Debates Day 3 - Thursday 21 October 1993
Parliamentary Record 21
Debates for 6th Assembly 1990 - 1994; ParliamentNT; Parliamentary Record; 6th Assembly 1990 - 1994
1993-10-21
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Legislative Assembly of the Northern Territory
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DEBATES - Thursday 21 October 1993 be made is that, if this is to work properly, it will require that the Judicial Registrar be a highly-skilled person. If the appointee is to operate effectively, he needs to be able to analyse the evidence that the parties are putting before the court and pick holes in it to assess whether they have made out the elements of the claim and so on. If he is to operate effectively, he will have to point out to the parties the difficulties they may have with the case they are presenting in order to encourage them to settle. Apart from having to be a very good lawyer, the person will need to be a very good counsellor or conciliator and to have some quite good skills in that regard. Frankly, I do not know who is presently the registrar or whom it is intended shall be the Judicial Registrar. We may have somebody already with those very skills, but I must say that, if the system is to work properly, it will need a highly skilled person to really make a dint in the unresolved cases and to speed up resolution of the process. One of the major concerns that the opposition has with this, and really there are only 2 of them, is with proposed subsection (k) in the amendments proposed to section 107. I ask the minister to look at this and see whether my concerns have been picked up. I note that people are nodding, so I gather they have. The version I have reads as follows: For the purposes of attempting to resolve a matter or issue at a conference under section 106, the court may require a party to produce at the conference all medical reports and certificates and other documents (including oral or visual recordings) that the court considers relevant to the matter or issue and which may assist in resolving the matter or issue. From the committee's point of view, I think that the obvious intention of that is to require the parties to lay at least their medical evidence on the table so that the registrar can fulfil that useful function of looking at it and beating their heads together. It is clear that that partial abrogation of the doctrine of legal professional privilege was certainly intended to go beyond merely medical reports and certificates. It was intended to include oral and visual recordings. Members will be aware that it is not uncommonly the case in proceedings of this kind that private detectives go around taking film of people who supposedly have bad backs doing things that people with bad backs really should not be able to do and so on. We have no difficulty at all with a requirement that documents and recordings of that kind need to be produced because it may unduly prolong proceedings if the insurer produces recordings of that kind at trial and ambushes people with them. Producing them in advance may encourage somebody to settle if it is clear that the 'jig is up' and they will not be able to sustain a false claim. Our concern is with the words 'and other documents'. My first instinct on this was that it was not really a concern because usually general words of that kind are read down by reference to the specific words before them. In other words, the normal principle of legal interpretation would be, 'medical reports and certificates' and 'other documents' would read 'other documents of a medical nature' . However, it has been suggested to me, and I think that there is some force to the argument, that the addition of the words 'including oral or visual recordings' possibly clouds the situation to some extent and may cause a court to find that it has a power to order the production of documents beyond just those medical reports. Once again, I have no real problem with that if it is formal witness statements that the parties have taken. It might be useful for the 10 198