almost all of their cases are long cases. The easy cases get settled but the bigger, more complex cases take a long time to be heard. District Court procedures to date have shown that long cases are not getting dealt with. The court tries to get rid of as many cases as it possibly can by dealing with lots of short cases. The District Court judges usually sit in one place for only a week at a time. If a case is estimated to take five days a judge will try to start it on Monday. If the case finishes by Wednesday well and good. But on the Thursday a judge will not take a case that is estimated to take five days because the court will only be sitting there for another two days, and so those cases are adjourned.

I am told that on Mondays, at the call-over of the list, it is not uncommon to find that long cases are being called over for the third time. That is, a case reaches the court, all the witnesses are lined up and the case is not heard. The case is brought back to court in another three months’ time and the same thing happens. Many plaintiffs have to try on a third occasion to get a judge to hear their case. It is so bad that on Monday of this week a presiding judge dealing with the list was heard to say in public court, "This list has just got to be a joke." That is the level it has reached in the courts.

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This legislation will send down all of the motor accident cases. What is the difference between a personal injury case that has arisen from a defective food product and a motor accident case? If it is good enough for defective food product personal injury cases over $750,000 to be dealt with in the Supreme Court, why is it not good enough for motor vehicle accident cases that are so severe they will warrant verdicts in excess of that amount? There is no rationale, yet the Government has decided, for the purpose of efficiency as it sees it, that all motor accident cases will be heard in the District Court. I met with the insurance industry and all the lawyer associations. They wanted the jurisdiction to be left at $500,000 and believed that would cope with the vast majority of cases but still leave the more difficult cases to be dealt with in the Supreme Court.

I indicated to them that I believed that a more efficient mechanism was needed to alter the jurisdictional levels of the courts rather than coming back to Parliament all the time. I indicated that I would be proposing to introduce an amendment to the legislation to reduce the limit from the $750,000 that has been arbitrarily chosen by the Attorney General to $500,000 and to allow the Attorney General to vary the jurisdictional limits by regulation. The District Court has a range of jurisdictional limits. Before the Attorney General uses the regulation he should undertake a regulatory impact statement on each occasion to identify the number of cases likely to be involved, the impact on court delays as a result of the changes, extra resources requirements, and the mechanism for transferring resources between the various courts or for obtaining those resources.

I also indicated that I would propose an amendment to allow a determination to be made as to whether different categories of cases ought to have different jurisdictional limits. I believe that is the most efficient and transparent way of handling this issue and we will not have to keep on bringing legislation back here. To my surprise, again all the lawyer associations and the Insurance Council agreed with that approach. Generally they are totally opposed to the use of regulations in this way, but they have reached agreement. So all of the practitioners, the insurers who make the payments, and the plaintiff lawyers agree on a reform, but the Government will not accept it.

The Government ought to review its position and achieve substantially the reform that is wanted. To get the additional reform the Government has to be more transparent as to why it is introducing additional reform and how it will do it, and be accountable for it. It is with those observations that I indicate my support for the legislation but I ask the crossbenchers on this occasion to seriously consider the amendments because they are dealing with the welfare of the most seriously injured in our community. When all of the people who are engaged in the process - all of the users, both those who are interested in the welfare of the plaintiffs and those who, it might well be said, are only interested in the dollars, the defendants - agree that the Government’s proposals are wrong, one has to ask why the Government is doing it. As everyone agrees that the proposal will achieve the majority of the Government’s objectives, and will be fairer and more accountable, I urge the House to support it.

The Hon. ELISABETH KIRKBY [9.00 p.m.]: On behalf of the Australian Democrats I support the District Court Amendment Bill. I have listened with great interest to the contribution of the Leader of the Opposition. It is true that the majority of associations to which Australian lawyers belong are opposed to the bill. I have received letters from the Australian Plaintiff Lawyers Association, the New South Wales Bar Association, the Motor Accidents Insurers Standing Committee, and the Chief Executive Officer of the New South Wales Law Association - representative bodies of the legal profession - all opposing the bill. We must consider the needs of people who have to get their cases before the courts, the needs of those who have been injured and the needs of victims. Today I received a letter dated 24 June from Lewis and Fawkner, solicitors, who have offices in Wollongong, Wagga Wagga and Kiama. It stated:

In view of the severely curtailed frequency of the Supreme Court sittings in Wollongong, I feel that the District Court’s extended jurisdiction can only be of benefit to litigants. It must always be in litigants’ interest to have their matters determined with as little delay as possible.

