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Hammond v Stern

Hammond v Stern

Case [2013] NSWSC 70 13 February 2013

Statutory Interpretation

Limitation Periods

Costs

Statutory Interpretation

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hammond v Stern [2013] NSWSC 70
Hearing dates: 8 August 2011
Decision date: 13 February 2013
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court declares that:
(1) The costs of the proceedings the subject of the consent judgment dated 11 October 2010 are regulated by s 338 of the Legal Profession Act 2004.
The Court orders that:
(2) The plaintiff is to file and serve submissions in relation to costs of the proceedings by 27 February 2013.
(3) The defendant is to file and serve submissions in relation to costs of the proceedings by 12 March 2013.
(4) Any submissions in reply are to be filed and served by 19 March 2013.

Catchwords:
STATUTORY INTERPRETATION â€“ professional negligence claim against solicitor and barrister â€“ loss of opportunity to recover damages â€“ settlement for $60,000 plus costs â€“ declaration sought that costs not limited by s 338 of the Legal Profession Act 2004 â€“ whether a claim for â€œpersonal injury damagesâ€ â€“ whether damages â€œthat relate toâ€ injury to a person â€“ declaration that costs of proceedings are regulated by s 338
COSTS â€“ application of s 338 of the Legal Profession Act 2004 to costs of professional negligence claim â€“ where loss of opportunity to recover damages in personal injury claim â€“ costs regulated by s 338
Legislation Cited: Civil Liability Bill
Civil Liability Amendment (Personal Responsibility) Act 2002
Civil Liability Act 2002
Civil Procedure Act 2005
Fair Trading Act (Vic) 1999
Legal Profession Act 1987
Legal Profession Act 2004
Lord Campbell's Act
Supreme Court Act 1970
Victorian Civil and Administrative Tribunal Act (Vic) 1998
Workers Compensation Act 1987
Cases Cited: American International Assurance Company (Australia) Limited v Skewes [2010] VSC 307
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
Cross v Certain Lloyds Underwriters; Thelander v Certain Lloyds Underwriters [2011] NSWCA 136
Firth v Sutton [2010] NSWCA 90
Johnson v Perez (1988) 166 CLR 351
Koh v Ku [2009] NSWDC 264
Moss v Eaglestone [2011] NSWCA 404
New South Wales v Williamson [2012] HCA 57
Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394
Producers Cooperative Distributing Society Limited v Commissioner of Taxation (NSW) [1944] HCA 39
Producers' Cooperative Distributing Society Limited v Commissioner of Taxation (NSW) [1947] UKPCHCA 2
State of New South Wales v Williamson [2011] NSWCA 183
Steve Masselos & Co v Young [2011] NSWCA 352
Victoria v Commonwealth (1971) 122 CLR 353
Williamson v State of New South Wales [2010] NSWSC 229
Wilson v State Rail Authority [2010] NSWCA 198
Texts Cited: New South Wales Legislative Assembly, Ministerial statement by Premier Carr, Public Liability Insurance (Hansard), 20 March 2002 at 828
New South Wales Legislative Assembly, Second reading speech for Civil Liability Bill, Premier Carr, (Hansard) 28 May 2002 at 2085
Category: Principal judgment
Parties: Harry Hammond (Plaintiff)
Terence Leland Stern (First Defendant)
Kevin Pierce (Second Defendant)
Representation: L King SC with R Goodridge (Plaintiff)
P S…

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.

Continue reading Hammond v Stern

Details

AGLC: Hammond v Stern [2013] NSWSC 70
Case: [2013] NSWSC 70
Decision Date: 13 February 2013

CaseChat Overview and Summary

The case of Hammond v Stern involved a professional negligence claim brought against a solicitor and a barrister. The plaintiff, Hammond, alleged that the defendants' negligence led to a loss of opportunity to recover damages in a separate personal injury claim. The settlement reached between the parties for the professional negligence claim was for $60,000 plus costs. Hammond sought a declaration that the costs incurred in the professional negligence proceedings were not limited by section 338 of the Legal Profession Act 2004, arguing that the costs related to "personal injury damages." Conversely, the defendants contended that the costs were subject to the regulation imposed by section 338.

The central legal issue before the court was whether the costs of the professional negligence claim fell within the scope of "personal injury damages" and, consequently, whether they were subject to the limitations set out in section 338 of the Act. The court had to determine if the costs were "that relate to" injury to a person, as stipulated by the Act. This interpretation hinged on understanding the legislative intent behind section 338 and its applicability to the specific circumstances of the case.

In delivering its judgment, the court found that the costs incurred in the professional negligence claim did not constitute "personal injury damages." The court held that the costs were not "that relate to" injury to a person, as they did not directly pertain to the personal injury claim but rather to the professional negligence claim. As a result, the court ruled that the costs were regulated by section 338 of the Legal Profession Act 2004. This decision clarified the scope of the legislation and its application to costs in professional negligence claims.

The final orders of the court were that the costs of the professional negligence claim were subject to the limitations set out in section 338 of the Legal Profession Act 2004, thereby rejecting Hammond's application for a declaration to the contrary. This decision underscored the importance of statutory interpretation in determining the applicability of legislative provisions to specific factual scenarios.

Orders