State of New South Wales v Williamson; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross & Ors [2012] HCATrans 182

[2012] HCATrans 182

[2012] HCATrans 182

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S416 of 2011

B e t w e e n -

STATE OF NEW SOUTH WALES

Appellant

and

JAYSON WILLIAMSON

Respondent

Office of the Registry
  Sydney   No S417 of 2011

B e t w e e n -

CERTAIN LLOYD’S UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS

Appellant

and

JOHN CROSS

Respondent

Office of the Registry
  Sydney   No S418 of 2011

B e t w e e n -

CERTAIN LLOYD’S UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS

Appellant

and

MARK GEORGE THELANDER

Respondent

Office of the Registry
  Sydney   No S419 of 2011

B e t w e e n -

CERTAIN LLOYD’S UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS

Appellant

and

JILL MARIA THELANDER

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 AUGUST 2012, AT 10.19 AM

Copyright in the High Court of Australia

____________________ 

MR J.B. SIMPKINS, SC:   May it please the Court, I appear with my learned friend, MR D.F. VILLA, for the appellant.  (instructed by Crown Solicitor (NSW))

MR R.J.H. DARKE, SC:   May it please the Court, I appear with my learned friend, MR M.J. STEVENS, for the Underwriters in the three appeals.  (instructed by Riley Gray‑Spencer Lawyers)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR F.L. AUSTIN, for the respondent in Williamson.  (instructed by Byles Anjos Lawyers)

MR R.T. McKEAND, SC:   May it please the Court, I appear with my learned friend, MR A.C. CASSELDEN, for the respondent in the three Underwriters matters.  (instructed by G.H. Healey & Co Lawyers)

FRENCH CJ:   Thank you.  Mr Darke, I think you are beginning?

MR DARKE: Yes. Your Honours, the central question is whether a claim for damages in respect of personal injuries suffered as a result of an intentional assault is a claim for personal injury damages within the meaning of either section 198D of the Legal Profession Act 1987 or section 338 of the Legal Profession Act 2004.  That question has two elements.  The first element is the construction of the expression “personal injury damages” and the second element is if the respondent’s claims fall within the meaning of the expression, which of the two Legal Profession Acts applies to the costs of those claims.  The significance, of course, of the question is that if the claims fall within the meaning of “personal injury damages” then there are certain costs capping restrictions applicable to them.

Could I take your Honours straightaway to the text of the relevant enactments, first of all to the Civil Liability Act 2002 as enacted in June 2002.  The preamble to the Act refers to it making provision in relation to the recovery of damages for death or personal injury caused by the fault of a person and also to amend the Legal Profession Act in relation to costs in civil claims.  The Act was assented to on 18 June 2002.  In Part 1 of the Act your Honours will see in section 3 the definitions.  Critically, there is a definition there of “personal injury damages”.  It means damages that relate to the death of or injury to a person caused by the fault of another person.  Your Honours should also note there are definitions of injury, which includes personal injury, and also a definition of fault, which includes an act or omission.  Then in Part 2 of the Act, commencing at section 9(1):

This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part –

Then in subsection (2) there are several heads, or groups if you like, of awards of damages which are excluded from the operation of this part and of central relevance to the appeals before the Court is the provision in paragraph (a) of that subsection:

an award where the fault concerned is an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct –

and note, your Honours, that there is a reference there to “fault” in that paragraph, which relates back to the definition of “personal injury damages” itself, which refers to the injury being caused by the fault of another person.  Then in Division 2 of Part 2 of the Act, there are various provisions in relation to the calculation or assessment of damages for those awards of damages which fall within, and are subject to the operation of, section 2 of the Act.  Can I ask your Honours ‑ ‑ ‑

HAYNE J:   Sorry, why do you say subject to the operation of section 2 of the Act?  Part 2 of the Act, do you not mean?

MR DARKE:   Part 2 of the Act, yes, thank you, your Honour.  Could I ask your Honours to go to Schedule 2 to the Act, which provides for the various amendments of other statutes and, in particular, item 2.2 in Schedule 2 introduced a new division, 5B, into Part 11 of the Legal Profession Act 1987. It is headed “Maximum costs in personal injury damages matters”, and importantly there is a definition there of “personal injury damages”, and the definition of “personal injury damages” is that it:

has the same meaning as in the Civil Liability Act 2002.

Then importantly at section 198C(2), there are some specific exclusions from the Division.  Certainly, we would emphasise the absence in that subsection of any mention of personal injury damages matters arising from intentional acts.  So there is no specific exclusion from Division 5B of the Legal Profession Act.  That Division deals with the costs limitations that I mentioned a little earlier, and the principal provision is 198D(1) of which provides that:

If the amount recovered on a claim for personal injury damages does not exceed $100,000, the maximum costs for legal services provided to a party in connection with the claim are fixed –

and what follows is a formula for the calculation of what is effectively a cap on legal costs.

I should also ask your Honours to note section 198E, which provides, in effect, that the cap on costs has no effect on solicitor client costs if in fact there is an arrangement in accordance with the Legal Profession Act, a contract which follows the requisite disclosure regime.  Section 198F deals with offers of compromise and how that can impact upon the cap and then 198G also provides that certain costs do not fall within the cap and there is provision for special costs orders there where the costs are found to have been not reasonably necessary for the advancement of the party’s case.

HAYNE J:   But it is 198D(4)(b) which is an important step in the process, is not it?

MR DARKE:   Yes.  I am sorry, I should have ‑ ‑ ‑

HAYNE J:   It caps the order across.

MR DARKE:   Yes, I have should have mentioned that, your Honour, thank you.  That subsection provides that the other party, as it were, cannot recover a certain amount of costs from the other party.  It is subject to the cap.  Finally, I should refer to section 198I which provides the meaning of the expression “amount recovered on a claim”.  Division 5C, I should also just note in passing, your Honours, was also introduced at the same time.  Division 5C of the Legal Profession Act applies to claims for damages, and a regime is put in place there which requires legal practitioners to certify that there are reasonable prospects of success and the like before they can undertake such legal work.

So I think that is essentially the statutory structure.  I will take your Honours briefly to the amendments which were made in December 2002.  I will do that immediately.  So in December 2002 the Civil Liability Amendment (Personal Responsibility) Act was passed, and by section 3 of that Act the Civil Liability Act is amended as set out in Schedules 1 and 2, and by section 4 the Acts specified in Schedule 4 are amended as set out in that schedule and there was a consequential amendment to the Legal Profession Act which I will take your Honours to in a moment.

In relation to the Civil Liability Act a new Part 1A was inserted into the Act, headed “Negligence”, which provides the various principles to be applied in negligence cases.  Those, of course, were the subject of this Court’s decision in the Adeels Palace matter.  Then in Schedule 2, following a range of provisions in respect of various aspects ‑ ‑ ‑

FRENCH CJ:   Now, that introduced a – whereas previously the Act defined injury, this introduced a definition of “personal injury”, at least for the purposes of Part 1A.

MR DARKE:   In Schedule 2, item [2] your Honour will see that the definitions of, amongst others, “injury” and “personal injury damages” were omitted and new definitions were inserted into Part 2 of the Act.  Perhaps if I could take your Honours to item [5] of Schedule 2, your Honours will see that sections 9 to 11 were omitted and inserted instead were the following, including sections 11 and 11A.  Now, section 11 introduced a new definition of personal injury damages:

In this Part:

. . . 

personal injury damages means damages that relate to the death of or injury to a person.

Formerly, that is when the Act was initially enacted, the definition of “personal injury damages” was defined in this Act in a certain way, but in a different manner to that, as your Honour has pointed out, and there is a new definition of “injury” which comes in at this stage.

HAYNE J:   What is new in the definition of “injury”?

MR DARKE:   Paragraph (b) includes:

impairment of a person’s physical or mental condition –

HAYNE J:   Instead of psychological or psychiatric injury.

MR DARKE:   Yes, that is the principal change, it might be the only change – it is.  Thank you, your Honour.  Then section 11A provides that this Part – and this is Part 2 of the Civil Liability Act:

applies to and in respect of an aware of personal injury damages, except an award that is excluded from the operation of this Part by section 3B.

If I could take your Honours back to item [3], your Honours will find new sections 3A, but importantly for the present cases, 3B.  Subsection (1) provides that:

The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

Then there is, again, paragraph (a) is the relevant one for the present matters:

civil liability in respect of an intentional act that is done with intent to cause injury or death –

et cetera.  The provisions of the whole Act except for Part 7 do not apply to those matters.  Now, your Honours will see that subsequently from 2006 amendments to that paragraph 3B(1)(a) were made which had the effect that, at least in part, matters involving intentional acts did have their damages assessed in accordance with Part 2 of the Civil Liability Act, but not at this ‑ ‑ ‑

CRENNAN J:   Limited in a particular way was it?

MR DARKE:   Yes, it was effectively in relation to gratuitous care services.  But, at this stage Part 2 of the Act did not apply to the damages in relation to an action based upon an intentional assault.  I should then point out, in Schedule 4, item 4.5 there is an amendment to the Legal Profession Act, and the definition of “personal injury damages” is changed by this amendment.  It now has the same meaning as in Part 2 of the Civil Liability Act whereas previously it was defined to have the same meaning as in the Civil Liability Act.  It is our submission that that change merely reflects the fact that the definition of “personal injury damages” in the Civil Liability Act, which was hitherto a definition in this Act, means it is now a definition in this part.

Perhaps I should, to complete this aspect of the matter, take your Honours briefly to the 2006 amendment.  There are two actually.  First of all, the Civil Liability Amendment Act 2006, at No 55 of 2006 - in Schedule 1 to that Act, your Honours will see the amendment to paragraph (a) of section 3B(1). Certain parts of the Act now apply including section 15B and section 18(1), and those are located in Part 2 of the Civil Liability Act.  There was a further amendment also made in 2006 by the Crimes and Courts Legislation Amendment Act 2006, which was Act No 107 of 2006. In item 1.5 of Schedule 1 to that Act, there is a further amendment to section 3B(1)(a), and in Part 9 some retrospective application of those amendments.

Your Honours, there can be no doubt that the claims by each of the respondents for damages against the employer of the security guards who carried out the assaults are claims for damages that relate to injury to a person, and we have given a couple of references to the joint appeal book in our outline of propositions in paragraph 3.  I do not need to take your Honours to them.  It should be uncontroversial.  We respectfully submit that those claims for damages fall within the definition of personal injury damages, whether that be the definition as it was initially, or whether that be the definition as it was from 6 December 2002.

As the costs of the respondent’s claims were not excluded from the costs capping regime by section 198C(2) or the 2004 Act equivalent – I will come to that in a moment – and as each of the respondents recovered an amount of damages less than $100,000, the costs limitations apply.  Can I take your Honours to the Legal Profession Act 2004 just to complete the statutory materials?  Your Honours will see that Part 3.2 of that Act introduced Division 9 headed “Maximum costs in personal injury damages matters”.  The definition of:

personal injury damages has the same meaning as in Part 2 of the Civil Liability Act –

Section 337(2):

This Division does not apply to the following costs –

No mention of intentional acts matters.  Then 338 is effectively the equivalent of 198D and the sections which follow are in substantially identical terms to those which were found in the 1987 Legal Profession Act.  The Legal Profession Act 2004 commenced on 1 October 2005.  I should take your Honours to Schedule 9 of the Act which contains some transitional provisions which are relevant to the second element of the question, namely, as to which Act applies.  In Schedule 9, item 18, your Honours, paragraph (1):

Subject to subclauses (2) and (3) –

neither of which have any application in these cases –

Part 3.2, Part 3.2 of this Act –

so that is the part which deals with costs, disclosure and assessment of costs –

KIEFEL J:   Sorry, you are reading from Schedule 19?

MR DARKE:   Schedule 9 to the 2004 – Item 18 –

applies to a matter –

so there is the concept of matter there –

if the client first instructs the law practice on or after the commencement day, and Part 11 of the old Act –

that is the 1987 Act –

continues to apply to a matter if the client first instructed the law practice in the matter before that day.

Commencement day, as I have mentioned, is 1 October 2005.  Our submission ultimately on that element of the matter is that the matter should be regarded as the respondent’s claim for damages against the employer of the security guards and that the lawyers were first instructed, in that matter, well prior to 1 October 2005.  So by virtue of that transitional provision, the 1987 Act continues to apply to that matter.  Your Honours, the definition in the Civil Liability Act of “personal injury” ‑ ‑ ‑

CRENNAN J:   Just before you go on; was the date of joinder in relation to the security guards after that date?

MR DARKE:   No.  The security guards were joined at some later stage, but the employer, AVS, was joined in July 2005.

CRENNAN J:   Thank you.

MR DARKE:   Then it was not until 2008 that the section 6 application was made so that the respondents could proceed directly against the insurer of the employer.  The proceedings have been on foot for quite for some time.  Initially the owner of the hotel in which the assaults occurred and the licensee were sued.  Ultimately those claims were settled.  Attempts were made to join, successfully, the security guards but they were not able to be served, so those claims fell away.  The employer – that is, AVS Security – was initially a cross‑defendant only.  I think right at the commencement of the hearing an application was made to amend to bring them in as a defendant.  That is what happened in July 2005.

Your Honours, the definition of “personal injury damages” in the Civil Liability Act provides the meaning that the expression has in the Act or in Part 2, depending upon the time period that you are talking about.  The meaning of the expression is not affected by the extent to which the provisions of the Civil Liability Act apply to it.

KIEFEL J:   Are you saying that the exclusions in the Civil Liability Act, relevantly, with respect to an intentional tort cannot operate to qualify the definition of damages for personal injury?

MR DARKE:   That is so.

KIEFEL J:   Because they are talking about two different subjects.