This is the whole crux of the problem: many litigants believe that there will be an inordinate delay in cases to be heard in the Supreme Court. The views of those opposed to the legislation are very interesting, and I will place some of them on the record. The Australian Plaintiff Lawyers Association said:

The District Court lacks the resources (eg. no facilities for juries, transcripts, adequate protection of exhibits, and relative inexperience of Judges) to deal with large and complex matters which will be transferred to it.

The efficiency of Supreme Court trials could be improved by introducing similar reforms to those used in the District Court, thereby obviating the need to transfer matters.

Recent improvements in District Court caseflow will be undermined, thereby increasing pressure on financially

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hamstrung injured persons to settle claims for smaller sums rather than risk lengthy delays awaiting trial. The Court has received no additional resources to deal with an increased caseload.

I suspect that is the instinctive view of members of the legal profession who have advanced to the position of Senior Counsel and therefore believe they have far greater wisdom and far greater knowledge than others. The third head of opposition contains a very interesting phrase. It says:

Recent improvements in District Court caseflow will be undermined, thereby increasing pressure on financially hamstrung injured persons to settle claims for smaller sums . . .

This is the crux of the opposition by certain members - I know that it is not all members - of the legal profession. The intention is to hang out as long as they possibly can to get the largest possible award. By so doing they are financially advantaged. It is possible that from time to time individual litigants are also financially advantaged, but consumers and members of the public as a whole are not financially advantaged, because the higher the settlements, the higher the insurance premiums. I, too, received the fax dated 24 June from the New South Wales Bar Association, referred to by the Leader of the Opposition, which states:

By way of further information regarding the current situation at the District Court, the following figures may be of assistance. They have been supplied by a barrister who regularly appears in the District Court.

Civil List
NSW District Court Monday
23 June 1997

19 Judges (of whom 14 were Acting Judges). Four of them were part heard from other times.

32 matters listed for hearing. Nine of them had been not reached on at least one previous occasion. Three had some other form of priority listing

12 cases had starts at 10.00 am. Several were long matters eg. 5-8 days
20 cases in the Reserve List

Civil List Judge Tony Garling made the comment in open court: "Is this list a joke?"

It is pejorative to note that 14 of the 19 judges were acting judges. I can appreciate the frustration and anger of legal representatives who appeared in the civil jurisdiction of the New South Wales District Court on Monday of this week, but I also appreciate the frustration and anger of the litigants. At present, delays in the Supreme Court are far longer than delays in the District Court. If delays in the District Court increase as a result of the amendments suggested by the Attorney General, it will be necessary to reassess the matter. I do not know by what mechanism it has happened, but delays in the District Court are now shorter than delays in the Supreme Court. Despite the pecking order and the reasons people are appointed judges of the Supreme Court or appear as legal counsel before that court, this House should not necessarily believe that it is inevitable that cases heard in the District Court are handled by less competent people and are treated less seriously than if the litigants had waited possibly many months to have their cases heard in the Supreme Court. I would like to place on the record another piece of correspondence I received the day before yesterday from Marsdens, a firm of solicitors that supports the Attorney General. The letter stated:

I have full briefing notes in relation to the legislation, District Court Amendment Bill.

The proposal is: -

(a) To increase the jurisdiction of the District Court from 250 to 750.

(b) To allow motor accident cases to be dealt with by the District Court.

(c) To bring other matters in to the District Court.

I’ve got to say Elisabeth, that I totally and absolutely agree with this legislation.

There are enormous delays in the Supreme Court.

There does not seem to be any way to overcome the Supreme Court delays.

