State of New South Wales v Bujdoso

[2007] NSWCA 44

Reported Decision: (2007) Aust Torts Reports 81-876

New South Wales

Court of Appeal

CITATION:	STATE OF NEW SOUTH WALES v BUJDOSO [2007] NSWCA 44 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	2 March 2007
JUDGMENT DATE:	13 March 2007
JUDGMENT OF:	Hodgson JA at 1; Ipp JA at 22; Basten JA at 37
DECISION:	(1) Grant leave to Appellant to amend its notice of appeal; (2) Dismiss the appeal; (3) Grant leave to both the parties, if unable to agree on an appropriate costs order, to file further submissions in respect of costs within 14 days.
CATCHWORDS:	CIVIL LIABILITY ACT – Civil Liability Act 2002 (NSW), s3B(1)(a) – statutory interpretation – whether the liability of a person in negligently failing to prevent harm from intentional acts of a third part is liability "in respect of an intentional act that is done with intent to cause injury or death" - CIVIL LIABILITY ACT – Civil Liability Act 2002 (NSW), ss 26A and 26B – definition of "offender in custody" – savings and transitional provisions – retrospective effect – operation of clauses 20, 21 and 26 of Schedule 1 - CIVIL LIABILITY ACT - Civil Liability Act 2002 (NSW), cl 26(4) – meaning of "finally determined" - DAMAGES – whether award of damages payable by the State is available as victim trust fund – operation of Civil Liability Act 2002 (NSW) s 26L - WORDS AND PHRASES – "in respect of" – meaning circumscribed by context
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), ss 3B, 5A, 11, 26A, 26B, 26C, 26D, 26E, 26F, 26G, 26H, 26I, 26K, 26L, 26M; cls 16, 18, 20, 21, 25, 26, Schedule 1; Parts 2, 5, 6, 7 and 9 Schedule 1; Div 6, Part 2A Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) Civil Liability Amendment (Offenders Damages) Act 2004 Civil Liability Amendment (Offenders Damages Trust Fund) Act 2005 (NSW) Crimes (Administration of Sentences) Act 1999 Crimes and Courts Legislation Amendment Act 2006 (NSW), s 2 Interpretation Act 1987 (NSW), ss 33, 34, 35 Judiciary Act 1903 (Cth), s 39 Motor Vehicles (Third Party Insurance) Act 1942 (NSW), s 35D Racial Discrimination Act 1975 (Cth), s 18C, Part IIA Supreme Court Act 1970 (NSW), s 75A Trade Practices Act 1974 (Cth)
CASES CITED:	A Hudson Pty Limited v Legal & General Life Australia Limited (1985) 1 NSWLR 701 Allesch v Maunz (2000) 203 CLR 172 Bujdoso v New South Wales (2004) 151 A Crim R 235 Carr v Finance Corporation of Australia Limited [No 1] (1981) 147 CLR 246 CDJ v VAJ (1998) 197 CLR 172 Cekan v Haines (1990) 21 NSWLR 296 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Drinkwater v Howarth [2006] NSWCA 222 Gumana v Northern Territory of Australia [2007] FCAFC 23 Hall v Nominal Defendant (1966) 117 CLR 423 Harris v Caladine (1990-91) 172 CLR 84 Howard v Jarvis (1958) 98 CLR 177 Inland Revenue Commissioners v Gittus [1920] 1 KB 563 Licul v Corney (1975) 180 CLR 213 Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668 New South Wales v Bujdoso [2005] HCA 76; (2006) 80 ALJR 236 Port of Melbourne Authority v Anshun Pty Ltd No. 1 (1980) 147 CLR 35 Potter v Minahan (1908) 7 CLR 277 Re Foley; Channell v Foley (1952) 53 SR(NSW) 31 Sanofi v Park Davis Pty Limited [No 1] (1982) 149 CLR 147 State of New South Wales v Ibbett 65 NSWLR 168 State of New South Wales v Napier [2002] NSWCA 402 Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45 Toben v Jones (2003) 129 FCR 515 T. Wagstaff v Haslam [2006] NSWSC 294 Wagstaff v Haslam [2007] NSWCA 28 Western Australia v Ward (2002) 213 CLR 1 The Victorian Stevedoring and General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73 Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 Pearce and Geddes, Statutory Interpretation in Australia (6th ed, 2000) at [4.45]
PARTIES:	State of New South Wales (Appellant) Peter Andrew Bujdoso (Respondent)
FILE NUMBER(S):	CA 40618/06
COUNSEL:	M. Cashion SC/S. Finnane (Appellant) J. Graves SC/R. de Meyrick (Respondent)
SOLICITORS:	I.V. Knight, Crown Solicitor (Appellant) T.D. Kelly & Co (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 4253/06
LOWER COURT JUDICIAL OFFICER:	Sully J
LOWER COURT DATE OF DECISION:	05/09/06
LOWER COURT MEDIUM NEUTRAL CITATION:	Bujdoso v State of New South Wales [2006] NSWSC 896

CA 40618/06
SC 4253/06

HODGSON JA
IPP JA
BASTEN JA

13 March 2007

STATE OF NEW SOUTH WALES v BUJDOSO

On 16 February 1990 the Respondent was sentenced to a term of imprisonment. On 21 September 1991, whilst he was serving this sentence at Silverwater prison, he was assaulted by fellow prisoners and suffered serious injuries. After his release the Respondent commenced proceedings against the State of New South Wales on 15 September 1994, seeking damages for the negligence of the State in failing to take reasonable steps to protect him from violent attack. The High Court affirmed the State’s liability on 8 December 2005 and on 21 July 2006, McLoughlin DCJ awarded the Respondent damages in an amount of $175,000. The State resisted payment of the damages on the basis that they were required to be held in a “victim trust fund” pursuant to Part 2A Div 6 of the Civil Liability Act 2002 (NSW) (“the Act”).

The present proceedings were commenced by the Respondent, seeking a declaration in the Equity Division that Div 6 of Part 2A did not apply to him or to the award of damages made in the District Court. On 5 September 2005 Sully J held that he was entitled to the declaration sought on two bases. First, pursuant to s 3B of the Act, as then in force, the provisions of the Act did not apply to the civil liability of the State in this case. Secondly, Part 2A of the Act only applied to a person who was an inmate within the meaning of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the 1999 Act”) at the time of the injury, pursuant to ss 26B and 26A. The Respondent was not an “offender in custody” as then defined in s 26A, because at the time of his injury the 1999 Act was not in force.

The State appealed from this decision on 28 September 2006. After lodgement of the appeal, the Crimes and Courts Legislation Amendment Act 2006 (NSW) (“the 2006 Amendment Act”) was passed which made relevant amendments to s 3B(1)(a) and s 26A(1) of the Act.

The issues for the Court of Appeal were:

(i) whether the State’s liability was one “in respect of an intentional act that is done with intent to cause injury or death” so that the Act did not apply to the Respondent’s proceedings pursuant to s 3B(1)(a) of the Act as in force prior to the 2006 Amendment Act;

(ii) whether the amendments to s 3B effected by the 2006 Amendment Act achieved a different result;

(iii) whether the savings and transitional provisions of cls 20 and 21 in Sch 1 of the Act consequent upon the enactment of the Civil Liability Amendment (Offender Damages Trust Fund) Act 2005 (NSW) extended the definition of “offender in custody” for the purposes of s 26B so as to cover the Respondent and render Part 2A applicable to him;

(iv) whether Schedule 1, Part 9, cl 26 applied Part 2A Div 6 to the award of damages in the present case.

Held, the Court dismissing the appeal:

In relation to (i):
Per Basten JA (Hodgson and Ipp JJA agreeing

)

1. The phrase “in respect of” has a wide meaning and leaves open the possibility that civil liability in negligence, for failure to take reasonable care to prevent an intentional act which causes harm, may extend to liability “in respect of” that intentional act, even though the act is that of an independent third party. If it did, the Act would have no application in relation to such liability: at [59].

Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642; Technical Products Pty Ltd v State Government Insurance (Qld) (1989) 167 CLR 45, considered.

2. However, the purpose of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) which introduced s 3B(1), was to ensure that individuals who might suffer harm due to the negligent conduct of others did not recover in circumstances in which, or to an extent for which, they should properly bear personal liability for their injuries. These principles may apply in cases involving deliberate assaults on prisoners, involving the negligence of the prison authorities: at [62].

3. The Act is intended to apply to negligence claims generally and should not have a differential operation in relation to claims by prisoners or by patrons of hotels resulting from a failure to control other patrons who indulge in violent behaviour: at [63].

4. The construction of the phrase “in respect of” in s 3B(1)(a) prior to the 2006 Amendment Act should be understood to refer to the liability of the person who did the intentional act and not to the liability of a person which derives from his or her own negligent conduct, where the risk against which precautions must be taken is the intentional violent act of another: at [66].

