Christina Louise Rangott v LeasePlan Australia Limited trading as DASFLEET Act Office

[2008] ACTSC 98

CHRISTINA LOUISE RANGOTT v LEASEPLAN AUSTRALIA LIMITED trading as DASFLEET ACT OFFICE
[2008] ACTSC 98 (26 September 2008)

COSTS – Civil Law (Wrongs) Act 2002 – limitations on legal costs – maximum costs for certain personal injury damages claims – whether Chapter 14 applies where cause of action arose before commencement of the chapter

STATUTORY INTERPRETATION – Civil Law (Wrongs) Act 2002 – limitations on legal costs – whether Chapter 14 applies where cause of action arose before commencement of chapter

Civil Law (Wrongs) Act 2002, ss 150, 156, 181, 184, 224
Legislation Act 2001, ss 84(1), 88, 139
Civil Law (Wrongs) Regulations 2002 (repealed), r 3, 4
Civil Law (Wrongs) Amendment Act 2003 (No 2), ss 38, 55, 56

Galvin v The Forests Commission of Victoria [1939] VLR 284
Jackman v Dandenong Sewerage Authority (No 2) 20 LGRA 413
Civic Workers Plus Pty Ltd v Hill (2000) 1 VR 640

No.  SC 593 of 2006

Judge:             Master Harper
Supreme Court of the ACT

Date:              26 September 2008

IN THE SUPREME COURT OF THE       )
  )          No.  SC 593 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:CHRISTINA LOUISE RANGOTT

Plaintiff

AND:LEASEPLAN AUSTRALIA LIMITED trading as  DASFLEET ACT OFFICE

Defendant

ORDER

Judge:  Master Harper
Date:  26 September 2008
Place:  Canberra

THE COURT DECLARES THAT:

1. the provisions of section 181 of the Civil Law (Wrongs) Act 2002 have no application to the quantification of the costs recoverable by the plaintiff from the defendant, or the costs recoverable by the plaintiff’s solicitors from the plaintiff.

THE COURT ORDERS THAT:

1. the defendant pay the plaintiff’s costs of the application.

1. The defendant in this action for damages for personal injury seeks a declaration or order that the costs recoverable by the plaintiff following the entry of consent judgment are governed by section 181 of the Civil Law (Wrongs) Act 2002.

1. The plaintiff’s claim was for damages arising out of a collision between a car in which she was travelling and a car owned by the defendant. The collision occurred on 3 August 2000. The plaintiff gave instructions to her solicitors to claim damages on 7 June 2006. Her solicitors gave notice to the third party insurer as required by the Act within a week, and proceedings were commenced by originating claim on 31 July 2006, within the limitation period by a matter of days.

1. Thereafter, the proceedings moved with much greater expedition. The action was certified by the solicitors for both parties in May 2007 as ready for trial, and it was listed for hearing before me on 27 August 2007. Two weeks before the hearing it was settled. Consent judgment was entered in the plaintiff’s favour on 16 August 2007 for $35,000.00 plus costs.

1. The present dispute relates to the quantification of the plaintiff’s costs. A bill of costs has been filed and is listed for assessment later this month.

1. The outcome of the application is of significance to the plaintiff and to her solicitors. The bill has been drawn at some $19,500.00 for professional costs plus just on $6,500.00 for disbursements. If the section is applicable, the professional costs recoverable by the plaintiff from the defendant would be limited to $10,000.00, and the professional costs payable by the plaintiff to her own solicitors would be limited to the same amount.

1. The Civil Law (Wrongs) Act was notified on 10 October 2002. Since then it has been republished on the ACT legislation register no less than thirty-eight times, reflecting the frequency within which it has been amended during its six years of operation. The task of determining whether section 181 applies to the present action involves a complex exercise in statutory interpretation. The present section 181 (Maximum costs for claims of $50,000.00 or less) forms part of Part 14.1 (Maximum costs for certain personal injury damages claims) within Chapter 14 (Limitations on legal costs) of the Act. The application of the section is subject to a discretion conferred by section 184 upon the court or taxing officer to allow additional costs in some circumstances. Chapter 14, and section 181, have been in the Act since it was first notified six years ago, although the numbering has been changed as new provisions have been inserted. When the Act first came into effect, the present section 181 was section 114 in Chapter 10. Transitional provisions at that time were contained in Chapter 12. Section 150 provided, relevantly for present purposes, as follows:

150Applications provisions – for certain new measures     

. . .

(3) Chapter 10 (Limitations on legal costs) does not apply to a plaintiff or defendant’s legal costs in relation to a claim if –

(a)      the costs for the claim are covered by an agreement or arrangement about costs between the plaintiff or defendant and his or her lawyer; and

(b)      the agreement or arrangement was entered into before the commencement of this part.

(4)      This section expires three years after it commences.

(5)      Subsections (1) to (3) are declared to be provisions to which the Legislation Act 2001, section 88 (Repeal does not end transitional or validating effect etc) applies.

