Mathias Cormann (WA, Liberal Party, Minister for Finance) Share this | Hansard source

The government will not be supporting the amendment. The Senate might recall that similar amendments, if not the same amendment, was actually passed as part of a different bill so they arguably double-up what was dealt with before. We believe this is poorly thought out policy with significant implementation issues, which will not have any real practical benefits for small business. Enabling courts to grant cost waiver orders to small business at the outset of a case would raise significant practical issues. It is unclear how a court could be expected to assess the merits of a case at the start of a matter—that is, before evidence has been tested by the parties. This creates a significant risk of cost waiver orders being granted inappropriately.

The party in receipt of the no adverse costs order is incentivised to take up belligerent litigation tactics which are unhelpful for the court. This policy would also have workload implications for the Federal Court. The workload of the Federal Court would increase, as judges would be called up to make cost waiver assessments. The proposal to allow the Small Business Ombudsman to provide a professional opinion on the likelihood of a party successfully obtaining a no adverse costs order would appear to require the office to provide a form of legal advice which is not appropriate for a public statutory office of this nature.

It is not clear how a party who took up litigation on the basis of such an assessment and subsequently did not obtain an order in their favour could then withdraw from the litigation without a cost penalty. We will not be supporting these amendments.