CERTAIN LLOYD'S UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS APPELLANT
AND
MARK GEORGE THELANDER RESPONDENT
Matter No S419/2011
CERTAIN LLOYD'S UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS APPELLANT
AND
JILL MARIA THELANDER RESPONDENT
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander
[2012] HCA 56
12 December 2012
S417/2011 to S419/2011
ORDER
In each appeal:
1.Appeal allowed.
2. Set aside paragraphs 4 and 5 of the order of the Court of Appeal of the Supreme Court of New South Wales made on 1 June 2011, and, in their place, order that the appeal to that Court be dismissed.
3.Appellants to pay the respondent's costs of the appeal to this Court.
On appeal from the Supreme Court of New South Wales
Representation
R J H Darke SC with M J Stevens for the appellant in all matters (instructed by Riley Gray-Spencer Lawyers)
R T McKeand SC with A C Casselden for the respondents in all matters (instructed by G H Healey & Co Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander
Costs – Limit on maximum costs in connection with claim for "personal injury damages" – Legal Profession Act1987 (NSW), ss 198C and 198D – Where "personal injury damages" defined to have same meaning as in Civil Liability Act 2002 (NSW) – Whether maximum costs limitation applies to claims for personal injury damages resulting from intentional acts.
Statutory interpretation – Principles – Reading provision in context – Whether, when operative statute adopts term in source statute, account must be taken of operation of term in source statute – Effect of amendments to statute.
Words and phrases – "award of personal injury damages", "claim for personal injury damages", "maximum costs", "personal injury damages", "same meaning".
FRENCH CJ AND HAYNE J. These three appeals were heard together with New South Wales v Williamson[1]. All four appeals concern the construction of provisions of New South Wales statutes that limit the costs that a court may order one party to pay another if the amount recovered on a claim for personal injury damages does not exceed a specified amount. The reasons in these appeals should be read with the reasons in New South Wales v Williamson.
New South Wales legislation regulated claims for "personal injury…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Certain Lloyd's Underwriters v Cross [2012] HCA 56
Case
[2012] HCA 56
Decision Date
CaseChat Overview and Summary
In *Certain Lloyd's Underwriters v Cross*, the High Court of Australia considered appeals concerning the application of statutory cost limitations to claims for personal injury damages arising from intentional acts. The dispute centred on whether the definition of "personal injury damages" in the *Legal Profession Act 1987* (NSW) extended to damages resulting from assaults, where the amounts recovered were less than $100,000. The appellants were insurers of a security company whose employees had assaulted the respondents, leading to judgments for damages below the threshold for the cost limitation.
The primary legal issue before the High Court was the proper construction of the term "personal injury damages" as defined in section 198C(1) of the *Legal Profession Act 1987* (NSW), which stipulated that it had the same meaning as in Part 2 of the *Civil Liability Act 2002* (NSW). Specifically, the court had to determine if this definition encompassed claims for damages arising from intentional acts intended to cause injury, or if it was limited to damages arising from negligence. This involved principles of statutory interpretation, including reading provisions in context and considering the effect of amendments.
The High Court reasoned that the text and context of the relevant provisions indicated that a "claim for personal injury damages" included any claim for damages relating to personal or bodily injury caused by another person's fault, whether that fault was a failure to take reasonable care or an intentional act. The court rejected an approach to statutory construction that relied on an assumed legislative purpose not evident from the text. Consequently, the High Court allowed the appeals, setting aside the orders of the New South Wales Court of Appeal and dismissing the appeals to that court. The appellants were ordered to pay the respondents' costs of the High Court appeal.
Orders
Orders of the court
In each appeal:
1. Appeal allowed.
2. Set aside paragraphs 4 and 5 of the order of the Court of Appeal of the Supreme Court of New South Wales made on 1 June 2011, and, in their place, order that the appeal to that Court be dismissed.
