Cross v Certain Lloyds Underwriters; Thelander v Certain Lloyds Underwriters

Leave application 9No party before this Court disputed that the issue as to the restraint on the award of costs was a proper matter to be determined by the District Court judge, nor that his conclusions in that respect were reduced to some form of order. The solicitor for the applicants initially assumed that orders had been made and, on 19 May 2010, within 28 days of that judgment, delivered on 22 April 2010, served notices of intention to appeal. On 7 July 2010, the applicants' counsel expressed doubt as to whether orders had in fact been made. Each application for leave to appeal should have been filed by 22 July 2010, but was in fact filed on 24 September 2010. The respondents did not assert prejudice arising from the delay and ultimately did not oppose an extension of time. That extension should therefore be granted. 10However, the date and terms of the orders in the District Court remain relevant. On 22 April 2010, the primary judge delivered orally a reserved judgment. At the end thereof, his Honour was advised that there were a number of earlier hearings in respect of which costs had been reserved and as to which there were disputes as to the appropriate orders. The transcript reveals a degree of ambiguity as to whether any order was then made. Entries in the District Court file for that day, in the matter of Mr Cross, which is in evidence before this Court, record the following orders: "The Defendant is to pay the Plaintiffs legal costs from 12/7/05. Those legal costs are subject to s 198D of the Legal Profession Act, 1987 ." 11The question of the reserved costs came back before the primary judge on 2 September 2010. No orders of the kind now under challenge were made on that day, his Honour no doubt having before him the notation on the file indicating that such orders had been made on 22 April 2010, as he stated in his opening remarks. It was agreed by the parties that the present application should proceed on the basis that orders were made on 22 April 2010, in respect of each applicant in the terms noted on Mr Cross's file as set out above. 12The substantive issue raised by the second order involves a point of statutory interpretation which will have importance, despite the submissions of the respondents to the contrary, beyond the present cases. It is also a matter upon which judges in the Supreme Court and in the District Court have expressed differing opinions. It is likely that the amounts in issue, even though limited to professional costs, will be not insignificant. There should be a grant of leave to appeal.

Which Legal Profession Act applies? 13Restrictions on recoverable costs in circumstances where there has been an award of "personal injury damages" in an amount less than $100,000 were first introduced with the commencement of the Civil Liability Act 2002 (NSW), on 20 March 2002. The relevant provisions were inserted as a new Division 5B in Part 11 of the Legal Profession Act 1987 . The relevant restriction was in the following terms: " 198D Maximum costs fixed for claims up to $100,000 (1) 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 as follows: (a) in the case of legal services provided to a plaintiff maximum costs are fixed at 20% of the amount recovered or $10,000, whichever is greater .... ... (4) When the maximum costs for legal services provided to a party are fixed by this Division the following provisions apply (subject to sections 198E-198G): ... (b) a court or tribunal cannot order the payment by another party to the claim of costs in respect of those legal services in an amount that exceeds the maximum, (c) in assessing the amount of those costs that is a fair and reasonable amount, a costs assessor cannot determine an amount that exceeds the maximum set by this section." 14The new provisions also contained certain definitions and, relevantly for present purposes: " 198C Interpretation and application (1) In this Division: ... personal injury damages has the same meaning as in the Civil Liability Act 2002 ." 15Amendments to the Civil Liability Act , made in November 2002 by the Civil Liability (Personal Responsibility) Act 2002 (NSW) ("the Personal Responsibility Act "), provided in Sch 4.5 an amended definition, in the following terms: " personal injury damages has the same meaning as in Part 2 of the Civil Liability Act 2002 ." 16It was assumed that the Legal Profession Act 1987 applied in respect of the costs orders in the present proceedings, although that Act had been repealed from 1 October 2005 by the Legal Profession Act 2004 (NSW) ("the 2004 Act"). The 2004 Act contained savings and transitional provisions: see Schedule 9. Clauses 3 and 18 provided: " 3 General saving and transitional provision ... (3) Without limiting subclauses (1) and (2), if a provision of the old Act that corresponds to a provision of this Act would, but for its repeal by this Act, have applied in relation to anything done or being done or in existence before the commencement day, the provision of the new Act applies in relation to that thing, and so applies with any necessary adaptations. (4) This clause does not have effect to the extent that other provision is made by this Schedule or that the context or subject-matter otherwise indicates or requires, and has effect subject to the regulations. ... 18 Client information and legal costs (1) Subject to subclauses (2) and (3), Part 3.2 of this Act applies to a matter if the client first instructs the law practice on or after the commencement day, and Part 11 of the old Act continues to apply to a matter if the client first instructed the law practice in the matter before that day." 17The provision with respect to maximum costs for damages under $100,000 appears in the 2004 Act in Part 3.2, Division 9. The terms of s 338(1)(a) and (4) are relevantly identical to the old s 198D, set out at [13] above. The amended definition of "personal injury damages" is now contained in s 337 of the 2004 Act. 18The limitation on costs only crystallised into a constraint relevant to the present parties when judgment was given in the respective amounts of each applicant, or when the costs order was made. Those judgments were not delivered until 27 November 2009. The costs orders were made on 22 April 2010. The continued operation of s 198D depends on the effect of Sch 9, cl 18. That depends on several interrelated aspects of the terminology. 