However, the District Court has substantially reduced its delays and it appears that prima facie one can get on for hearing in a District Court matter within twelve (12) months.

The average person believes that 12 months is an inordinate delay. The average person would probably be extremely happy if 12 months was considered far too long for a motor accident case. If people have to wait longer than that to go to the Supreme Court, they will eventually believe that 12 months is not too bad. The letter continues:

I know that there is some opposition from both the Law Society and the Bar Association.

I can understand that opposition.

The reason I can understand it is that if these matters proceed in the Supreme Court the costs are higher. Supreme Court costs are much higher than District Court costs, therefore, lawyers have a vested interest.

I think the most important issue is the client and the clients want their cases dealt with immediately and they want some

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urgency, they want to get them over and done with and they want to get on with their lives.

The clients don’t want to hang around for five or six years simply because they can go to the Supreme Court.

We are here in Campbelltown, an office employing over 150 people, we know that the clients really want their matters dealt with, they don’t want to wait.

I know that there is also some argument from the professional associations to the effect that the District Court Judges are not as competent as Judges of the Supreme Court. But all I can say about that is that I do not agree.

I think that is very, very unfair.

Those that select Judges, select the best and true it is that you can get some duds into the Supreme Court as well as some duds in the District Court.

I therefore urge upon you on behalf of this firm, that you too support this legislation.

I am informed that the Council for Civil Liberties supports the legislation. It is right to support the legislation and not to support the amendments that will be moved in Committee by the Leader of the Opposition. If I were a client I would want my case dealt with quickly and urgently; I would not want to hang around for five or six years simply to have my case heard in the Supreme Court. If that is the delay in the Supreme Court, I can fully understand why the Attorney General has introduced this bill. I support the bill.

Reverend the Hon. F. J. NILE [9.14 p.m.]: Call to Australia supports the bill in principle. Like the Hon. Elisabeth Kirkby, we have received a lot of correspondence - to which I will refer - from the legal fraternity and insurance companies about the bill. They have almost nothing to say in favour of the bill, but have a lot to say against it. The object of the bill is to amend the District Court Act 1973 to increase from $250,000 to $750,000 the maximum amount for which civil claims generally may be brought in the District Court; to allow motor accident cases to be brought before the court, irrespective of the amount claimed; to allow applications under the De Facto Relationships Act 1984, the Family Provision Act 1982 or the Testator’s Family Maintenance and Guardianship of Infants Act 1916 that involve amounts or property to the value of not more than $250,000 to be brought before the court; and to allow the court to grant equitable relief in matters of debt and damages involving an amount not greater than $750,000.

The main purpose of the bill is to transfer from the Supreme Court to the District Court cases in which the maximum amount of damages is up to $750,000 - almost $1 million. We have received correspondence which questions the qualifications of District Court judges to handle these types of cases, especially catastrophic motor accident cases, which require a great deal of skill and experience. We received a fax from the Acting President of the New South Wales Bar Association, which stated:

The NSW Bar Association has very grave concerns about the impact of this Bill in practical terms on all users of the justice system.

Contrary to accepted convention, this Bill has not been circulated to the NSW Bar Association or Law Society of NSW for comment. We are in total opposition to the Bill, as are the Insurance Council of Australia, Australian Plaintiff Lawyers Association and the Mining Union, plus other unions.

We ask that as an Independent you challenge and debate this Bill fully, and not to accept any of the Government’s assurances. To assist, we have provided a list of questions which we suggest be asked of the Government.

This is a difficult situation for those of us who are not lawyers. I seek leave to incorporate in Hansard the list of questions supplied to me by the New South Wales Bar Association.

Leave granted.
______

1. Is the bill one whose terms have been opposed by the Bar Association of New South Wales, the Law Society of New South Wales, the Insurance Council of Australia and the Australian Plaintiff’s Lawyers Association?

2. Was the opposition to the terms of the Bill based upon the proposition that the District Court lists are now and have for a long time been overloaded, with the District Court in Sydney alone obliged to have a callover of not reached matters each Monday at which up to 20 cases not reached during the previous week are allocated further dates some months ahead, with no guarantee of being reached on that occasion?

