Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Justice and Other Legislation Amendment Bill 2003
JUSTICE AND OTHER LEGISLATION
AMENDMENT BILL 2003
AMENDMENTS IN COMMITTEE
EXPLANATORY NOTES
General Outline
Objectives of the amendments
The amendments in committee to the Justice and Other Legislation
Amendment Bill 2003 have the following purpose:
· To amend the Queensland Law Society Act 1952 to impose a cap
on fees so that a solicitor operating on a "no win no fee" basis in
relation to a personal injury claim is prevented from billing a
client more than half of the judgment or settlement, less
expenses.
· To amend the Civil Liability Act 2003 to make it clear that
doctors are subject to both a reactive and proactive duty to advise
in relation to proposed medical treatment. Further, the restriction
on damages for loss arising out of the costs ordinarily associated
with rearing or maintaining a child proposed in the Justice and
Other Legislation Amendment Bill 2003 is extended to claims
arising from a breach of duty by a person advising about methods
of contraception or performing a contraceptive procedure.
· The Justice and Other Legislation Amendment Bill 2003
proposed an amendment to the Industrial Relations Act 1999 to
correct an anomaly that has arisen in the appeals process in
returning unsuccessful appellants to custody. The proposed
amendment requires a minor amendment to ensure that
appellants who withdraw their appeal or whose appeal is struck
out may be returned to prison to serve an unexpired term.
2
Justice and Other Legislation Amendment Bill 2003
· To make minor amendments to the Coroners Act 2003, Freedom
of Information Act 1992 and the Personal Injuries Proceedings
Act 2002. The Coroners Act 2003 is amended to renumber an
amendment made to the Police Powers and Responsibilities Act
2000 by the Coroners Act 2003. The Freedom of Information Act
1992 is amended to correct a section number. The Personal
Injuries Proceedings Act 2002 is amended to remove duplicate
references between sections 37(4)(c)(ii) and 37(4)(c)(iii).
Reasons for the objectives and how they will be achieved
The amendment to the Queensland Law Society Act 1952 is being made
as a result of the Supreme Court decision of Holland v Queensland Law
Society Incorporated [2003] QSC 327 which held that a ruling by the
Council of the Queensland Law Society purporting to cap fees that could
be charged by practitioners in speculative "no win no fee" personal injuries
claims was of no legal effect. The Supreme Court found that in order to
cap fees in such matters, the Act would need to be amended. The proposed
amendment is based on the original ruling made by the Council of the
Queensland Law Society.
Administrative cost to Government of implementation
Implementation of the amendments will involve no cost to Government.
Consistency with Fundamental Legislative Principles
Do the amendments have sufficient regard for the rights and liberties of
individuals?
The proposed amendments to the various statutes are largely consistent
with fundamental legislative principles outlined in section 4 of the
Legislative Standards Act 1992. However, the amendment to the
Queensland Law Society Act 1952 may potentially breach the principle of
not adversely affecting rights and liberties retrospectively.
The amendment, which imposes a cap on fees that can be charged by
practitioners in speculative "no win no fee" personal injuries claims applies
to any request for payment made on or after the day the amendment
commences, whether or not a client agreement was entered into before that
date. As such the amendment may potentially affect the rights and
obligations of contracting parties.
3
Justice and Other Legislation Amendment Bill 2003
The amendments are considered justified. On 22 August 2002, the
Council of the Queensland Law Society adopted a ruling on professional
fees in `no win, no fee' cases which in essence ensured that a practitioner
received no more by way of professional fees from the award than did his
or her client. The ruling responded to community concern over the
charging practices adopted by certain law firms in relation to speculative
personal injury claims. The Chief Justice has publicly questioned the
ethics of `no win, no fee' arrangements that conclude with `successful'
plaintiffs receiving a disproportionately small amount of the award or
settlement.
Damages are awarded to compensate a plaintiff for his or her loss. It is
unjust for successful plaintiffs to receive little or nothing from their
judgment or settlement while their solicitor takes a disproportionate
amount of the award as professional fees. The ruling was designed to
ensure that a client can only be charged reasonable and proper professional
fees. However, the recent Supreme Court decision of Holland & Anor v
Queensland Law Society Incorporated & Anor [2003] QSC 327 held that
the Ruling has no legal effect because:
· it was not approved by Governor in Council; and
· it is inconsistent with section 48I of the Queensland Law Society
Act 1952.
The proposed amendment is necessary to give effect to the ruling which
has been in existence since August 2002.
CONSULTATION
Community
The Queensland Law Society has been consulted in relation to the
amendments to the Queensland Law Society Act 1952. The amendment to
the Civil Liability Act 2003 in relation to the duty of care when advising
about proposed medical treatment is made as a result of comments received
in relation to the Act from the Queensland University of Technology Law
School.
