Category Archives: Compensation Lawyers

New South Wales v Williamson [2012] HCA 57

“COSTS – Limit on maximum costs in connection with claim for “personal injury damages” – Legal Profession Act 2004 (NSW), s 338 – Where “personal injury damages” defined to have same meaning as in Civil Liability Act 2002 (NSW), Pt 2 – Whether maximum costs limitation applies to claims for personal injury damages resulting from intentional acts.

COSTS – Limit on maximum costs in connection with claim for “personal injury damages” – Legal Profession Act 2004 (NSW), s 338 – Claim for false imprisonment not claim for “personal injury damages” – Where such claim is included in claim for damages and not severable part of claim, the claim for damages not claim for “personal injury damages”.

STATUTORY INTERPRETATION – Principles – Reading provision in context – Whether, when operative statute adopts term in source statute, account must be taken of operation of term in source statute – Effect of amendments to statute.

WORDS AND PHRASES – “award of personal injury damages”, “claim for personal injury damages”, “false imprisonment”, “maximum costs”, “personal injury damages”, “same meaning”.

Civil Liability Act 2002 (NSW), Pt 2, ss 3B, 11.
Legal Profession Act 2004 (NSW), Pt 3.2 Div 9, ss 337, 338.”

http://www.austlii.edu.au/au/cases/cth/HCA/2012/57.html

In New South Wales v Williamson [2012] HCA 57 (12 December 2012), the High Court of Australia dismissed an appeal against a decision of the NSW Court of Appeal who had dismissed an appeal against a decision of the Supreme Court of NSW in which that court held that Williamson’s costs were not regulated by s338(1) of the Legal Profession Act 2004 (NSW).

Williamson had settled an action against the State for the amount of $80,000 plus costs, as agreed or assessed, for damages in an action that pleaded allegations of trespass and false imprisonment on the part of police officers. Williamson and the State could to agree to costs and the State sought a declaration that the costs they were liable to pay were regulated by s338(1).

Section 338(1) provided that where the amount recovered on a claim for personal injury damages did not exceed $100,000, the maximum costs for legal services provided to a plaintiff were fixed at 20% of the amount recovered or $10,000, whichever is greater.

The High Court dismissed the State’s appeal. It held that actions for trespass are regulated by s338(1) but actions for false imprisonment are not as they are a claim for deprivation of liberty, not personal injury.

Per French CJ and Hayne J at [8]:

‘At least to the extent to which the claim for false imprisonment seeks damages for deprivation of liberty and loss of dignity, it is not a claim for damages for personal injury. Because no part of the lump sum settlement can be attributed to either the respondent’s claim for trespass or his claim for false imprisonment, it is not possible to say of the amount that was recovered that it was “recovered on a claim for personal injury damages”‘.

Lawyers

Sydney, Australia

1300 00 2088

Dey v Victorian Railways Commissioners [1949] HCA 1

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 (22 February 1949).

“Workers’ Compensation – Injury by accident arising out of or in course of employment – Death of worker – Negligence of employer – Option of dependants to apply for compensation or take other proceedings – Award of compensation obtained by widow on behalf of herself and children – Effect of award as barring claim by dependants under Lord Campbell’s Act – Workers’ Compensation Acts 1928- 1946 (No. 3806 – No. 5128) (Vict.)* – Wrongs Act 1928 (No. 3807) (Vict.), Part III. – The 1946 Workers’ Compensation Rules, rr. 8, 81.*
Practice – Supreme Court (Vict.) – Dismissal of action – Abuse of process – Inherent jurisdiction – Rules of the Supreme Court (Vict.), Order XXV., rr. 2, 4.”

http://www.austlii.edu.au/au/cases/cth/HCA/1949/1.html

A widow who had received a workers compensation award for her late husband’s death was not entitled to maintain a compensation to relatives action in her own right but the infant children were competent to sue by their next friend.

Per Dixon J at 91:

“The application [to dismiss proceedings on the grounds of being frivolous, vexatious and abuse of process] is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

Lawyers

Sydney, Australia

1300 00 2088