3. Why has the bill been introduced to the House without observing the usual practice of making it available to the Bar Association and the Law Society in advance?

4. Is it the fact that the District Court has a list of acting judges numbering 41 at the present time?

5. Are the delays endemic in the District Court having the effect of increasing the costs of litigants significantly?

6. Did the New South Wales Bar Association common law division recently pass a resolution unanimously condemning the proposed changes by reason of their impact on litigants, particularly plaintiffs?

7. Is it the fact that no assessment has been made of the effect of transferring cases which would otherwise be heard in the Supreme Court to the District Court; in particular has the impact of transferring longer and more

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complex cases to a court already itself overloaded been ignored?

8. Do the effects of the new Bill if passed include the loss of Supreme Court services to the circuit towns and cities of New South Wales, save for the rare criminal sittings? Is the removal of civil work from the Supreme Court circuit towns to be followed by the sending of criminal cases heard by the Supreme Court from country venues to Sydney?

9. Why is the bill being forced through Parliament against the opposition of the legal profession, the insurers, the plaintiff lawyers organisation and a number of major unions without examination of the consequences which those organisations have foreshadowed?

10. In short, what is the rush?

______

Reverend the Hon. F. J. NILE: On 21 June the New South Wales Bar Association sent me the following letter about the bill:

It is opposed by the Law Society, the Bar Association and all insurers. In other words, it is opposed by the litigants for whom the Court system is supposed to function.

It further stated:

It is discriminatory. It rates catastrophic injury through slipping in a shopping centre higher than the same injury in a motor accident. It puts politicians defamation actions and modest disputes over wills and disputes between companies (most of which remain in the Supreme Court) ahead of claims of serious and catastrophic injury affecting ordinary citizens.

The document further stated:

It is unworkable. The District Court has done a worthwhile job in reducing its Civil backlog. But it is about to switch those resources to its large criminal backlog. Even now over 20 matters a week are not reached in the District Court through lack of judicial resources. Few long matters get on because judges are rarely in one place for more than a week.

The District Court building (Maddison Towers) is inadequate. Its lifts barely cope now. There are inadequate facilities for legal practitioners, parties and witnesses to speak privately. There are insufficient courts equipped with Jury facilities, and inadequate Jury holding areas. Parties currently entitled to Juries in actions will be forced to wait even longer for a hearing.

The main criticism seems to have some validity. Referring to the District Court, the document stated:

The members of the Court are generally unsuitable for long, complex and very large claims. Most District Court Judges lack Civil Jury experience. Most lack the background, experience and expertise to assess major, let alone catastrophic injury claims.

The document also stated that 41 acting judges have been appointed to the District Court and that it appears likely that even more will be appointed. It continued:

This is inappropriate. A Judge is often called upon to decide between a private person and the State. That Judge should have no incentive to favour the State in the decision. An Acting Judge looking for permanent appointment is clearly in a much weaker position than a permanent appointee.

Implicit in that statement, of course, is the suggestion of a very serious conflict of interest in respect of the decisions of acting judges. The Bar Association document also stated:

The District Court lacks the capacity and facilities for long matters which make up much of the Supreme Court’s backlog . . .

A daily transcript of the proceedings in the District Court is a rarity. Yet for Jury trials, complex and major cases, a running transcript is essential. Again the facilities are inadequate for this purpose. The provision of a million dollars in additional resources for the District Court will be readily eaten up without resolving the problems.

The Bar Association agrees that the jurisdiction of the District Court should be $500,000, not $750,000. The association also believes that the District Court judges may make bad decisions and that, therefore, there would be many more appeals against those decisions. I also received a document from the legal fraternity, bearing the names of 20 senior lawyers, including the Hon. Tom Hughes QC, and Messrs Ellicott, Lawrence and Neil. I will not list them all, but they are a group of legal specialists of the highest qualifications who expressed their concern about the bill. On 24 June I received a further criticism of the bill from the New South Wales Bar Association. The facsimile document stated:

By way of further information regarding the current situation at the District Court, the following figures may be of assistance. They have been supplied by a barrister who regularly appears in the District Court.

