Port Stephens Council v Theodorakakis (No 2)

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Port Stephens Council v Theodorakakis (NO 2) [2006]  NSWCA 143

FILE NUMBER(S):
40422/2005

HEARING DATE(S):               23/03/2006

DECISION DATE:     05/06/2006

PARTIES:
Claimant – Port Stephens Council
Opponent – Maria Theodorakakis

JUDGMENT OF:       Giles JA Ipp JA Bryson JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 654/03

LOWER COURT JUDICIAL OFFICER:     Rein DCJ

COUNSEL:
Claimant – Mr P.R. Garling SC & Mr P. Cummings
Opponent – Mr M.R. Aldridge SC & Ms E. Welsh

SOLICITORS:
Claimant – Phillips Fox
Opponent – Bryden’s Law Office

CATCHWORDS:
COSTS -
LEGAL PROFESSION
Cap on costs recoverable in connection with personal injury damages claims - cap applies in appeal unless Court of Appeal makes excluding order - unsuccessful defendant applied for leave to appeal and failed - cap of $13,587.23 on damages probably already exceeded after 3-day hearing in District Court - held by majority (Bryson JA dissenting) it had not been shown that the application for leave to appeal was not reasonably necessary for advancement of claimant's case.  Note that this application was made under LPAct 1987 ss.198D and 198G, cf. LPAct 2004 ss 338 and 341 but see now LPAct 2004 s.338A.

LEGISLATION CITED:
Civil Liability Act 2002 s.42
Legal Profession Act 1987 Pt.11 Div.5B ss.198D & 198G
Legal Profession Act 2004 ss. 341, 338 & 737 and Schd.9 cl.18(1).

DECISION:
1. Order that the claimant pay the opponent’s costs of the claimant’s Summons for leave to appeal
2. Order that each party pay its or her own costs of the opponent’s Summons for leave to appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40422/2005

GILES JA
IPP JA
BRYSON JA

5 JUNE 2006

PORT STEPHENS COUNCIL v MARIA THEODORAKAKIS (No.2)

Judgment

1. GILES JA: The reasons of Bryson JA, which I have had the advantage of reading in draft, describe the costs question arising under s 198G of the Legal Profession Act 1987 (“the Act”). For the reasons which follow, in which I draw upon his Honour’s reasons without unnecessary repetition, I have arrived at a different answer to the question.

2. An order excluding legal services from the operation of Pt 11 Div 5B of the Act could be made -

   “  …  if the court is satisfied that the legal services were provided in response to any action on the claim by or on behalf of the other party to the claim that in the circumstances was not reasonably necessary for the advancement of that party’s case or was intended or reasonably likely to unnecessarily delay or complicate determination of the claim.”

3. Although the question arose at appellate level, the relevant claim was the opponent’s claim for damages for injury suffered when she tripped and fell on the footpath, her “original (and continuing) claim”:  Newcastle City Council v McShane(No 3) [2005] NSWCA 431 at [37]. The relevant action on the claim was the claimant’s application for leave to appeal: in its submissions on the costs…