Cross v Certain Lloyds Underwriters

Case [2011] NSWCA 136


This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Appeal

New South Wales

Case Title: Cross v Certain Lloyds Underwriters;  Thelander v Certain Lloyds Underwriters
Medium Neutral Citation: [2011] NSWCA 136
Hearing Date(s): 3 May 2011
Decision Date: 01 June 2011
Jurisdiction:
Before:

Hodgson JA at 1; 
Basten JA at 3; 
Sackville AJA at 68

Decision:

(1) Grant the applicants an extension of time to 24 September 2010 to file applications for leave to appeal.
(2) In respect of each, grant leave to appeal.
(3) Direct that the applicants file within 14 days notices of appeal in accordance with the draft notices contained in the Court file.
(4) Set aside the second order made by the District Court on 22 April 2010 declaring that the legal costs are subject to s 198D of the Legal Profession Act 1987.
(5) Declare that the legal costs incurred by the plaintiffs to be paid by the defendants in accordance with order 1 made by the District Court on 22 April 2010 are not subject to s 198D of the Legal Profession Act 1987 , nor subject to s 338 of the Legal Profession Act 2004 .
(6) Order that respondents pay the applicants' costs in this Court.
(7) If not disqualified pursuant to s 6(7) of the Suitors' Fund Act 1951 (NSW), grant the respondents a certificate under that Act in respect of the costs of the appeals.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

COSTS - relevant statutory provisions governing the costs order - when did the limitation on costs crystallise into a constraint relevant to the parties - Legal Profession Act 1987, s 198D; Legal Profession Act 2004 (NSW), s 338

STATUTORY INTERPRETATION - principles - reading provision in context - whether, when operative statute adopts a term "as defined in" a source statute, account must be taken of the operation of that phase in the source statute 

TORTS - intentional - assault - whether legal costs were subject to the statutory limitation limiting the amount recoverable 

WORDS AND PHRASES - "matter" -Legal Profession Act 2004 (NSW), Sch 9, cl 18 

WORDS AND PHRASES - "the same meaning" - Legal Profession Act 1987, s 198C; Legal Profession Act 2004 (NSW), s 337

Legislation Cited:

Bankruptcy Act 1966 (Cth), s 5
Civil Liability Act 2002 (NSW), ss 3, 3B, 6, 9, 11, 11A, 15B, 18; Pts 2, 2A, 7
Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), Schs 1, 2
Civil Procedure Act 2005 (NSW), s 3
Co-operation Act
Dust Diseases Tribunal Act 1989 (NSW), s 11
Interpretation…

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AGLC
Cross v Certain Lloyds Underwriters [2011] NSWCA 136
Case
[2011] NSWCA 136
Decision Date

CaseChat Overview and Summary

The applicants, certain Lloyds Underwriters, sought leave to appeal and an extension of time to file their applications against orders made by the District Court. The dispute concerned whether legal costs awarded to the plaintiffs in an assault claim were subject to a statutory limitation imposed by section 198D of the *Legal Profession Act 1987* (NSW) or section 338 of the *Legal Profession Act 2004* (NSW). The Court of Appeal of New South Wales was required to determine the correct interpretation and application of these legislative provisions to the awarded costs.

The primary legal issue before the Court of Appeal was whether the costs order made by the District Court was constrained by the limitation provisions of the *Legal Profession Act 1987* or the *Legal Profession Act 2004*. This involved considering the principles of statutory interpretation, particularly how a later statute adopts terms from an earlier one, and whether the phrase "as defined in" required the operative statute to adopt the meaning of the term as it functioned within the source statute. The court also had to consider the meaning of "matter" in Schedule 9, clause 18 of the *Legal Profession Act 2004* and the phrase "the same meaning" as used in sections 198C of the 1987 Act and 337 of the 2004 Act.

The Court of Appeal reasoned that the *Legal Profession Act 2004* did not intend to apply the limitations of section 198D of the *Legal Profession Act 1987* to matters that arose before the commencement of the 2004 Act. It held that the costs awarded were not subject to the limitation in section 198D of the *Legal Profession Act 1987* or section 338 of the *Legal Profession Act 2004*. The court granted the applicants an extension of time and leave to appeal, set aside the District Court's order declaring the costs subject to the limitation, and declared that the legal costs were not subject to either statutory limitation. The respondents were ordered to pay the applicants' costs in the Court of Appeal.

Orders

Orders of the court

(1) Grant the applicants an extension of time to 24 September 2010 to file applications for leave to appeal.

(2) In respect of each, grant leave to appeal.

(3) Direct that the applicants file within 14 days notices of appeal in accordance with the draft notices contained in the Court file.

(4) Set aside the second order made by the District Court on 22 April 2010 declaring that the legal costs are subject to s 198D of the Legal Profession Act 1987.

(5) Declare that the legal costs incurred by the plaintiffs to be paid by the defendants in accordance with order 1 made by the District Court on 22 April 2010 are not subject to s 198D of the Legal Profession Act 1987 , nor subject to s 338 of the Legal Profession Act 2004 .

(6) Order that respondents pay the applicants' costs in this Court.

(7) If not disqualified pursuant to s 6(7) of the Suitors' Fund Act 1951 (NSW), grant the respondents a certificate under that Act in respect of the costs of the appeals.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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