Civil List
NSW District Court Monday
23 June 1997

19 Judges (of whom 14 were Acting Judges). Four of them were part heard from other times.

32 matters listed for hearing. Nine of them had not been reached on at least one previous occasion. Three had some other form of priority listing.

12 cases had starts at 10.00 a.m. Several were long matters eg. 5-8 days.

20 cases in the Reserve List.

Civil List Judge Tony Garling made the comment in open court: "Is this list a joke?"

The Bar Association seriously questions whether the District Court as currently structured with so many acting judges and poor facilities could take on this
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added responsibility. Call to Australia received a further facsimile from the New South Wales Bar Association yesterday. It contained some very strong criticisms about the second reading speeches of Government members. The association stated that of the three biggest jurisdictions - New South Wales, Victoria and Queensland - it is notable that Queensland’s system is essentially the same as New South Wales; and that in Victoria both industrial accidents and motor vehicle accidents have essentially been eliminated from the court system and are dealt with by tribunals, with very few personal injury cases in that jurisdiction. The Standing Committee on Law and Justice is presently investigating these issues and it may be that a recommendation from that committee will lead to the introduction of tribunals. I am not saying that it will or that it will not. No decision has been made, but the committee is considering it. The Bar Association also stated:

Presently there are very few cases in the District Court, even where there is extended jurisdiction, in which the verdict is in excess of $1 million. Anecdotal evidence suggests that at most this would be one or two cases per year. Very few cases go beyond the $500,000 figure. The effect of this is that District Court judges have very little experience of catastrophically injured plaintiffs. To say that this experience would increase if in fact the jurisdiction was changed in accordance with legislation to allow that experience is once again false. There are not very many such cases. Accordingly, a District Court judge would rarely get the opportunity to hear a case that is presently heard in the Supreme Court. Beyond that, is it really being suggested by the Government that District Court judges learn on the job in relation to hearing claims for damages for those who have been catastrophically injured?

The association makes the valid point that Supreme Court judges are drawn from the ranks of lawyers with significant experience in dealing with cases that involve catastrophically injured plaintiffs, and share a wealth of experience that ought to be preserved. It is a challenge for the Government as to how it can transfer that experience to the District Court. The association is of the view that very few District Court judges have experienced certain types of cases involving personal injury. It was critical of the legislation and stated that it is a myth to suggest that the District Court is up to date. Obviously there are problems in the operation of the District Court. I seek leave to table that document, together with a letter dated 23 June bearing the signatures of the lawyers who authorised it.

Leave granted.

I seek leave to table a letter from the New South Wales Law Society, which is critical of the legislation.

Leave granted.

I seek leave to table a letter from the Chief Judge at Common Law in the Supreme Court and the Chief Judge of the District Court, expressing their views in respect of the matter.

Leave granted.

Finally, I received a letter from the executive manager of the Motor Accident Insurers Standing Committee, MAISC, to the effect that licensed insurers consider motor accident matters should not be dealt with in any way different to other civil matters, and that a jurisdictional limit of $500,000 would be acceptable if a variation were to be introduced. I have been pleased to present to the House the concerns of the legal fraternity.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [9.29 p.m.], in reply: I thank honourable members for their contributions to the debate. The bill raises some difficult issues and some issues worth debating about the structure of the court system. Despite some of the rhetorical flourishes in the submissions of various legal bodies, the fact is that there is widespread consensus that many more personal injury cases ought to be heard in the District Court. The profession supports doubling the limit in the District Court.

Despite suggestions in some of the material, massive consultation has taken place in relation to these matters. The Government has compromised and sought to reconcile the differences. We have spoken to the New South Wales Bar Association and the Law Society of New South Wales time and again, so all interested parties have been involved in the development of this policy. The heads of jurisdiction, the Chief Justice of the Supreme Court and the Chief Judge of the District Court, have been very much involved in the discussions. The profession is divided about these matters. Many members of the junior bar and many solicitors want to have their cases heard quickly. It is beyond dispute that in the past 12 months or so the District Court has demonstrated an ability to clear the civil list. In the Supreme Court, regrettably, there are long delays.

