Spanos by his tutor Spanos v Thornberry - [2013] NSWDC 193

District Court

New South Wales

Medium Neutral Citation: Spanos by his tutor Spanos v Thornberry [2013] NSWDC 193
Hearing dates: 20 September 2013
Decision date: 20 September 2013
Before: Gibson DCJ
Decision:
(1) Grant leave under Uniform Civil Procedure Rules 2005 (NSW) r 18.4 for the defendant's notice of motion to be returnable instanter.
(2) Defendant's notice of motion dismissed.
(3) Costs of the notice of motion to be the plaintiff's costs in the proceedings.
(4) Pursuant to ss 75 - 77 Civil ProcedureAct 2005 (NSW) I approve the settlement set out in the Consent Judgment filed in court today.
(5) Judgment for the plaintiff for the sum in paragraph 1 of the Consent Judgment.
(6) Note the provisions of paragraphs 3 - 4 of the Consent Judgment.
(7) Defendant pay plaintiff's costs of these proceedings, including the notice of motion, as agreed or assessed.
(8) The net sum referred to in paragraph 2 of the Consent Judgment is to be paid direct to the NSW Trustee and Guardian for investment until the plaintiff attains the age of 18 years.

Catchwords: COSTS - defendant sentenced to good behaviour bond for a period of 12 months, with no conviction recorded, pursuant to s 10(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), for assault on a minor - minor commences proceedings for damages for assault - approval of court sought under ss 75 - 77 Civil Procedure Act 2005 (NSW) - claim settled for amount below the District Court's monetary threshold (Pt 42 r 42.35 Uniform Civil Procedure Rules 2005 (NSW)) - defendant submits no costs should be payable as these proceedings should not have been commenced or continued in the District Court - defendant alternatively argued that circumstances warranted limiting of costs under s 98 Civil Procedure Act 2005 (NSW) - nature, conduct and complexity of proceedings - range of general damages likely to be awarded - whether aggravated damages available - whether exemplary damages available where the defendant's sentence amounted to a "nominal penalty" (Gray v Motor Accidents Commission (1998) 196 CLR 1 at [45]) - whether late application by plaintiff for a gross sum costs order under s 98(4) should be granted - order for defendant to pay plaintiff's costs on a party/party basis
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 75-77 and 98
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(b)
Uniform Civil Procedure Rules 2005 (NSW), rr 18.4, 42.34 and 42.35
Cases Cited: Certain Lloyd's Underwriters Subscribing to Contract No 1HOOAAQS v Cross & Thelander [2012] HCA 56
Daniels v Thompson [1998] 3 NZLR 22
Day v Ocean Beach Hotel [2013] NSWCA 250
Gray v Motor Accidents Commission (1998) 196 CLR 1
Lamb v Cotogno (1987) 164 CLR 1
Starr-Diamond v Diamond (No 4) [2013] NSWSC 811
State of New South Wales v Quirk [2012] NSWCA 216
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11
Zandata Pty Ltd v Riley [2013] NSWSC 49
Texts Cited: Dal Pont, Law of Costs,…

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 Spanos by his tutor Spanos v Thornberry

Details

AGLC: Spanos by his tutor Spanos v Thornberry [2013] NSWDC 193
Case: [2013] NSWDC 193
Decision Date: 20 September 2013

CaseChat Overview and Summary

Spanos by his tutor Spanos v Thornberry involved a legal dispute between a minor, represented by his tutor, and an individual who had been sentenced to a good behaviour bond for assaulting the minor. The matter was heard in the District Court of New South Wales. The primary legal issue before the court was the determination of costs and whether the defendant should be liable for any costs incurred by the plaintiff in the proceedings.

The court examined whether the defendant should be held liable for the costs of the proceedings, considering the settlement amount was below the monetary threshold of the District Court. The defendant argued that the proceedings should not have been commenced or continued, and alternatively, that the circumstances warranted a limitation on the costs under the Civil Procedure Act 2005 (NSW). The court also considered whether exemplary damages were available given the nominal nature of the defendant's sentence. The plaintiff sought a gross sum costs order, which the defendant opposed on the basis of lateness.

