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New South Wales v Williamson

New South Wales v Williamson

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Case Copied 12 December 2012 22 min read

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HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, CRENNAN, KIEFEL AND BELL JJ
STATE OF NEW SOUTH WALES APPELLANT
AND
JAYSON WILLIAMSON RESPONDENT
New South Wales v Williamson
[2012] HCA 57
12 December 2012
S416/2011
ORDER
Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales
Representation
J B Simpkins SC with D F Villa for the appellant (instructed by Crown Solicitor (NSW))
B W Walker SC with F L Austin for the respondent (instructed by Byles Anjos Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

FRENCH CJ AND HAYNE J. This appeal was heard together with three appeals brought by Certain Lloyd's Underwriters against John Cross, Mark George Thelander and Jill Maria Thelander. These reasons should be read with the reasons in those appeals[1] ("the Lloyd's Appeals").
[1]Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56.
The issues
As in the Lloyd's Appeals, this appeal concerns the construction of New South Wales statutory provisions fixing the maximum costs that can be awarded in certain personal injury damages matters. Two questions arise in this appeal. Does a "claim for personal injury damages" include a claim for personal injury damages based on an intentional tort? Does it include a claim for damages for false imprisonment?
Answering these questions requires consideration of Div 9 of Pt 3.2 (ss 337‑343) of the Legal Profession Act 2004 (NSW) ("the 2004 Legal Profession Act") and the Civil Liability Act 2002 (NSW) ("the Liability Act") as it stood after the amendments made by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) ("the Personal Responsibility Act")[2].
[2]Although the Liability Act has been amended since the amendments made by the Personal Responsibility Act, the detail of those later amendments need not be considered. They do not suggest any different answer to the determinative question of construction.
The facts
The respondent sued the State of New South Wales in the District Court of New South Wales for damages for trespass to the person and false imprisonment. He alleged that the State was vicariously liable for the actions of police officers who, in August 2006, had allegedly thrown him to the ground, restrained him, confined him in a police wagon, further assaulted him and then, without explanation, released him without charge. The action in the District Court was settled and orders were made by consent disposing of the proceedings. Judgment was entered for the respondent (as plaintiff) for $80,000 "plus costs of these proceedings as agreed or assessed".
Proceedings at first instance and in the Court of Appeal
No agreement having been reached about the costs that were to be allowed, the respondent applied for an order transferring the proceedings to the Supreme Court and for a declaration that costs in the proceedings "are not regulated by section 338 of the Legal Profession Act [2004]". Hall J made[3] orders to…

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: [2012] HCA 57
Decision Date: 12 December 2012

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the State of New South Wales against a decision of the New South Wales Court of Appeal concerning the application of cost-limiting provisions under the *Legal Profession Act 2004* (NSW). The respondent had sued the State for damages for trespass to the person and false imprisonment, alleging unlawful actions by police officers. The proceedings were settled by consent judgment for $80,000 plus costs. A dispute arose regarding the assessment of costs, specifically whether the maximum costs limitation under section 338 of the *Legal Profession Act 2004* applied to the settlement amount.

The central legal issue before the High Court was whether the respondent's claim, which included false imprisonment and trespass to the person, constituted a "claim for personal injury damages" within the meaning of section 338 of the *Legal Profession Act 2004*. This required the Court to interpret the definition of "personal injury damages" as it related to the *Civil Liability Act 2002* (NSW), particularly after amendments made by the *Civil Liability Amendment (Personal Responsibility) Act 2002* (NSW). The Court also had to consider whether a claim for damages resulting from intentional acts, such as false imprisonment, fell within this definition, and how an undifferentiated lump sum settlement affected the characterisation of the claim.

The High Court reasoned that the *Legal Profession Act 2004* adopted the meaning of "personal injury damages" from the *Civil Liability Act 2002*. It held that, in light of the amendments to the *Civil Liability Act 2002*, the term "personal injury damages" did not extend to damages arising from intentional torts, such as false imprisonment. Furthermore, because the judgment was for a single, undifferentiated sum, it was not possible to demonstrate that the amount recovered was specifically "on a claim for personal injury damages" as defined. Consequently, the cost-limiting provisions of section 338 were not engaged.