Held in relation to (ii):

Per Basten JA (Hodgson and Ipp JJA agreeing)

5. The effect of the 2006 Amendment Act was to clarify that s 3B(1)(a) had that operation: at [54] and [69].

Held in relation to (iii):
Per Hodgson JA

6. The primary judge was correct. It could not be contended that cl 20 had the effect of applying Part 2A to all awards of personal injury damages in proceedings commenced before 19 November 2004. The definition of “offender damages” in s26K(1) limits the application of the Part to cases of injuries received while a person falls within the categories first introduced by the 1999 Act. Clause 20(a) makes clear that Part 2A Division 6 applies whether the proceedings in question were commenced before or after 19 November 2004. It does not give the Part wider application in relation to proceedings commenced before 19 November 2004 than in relation to proceedings commenced after 19 November 2004: at [8]–[9].

Per Basten JA (Ipp JA agreeing)

7. The primary judge correctly held that clauses 20 and 21 in Sch 1, Part 7 did not extend the operation of Division 6 so as to apply to the Respondent. If such were the effect, it would be necessary to ignore the constraints on the meaning of “offender in custody” in s 26A in Part 2A. Clause 20 is directed to the date of commencement of proceedings and not the nature of the proceedings or the parties to them. It does not purport to affect the operation of Part 2A in those respects. The Respondent was not an offender in custody, as then defined, as his imprisonment commenced prior to the 1999 Act: at [79].

8. The term “personal injury damages” is defined in Part 2 for the purposes of Part 2A. Part 2 does not apply to an award of damages in proceedings commenced before the commencement of the Act on 20 March 2002: Sch 1, Part 2, cl 2. Accordingly, the Respondent’s claim, brought in 1994 was not for “personal injury damages” for the purpose of Part 2. As that phrase is picked up and applied in Part 2A, it follows that such damages will not be “personal injury damages” under that Part either and therefore did not constitute “offender damages” as defined in s 26K(1): at [82].

Held in relation to (iv):

9. The clause did not have that operation:

(per Hodgson and Ipp JJA; Basten JA not deciding) because:

(per Hodgson JA)

(1) There was a final determination of proceedings, there having been a final judgment at first instance, unless and until that judgment is set aside on appeal, at least unless there has been a stay of judgment. Clause 26(3) means that such a judgment cannot be set aside solely on the basis of a change of the law effected by cl 26. This construction would also apply to cl 26(4) so that Sully J did finally determine legal proceedings in relation to the application of Division 6 of Part 2A: at [16] and [18].

NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668 at 677-78, applied.

(per Ipp JA)

(2) To determine whether a judgment is interlocutory or final, the question to be asked is whether the “judgment or order, as made finally disposes of the rights of the parties”: at [29].

Hall v Nominal Defendant (1966) 117 CLR 423 at 442; Licul v Corney (1975) 180 CLR 213; Port of Melbourne Authority v Anshun Pty Limited No 1 (1980) 147 CLR 35; Carr v Finance Corporation of Australia Limited[No 1] (1981) 147 CLR 246 at 248; Sanofi v Park Davis Pty Limited[No 1] (1982) 149 CLR 147; A Hudson Pty Limited v Legal & General Life Australia Limited (1985) 1 NSWLR 701; NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668, applied.

(3) The legislature did not intend the test for “finally determined” in subclause (4) to be different to the established test laid down in the above cases. The confusion that would otherwise arise precludes any other construction. Applying that test, Sully J’s judgment finally determined the proceedings before him. Accordingly, cl 26 does not apply to those proceedings: at [34]–[35].

(per Basten JA) because:

(4) Nothing in the 2006 Amendment Act or the new Part 9 added to Schedule 1 of the Act was directed to the issue in point 2. Accordingly, the conclusion reached by the primary judge was correct at the time it was reached, and is not affected by the change in law effected by the 2006 Amendment Act: at [83].

CA 40618/06
SC 4253/06

HODGSON JA
IPP JA
BASTEN JA

13 March 2007

STATE OF NEW SOUTH WALES v BUJDOSO

Judgment

1 HODGSON JA: The circumstances giving rise to this appeal and the issues it raises are set out in the judgment of Basten JA. I agree with the orders he proposes, but my reasons vary a little from his.

2 In my opinion the primary judge was wrong to hold that s.3B(1)(a) of the Civil Liability Act 2002 (NSW) (CL Act), as introduced by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (2002 Amendment), applied to the State’s liability to the respondent. In my opinion, “civil liability in respect of an intentional act …” in that provision requires that the liability itself be in respect of such an act, not merely that the liability be for an injury caused by such an act; so that the words do not apply where the liability is for negligence in failing to prevent injury being caused by an intentional act of some other person or persons.

3 I agree substantially with what Basten JA says on this in par [56]-[67] of his judgment; and in any event, I consider this to be what is conveyed by the ordinary meaning of the words.

4 In my opinion, the primary judge was plainly right to hold that the respondent was not an “offender in custody” when he received the injury for which he recovered damages, within the meaning of s.26B of the CL Act, as introduced by the Civil Liability Amendment (Offenders Damages) Act 2004 (NSW) (2004 Amendment). He suffered his injury on 21 September 1991, and the definition of “offender in custody” in s.26A of the CL Act (also introduced by the 2004 Amendment) depended on categories introduced for the first time by an Act that commenced in 1999. The State did not contend to the contrary.

5 However, the State contended that the Civil Liability Amendment (Offenders Damages Trust Fund) Act 2005 (NSW) (2005 Amendment) had the effect that the award of damages to the respondent was made subject to the operation of Division 6 of Part 2A of the CL Act, which was introduced into that Act by the 2005 Amendment. This contention was based on the definition of “offender damages” in s.26K, the definition section for Division 6, as meaning “personal injury damages awarded pursuant to an award to which this Part applies”; and the effect of cls.20 and 21 of the transitional provisions in Schedule 1 of the CL Act (introduced by the 2005 Amendment), which are as follows:

20 Extended operation of Part 2A Division 6
For the purposes of the operation of Division 6 (Offender damages trust funds) of Part 2A:
(a) that Part extends to an award of personal injury damages in proceedings commenced before the commencement of that Part, and
(b) Parts 5 and 6 of this Schedule do not limit the operation of that Part.

21 Amendments extend to existing claims and damages awards
A provision of Division 6 (Offender damages trust funds) of Part 2A extends to:
(a) an award of offender damages made before the commencement of the provision that has not been satisfied by the protected defendant concerned as at that commencement, and
(b) an award of offender damages made after the commencement of the provision in respect of a claim for damages that arose before that commencement, and
(c) a victim claim made in respect of a cause of action that arose before the commencement of the provision.

6 Mr. Cashion SC for the State submitted that cl.21(b) applied, because the respondent’s award of damages was made after the commencement of Division 6 (26 October 2005) in respect of a claim for damages that arose before that commencement (it arose on 21 September 1991). He submitted that this award was of “offender damages”, because it was an award to which Part 2A applied, for the purposes of the operation of Division 6, by virtue of cl.20(a); since it was “an award of personal injury damages in proceedings commenced before the commencement of this Part” (that is, 19 November 2004, the date of commencement of the 2004 Amendment).

7 However, in my opinion it could not be contended that cl.20 had the effect of applying the Part to all awards of personal injury damages in proceedings commenced before 19 November 2004, by any plaintiffs against any defendants. That would have the effect of making damages awarded in any such proceedings “offender damages”, and making the plaintiff in any such proceedings an “offender” within the definition of “offender” in s.26K(1) (as meaning “a person to whom an award of offender damages is made”), and it would have such an effect only in relation to proceedings commenced before 19 November 2004.

8 In my opinion, one must read the definition of “offender damages” in s.26K(1) as invoking in the first instance the application of the Part prescribed by s.26B, namely damages against a protected defendant (defined in s.26A) in respect of injuries received while a person was an “offender in custody”. That is, the definition in the first instance at least limits the application of the Part to cases of injuries received while a person falls within the categories first introduced in 1999. Then, one asks if cl.20(a) changes this. If it did, it would have the extraordinary effect referred to in the preceding paragraph; and in my opinion, on the true construction of cl.20(a), it is only making it clear that it makes no difference to the application of Part 2A of the purposes of Division 6 whether the proceedings in question were commenced before or after 19 November 2004. What it does not do is to give the Part wider application in relation to proceedings commenced before 19 November 2004 than in relation to proceedings commenced after 19 November 2004.

9 Accordingly, the decision of the primary judge on the second issue before him was correct; and but for the effect of the Crimes and Courts Legislation Amendment Act 2006 (2006 Amendment), passed after the decision of the primary judge, the State’s appeal must fail.

10 The commencement of the 2006 Amendment is dealt with in s.2 of that Act:

2 Commencement
(1) This Act commences on the date of assent to this Act, except as otherwise provided by this section.
(2) The amendments made by Schedule I commence on the day or days specified in that Schedule in relation to the amendments concerned. If a commencement day is not specified, the amendments commence on the date of assent to this Act.