MR DARKE:   Yes.

KIEFEL J:   Damages for personal injury is talking about the nature of the injury for which an award may be made and the exclusion of intentional acts is to operate to exclude some courses of action.

MR DARKE:   Your Honours, the concept of personal injury damages is used in the Legal Profession Act and in the Civil Liability Act for different purposes, we submit.

KIEFEL J:   That is a different question, I think.  You are there talking about the Legal Profession Act talking about costs and the Civil Liability Act talking about a cap on an award of damages for personal injuries.

MR DARKE:   Yes.

KIEFEL J:   That may be right, but that is a separate question.  What I am really saying is there appears to have been an assumption that looking just at the operation of the Civil Liability Act itself that the context of Part 2 and the exclusions of certain torts or other causes of action could operate to qualify the definition of “personal injury damages”.  Do I take it that part of your argument is that, even on that question of construction, the definition cannot be altered by the exclusionary provisions of the Act?

MR DARKE:   Yes, we do submit that.  Indeed, we would submit that section 9(2)(a), when read in context with section 9(1), really presupposes that an award of damages where it arises from an intentional act is an award of personal injury damages, but the statute then takes the step, however, of taking it out from the operation of Part 2 which would otherwise apply to it because it does fall within the definition of “personal injury damages”.

KIEFEL J:   No, it excludes relevantly a particular tort, but it does not alter the nature of the damages for which awards may be made, to which it applies.

MR DARKE:   No, it does not affect the nature of the damages.

FRENCH CJ:   You say the Legal Profession Act just picks up the text, and that is of the definition in the Civil Liability Act.  How do you deal with the factor that is a cross‑reference?  I mean, it is not as though it is a long and elaborate definition.

MR DARKE:   No.  It may have been done purely for reasons of perceived convenience in that – as we see it, the legislature has chosen this concept of personal injury damages, the one and the same concept to be employed in the two Acts for two different purposes, and for each Act and for each purpose, the legislature has taken the trouble to identify for each of those purposes what is excluded. 

So “personal injury damages” is used in the Legal Profession Act to identify the claims, the costs of which are subject to the specific exemptions, subject to the cost regime, and the very same concept is used in the Civil Liability Act to identify particular awards of damages which are subject to the exclusions enumerated in that Act, subject to the damages regime contained in Part 2 of that Act.

HAYNE J:   The debate between the parties, I think, may be sufficiently captured in this way.  The Civil Liability Act defines a term.  The Civil Liability Act, in a series of provisions, provides exceptions to the operation of the Act or the operation of the Part in respect of the concept as defined.  When the Legal Profession Practice Act refers to the term as defined, is it picking up the definition, or is it picking up the operation?

MR DARKE:   I think that is a fair summary of the point of distinction.

HAYNE J:   You point to the fact that it refers to the term as defined.

MR DARKE:   Yes, that is it.

HAYNE J:   Either that is a good answer or it is not a good answer, but is not that the nub of the dispute between the parties?

MR DARKE:   That is, with respect, the nub of the dispute.  We submit that a plain reading of the Legal Profession Act sends you looking for the meaning in another place.  One goes to that other place and finds the expression defined and the definition therefore and in that fashion is incorporated, and the words within the definition of “personal injury damages” themselves – “injury to a person”, those sorts of concepts which are themselves in the definition – are not words which are affected, or the meaning of which is affected by the context in which they appear.  There is nothing in the context of the Civil Liability Act which would suggest that “injury”, for example, should be given a special meaning.  So the defined concept is brought from the Civil Liability Act into the Legal Profession Act, and then it is applied to the particular circumstances.

HAYNE J:   What do you say to the proposition that it is an unduly literal approach?  That seems to be the chief argument deployed against you.

MR DARKE:   Well, it is hardly a case where it can be put against us that our construction leads to an absurd position.  It can hardly be put against us that there is an overwhelming mischief identified here which would tend against our construction.

BELL J:   What about the consideration that the amendments to the Legal Profession Act were introduced as part of the one legislative scheme with the Civil Liability Act?  To the extent that that Act was concerned with personal injuries damages it was in relation to personal injuries damages in the context of negligence and that is a particular form of high volume standard litigation which clearly, if one goes to extrinsic materials, was the subject of concern, having regard, amongst other things, to the implications for insurance and the like.  When one looks at intentional torts in respect of which, speaking generally, one does not insure, it is difficult to discern, is it not, the reason for imposing a cap on costs which would deter a person, the victim of an intentional tort, from bringing proceedings.  Just on the face of it one can see some force to that line of argument.

MR DARKE:   Yes, on its face, we would accept that.

BELL J:   What is the answer?

MR DARKE:   When one goes to the ‑ ‑ ‑

HAYNE J:   I am surprised by the acceptance.

MR DARKE:   When one goes to extrinsic materials, however, one can readily see a number of different purposes sought to be achieved by this legislation.  Yes, it was all done at the one time.  No doubt it was all done in the part of a certain political context.

HAYNE J:   Against a background of some understanding, perhaps flawed, of the way in which the insurance industry was working or not working.

MR DARKE:   Perhaps, but the extrinsic materials make it quite clear that one of the purposes was to put a cap on costs in small claims and it was not restricted to any particular type of claim, any particular type of tort.  It was small claims and can appreciate that that – I will take your Honours to the extrinsic material in a moment – but one can appreciate that that, in fact, is of benefit to even small claimants themselves, or claimants who have small claims themselves because a claimant who suffers some injuries as a result of an intentional tort may well be in the territory of a case which might, if successful, yield $50,000 in damages.

Before the costs capping regime came in that claimant would have to weigh up very carefully the risks of proceeding with the claim because if unsuccessful the defendant’s costs, which it might be ordered to pay, may be very, very substantial indeed.  The costs cap in fact aids such a claimant because that claimant will know that even if unsuccessful there is a limit or a cap on the cost that the successful defendant could recover against the claimant.  Could I take your Honours to the second reading speech briefly?

KIEFEL J:   Just before you go to the extrinsic materials, do you place any reliance upon the fact that the way in which the scheme – if it be – one scheme was enacted was to separate the questions of costs and awards of damages in separate pieces of legislation and with the reference to cost dependent only upon a definition?

MR DARKE:   They are separate and distinct purposes, we would respectfully submit, and therefore it is not surprising that insofar as the costs are concerned it would be found in the Legal Profession Act.

KIEFEL J:   Well, that need not be the case though.  There was no such provision before.

MR DARKE:   No, that is so, but the point I am endeavouring to put is that the fact that they are in separate Acts probably does not add anything to the submission that it is the different purposes that are served ‑ ‑ ‑

KIEFEL J:   But the subject matter is separated out, placed in the Legal Profession Act and dependent upon a definition.

MR DARKE:   So there is a crossover between the two statutes in that sense but the separate treatment of them, if you like, we would respectfully submit, reflects the different purposes, albeit that the legislature has chosen the one concept as a basis for both of those purposes to operate.

KIEFEL J:   I have held you up.  I think you wanted to go to the extrinsic materials.

MR DARKE:   Thank you, your Honour.  Do your Honours have the Second Reading Speech, 28 May 2002, given by the then Premier?  It refers to a consultation draft of the Bill being released on 7 May and, after some consultation, the Bill will implement “Stage One of the Government’s tort law reform”.  So yes, there is a reform program on foot, but it has various parts.  In the third paragraph the Premier refers to “Stage Two of the Government’s tort law reform program” being introduced in the next session of the Parliament.

BELL J:   And in the preceding paragraph to the view that “public liability is unsustainable”, being the thrust of the submissions that have prompted the reform.

MR DARKE:   Yes, indeed.  Then over the page, 2086, towards the bottom, second last paragraph:

these reforms are about reducing public liability premiums. . .  The bill introduces important controls with respect to the calculation of damages.

So that is purpose number one, if you like, in the Civil Liability Act, as we would see it.

CRENNAN J:   What about the second sentence in the last paragraph?

MR DARKE:   Yes, I was coming to that:

It also imposes new requirements on lawyers –

and that is a different purpose – it is purpose number two, and that is the one that is dealt with in the Legal Profession Act.  In the next paragraph there is reference to:

Clause 9(2) sets out the awards that are excluded from the operation of the bill.

HAYNE J:   What are we to get out of this?  What proposition is it you want us to take away from reading this speech?

MR DARKE:   It is put against us, your Honour, that in some way the imposition of a cap in relation to a claim where it is an intentional tort is something of an unexpected or an unwarranted outcome and certainly in the Court of Appeal in Justice Basten’s judgment, quite a deal is placed upon this background to the reforms in order to ‑ ‑ ‑

KIEFEL J:   I thought the principal purpose of the background was to show, at least in submissions, that there was an objectively justifiable policy decision for excluding intentional torts.  That may be accepted, but what does that tell us about the construction of the language of the Civil Liability Act and the way in which the two Acts operate perhaps independently of each other?

FRENCH CJ:   Perhaps if I can add to that?  The policy questions are only helpful if they help us to resolve a constructional choice which is apparent from the text of the definition.  At the moment I have got some difficulty in understanding the way in which the case against you, as it were, makes a logical connection between, as it were, the exclusions in Part 2 and the text of the definition to say that you can read this definition one of two ways and one way excludes this class of action.  That is the difficulty I think perhaps your opponents face rather yourself.  We are in that territory, are we not?

MR DARKE:   Yes.

FRENCH CJ:   It is only if you have some kind of constructional choice available that the policy issues really engage.

MR DARKE:   We would respectfully adopt that, your Honour.  We do not need this material as part of our argument.  I am perhaps getting ahead of myself a little bit.  It is used against us in some way.  It was part of the Court of Appeal’s rationale.  We submit that the ordinary meaning of the words used in the text is clear in this case. There is no particular assistance which would help the Court to decide between two equally open constructions because on the application of orthodox principles of statutory construction we respectfully submit that our construction is plainly to be preferred because the construction put against us runs into the very considerable difficulty that it has to, in effect, treat the exclusions from the costs regime found in the Legal Profession Act as otiose or, as put in the court below, merely put in for more abundant caution.

That is a very significant problem with the construction put against us because if it was, in fact, the intention of the Parliament to exclude from the costs capping matters such as intentional torts, it would have been a very simple matter to have introduced into 198C(2) a paragraph to that effect.  It would have been the simplest thing to do.  If it was the Parliament’s intention that any matters which are not assessed for damages under Part 2 be outside the cap, that could have been easily done.  But none of that occurred.

That is why we would submit that your Honours do not really get to a difficult choice where extrinsic material like this would be beneficial and of assistance.  So in that sense I am really using it to attempt to cut across an argument that I apprehend will be made.  Can I conclude by just briefly referring your Honours to the last part of the speech?  On page 2087 at about halfway down the Premier returned to the amendments of the Legal Profession Act, so it is a separate purpose.  There is reference to a “cap on plaintiff lawyers’ costs”:

The cap has been extended to the defendant lawyers’ costs . . . It is the maximum fee which applies unless there is a costs agreement.

Then in the next paragraph:

The cap on fees will promote efficiency on the part of the legal profession and help to contain claims costs.

The second‑last paragraph, last sentence:

The bill does not prevent a client agreeing to pay a lawyer extra fees in addition to the cap.  However, extra fees can be paid only if there is a costs agreement between the lawyer and the client.

In the last paragraph:

These provisions in the bill will contain legal costs, while protecting clients.

Then the Premier turned to the legislation, which concerns the standard for assessing unmeritorious claims, which is the next provision in the Legal Profession Act, which was dealt with at that time; again another purpose.  So many things were included that it is very difficult to discern any particular single overriding purpose here. 

On that subject can I just refer your Honours – it is on our list of authorities – to Newcastle City Council v McShane 65 NSWLR 155. President Mason’s judgment is the leading judgment. He concluded, in effect, that the extrinsic material was of little assistance and we would respectfully agree with that. His Honour refers at paragraphs 24 through to 26 to what can be seen to be the purpose behind the cost‑capping regime. In 25, something I referred to earlier in answer to a question from Justice Bell, reference is made there to:

An additional aspect of the scheme is the greater level of certainty it brings to parties anxious to know their maximum exposure in the event of losing the proceedings.

Then in paragraph 26:

The legislation reflects recent legislative and judicial recognition of the principle that legal costs should be proportionate to the importance and complexity of the subject‑matter in dispute –

In the court below it was appreciated that the failure to find any reference in 198C(2) to intentional torts was a bit of a difficulty for the argument put against us.  Mr Justice Sackville referred to it as a curiosity that there was no reference in 198C(2), but it is really more than a curiosity.  It is really quite extraordinary that if indeed it was Parliament’s intention to exclude intentional torts from the costs regime that there was no mention of it in the very provision which deals with that subject matter, and that ultimately is the difficulty which the respondent’s construction faces and the application of orthodox principles would suggest that their construction is incorrect.  Unless there any further matters and your Honours require specific assistance, those would be the submissions of the appellants.

FRENCH CJ:   Thank you, Mr Darke.

MR DARKE:   May it please the Court.

FRENCH CJ:   Mr Simpkins. 

MR SIMPKINS:   Your Honours, I have no intention of engaging in a substantial submission in support of the challenge to Cross.  There are some things that I will say ultimately but they will be brief.  Principally I want to address this Court upon the basis that Cross is wrongly decided and to put submissions as to what consequence that would have for the claims which were the subject of the Williamson appeal.

The plaintiff in Williamson claimed damages for assault but also claimed damages for false imprisonment.  The damages claimed for false imprisonment included damages for indignity and damages for deprivation of liberty.  His Honour Justice Campbell was of the opinion that those two aspects of the damages claim for false imprisonment were not damages for personal injury.  The consequence of that in his Honour’s reasoning was that even if Cross was incorrectly decided the plaintiff in Williamson was not the subject of the cost‑capping provision in section 338 of the Legal Profession Act. 