19First, with the exceptions referred to in sub-cll 18(2) and (3) which do not affect the construction of sub-cl 18(1), sub-cl 18(1) applies to any "matter" where the client first gave instructions before the commencement of the 2004 Act. The term "matter" may be understood to refer to the scope of any advice or assistance in respect of which a client seeks legal services from a law practice. In Part 3.2, the term "matter" is widely used in Divs 2 and 3, dealing with the application of the Part and disclosure requirements as to costs, and in Div 5, dealing with costs agreements. It is understandable that the substantive provisions as to disclosure and agreements would not apply where instructions had been given before the 2004 Act commenced. Those provisions could affect assessments undertaken in relation to costs of such services and it therefore makes sense that assessments of costs incurred in such circumstances also take place under the new Act only where the disclosure and agreement provisions of the new Act apply. Division 9, in which s 338 appears, is headed "Maximum costs in personal injury damages matters". The heading for the Division forms part of the Act: Interpretation Act 1987 (NSW), s 35(1). Its use of the term "matters" permits the conclusion that cl 18 picks up Division 5B of the 1987 Act. 20Secondly, Part 11 of the 1987 Act was concerned with legal costs in various aspects. Liability for costs will arise either between a client and his or her lawyer or in respect of the liability of another party who is ordered to pay such costs, usually (though by no means always) the unsuccessful party in civil litigation. From the point of view of a plaintiff, the term "matter" can be understood as the availability of compensation for an injury, which would encompass the whole relationship between the plaintiff and his or her lawyers. For the defendant, on the other hand, as the party paying the plaintiff's costs, the "matter" is its dispute with the successful plaintiff. The point is illustrated in the present case by the fact that the costs order related only to legal costs incurred after the joinder of AVS, being the respondent's insured. However, as that dispute arose before the commencement of the 2004 Act, it is unnecessary to answer the present question. 21The third question concerns the meaning of the clause, "Part 11 of the old Act continues to apply". Assuming for present purposes that the matter is only the dispute between AVS (and its insurer respondents) and the plaintiffs, it is apparent that some provisions in Part 11 did apply, as at 1 October 2005, but others did not. On one view, s 198D did not apply until it was possible to say that the amount recovered in the proceedings did not exceed $100,000. That could not be known until damages were assessed. At least until that event occurred, (and possibly until a costs order was made), arguably the provision capping recoverable costs did not apply and therefore could not "continue to apply". Assuming that to be the case, there remains a question as to whether the transitional provision renders the whole of Part 11 applicable if any provision thereof has had operative effect, or only if the particular provision in question has had that effect. 22The fourth question is whether, if particular aspects of Part 11 were engaged before 1 October 2005, other aspects can be engaged thereafter, so that Part 11 is treated as a discrete entity rather than a series of independent provisions. 23Because the operative provisions in this case are the same in both Acts, it is tempting to leave unresolved the question as to which Act applies. However, in some cases there will be relevant differences; for example, provision is made in s 338A of the 2004 Act in relation to recovery of an "additional amount", which is not found in the 1987 Act. It is also possible that the applicable provisions of the Civil Liability Act will depend on whether or not the repealed Act is engaged. Taking into account all the factors referred to above, the better view is that the "matter" engaged in the present case is the claim for party/party costs. In that respect, the entitlements and liabilities do not depend on events which predated the judgments. There was, for example, no offer of compromise relied upon as a basis for indemnity costs cf s 198F. Accordingly, in my view (although it will not affect the following conclusions) the provisions of the 2004 Act apply. It is nevertheless convenient to address one additional argument as to the ambulatory operation of s 198D, in case the foregoing analysis is wrong. It will also be convenient to refer without discriminating to "the Legal Profession Act ", where the discussion applies to both.

(a) the issue 24The operation of s 338 depends upon the meaning of "personal injury damages" in Part 2 of the Civil Liability Act . That is the core issue in the present dispute. Section 11 of the Civil Liability Act contains definitions for the purposes of Part 2. In particular: " personal injury damages means damages that relate to the death of or injury to a person." 25If the matter ended there, as the respondents submit, s 338 would apply to proceedings resulting in an award of damages, whether or not Part 2 itself of the Civil Liability Act applied to those damages. That, the applicants submit, would be a surprising result. Properly understood, the applicants argue, to give the reference to personal injury damages in the Legal Profession Act , the "same meaning" as in Part 2 of the Civil Liability Act, account must be taken of the application of Part 2, which is identified in s 11A. That section is both expansive and restrictive. It states that the Part applies whether the claim is brought in tort, in contract, under statute or otherwise: s 11A(2). It prohibits a court from awarding damages or interest in damages contrary to Part 2: s 11A(3). Critically for present purposes, it excludes from the operation of Part 2 an award that is excluded by s 3B: s 11A(1). Section 3B now states, relevantly for present purposes: " 3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person-the whole Act except: (i) section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)) ...." 26Other exceptions in respect of intentional acts cover Part 7 and Part 2A of the Civil Liability Act , which will be considered below. However, ss 15B and 18(1) are to be found in Part 2 of the Civil Liability Act . Section 15B relates to damages for loss of capacity to provide domestic services and s 18(1) relates to interest on (relevantly) a claimant's capacity to provide gratuitous domestic services. The two provisions are thus inter-linked. 27The appellants contend that when one looks for the "meaning" of the phrase personal injury damages "in" Part 2 of the Civil Liability Act , one must take account of not merely the definition contained in Part 2, but also the operation of Part 2. Were it otherwise, the definition in the Legal Profession Act could either have repeated the simple definition contained in s 11 of the Civil Liability Act (without cross-reference to that Act) or it could have identified the relevant meaning by reference to the definition in s 11, rather than by reference to Part 2 more generally. This conclusion is supported, it was submitted, by the fact that the provisions as to costs were inserted in the Legal Profession Act by the Civil Liability Act itself and amendments to those provisions have tracked amendments to the Civil Liability Act . 28Arguments to similar effect were accepted by Truss DCJ in Koh v Ja Kil Ku [2009] NSWDC 264 at [29]-[30] and, more recently, by Hall J in the Common Law Division in Williamson v State of New South Wales [2010] NSWSC 229 at [51]-[55].