The date of the assent was 29 November 2006.

11 The provision of the 2006 Amendment relevant to this appeal is cl.26 of the transitional provisions of the CL Act, introduced into that Act by the 2006 Amendment:

26 Definition of "offender in custody" in section 26A
(1) The definition of offender in custody or offender in section 26A(1) includes, and is taken to have always included the following:
(a) an inmate within the meaning of the Correctional Centres Act 1952,
(b) a prisoner within the meaning of the Prisons Act 1952,
(c) a periodic detainee within the meaning of the Periodic Detention of Prisoners Act 1981,
(d) an offender for whom a home detention order was made under the Home Detention Act 1996,
(e) a person performing community service work under, or attending a place in compliance with the requirements of, a community service order as provided by the Community Service Orders Act 1979, whether or not the person is an offender in custody under any other paragraph of this definition.
(2) This clause extends to civil liability arising, and any award of damages in respect of such civil liability made, before the commencement of this clause.
(3) This clause does not affect any final determination of legal proceedings made by a court or tribunal before the commencement of this clause.
(4) However, this clause does apply to legal proceedings (being proceedings that have not been finally determined by a court or tribunal) that relate to the application of Division 6 of Part 2A to an award of damages, even if the proceedings that resulted in that award being made have been finally determined by a court or tribunal.

12 It will be seen that cl.26 addresses the second issue decided by the primary judge, on which in my opinion he was correct. The 2006 Amendment also introduced cl.25 into Schedule 1 of the CL Act, addressing the first issue decided by the primary judge. Since in my opinion the primary judge was incorrect on that issue, and since cl.25 only confirms what in my opinion was in any event the correct interpretation of the provision to which cl.25 applies, there is no need to address cl.25.

13 In my opinion, it is plain that “the commencement of this clause” in cl.26(3) is 29 November 2006. The words “and is taken to have always included” in cl.26(1) is not the specification of a day or days within the meaning of s.2 of the 2006 Amendment. Those words have the effect that the amendment applies, as from its commencement on 29 November 2006, “as if” the changes had commenced when Part 2A commenced: this is confirmed by the Explanatory Note to cl.26.

14 This leaves to be determined the question of the effect of sub-cl.(3) and (4) of cl.26. The following matters are relevant to this determination:

(1) The legal proceedings in which the respondent claimed damages from the State were determined by the District Court on 21 July 2006, when judgment was given for the respondent against the State in the amount of $175,100.00.
(2) No appeal was brought from that judgment either within the time for appeal or since, and it is common ground that there has been a final determination of those proceedings by a court, within the meaning of cl.26(3).
(3) The effect of my decision on other aspects of this appeal means that, at least until 29 November 2006, the State was withholding from the respondent an amount for which judgment in his favour had been given, without any justification for doing so.
(4) It was the State’s unjustified failure to give effect to that judgment that prompted the respondent to commence proceedings on 14 August 2006, that led to the primary judge’s decision; and the primary judge’s decision on 5 September 2006 to the effect that the State was not entitled to withhold payment was correct, on the law as it then stood.
(5) The appeal against the primary judge’s decision filed on 28 September 2006 did not raise any ground that could justify setting that decision aside, because there was at that time no such ground.
(6) If there is now any ground for setting aside the primary judge’s decision, it is only by reason of a change in the law that commenced on 29 November 2006, being a ground raised by a subsequent amendment that the State seeks to have included in its Notice of Appeal.

15 As pointed out by Basten JA, the effect of cl.26, if its retrospective effect is not limited, would be to apply all the provisions of Part 2A of the CL Act, including the limitations on damages in ss.26C, 26D, 26E, 26F, 26G, 26H, and 26I, to claims for damages which prior to 29 November 2006 were not subject to such limitations. Clause 26(3) makes it clear that this is not to be the case where there has been a final determination of legal proceedings on a claim by a court before 29 November 2006. If cl.26(3) permitted an appeal from a first instance decision, made before 29 November 2006, to succeed by reason only of changes in the law made as from 29 November 2006, it would mean that a complete re-assessment of damages could be compelled on that basis.

16 In my opinion, that is not the intention disclosed by cl.26(3). In my opinion, there is a final determination of proceedings, for the purposes of cl.26(3), when there has been a final judgment at first instance, unless and until that judgment is set aside on appeal, at least unless there has been a stay of the judgment. Clause 26(3) means that such a judgment cannot be set aside on appeal solely on the basis of a change of the law effected by cl.26. This is in accordance with case law concerning the distinction between interlocutory and final judgments; and also the case law concerning the granting of stays of execution of judgments that are subject to an appeal, which affirm that first instance judgments are final and in no way merely provisional, and have full effect as final judgments unless and until stayed or set aside on appeal. This is also in accordance with the view of Sheller JA in NSW Insurance Ministerial Corporation v. Willis (1995) 35 NSWLR 668 at 677-78.

17 I note that a different view was expressed by Grove AJA in the same case at 682. He said that a first instance judgment subject to a stay of execution would not amount to a final determination; and that if without a stay of execution the parties still treated the litigation as pending, the same result would follow. I would leave open the question whether a stay of execution would prevent a final judgment at first instance being a final determination of legal proceedings within cl.26(3); but I am firmly of the view that the mere bringing of an appeal within the time for appeal would not alter the status of a first instance decision from being a final determination of legal proceedings.

18 If that is the correct construction of “final determination of legal proceedings” in cl.26(3), then the same construction should apply to the similar concept in cl.26(4); so that the primary judge’s decision in these proceedings did finally determine legal proceedings relating to the application of Division 6 of Part 2A to an award of damages. There was no stay of his order; and if it be relevant, the Notice of Appeal filed within time and before 29 November 2006 did not state any ground justifying the setting aside of his decision.

19 I would add that this view is confirmed by s.26M of the CL Act, which was inserted by the 2005 Amendment. That provision is as follows:

26M Victim trust fund available to satisfy eligible victim claims
(1) A victim trust fund is available to satisfy victim claims against the offender concerned as provided by this Division but only if the claim is eligible to be satisfied from the victim trust fund as provided by this section.
(2) A victim claim is eligible to be satisfied from a victim trust fund only if within the eligibility period for the victim trust fund:
(a) the person commences proceedings on the claim in a court (or proceedings by the person on the claim are pending in a court at the beginning of the eligibility period), and
(b) the person gives the protected defendant responsible for the victim trust fund notice in writing of those proceedings together with such details of those proceedings as the
protected defendant may request, and
(c) the person certifies to the court before which those proceedings are taken that the person is making the claim as a claim that is eligible to be satisfied from the victim trust fund.
(3) The eligibility period for a victim trust fund comprising offender damages awarded to an offender is the period of 6 months following the date (the award date for those damages) on which the claim for those damages is finally determined by a court award of those damages.
(4) A claim is not finally determined by a court until the time for appealing against the award of damages expires with no appeal having been made or when all appeals against the award have been withdrawn or finally determined.
(5) The protected defendant responsible for a victim trust fund must give the registrar of each court in which a victim claim may be brought notice of each victim claim of which the protected defendant is given notice under this section.

20 It is to be noted that for the purposes of that particular provision, there is specific provision in subs.(4) making it clear that a claim is not finally determined by a court until the time for appealing against the award of damages expires with no appeal having been made, or when all appeals have been withdrawn or finally determined; and the absence of any such provision in relation to cl.26 confirms both that that kind of extension to the ordinary meaning of final determination was not intended, and also confirms that the legislature did not intend that there be some vague and imprecise extension to that ordinary meaning.

21 For those reasons, the orders proposed by Basten JA should be made.

22 IPP JA: I agree with Basten JA in regard to what he has written about the phrase “in respect of” in s 3B(1)(a) of the Civil Liability Act 2002 (NSW). I also agree with what his Honour has described as the “second issue”, namely, whether the respondent was an “offender in custody” for the purposes of s 26B of the Civil Liability Act. In particular, I agree that the conclusion reached by Sully J – that the respondent was not an “offender in custody” for the purposes of s 26B – is correct.

23 I agree with the reasons given by Basten JA for granting the appellant’s amendment to the notice of appeal whereby the appellant sought to rely on the Crimes and Courts Legislation AmendmentAct 2006 (NSW) (“the 2006 Amendment Act”).

24 I would not uphold the appellant’s argument in relation to the 2006 Amendment Act. I come to this conclusion on grounds different to those on which Basten JA bases his decision.

25 In arguing that the 2006 Amendment Act applies (and is a complete answer to Sully J’s finding that the respondent was not an “offender in custody” for the purposes of s 26B), the appellant relied on cl 26 of Schedule 1 to the Civil Liability Act (which was inserted in that Act by the 2006 Amendment Act).