The beneficiaries of this legislative package will be the plaintiffs, those who need compensation quickly and who should not have to wait four or five years to have their cases heard. One aspect of the lawyers’ submissions, which have quite properly been referred to by honourable members during the debate, that disturbs me a little is the criticism of the qualifications of District Court judges to deal with these matters. The District Court is a fine court and
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the judges are certainly competent to deal with matters of this kind. It must be said about motor vehicle accident cases - and I say this with no disrespect to practitioners who deal with such cases - that the question of negligence or liability is usually relatively straightforward. That is not so in every case but generally speaking in running down cases, if I may use that colloquialism, the question of liability is tolerably clear.

The question of damages is largely a matter of mathematical calculation of economic injury and the like. No vast forensic science is required to deal with motor vehicle accident cases. I take the advice of judges who have sat on both the Supreme Court and District Court benches and have dealt with such matters. They advise me that there is no profound or qualitative difference between the class of matters, and I have every faith in the District Court being able to deal with those matters. It verges on the insulting for some practitioners to disparage the judges of the District Court. It is quite inappropriate and there is no empirical evidence to back it up.

The Hon. D. J. Gay: So it is the old club, is it? One can’t be critical.

The Hon. J. W. SHAW: I am not saying one cannot be critical. I am saying that I do not believe it is valid or appropriate to generalise about the relative qualifications of District Court judges compared to Supreme Court judges to hear these cases. Many judges I have spoken to would utterly deny such a dichotomy. It is also true that although there is and always has been an arbitrary ceiling - that is the only way to define the jurisdictions of the courts - there is no necessary correlation between the size of the verdict and the difficulty of the case. A case which leads to a large verdict can be relatively simple in legal or factual terms. A case that leads to a small or modest verdict can be quite complex legally or factually. Those types of considerations help to put this matter in perspective. For practitioners to say that judges of the District Court are generally unsuitable to hear long cases, as I think I understood one of the summaries of the submissions to assert, is in truth erroneous.

Some point was made about not reached cases in the District Court. For the record I should note that I dealt with many of these matters in answer to a question without notice recently. I simply refer to the Hansard record of that answer without repeating it. In relation to not reached cases in the District Court, I understand that on one occasion 20 not reached cases were listed because two weeks of not reached cases were added together. That should be seen against the background that an average of approximately 100 cases are listed each week. The Chief Judge of the District Court regards the not reached marking as reasonable. If the available time of judges is to be used, the process must involve a certain amount of overlisting. The view I have from the District Court is that if this House passes the bill, any work transferred to the New South Wales District Court from the Supreme Court would be expected to be completed within six months and certainly no longer than 12 months. That is a significant contrast with the position in the Supreme Court. The people who will benefit are those who have valid claims for damages. I commend the bill to the House.

Motion agreed to.

Bill read a second time.

Schedule 1

The Hon. J. P. HANNAFORD (Leader of the Opposition) [9.36 p.m.], by leave: I move Opposition amendments 1 to 8 in globo:

No. 1 Page 3, Schedule 1[1], lines 3-7. Omit all words on those lines.

No. 2 Page 3, Schedule 1[2], lines 10 and 11. Omit "(other than a motor accident claim)".

No. 3 Page 3, Schedule 1[2], line 12. Omit "$750,000". Insert instead "$500,000".

No. 4 Page 3, Schedule 1[3], line 15. Omit "$750,000". Insert instead "$500,000".

No. 5 Page 3, Schedule 1[4], lines 16-19. Omit all words on those lines.

No. 6 Page 4, Schedule 1[7], line 11. Omit "$750,000". Insert instead "$500,000".