(b) relevant principles of construction 29The Court received limited assistance as to the proper approach to construing legislation which picked up for its own purposes, a definition from another Act. The case cannot be determined without addressing that question. When discussing the principles, it is convenient to refer to the Act being applied as the "operative" Act or statute, and that from which the definition or meaning of a particular term is extracted as the "source" Act or statute. 30The proper approach to the incorporation of a term "as defined in" another Act was discussed in the Producers' Co-operative Distributing Society Ltd v Commissioner of Taxation (NSW) [1944] HCA 39; 69 CLR 523, particularly in the judgments of Latham CJ and Dixon J. The relevant taxation legislation in New South Wales (the operative Act) provided an exemption from taxation for the income of a rural society if its principal business were "the manufacture, treatment or disposal of the agricultural products (as defined in [the Co-operation Act ]) or livestock of its members". The phrase "agricultural products" was defined in the Co-operation Act (the source statute) as "products of any rural industry", the term "rural industry" being separately defined. There was no doubt that the taxation legislation, in picking up the definition of "agricultural products", also picked up the definition of "rural industry" in the source Act. Latham CJ noted at 531-532: "It has been held that where a section of one Act is incorporated in another Act, reference may be made to other sections of the earlier Act for the purpose of interpreting the section so incorporated .... Whether or not this principle can be reconciled with that stated in Wood's Case , it appears to me that the incorporation of a definition of a particular term stands upon a different footing from the incorporation of a section of an Act. 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. In the present case the definitions in the Co-operation Act , s. 5, are prefaced by the words, 'unless the context or subject-matter otherwise indicates or requires.' Context or subject matter may modify in a particular provision the prima facie meaning of a defined term, but cannot modify or affect in any way the definition itself which is introduced into the later Act. If, however, it were proper to consider, not merely the relevant definitions as set forth in the Co-operation Act , but other provisions in the Act as possibly explaining, extending or limiting those definitions, then the same conclusion would, in my opinion, be reached ...." 31Dixon J took a somewhat broader approach at 536: "It is correct, I think, that we are to give the definitions of 'agricultural products' and of 'rural industry' the same meaning as they bear and the same combined operation as they have standing in s 5 of the Co-operation Act . It is also correct that if in the main provisions of that Act we find a context giving any guidance as to the meaning or application of such a phrase in the definition as 'products of the use ... of land' we should refer to it and in interpreting the definition give the context as much effect for the purpose of the income tax exemption as for the purpose of the Co-operation Act ." 32Neither the other member of the majority (Williams J), nor the dissentients (Rich and Starke JJ) entered on this discussion. When the matter went to the Privy Council, however, the opinion delivered by Lord MacDermott, did advert to the issue: Producers Co-operative Distributing Society Ltd v Commissioner of Taxation (NSW) [1948] AC 210; (1947) 75 CLR 134 at 137: "... [T]he appellant sought to draw from a detailed examination of the substantive provisions of the Co-operation Act an inference as to the meaning proper to be attributed to the definition of agricultural products as that definition is incorporated in the Income Tax Management Act . Upon the legitimacy of such an examination and its effect, if it be admissible, their Lordships agree with the opinion expressed by Latham CJ [at pp 531, 532]. To interpret the incorporated definition in the second Act by an analysis of its exact meaning in the substantive provisions of the first Act, where that definition applies only unless the context or subject-matter otherwise indicates or requires, is not a rational procedure. 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 . They may explain the general meaning and application of the definition." 33It is clear from the discussion in the three opinions expressed above that, even where the operative statute adopts the phrase "as defined in" the source statute, it is not sufficient just to take the words of the definition from the source statute and apply them as they stand, without any regard for their context in the source statute. 34In Henry v Motor Accidents Insurance Board [2005] TASSC 62; 13 Tas R 340, the Full Court of the Supreme Court of Tasmania had to consider whether a claimant for certain benefits was participating in a "motor vehicle race" because practicing, whilst driving around a racetrack in preparation for a race in which he proposed to participate. An exception in the benefit-conferring statute operated in respect of a motor vehicle race and provided that that phrase "has the same meaning as it has for the purposes of Division III of Part VI of the Police Offences Act 1935 ": see legislation set out in Henry at [16]. In dealing with the submission that the word "practice" in the definition could have one meaning in the source Act and a different meaning in the operative Act, Blow J (with whom Crawford J agreed) stated at [29]: "[Counsel] relied on comments made by Latham CJ in Producers' Co-operative Distributing Society ... at 531 as authority for the proposition that, when a definition in one statute is imported into another, it is not proper to consider any provisions of the original statute other than the definition. I think that case is distinguishable. It related to the meaning of the expression 'agricultural products (as defined in that Act)', but the provision importing the definition of 'motor vehicle race' ... is very differently worded. ... Because of the wording of that provision, I think that the term 'motor vehicle race' should be interpreted by reference to the other provisions of the relevant Division [in which it was found], for the purposes of both [Acts]." 35Counsel's description of the effect of the comments of Latham CJ (as recounted by Blow J) was, in my view, too narrow, for reasons already noted. However, I would accept the further proposition that "has the same meaning as it has for the purposes of" permits a broader inquiry than the phrase "as defined in". The language of the Legal Profession Act "has the same meaning as in" is close to the language discussed in Henry's case . These authorities support the proposition that the proper construction of the phrase "personal injury damages" may take account of the operation of that phrase in the Civil Liability Act , and does not merely pick up the words of the definition.