26 Clause 26 relevantly reads as follows:

“ 26 Definition of an ‘offender in custody’ in section 26A

(1) The definition of ‘offender in custody’ or ‘offender’ in section 26A(1) includes, and is taken to have always included, the following:

(a) an inmate within the meaning of the Correctional Centres Act 1952 ;

(b) a prisoner within the meaning of the Prisons Act 1952 ;
…
(2) This clause extends to civil liability arising, and any award of damages in respect of such civil liability made, before the commencement of this clause.
(3) This clause does not affect any final determination of legal proceedings made by a court or tribunal before the commencement of this clause.
(4) However, this clause does apply to legal proceedings (being proceedings that have not been finally determined by a court or tribunal) that relate to the application of Division 6 of Part 2A to an award of damages, even if the proceedings that resulted in that award being made have been finally determined by a court or tribunal.”

27 The appellant relied, in particular, on sub-cl (4). The appellant submitted that cl 26(1) applied to the proceedings decided by Sully J (those proceedings being proceedings that related to “the application of Division 6 of Part 2A to an award of damages”) because his Honour’s judgment did not finally determine those proceedings. If cl 26(1) applied, the respondent would be an offender in custody for the purposes of s 26B.

28 Sully J decided that the respondent was entitled to a declaration that s 26L and Div 6 of Pt 2A did not apply to him or to the award of damages made in the District Court in his favour (Bujdoso v State of New South Wales [2006] NSWSC 896). It was not in dispute that, should Sully J’s judgment constitute a final determination of the proceedings before him, cl 26 would not apply and the ground of appeal based on it would fail.

29 There is a long line of cases in the High Court of Australia which have held that, in regard to disputes as to whether a judgment is interlocutory or final, the question to be asked is whether “the judgment or order, as made, finally disposes of the rights of the parties”: Hall v Nominal Defendant (1966) 117 CLR 423 at 442 to 445 per Windeyer J; Licul v Corney (1975) 180 CLR 213 at 225 per Gibbs J (as his Honour then was); Port of Melbourne Authority v Anshun Pty Limited No 1 (1980) 147 CLR 35; Carr v Finance Corporation of Australia Limited[No 1] (1981) 147 CLR 246 at 248 per Gibbs CJ; Sanofi v Park Davis Pty Limited[No 1] (1982) 149 CLR 147.

30 In A Hudson Pty Limited v Legal & General Life Australia Limited (1985) 1 NSWLR 701, this Court held that the determination of whether a judgment is final or interlocutory should be made by reference to the legal rather than the practical effect of the judgment. Mahoney JA held that the test for determining whether a judgment was final or interlocutory should be that which applied in Australia generally; namely, whether the judgment appealed from, as made, finally determined the rights of the parties. His Honour (at 715) said that the test laid down in Licul v Corney and Carr was not stated for the purposes only of the Act considered in those cases. His Honour observed, “what was said [by the High Court] was said in terms of generality indicating, I think, that such was to be the test applicable generally in this country”.

31 In NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668, an issue before the court was the meaning of “settled or finally determined” in s 35D of the Motor Vehicles (Third Party Insurance) Act 1942 (NSW). Section 35D(3) of that Act concerned certain claims for damages “that were not settled or finally determined” at the date of the commencement of a certain amendment. Sheller JA said at 678:

“A final judgment is one which finally determines and disposes of the rights of the parties: Licul v Corney (1976) 180 CLR 213 at 225; Carr v Finance Corporation of Australia Limited (No 1) (1981) 147 CLR 246 at 248, 253-254. In my opinion, in the language of s 35D(3), a judgment in an action in the District Court finally determines a plaintiff’s claim for damages even though there is a right of appeal which a party has exercised. Accordingly, in the present proceedings the respondents’ claims for damages were finally determined by [the District Court judges] judgment and orders. Only if and when his Honour’s judgment and orders in respect of the claim for damages are set aside or varied on appeal could it be said that the claims were not settled or finally determined by him”.

32 I appreciate that the cases to which I have referred were dealing with legislation different to that the subject of the present appeal. Nevertheless, in my view, the essential considerations leading to the conclusion expressed in those cases are the same. I am fortified in this view by the remarks of Mahoney JA in Hudson at 71 to which I have referred.

33 If Sully J’s judgment were not to be regarded as a final determination of the proceedings before him, what would the date of final determination be? Would it be the date on which the time laid down by the rules for filing a notice of appeal against the judgment expired? If that is the case, would the judgment so regarded as final metamorphose into a judgment that was not final if a successful application to extend time for leave to appeal were made? What would be the effect if the appellant did not then comply with the various time periods laid down for prosecuting the appeal? Assume that the appeal proceeded but was unsuccessful. Would that convert the trial judge’s judgment into a final determination? But what if the unsuccessful appellant sought leave to appeal to the High Court? And the same questions apply were the appeal to the Court of Appeal to be successful.

34 These questions demonstrate the uncertainty that would arise were the test to differ from that which courts of highest authority have long accepted, albeit in different contexts. In my view, the legislature did not intend the test for “finally determined” in sub-cl 4 to be different to the established test laid down in the cases to which I have referred. In my view, the confusion that would otherwise arise precludes any other construction.

35 Applying that test, Sully J’s judgment finally determined the proceedings before him. Accordingly, cl 26 does not apply to those proceedings.

36 For the above, reasons I agree with the orders proposed by Basten JA.

37 BASTEN JA: The issue in this case is whether the Appellant (the State of New South Wales) is required to pay to the Respondent (Peter Andrew Bujdoso) an award of damages, pursuant to an order of the District Court, or whether the State is required to hold the amount as a “victim trust fund” to be available to satisfy claims made by any victims of the Respondent’s offences, seeking damages from him.

38 It may be noted that such claims could only be made within a period which expired some two weeks before the hearing of the appeal. If no claim had been made within that period, the present appeal would have been moot. The Court was advised from the Bar table that one such claim had been made, although its validity was not conceded by the Respondent. Because its validity may depend, in part, on the existence of a “victim trust fund” it is appropriate that the appeal be determined.

Factual background

39 On 16 February 1990 the Respondent was sentenced to a term of imprisonment on three counts of sexual assault on male persons under the age of 18 years. On 21 September 1991 he was serving his sentence at Silverwater prison. After returning from work on that day, he was assaulted by two men (fellow prisoners) who entered his room and hit him with iron bars. As a result, he suffered serious injuries.

40 Persons convicted of such sexual offences are colloquially referred to as “rock spiders” within the prison culture and may be at risk of both verbal and physical abuse from fellow prisoners. Specific threats had been made against the Respondent and that was known to the officers responsible for the Silverwater prison complex. After his release in August 1992, the Respondent commenced proceedings against the State of New South Wales, on 15 September 1994, seeking damages for the negligence of the State in failing to take reasonable steps to protect him from violent attack.

41 There are limited circumstances in which the law imposes a duty to protect individuals from the independent criminal acts of third parties. That the responsibility of the prison authorities may extend so far was confirmed in an appeal from the decision of this Court in the proceedings between the present parties: see New South Wales v Bujdoso [2005] HCA 76 at [44]-[46] (2006) 80 ALJR 236, affirming principles accepted by this Court in Bujdoso v New South Wales (2004) 151 A Crim R 235 and, earlier authorities including Howard v Jarvis (1958) 98 CLR 177, Cekan v Haines (1990) 21 NSWLR 296 and State of New South Wales v Napier [2002] NSWCA 402.

42 However, the Respondent had failed to establish a breach of duty at trial, and the trial judge had not proceeded to assess damages. Accordingly, it was necessary for the matter to be remitted for assessment of damages following dismissal by the High Court of the appeal from this Court, on 8 December 2005. The Respondent was awarded damages on 21 July 2006, by McLoughlin DCJ, in an amount of $175,100.

Present proceedings

43 It appears that the State resisted paying the damages on the basis that they were required to be held in a “victim trust fund” pursuant to Part 2A, Div 6 of the Civil Liability Act 2002 (NSW), which further permitted victims of the offender to seek personal injury damages from him, in relation to his conduct constituting an offence, which, if successful, might result in an award of damages to be met from the victim trust fund. The specific obligation identified by the State through the Crown Solicitor, in a letter dated 4 August 2006, was that found in s 26L(1) of the Civil Liability Act.

44 Section 26K of the Civil Liability Act is the first section in Division 6 of Part 2A and provides a number of definitions. Relevantly, the term “offender” is defined to mean “a person to whom an award of offender damages is made”. The term “offender damages” means “personal injury damages awarded pursuant to an award to which this Part applies”.

45 The term “personal injury damages” is not defined in Part 2A, but that Part picks up the definition contained in Part 2, meaning “damages that relate to the death of or injury to a person”: s 11.

46 Section 26L, on which the Appellant relies, provides, in part:

“ 26L Offender damages to be held in trust as victim trust fund
(1) The amount of any offender damages awarded to an offender is to be held in trust for the offender by the protected defendant liable to pay those damages and may be paid out only as authorised by this Division.
(2) Offender damages held by a protected defendant in trust for an offender under this Division comprise a victim trust fund for victims of the offender.”

