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This week, Victorian Attorney-General Rob Hulls has lifted the lid on the scandal that is civil litigation. Mr Hulls has rightly said that the civil justice system — where a common garden variety claim can cost you $40,000 in fees before your case is heard — is now so expensive that it is out of the reach of ordinary people. He is right. And his comments are equally applicable in every Australian state and territory.

Despite the defences being mounted by some in the legal profession, the facts speak for themselves.

One only has to examine the cost scales of the various courts where litigation is initiated and run to see why access to civil justice is seriously expensive.

Take, for example, the County Court in Victoria. This is where you bring commercial claims in excess of $100,000 and where the vast bulk of personal injuries cases are filed. Under the current cost scales it could cost up to $642 just to see a lawyer and get him or her to issue a writ for you in that court. Then there will be fees for your lawyers reading the defence that your opponent files; fees for the issue of a series of steps which essentially get further information about your claim; medical reports or other expert opinions to assist you in your claim; various court appearances as your case moves to trial, and then the cost of the trial itself. Just to get to the front door of the court will have set you back somewhere between $30,000-$40,000 for an average commercial or personal injuries claim – it may in fact be much more.

And because it’s essentially a winner takes all philosophy in our system, if you lose you pay your own legal fees and those of your opponent. Your lawyer, in addition to asking you to deposit a considerable sum of money up front to fund the case, will also take out a caveat or some other form of security over your house so that if you do lose, the lawyer still gets paid.

In short, if it all goes pear shaped and you lose your case, the prospect of losing your house, car and other possessions is a real one.

Can anyone name any other service provider, be it a doctor, accountant or tradesperson, who secures their fees by taking out a caveat over your family home?

It is for this reason that literally hundreds of thousands of low to middle income Australians with justice on their side decide not to sue for injuries caused to them or when they have been ripped off in a business deal. That in itself is scandalous.

Mr Hulls is the first Attorney-General in Australia to take on a system which is well and truly broken and what he now ought to do is to convince his fellow A-Gs to sweep away the 19th century English civil justice system we have inherited and replace it with an affordable and accessible way for individuals to be compensated for wrongs done to them.

It is disgraceful that a person won’t take legal action because they can’t afford to risk being reduced to a state of penury.

Peter Fray

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Peter Fray
Editor-In-Chief of Crikey

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