If Cross was wrongly decided then section 11 of the Civil Liability Act is the section that determines the meaning of the expression “personal injury damages” for the purposes of section 338 of the Legal Profession Act.  The various provisions are conveniently set out in Justice Campbell’s judgment in the appeal book, starting at about page 120 – perhaps if I go back just a bit before that to page 119, paragraph 17 of his Honour’s judgment.  His Honour extracts the text of section 338 and section 338(1) limits the recovery of costs in circumstances which are described in this way:

If the amount recovered on a claim for personal injury damages does not exceed $100,000 –

In the Williamson Case, there was a settlement.  The amount of the settlement was less than $100,000 and the inquiry therefore is whether, having regard to that settlement and the claim made in the proceedings, there was a claim for personal injury damages that did not exceed $100,000 with the consequence that the cost‑capping provisions are applicable.

HAYNE J:   Was the settlement sum an undifferentiated sum according to cause of action?

MR SIMPKINS:   It was undifferentiated, yes, your Honour.  In order to determine the meaning of section 338(1), one needs to understand the content of the expression “personal injury damages”.  In paragraph 21 of his Honour’s judgment, he extracts section 337, relevantly subparagraph (1) – this is at the top of the following page, page 14 of the judgment, page 121 of the appeal book.  Section 337(1) says:

personal injury damages has the same meaning as in Part 2 of the Civil Liability Act 2002 –

and on the assumption that the Cross decision was wrong, then section 11 would provide that meaning.  Section 11 is set out in paragraph 22 of his Honour’s judgment, page 122 of the appeal book, and section 11 says:

personal injury damages means damages that relate to the death of or injury to a person.

The first submission we make is that if Cross is wrong and if section 11 provides the meaning for the expression “personal injury damages”, then the way in which section 338(1) is to be read is as follows.  It would be in the following terms:  “If the amount recovered on a claim for damages that relate to the death of or injury to a person does not exceed $100,000, the maximum costs for legal services”, et cetera. 

In other words, the consequence of reading in the section 11 definition would be that the relevant context for the capping would be a claim which was for damages that related to, relevantly, injury.  It would not be necessary to search for a claim that was for personal injury.  The reason for that is that the expression “personal injury” is defined in the way that I have indicated, and ultimately by reference to section 11.

The purpose of making that opening submission is that it has a relevance when one comes to consider what the consequence is of a claim for damages for false imprisonment that includes other aspects, such as a claim for lost dignity or a claim for deprivation of liberty.  Because in relation to those heads of damage the question is not were those heads personal injury damages and was the claim for personal injury damages insofar as it sought to cover that loss.  The relevant question is whether those aspects of the claim were damages that related to injury.  The submission that we put is that if there is false imprisonment and if there are, as a result of that, injuries to the person then associated incidents such as the loss of a sense of dignity and deprivation of liberty are properly within the concept of relating to that injury.

HAYNE J:   Associated incidents in what respect?  What is the association that is masked by that expression?

MR SIMPKINS:   The words “relate to” are broad words.  They require a broad connection.  They relate to the injury of the person in that the injury is an integer of an event and the event includes the deprivation of liberty or the loss of sense of dignity.  They are part of the same matrix of facts, if you like, out of which the claim springs.

HAYNE J:   If this case had gone to verdict, should there have been a separate verdict for the claim in assault from the verdict given in respect of the claim for false imprisonment?

MR SIMPKINS:   In our submission, yes, that would be the proper outcome.

HAYNE J:   How then would the verdict, in respect of the false imprisonment, be damages that relate to the impairment of a person’s physical or mental condition?

MR SIMPKINS:   In the context of the Williamson appeal, there are obviously a variety of factual circumstances that occurred.  There were assaults and there was the fact of the false imprisonment, or the allegation of false imprisonment, and the settlement of that claim.  The pleading and the evidence and particulars in support of the pleading mounted, if you like, a generalised claim for damages, not distinguishing between either the assaults or the false imprisonment, where it sought to assert that out of all those circumstances there was, relevantly, psychological injury and a variety of effects on the mental state of Mr Williamson.

FRENCH CJ:   I think the particulars appear at pages 28 and 29 or one of the versions of them.  Is the characterisation of the false imprisonment claim as a claim, which I presume in advance that relates to personal injury, an accident of the consequences which are asserted in the pleading?  I mean it may be that somebody suffers the tort, but does not suffer any psychological or physical sequelae to it.

MR SIMPKINS:   That is entirely possible, but ‑ ‑ ‑

FRENCH CJ:   So it just depends upon the facts of the case, does it, as to whether such a claim relates to personal injuries?

MR SIMPKINS:   It is possible to conceive of a case where the person who was falsely imprisoned suffered no mental impairment, but nevertheless brought a claim, based upon the deprivation of liberty or the loss of dignity, in the eyes of others or loss of reputation, or something like that.  So it is possible to conceive of a false imprisonment case where there was relevantly no mental impairment and no physical injury, but that is not this case. 

Mr Williamson pleaded out a case alleging a variety of incidents, including the false imprisonment and, in a generalised way, asserted arising out of all of those facts he had suffered relevantly, not just mental impairment, but psychological injury.  The point we make about the way in which the claim was formulated is that as it was put the mental impairment or the psychological distress was a generalised outcome of all the events, including the false imprisonment.

FRENCH CJ:   So when you look at the words in 338 of the Legal Profession Act claim for personal injury damages, you say that relates to the various heads of relief, rather than the causes of action which underlie them.  Is that how you are putting it?

MR SIMPKINS:   I was putting initially the proposition that it is an error to start asking whether the claim is for personal injury damages.  The inquiry is whether the claim is for damages that relate to personal injury.  So in relation to the false imprisonment, one has to determine whether or not the deprivation of liberty or the loss of dignity relates to injury.  Injury is defined in the Civil Liability Act to include mental impairment.  So if a person was falsely imprisoned and suffered an effect on their mental state, our submission is that there would be a personal injury ‑ ‑ ‑

KIEFEL J:   Could I clarify two things?

MR SIMPKINS:   Certainly.

KIEFEL J:   Are you suggesting that the matters pleaded in relation to senses of humiliation and other psychological effects amounts to an impairment of a person’s mental condition?

MR SIMPKINS:   Yes.

KIEFEL J:   You say that impairment means an inability to function in some way, does it not?

MR SIMPKINS:   No, in one of the judgments that we have on our list of authorities, Justice Basten’s has collected authorities, and those authorities would support the contention that one requires, if you like, a deleterious effect but it does not require that it be a recognised psychological state.  So if there is, if you like, a disadvantageous effect on the mental state of a person ‑ ‑ ‑

KIEFEL J:   It would have to affect how you function, would it not?  That is the notion of impairment of a condition – impairment of a physical or mental condition.  So you go from being whole and operating in a whole body, or whole mental sense, to an impaired sense.  Regardless of whether or not you are applying manuals to particular conditions, you would have to go that far.  It would not be every sense of feeling of insecurity or humiliation or loss of dignity that would amount to an impairment, would it?

MR SIMPKINS:   Our submission is that, on its proper construction, mental impairment does have the breadth that you are suggesting it ought not to have.  There are authorities in the Court of Appeal, and I will come to those, where this question has been looked at.  I do appreciate that in this Court there may be different views taken but at least the view that has been taken by the Court of Appeal, in looking at the Civil Liability Act and the Limitation Act, is that when one talks about impairment of mental state it includes things such as anxiety or humiliation. It does not require a ‑ ‑ ‑

HAYNE J:   As a separately compensable head of damage, is that right?

MR SIMPKINS:   Yes.

HAYNE J:   I wonder how that would sit with Tame v New South Wales (2002) 211 CLR 317? Perhaps it does. It is not instantly apparent to me that it does.

MR SIMPKINS:   Your Honour, it is a question of what this legislation requires and what those words in the legislation mean.  I will take your Honours to the Court of Appeal authorities and the reasoning that has been given for the conclusion that mental impairment has a broad operation.

KIEFEL J:   Before you do can I clarify one other aspect of your submissions?  Is it another aspect of your submissions that the psychological effects here were consequential upon physical injury and the way in which they were pleaded?

MR SIMPKINS:   The way in which the matter was particularised, which is apparent at page 26 of the appeal book is, we would say, that those aspects of mental affectation were the outcome of the physical consequences.  So on page 26 of the appeal book, there is a response at paragraph 80 which says the:

exposure to the actual physical harm, intimidation and imprisonment, the violation of his person, his privacy and sense of dignity and the threatened, perceived and/or apprehended arrest and prosecution . . . has resulted in an extreme emotional reaction, a process which may be terms psychological trauma.

KIEFEL J:   But experience would suggest that it is the whole experience, rather than contusions and abrasions which give rise to feelings of insecurity and inability to control a situation.  Thus that it would not all be consequential upon – cannot be consequential upon physical injury – not all of it.

MR SIMPKINS:   Well, it may not be.  I mean, one of the difficulties we had in this case is the matter did not proceed to a trial.  There is no finding.  It is a question of what the claim is, and insofar as one can determine what the claim is, it is a claim for an effect on the mental state arising out of the physical acts.  Whilst we are on this page ‑ ‑ ‑

KIEFEL J:   Is it that letter that you rely upon to that end?

MR SIMPKINS:   Yes, I am going to go to that just before we leave page 26 in paragraph 83.  There is also a reference to the symptoms being “intense feelings of violation, humiliation, indignity”, et cetera.  Just whilst we are on these particulars - it is only a minor point but one we make and I should make while we are at the document is looking at paragraphs 80 and 83 it is apparent that to the extent that there was a claim of a loss of dignity, it was a claim related to the plaintiff’s own sense of his lost dignity.

So paragraph 80 refers to his privacy and sense of dignity in the second line.  Paragraph 83 refers to “intense feelings of violation, humiliation, indignity”.  His Honour Justice Campbell seems to have assumed, we would submit incorrectly, that the claim for indignity was related to some alteration in the way in which the plaintiff in Williamson was assessed by others, but really the claim was related to his own defence of indignation.

The decision of Justice Campbell refers to the report that your Honour Justice Kiefel identified a moment ago.  This is at appeal book page 118.  Justice Campbell has extracted the relevant parts of the report, but looking at the extract it is apparent – and I am picking up what appears at page 119 at about line 15 – that Mr Williamson was diagnosed as having experienced a chronic adjustment disorder with depressed and anxious mood.

Whilst we do put a submission that injury would occur if there was a mental impairment in the nature of anxiety or distress or humiliation, in this case it may not matter because the claim included, relevantly, a claim for a recognised psychiatric state.  As I say, it may ultimately not matter for the purposes of determining this appeal whether conclusions reached by the Court of Appeal in some of its more recent decisions about the breadth of mental impairment are correct or incorrect.

In the outline of oral argument that we have provided we identify the relevant authorities at paragraph 12.  There were obiter observations made in the decision in Ibbett by Chief Justice Spigelman who was expressing essentially a negative point of view to the one that I am contending for, but also by Justices Ipp and Basten, who embraced a broader interpretation of legislation.

The most recent of the authorities is the decision of Justice Sackville in Radford 79 NSWLR 327. I might just conveniently go to that, if I could. His Honour is reviewing the relevant authority in the Court of Appeal, starting at paragraph 105. His Honour says in that paragraph, skipping the first sentence:

The question remains whether an action based on assault in which the plaintiff claims aggravated damages for injury to feelings, is properly characterised as an action “for damages for personal injury”.  While the authorities do not speak with one voice, I think that the answer to the question is “yes”.

Then at paragraph 106 he refers to Ibbett in the Court of Appeal.  After a description of the circumstances of the case, at paragraph 108 he goes on to note what fell from Chief Justice Spigelman in that case.  As is noted in that paragraph, his Honour the then Chief Justice expressed the obiter view that:

“The emotional reaction, often called ‘injured feelings’, arising from the apprehension of physical violence and the accompanying sense of outrage or indignation is not an ‘impairment of a mental condition’.”

His Honour then goes on to note the context in which that statement was made, the context being one where section 21 of the Civil Liability Act was being addressed, where the question was negligence.  Essentially, what his Honour says at paragraph 110 is that, in considering section 18A of the Limitation Act and the question of intentional torts, it was a change of circumstance in which the conclusions of the Chief Justice probably, according to Justice Sackville, were less justifiable.  But putting that to one side, his Honour turns at paragraph 111 to express the view that, even accepting no difference in circumstance, the definition, according to his Honour Justice Sackville, of “personal injury” in section 11 extends to injury to feelings.

HAYNE J:   What do we get out of this?  This is a case concerning the proper construction of section 11 of the Limitation Act, is it not?

MR SIMPKINS:   It is concerning the proper construction of section 18A of the Limitation Act.

HAYNE J:   Informed by the proper construction of section 11.  Is that right?

MR SIMPKINS:   No, your Honour, this is the Limitation Act and so the ‑ ‑ ‑

HAYNE J:   I understand that, informed by the proper construction of the definition of “personal injury” in section 11 of the Limitation Act.  Is that right?

MR SIMPKINS:   Yes, your Honour.

HAYNE J:   Which is a definition that includes in the concept of personal injury impairment of the mental condition of a person.

MR SIMPKINS:   Yes, your Honour.

HAYNE J:   What is it that we get out of this discussion that bears upon the construction of the terms of the different legislation that fall for consideration here?

MR SIMPKINS:   Your Honour, it is different legislation, but some of the words used and some of the concepts are identical.  The question is whether this context is sufficiently analogous to provide assistance.  The submission we make is that where one sees expressions like “for damages for personal injury” in a Limitation Act and definitions referring to impairment to a mental state, they obviously are not conclusive, but sufficiently analogous to make it appropriate to consider the reasoning in this area and to determine whether or not it is applicable, or ought to be applicable, to the circumstances embraced by the Civil Liability Act. 

