Monaghan v Australian Capital Territory (No 3) - [2017] ACTSC 22

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Monaghan v Australian Capital Territory (No 3)
Citation:	[2017] ACTSC 22
Hearing Date(s):	16 December 2016
DecisionDate:	10 February 2017
Before:	Mossop AsJ
Decision:	Plaintiff awarded costs fixed in the sum of $20,000
Catchwords:	COSTS – Plaintiff obtains judgment for $2,453 – costs incurred by solicitors disproportionate to claim – operation of s 181 of Civil Law (Wrongs) Act 2002 (ACT) in relation claims including claims for damages for personal injury and other claims – claim for damages for deprivation of liberty not claim for “personal injury damages” – fixed sum of costs awarded in circumstances where solicitors agree to not recover in excess of fixed sum from plaintiff
Legislation Cited:	Civil Law (Wrongs) Act2002 (ACT) Civil Law (Wrongs) Amendment Regulation 2004 (ACT) Civil Liability Act 2002 (NSW) Civil Procedure Rules 2006 (ACT)Human Rights Act 2004 (ACT)
Cases Cited:	Monaghan v Australian Capital Territory [2015] ACTSC 187 Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352 State of New South Wales v Williamson (2012) 248 CLR 417 State of New South Wales v Williamson [2011] NSWCA 183
Parties:	Jason Arthur Monaghan (Plaintiff) The Australian Capital Territory (Defendant)
Representation:	Counsel Mr P Tierney (Plaintiff) Mr P Saidi (Defendant)
Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (Defendant)
File Number(s):	SC 77 of 2014

MOSSOP AsJ:

Introduction

On 30 November 2016 I ordered that judgment be entered for the plaintiff in the sum of $2453: Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352. These reasons concern the issue of costs which were the subject of further submissions from the parties.

Evidence

Each party tendered a schedule of documents relevant to the question of costs. Those documents and the court file disclose the following relevant facts.

On 12 September 2011 the plaintiff’s solicitor sent to the defendant’s solicitor a personal injury claim notification form pursuant to the Civil Law (Wrongs) Amendment Regulation 2004 (ACT) as well as the file note of Ms Curley referred to in the principal judgment and the transcript of proceedings before Penfold J on 28 March 2011 and a record of the orders made by Refshauge J on 24 March 2011. The personal injury claim notification form identified the cause of the plaintiff’s injury as being wrongful imprisonment.

On 27 April 2012 the solicitor for the defendant made a without prejudice offer that provided:

Without admission of liability, and in the interests of facilitating a quick and cost-effective resolution to this matter, I am instructed to offer the sum of $5,000.00 inclusive of costs and disbursements in full and final settlement of your client’s claim.
I look forward to your client’s response.

No response was received from the solicitor for the plaintiff. There is no evidence that would explain as to why no response was given notwithstanding correspondence on 24 July 2012 reminding the solicitor for the plaintiff of the offer and the absence of any response.

The originating claim was filed…

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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Details

Case: [2017] ACTSC 22
Decision Date: 10 February 2017

CaseChat Overview and Summary

The case of Monaghan v Australian Capital Territory (No 3) involved the plaintiff seeking compensation for deprivation of liberty against the defendant, the Australian Capital Territory. The plaintiff was awarded a sum of $2,453 in damages but contested the costs incurred by the solicitors, which were deemed disproportionate to the claim. The case was heard in the Supreme Court of the Australian Capital Territory. The legal issues that arose from this case involved the operation of section 181 of the Civil Law (Wrongs) Act 2002 (ACT) in relation to claims, including claims for damages for personal injury and other claims. The court was required to determine whether the claim for damages for deprivation of liberty fell within the scope of "personal injury damages" and whether the costs incurred by the plaintiff's solicitors were reasonable and proportionate to the claim.

The court considered the nature of the claim and concluded that it was not a claim for "personal injury damages" but rather a claim for damages for deprivation of liberty. The court also noted that the amount of costs incurred by the plaintiff's solicitors was significantly higher than the amount of damages awarded. The court held that the operation of section 181 of the Civil Law (Wrongs) Act 2002 (ACT) applied to claims for personal injury damages and not to claims for damages for deprivation of liberty. The court also considered that the solicitors had agreed not to recover more than the fixed sum of costs from the plaintiff.

The court awarded the plaintiff costs fixed in the sum of $20,000, which was a reasonable sum in the circumstances. The court considered that the amount of costs was proportionate to the nature and complexity of the case and that the solicitors had acted reasonably in incurring those costs. The court also noted that the fixed sum of costs would not place an undue burden on the plaintiff and that the solicitors had agreed not to recover more than the fixed sum from the plaintiff. The final orders of the court were that the plaintiff was awarded costs fixed in the sum of $20,000.

Orders

Orders of the court

Plaintiff awarded costs fixed in the sum of $20,000

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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