The High Court dismissed the appeal, upholding the decision of the New South Wales Court of Appeal. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Answering these questions requires consideration of Div 9 of Pt 3.2 (ss 337‑343) of the Legal Profession Act 2004 (NSW) ("the 2004 Legal Profession Act") and the Civil Liability Act 2002 (NSW) ("the Liability Act") as it stood after the amendments made by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) ("the Personal Responsibility Act")[2]. [2]Although the Liability Act has been amended since the amendments made by the Personal Responsibility Act, the detail of those later amendments need not be considered. They do not suggest any different answer to the determinative question of construction.The facts The respondent sued the State of New South Wales in the District Court of New South Wales for damages for trespass to the person and false imprisonment. He alleged that the State was vicariously liable for the actions of police officers who, in August 2006, had allegedly thrown him to the ground, restrained him, confined him in a police wagon, further assaulted him and then, without explanation, released him without charge. The action in the District Court was settled and orders were made by consent disposing of the proceedings. Judgment was entered for the respondent (as plaintiff) for $80,000 "plus costs of these proceedings as agreed or assessed". Proceedings at first instance and in the Court of Appeal No agreement having been reached about the costs that were to be allowed, the respondent applied for an order transferring the proceedings to the Supreme Court and for a declaration that costs in the proceedings "are not regulated by section 338 of the Legal Profession Act [2004]". Hall J made[3] orders to that effect.[3]Williamson v State of New South Wales (2010) Aust Torts Reports ¶82‑055. By leave, the State appealed to the Court of Appeal (Hodgson, Campbell and Macfarlan JJA) against the orders of Hall J. The Court of Appeal dismissed[4] the appeal and identified two different bases for doing so. First, the Court held[5] that a claim for false imprisonment, at least in so far as it extends to a claim for damages for deprivation of liberty and loss of dignity, is not a claim for personal injury damages within the meaning of s 338(1) of the 2004 Legal Profession Act. Where such a claim is included in a claim for damages settled by a single undifferentiated sum, the Court concluded[6] that the amount recovered, though less than $100,000, is not recovered "on a claim for personal injury damages" and does not engage s 338(1). Second, the Court of Appeal held[7], following the earlier decision of a differently constituted Court of Appeal in Cross v Certain Lloyds Underwriters[8], that the expression "personal injury damages" in the 2004 Legal Profession Act does not include claims for intentional torts.[4]State of New South Wales v Williamson [2011] NSWCA 183.[5][2011] NSWCA 183 at [54]‑[56], [61]‑[67] per Campbell JA (Hodgson and Macfarlan JJA agreeing).[6][2011] NSWCA 183 at [54]‑[56], [68] per Campbell JA.[7][2011] NSWCA 183 at [3] per Hodgson JA, [27], [40] per Campbell JA, [117] per Macfarlan JA.[8][2011] NSWCA 136.Appeal to this Court

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ HAYNE J CRENNAN AND BELL JJ KIEFEL J

The judgment entered in this matter in the District Court did not identify how the damages were computed or on what account they were allowed. On its face, the judgment was consistent with the allowance of damages only for the deprivation of liberty with no allowance for any impairment of the respondent's physical or mental condition. It is not possible to show that the sum which the respondent recovered was "recovered on a claim for personal injury damages". The costs limiting provisions of Div 9 of Pt 3.2 of the 2004 Legal Profession Act were thus not engaged. Conclusion and orders The Court of Appeal was right to dismiss the appeal to that Court on the basis that the respondent's lump sum settlement was not an amount that had been "recovered on a claim for personal injury damages". The appeal to this Court should accordingly be dismissed with costs. This appeal was heard with the appeals brought by Certain Lloyd's Underwriters against John Cross, Mark Thelander and Jill Thelander ("the Lloyd's appeals") and these reasons are to be read with our reasons in the Lloyd's appeals. The factual background and procedural history are set out in the reasons of French CJ and Hayne J and need not be repeated. The respondent's claim was found by the primary judge[30] (Hall J) and the New South Wales Court of Appeal (Hodgson, Campbell and Macfarlan JJA) not to be within the provision restricting the recovery of party and party costs in certain claims for "personal injury damages" in the Legal Profession Act 2004 (NSW)[31] ("the 2004 LP Act"). The Court of Appeal's holding was made on two bases. First, the respondent's judgment was for a single undifferentiated sum which included claims under heads of damage that were not for personal injury[32]. Secondly, claims for damages for personal injury caused by an act done with the intention of causing injury or death are not claims for "personal injury damages" for the purposes of s 338(1) of the 2004 LP Act[33]. The second basis raises the same question as to the meaning of "personal injury damages" that is addressed in the Lloyd's appeals. It is determinative of this appeal. [30]Williamson v State of New South Wales (2010) Aust Torts Reports ¶82-055 at 64,124 [85] (2). [31]2004 LP Act, s 338.[32]State of New South Wales v Williamson [2011] NSWCA 183 at [2] per Hodgson JA, [68] per Campbell JA, [117] per Macfarlan JA.[33]State of New South Wales v Williamson [2011] NSWCA 183 at [4] per Hodgson JA, [27] per Campbell JA, [117] per Macfarlan JA. The Lloyd's appeals concern the cost-capping provisions of Div 5B of Pt 11 of the Legal Profession Act 1987 (NSW) ("the 1987 LP Act"). From 6 December 2002, when the relevant provisions of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) commenced, the provisions of Div 5B of Pt 11 of the 1987 LP Act became identical to the provisions of Div 9 of Pt 3.2 of Ch 3 of the 2004 LP Act in their application to this appeal. For the reasons given in the Lloyd's appeals, the meaning of "personal injury damages" in s 337(1) of the 2004 LP Act is damages relating to the death of or injury to a person (in the extended way injury is defined in s 11 of the Civil Liability Act 2002 (NSW) ("the Liability Act")) to which Pt 2 of the Liability Act applies. The expression does not include a claim for damages for personal injury occasioned by an act done with the intention of causing injury or death[34]. This conclusion makes it unnecessary to address the appellant's challenges to the first basis of the Court of Appeal's determination. [34]Liability Act, s 3B(1)(a).Orders

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, HAYNE J, CRENNAN AND BELL JJ, KIEFEL J

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