No. 7 Pages 4 and 5, Schedule 1[10]-[12], lines 21-32 on page 4 and lines 1-33 on page 5. Omit all words on those lines. Insert instead:

[10] Section 160

Insert after section 159:

160 Regulations: jurisdictional limits

(1) In this section, jurisdictional limit means a limitation on the civil jurisdiction of the Court by reference to an amount of money specified, in a provision of this Part, as the maximum amount for or with respect to which any civil action or proceedings, or any civil action or proceedings of a specified kind (whether at law or in equity), may be brought in the Court.

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(2) The Governor may make regulations providing for a variation of any jurisdictional limit by substituting a higher or lower amount for any maximum amount referred to in subsection (1).

(3) A regulation under this section may be made so as to apply differently according to such factors as may be specified in the regulation.

(4) Section 5 of the Subordinate Legislation Act 1989 applies to a regulation under this section in the same way as it applies to a principal statutory rule, and section 6 of that Act does not apply to any such regulation.

No. 8 Page 7, Schedule 1[14], lines 18-21. Omit all words on those lines.

These amendments are all related. As I outlined in my contribution to the second reading debate the purpose of the amendments is to reduce the proposed District Court limit from $750,000 to $500,000 and to ensure that all personal injury cases, regardless of the cause of the injury, will be dealt with in exactly the same way in the District Court as they would have been in the Supreme Court. The amendments provide a mechanism for increasing the jurisdiction of the court. The jurisdiction of the court can be altered by the Attorney General proclaiming a regulation. That regulation obviously would be the subject of potential disallowance in the Parliament, so the limits of the courts will still be subject to parliamentary review.

However, the amendment requires that before a regulation is proclaimed a regulatory impact statement must be prepared and circulated. The government of the day would be required to justify and explain to the public why the jurisdiction is being changed, and such changes will be the subject of empirical analysis. The amendments provide a much more transparent mechanism than the bill. In his comments the Attorney General has not attempted to justify the changes because they have yet to impact on the administration of the court. Under the amendments that sort of analysis would have to be undertaken and be made publicly available. Members of the Government and those on the cross benches have received communications from all of the interest groups indicating their complete support for the amendments I have moved. The Minister acknowledges that all of the groups have been extensively consulted. However, those groups universally oppose the Government’s proposal and accept the amendments. One must ask how the Government can take the view that it is right and everyone who works in this area of the law is wrong.

Reverend the Hon. F. J. NILE [9.40 p.m.]: I have been advised that the two letters from the judges that I sought leave to table are confidential and sensitive documents. I seek leave to withdraw the tabling of the documents.

The CHAIRMAN: Order! The honourable member sought leave to table the documents in the House and not in Committee. He will have to seek leave during the third reading stage.

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [9.40 p.m.]: It is no criticism of practitioners in the personal injury or motor accident areas to say they have a vested interest in maintaining the status quo. However, contrary to the assertion of the Leader of the Opposition, the profession which deals with those matters is divided. Many barristers who appear for plaintiffs claim that the bill does not go far enough and that the District Court should have a limit of $1 million or an unlimited jurisdiction. As the Leader of the Opposition knows beyond demonstration, many solicitors are of the same view. Their view is not homogeneous by any means. The Government opposes the amendments. If it were to accede to them, it would mean that motor accident matters would not be transferred to the District Court in any significant number but would remain languishing in the Supreme Court.

The District Court already deals with most of these types of cases and has the necessary skill and expertise to deal with the proposed increase in jurisdiction. In the vast majority of cases the only distinction between motor accident matters heard in the District Court and those heard in the Supreme Court is the quantum of damages awarded. The issues in determining these matters are largely the same, irrespective of the jurisdiction in which they are commenced. That was highlighted by the honourable member for Eastwood, Andrew Tink, during the debate in the other place when the Opposition was supportive of this and other measures introduced by the District Court Amendment Bill. In fact, I believe Mr Tink may have practised in the District Court and probably had some understanding of how the court deals with these matters. He said:

. . . motor accident cases can now be brought before the court irrespective of the amount claimed. That is an entirely appropriate reflection of the long experience of the District Court in these sorts of matters.

