Bethany Eggins v Alexander KNAUS

BETHANY EGGINS v ALEXANDER KNAUS
[2007] ACTSC 17 (9 March 2007)

COSTS – whether an application under the Civil Law (Wrongs) Act 2002 for costs above $10,000 where not more than $50,000 awarded in damages should be upheld

Civil Law (Wrongs) Act 2002 (ACT)

Legal Profession Act 2006 (ACT)

No. SCC 493 of 2005

Judge:              Higgins CJ
Supreme Court of the ACT

Date:               9 March 2007

IN THE SUPREME COURT OF THE       )
  )          No. SCC 493 of 2005
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:BETHANY EGGINS

Plaintiff

AND:ALEXANDER KNAUS

Defendant

ORDER

Judge:  Higgins CJ
Date:  9 March 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The costs of the plaintiff in considering and seeking counsel’s advice on the “Report on Collision” dated 31 March 2007, insofar as that advice related to that report, are to be excluded from the application of s 181 of the Civil Law (Wrongs) Act 2002.

1. Those costs so excluded are to include the costs of this application.

1. This matter raises the application of Chapter 14 of the Civil Law (Wrongs) Act 2002 (ACT) (CL(W) Act). In particular, the plaintiff applies pursuant to s 184 to increase the costs otherwise recoverable.

Background

1. On 29 July 2003, the plaintiff suffered personal injury in a motor vehicle accident which occurred on Federation Mall, Capital Hill in the Australian Capital Territory.  The defendant was travelling in the same direction following the plaintiff and another motor vehicle.  Unfortunately, each of the three vehicles was travelling the wrong way on a single lane roadway.  The plaintiff realized this and commenced to execute a u-turn.  At this point, the defendant decided to overtake the plaintiff’s vehicle and the vehicle immediately following her.  A collision ensued between the plaintiff’s and defendant’s vehicles, resulting in a “whiplash” type injury to the plaintiff.

1. Action was commenced by the plaintiff against the defendant on 12 January 2004 in the Magistrates Court at Canberra.  It was the defendant’s contention that the plaintiff pulled over in front of him so that she was the negligent party.  A defence filed 10 September 2004 on behalf of the defendant denied negligence and, as an alternative, pleaded contributory negligence on the part of the plaintiff.

1. On 5 August 2005 the proceedings were, on the application of the plaintiff, removed into this Court.  This was, apparently, on the basis that the plaintiff considered it likely that the damages to which she was entitled would exceed $50,000, the limit of jurisdiction of the Magistrates Court.  The Particulars of Claim, filed 13 March 2006 reflected that expectation.  Indeed, had damages been assessed on the basis of those particulars, total damages could well have been in the order of $100,000.

1. The action was listed before Master Harper on 13 September 2006 but was not reached.  On 6 February 2007, the matter came before me.  The parties had by then agreed upon terms of settlement which had been formalised in writing and were dated 6 February 2007.  By those terms, the defendant consented to judgment…