House debates

Wednesday, 24 November 2021


Corporations Amendment (Improving Outcomes for Litigation Funding Participants) Bill 2021; Second Reading

12:11 pm

Photo of Craig KellyCraig Kelly (Hughes, Independent) Share this | Hansard source

I rise to speak on the Corporations Amendment (Improving Outcomes for Litigation Funding Participants) Bill 2021. We are all equal before the law. Well, that's what we are taught at school, and in fact that is even a provision of the Universal Declaration of Human Rights. Article 7 states:

All are equal before the law and are entitled … to equal protection of the law.

But the reality is that in Australia today, because of the obscene and the prohibitive cost of justice, our legal system is broken and we are not all equal before the law. Where a small business has a commercial dispute against a large foreign multinational, that small business's chance of resolving that dispute through our court system is almost next to zero. The large multinational company can simply laugh at that small business, and say: 'How are you going to possibly afford the legal costs? And even if you win in the first instance, we'll appeal it. We will delay the procedures, we will bleed you dry.' When that occurs we are not all equal before the law.

Look at the costs of the former Attorney-General's legal proceedings against the ABC in his defamation case. He was the plaintiff and his costs were estimated at somewhere around $1 million. The ABC have acknowledged that their costs were at least $800,000. And that case never even made it to a courtroom. What do people working in the real world, in the western suburbs of Sydney and Melbourne, think? These people are adding value to the economy by making things and growing things and producing things. How can they possibly look at completely unproductive work that does nothing to benefit the overall economy, such as that defamation case, which has close to $2 million in legal costs and yet never even gets to the courtroom because it's just a mediation? People who are involved in family law disputes look at the costs of the actions and just see themselves being bled dry by a system.

The reality, as much as we don't like it, is that class actions are the only things that provide many small businesses and many small plaintiffs the opportunity to seek justice before the courts. Yes, these litigation funders are sharks. Yes, I am sure that in many cases they have ripped people off. But a form of price fixing—setting a maximum of 30 per cent that the litigation funder can obtain for his costs—is not the answer. That is trying to fix the symptom, not the cause of the problem. Going down this track—putting that 30 per cent cap on—won't result in greater returns for small plaintiffs. All it will do is change the risk-reward calculation for these large litigation funders. They are, in fact, gambling. They will weigh up the odds of the merits of the case. They will weigh up the odds of the potential of winning. They will weigh up the odds of how aggressively the defendant will defend the case. They put all that in, and if they think they can make a great windfall of profits, they will proceed with the case. But if you change those parameters, if you limit it to 30 per cent, you change that risk-reward benefit for them, and the only result will be that more Australians—more individuals and small businesses—will have less access to the courts than they already have. That is something I cannot support.

I think I'm one of the few people in this place who has ever tried to put together a class action for a group of small businesses. It involved extraordinary container detention fees charged by large, foreign multinational shipping lines, many of them controlled directly by the Chinese Communist Party. We had a good case. We won in the first instance. But, because it was a slightly grey area of law, when we took it to the class action funders they looked at it closely and admitted there was slight doubt and, therefore, they wouldn't fund it. Changing the parameters and limiting the amount that the class action funders can get, even though it seems like the right idea, will punish the very people that this legislation says it protects.

What class actions do we have on the horizon? We know that already 10,000 Australians plan to claim damages for COVID vaccine injuries under the government's no-fault scheme. How many more will there be and what case will they have? Clare Eves of Shine Lawyers said:

Some of these reactions have been clots, major strokes, amputations, major cardiac problems, being on oxygen, having severe headaches that are debilitating and unable to return to work.

At the moment there's a cap of $20,000. How $20,000 compensates someone who has their leg amputated, I do not know. My great concern is that we are going to see more of these class actions involving the TGA.

As many other members of parliament have given examples of potential class actions, I would also like to give one. The TGA data reports that the rate of adverse events from the COVID vaccines is 0.21 of a per cent, or 2.1 in every 1,000. But the problem is—the question is—how accurate is that data? There's another group that reports on adverse reactions, and that is a group called AusVaxSafety. Where the TGA relies on a system of people voluntarily reporting to them, AusVaxSafety, on the third day after someone has had their COVID vaccine, sends out a text message and requests the information. As at 14 November they had sent out over 4.6 million text messages and had surveys completed. They have found that 43.8 per cent of people had reported one adverse event and 0.9 per cent of people had reported visiting a GP or an emergency department. Now, how is it possible that the TGA data says there are 2.1 adverse reactions reported to it per thousand and yet AusVaxSafety is reporting 90 per 1,000?


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