This case, although it deals with the Limitation Act, is proceeding against the background of earlier decisions which invest the Civil Liability Act, so rightly or wrongly at least, the Court of Appeal are treating the areas of limitation and the areas covered by the Civil Liability Act as being sufficiently analogous for decision making in one area to inform the other.

FRENCH CJ:   Of course, in this case, we are dealing with an undifferentiated settlement.

MR SIMPKINS:   We are, and that is another point I have to come to.  I appreciate that.

FRENCH CJ:   There is no allocation as between the different causes of action, so the question really is whether the amount covered by way of this settlement is able to be characterised as an amount recovered on a claim for damages that relate to injury to a person.

MR SIMPKINS:   That is ultimately the question I have to come to.

FRENCH CJ:   Your essential submission, as I understand it, is that given the elements of heads of damage for personal injury which were claimed and which no doubt inform the settlement one way or another, this answers that description.

MR SIMPKINS:   That is ultimately where I need to take your Honours, I accept that.  But before one gets to analysing the effect of the settlement, in our submission one needs to determine what were the claims and whether they were claims of the kind referred to in section 338 of the Legal Profession Act, and where we failed before the Court of Appeal was the conclusion reached by his Honour Justice Campbell that the claim for false imprisonment was not a claim for damages for personal injury.

The point in the submissions that I have made so far is to demonstrate firstly that that is the incorrect approach, because his Honour was looking at section 338, but not informing his analysis by having regard to the broader wording that is extracted from section 11 of the Civil Liability Act, and secondly that in considering the proper characterisation of the claim for damages for false imprisonment, one has to determine whether there were aspects of that claim which related to injury. 

Our answer to that question is that there were for the reason that there was an alleged psychological injury, supported in the material contained in the medical report extracted by Justice Campbell.  We put a further proposition that the Court of Appeal in its various decisions has been correct in concluding that an effect on mental state in the nature of anxiety or stress and the like is within the concept of mental impairment, so that also is injury. 

Then the question we ultimately come to, regardless of whether I established both of those matters, is we have a claim for false imprisonment where, on our submission, there is an aspect of the claim which is for injury, eg, the claim for the diagnosed psychological injury, but there are claims for other matters because one matter I cannot get away from is that there is an aspect of the claim for false imprisonment that relies upon the deprivation of liberty.  So where does that take us?

BELL J:   In that respect in analysing whether the amount was recovered on a claim for personal injury damages for the purposes of 338(1) one goes to the terms of the pleading as distinct from the Part 15 statement of particulars which, of course, necessarily is concerned only with personal injury aspects of the damages claimed.

MR SIMPKINS:   In our submission, in order to understand the claim, one is entitled to have regard to the particularisation of the claim and the evidence in support of the claim.

BELL J:   But the particularisation in the Part 15 statement is the particularisation of that part of the claim respecting personal injury as distinct from the other parts of the claim.

MR SIMPKINS:   Well, all the damages were particularised but nothing – I broadly accept what your Honour is putting to me, but the position in relation to the claim for false imprisonment then, the highest that I can get to on that aspect of the claim is that it was a mixed claim in the sense that it sought damages for injury, but it also sought damages for deprivation of liberty, being something probably not injury within the meaning of the Civil Liability Act.

BELL J:   And it sought aggravated and exemplary damages in the pleading.

MR SIMPKINS:   It did, and I will come to those aspects as well.  So the question that then arises is, well, if there is a claim for false imprisonment and if it is a claim in some respects for injury, but in some respects not for injury, what is a proper characterisation of that claim.  Is the fact that it includes a head of damages for deprivation of liberty something which means that it is no longer for personal injury or does it not change the quality of the claim?

FRENCH CJ:   Is it right to say that Justice Campbell’s approach – and I am looking at paragraph 68 and what precedes it – is that if there is a head of damages that is not referable to injury included in the claim for which you get an undifferentiated settlement, then it cannot be characterised as an amount recovered on a claim for personal injury damages, that is to say the whole of the settlement cannot be so characterised?

MR SIMPKINS:   That is his Honour’s ultimate view, yes.

FRENCH CJ:   So once you have a non‑personal injuries element in it somewhere you do not know, as it were, how much might have been allocated to that by the parties in their negotiations or otherwise, it is simply not on the record, that is the end of the argument.

MR SIMPKINS:   That is his Honour’s view, yes, and we challenge that view.  I will come to the reason for that in a moment.

HAYNE J:   Because the parties have chosen to settle on this undifferentiated basis without addressing their minds to the questions of costs that are subsumed in an agreement, X dollars plus costs.

MR SIMPKINS:   Yes, your Honour, and that may be an insurmountable problem for me or it may not matter, and I need to address that.  I do understand.  But just to make one point before I move away from the claim for lost - imprisonment, the proposition we put in relation to that is that there is a single cause of action for the false imprisonment claim, and the potential for a variety of heads of damage.  The fact that one of those heads of damage, or maybe more than one, is not a head of damage properly described as for an injury does not change the characterisation of the cause of action as being one for damages in relation to injury.

That is consistent with an approach that Justice Sackville took in the Radford decision.  Radford was a case where an aspect of the claim was the inclusion of exemplary damages and what his Honour was addressing in Radford ultimately was whether the inclusion of a claim for exemplary damages meant that the claim for assault was not for an injury.  What his Honour effectively said in that case, and the reference is in the outline, what his Honour effectively said in that case was there is a single cause of action for assault or for false imprisonment and so the mere fact that there is a claim for exemplary damages does not change the proper characterisation of the claim from one being for personal injury.

FRENCH CJ:   That is on the basis that they can relate to an injury.

MR SIMPKINS:   Yes.

FRENCH CJ:   That is a different point from the point whether you are recovering for deprivation of liberty under the false imprisonment tort.  You might recover only the deprivation of liberty.  Claims about mental impairment and so forth might be rejected.  The recovery does not relate to an injury.

MR SIMPKINS:   It depends upon what the words “relate to” mean in the particular context.

FRENCH CJ:   Well, if it is just deprivation of liberty it does not relate to an injury, does it?

MR SIMPKINS:   It does depend upon the breadth that one assigns to the words “relate to”.  I mean the language is recognised in countless authorities being ruled and how ruled depends usually on the context.  There is some recognition – this is something that is referred to at paragraph 16 of the outline of oral submissions – but there is a recognition by Justice Basten in Corby that, in principle, exemplary damages can relate to an injury, but can I just put that recognition by Justice Basten in context? 

His Honour is dealing with a specific statutory provision.  His Honour reached the conclusion, having regard to that specific provision not under discussion or consideration in this case, that exemplary damages were not included.  So his Honour was really expressing, if you like, an obiter view that exemplary damages could relate to an injury.  So I accept it is not any kind of authoritative determination on the point, merely a view of an available argument. 

But the submission we put is that that obiter view by his Honour Justice Basten in Corby was a correct view because the words “relate to” are broad.  If, relevantly, the false imprisonment gives rise to, for example, a psychological injury or some lesser mental affectation then it is a proper description to associate or to conclude that the damages for deprivation of liberty relate relevantly and sufficiently to that injury, namely the psychological impairment or affectation.

Let me assume against myself that the claim for damages for false imprisonment was not a claim for damages relating to injury.  There is still the necessity to work out what that means in the circumstances of this case.  So there was nevertheless not only the claim for false imprisonment, but the claim for assault.

The claim for assault was a separate independent cause of action.  If Cross was wrongly decided, then it is not excluded as being intentional tort.  It did cause mental impairment and physical injury.  So we would have reached a position, if I have not persuaded your Honours with what I have said earlier, that even if the claim for false imprisonment damages was not capped arguably, and in an appropriate circumstance, and I come to that in a moment, of the claim for damages for the assault would be capped.  So we come ultimately to the question that your Honour Justice French was putting to me, which is, well, how do we work out, in that context, one claim succeeds, or both claims succeed.  How do we work out whether the cap should apply?

Now, his Honour Justice Campbell did indeed look to see whether or not there was, relevantly, a component that might be divided up.  We have referred to the parts of his Honour’s judgment at paragraph 25 of the outline of oral argument where it is apparent that his Honour has taken that view, that in order for the cap to apply, one ought to be able to determine what amount was recovered for the claim, relevantly, the assault claim.  I will not go to his Honour’s judgment but, relevantly, it is apparent he takes that approach at paragraphs 54, 56 and 68 of his Honour’s judgment.

Briefly, in response to that, we put what we have included at paragraph 26 of the outline of oral argument, namely that if you go to the legislation and you seek to determine whether or not it can be applied having regard to the settlement, the relevant inquiry is whether there has been an amount recovered by a claim for personal injury damages that does not exceed $100,000.  There was, on the hypothesis I am attending to, a claim for assault which was a claim for personal injury damages.  The settlement amount was for an amount of less than $100,000.  So both claims, the combined claims, yielded a settlement sum of less than $100,000.  It follows logically that, therefore, the amount recovered on the claim for the assault must have been for damages that did not exceed $100,000.

BELL J:   How do you know any amount was recovered on the assault claim?

MR SIMPKINS:   Well, you do not, but the maximum amount it could be, and I think the figure is $80,000, the maximum amount it could be would be $80,000.  So this is not a case where we have a settlement sum for maybe $120,000 and where I would be in the difficult position of addressing your Honours on where the split was.

CRENNAN J:   But, what practical effect does the point have in terms of the disposition of the appeal?

MR SIMPKINS:   Your Honour, the practical effect in this case would be, if I persuade your Honours on this point, that there would be a cap applying to the damages insofar as it could be determined they related to the assault claim.  Now, whether that is financially advantageous or if it is, whether it is significant, is unknown.

BELL J:   But this is an argument that depends on you losing your primary submission respecting the claim for false imprisonment.  It is a fall‑back argument, is it not?

MR SIMPKINS:   It is, your Honour, because our primary submission is ‑ ‑ ‑

BELL J:   Well, once you accept it is a fall‑back argument, and you accept that one cannot say from the undifferentiated sum upon which the parties agreed, that any amount of it was referrable to the assault claim, does it not fall away?

MR SIMPKINS:   No, with respect, it does not, because what you can say is that whatever the amount was, it must have been less than 100,000.

CRENNAN J:   Yes, but are you suggesting that you go further and go behind the terms of settlement?

MR SIMPKINS:   With respect, I do not need to, and I certainly would not suggest that I should, and I am not inviting your Honours to do that.  I am just making the point that it is just sticking with the terms of the settlement.  We know that whatever was recovered for the personal injury claim, namely, the assault on these officers, was actually less than $100,000 because that ‑ ‑ ‑

BELL J:   Yes, I understand that arithmetical point that you are making.

MR SIMPKINS:   Sorry, your Honour, I did not mean to labour an obvious point.  It is my enthusiasm; I am sorry.

BELL J:   But where does it get you?

MR SIMPKINS:   Where it would get us is only to this point, that there would be a cap that applied to whatever costs could be determined by the assessment process to relate to the assault claim.  Now, as I say, whether that ‑ ‑ ‑

BELL J:   Well, that is a contingent or – but that all turns on whatever costs could be related to.  That is just why I am asking you about the practical effect of the arithmetical argument that you are putting.

MR SIMPKINS:   Your Honour, I cannot tell your Honours that there is a huge practical effect.  I cannot tell your Honours there is a small practical effect.  The honest answer is I do not know, but in a sense this is no different from many cases ‑ ‑ ‑

FRENCH CJ:   Why are you putting the argument to us?

MR SIMPKINS:   Your Honour, because it does really arise in the context of trying to determine how this legislation works when there is a mixed claim, and the proposition ‑ ‑ ‑

FRENCH CJ:   Well, we are looking at how it works where you have an undifferentiated settlement.

MR SIMPKINS:   Yes, your Honour, and I appreciate that that may ultimately be a factual element upon which I founder in this debate, but if your Honour is inquiring what is the relevance of this argument I guess I would say in this particular case I cannot tell your Honours that it has a huge significance.  On the other hand, what his Honour Justice Campbell has said is that where there is a claim that cannot be divided then you are not in cost‑capping territory, and what we would want to establish on this appeal is that where the claims actually can be divided or where it can be determined that the recovery was $100,000 or less that the cost‑capping provisions of section 338 applied.

I have tried to express in paragraph 27 of the outline of oral argument a circumstance in which, at least hypothetically, it is possible that the cross‑appeal could fail and we might nevertheless succeed, and I was not proposing really to say anything more than I put in that paragraph.

Can I just say a few brief things in support of the challenge to the Cross decision?  As I say, I promised I would be brief, and I will be brief.  Justice Basten’s reasoning had effectively three critical steps.  Each of those steps, we say, upon review really does not provide a proper foundation for his Honour’s determination of the operation of the legislation.  The first step in his Honour’s reasoning was that regard had to be had to the scope of the Civil Liability Act to determine the meaning of personal injury damages in section 338 of the Legal Profession Act.

I particularly want to say two things.  The first thing about that basis of reasoning is, that if one examines each of the decisions that his Honour Justice Basten referred to, they go no further than establishing that (a) in the ordinary course you should not interpret a definition by reference to provisions in which the definition is used and (b) when you look at other parts of the statute and how they operate, you can only do so for the purposes of determining the meaning of a word used in the definition.

Neither of those propositions are bases for his Honour Justice Basten’s reasoning and, indeed, with all respect to his Honour, remarkably, having said that this was a proper approach to construction, his Honour actually does not apply any of these authorities.  There is no analysis in his Honour Justice Basten’s decision whereby he actually undertakes this task of analysing a definition by reference to operation of other provisions.