(c) construing the source statute - as enacted 36It is necessary to consider contextual aspects of both Acts. However, primary consideration should be given to the source statute (Part 2 of the Civil Liability Act ) to identify the meaning, which must be "the same" in the operative Act (the Legal Profession Act ). It is also helpful to address the operation of the Civil Liability Act chronologically. The first task, therefore, is to identify the meaning of "personal injury damages" in the Civil Liability Act as enacted. This task has three elements: (i) to identify the relevant language; (ii) to identify the relevant purpose, and (iii) to find assistance, if any, in the legislative history. 37Sections 198C and 198D, as noted above, were inserted in the 1987 Act by the Civil Liability Act as originally enacted. At that stage, s 198C(1) provided: " personal injury damages has the same meaning as in the Civil Liability Act 2002 ." 38There was no reference to "Part 2 of" of the Civil Liability Act as later appeared both in s 198C and now in s 337, as set out at [15] above. The substantive provisions of the Civil Liability Act , as enacted, were all contained in Part 2, relating to personal injury damages. The definitions contained in Part 1, s 3, thus applied to the whole Act. The application of Part 2 was defined in s 9 which provided, so far as presently relevant: " 9 Application of Part (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. (2) The following awards of damages are excluded from the operation of this Part: (a) 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 ...." 39There is no doubt that the purpose and effect of the Civil Liability Act was to limit claims for personal injury damages, in identified respects. The purpose and intent of the cost-capping provision was discussed by this Court in Newcastle City Council v McShane (No 3) [2005] NSWCA 437; 65 NSWLR 155. As explained by Mason P at [24]: "Mr Garling SC, representing the [appellant], correctly pointed out that a consequence, and undoubted intent, of the capping provision was that the lawyers representing both plaintiff and defendant in small personal injury claims within the scope of the Division would know from the outset that recoverable fees as between the parties would be capped as provided in s 198D if the amount ultimately recovered on the claim did not exceed $100,000. The lawyers could protect themselves and their clients in three broad ways: first, by negotiating a costs agreement as between lawyer and client (s 198E); secondly, by making a reasonable offer of compromise (s 198F) and thirdly, by seeking a limiting order at the end of the process in a proper case (s 198G). Beyond this, the legal services garment would have to be cut to suit the cloth. I accept this extrapolation of legislative purpose from the combination of the text and the Second Reading speech." 40The words italicised in this passage (not emphasised in the original) indicate that this Court had, at least implicitly, accepted the construction of s 198D proposed by the appellant in the present proceedings. To that extent, however, the comment in McShane was obiter, the specific point not arising in that case. It is convenient to make reference to certain passages in the Second Reading Speech, not to cast doubt on the inferences drawn by Mason P in McShane , but to demonstrate that nothing was said which was inconsistent with the words italicised in the extract set out above. 41A Ministerial Statement made by the Premier (Mr Carr) on 20 March 2002 was entitled "Public liability insurance". The statement covered reforms intended to be included in the Civil Liability Act , both as initially enacted and as amended by the Personal Responsibility Act of November 2002. In respect of costs, the Premier made the following comment, read in its context: "We also propose requiring plaintiffs to provide expert evidence of negligence up front. This might have particular application in professional negligence claims but could also extend more broadly. It is important that the cost of litigation not be driven up by long cases that should never have been brought. One of the problems in this area appears to be the number of small claims that are argued in a way that drives up legal costs and makes insurance more expensive. A way to address this is to cap legal costs for small claims to a proportion of the claim. This will mean that no one is prevented from bringing a small claim but the cost of arguing the claim must be kept at a realistic level. Another way to address the problem is the introduction of thresholds to preclude trivial claims." 42It is clear from the context, and referring to one of the problems "in this area", that the focus of the Ministerial statement was negligence claims (and particularly public liability insurance therefor). 43On 7 May 2002, the Premier announced the release of the Government's draft Civil Liability Bill. He summarised the issues covered, by reference to the reforms announced on 20 March. He stated in part: "The Bill introduces greater consistency across all categories of damages for personal injury. The Bill also imposes additional requirements on lawyers to ensure they are punished if they encourage unmeritorious claims. ... The Bill also limits the costs plaintiffs' lawyers are allowed to charge for smaller claims. This will stop over-servicing on small claims. It will prevent legal costs forming such a large proportion of small claims and driving up insurance costs." 44This Court was not taken to those statements; nor was it taken to any other material in the public arena which might have given context to the concerns about the effect of costs with respect to small claims (or, more accurately, costs with respect to claims resulting in small awards of damages). 45Nor is assistance obtainable from the Final Report of the Commonwealth committee set up on 2 July 2002 (under the chairmanship of Justice Ipp) to review the law of negligence. The Final Report was not delivered until 30 September 2002, well after the drafting and enactment of the original Civil Liability Act . The recommendation in respect of "legal costs of smaller claims" (at pars 13.15-13.18) can therefore have little bearing on the present issue. (The cost-capping provision recommended in the Personal Injuries Proceedings Act 2002 (Qld), s 56, preferred by the Ipp Committee, does not apply to intentional torts: s 6(4).) 46In the Second Reading speech on the Civil Liability Bill, the Premier asserted that the reforms (described as "stage one of the Government's tort law reforms") were vital in order to overcome "the damage that the public liability crisis is doing to our sporting and cultural activities, small businesses and tourism operators, and our local communities": Hansard, Legislative Assembly, 28.05.2002, p 2085. The Premier continued: "These reforms are urgent .... But stage two will introduce broad-ranging reforms to the law of negligence. Stage two will reform an area of the law that Parliament has not previously addressed. The reforms that I am introducing today in stage one are tried and tested: they have worked in health care liability, in motor accidents and in workers compensation. In contrast, stage two is uncharted waters. We need to take the time to get it right. There are fundamental rights involved in what we are drafting and no one wants to deprive the genuinely deserving of compensation." 