“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.”
In New South Wales v Williamson  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 :
‘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”‘.
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