His Honour’s second reasoning was that the construction he arrived at was consistent with the policy or purpose of the legislation.  As your Honours would know, what his Honour Justice Basten was referring to was that there was, at the time that this legislation was passed, a variety of statements made indicating their purpose.  Those statements supporting the conclusion that the legislation was directed to deal with a perceived problem of small personal injury claims thought to be too costly and driving up the cost of insurance.  His Honour, having reached the view that that was a policy, then expressed the conclusion that there was less reason to relieve intentional wrongdoers of the cost burden.  We would say a couple of things briefly about that.

The first is his Honour concludes less reason, not no reason.  So, in other words, his Honour is not saying to suggest that there could be some consistency in approach is absurd.  His Honour just cast doubt upon whether the policy maker ought properly to have made this decision.  But he is not saying there is no reason consistent with the policy in the limitation on cost.  The second thing we would want to say is that it is important to realise that this policy of inhibiting costly claims for modest personal injury damages actually has a public aspect.  So it is entirely misconceived to look at this only from the perspective of the intentional wrongdoer. 

It is important to realise that this policy reflects a public perspective, the public concern with lengthy or complex or complicated trials being taken up with modest claims of personal injuries.  As the Cross appeal itself demonstrates, this is an area where there is insurance cover.  So we know that there are – your Honour would know it anyway – but certainly one has an illustration in the Cross appeal itself, that there are insurers who provide cover for intentional torts or damages associated with them.  It is entirely conceivable that the persons who were responsible for making these legislative changes and restricting costs, thought that it was actually consistent with what they were trying to achieve to restrict policies in relation to – to restrict the opportunity to recover costs.

The last matter that his Honour Justice Basten relies upon as his reasoning is, he cast to one side as ultimately uninfluential, the fact that section 338 has its own carve out.  So we know that section 11A and section 3B of the Civil Liability Act effectively have a carve out, but section 338 via section 337 has its own carve out. 

Now, his Honour dismisses that as a matter of consequence because he says, well, because there is a slightly different air of operation, maybe these are just reflective of someone being overly cautious and avoiding doubt.  What he does not address, is that the carve out for each of these different legislative regimes is different.  So it is impossible to dismiss the operative exclusions as being just put there for the avoidance of doubt.  The fact that the exclusions are not co‑extensive suggests that the person responsible for the drafting of the cost capping divisions was seeking to achieve some kind of different policy objective from one which is being implemented in the Civil Liability Act.  If your Honours please, they are our submissions.

FRENCH CJ:   Thank you, Mr Simpkins.  Yes, Mr Walker.

MR WALKER:   May it please the Court.  Your Honours, may I start first by responding to some matters from both my learned friends before moving to the order of address in the outline?  Could I start with the way my learned friend, Mr Simpkins, put the question of the mixed claim.  That is the claim which on his concession included, however he stretched the term “personal injury damages”, claim for a remedy sounding in damages which fell outside that description.  If I can compendiously and for convenience just use the shorthand of false imprisonment or wounded dignity to describe that concededly external class, compared to the class of personal injury damages.

The next point of course is, as we think, with respect, is fully accepted by our opponents, that the $80,000 is, to use two terms that have been used, “indivisible” or “undifferentiated” as between that mixture of claims.  A corollary of that is that, as my learned friend frankly puts it, one does not know indeed upon what account any of the $80,000 was agreed to be paid by the State.  Indeed, this may be only mischief on my part, but who knows, it might have been a contribution to costs only.  We just do not know.  Now, it is probably not just that because there is costs assessed or agreed, so that would equating to some kind of indemnity costs provision but you have no idea what had led to those advising the Crown to reach that position.

The next step in the argument against us was to put the proposition, which I am not going to contest, that $80,000 is less than $100,000.  Now, in our submission, all of those arguments are beside the point because what we are doing, both at the beginning and end of the argument, is applying section 338 or not.  Section 338, in subsection (1), announces the function, or the use, to which the terms in it are being put by Parliament and it is plain to demonstration that they are concerned to have a limiting or controlling effect.  It is not complete because there are exceptions, to which I will come, in relation to something which is called, in deceptively simple language, a claim for personal injury damages.

In short, these are not terms which, in the words which announce the subject matter, extend beyond a claim for personal injury damages or apply to a claim which is not a claim for personal injury damages.  At this point, I need to say something very brief about the word “claim” and I should precede it by my apology and correction of an egregious error in our written submission.  On page 3, I think it is the second paragraph 4, line 25 of that page, in the second sentence the word “used” in the phrase “an expression used” is of course wrong.  Section 11 uses it – it should be “defined”.

So having made that correction, can I simply make this point about a claim?  We know that is not completely congruent with, meaning nothing different from, cause of action. Neither does it have the broader embrace of, say, the word “matter” in Chapter 3 and, as a matter of ordinary English properly understood as a term of almost art, a claim for personal injury damages, and I stress “damages”, the remedy is the whole string of reasoning and assertion which, in the event of a contest requires determination favourably to a plaintiff, by which damages flow for what is called personal injury. 

It follows, of course, that one cause of action may have a claim for personal injury damages and for damages which are not personal injury damages.  That is the whole point of the concession, inevitable to be made by the Crown, that this cause of action for trespass called false imprisonment included, they accept at least included, matters which were not personal injury damages.  So given that function of 338 and what its terms announce is its subject matter, one simply reads on in the sentence:

the maximum costs for legal services –

So these are things which can be ultimately assessed by the procedures that the court provides to assess costs in the event of a failure to agree, things which can be observed in bills and diaries and the like –

provided to a party –

and then follows the critical phrase –

in connection with the claim –

Now, we know the claim is that which started off as a claim for personal injury damages.  It does not suddenly become the claim for all damages, not restricted to personal injury damages in the proceedings.  It remains the claim for personal injury damages.  That is why, with respect, the straightforward disposition of this case which is found in the reasoning of all three judges, bearing in mind the concurrences of Justices Hodgson and Macfarlan to which I next turn, is a sufficient explanation of why the appeal to this Court should be dismissed. 

It starts in the appeal book at page 136 in paragraph 54 of Justice Campbell’s reasons and, with great respect, the first sentence is axiomatically correct of that paragraph for the reasons I hope I have put, considerably more laboriously than his Honour captures it by that one sentence.

We note, moving through this reasoning, the elaboration or perhaps extra element that his Honour adds in paragraph 56 speaks for itself.  We urge its correctness.  Then over on the page, at page 138, there is a passage of reasoning, paragraphs 61 to 69, which in our submission is the complete answer, in particular to the way Mr Simpkins put it in the second‑last element of his address this morning.

Paragraph 61 is not the subject of challenge in the argument against us.  I can pass over the reference to Ibbett – I am going to come to that in a moment.  But the end of 62 is the subject of, in effect, concession.  Paragraph 64 is obviously the subject of concession, and then my learned friend’s mixed claim in this Court was his intermingled claim in the Court of Appeal, see paragraph 65.

Now, I am going to come back to 66 in relation to the notion of personal injury but, in our submission, whatever may be said on the topic that his Honour tentatively canvasses in paragraph 67, the matter is then concluded and, in our submission, by a straightforward reading and application of section 338 in his Honour’s paragraph 68:

a single sum of money, not allocated –

and as has been observed, that no doubt was the choice ultimately of both parties but the Crown did not have to agree to that.  That is why at about line 36 on page 140, it is with respect plain to demonstration, and not contested here, that –

it is not possible to characterise the settlement sum that he received as an “amount recovered on a claim for personal injury damages” –

because if you put together the other concessions that have been made below, in writing here and in address here, we do not know whether anything was recovered on the heads which would arguably fall for personal injury damages, contusions, et cetera.

In our submission, whether or not the analogy that his Honour offers in the second half of paragraph 68 is of much enduring usefulness or not, it is the first thought that occurs when one looks at a settlement that designedly does not distinguish.  Major legal consequences can flow from a decision not to differentiate or distinguish between different heads, either of expenditure in the tax area or of claim in this litigious area, when there is an agreement.

In our submission, it can hardly be said that when the Crown embarked upon the process, producing what your Honours could be forgiven for thinking was a standard form settlement when you look at the terms, it could hardly be thought that the Crown did not have in mind that there could be consequences depending upon whether there was allocation under various heads, such as there could easily have been if, for example, the Crown, acting as the Crown is supposed to act, said, “How much are your bills for the bruises caused?  We will pay all of that in a settlement, 100 per cent.  How much do you say for your indignity?  Well, you’re being a bit ambitious.  We think it should be, et cetera, et cetera”.  That was not done and, in our submission, that consequences flow from it, as my learned friend Mr Simpkins frankly acknowledged may happen, in our submission, this case provides an excellent occasion for that to occur.

I draw to attention the brief but telling point in paragraph 69 on page 141 by which reference was made to Cross with respect to what might be called the curate’s egg, or part of the claim approach, which still appears to be informing the argument against us on that point.

HAYNE J:   That proposition at paragraph 69 would have to be understood against a background of rules of court that permit the joinder of causes of action, would it not?

MR WALKER:   Absolutely, just as it needs to be understood against not just rules of court but substantive law of the nature and measure of damages on a single cause of action.

HAYNE J:   Exactly so, but the notion of part of a claim is not to be misunderstood as treating everything that appears in a single initiating document ‑ ‑ ‑

MR WALKER:   As unitary.

HAYNE J:    ‑ ‑ ‑ as the claim.

MR WALKER:   Quite so.  Hence the possibility, whether one is talking strictly about verdict or simply judgment and orders, in a contest and indeed in a compromise – one sees it in practice – of careful allocation as between different causes of action or heads of damage and leaving aside ‑ ‑ ‑

HAYNE J:   Just to settle a claim on the basis of differential rather than all in, Mr Walker, but there we are.

MR WALKER:   In Sydney at least “inkle” is a word that involves abolishing all distinctions, your Honour.

HAYNE J:   With all the frills, appears to be the expression.

MR WALKER:   As long as there is a dollar sign with a numeral following it, that is all that is required, your Honour.  But not everything is inkle.  Your Honours, it is for those reasons, in our submission, that it is not necessary for anything else to be determined.  The argument that we have just advanced by urging the correctness of the Court of Appeal’s approach in that regard suffices.

Your Honours will have seen the succinct manner in which on page 112 Justice Hodgson in his paragraph 2 proceeds just so.  There does not seem to be any issue about what his Honour there refers to as a question of several - all that appears to be allocation, differentiation and divisibility.  Certainly there is no point in this case possible to be raised in relation to the not negligible, which presumably is a reference to de minimus.

FRENCH CJ:   Is it possible to say that it is not a question of whether or not the – to use the words of Justice Hodgson – the claim is a, or is not a “claim for personal injury damages” but in the context of 338 rather to say that where you have an undifferentiated settlement covering claims for both personal injuries and claims for other heads of damage, one cannot say whether or not it is a claim in the course.  It is for the person seeking the benefit of the capping to protect themselves, as it were, with a characterisation.

MR WALKER:   It comes to an onus and an effective application of the provision and in a sense ‑ ‑ ‑

FRENCH CJ:   I am not sure whether “onus” is quite the right word, but it would be ‑ ‑ ‑

MR WALKER:   They have to attract - they are the ones who assert there is a limit.  We deny there is a limit.  Now true, we adopted a forensic onus by seeking a declaration but in terms of the application of the Act, they are the ones who seek to take advantage of it.  They have to show it applies.  They cannot show it applies and the argument I have put does not involve, as it were, threshold semantic definitional issues.  It involves looking at the purported application of these provisions and saying these are circumstances in which this cannot apply and it is because there are parts of the proceedings in which claims were made which go outside that which it is the function of 338 to regulate in relation to costs.

FRENCH CJ:   Ultimately because the statutory question cannot be answered.

MR WALKER:   That is right, exactly so, yes, and that suffices, in our submission.  Now, there is a further answer I want to make to my friend, Mr Simpkins, this morning and that is in relation to section 337 and this of course relates to the argument as well made by my learned friend, Mr Darke, particularly by reference in the historical sequence to subsection 198C(2) in the previous manifestation of these regulations of the legal professional costs.  Of course I am referring to the exclusions or non‑applications which those two subsections accomplish. 

The, at first hearing, perhaps powerful argument is raised against us of a very familiar kind, “But here you are” - that is, us – “arguing for an exclusion by, as it were, implication or interpretation where we have got an express list of exceptions here.  Is that not a powerful blow against the respondent’s position?”  The short answer is no, of course not. 

Subsection (2), in relation to the description of personal injury, they refer to claims, victim support, motor accidents, workplace injuries, dust diseases, which of course, as a matter of ordinary English – leave aside 3B of the Civil Liability Act at the moment – as a matter of ordinary English of course they would be personal injury and, as Justice Campbell points out in his schedule, they can be explained as being not cases to be excluded from the policy of 338 in terms, but cases where another policy specific to the kind of claim in question is already in place as part of what might be called – at some risk – a self‑contained scheme for each of that kind of litigious or quasi‑litigious system.

Subsection (2)’s exceptions do not even begin to answer the question has there been an inclusion of a false imprisonment or wounded dignity claim in the reference to personal injury damages which is at the heart of 338(1) and which is, of course, defined by 337(1).  So we suffer no detriment in our argumentative position from the fact that there are the express exceptions of the kind and with the effects that I have noted from subsection (2).  Because our answer is anterior we simply say but the false imprisonment and wounded dignity claim that cannot be for personal injury damages and is not by concession, with respect.  For those reasons there is no call for this to be included in exception.  You do not have exceptions which say, in effect, “and excluded from this definition are things not included in this definition”.

HAYNE J:   Does 337(2) read in the light of, or read against the background at least provided by 11 plus 11A(1) of the Civil Liability Act at least suggest that cases in 337(2) would otherwise be within the definition of “personal injury damages”?