47Mr Carr then outlined the principle features of the legislation. He stated: "Under clause 9 the Bill will apply to awards of personal injury damages. This includes personal injury damages awards made in public liability claims and health care claims. Clause 9(2) sets out the awards that are excluded from the operation of the bill. Importantly, intentional acts done with intent to cause injury or death or acts involving sexual assault are excluded. This exclusion ensures that the compensation for injuries arising from serious criminal acts is not limited by the bill." 48Four paragraphs later, the Premier continued: "I turn to the amendments to the Legal Profession Act . These provisions have been amended since the Government released the consultation draft of the Bill. The cap on plaintiff lawyers' costs for claims under $100,000 will be the greater of $10,000 or 20 percent of the amount recovered by the plaintiff. The cap has been extended to the defendant lawyers' costs where it will be the greater of $10,000 or 20% of the amount claimed by the plaintiff. ... 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." 49It is clear that the cost-capping provisions were seen as part of a single package, having the same justification as the controls being imposed on awards of damages. There is no basis, either in the language of the Second Reading speech, or in terms of the policy underlying the legislation, to impose the cost-capping regime on all claims for personal injury damages, however they might arise, without reference to the carefully crafted exclusions in s 9(2) of the Civil Liability Act itself. As originally enacted, the preferable view is that the definition in s 198C of "personal injury damages" took account of the meaning of that term, not merely in the definition, but also by reference to the application section, of the Civil Liability Act . 50Before inquiring whether that conclusion must be varied in the light of subsequent events, it is necessary to note that the commencement of the legislation was backdated. Although the date of assent to the Civil Liability Act was 18 June 2002, the date of commencement was 20 March 2002. That was the date of an announcement by the Premier as to the intended operation of the legislation. The costs-capping provisions were also backdated, commencing with respect to legal services provided on or after 7 May 2002, being the date on which a consultation draft of the Civil Liability Bill was released. 51None of the Ministerial Statement, the Second Reading speech, the explanatory notes, nor the Civil Liability Act itself expressly states that the costs-capping provisions apply to intentional torts which are not covered by Part 2 of the Civil Liability Act . The cross-reference, picking up the "meaning" of civil liability damages in the Civil Liability Act (and later in Part 2 thereof), provides no clear indication that the definition alone was to be picked up, so that they would achieve a broader scope of operation than the Civil Liability Act itself. 52The right to recover costs from an unsuccessful defendant is not a common law right, but it is part of the essential system in respect of civil actions arising under the general law, which are governed by rules permitting an order that costs follow the event, in the absence of some reason to make a different order. As explained by Mason P in McShane , a submission that the legislation must be construed strictly "because its effect is to wind back the common law rights of injured plaintiffs is ... unpersuasive both as to its premise and its intended goal": at [30]. Further, the recovery of party/party costs is not in any case expected to provide the successful party with a full indemnity as to legal costs incurred in maintaining proceedings. In addition, the usual costs rule has been substantially qualified by statutory regimes for offers of compromise, with costs consequences where an offer is refused and not bettered at trial. However, the justification for the present cost-capping provisions where, despite liability and damage being established, the recovery is below the specified figure, is different in the case of negligence from that in the case of intentional torts. There is less reason to relieve an intentional tort-feasor, who has not made an appropriate offer of compromise, of part of the responsibility for the resultant expense incurred by the plaintiff, than in the case of a careless tort-feasor. There being no attempt to justify such restrictions in relation to intentional torts, the better view is that the provisions were not expected to apply to them.

(d) the source statute - subsequent changes 53The Civil Liability Act was expanded in November 2002 to take account of what the Premier had described as "stage two" of the proposed torts law reforms: see Personal Responsibility Act . The "principal amendments" made by the Personal Responsibility Act (Sch 1) added several new parts, but are not presently relevant. The relevant amendments came in Sch 2, entitled "Consequential and other amendments". These amendments had two effects: the first was to remove the definition of "personal injury damages" from s 3 and insert it in the first section of Part 2 (s 11). The second relevant alteration was to remove the provisions dealing with the application of Part 2 into Part 1, so that s 9(2) became a new s 3B, dealing with civil liability excluded from the Act. As then enacted, s 3B relevantly provided: " 3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct-the whole Act except Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, ...." 54The drafting of s 3B(1)(a) is awkward but clear. The effect of this amendment was partly structural, taking into account the broader operation of the amended Civil Liability Act, but also gave one new part of the Act (not Part 2) work to do in respect of intentional torts. The changes do not themselves indicate any departure from the policy or purpose of the legislation as originally enacted. The Personal Responsibility Act also amended the 1987 Act, so that s 198C thence forward took the form set out at [15] above. Previously, the definition in the Civil Liability Act had appeared in Part 1 and the application provision in Part 2: those circumstances were now reversed. The explanatory notes to the Personal Responsibility Bill provide an overview of the Bill in some detail, but merely note "a consequential amendment to the Legal Profession Act 1987 ". 55The Civil Liability Act remained in that form until 1 October 2005, as did the 1987 Act. The first amendment to the key provisions of the Civil Liability Act discussed above came with the Civil Liability Amendment Act 2006 (NSW) ("the 2006 Amendment Act"). The 2006 Amendment Act, amongst other variations, imposed limitations on the damages which might be awarded for loss of capacity to provide domestic services. That provision, together with the prohibition on awards of interest on such damages (to be found in s 18(1)(c)) thence forward operated with respect to personal injury damages for intentional acts. The question is whether personal injury damages now had a meaning for the purposes of Part 2 of the Civil Liability Act which included reference to damages for intentional torts. 56A cost-capping provision can only operate with respect to "the amount recovered on a claim for personal injury damages": it cannot operate with respect to part of the claim. However, if the argument outlined above is correct, and the cost-capping provisions did not apply in respect of damages with respect to intentional torts until the commencement of the 2006 Amendment Act, on 20 June 2006, it is untenable to suggest that a different result applied thereafter. The variation was minor: to give it such an unforeshadowed, and presumably unintended consequence, should not be countenanced.