The term “protected defendant” is defined in s 26A to mean, relevantly for present purposes, the State of New South Wales and its servants and staff.

47 The present proceedings were commenced by the Respondent, seeking a declaration in the Equity Division that s 26L and Div 6 of Part 2A generally, did not apply to him or to the award of damages made in the District Court in his favour. The primary judge (Sully J) held that he was entitled to the declaration sought: see Bujdoso v State of New South Wales [2006] NSWSC 896. His Honour upheld the Respondent’s argument on two bases, either of which would have been sufficient for success.

48 The first basis was that, pursuant to s 3B of the Civil Liability Act as then in force, the Act had no application in respect of civil liability “in respect of an intentional act that is done with intent to cause injury or death”. Although the claim against the State was in negligence, it asserted a civil liability “in respect of” the deliberate intentional acts of the assailants and thus was not subject to the provisions of the Civil Liability Act.

49 The second basis upon which his Honour upheld the Respondent’s contention was that Part 2A of the Act only applied to a person who was an inmate within the meaning of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the 1999 Act”) at the time of the injury: ss 26B and 26A, “offender in custody”. The Respondent was not “an offender in custody” as then defined in s 26A, because at the time of his injury the 1999 Act was not in force.

50 To reach each of these conclusions, his Honour gave careful and detailed attention to the legislative history of the relevant provisions in the Civil Liability Act. When the State appealed, on 28 September 2006, the grounds, and the submissions in support, took issue with aspects of his Honour’s reasoning. However, the State subsequently filed supplementary submissions which contended that the issue was put beyond doubt (in its favour) by the Crimes and Courts Legislation Amendment Act 2006 (NSW) (“the 2006 Amendment Act”) which made relevant amendments both to s 3B(1)(a) and s 26A(1) of the Civil Liability Act. The Appellant sought leave to amend its notice of appeal to rely on the new provisions.

51 The Respondent resisted the amendment of the notice of appeal and reliance upon the 2006 Amendment Act on the basis that no error was thereby demonstrated in the reasoning of the primary judge, nor was it appropriately within the appellate jurisdiction of this Court to set aside a decision in the Equity Division on such a basis. It is necessary to address these arguments immediately.

52 The Respondent’s position in this respect is misconceived. The appeal to this Court is an appeal by way of rehearing: Supreme Court Act 1970 (NSW), s 75A(5). The principles applicable on such an appeal were explained by the High Court in The Victorian Stevedoring and General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73 at 107 where Dixon J, dealing with an appeal “often said to be by way of rehearing” pursuant to s 39(2)(b) of the Judiciary Act (1903) (Cth), noted that the Court “must decide an appeal by applying to the circumstances as they exist, when the appeal is dealt with, the law which then operates to determine the rights and liabilities of the parties”. The principle was restated by Dawson J in Harris v Caladine (1990-91) 172 CLR 84 at 125 and more recently in CDJ v VAJ (1998) 197 CLR 172 at [111], in relation to the Family Court, namely that the Court “must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal”. The principles referred to in CDJ were affirmed in Allesch v Maunz (2000) 203 CLR 172 and, in relation to the Federal Court, in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [75] (Gleeson CJ and Gummow J) and again in Western Australia v Ward (2002) 213 CLR 1 at [70]. There is no reason for supposing that those principles do not apply in this Court, exercising jurisdiction under s 75A. Accordingly, this Court must apply the law as it presently stands. In order to do that it is appropriate to allow the amendment.

53 If the Appellant is entitled to succeed on this basis, it is not necessary to consider whether there was error in the reasoning of the primary judge. Contrary to the submissions of the Respondent, that approach is not inconsistent with the appellate jurisdiction of this Court. That is for two reasons: first, the nature of the appellate jurisdiction is to be determined by the statutory mandate in s 75A. Secondly, to the extent that it is necessary to identify error in the judgment below, error can be identified by reference to the law as it presently stands, which has a retrospective effect. The situation is no different in principle to that which arises when a trial judge, and even this Court, correctly follows its own earlier authority, which is successfully challenged by one of the parties on appeal to the High Court. Appellate error is not confined to the identification of a wrong decision or wrong application of the law, as it stood at the time the matter was disposed of by the Court below. Indeed, that is the basis of the distinction between what is sometimes described as an appeal “in the strict sense” and an appeal by way of rehearing.

The operation of section 3B

54 As it stands following the amendments made by the 2006 Amendment Act, s 3B relevantly provides:

3B Civil liability excluded from Act
(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:
(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person .” (Emphasis added.)

The effect of the 2006 Amendment Act was to add the italicised words, which did not appear in the form of the section considered by his Honour. It is now clear that the exception only applies to remove from the operation of the Civil Liability Act liability of a person who carries out the assault or other intentional act. In the present circumstances, the Civil Liability Act would not apply if the immediate assailants of the Respondent had been sued for damages: it does apply to a claim in negligence against the State.

55 However, the operation of the 2006 Amendment Act in the present case depends on savings and transitional provisions found in Schedule 1, Part 9. Before coming to a final conclusion as to how these transitional provisions should operate, it is preferable, as the Appellant submitted, to consider the issue against the background of the pre-existing law, as applied by the primary judge.

56 Section 3B(1)(a), as it was in force prior to the 2006 Amendment Act, relevantly identified that to which the Act did not apply as:

“(a) civil liability in respect of an intentional act that is done with intent to cause injury or death … “

The primary judge dealt with s 3B(1)(a), as it was at the time of his Honour’s judgment, by adopting what may fairly be described as a literal construction giving a broad effect to the exception and thus restricting the operative provisions of the Act. His Honour thought that approach appropriate because, having set out the nature of the unprovoked assault on the Respondent, he asked, rhetorically at [47]:

“[S]hould the blameless victim of the assault not be permitted to have his normal common law entitlement to just compensation, assessed without reference to restrictive legislation which could readily have enacted in simple language the limitation now proposed by the defendant, but which has not done so?”

This approach seeks to invoke the principle of construction that it is “improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”: see Potter v Minahan (1908) 7 CLR 277 at 304 (O’Connor J). It has, however, been said more than once that the strength of that principle or presumption is diminishing: see, eg, McHugh J in Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at [29]. His Honour continued at [30]:

“Speaking generally, a much surer guide to the legislative intention in areas of legislation dealing with ordinary rights or the general system of law is to construe the language of the enactment in its natural and ordinary meaning, having regard to its context – which will include other provisions of the enactment, its history and the state of the law – as well as the purpose which the enactment seeks to achieve.”

That approach is, in part, required by the injunction in s 33 of the Interpretation Act 1987 (NSW) to adopt, where alternative constructions are available, that which would “promote the purpose or object underlying the Act”. (See also, Gumana v Northern Territory of Australia [2007] FCAFC 23 at [95]-[98] (French, Finn and Sundberg JJ) applying Malika Holdings .)

57 The principle embodied in the statutory injunction is not easy to apply in the present case. The Civil Liability Act reveals a number of purposes, most of which seek to alter the general law and, to that end, vary the rights and liabilities of affected individuals. But that occurs in different ways, and in some respects to an extent which is largely arbitrary. The present case provides an illustration of that difficulty. Thus, s 3B operates generally in relation to the Civil Liability Act. The operation of an exclusion in relation to liability flowing from an intentional act is inherent in all those provisions which are limited to cases of negligence. However, the subject-matter of the present case reveals a different purpose. Initially, the purpose of Part 2A, before the introduction of Division 6, was to allow the State, where the offender recovered from the State damages resulting from an injury received whilst in custody, to reimburse itself for compensation payments made to the victims of his or her crime. The purpose thus revealed was at least analogous to a special form of statutory set-off. The introduction of Division 6 provided a wider scope to Part 2A, in that it allowed victims of the offender’s conduct to recover from a statutory fund, in proceedings brought by the victim against the offender for personal injury damages. Why the money of the offender should only be made available to the extent that it constituted damages recoverable from the State, appears to have only an historical explanation. It is also difficult to see any clear legislative purpose for restricting the victim’s rights to damages payable by the State where it had been negligent, as opposed to damages payable by the State for an intentional act for which it was vicariously liable. (It may be, of course, that questions of vicarious liability give rise to a different result, but it is sufficient for present purposes to note that those questions of statutory construction will also obtain little assistance from an attempt to identify a clear legislative purpose.)

58 If there is no clear legislative purpose, and s 33 of the Interpretation Act provides no easy answer, the presumption against the abrogation of rights available under the general law, on which his Honour relied, may have some force. However, its operation depends upon a fair reading of the statutory language.

59 The current form of s 3B(1)(a) uses language which, as his Honour noted, was readily available to the legislature but had not then been adopted: see [2006] NSWSC 896 at [42]. Not only did the legislature not adopt that language in the original form of s 3B, but the connection between the form of civil liability being accepted and the discrimen adopted, namely an intentional act, was identified by the broad phrase “in respect of”. There is no doubt that the ordinary meaning of those words leaves open the possibility that civil liability in negligence, for failure to take reasonable care to prevent an intentional act which causes harm, may include liability “in respect of” that intentional act, even though the act is that of an independent third party.