3. Appellants to pay the respondent's costs of the appeal to this Court.
Background
Background to the litigation
In New South Wales, the statute that regulates the legal profession imposes a restriction on the maximum costs that one party may recover from another in connection with a claim for personal injury damages in which the amount recovered on the claim does not exceed $100,000 ("small claims"). The scheme was introduced as Div 5B of Pt 11 of the Legal Profession Act 1987 (NSW) ("the 1987 LP Act") in a Schedule to the Civil Liability Act 2002 (NSW) ("the Liability Act"). The 1987 LP Act was repealed by the Legal Profession Act 2004 (NSW) ("the 2004 LP Act") and the costs restrictions are now found in Ch 3, Pt 3.2, Div 9 of that Act. The question raised by these appeals is whether the restrictions apply to a small claim for damages for personal injury suffered as the result of an act done with intent to cause injury or death. The answer turns on the meaning of the words "personal injury damages" contained in s 198C(1) of the 1987 LP Act (now s 337(1) of the 2004 LP Act). Factual background The respondents were assaulted at the Narrabeen Sands Hotel by security guards who had been engaged to provide security services at the hotel. The respondents brought proceedings in the District Court of New South Wales claiming damages for the injuries suffered by them in the assaults. In July 2005, AVS Australian Venue Security Services Pty Ltd ("AVS"), the employer of the security guards, was joined as a defendant to the proceedings. AVS later went into liquidation and the appellants, AVS's insurers, were joined as defendants to the proceedings. Following a trial lasting in the order of 22 days, judgment was entered for the respondents. The damages awarded in each case were for an amount less than $100,000. On 22 April 2010, Garling DCJ ordered that the appellants were to pay the respondents' costs. His Honour made a declaration that the costs were subject to s 198D of the 1987 LP Act. Division 5B of Pt 11 of the 1987 LP Act Section 198D[55] is the central provision in Div 5B. Section 198D(1)(a) provides that if the amount recovered on a claim for personal injury damages does not exceed $100,000, the maximum costs for legal services provided to a plaintiff are fixed at 20% of the amount recovered or $10,000, whichever is greater. Sections 198E and 198F provide exceptions to the cap in the case of solicitor and own client costs that are the subject of an agreement that complies with the statute, and costs incurred after the date of a reasonable offer of compromise that is not accepted by the other party. Section 198G permits the court to exclude from the cap costs for legal services provided in response to actions taken by the other party that were not reasonably necessary for the advancement of that party's case. As noted, Div 5B is a scheme that restricts the recovery of costs in connection with claims for "personal injury damages". That expression is described for the purposes of Div 5B in s 198C(1) as follows: "personal injury damages has the same meaning as in Part 2 of the [Liability Act]." [55]Section 338 of the 2004 LP Act makes provision in substantially the same terms as s 198D of the 1987 LP Act.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
HAYNE J
CRENNAN AND BELL JJ
KIEFEL J
It is not legitimate to identify a legislative purpose not apparent from the text of the relevant provisions (or in this case even expressed in some extrinsic material), to examine extrinsic material and notice that there is nothing positively inconsistent with the identified purpose, and then to answer the question of construction by reference to the purpose that was initially assumed. That reasoning is not sound. It is reasoning of the kind of which Spigelman CJ rightly disapproved in the extra-curial writing set out earlier in these reasons. Statutory "purpose" and "intention" are to be identified according to the principles that were described earlier under the heading "Some basic principles". Once that is done, it becomes apparent that the text and context of the relevant provisions point towards the construction supported by the appellants in these appeals: a claim for personal injury damages includes any and every form of claim for damages that relate to the death of or personal or bodily injury to a person caused by the fault of another person whether it be a failure to take reasonable care or the commission of an intentional act with intent to injure.Conclusion and orders The claims which the respondents made were claims for damages that related to personal or bodily injury suffered by them. Contrary to the conclusions reached by the Court of Appeal in each matter, the claims that each respondent made were "claims for personal injury damages" within the meaning of s 198D(1) of the 1987 Legal Profession Act. Each appeal should be allowed. In each appeal pars (4) and (5) of the orders of the Court of Appeal made on 1 June 2011 should be set aside and in their place there should be orders that the appeal to that Court is dismissed. In accordance with the appellants' undertaking proffered and accepted when special leave to appeal was granted, the appellants should in each case pay the respondent's costs of the appeal to this Court. In New South Wales, the statute that regulates the legal profession imposes a restriction on the maximum costs that one party may recover from another in connection with a claim for personal injury damages in which the amount recovered on the claim does not exceed $100,000 ("small claims"). The scheme was introduced as Div 5B of Pt 11 of the Legal Profession Act 1987 (NSW) ("the 1987 LP Act") in a Schedule to the Civil Liability Act 2002 (NSW) ("the Liability Act"). The 1987 LP Act was repealed by the Legal Profession Act 2004 (NSW) ("the 2004 LP Act") and the costs restrictions are now found in Ch 3, Pt 3.2, Div 9 of that Act. The question raised by these appeals is whether the restrictions apply to a small claim for damages for personal injury suffered as the result of an act done with intent to cause injury or death. The answer turns on the meaning of the words "personal injury damages" contained in s 198C(1) of the 1987 LP Act (now s 337(1) of the 2004 LP Act). Factual background The respondents were assaulted at the Narrabeen Sands Hotel by security guards who had been engaged to provide security services at the hotel. The respondents brought proceedings in the District Court of New South Wales claiming damages for the injuries suffered by them in the assaults. In July 2005, AVS Australian Venue Security Services Pty Ltd ("AVS"), the employer of the security guards, was joined as a defendant to the proceedings. AVS later went into liquidation and the appellants, AVS's insurers, were joined as defendants to the proceedings. Following a trial lasting in the order of 22 days, judgment was entered for the respondents. The damages awarded in each case were for an amount less than $100,000. On 22 April 2010, Garling DCJ ordered that the appellants were to pay the respondents' costs. His Honour made a declaration that the costs were subject to s 198D of the 1987 LP Act. Division 5B of Pt 11 of the 1987 LP Act
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ,
HAYNE J,
CRENNAN AND BELL JJ,
KIEFEL J