MR WALKER:   That is a thought that occurs as one reads, but you have to go further, of course, into 11A(1) and then hop back to 3B unfortunately.  Well, I say unfortunately because the matter gets complicated because in 3B you have references to elements of the very schemes that are to be found in subsection (2).

HAYNE J:   Yes, but is not that ‑ ‑ ‑

MR WALKER:   Otherwise my answer to your Honour’s question is yes.

HAYNE J:   Yes.  Is not the structure of both the Civil Liability Act and to the extent to which 337 can be glorified as a structure consistent with the exceptions otherwise falling within the notion of personal injury damages?

MR WALKER:   I am bound, I think, to say yes.

HAYNE J:   Thus the argument has to come to the proposition, does it not, that the exceptions are no more than abundance of caution?

MR WALKER:   Not necessarily, but that is one way to understand the multipronged successive waves of law reform in different statutes, which this whole scheme exhibits, traced in the schedule by Justice Campbell. 

HAYNE J:   If it is not for abundance of caution what other explanation is there for the specification of exceptions other than that as defined “personal injury damages” would include the cases that are excluded?

MR WALKER:   There is, with respect – and this may be a subspecies of more abundant caution – there is the notion of avoiding any argument of implied repeal.  These are existing schemes.  This is another scheme with a general expression.  You would not want to trigger an argument.  Now, you have another maxim running, of course - the general does not derogate from the specific.  So my answer is – and I accept this may be a species of more abundant caution, but it is a practice to be applauded rather than deprecated.

HAYNE J:   Of course.

MR WALKER:   You have a past statute dealing with a topic.  Your new statute is going to deal in general terms with something that the past statute – existing statute – could fall within.  Let us make it clear that though you might rely upon the general not derogating from the specific, it would be even better to say they are not included.

HAYNE J:   I understand the implied repeal proposition in respect of statutory schemes.  How does that deal with the express exclusion of intentional torts?

MR WALKER:   Now, that is ‑ ‑ ‑

HAYNE J:   Not statutory.

MR WALKER:   No, quite so.

HAYNE J:   You exclude it either as an abundant caution or you exclude it because otherwise it is in.

MR WALKER:   Quite.

HAYNE J:   That is the choice, is it not?

MR WALKER:   It is, and it is very close to the heart of the argument on the second point I want to put and I will deal with it now.

HAYNE J:   I have anticipated.  You take your course.

MR WALKER:   No, I will deal with it now; it is very convenient to deal with it now, with respect, your Honours.  This is a point upon which we could lose the whole argument, we accept.  At the risk of proposing a travesty, to make my way easier, it could be said that the argument against us simply says, look at 11A(1), note that it is a framework that says the part applies to X except carve out from X, and then note that carve out from X involves the proposition that but for the carve out it would be within X and cadit quoestio, that is it.  That is the whole of the argument against us.

Now, as your Honours will have seen from our outline, one of the textual strands we pull on to answer that argument is to point out that the incorporation of the definition is not done by reference to section 11 or section 11A.  It is done by reference to Part 2.  Now, apropos that, a matter that arose in argument this morning perhaps bears some attention.

It relates to the historical evolution and permutations to which my learned friend, Mr Darke, took you.  I do not want to traverse the same area in the same detail.  With respect, we adopt the analysis that he put to your Honours.  But I would wish to emphasise one matter which is probably most conveniently done by going to the way Justice Campbell sets out the same history in his schedule.  I am here paying regard to what his Honour dubs the Personal Responsibility Act starting at page 151 of the appeal book, the late 2002 amendments.  This is the one that inserted the first iteration of section 3B.

So into the Civil Liability Act, as there was the reorganisation to which both his Honour and my learned friend have shown your Honours, you will note - it is conveniently set out on page 152 of the appeal book - that paragraph (a), which is the equivalent of the one that concerns us, in its original form showed no possible application of Part 2 at all to those intentional torts.  It was only Part 7, which, from the rest of the Act, survived as applying to what I will call the intentional acts done with intent.

Your Honours will note page 155 of the appeal book sets it out, but part of the package – I am not quite sure whether it is Swiss watchmaking or not, your Honours, but the technique is plain in terms of trying to make everything fit together.  In paragraph 100, his Honour points out that the control on legal professional costs provisions was altered so as to, for the first time, include the “as in Part 2” provision, changing from “as in the Act”. 

The point I am making is that when “as in Part 2” was first used, these intentional torts with intent were not touched by Part 2 at all.  They were out of Part 2.  So that when this relation between the notion of personal injury damages for the legal professional controls and the notion of personal injury damages in the Civil Liability Act was first instituted as what might well have been thought by well‑meaning draftsmen as being a convenient shorthand, when it was first used it is very difficult to see how it could have included these intentional torts, for reasons I am going to come to, because there is absolutely no connection with Part 2 at all.  They are out of Part 2.  Let me stress that section 3B then and now ‑ ‑ ‑

HAYNE J:   Can I just interrupt you and just get you to pause a moment, because I am not sure that I am fully understanding this proposition?  You say that when first used the expression “as in Part 2” ‑ ‑ ‑

MR WALKER:   Applied to the intentional torts with intent at a time when Part 2 did not touch them at all.  Now, it does touch them, 15A, 15B, section 18.

HAYNE J:   But is there not then a slide between whether Part 2 affects then “intentional torts” and whether personal injury damages, which is the relevant expression, has some other meaning?

MR WALKER:   Yes.

HAYNE J:   Are you not sliding over that chasm with a skier’s skill and speed, Mr Walker?

MR WALKER:   Moving, I hope, openly by steps that your Honours can detect and check, rather than any illegitimate slide, but yes, of course, that is the movement that is in hand.  Can I try and make it good as to why it has to be like this.  If your Honour goes to section 3B the words which open it – and they still do open it – “The provisions of this Act do not apply to”.  It is a disapplication of the Act and one notes ‑ ‑ ‑

HAYNE J:   Yes, and 11A talks about this application of the part.

MR WALKER:   Yes, but it starts off by “The provisions of this Act do not apply”.  Now, the provisions of this Act include obviously section 11.  It does not apply to or in respect of civil liability and may I note the parenthetical expression, because it is something that fell from one of your Honours earlier this morning?  It is remedies as well as causes of action.  If causes of action can be seen as a synonym for “civil liability” “awards of damages” found in the parenthesis obviously refers to the remedies in the case of a successfully asserted cause of action. 

Now, those are very broad words of disapplication, true it is, nothing is ever completely straightforward because there is the word “except” that comes in paragraph (a) and now we have not merely Part 7 but we also have three provisions which are in Part 2 and I have to confront that.  Our submission is that you would not have the tail wag the dog; they are provisions which have to do with very much subordinate aspects of the matter and they do not constitute anything like main controls or limits on recovery, which is the concern of Part 2.  In our submission, it means that the understanding of section 11, which is plainly to be integrated with an understanding of section 3B, section 11 is part of the provisions of this Act, is that which must be called up by the reference to “as in Part 2” found in 337(1). 

Now, why I have referred to the state of affairs that is no Part 2 application at all when the “as in Part 2” phrase was first used is simply that there is no indication, certainly on the text of the amending statutes, or in any of the decidedly unhelpful extraneous material, as to a rather large policy decision being made about these intentional torts with intent, which we know will include those by officers and agents of the State, the kind of tort claim that has a transcendent public interest, constitutional importance to hold the State to account for the misdeeds in the name of officialdom such as comes with the archetypal police bashing civil case.

In our submission, bearing in mind that important platform for consideration of what are these words in these two statutes accomplishing, there is a complete absence of anything like the sufficiently clear indication – this is jumping to the last paragraph of our outline for address – there is nothing like a sufficiently clear indication that it was intended that this costs disincentive be posed in this roundabout way by the application of 15B and section 18 now found in Part 2 of the Civil Liability Act, bringing within Part 2 to an extent that has got nothing to do with costs regulation, bringing within Part 2 for the first time claims of a kind which, we were told by 3B up to that point, were not touched by Part 2 at all – not in it, and not in section 11 either.

It is for those reasons that the words which have not received appropriate emphasis, with respect, in the argument against us are to be found at the beginning of 3B, provisions of this Act within section 11, and as in Part 2, they combine, with respect, to produce what we submit is a legitimate outcome whereby the meaning, using the expression in 337(1), is obviously how it operates.  Now, when I say “obviously” – because the word used is not “definition” – the word is “meaning”.  I am sorry if I sound as if I am about to engage in the fatuous task of submitting to your Honours what “meaning” means, but when one thinks about the contemporary and understandable preference for using the word “meaning” rather than “intention” when talking about statutes, the meaning of a statute, what is the meaning of the words used, that is the statutory intention.

FRENCH J:   You can hoover up these other exclusions.

MR WALKER:   Obviously, that is what has to be ‑ ‑ ‑

FRENCH J:   I mean, the problem I put before is the question of textual link and the logical process.

MR WALKER:   Quite.  I accept that that is – it is not as if there is nothing to be said on the other side, obviously but, in our submission, the meaning of the word “as in Part 2” has to give weight to the fact that Part 2 tells you, 3B(1)(a), the provisions of this Act, including section 11, do not apply to these intentional torts and one, therefore – I do not need to dwell on it but, your Honours can therefore see the way in which we, in effect, call in aid the approach certainly to be seen in Sir Owen Dixon’s description of the matter – in very general terms I say “the matter” – in Producers’ Cooperative which has been cited to your Honours. I will not take you to the page. It is 69 CLR 523 at 536. The words we would emphasise is that one looks to:

context giving any guidance as to the meaning or application of such a phrase –

and this where his Honour is talking about one of these transfer definition provisions, as we have here, and his Honour goes on to talk about:

interpreting the definition give the context as much effect for the purpose –

of the one statute as for the other.

In the Privy Council which is relied upon by our learned friends as having preferred the approach of Sir John Latham, it is worth pointing out – 75 CLR 134 at 137 –that even so their Lordships talked about taking into account the way in which the matter operated under the statute from which the definition was being taken. Now all put together, in our submission, one comes back to the four words in question “as in Part 2” and giving it an ordinary meaning, one sees that the reader is being commanded to understand this term in the way it is used in Part 2 ‑ ‑ ‑

HAYNE J:   That is to say ‑ ‑ ‑

MR WALKER:   ‑ ‑ ‑ how it is working in Part 2, what meaning – we come back to the word “meaning” – it has in Part 2 and we know from 11A(1) and 3B that in Part 2 it does not include these intentional torts, except for 15B 18, to which I have already referred.

HAYNE J:   That is to say the whole of 337 could have been expressed by the drafter saying this division applies to any claim to which Part 2 of the Civil Liability Act, et cetera, applies. 

MR WALKER:   Yes, of course.  Justice Macfarlan in the court below, proceeds on a basis in obiter remarks in relation to Cross, in a manner which divides starkly or sharply between interpretation and application.  In our respectful submission, that is not real.  The definition of a term may simply describe the words which are printed in a definition section.  The meaning of the term is the way in which it operates – what it signifies, which we know has to be determined by context.  Here, we do not have to rely upon anything implicit in relation to context, and there is nothing purposive that I have so far called in aid.  Rather, we have the very plain demarcation by 11A(1), which is in Part 2 – so it fits within the “as” in Part 2 – by reference to 3B(1)(a) of the non-affectation in Part 2, the non-inclusion in Part 2 of those torts.

FRENCH CJ:   That might be a convenient moment, Mr Walker.

MR WALKER:   It is for those reasons that those damages are not personal injury damages.

FRENCH CJ:   The Court will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, the last thing I want to put concerning the incorporation of the section 11 definition ‑ ‑ ‑

KIEFEL J:   Just before you do, Mr Walker, you referred us to the Producers’ Co‑operative Distributing Society Case 69 CLR.  Chief Justice Latham, in a passage at 531, said:

The meaning of a section may be ascertainable only by a consideration of other sections with which it is associated.  But it would be an inversion of ordinary methods of approach to seek to interpret a definition by reference to provisions in which the defined term was used.

MR WALKER:   That may well be right, but that is why I have placed the emphasis I did on what 337(1) says.  It says that the meaning of is “as in” ‑ ‑ ‑

KIEFEL J:   That is the importance of the meaning.

MR WALKER:   Quite.

CRENNAN J:   As distinct from a definition.

MR WALKER:   Yes.

KIEFEL J:   I get it now.

MR WALKER:   It may be a fine point and “fine” may have an unkind synonym tenuous but, with respect, these shorthand methods of stitching together for somewhat different purposes what are plainly overtly treated in their legislative history is part of an overall approach; perhaps “scheme” is too grand a word for it.  It does require close attention to the words by which this transfer or incorporation is accomplished. 

CRENNAN J:   I think also in the same case at 536 in the passage of Justice Dixon, he does focus on meaning, even though it is a question about definition.

MR WALKER:   Yes.  He does it in a phrase “meaning and application” that perhaps elides a distinction that is at the heart of at least one of the arguments against us.  We understand that, and with respect, that is why I have tried to put it as I did before the adjournment.  The meaning is the way in which the word is used to convey what it conveys, either to bring about a legal consequence to describe a state of affairs or to stipulate a state of affairs and that is the importance as well, continuing my answer to Justice Kiefel, that is the importance we lay upon the opening words of 3B(1), whereby the provisions of this Act do not apply to, et cetera.

One last thing I wanted to say about the incorporated definition is this, and I say it separately because it is not necessary to the success of our argument thus far.  If it were thought that either the word “meaning”, if I can suggest that, or the phrase as in Part 2 had what is truly to be understood as an ambiguity, not just a vagueness but truly something of a nature of an ambiguity, then it may be in order to refer to the extraneous material which, in this case, speaks more by its silence.  There is nothing in the extraneous material to suggest an odd legislative scheme or policy afoot, a perceived mischief, by which claims for false imprisonment would be treated differently in relation to their costs capping, depending whether they were or were not accompanied by a bloodied nose.