60 The phrase “in respect of” has been said, as his Honour noted, to have “a wide meaning”: see Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 at 653. The High Court returned to this phraseology in Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45. Brennan, Deane and Gaudron JJ stated (at 47):

“The words ‘in respect of” have a very wide meaning. Indeed, they have a chameleon-like quality in that they commonly reflect the context in which they appear. The nexus between liability and motor vehicle which their use introduces in section 3(1) [of the Motor Vehicles Insurance Act 1936 (Qld)] is a broad one which is not susceptible of precise definition. That nexus will not, however, exist unless there be some discernable or rational link between the basis of liability and the particular motor vehicle.”

61 The Respondent noted that the exclusion enacted as s 3B(1) by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (“the Personal Responsibility Act”), replaced a more restricted provision, not dissimilar to the current s 3B(1)(a), being s 9(2), which only applied in relation to Part 2 of the Act, dealing with damages and not with liability for negligence. The broader language contained in s 3B(1)(a) would appear to reflect the broader scope of the provision, which excluded the operation of the whole Act and not merely the regulation of personal injury damages, contained in Part 2 (which was the bulk of the Act as originally enacted, with s 9).

62 The primary judge held that the purpose of the Personal Responsibility Act, which introduced s 3B, was to ensure that individuals who might suffer harm due to the negligent conduct of others did not recover in circumstances in which, or to an extent, for which, they should properly bear personal liability for their injuries. Such principles might apply to ‘obvious risks’, ‘recreational activities’ and questions of contributory negligence. Those principles, his Honour suggested, could have no application to the case where a prisoner was under the control of the prison authorities and was not in a position to change his conduct in a significant way to avoid such risks.

63 The factual circumstances of this case supported that approach. However, it does not follow that in all cases involving deliberate assaults on prisoners, due in part to the negligence of the prison authorities, that the principles of personal responsibility will have no application. Furthermore, the effect contended for will have consequences beyond the liability of prison authorities. As already noted, s 3B applies generally to the operation of the whole Act. It will therefore operate so as to except from the regulation of the Act claims by patrons of hotels against publicans for damages resulting from a failure to control other patrons who indulge in violent behaviour. The justification for such differential operation in relation to negligence claims in those cases is by no means obvious.

64 One result of applying the Act in such cases is that claimants will obtain different damages, and may even have different degrees of success on liability, depending on whether they sue an assailant for assault, or a third party having a degree of control over the assailant in negligence. But there is nothing inconsistent with the policy of the Act in that outcome.

65 The operation of s 3B(1)(a) has been adverted to in a number of cases in this Court, including State of New South Wales v Ibbett 65 NSWLR 168 at [5]-[17] (Spigelman CJ), [120]-[130] (Ipp JA) and [196]-[197] and [206]-[220] (Basten JA); Drinkwater v Howarth [2006] NSWCA 222 at [11]; Wagstaff v Haslam [2007] NSWCA 28 at [75] referring to comments of Studdert J in T. Wagstaff v Haslam [2006] NSWSC 294 at [76]. However, none of these cases provides much assistance with respect to the present issue.

66 Giving full weight to all the matters referred to above and relied on by his Honour, the construction of the phrase “in respect of” in s 3B(1)(a) (prior to the 2006 Amendment Act) should have been understood to refer to the liability of the person who did the intentional act with the relevant intent and not to a person whose liability derives from his or her own negligent conduct, where the risk against which precautions must be taken is the intentional violent act of another.

67 This conclusion derives some support from provisions such as s 5A, which appears in Part 1A, dealing with negligence. That provision reads:

“ 5A Application of Part
(1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.
(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.”

Although the section is far from definitive, I do not read subsection (2) as limiting the broad scope of subsection (1), but rather complementing it by indicating that although all claims for negligence are encompassed, claims for intentional harm are not.

68 For completeness, I should add that I gain no assistance in reaching this conclusion from the terms of s 26B, to which the Appellant referred in its written submissions, a contention which was not pressed at the hearing of the appeal. Section 26B deals with the application of Part 2A and was enacted after s 3B. It applies to the liability of the prison authorities in respect of an injury to a person whilst the person was an offender in custody. However, it covers a much broader range of cases than those where the offender is injured by the intentional act of a third party. For example, it would cover cases where an offender was injured in a prison workshop, through the negligence of an officer for whom the State was liable. Accordingly, even if it were useful as an indication of the scope of s 3B(1)(a), I think it is neutral in its effect.

69 This conclusion means that it is not necessary to consider whether the amendment to s 3B effected by the 2006 Amendment Act achieves a different result, unless it were effective to reinstate the primary judge’s conclusion. However, it clearly does not do that: rather, it gives effect with far greater clarity than had previously been the case to the view expressed above. It is therefore not necessary to consider the transitional and saving provisions in relation to the operation of that amendment.

Second issue: “offender in custody”

70 The second basis upon which the primary judge found that Part 2A did not apply to the Respondent was that he was not an “offender in custody” for the purposes of s 26B, which identified the relevant operation of Part 2A. So far as the primary operation of that provision is concerned, the Appellant concedes that his Honour was correct. Rather, it relies upon savings and transitional provisions in Part 7 of Schedule 1 of the Civil Liability Act. Before coming to those “Savings and transitional provisions” it is helpful to identify why the Appellant failed in relation to the primary provisions.

71 The application of Part 2A is addressed in s 26B which, so far as relevant, reads as follows:

“ 26B Application of Part
(1) This Part applies to and in respect of an award of personal injury damages against a protected defendant in respect of:
(a) an injury to a person received while the person was an offender in custody , …
being an injury caused by the negligence (that is, the failure to exercise reasonable care and skill) of a protected defendant.
…
(3) Part 2 is subject to this Part.
…
(5) A reference in Divisions 2-5 to an offender includes a reference to a person who, subsequent to the injury concerned, ceases to be an offender.”

72 The emphasis which has been added to sub-s 26B(1)(a) identifies the time at which the person was to qualify as an “offender in custody” namely the time when the injury was received.

73 Section 26A contained a number of definitions relevant to Part 2A, including a definition of “offender in custody” and “offender”. Each was identified by reference to the status of a person under the 1999 Act. The short point was that the Respondent suffered his injury on 21 September 1991, more than eight years before the commencement of the 1999 Act.

74 The substance of the Appellant’s argument was that the savings and transitional provisions consequent upon the enactment of the Civil Liability Amendment (Offender Damages Trust Fund) Act 2005 (NSW) (“the Trust Fund Act”) operated to give the definition of “offender in custody” an operation which would cover the Respondent. That result would have been curious, indeed almost by a sidewind, because the transitional provisions relied upon were enacted as part of the amendments which added Division 6 to Part 2A, some time after the enactment of Divisions 1-5, which included s 26B, by the Civil Liability Amendment (Offender Damages) Acts of 2004 and 2005. The initial transitional provisions were those found in Part 5 of Schedule 1 and, in relation to subsequent amendments (but still prior to the Trust Fund Act) in Part 6. The form of amendment adopted in this legislation is important because it follows a reasonably regular structure, from the time of enactment of the Civil Liability Act. Thus Part 2 of Schedule 1 provides as follows:

“ 2 Application of Act to existing injuries and pending claims
(1) Part 2 of this Act extends to an award of personal injury damages that relates to an injury received, or to a death resulting from an injury received, whether before or after the commencement of this Act.
(2) However, Part 2 of this Act does not apply to or in respect of:
(a) an award of damages in proceedings commenced in a court before the commencement of this Act, or
(b) an award of damages, or settlement or consent order in respect of damages, made before the date of assent to this Act.

Further, when the Personal Responsibility Act was enacted in 2002, it also was stated not to apply to or in respect of proceedings commenced in a court before that commencement.

75 Clauses 16 and 18, found in Parts 5 and 6, dealing with Part 2A read as follows:

“ 16 Application of offender damages provisions to existing injuries and pending claims
(1) Part 2A of this Act extends to an award of personal injury damages that relate to an injury received … whether before or after the commencement of that Part.
(2) However, Part 2A of this Act does not apply to or in respect of:
(a) an award of damages in proceedings commenced in a court before 15 January 2004, or
Note. 15 January 2004 is the date of the Minister’s announcement of the proposal to enact Part 2A.
(b) an award of damages in proceedings commenced in a court before the date of introduction into Parliament of the Bill …, or
(c) an award of damages … made before 19 November 2004 (being the day on which Part 2A commenced).
18 Application of Amendments made by Amending Act
(1) Part 2A (as amended by the amending Act) applies to any civil liability whether arising before, on or after the commencement day.
(2) Part 2A (as so amended) also extends to proceedings commenced before the commencement day.
(3) However, subclause (1) or (2) does not operate:
(a) to apply Part 2A in respect of any decision of a court made before the commencement day, or
(b) to apply Part 2A in relation to any civil liability or proceedings to which the Part did not apply immediately before the commencement day.”