Government
The Department of Industrial Relations requested the amendments to the
Industrial Relations Act 1999. Queensland Health has been consulted in
relation to the amendments to the Civil Liability Act 2003. The Department
4
Justice and Other Legislation Amendment Bill 2003
of the Premier and Cabinet has been consulted in relation to the proposed
amendments.
NOTES ON AMENDMENTS
Amendment 1 amends clause 2 of the Bill to provide that the
amendments to the Queensland Law Society Act 1952 commence on
assent.
Amendment 2 inserts a new clause 40B into the Bill containing
amendments to the Civil Liability Act 2003. Section 21 of the Civil
Liability Act 2003 is amended to remove any doubt as to the requirements
necessary for a doctor to rely upon the section. The amendment makes it
clear that a doctor is subject to both a reactive and proactive duty to advise
in relation to proposed medical treatment. The duty to advise on a
proactive basis, that is, to provide all information that a reasonable person
requires to make a decision in relation to medical treatment that may cause
personal injury, is ongoing. In relation to the reactive duty, in
circumstances where the doctor knows or reasonably ought to know that
the person has sought information, the doctor is under a duty to provide
that information. The amendment clarifies that the doctor is not, and was
never, able to provide either proactive or reactive advice to satisfy their
duty of care. Failure to provide one or the other will allow a finding of
breach of duty in appropriate circumstances.
Amendment 3 amends the heading to new Part 5 of the Civil Liability Act
2003 to be inserted by the Bill so that the heading reflects the changes
made by Amendment 4.
Amendment 4 amends clause 41 of the Bill which inserts a new Part 5
into the Civil Liability Act 2003. The amendment extends the restriction on
damages for the loss arising out of the costs ordinarily associated with
rearing or maintaining a child, to claims arising from a breach of duty by a
person advising about methods of contraception or performing a
contraceptive procedure.
Amendment 5 inserts new clause 43A into the Bill which contains
amendments to the Coroners Act 2003. Schedule 1 of the Coroners Act
2003 is amended to renumber the amendment to section 420 of the Police
Powers and Responsibilities Act 2000 (the PPR Act) made by the Coroners
5
Justice and Other Legislation Amendment Bill 2003
Act 2003. The Coroners Act 2003 amended section 420 of the PPR Act by
inserting a subsection (3). That amendment will commence when the
Coroners Act 2003 commences. However, the Criminal Proceeds
Confiscation Act 2002 (the CPC Act) also amended section 420 of the PPR
Act by also inserting in a new subsection (3). The CPC Act commenced on
1 January 2003. Thus, the Coroners Act 2003 amendment to section 420 of
the PPR Act is renumbered to (3A).
Amendment 6 inserts a new Part 14A into the Bill which contains
amendments to the Freedom of Information Act 1992. A minor amendment
is made to the Freedom of Information Act 1992 to correct a section
number. The need for the amendment has arisen because of a renumbering
provision in the Juvenile Justice Act 1992 not being able to be given effect
because of the impact of a subsequent amendment.
Amendment 7 amends clause 79 of the Bill to clarify the amendments to
section 341 of the Industrial Relations Act 1999 proposed in the Bill.
Clause 79 amends the Industrial Relations Act 1999 to correct an anomaly
that has arisen in the appeals process in returning unsuccessful appellants
to custody. However, a minor amendment is required to ensure that
appellants who withdraw their appeal or whose appeal is struck out may be
returned to prison to serve an unexpired term.
Amendment 8 further amends clause 79 of the Bill to clarify the terms of
a warrant issued pursuant to section 341(6) of the Industrial Relations Act
1999 as amended by the Bill.
Amendment 9 inserts a new clause 105A into the Bill which contains an
amendment to section 37 of the Personal Injuries Proceedings Act 2002
(the PIP Act) to remove the duplicate references between subsections
(4)(c)(ii) and (4)(c)(iii) to the amount equal to the respondent's offer. The
amendment properly reflects the costs implications referred to in sections
56(2)(a) and 56(3)(a) of the PIP Act.
Amendment 10 inserts a new Part 22A into the Bill which contains
amendments to the Queensland Law Society Act 1952. The Queensland
Law Society Act 1952 is amended to impose a cap on professional fees in
speculative "no win no fee" personal injury claims. The amendments
ensure that a practitioner may receive no more by way of professional fees
from a judgment or settlement than does his or her client. A formula is
outlined for calculating the maximum amount of professional fees that may
be charged. However, a practitioner may apply to the Council of the
Queensland Law Society for approval to charge a greater amount.
© State of Queensland 2003