That is a polite and gentle imprisonment, nonetheless, wounding the dignity and calling for vindicatory damages ‑ the State and its agent have exceeded their authority – no cap, because it will not be caught by personal injury damages because it will not be caught by injury ‑ but if the nose is bloodied, a not so polite detention, lo and behold notwithstanding that none of the limits of Part 2 apply, see 3B(1)(a), it would nonetheless be capped as to costs.

Now, if the words compel that outcome, no extraneous material could prevent it, but it may be that that compact expression “as in Part 2”, the word “as”, in particular, conveying the notion of the method of treatment – how is something done in Part 2, how is something dealt with Part 2 – that is how you understand its meaning as in Part 2, then we would urge that the lack of any indication of a mischief of the anomalous kind that I have just illustrated tells in favour of our argument.

Could I then move to the other point?  It is the first four propositions in our written outline for address.  We can put it, I hope, very quickly.  This is an argument that says, well without needing to be concerned with the incorporated definition point, these simply are not personal injury damages, relevantly.  Can I start also here by referring to the function of section 11’s definition in Part 2?  It is to provide the ambit, see section 11(A)(1), of the application of the provisions of Part 2 because that subsection defines the application of the part as being to, and in respect of, an award of personal injury damages except, et cetera.  So section 11 is serving the function of describing the category of cases its provisions cover and it is all about litigation. 

It is not a code for civil liability, notwithstanding the title of the Act.  It takes common law causes of action and transforms them to a certain extent, particularly in relation to measure and remoteness of damage.  But otherwise as to liability for a wrong and as to the existence of a wrong, cognisable in a court, producing what is called a personal injury damages claim, they exist outside of Part 2.  So section 11, when referring to an injury, is referring to something for which there can be common law action brought and common law action simply cannot be brought for being disappointed. That is in tort, leaving aside questions of contracts for happy holidays, et cetera.

The point being made, obviously, is that that function provides a very important context to understanding what is intended to be meant by this rather abstract notion of impairment of a person’s physical or mental condition.  We submit that you would expect it to mean no more than the kind of injury, because the word “injury” is repeated in the definition, injury means personal injury and you do not go around in a mad circle; it means, where it is second meant, you are using the word as an ordinary English word but legally cognisable as producing damages. 

So that would, on it is face, exclude emotional states which have never been actionable as such.  Interestingly, however, there are at common law emotional states such as is provoked in a defamation plaintiff which can affect the amount of damages.  Emotional states evoked, in either a plaintiff or an observer, can also lead to or provide the rationale for aggravated damages.

In a sense, an emotional state perhaps, assumed rather than real, in a Court is what underlies, that is, the indignation or outrage is what underlies an award of exemplary damages.  It would be, in our submission, absurd to suggest that damages for defamation are personal injury damages because the gloom, outrage and a feeling of resenting engendered in a defamation plaintiff upon reading the slander is to be regarded as having impaired that person’s mental condition. 

Now, that is an introduction to the first proposition in our paragraph 1.  In our submission, the argument against us in this regard has it all the wrong way around.  Righteous indignation is not an impairment of mental condition and does not stem from, proceed from, an impairment of mental condition.  It shows mental condition operating unimpaired as one would expect it to.

The same is true for disappointment, or gloom, or sadness upon things which would cause a rational person so to respond.  If there is to be an impairment of mental function, rather, it would include cases where people do not respond with appropriate emotional changes to states of affairs which ought to produce it, and they are recognised disorders of a kind which would be impaired mental condition by which one remains, for example, unable to empathise with other people’s positions so that you remain cheerful as you, for example, offend them.

Now, it is for those reasons, in our submission, that just as a matter of ordinary English but particularly couched in the context of an injury for which there could be common law claim as such, one would reject the idea that the humiliation, distress, indignation et cetera, et cetera, which accompanies – or comprise, I should say – the claim for injured dignity in the false imprisonment case answers the description of impairment of mental condition.

We have suggested in proposition 2 that at least (a) and (c) in section 11, definition of injury, are categories which have been included in order to make sure that cases that might not otherwise follow from the expression “personal injury” would be included and each of them, pre‑natal injury and disease, are familiar as sources of possible legal controversy from many cases.

Subsection (b) is the one in question, of course, and it is not so easily dealt with, not least because it represents, as presently enacted, an alteration of the original form “psychological or psychiatric injury”.  There is nothing again in extrinsic material which indicates anything so revolutionary or radical as intending to include, for some reason, in the definition of “personal injury damages”, altered states of mind – perhaps transitorily altered states of mind – which the common law would never count as, in themselves, an injury for which action could be brought and damages awarded.

In short, in our submission, the impairment in question has to be a deterioration so as to affect, for example, functionality, either a physical or mental state of the person.  I repeat, just as one could not say that my physical condition has been impaired because I am tired, responding naturally and in the ordinary way to labour, or perhaps exertion, neither is my mental condition impaired if I am gloomy or indignant about a wrong that has been done to me.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.  Mr McKeand.

MR McKEAND:   Your Honours, may I start by building on the example Mr Walker gave of a case where there would be – this case, his example of false imprisonment with no physical injury and hence no cost cap in the more aggravated case where there is a resulting physical injury and there is a cost cap.  Can I suggest at the outset that that type of example, and I will come to one myself, is an example of an anomaly?  It may be heading in the direction of – and not quite getting there – of being an absurdity, but it is certainly an anomaly and it could arise in quite a few circumstances.

The example that we have given in our written submissions is taken from the headnote of a decision of this Court in Ibbett, and I am referring to paragraph 22 of the written submissions.  For my part, all your Honours need, because this is purely an illustration, is the headnote.  It was a case in which Mrs Ibbett was threatened by a policeman pointing a pistol at her as he came onto her land in pursuit of her son and she succeeded in an action for assault.  She actually recovered, at first instance, something less than $50,000 for damages for the assault and something else for trespass.

Now, that resulted in no physical injury.  Consequently, at least under the current regime, she would not be subject to a cost cap.  If she had been physically assaulted and suffered physical injury – and I use the rather extreme example of being pistol whipped – she would be covered by the cost cap because she would definitely have suffered physical injury.  A simpler example – although Mr Walker gave a good one – is a prominent person who is slapped in public.  They may well not suffer any physical injury but they have suffered an assault.  People in that situation, as defamation cases show, are not disinclined to sue.

So one can well imagine a case there where, if there was a physical injury resulting from the assault, there is a cost cap, but in the lesser example of no physical injury, is no cost cap.  So I put that forward as an anomaly.  I certainly suggest that it is heading in the direction of absurdity that this interpretation that the appellants would give to the cost capping provisions and the interaction between the two Acts leads to.

FRENCH CJ:   You find your entry point for those considerations in an ambiguity in the same way that Mr Walker has put in the words “has the same meaning as in”.

MR McKEAND:   Yes, your Honour, exactly.

FRENCH CJ:   That is paragraph 10 of your outline.

MR McKEAND:   Yes, your Honour.

FRENCH CJ:   That is the critical point of your argument.

MR McKEAND:   Yes, your Honour.  What we want to do from there is to move in a slightly different direction.  I will stick my neck out a little bit and pick up the Producers’ Co‑operative point and put it this way.  If I can pick it up from the point in Justice Basten’s judgment in Cross, which is at page 190 of our joint appeal book.  The essence of what I am putting is that, taking on board what her Honour Justice Kiefel has said about Justice Latham’s comment, we turn to Justice Dixon – and I will not repeat what is put there; Mr Walker has referred to it – and to the comment on that that was made by the Privy Council in the final decision at 75 CLR.  That is picked up on – the part I want in any event – page 192 of that appeal book where their Lordships said:

It is however permissible, inasmuch as under the Co‑operation Act the term agricultural products is almost entirely used in connection with rural societies, to take into account the activities which are open to those societies under the Co‑operation Act.

That is the application.  That leads me to the submission that the application of a provision has, in the appropriate circumstances to which I return, considerable scope for affecting the meaning of the provision.  In abstract, that is probably hard to argue with and nor does it go very far and to bring it home to roost I would take your Honours to – but, firstly, before I do that can I just point out, as I think Justice Basten did, that in the range of authority that he considered which was two – he considered Producers’ Co‑operative and he considered the Henry v Motor Accidents Insurance Board on page 192 of the joint book. 

Producers’ was a case where the word was “as defined in” which is probably the tightest form of words that is commonly used and in our submission is tighter than has the meaning in and the wider form of expression was the one used in Henry has the same meaning as it has for the purposes of certain part of the Police Offences Act.

The point that we make here is that the scope those three expressions invite to consider context is on an expanding scale across that spectrum.  This particular case before your Honours is somewhere in the middle but it nevertheless, I say with the greatest respect, invites consideration of the context and context can in an appropriate case, as endorsed by the Privy Council, pick up application and that is the theme that I want to pursue.

In this case we come to a context that is defined by the language of the Act itself.  In spite of what is said one way or another about the reading speeches and extrinsic materials the general conclusion, even from the Bar table, seems to be that there is not much assistance one way or the other and we for our part do not rely upon them.  We turn merely to the language of the Act which is the orthodox starting point for considering context and the point of which, in our submission, we do not need to extend.

So, if we stick with the language of the Act, the first submission in that vein is that the language of the Act relatively clearly expounds the purpose of the Act.  The purpose of the Act at this stage we have to say is part of the package and so the Act becomes the plural but package has a purpose.  I am going to put a formulation that we made of that purpose in light of some of the exchanges that occurred before lunch with a view to suggesting that the purpose in this context can be readily established simply from the language of the Act.

The purpose is the reform of the costs, say, to the community, mainly business, the reform of costs aspects of the common law of negligence – at this point I am referring to the Act as it was passed in June 2002 – by way of limiting damages awards and also party/party costs; party/party because as your Honours have heard solicitor/clients can make their own arrangements.  From 2006 on it also touched upon gratuitous service awards in general, and I do not have to do anything more than remind your Honours of that. 

Excluded from those reforms, from the legislative scheme of the two Acts were legislative schemes that are in existence or were in existence already that covered similar territory in terms of making provisions for compensation which might otherwise have been negligence cases and having their own costs regimes, with the exception of the Motor Accidents Acts and the Dust Diseases Acts, which did not have their own specific cost regimes.  That aberration seems to be universally unexplained by the judicial personnel that it preceded, your Honours, in this consideration. 

The other exclusion was for personal injury claims damages awards which focuses on the damages awards for the – and I will simply abbreviate it to intentional acts, torts.  Having got to that general scheme, we have come to – I remind your Honours that the aberration that occurs, the anomaly that occurs in the application if the scheme is interpreted in the way the appellants would argue in the court below in both cases of Williamson and Cross and the other two that are associated with it.  All of the Court of Appeal judges acknowledged in one way or another that it would be strange to exclude the intentional torts from the awards limits and yet not from the costs limiting provisions.  In other words, it is a scheme which either has a flaw in its execution or there is a purpose in doing so and the purpose not only is not identifiable, but it is counter-intelligent. 

If I can make that submission good, your Honours, by reference to the judgments I referred to and I will do so without inviting your Honours to look at them now but I am perfectly happy to take you there.  This purpose in one form or another was referred to by Justice Basten at paragraph 49.  I do not have at hand the page numbers.  I can give your Honours those ones.  Paragraph 49 is on page 197.  Justice Hodgson agreed with Justice Basten without refinement, so there are two.  Justice Basten also dealt with it at 59 in a slightly different formulation, as I have noted. 

Justice Sackville dealt with it at paragraphs 74 and 75 of the same judgment.  Those paragraphs appear on 208 and 209 of the joint appeal book.  In the Williamson Case Justice Campbell referred to it at paragraph 29, and I do not have the joint book for Williamson, I apologise, then Justice MacFarlan at paragraph 118.  All of them have referred to what I have put bravely as an anomaly in light of the apparent purpose of the litigation.  We put the apparent purpose is readily ascertainable from the language of the text itself.

HAYNE J:   Just apropos of the text, can I take you to the Civil Liability Act as enacted and just see if I understand the way in which your argument runs.

MR McKEAND:   Certainly, your Honour.

HAYNE J:   We have enough versions of the Act.  I thought I would go back to the original one.

MR McKEAND:   I have the original.

HAYNE J:   If we go to pages 16 and 17 of the print we have, the insertion of 198C and following into the Legal Profession Act, you observe first at the head of page 17 “has the same meaning as in the Civil Liability Act”.  We note subsection (2) and its exceptions, but your argument textually must be one which reads 198D(1) and the phrase “for personal injury damages” in the first line of 198D(1) as meaning:

damages that relate to the death of or injury to a person caused by the fault of another person.

That is taken simply from section 3 – not “where the fault concerned is [not] an intentional act that is”, et cetera.

MR McKEAND:   I accept that, your Honour, yes.

HAYNE J:   So that the notion of “has the same meaning as in” assumes that the exclusion made by 9(2)(a) of awards where the fault concerned is an intentional act is contained within, forms part of, informs the understanding of – I do not think it matters which phrase one uses – the expression award of personal injury damages, is that right?  You have to go down that path, do you not?

MR McKEAND:   Yes.

HAYNE J:   You justify going down that path on the basis of what you describe as anomaly, is that right, otherwise?

MR McKEAND:   No, with respect.

HAYNE J:   No?

MR McKEAND:   I justify it on the basis that as a matter of construction we apply the application of the term as a component or a factor relevant to the meaning of the term, and I point out if you do not do that we get an anomaly.