76 Two matters may be derived from these savings and transitional provisions. First, because the proceedings for damages were commenced on 15 September 1994, the Appellant’s argument that these provisions extended the effect of the definition of “offender in custody” means that, in respect of the Respondent, Part 2A of the Act, uniquely, had an operation which no other Part of the Act had. Because the Parts are essentially interdependent in significant respects, that contention is at least implausible.

77 Secondly, it is clear that the structure of the transitional provisions was to state the width of the operation in extremely broad terms, and then impose or assume limitations.

78 Turning to Part 7 of Schedule 1, on which the Appellant relied below, there are two clauses 20 and 21, the combined effect of which the Appellant says is to apply Division 6 of Part 2A to the Respondent’s claim for damages.

“ 20 Extended operation of Part 2A Division 6
For the purposes of the operation of Division 6 (Offender damages trust funds) of Part 2A:
(a) that Part extends to an award of personal injury damages in proceedings commenced before the commencement of that Part, and
(b) Parts 5 and 6 of this Schedule do not limit the operation of that Part.
Note . This clause has the effect of extending the operation of Division 6 of Part 2A beyond the operation of the other provisions of that Part.
21 Amendments extend to existing claims and damages awards
A provision of Division 6 (Offender damages trust funds) of Part 2A extends to:
(a) an award of offender damages made before the commencement of the provision that has not been satisfied by the protected defendant concerned as at that commencement, and
(b) an award of offender damages made after the commencement of the provision in respect of a claim for damages that arose before that commencement, and
(c) a victim claim made in respect of a cause of action that arose before the commencement of the provision.”

79 The primary judge rejected the proposition that these provisions extended the operation of Division 6 so as to apply to the Respondent. He did so on the basis that the 1999 Act commenced on 3 April 2000 and that, if the effect of clauses 20 and 21 were to operate as the Appellant claimed, it would be necessary to ignore the limitation imposed by the definition of “offender in custody” in s 26A. With respect, that conclusion is clearly correct. Clause 20 is directed to the date of commencement of proceedings and not the nature of the proceedings or the parties to them. It does not purport to affect the operation of Part 2A in those respects. Thus, the proceedings must be brought by an “offender in custody” against a “protected defendant” for “personal injury damages”. It was sufficient for his Honour’s purposes to note that the present Respondent was not, as then defined, an “offender in custody”.

80 It should also be noted, however, that by reason of the language used consistently throughout Part 2A, that the Part applies only to “personal injury damages” awarded against “a protected defendant”, being, broadly speaking, the State and its agents and some of its instrumentalities.

81 The first issue raised by clause 20 is the scope of the phrase “personal injury damages”. However, leaving that matter to one side, because it has broader ramifications, it is apparent that the form of Part 7 follows the structure evinced in other Parts of Schedule 1, namely to state a broad operation and impose limitations. It is clear that Division 6 of Part 2A does not extend to all awards of personal injury damages in proceedings commenced before the commencement of Part 2A. Indeed, it is arguable that clause 21 and not clause 20 was intended to refer to damages awarded before the commencement of the Part. Furthermore, the intended effect of clause 20(b) is obscure. Parts 5 and 6 of the Schedule did not in terms limit the operation of Part 2A: rather, they extended it, subject to limitations on that extended operation. Without that extended operation, it would be presumed that Parliament did not intend to affect any accrued right or liability.

82 An important further limitation is to be found in the language of clause 20 itself. The term “personal injury damages”, which appears in clause 20, is not defined in Part 2A, but is defined in Part 2, as noted at [45]. Section 26A(2) picks up that definition for the purposes of Part 2A. However, Part 2 does not apply to an award of damages in proceedings commenced before the commencement of the Act on 20 March 2002: see clause 2 at [74] above. (There is in fact a further limitation in relation to claims against the Crown, of which the Crown had notification in writing before 20 March 2002, but it is not necessary to rely on that provision in this case: see Schedule 1, clause 4.) Accordingly, such an award of damages will not be “personal injury damages” for the purposes of Part 2. As that phrase is picked up and applied in Part 2A, it follows that such damages will not be “personal injury damages” under that Part either and will therefore not constitute “offender damages” as defined in s 26K(1). Since the proceedings which gave rise to an award of damages in favour of the Respondent were commenced in 1994, it follows that damages obtained in those proceedings are not “personal injury damages” for the purposes of Parts 2 and 2A and will not be “offender damages” within Part 2A. It follows, for this additional reason, that the conclusion reached by the primary judge was correct.

83 The 2006 Amendment Act addressed the reason identified by the primary judge in the present case for concluding that s 26L did not apply to the Respondent’s damages. However, nothing in that Act, and particularly nothing in the new Part 9 added to Schedule 1 of the Civil Liability Act, was directed to the issue discussed above. Accordingly, the conclusion reached by the primary judge was correct at the time it was reached, and is not affected by the change in the law effected by the 2006 Amendment Act.

84 Although the question of the definition of “offender damages” was adverted to in the course of the hearing, the bulk of the argument on the hearing of the appeal was addressed to the proper construction of clause 26 of Schedule 1, inserted by the 2006 Amendment Act. The principle of judicial economy suggests that, as it is not necessary to address that additional question in order to determine the outcome of the present proceedings, the analysis should proceed no further. On the other hand, in case others may take a different view to that set out above, I will indicate briefly the reasons why, in my view, clause 26 does not assist the Appellant in the present proceedings.

85 Clause 26 reads as follows:

“ 26 Definition of an ‘offender in custody’ in section 26A
(1) The definition of ‘offender in custody’ or ‘offender’ in section 26A(1) includes, and is taken to have always included, the following:
(a) an inmate within the meaning of the Correctional Centres Act 1952 ;
(b) a prisoner within the meaning of the Prisons Act 1952 ;
…

(2) This clause extends to civil liability arising, and any award of damages in respect of such civil liability made, before the commencement of this clause.
(3) This clause does not affect any final determination of legal proceedings made by a court or tribunal before the commencement of this clause.
(4) However, this clause does apply to legal proceedings (being proceedings that have not been finally determined by a court or tribunal) that relate to the application of Division 6 of Part 2A to an award of damages, even if the proceedings that resulted in that award being made have been finally determined by a court or tribunal.”

86 One preliminary point raised by the Appellant in relation to the operation clause 26 concerned its date of commencement. Section 2(1) of the 2006 Amendment Act provided that the Act commenced “on the date of assent”, except as otherwise provided by the section. The date of assent was 29 November 2006. Subsection (2) provided as follows:

“(2) The amendments made by Schedule 1 commence on the day or days specified in that Schedule in relation to the amendments concerned. If a commencement day is not specified, the amendments commence on the date of assent to this Act.”

87 The Appellant contended that clause 26 commenced at the date of its earliest operation, in terms of its having always had a particular effect. What that date was, the Court was not told. Each of subclauses (2) and (3) refers to things which had happened “before the commencement of this clause”. Subclause (4) may be read in similar fashion. Subclause (1) does not specify a commencement date as such, and by referring to an effect which is “taken to have always” so operated, is not in terms apt to identify some other commencement date. The whole of clause 26 should be understood to have commenced on the date of assent, namely 29 November 2006.

88 There is something curious about the formulation of this provision, which was not adequately explained by the Appellant. Clause 26 comes within Part 9 of Schedule 1 which is headed “Savings and transitional provisions”. Part 9 itself is headed “Provisions consequent on enactment of Crimes and Courts Legislation Amendment Act 2006”. However, that Act, apart from inserting Part 9 in Schedule 1, made only one amendment to the Civil Liability Act, namely the amendment noted above in s 3B(1)(a). Clause 26 has no relevance to that amendment. Rather, it purports to include its own amendment of the definition in s 26A(1) identified in sub-clause 26(1). The heading to the Schedule and the heading to the Part are parts of the Act: Interpretation Act 1987 (NSW), s 35. If one gives effect to these headings, clause 26 will have little if any effect, as it is not “consequent upon” the 2006 Amendment Act and is therefore arguably not a savings and transitional provision. To give it the particular effect sought by the Appellant will be to deny the role ascribed to it by the headings.

89 As noted by Pearce and Geddes, Statutory Interpretation in Australia (6th ed, 2006) at [4.45], a schedule constitutes part of an Act and should be given full effect in accordance with its terms. As stated by Roper CJ in Eq in Re Foley; Channell v Foley (1952) 53 SR(NSW) 31 at 36:

“The schedule itself, however, is a legislative enactment and is not necessarily wholly constrained by the section of the Act which introduces it, or by its own heading.”

His Honour then set out principles expressed by Lord Sterndale MR in Inland Revenue Commissioners v Gittus [1920] 1 KB 563 at 576 to the following effect:

“If the Act says that the schedule is to be used for a certain purpose and the heading of the part of the schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the schedule as though the schedule were operating for that purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it. But if in spite of that you find in the language of the schedule words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the schedule or by the purpose mentioned in the Act for which the schedule is prima facie to be used.”