(e) the terms of the operative Act 57It is then necessary to turn to the provisions of the Legal Profession Act . Since it was first inserted in the 1987 Act by the original Civil Liability Act , s 198C has had its own set of exclusions in sub-s 198C(2). That provision, as originally enacted, read as follows: "(2) This Division does not apply to the following costs: (a) costs payable to an applicant for compensation under Part 2 of the Victim's Support and Rehabilitation Act 1996 in respect of the application for compensation, (b) costs for legal services provided in respect of a claim under the Motor Accidents Act 1998 or Motor Accidents Compensation Act 1999 , (c) costs for legal services provided in respect of a claim for work injury damages (as defined in the Workplace Injury Management and Workers Compensation Act 1998 ), (d) costs for legal services provided in respect of a claim for damages in proceedings of the kind referred in section 11 (Claims for damages for dust diseases etc to be brought this Act) of the Dust Diseases Tribunal Act 1989 ." 58This list mirrors, in part, the legislation referred to in s 9(2) of the Civil Liability Act as originally enacted. However, the purpose of s 9(2) was to exclude certain "awards of damages" from the operation of Part 2 of the Civil Liability Act . (The term "damages" was defined in that Act to include "any form of monetary compensation": s 3.) The list in s 198C(2) is more limited and is directed to separate cost-capping regimes. What is important is the inference to be drawn from the exclusions: were they merely identified in s 198C(2) from an abundance of caution, or should it be inferred that the provisions of s 198D would otherwise have applied in respect of those costs, even though the damages for which they provided were not within Part 2 of the Civil Liability Act , because of the operation of s 9(2)? The latter inference would be inconsistent with the conclusion reached above as to the operation of the definition in s 198C(1).

(f) preferred construction 59Although there are undoubtedly factors which favour one conclusion or the other, the preferable view is that parties injured by intentional tortious conduct are not subject to the cost-capping provisions introduced by the Civil Liability Act . First, the language of ss 198C (and now s 337) of the Legal Profession Act giving the term personal injury damages "the same meaning as in" the source statute, is appropriate to permit reference not merely to the definition of that expression in the source statute, but also to the scope of its application in the specified Part. Secondly, the use of cross-referencing, rather than a self-sufficient definition, indicates an intention that the scope of the term is to derive its operation from the source statute. Thirdly, there is no contrary suggestion in any of the accompanying legislative history. Fourthly, the last (negative) conclusion is significant, because of the retrospective operation given to the legislation, to dates when those affected might have had notice of its intended scope. Fifthly, the only contrary indication in the operative statute was an inference available from the statement of its own exclusions in respect of statutory regimes, suggesting that the limitations contained in the Civil Liability Act were not expected to operate. The countervailing explanation is that the purpose and effect of the statutory exclusions in the Legal Profession Act were to avoid any doubt as to whether those cost controls continued to operate. Though arguably unnecessary, if the damages regimes to which they apply were not covered for other reasons, the different subject-matter of each set of exclusions (in s 9(2) and s 198C(2) respectively) is sufficient to explain their apparent overlap. Finally, later amendments to the Civil Liability Act , so as to permit specific provisions to operate with respect to intentional torts could not affect the intention of the legislation as originally enacted, nor would they be sufficient to vary the underlying operation of the existing regime in respect of cost-capping. 60Perhaps because he was differing from the contrary view of Harrison AsJ in King v Greater Murray Area Health Service [2007] NSWSC 914, Hall J in Williamson distinguished the situation under the 2004 Act from that which operated under the 1987 Act, which was not in issue before him: at [51]. Although it is true that the definition has varied as a result of changes to the Civil Liability Act , the underlying principle is not affected. Originally, the substance of the Civil Liability Act was entirely contained within Part 2, dealing with personal injury damages. The expansion of the Act to cover other issues has not significantly varied that regime, for the purposes of the maximum costs provisions. Indeed, there is a sense in which the conclusion with respect to the operation of these provisions, by reference to the current Civil Liability Act , is weaker than the conclusion in respect of the original form of the Act. That is because, in respect of intentional acts, no parts of the original Civil Liability Act were engaged. As indicated above, s 3B now permits the operation of certain limited provisions dealing with damages for provision of domestic services. That limited application is not reflected in s 11A, with the result that, in looking for a single meaning for "personal injury damages" in Part 2, that meaning should be understood to continue to exclude awards of damages resulting from intentional acts, although in one respect Part 2 does apply to such awards.

Application of Legal Profession Act 1987 61It remains to consider whether the 1987 Act, if applicable to this case, would have a different operation. The only basis for such a conclusion would be that, while it should be treated as ambulatory in its effect while in force, it was frozen upon its repeal. As subsequent amendments to the Civil Liability Act have been found not to vary the scope and operation of relevant provisions in the Legal Profession Act , the issue could arise only if that conclusion were wrong. 62The reference to the Civil Liability Act in s 198C of the 1987 Act should, in accordance with s 68 of the Interpretation Act , be taken to be a reference to the Civil Liability Act "as in force for the time being": s 68(1). In the absence of any argument to the contrary, that effect should be given to any Act having continued operation by force of saving provisions in a later Act by which it was repealed.