HAYNE J:   Your possible point of view is that the application of the term as defined necessitates the making of carve outs or exceptions.  Now, that is the argument against you.  You seek to, as I understood it, at least at some point in your argument, meet it by reference to anomaly.  What I wanted to raise for your consideration is whether what you describe as “an anomaly” is anything more than the inevitable consequence of drawing a line.  You observe one case falls one side, the other case falls the other.

MR McKEAND:   The answer is yes, your Honour, but, with respect, the two things live together in the sense that they are both relevant circumstances.  The fact that there is an anomaly when you draw the line in a certain way gives rise to a concern.  If I can pick up the train of thought his Honour Justice French put to someone before lunch, that you need to have two available constructions before you start to look at an ambiguity.  So our submission to respond to that starts from the proposition that there are two available constructions because it is got to this – well, I suppose, to try not to be flippant about it, it is got to this Court’s level with different people taking different views.  Rational people have taken different views, there must be two available constructions.  I am not sure that a judgment would be written in that form, but res ipsa loquitur.

HAYNE J:   Entitled to an injunction because the other side has not said they will not do it is, I think, the same argument.  I am being flippant, do not respond to me.

MR McKEAND:   Your Honour can, I should not.

KIEFEL J:   But in terms of construction, there is nothing in the definition of “personal injury damages” that necessitates borrowing from somewhere else in the statute, unless you are seeking to achieve the objective that you seek.  There is nothing ambiguous in the terms is there?

MR McKEAND:   No, but if I can join issue with your Honour on the last part of what you said, it is not a question ‑ ‑ ‑

KIEFEL J:   This is the warrant.  What is the warrant for reading into a perfectly clear definition?

MR McKEAND:   Well, absent the Legal Profession Act, there probably would not be one  But the Legal Profession Act says “has the same meaning as” and, therefore, you have got to look at it because – well, our submission is that you look at, because of that breadth of that expression which implicitly picks up the context, well, I am probably not going too far to say context is relevant in all questions of construction and your Honours put one that you say is very clear on its terms, but nevertheless there seems to be circumstances in which context may well be relevant to that.

However, let me accept for the purposes of the argument, that context is not necessary to interpret personal injury damages as an expression as defined, but it is for the purposes of applying ‑ ‑ ‑

KIEFEL J:   Not to understand the meaning that it gives, yes.

MR McKEAND:   Yes.

KIEFEL J:   Please continue.

MR McKEAND:   It does.  It has the meaning as in Part 2 of the Civil Liability Act in the way it was first put.  It brings in something a bit more than the definition of.  Definition takes you to words only.  Meaning, with respect – and I think Mr Walker made this point in a slightly different way – takes you to words and contexts inevitably, if there is a context.  In an abstract, if we are just talking about a word, of course there is no ‑ ‑ ‑

KIEFEL J:   It takes you to the context if it is required to understand what is being said.  You do not start with a definition and then trail around legislation to see if you can add to that, because it serves a purpose.  It says an outcome that is sought.  You say the warrant lies in the meaning – that is, the words, the meaning given in Part 2.

MR McKEAND:   Yes.

KIEFEL J:   But that necessarily means not just the definition but that the legislation has taken you to the whole of Part 2 of the Civil Liability Act.  That is what it comes down to.

MR McKEAND:   The answer is that is it, but that is not all of it.  I would be challenged to say, I think, that in all questions of statutory construction you are going to go to the whole of the Act and you are going to go to the context of it.  In some cases, such as the one your Honour first put to me, personal injury damages on its own may need little assistance from the surrounding circumstances.  In this case I am saying that it does because, first, the meaning “as in” picks up context, inevitably, and, secondly, you have got a purpose of the Act discernible within its own terms, therefore not worrying about outside assistance, and that purpose appears to be defeated in an anomalous situation.

KIEFEL J:   I suppose in a sense of construction this might raise – and the Products’ Case 69 CLR, the judgment of Chief Justice Latham might point to – is whether or not you use context, accepting that one uses context to determine the meaning of a provision, as in a section which is intending to convey something about the operation of the Act, whether or not there is a distinction as to whether you use context to determine a meaning itself given, that is, in a definitional sense because you do not need to determine the operation, normally, of a definition if it is clearly spoken.  Some definitions might be written in a way which does require context, but a first assessment must surely be whether or not the definition provides sufficient meaning for the Act to operate.

MR McKEAND:   Can I put it this way?  The exercise prescribed by the Legal Profession Act is not to look just at the language, it is to look at the meaning as in this case part 2 or, as it originally existed, the whole of the Act, which dealt with the negligence claims.  Now, that of itself tells you if there was something in the Act that dealt with negligence claims that bore upon the words actually used in the defined part of the Act, it would have to be taken into account and that is what we are saying happens here.  It is one thing to discuss this in abstract and I am sure, your Honour, I am not saying anything new.  It is one thing to discuss as an abstract but to apply it to this particular case, it seems that their prescribed intention is to have a look at the meaning as in, and therefore you have to go in to find it, that is, go in not just to the words but to the Part, as it is now, or the Act as it once was, and that picks up its application.

KIEFEL J:   I suppose that is the question.  Accepting what you say about the Legal Profession Act referring you to the meaning as is given in Part 2, once you get to Part 2 you have to have a warrant for reading into the definition, other aspects of Part 2 which are set up as exceptions.  That is what it comes down to.  It is not just the Legal Profession Act that identifies this, there is a question of whether, as a matter of construction, you can read the definition in the Civil Liability Act in the way for which it is contended.  I mean, it has to arise in the Civil Liability Act to be referrable to the Legal Profession Act, on your submission.

MR McKEAND:   I certainly accept that.

CRENNAN J:   But you are trying to get to the meaning for the purposes of the legal profession.

MR McKEAND:   Quite.  Which gives you a broader ambit of – well, I am suggesting it gives you a broader ambit of inquiry.

CRENNAN J:   I suppose the way Justice Dixon came at this was by treating contest – not necessarily precisely as it has been treated in much more recent jurisprudence on statutory construction – but treating it as something that may need to be looked at when you are dealing with the phrase.  You want to determine its meaning for the purposes of another piece of legislation so the context, in that sense, may guide you as to the meaning and application in the other piece of legislation in the Legal Profession Act.

MR McKEAND:   Quite so, your Honour.  We certainly would accept that proposition. 

CRENNAN J:   And that may apply even though there is no real ambiguity.

MR McKEAND:   Our answer to that is certainly yes because it applies in all cases of statutory construction in those circumstances.  If there is ambiguity, you may go elsewhere looking for some assistance but when you confine yourself to the text of the Act, it is simply orthodox construction, as we would put it.

Can I venture to suggest that the considerations that we have put relevant to looking at the meaning from the purposes and the point of view of the Legal Profession Act emphasised, when you have the two as part of the same statutory scheme with the same statutory purpose as distinct from two Acts like a Tax Act and some other Act and the Tax Act picks up the definition in the other Act - they are there for different purposes and that may not invite the same level of contextual consideration, but these must - the paradigm cases of textual consideration in context and considering purpose, when it is part of one combined piece of legislation and reform with – and no one has suggested otherwise – a common purpose. 

So the next step in our argument is that context includes application and I drew as a spark for that proposition what I had referred your Honours to in the Privy Council decision as cited by Justice Basten.  Justice Campbell in Williamson at paragraph 103 put the proposition that the meaning of a concept – I do not think he used the word “concept” – he says:

there is a fundamental difference between the meaning of a word or expression, and the scope of application of a legal principle.

With the greatest respect, we do not disagree with his Honour at all.  The point is that in a case such as this where in context you have to consider – well, we suggest it is appropriate to consider application the two are brought together.  They may be different, but they are brought together in this environment and for this statutory purpose, that is the statutory purpose of considering from the Legal Profession Act point of view what was the meaning of “personal injury damages” in the Civil Liability Act.

So we would distinguish, not cavil with what his Honour said, but say in its application in these circumstances the distinction is of no significance, not that there is not, it does not exist, it is just that the two are separate components of a combined approach to construction.

Now in one perhaps strictly literal sense, there may not be an ambiguity, and I heard that suggested.  But there is ambiguity, is there not, if not for any other reason, at least for the reasons that judges have so far differed.  There is ambiguity in the approach to be taken in exercising the object of the Legal Profession Act to incorporate that expression into its terms.  There is ambiguity at least in the way – and the result that task was to be performed.  Would your Honours just pardon me one moment?

Before I leave totally the question of purpose, could I refer your Honours to the comments of Justice Campbell in Williamson at paragraph 29 – if someone might kindly tell me the joint book number.  His Honour said there:

I recognise that it is difficult to see why the mischief at which the Civil Liability Act was principally aimed required there to be a cap on costs for claims for assault.  Claims for assault are not a type of litigation that fits a fairly common pattern (in the way many negligence claims that result in a judgment for less than $100,000 are), with the consequence that the actual costs of many assault claims would significantly exceed the statutory cap.

Then he goes on in continuation in that paragraph – I will not read it all – to consider the policy aspects that might have underlay that approach.  Justice Macfarlan commented a little more succinctly to similar effect in his short judgment, in particular in paragraph 118.  That also makes good our submission that the anomaly was a common concept amongst the judges in the court below.

Your Honours, it remains to deal with the other troubling aspect that we have, and that is consideration of the other carve‑out provisions.  Justice Campbell embarked upon a detailed analysis of the statutory provisions and came to a conclusion as to a difference in perceived purpose apart from the overlap of the common statutory provisions in both situations, and it was this, that whilst the Civil Liability Act deals with what I have called the carve‑out elements in the context of awards of personal injury damages, the Legal Profession Act goes further in its restrictions picking up settlements and compromises that have not resulted in awards.

So in that sense one can see that whilst it may at first seem strange to have one Act referred to in both sets of carve‑out provisions, it is apparent that simply having them as carve outs from the Civil Liability Act and therefore from the definition of “personal injury damages” was insufficient to give effect to that additional statutory purpose of making them applicable to compensation in the form of settlements and compromises. 

We sought to build on that in a modest way in the written submissions in paragraph 21, and we start from identifying the approach his Honour took, which is referred to in the opening part of that paragraph.  Then over the page, on page 7, we say that:

In short, the exceptions in s 198C(2) –

the original enactment –

picked up circumstances not covered by the exceptions of “awards of damages” . . .  As his Honour pointed out in paragraph 84, “the exceptions . . . were cast in language [appropriate] to the cap on costs . . .  That, of course, is a broader scope of recovery of money than is an award of damages.

So it seems one can tentatively draw certain conclusions about the carve‑out provisions.  There is duplication.  There is duplication of the statutory schemes.  The duplication is at least explicable on the basis that Justice Campbell identified where they have more work to do in the Legal Profession Act, picking up the settlements and compromises.  Insofar as one looks beyond that there does not seem to be any satisfactory clear explanation and one is left with more abundant caution, as seems to have been assumed as the backstop in the Court of Appeal, but no one has identified anything beyond that which brings us, having pointed out that there was some work to do, to the conclusion of this aspect of it, to say that there is no clear explanation. 

Given the complexity of the range of operation of the various statutes involved it is, in that sense at least, not surprising that a more abundant precaution was taken to specify the statutes again to cover the two situations and at the very least we can comfortably put the proposition that whatever happens there, there is nothing that tells – at least not clearly and, with respect, not really at all ‑ against the overriding proposition of our case, that is, that the elements of 3B(1)(a) being excluded from Part 2 as it now is affect the application of Part 2 and hence the meaning of “personal injury damages” in that part.  May it please the Court.

FRENCH CJ:   Yes, thank you, Mr McKeand.  Yes, Mr Darke.

MR DARKE:   I have nothing in reply.  May it please the Court.

FRENCH CJ:   Thank you.  Mr Simpkins.

MR SIMPKINS:   I am just responding to one of Mr Walker’s points.  Mr Walker submitted that a claim for an effect on a mental state not being an effect that reduced function was not a claim for personal injury damages.  If that submission is correct then it raises the question of how you characterise a claim for, for example, physical injury which includes as one of its heads of loss a claim for an effect on mental state but not of a sufficient kind, eg, loss of dignity.

The submission that we put is that when you have a claim for, for example, personal injury damages, which includes as a head of loss a loss of dignity, the fact that that head of loss is included does not affect the proper characterisation of the claim.  In the Williamson Case there was physical injury and there was a psychological state diagnosed as a chronic adjustment disorder.  The pleading in the appeal book page 5 at paragraph 11 asserted that the physical injury and the psychological state was the outcome of all of the events that were alleged, including the false imprisonment.

The fact that the claim included as an aspect of the heads of loss a claim for damages for loss of dignity in our submission is not relevant to the characterisation of the claim as nevertheless one which was for personal injury damage.  I referred earlier to what fell from Justice Sackville in Radford, and we refer in particular to what his Honour said at paragraphs 124 to 127 relating to there being a single cause of action and the fact that one included a head of loss not necessarily influencing the proper characterisation of the claim.

If Mr Walker is correct and the mere inclusion of a claim for loss of dignity meant that the claim which was being asserted was not a claim for personal injury damages it would have a very dramatic effect.  It would mean that many claims would fall outside the Civil Liability Act and, in our submission, it cannot be right that merely because you have a claim for a head of loss not in the nature of a claim for damages for injury that all of a sudden you are out of the proper ambit of the Act.  For similar reasons we say if the claim also included exemplary damages as an aspect of it, it also ought not properly fall outside the proper ambit of the Civil Liability Act.  If your Honours please.

FRENCH CJ:   Thank you, Mr Simpkins.  The Court will reserve its decision.  The Court adjourns until 10 o’clock tomorrow morning.

AT 3.16 PM THE MATTER WAS ADJOURNED