90 In Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 601, the High Court considered the effect of the heading “Consumer Protection” in the Trade Practices Act 1974 (Cth), noting that the heading was a part of the Act. As explained by Mason CJ, Deane, Dawson and Gaudron JJ:

“The general heading ‘Consumer Protection’ at the commencement of Pt V is part of the Act ( Acts Interpretation Act 1901 (Cth), s.13). It constitutes part of the context within which the substantive provisions of Pt V must be construed and should be taken into consideration in determining the meaning of those provisions in case of ambiguity. The heading does not, however, control the permissible scope of the substantive provisions of Pt V and cannot properly be used to impose an unnaturally constricted meaning upon the words of those substantive provisions (see Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 225; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 202).”

91 That principle was applied by Allsop J in Toben v Jones (2003) 129 FCR 515, in relation to a prohibition in the Racial Discrimination Act 1975 (Cth) with respect to acts done in public which are reasonably likely to offend, insult, humiliate or intimidate another person on the ground of race: s 18C(1). The issue was whether that offence was constrained by the heading to Part IIA of the Act in which they appeared, namely “Prohibition of offensive behaviour based on racial hatred”. His Honour held at [137] that, whilst the heading to the Part was part of the Act, “and as such can give assistance to understanding the context and so the scope of a provision, a heading will generally not control words of provisions that are clear and unambiguous …”. After reference to authority, including the cases referred to in the previous paragraph, his Honour continued:

“In this context, the function of the heading as a brief guide to the provisions within the power should be borne in mind … . Here, ‘racial hatred’ was a phrase recognised in the Convention as one form of racial discrimination. It had come, over time, to be a convenient short-hand, along with such phrases as ‘racial vilification’, to encapsulate the subject matter of provisions the subject of public debate in Australia in the 1970s, 1980s and 1990s ….”

92 Applying these principles in the present case, the headings to Schedule 1 and Part 9 are not to be given an effect which would deny the words of clause 26 such operation as they clearly and unambiguously have. On the other hand, attention can be paid to the headings for the purpose of identifying the statutory context of clause 26, so as not to give its language an operation which extends beyond the clear purpose expressed in the headings, in the absence of unambiguous terminology.

93 The amendments to the Civil Liability Act, which were contained in Schedule 1 of the 2006 Amendment Act, at clause 1.5, were followed by an explanatory note. That note forms part of the extrinsic material which may be used to determine the meaning of a provision if the provision is “ambiguous or obscure”: Interpretation Act, s 34(1)(b)(i) and (2)(e). The explanatory note in relation to clause 26 contains three paragraphs. The first identifies s 26A of the Civil Liability Act as it stood prior to the proposed amendment; the second paragraph identified the proposed amendment and the third paragraph read as follows:

“The proposed clauses extend to civil liability arising, and any award of damages in respect of such civil liability made, before the commencement of the clauses. However, those proposed clauses will not affect any final determination of legal proceedings made by a court or tribunal before the commencement of those clauses.”

94 As will be seen below, the Appellant’s contention as to the operation of clause 26, disregarding the problems already addressed, requires that the Court give a construction to sub-clause (4) which is inconstant with the headings to the Schedule and Part 9 and which is inconsistent with the explanatory note. The final source of assistance, namely the Second Reading Speech in relation to the 2006 Amendment Act, identifies the Respondent’s case as being within the subject matter of the proposed amendment, and says that it will be necessary for this Court to take the amendment into account in determining this appeal: Hansard, NSW Legislative Assembly, 27 October 2006, p 3663. So much may be conceded: it provides no guidance as to how the appeal should be determined on this point. It follows that, unless sub-clause (4) can be given a clear meaning to the contrary, it should not be construed so as to interfere with an order of a court which finally disposes of the rights of the Respondent and the State in relation to an award of damages.

95 It is clear that the extended definition of “offender in custody” or “offender” will incorporate persons in the position of the Respondent, who are convicted before the commencement of the 1999 Act. Subclause (2) provides that the clause extends to an award of damages made before the commencement of the clause. As the variation of the definition in s 26A(1) means that the whole of Part 2A, including the divisions relating to the assessment of damages, must apply in relation to damages awarded before the clause commenced, that operation must be read down at least to avoid the need for such damages to be reassessed. That effect can only be achieved if, as must be the case, the statement in subclause (3) that the clause “does not affect” any “final determination” of legal proceedings made before the commencement of the clause, is understood to apply to a damages claim brought by an offender in relation to an injury received whilst he or she was “an offender in custody”. However, the result of that construction is that the whole of Part 2A is inapplicable to the determination made in such proceedings because there is no distinction between those divisions of Part 2A which relate to the assessment of damages and Division 6, in relation to a “victim trust fund”.

96 Subclause (4) treats the various provisions in the clause as internally consistent, each with the other, as appears from the use of the words “this clause” as having application in the prescribed circumstances. Thus, it provides that the clause applies “to” legal proceedings “that relate to the application of Division 6 of Part 2A to an award of damages”. In other words, the extension to the definition of “offender in custody” and “offender” will affect the whole of Part 2A, but only if there has been no final determination of the relevant legal proceedings before the commencement of the clause on 29 November 2006. However, the extended definition may apply to proceedings that relate to the application of Division 6, even if the proceedings in which damages were awarded have already been finally determined. (The last proviso tends to confirm that sub-clause (3) applies to the damages claim.)

97 The Appellant would give this language a broad operation, so that Division 6 would apply to damages awards determined prior to the commencement of the new provision, where some other legal proceedings were on foot relating to the application of Division 6, which had not been finally determined. Thus the trigger for the engagement of Division 6 in the present circumstances was the commencement by the Respondent of legal proceedings seeking a declaration that the Division did not apply. Absent the current proceedings, the Respondent would be entitled to his damages; but because the State had refused to pay him, when, on the present hypothesis and findings set out above, it lawfully should have paid him, he was forced to institute proceedings. It was the institution of the proceedings which gave rise to the result the State sought to achieve.

98 A law which purports to define “rights”, by conferring on any public servant with authority to commence proceedings the power thereby to change the law, may not itself be a “law”. In effect, it delegates the power to change legal rights to undesignated public servants who can by the very commencement of proceedings engage the provision which deprives a person of his or her property. Furthermore, that somewhat extraordinary effect is achieved by a provision which does not purport to interfere with subclause (3), which provides that “the clause” does not “affect” any final determination of legal proceedings. Needless to say, if the clause in fact transformed a court judgment requiring the State to pay the Respondent money, unconditionally, into an obligation requiring the State to withhold money so awarded, subject to the operation of Division 6, it clearly “affected” the judgment.

99 There is, however, a different understanding which would give subclause (4) a less radical operation. As noted above, Part 7 gave Part 2A a more extended operation, for the purpose of applying Division 6. As has already been noted, it was not the purpose of Part 7 simply to sidestep the provisions of Part 2A, other than those affected by the changes it introduced. Similarly, the apparent purpose of clause 26 is to extend the operation of Division 6, by reference to the change in the definitions identified in subclause (1). To the extent that it has that effect, full authority may need to be given to its operation. However, as already noted, that effect will not engage Division 6 in relation to the award of damages made to the Respondent, the subject of the present proceedings, because they do not become “offender damages” merely because the Respondent now fits the definition of an “offender in custody”.

100 If this conclusion were also wrong, it would be necessary to consider whether the proceedings relating to the application of Division 6 of Part 2A, involving the Respondent and the State, were finally determined by the judgment of the primary judge, or whether they are not finally determined until a determination of the present appeal.

101 My tentative view is that the proceedings which were heard by Sully J were not “finally determined” by his Honour’s judgment. Each party had a right of appeal from that judgment, which the Appellant exercised in a timely manner. Other circumstances may give rise to different conclusions, but where it remains open to this Court to make a declaration in the form sought by the Respondent in his original summons, it is difficult to say that the proceedings commenced by the summons have been finally determined. Alternatively, this appeal was commenced before the commencement of the 2006 Amendment Act, and the issue arises in this Court in a proceeding which is not, until this judgment is delivered, “finally determined”. The position might have been different if an appeal could have been brought only by leave, or in relation to an application for special leave to appeal from a decision of this Court. It is not necessary to entertain these considerations.

Conclusions

102 For the reasons set out above, the Appellant should be granted leave to amend its notice of appeal, but the appeal should be dismissed with costs. In that circumstance, the Respondent has asked to be heard on the question of costs and should be given that opportunity. It is sufficient for present purposes to order that the appeal be dismissed and grant leave to the parties, if unable to agree on an appropriate costs order, to file further submissions in respect of costs within 14 days of delivery of this judgment.

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22/02/2008 - Supreme Court Division deleted from second sentence. - Paragraph(s) 47