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 |
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…
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- Case
- [2017] ACTSC 22
- Decision Date
CaseChat Overview and Summary
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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