Appropriate orders 63The question of the appropriate orders to be made by this Court in the light of the conclusion reached above depends upon a correct analysis of what happened in the District Court. The conclusion his Honour reached (Tcpt, 22/04/10, p 7) was as follows: "Now I come to the tricky wording of how I do it. I think I simply do it this way. The Defendants are to pay the Plaintiffs' costs from 4 July 2009 [sic]. Those legal costs are subject to s 198D of the Legal Profession Act 1987 . Does that seem to everyone to cover the area? ... Is everyone agreed? [COUNSEL FOR THE RESPONDENTS]: I think that's right your Honour. HIS HONOUR: I don't see that I need to make any other order. The costs I am told are well in excess of $10,000. I'll simply make that order. I think I'll give the parties leave to uplift the exhibits and if they are not uplifted within 28 days they can be returned. [COUNSEL FOR THE DEFENDANTS]: Your Honour there was one matter I just want to clear up. We did argue all those reserve costs orders that went through the case, is your Honour saying that - ... HIS HONOUR: I'm not going to deal with it today, because I really missed that, that that was - did someone go through each individual costs order. [COUNSEL]: Yes, your Honour, in an affidavit and in submissions, yes your Honour. HIS HONOUR: In your affidavit, you are quite right. I'll reserve that question. [COUNSEL]: I think you might need the exhibits your Honour. ... HIS HONOUR: Thank you, I'll just reserve." 64Despite the tentative nature of the statements, the orders, as noted above, were recorded in the Court file as stated at [10] above. 65Since September 2005, the date of judgments and orders and their entry has been governed by the Uniform Civil Procedure Rules 2005 (NSW), Part 36. A judgment or order is said to take effect "as of the date on which it is given or made", unless the Court orders that it take effect when entered: r 36.4(1). Where costs are to be assessed, the order takes effect when the relevant costs assessor's certificate is filed: r 36.4(2). In either case, the Court may otherwise order: r 36.4(3). 66When judgment is delivered orally, there is room for ambiguity and confusion as to the precise terms of any order and as to whether the order has actually been made. The order as recorded in the Court file varied from that orally pronounced, at least in respect of the date. Whether or not the computerised court record system was operating and was used for the purposes of entry, is unclear. There was no evidence before this Court as to that matter. Nor did the parties seek to take out any orders that may not have been formally entered. They were content to assume that the orders were in the form appearing from the extract from the Court file. This Court should act on that basis. 67In these circumstances, the appropriate orders are: (1) Grant the applicants an extension of time to 24 September 2010 to file applications for leave to appeal. (2) In respect of each, grant leave to appeal. (3) Direct that the applicants file within 14 days notices of appeal in accordance with the draft notices contained in the Court file. (4) Set aside the second order made by the District Court on 22 April 2010 declaring that the legal costs are subject to s 198D of the Legal Profession Act 1987. (5) Declare that the legal costs incurred by the plaintiffs to be paid by the defendants in accordance with order 1 made by the District Court on 22 April 2010 are not subject to s 198D of the Legal Profession Act 1987 , nor subject to s 338 of the Legal Profession Act 2004 . (6) Order that respondents pay the applicants' costs in this Court. (7) If not disqualified pursuant to s 6(7) of the Suitors' Fund Act 1951 (NSW), grant the respondents a certificate under that Act in respect of the costs of the appeals. 68SACKVILLE AJA : Legislation frequently incorporates definitions that cross-refer to other enactments. The technique may be employed when legislation dealing with one topic needs to accommodate a statutory regime dealing with another topic. An example is the Civil Procedure Act 2005 (NSW), which defines (s 3) " motor accident claim " as having the same meaning as " claim " in the Motor Accidents Compensation Act 1999 (NSW). Commonwealth legislation also uses the same technique for much the same reason. The Bankruptcy Act 1966 (Cth), for example, defines (s 5) certain expressions by reference to their meaning in other legislation, such as the Proceeds of Crime Act 2002 (Cth) and the Corporations Act 2001 (Cth). 69A similar technique may be used in the drafting of cognate legislation, particularly where the related statutes are enacted at the same time. This is what occurred in the present case. The Civil Liability Act 2002, as originally enacted, introduced a new regime regulating the award of " personal injury damages ". The Civil Liability Act 2002 also introduced a new costs regime applicable to claims for " personal injury damages ". It did so by enacting Div 5B of Part 11 of the Legal Profession Act 1987 (ss 198C-198 I ). 70There are some dangers in legislation defining terms in this manner. Difficult questions may arise as to the relationship between the two statutes, in particular, whether the context in which the defined term is used in the second statute (containing the actual definition) should influence the construction of the first statute. Further difficulties may arise if the second statute is subsequently amended so as to alter the context in which the defined term applies. 71The present case involves a finely balanced question of construction. The starting point is the Civil Liability Act 2002, as originally enacted. Subject to one matter to which I shall return, the better view would seem to be that the definition of " personal injury damages " in s 198C(1) of the Legal Profession Act 1987 ([14] above) meant personal injury damages of the kind to which Part 2 of the Civil Liability Act 2002 applied. So read, the definition would not extend to a claim for damages for deliberately inflicted personal injuries, since s 9(2)(a) of the Civil Liability Act 2002 excluded an award of personal injury damages for an intentional act from Part 2 of the Civil Liability Act 2002. 72There are three particular considerations supporting this construction of the definition of " personal injury damages " in s 198C(1) of the Legal Profession Act 1987. First, as Basten JA has pointed out, the authorities appear to recognise that it is permissible to take into account the context in which the defined term is used in the second statute (containing the actual definition) in order to give content to the incorporated definition in the first statute: The Producers' Co-operative Distributing Society Ltd v Commissioner of Taxation (NSW) (1947) 75 CLR 134 (PC), at 137, per Lord Uthwatt; (1944) 69 CLR 523 (H Ct), at 536, per Dixon J; Henry v Motor Accidents Insurance Board [2005] TASSC 62; 13 Tas R 340, at [29], per Blow J (with whom Crawford J agreed). 