1. Section 156 in the Act as originally notified, also within Chapter 12, provided as follows:

156Modification of ch 12’s operation     

(1)      The regulations may modify this part to make provision in relation to any matter that, in the Executive’s opinion, is not, or is not adequately, dealt with in this chapter.

(2)      This section expires one year after it commences.

1. On 19 December 2002, the Civil Law Wrongs (Regulations) 2002 were made, and commenced two days later. The regulations included the following:

(3)Modification of Act, ch 12-Act, s 156      

The Act, section 150 is modified by inserting the following subsection:

(3A) Also, chapter 10 does not apply to a claim based on a cause of action that arose before the commencement of the chapter.

(4)Expiry      

(1) These regulations expire on the expiry of the Act, section 156.

(2)      Regulation 3 is declared to be a law to which the Legislation Act 2001, section 88 (Repeal does not end transitional or validating effect etc) applies.

1. By notice made by the then Attorney-General, 1 January 2003 was fixed as the date of commencement of Chapter 10 of the Act, so that, in the absence of later amendments, Chapter 10, including section 114, would have expired on 31 December 2005.

1. The Civil Law (Wrongs) Amendment Act 2003 (No 2) came into effect on 9 September 2003, and, by section 38, inserted a sub-section 150(3A) in identical terms to the sub-section 150(3A) inserted the previous December by the regulations. It is not immediately apparent to me why this was thought necessary. By section 56 of the same Act, the regulations were repealed.

1. The Act was republished on 9 September 2003. As authorised by section 55 of the amending Act, the provisions were re-numbered. What had been section 150 became section 224, and Chapter 10 became Chapter 14. The reprint included the newly added sub-section 150(3A) as 224(4). The section retained the provision that it was to expire three years after its commencement.

1. On 2 November 2004, the Act was again amended. What had been section 150 in Chapter 12 had become section 224 in Chapter 16. The previous sub-section (4), which provided that the section expired three years after it commenced, was replaced with two fresh sub-sections as follows:

(3)      Also, part 14.1 does not apply to a claim based on a cause of action that arose before commencement of the part.

(4)      This section expires on 1 November 2005.

1. The former sub-section (5) became sub-section (6). Its wording was not changed.

1. Section 88(1) of the Legislation Act 2001 provides that the continuing operation of a transitional law or validating law is not affected only because the law is repealed. The section defines a transitional law as a law made or expressed to be made for a transitional purpose, or a law that makes provision consequential to such a law. For the purposes of chapter 9 of the Legislation Act, which includes section 88, law is defined as an Act or statutory instrument, and repeal to include lapse and expire. Expire is defined in the dictionary to the Legislation Act to include lapse or otherwise cease to have effect. Section 84(1) of the Act provides that the repeal of a law does not effect an existing right or privilege acquired or accrued under the law.

1. When the Civil Law (Wrongs) Act first came into effect in 2002, the then transitional provisions section 150 provided in sub-section (5) that sub-sections (1), (2) and (3) were declared to be provisions to which section 88 of the Legislation Act applied. Sub-sections (1)-(3) were then the operative provisions of the section; there were but five sub-sections, sub-section (4) being the expiry provision.

1. As additional sub-sections were added to the section, initially as section 150 and later as section 224, the last sub-section was not amended to extend the declaration under the Legislation Act to the added sub-sections. Section 224, having been expressed to expire on 1 November 2005, no longer appears in the current publication of the Act at all. When it last appeared, it continued to provide, in what by then had become sub-section (6), that only subsections (1), (2) and (3) were covered by section 88 of the Legislation Act. Sub-section (4), which provided that Part 14.1 (Maximum costs for certain personal injury damages claims) did not apply to a claim based on a cause of action that arose before the commencement of the part, was not specifically declared to be a provision to which section 88 of the Legislation Act applied. The only other sub-section not so covered was sub-section (5), which was merely the expiry provision, and which one would not expect to be the subject of such a declaration.

1. Senior counsel for the defendant submits that I should construe the legislation strictly and literally, which, he submits, would require me to find that the intention of the legislature was that sub-section 224(4), immediately prior to the expiry of section 224, was not a provision to which section 88 of the Legislation Act was declared to apply; because the earlier sub-sections of the section were specifically so declared, the legislature must have intended sub-section (4) not to be saved by section 88 of the Legislation Act on the expiry of section 224.

1. There are no extrinsic materials to assist me in considering whether the fact that the legislature chose not to amend sub-section (6), but to leave it in the form in which it had been since the Act was first notified in 2002, should be taken to be an intentional decision by the legislature to distinguish sub-section (4) from sub-sections (1), (2) and (3), or whether the fact that sub-section (6) would not apply to sub-section (4) was simply overlooked.

1. I must bear in mind that when the Civil Law (Wrongs) Regulations 2002 were made, the intention of the Executive was that the then sub-section 150(3A), in identical terms to the later sub-section 224(4), be subject to section 88 of the Legislation Act. A specific declaration was made in Regulation 4 in those terms.

