Williamson v State of NSW - [2010] NSWSC 229

CITATION: WILLIAMSON v STATE OF NSW [2010] NSWSC 229

HEARING DATE(S): Thursday 4 March 2010

JUDGMENT DATE :
30 March 2010

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: (1) That proceedings numbered 3084 of 2007 be transferred from the District Court of New South Wales to the Sydney Registry of the Supreme Court of New South Wales.
(2) A declaration that the costs of the proceedings referred to in Order (1), the subject of the consent Judgment/Order dated 27 December 2008, are not regulated by the provisions of s.338 of the Legal Profession Act 2004.
(3) Subject to paragraph (4), the defendant to pay the plaintiff’s costs of and incidental to these proceedings.
(4) In the event that the defendant seeks to be heard on the order as to costs in (3), grant liberty to apply, any such application to be made within 14 days of the date of this judgment.

CATCHWORDS: DAMAGES - COSTS - recovery of costs - application for declaratory relief - personal injury damages excluded by s.3B, Civil Liability Act 2002 - STATUTORY INTERPRETATION - action for alleged assault, false imprisonment and unlawful arrest - intentional torts excluded - cost capping provisions did not apply - meaning of "personal injury damages" in s.337(1) Legal Profession Act "... the same meaning as in Part 2 of the Civil Liability Act 2002" - statutory interpretation of phrase not limited to definition section in Part 2 but meaning to be derived from companion provisions, including the excluding provisions in s.11A which refers to s.3B of the Civil Liability Act - not limited by fixed cost in s.338, Legal Profession Act 2004

LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
Interpretation Act 1987
Legal Profession Act 2004
Legal Profession Act 1987
Supreme Court Act 1970

CASES CITED: Ainsworth v Criminal Justice Commission (1991-1992) 174 CLR 564
Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
Attorney-General for NSW v Smits (1998) 45 NSWLR 521
CIC Insurance Limited v Bankstown Football Club Limited (1995) 187 CLR 384
Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333
Jabetin Pty Limited v Liquor Administration Board & Ors [2005] NSWCA 92
King v Greater Murray Area Health Service [2007] NSWSC 914
Koh v Ku (2009) 9 DCLR (NSW) 387
Myer Stores Limited v Soo [1991] 2 VR 597
Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286
Regina v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Limited (1953) 88 CLR at 119
State of New South Wales v Ibbett (2005) 65 NSWLR 168
Sydney Water Limited v Industrial Relations Commission of NSW (2004) 61 NSWLR 661(CA)
Trobridge v Hardy (1955) 94 CLR 147
Watson v Marshall & Cade (1971) 124 CLR 621

PARTIES: Jayson WILLIAMSON v
STATE OF NEW SOUTH WALES

FILE NUMBER(S): SC 2009/297844

COUNSEL: P: F Austin
D: M Hutchings

SOLICITORS: P: I V Knight
D: Triumph Legal Services

IN THE SUPREME COURT
OF NEW SOUTH…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 229
Decision Date: 30 March 2010

CaseChat Overview and Summary

Williamson brought an action against the State of New South Wales for alleged assault, false imprisonment, and unlawful arrest. The court was required to determine the applicability of the cost capping provisions in the Legal Profession Act 2002 to the costs of the action, specifically whether the exclusion of "personal injury damages" under s.3B of the Civil Liability Act 2002 applied to the costs of this action. The case hinged on the interpretation of "personal injury damages" as used in s.337(1) of the Legal Profession Act, which refers to the same meaning as in Part 2 of the Civil Liability Act. The court considered whether the exclusion of "personal injury damages" in s.3B of the Civil Liability Act was limited to the definition section or if it could be derived from companion provisions, including the excluding provisions in s.11A.

The court found that the exclusion of "personal injury damages" in s.3B of the Civil Liability Act applied to the costs of this action. The phrase "personal injury damages" was interpreted in light of the companion provisions, including s.11A, which refers to s.3B of the Civil Liability Act. The court held that the exclusion of "personal injury damages" was not limited by the fixed cost in s.338 of the Legal Profession Act and that the meaning of "personal injury damages" in s.337(1) was to be derived from the companion provisions, including the excluding provisions in s.11A. The court also noted that the exclusion of "personal injury damages" was not limited to the definition section in Part 2 of the Civil Liability Act but could be derived from the companion provisions.

The court granted the application for declaratory relief and held that the exclusion of "personal injury damages" in s.3B of the Civil Liability Act applied to the costs of this action. The court held that the exclusion was not limited by the fixed cost in s.338 of the Legal Profession Act and that the meaning of "personal injury damages" was to be derived from the companion provisions, including the excluding provisions in s.11A. The court also held that the exclusion of "personal injury damages" was not limited to the definition section in Part 2 of the Civil Liability Act but could be derived from the companion provisions. The court further held that the exclusion of "personal injury damages" applied to the costs of this action, and the fixed cost in s.338 of the Legal Profession Act did not apply.

The court ordered that the exclusion of "personal injury damages" in s.3B of the Civil Liability Act applied to the costs of this action, and the fixed cost in s.338 of the Legal Profession Act did not apply. The court further ordered that the meaning of "personal injury damages" was to be derived from the companion provisions, including the excluding provisions in s.11A, and that the exclusion of "personal injury damages" was not limited to the definition section in Part 2 of the Civil Liability Act.

Orders