The court dismissed the defendant's motion, finding that the circumstances did not warrant a limitation on costs. The court held that the defendant should pay the plaintiff's costs on a party/party basis, as agreed or assessed, and approved the settlement as outlined in the Consent Judgment. The court further directed that the net sum from the settlement be paid directly to the NSW Trustee and Guardian for investment until the plaintiff reached the age of 18.

Orders

Orders of the court

(1) Grant leave under Uniform Civil Procedure Rules 2005 (NSW) r 18.4 for the defendant's notice of motion to be returnable instanter.

(2) Defendant's notice of motion dismissed.

(3) Costs of the notice of motion to be the plaintiff's costs in the proceedings.

(4) Pursuant to ss 75 - 77 Civil Procedure Act 2005 (NSW) I approve the settlement set out in the Consent Judgment filed in court today.

(5) Judgment for the plaintiff for the sum in paragraph 1 of the Consent Judgment.

(6) Note the provisions of paragraphs 3 - 4 of the Consent Judgment.

(7) Defendant pay plaintiff's costs of these proceedings, including the notice of motion, as agreed or assessed.

(8) The net sum referred to in paragraph 2 of the Consent Judgment is to be paid direct to the NSW Trustee and Guardian for investment until the plaintiff attains the age of 18 years.

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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Medium Neutral Citation:	Spanos by his tutor Spanos v Thornberry [2013] NSWDC 193
Hearing dates:	20 September 2013
Decision date:	20 September 2013
Before:	Gibson DCJ
Decision:	(1) Grant leave under Uniform Civil Procedure Rules 2005 (NSW) r 18.4 for the defendant's notice of motion to be returnable instanter. (2) Defendant's notice of motion dismissed. (3) Costs of the notice of motion to be the plaintiff's costs in the proceedings. (4) Pursuant to ss 75 - 77 Civil ProcedureAct 2005 (NSW) I approve the settlement set out in the Consent Judgment filed in court today. (5) Judgment for the plaintiff for the sum in paragraph 1 of the Consent Judgment. (6) Note the provisions of paragraphs 3 - 4 of the Consent Judgment. (7) Defendant pay plaintiff's costs of these proceedings, including the notice of motion, as agreed or assessed. (8) The net sum referred to in paragraph 2 of the Consent Judgment is to be paid direct to the NSW Trustee and Guardian for investment until the plaintiff attains the age of 18 years.
Catchwords:	COSTS - defendant sentenced to good behaviour bond for a period of 12 months, with no conviction recorded, pursuant to s 10(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), for assault on a minor - minor commences proceedings for damages for assault - approval of court sought under ss 75 - 77 Civil Procedure Act 2005 (NSW) - claim settled for amount below the District Court's monetary threshold (Pt 42 r 42.35 Uniform Civil Procedure Rules 2005 (NSW)) - defendant submits no costs should be payable as these proceedings should not have been commenced or continued in the District Court - defendant alternatively argued that circumstances warranted limiting of costs under s 98 Civil Procedure Act 2005 (NSW) - nature, conduct and complexity of proceedings - range of general damages likely to be awarded - whether aggravated damages available - whether exemplary damages available where the defendant's sentence amounted to a "nominal penalty" (Gray v Motor Accidents Commission (1998) 196 CLR 1 at [45]) - whether late application by plaintiff for a gross sum costs order under s 98(4) should be granted - order for defendant to pay plaintiff's costs on a party/party basis
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 75-77 and 98 Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(b) Uniform Civil Procedure Rules 2005 (NSW), rr 18.4, 42.34 and 42.35
Cases Cited:	Certain Lloyd's Underwriters Subscribing to Contract No 1HOOAAQS v Cross & Thelander [2012] HCA 56 Daniels v Thompson [1998] 3 NZLR 22 Day v Ocean Beach Hotel [2013] NSWCA 250 Gray v Motor Accidents Commission (1998) 196 CLR 1 Lamb v Cotogno (1987) 164 CLR 1 Starr-Diamond v Diamond (No 4) [2013] NSWSC 811 State of New South Wales v Quirk [2012] NSWCA 216 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11 Zandata Pty Ltd v Riley [2013] NSWSC 49
Texts Cited:	Dal Pont, Law of Costs,…