1. If I am to accept the submission of senior counsel for the defendant, it follows that I must find that the intention of the legislature nine months later, when it inserted section 150(3A) in the Act, was that that sub-section would also be subject to section 88 of the Legislation Act. The legislature must be taken to be aware that it was inserting the sub-section into a section of the Civil Law (Wrongs) Act which was already expressed to expire three years after it commenced, which it had done on 1 January 2003. It seems to me highly unlikely that the legislature made an intentional decision having such a draconian effect, without the effect being drawn to the attention of the Legislative Assembly by the Attorney-General, and without the change being brought to the attention of the legal profession and the public. It seems to me a far more likely explanation that the precise terms of sub-section 224(6) were not fully considered, and that sub-section (6) was not amended to extend it to sub-section (4) due to oversight.

1. I have had regard in construing section 224 of the Civil Law (Wrongs) Act to the Legislation Act, and I note that section 139 of that Act requires me to prefer an interpretation which would best achieve the purpose of the Act rather than any other interpretation. That test does not necessarily resolve the matter.

1. However, it is a fundamental principle of statutory interpretation that the legislature is presumed not to have intended to interfere with existing legal rights unless it does so by clear words. Broadly, the position seems to be this: the legislature initially applied what was then Chapter 10 (Limitations on legal costs) to claims other than those where an agreement or arrangement about costs between solicitor and client had been made before the commencement of the Part. This was altered by the Executive, pursuant to a power to amend an Act by Regulation, in December 2002, before Chapter 10 had come into operation at all. Chapter 10 was not to apply where the cause of action arose before the Part commenced, that being on 1 January 2003. Senior counsel for the defendant seeks to persuade me that this eventually changed because the legislature confirmed the insertion of the new sub-section but not the declaration that it was to be a law to which section 88 of the Legislation Act applied. It seems to me that if that had been the intention of the legislature, one would reasonably expect that the change would be spelt out in specific terms in the legislation; and, as I have said earlier, brought to the attention of the Assembly, the legal profession and the public by the Minister.

1. Senior counsel for the defendant in the course of argument referred me to three decisions of the Supreme Court of Victoria; Galvin v The Forests Commission of Victoria [1939] VLR 284 (Mann CJ, Lowe and Martin JJ); Jackman v Dandenong Sewerage Authority (No 2) 20 LGRA 413 (Barber J); and Civic Workers Plus Pty Ltd v Hill (2000) 1 VR 640 (Ormiston, Phillips and Buchanan JJA). In each case legislation as to costs had been amended during the course of proceedings. In each case, the court referred to a longstanding principle of statutory interpretation, apparently in Victoria at least, to the effect that legislative amendments about matters of procedure rather than substance (including costs) have retrospective operation. It is unnecessary for me to determine whether such a principle is part of the law of the Australian Capital Territory. It is sufficient to say that in the present case, I have found that the apparent effect of the combination of the legislative provisions, including any retrospective effect, was not intended by the legislature.

1. In these circumstances, notwithstanding the apparent effect of the combined legislative provisions on a strict and literal reading, I am satisfied that sub-section 224(4), as it stood at the time when the section expired, should be read as subject to section 88 of the Legislation Act, so that the expiry of the section did not bring the effect of sub-section (4) to an end.

1. I am reinforced in this conclusion by testing the construction contended for by senior counsel for the defendant against a hypothetical factual situation. Let it be assumed that the present plaintiff, following her motor vehicle accident in August 2000, had instructed solicitors, and that those solicitors had carried out a substantial amount of legal work prior to the passage of the Civil Law (Wrongs) Act in October 2002. Let it be further assumed that they had carried out further significant legal work between then and 1 January 2003, when the then Chapter 10 commenced, and still further legal work prior to September 2003, when the Civil Law (Wrongs) Amendment Act 2003 (No 2) was notified. If the interpretation urged by senior counsel for the defendant is correct, on the notification of that amending Act, the plaintiff would at a stroke have lost her entitlement ultimately to recover costs beyond the ceiling fixed by the present section 181, and the solicitors, notwithstanding any retainer arrangement with her, would have lost the right to charge fees over the ceiling.

1. Such an interpretation could not possibly have been intended.

1. In lieu of the declaratory relief sought by the defendant in the application of 20 June 2008, I declare that the provisions of section 181 of the Civil Law (Wrongs) Act 2002 have no application to the quantification of the costs recoverable by the plaintiff from the defendant, or the costs recoverable by the plaintiff’s solicitors from the plaintiff.

1. The defendant must pay the plaintiff’s costs of the application.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date:    26 September 2008

Counsel for the plaintiff:  Mr SR Hausfeld
Solicitors for the plaintiff:  Blumers
Counsel for the defendant:  Mr CM Erskine SC
Solicitors for the defendant:  Moray & Agnew
Date of hearing:  11 July 2008
Date of judgment:  26 September 2008