AS ASBESTOS victims await news of the possibility of adequate compensation, legal bodies and other organisations across Australia last week handed over submissions to help identify cost-saving opportunities within the common law system aimed at increasing the efficiency with which dust diseases compensation claims are resolved.
Lawyers Weekly can now reveal the perceptions among legal professional bodies of how legal costs can be reduced. While a number of law societies and legal bodies have acquired extensions to the deadline for their submissions, others have now made their cost-saving ideas available to the NSW Government for review.
The Australian Lawyers Alliance has tabled a submission to the NSW Government’s review of the Dust Diseases Tribunal. It suggests asking victims to file sworn statements early in proceedings in the hope that this will establish the facts of a case more quickly. The submission proposes this method will mean “expensive and lengthy pre-trial procedures can be dispensed with”, said Lawyers Alliance president Tom Goudkamp.
The statements would establish facts such as the victim’s work, family, health, smoking and domestic renovation histories, said Goudkamp. “The onus would then be on the defendants to settle promptly and not pay expensive corporate lawyers to drag cases out in an effort to avoid liability.”
The method would, however, require the Dust Diseases Tribunal to be given the discretion to penalise parties that unnecessarily drag out cases, Goudkamp said.
The NSW Government’s review of legal and administrative costs in dust diseases compensation claims came about after the Report of the Special Commission of Inquiry into the Medical Research and Compensation Foundation, conducted by David Jackson QC.
Jackson found that while the existing common law system in NSW did include some procedures to increase the efficiency with which dust diseases compensation claims are resolved, further changes could be made to ensure that as much money as possible is made available to claimants.
The review’s issues paper suggests there has been considerable debate about the level of legal costs incurred in dust diseases litigation. Some stakeholders argue overall legal costs could reach 40 per cent of total payments, the paper says.
There is considerable debate about the cause of these costs, the issues paper states. “Some stakeholders suggest that claimants’ lawyers might over service, while other stakeholders suggest that unnecessary legal costs are incurred as a result of defendants taking too many spurious points, or in disputes among defendants on issues of contribution.”
Claimants’ lawyers will not be able to over service, according to John Gordon from Australian Lawyers Alliance. “The real proof in such an allegation is to have the court determine the costs that are payable in a particular claim,” he said. “If they suspect that more has been done then the court will only allow what is reasonable. All they have to do is pay what is reasonable.”
Regarding the NSW Government’s review, Gordon said it was highly likely that some amendments would be made. Hardie has “made a lot of noise” about cost reforms but “has made no concrete proposals”, Gordon said.
The Alliance believes “something along these lines” will probably come into being, “if for no other reason than it enhances the prospect that Hardie will then be able to get shareholders to support the plan”, he said.