I could continue, but that quote is sufficient to make the point. As a safeguard the bill, nevertheless, provides that motor accident matters may continue
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to be heard in the Supreme Court where the court is satisfied that the amount to be awarded to the plaintiff, if successful, would be likely to exceed $1 million and that the case involves complex legal issues or issues of general public importance. That mechanism will ensure that the Supreme Court only deals with those more complex motor accident and personal injury claims that require the attention of the Supreme Court and cannot otherwise be disposed of in the District Court. It needs to be emphasised that measures to transfer motor accident matters to the District Court will benefit litigants. Cases will be dealt with significantly more quickly, thus allowing plaintiffs to receive any awards of damages far more quickly than would otherwise have been expected.

Other amendments would result in the general jurisdiction of the District Court being reduced to $500,000. The Government has already made a significant compromise with the legal profession by reducing its initial proposed jurisdictional limit of the District Court from $1 million to $750,000. Admittedly the ceilings are arbitrary, but the Government has compromised. The courts suggested $1 million and the profession wanted to double the limitation of the District Court to $500,000. The Government compromised and thought $750,000 was a fair and balanced middle position. The jurisdictional limit of $750,000 will allow a sufficient number of matters to be transferred from the Supreme Court to allow that court to address the backlog of other matters, such as criminal matters, that currently require urgent attention. There is no guarantee the Supreme Court can make the planned inroads into its backlog of matters if the jurisdictional limit of the District Court is further reduced.

The $750,000 jurisdictional limit provided by this bill will also ensure that the judicial and court resources of the District Court are fully utilised to address the backlog of matters in the court system. Over the past two years under the skilful direction of His Honour Judge Blanch, Chief Judge of the District Court, that court has proved it is more than capable of dealing with the proposed increase in its jurisdiction and the corresponding increase in workload. During the debate in the other place, Andrew Tink, speaking for the Opposition, agreed that the District Court is significant and should have its jurisdiction extended to $750,000. Indeed, it needs to be emphasised that district courts in other States have greater jurisdictional limits: the district courts in Victoria and Western Australia both have unlimited jurisdiction in relation to personal injury matters, and the District Court of South Australia has an unlimited general jurisdiction.

It should be remembered that the people who will benefit from the increased jurisdiction of the court will be the litigants, who will have their matters dealt with far more expeditiously. Tempted as I am to accede to the amendments relating to the proposed regulation-making power, the Government believes they are inconsistent with the package it has developed with the profession and with the courts. I cannot support a regulation-making power that would effectively allow the Executive Government to dramatically increase the limit in the District Court, if it chose to do so, subject to the possibility of disallowance in this House or, theoretically, in the Legislative Assembly. In short, the Government opposes the amendments.

Question - That the amendments be agreed to - put.

The Committee divided.

Mr Bull Rev. Nile
Mrs Chadwick Dr Pezzutti
Mrs Forsythe Mr Ryan
Mr Gallacher Mr Samios
Miss Gardiner Mr Rowland Smith
Dr Goldsmith Mr Tingle
Mr Kersten Tellers,
Mr Lynn Mr Jobling
Mrs Nile Mr Moppett
Dr Burgmann Mr Macdonald
Ms Burnswoods Mr Obeid
Mr Cohen Ms Saffin
Mr Corbett Mr Shaw
Mr Dyer Ms Staunton
Mr Egan Mrs Symonds
Mr Johnson Mr Vaughan
Mr Jones Tellers,
Mr Kaldis Mrs Isaksen
Ms Kirkby Mr Primrose
Mr Hannaford Mrs Arena
Mrs Sham-Ho Mr Manson

Question so resolved in the negative.

Amendments negatived.

Schedule agreed to.

Bill reported from Committee without amendment and report adopted.

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The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [9.53 p.m.]: I move:

That this bill be now read a third time.

Reverend the Hon. F. J. NILE [9.53 p.m.]: During my speech in the second reading debate I tabled two documents, the first from the Chief Judge of the District Court of New South Wales, the second from the Chief Judge at Common Law in the Supreme Court of New South Wales. I no longer require those documents to be tabled. I seek leave to withdraw them.

Leave granted.

Motion agreed to.

Bill read a third time.