73Secondly, the regime for limiting recovery of legal costs introduced by the Civil Liability Act 2002 (through the enactment of Div 5B of Part 11 of the Legal Profession Act 1987), so it can be inferred, was part of a broader statutory scheme for limiting the costs of personal injury claims. The broader scheme, created by Part 2 of the Civil Liability Act 2002, excluded claims for personal injury damages referred to in s 9(2)(a) of the Civil Liability Act 2002. The scheme therefore did not apply to awards of damages for personal injuries caused by intentional acts. The fact that the restrictions on legal costs claimable or recoverable in connection with " personal injury damages " were imposed by the very same enactment as the restrictions on awards for personal injury damages suggests that each set of restrictions was intended to be co-extensive. 74Thirdly, there would seem to be good reasons why Parliament might consider it appropriate that the regime limiting the recoverability of legal costs should distinguish between personal injury claims founded on negligence and those founded on intentional conduct by the defendant. By this I do not mean that Parliament could not choose to impose restrictions on legal costs recoverable in personal injury claims based on assault or other intentional acts. The point is that personal injury claims founded on negligence provide the quintessential example of high volume litigation conducted or capable of being conducted along largely standardised lines. Moreover, negligence claims are usually made against defendants who have compulsory insurance cover and so attract the attention of legislators sensitive to increases in compulsory insurance premiums. While not everyone would necessarily agree with the policy underlying Div 5B of Part 11 of the Legal Profession Act 1987, the rationale for the legal costs regime imposed by Div 5B is readily apparent. It dovetails with the rationale for the cost-saving regime established by Part 2 of the Civil Liability Act 2002 for personal injury damages claims founded on negligence. 75By contrast with negligence claims, personal injury claims based on the defendant's intentional conduct do not involve standardised high volume litigation. The defendants to such claims are not usually covered by compulsory insurance. Furthermore, the imposition of maximum limits on the recoverability of legal costs in such claims is likely to involve issues different from those arising when limits are imposed on the recoverability of legal costs in negligence actions. As Basten JA has pointed out, the extrinsic materials do not suggest that the enactment of the Civil Liability Act 2002 was prompted by a concern about the damages awarded for the intentional infliction of harm or the legal costs incurred in cases involving such claims. 76The major countervailing consideration to the construction I have suggested is the language of s 198C(2) of the Legal Profession Act 1987. If a claim for " personal injury damages " as defined in s 198C(1) of the Legal Profession Act meant a claim for " personal injury damages " of the kind subject to the operation of Part 2 of the Civil Liability Act 2002, there was no need for s 198C(2) to exclude certain categories of costs from Div 5B. For example, an award of damages in proceedings of the kind referred to in s 11 of the Dust Diseases Tribunal Act 1989 (NSW) was not an award of " personal injury damages " for the purposes of Part 2 of the Civil Liability Act 2002 (because s 9(2)(d) of the latter Act excluded such an award from Part 2). If " personal injury damages " for the purposes of Div 5B of Part 11 of the Legal Profession Act meant personal injury damages of the kind subject to Part 2 of the Civil Liability Act 2002, there would have been no need for s 198C(2) to exclude from Div 5B costs for legal services in respect of a claim for damages of the kind referred to in s 11 of the Dust Diseases Tribunal Act 1989. Such costs would simply have been excluded from Div 5B in any event. The same analysis would seem to apply to the exclusion in s 198C(2)(b) (costs for legal services provided in respect of a claim under the Motor Accidents Act 1988 or Motor Accidents Compensation Act 1999: cf s 9(2)(b) of the Civil Liability Act 2002). 77A partial explanation for the apparent overlap between s 198C(2) of the Legal Profession Act 1987 and s 9(2) of the Civil Liability Act 2002 is that some of the exclusions in the former reflect pre-existing statutory regimes limiting or regulating recoverable legal costs were already in place: Victims Support and Rehabilitation Act 1996, s 35; Motor Accidents Compensation Act 1999, Chapter 6; Workplace Injury Management and Workers Compensation Act 1998, ss 112-116. To that extent, s 198C(2) of the Legal Profession Act 1987 may have been intended to accommodate the existing costs regimes. 78It is not as easy to find an explanation for the inclusion of s 198C(2)(b) (costs provided in respect of a claim under the Motor Accidents Act 1988) or s 198C(2)(d) (costs for legal services provided in respect of a claim referred to in s 11 of the Dust Diseases Tribunal Act 1989). These paragraphs may have been inserted out of an abundance of caution. However, if that is the explanation, it is curious that s 198C(2) contains no reference to costs in respect of personal injury damages claims founded on an intentional act. Awards of personal injury damages based on intentional acts were expressly excluded from Part 2 of the Civil Liability Act 2002 by s 9(2)(a), but, unlike the two categories of awards to which I have referred, were not expressly excepted from the regime established by Div 5B of Part 11 of the Legal Profession Act 1987. 79The considerations identified by Basten JA in [59] lead me, not without some hesitation, to the view that s 198C of the Legal Profession Act 1987 was not intended to bring actions for personal injuries damages based on intentional conduct within the legal costs regime established by Div 5B of Part 11 of the Legal Profession Act 1987. The balance is tipped in favour of that conclusion by the fact that the Civil Liability Act 2002 was evidently intended to address perceived cost overruns in claims for personal injuries damages of the kind dealt with in Part 2 of that Act. 80I agree with Basten JA that if this is the correct construction of the Civil Liability Act 2002 as originally enacted, the subsequent amendments did not alter the meaning of the legislation. 81Accordingly I agree with the orders proposed by Basten JA.

Amendments 15 June 2011 - Correcting CA matter numbers Amended paragraphs: Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2011