KIRBY J: But in such a society millions of Australians had no effective access to the law. That is what Justice Sackville and others have pointed — Professor Sackville, as he was — that this was all very well for the gentlemanly class but it was not all that good for people of modest means. I mean, “Don’t let us worry too much about people of modest means. They really don’t have any business being in courts. They are a nuisance. They make claims that are troublesome. They assert their legal rights. It is outrageous that they do so.”

GLEESON CJ: The reason that the end, the object is to keep down insurance premiums, is that right?

MR SEXTON: Yes.

GLEESON CJ: How can you keep down insurance premiums except by inhibiting people from claiming their legal rights?

MR SEXTON: …There could be examples of diversity jurisdiction, but in general, the bulk of the advertisements, one would imagine, that are designed to be caught by the regulation - - -

KIRBY J: They are undiscriminating, the regulations are undiscriminating.

MR SEXTON: But, your Honour, on its - - -

KIRBY J: Lawyers — that is the genius of our Constitution — lawyers approach a case and they can determine whether there is a federal element or not and you do not really know until you have got into the case whether there is. The purpose of this is to get people to come to lawyers for that form of advice or to stop them from doing so.

KIRBY J: Well, you say that at this Bar table, with so many distinguished members of the legal profession, but I can tell you out there in Australia there are plenty of people who do not know their legal rights and are very afraid of exercising them, are very fearful of the costs and rightly so, and until they are given some help they do not get access to the courts or to the law. As a Justice of this Court, a regulation that stops people getting that is a matter of concern to me.

MR SEXTON: Well, your Honour, of course, in relation to Federal Courts - - -

KIRBY J: This is the bottom end of town, the big end of town is well looked after as Chief Justice Latham said. The majorities are well looked after, it is the minorities and the vulnerable and the disadvantaged that are not looked after, they look to the courts.

KIRBY J: Plenty of them. I mean, most people — it will come as a terrible surprise to people in this room — never think about the law, they do not know about the law, they do not know about the courts and they do not care, but when they get into a corner and they have a problem and they have been damaged, it becomes of some importance to them and their families. Now we have the web, all sorts of people will go in and try and find out what their rights are. That is part of a free society and part of free discussion of governmental matters in the sense of the courts.

KIRBY J: If you do not know, you do not go to lawyers, and, if you do not go to lawyers, you do not go to courts. Just go away — that is the theory behind this regulation. “Go away. Do not be bothered. If you have a claim up to $100,000 then it does not matter that you are not informed of your rights”.

AT 4.14 PM THE MATTER WAS ADJOURNED UNTIL WEDNESDAY, 6 OCTOBER 2004