Spanos by his tutor Spanos v Thornberry

The costs orders sought by the defendant 14The defendant's notice of motion seeks the following orders: (1)The defendant be granted leave under Uniform Civil Procedure Rules 2005 (NSW) r 18.4 for abridgement of time in which to serve this notice of motion. (2)A direction that this motion be heard on 20 September 2013. (3)A direction pursuant to Uniform Civil Procedure Rules r 42.35(2) that there be no order as to costs in these proceedings. (a)An order, pursuant to section 98 of the Civil Procedure Act 2005 (NSW), that the plaintiff is to bear his own costs in relation to the following: (i)Drafting of the Statement of Claim and Statement of Particulars; (ii)Travel to and from Sydney to attend Sydney District Court to file pleadings; (iii)Attendance at Sydney District Court to file pleadings; (iv)Work in relation to the pre-trial conference on 14 November 2012; (v)The hearing allocation fee; and (vi)All work from 20 November 2012 to date but for the costs of work by counsel for the plaintiff in relation to the infant settlement approval. (b)An order, pursuant to section 98 of the Civil Procedure Act, that the defendant is to pay the plaintiff's costs (up to a cap of $10,000): (i)Of the proceedings up to 19 November 2012 on the ordinary basis, as agreed or assessed, except for the items listed in order 4(a) above; and (ii)In relation to counsel for the plaintiff's work on the infant settlement approval, on the ordinary basis, as agreed or assessed. (c)An order, pursuant to section 98 of the Civil Procedure Act, that the plaintiff is to pay the defendant's costs in relation to this motion. 15The material provided by the parties in support of the application, which was attached to the affidavit of the solicitors for the parties, is set out below. In addition, the tutor (the plaintiff's mother) has provided information about the plaintiff's ongoing distress and concern about the events in question.

The nature and complexity of the proceedings 16The proceedings were estimated to take one day in the District Court. Counsel for the defendant conceded that, whatever version of events was accepted, the plaintiff would succeed in recovering some damages, even if they were nominal. In those circumstances, counsel for the defendant submitted, the matter was appropriate for the Local Court. 17The plaintiff seeks aggravated and exemplary damages, as well as damages, for an assault where little or no physical injury occurred. What kind of damages would be awarded for such an action, and what level of complexity would be involved in a hearing where the result was almost certainly to be judgment in favour of the plaintiff? Counsel for the defendant submitted that if her client's version of events was accepted, damages would be nominal. 18A helpful way to consider such a submission is to consider comparable awards. In Day v Ocean Beach Hotel [2013] NSWCA 250 the issue of appropriate damages for an assault of a minor nature, where there was some misconduct by the plaintiff, which led to the assault, has recently been considered by the NSW Court of Appeal. 19The plaintiff in Day v Ocean Beach Hotel sought leave to appeal from an award of general damages of $2,500, plus aggravated damages of $2,500 and exemplary damages of $5,000. The injuries were transient minor lower back injuries incurred after a security guard pulled a stool from underneath the plaintiff, an intoxicated patron who refused to leave licensed premises, causing her to fall. The trial judge had rejected evidence that this fall aggravated pre-existing problems. The appeal was dismissed. Leeming JA (at [32] - [45]) noted appellate reluctance to interfere with damages awarded by a trial judge in such circumstances, but nevertheless considered the damages were not inadequate, as did Emmett JA (at [4]). 20The factual circumstances of this case are far stronger. Unlike the security guard in Day v Ocean Beach Hotel, the defendant had no supervisory role to play. The plaintiff was a 12 year old boy playing with friends in a park, not a drunk hotel patron. The defendant followed the plaintiff into the male toilets, where she used force on him, in the presence of another minor. Depending on whether or not the plaintiff's mother's evidence is accepted, a factor in the defendant's actions appears to have been prior hostility towards the plaintiff. 21The range of general damages awarded would depend upon which version of events would be accepted. If the evidence of the plaintiff, his mother and the 11 year-old witness were accepted, those damages could be substantial, depending upon the degree to which evidence of the plaintiff's psychologist is accepted. Given the defendant's objections to admissibility of police documents in answer to the plaintiff's Notice to Admit Facts, evidence may have needed to be called from police officers as well. 22Aggravated damages are awarded "for injury to the plaintiff's feelings caused by insult, humiliation and the like": Lamb v Cotogno (1987) 164 CLR 1 at [8]. In the present case, whether the plaintiff's version of having his face thrust into the urinal or the defendant's version of pointing to the urinal and asking making the statements she refers to in the ERISP, an award of aggravated compensatory damages would be likely, and depending on the evidence the sum could range well above the award in Day v Ocean Beach Hotel. 23The question of the availability of exemplary damages is complex. The defendant submits, in accordance with Gray v Motor Accidents Commission, that exemplary damages would not be available at all, because the defendant was convicted of an offence arising from these events. 24In Gray v Motor Accidents Commission, the factor that weighed most heavily with the trial judge in considering whether to award exemplary damages was that the driver had been sentenced to a substantial term of imprisonment for the actions which gave rise to the plaintiff's claim. Gleeson, McHugh, Gummow and Hayne JJ held, at [40]: "[40] Where, as here, the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted, we consider that exemplary damages may not be awarded. We say "may not" because we consider that the infliction of substantial punishment for what is substantially the same conduct as the conduct which is the subject of the civil proceeding is a bar to the award; the decision is not one that is reached as a matter of discretion dependent upon the facts and circumstances in each particular case." 25The reasons for this were that the purpose of exemplary damages is the punishment of the wrongdoer, and considerations of double punishment would otherwise arise (at [42] - [43]). Their Honours went on to note: "[44] Because, in this case, substantial punishment was imposed on the tortfeasor for the conduct which was in issue in the civil proceedings, it is not necessary to decide whether the bar arises only where the punishment is "substantial" or how close must be the similarity between the conduct that is the subject of the two proceedings. [45] No doubt references to "substantial punishment" and to the need for "substantial identity" between the conduct that is the subject of the criminal and civil proceedings may lead to difficult questions of fact and degree. What is substantial punishment? Does it matter if the prosecuting authorities and the offender reach some arrangement about what will be charged and, if charged, admitted? Does it matter if for reasons personal to the accused (or for other reasons) only a nominal penalty is imposed in the criminal proceedings? Does it matter if the criminal offence charged is an offence of strict liability?" 26These principles appear to have hardened into a general rule that exemplary damages are not available in any case where there have been criminal proceedings: Daniels v Thompson [1998] 3 NZLR 22 at 48. There is, however, some ambiguity in the High Court's analysis at [44] - [45], and this is reflected in other jurisdictions such as Canada (see the discussion of this issue in the Ontario Law Reform Commission, Report on Exemplary Damages (1991) at 46). Decisions in the United States are, as is set out in Gray v Motor Accident Commission at [52], in conflict from one jurisdiction to another. It is uncertain whether the law in Australia or the United Kingdom is as clear-cut as counsel for the defendant claims; if so, exemplary damages may not be available for proceedings in the United Kingdom where a defendant or its servant or agent had been prosecuted for "phone hacking" actions if that conduct "gave rise to the plaintiff's claim" (compare the analysis of exemplary damages set out in the Leveson Report, Vol IV, p 1512 at [5.12]).

Whether commencement and continuation in the District Court are warranted 27What would have been the issues warranting these proceedings being conducted in the Local Court at Sutherland? Counsel for the defendant submitted that the court was conveniently located for the parties, and that filing fees and legal costs would have been significantly less. 28The issues before the magistrate in Local Court proceedings would have included the "difficult questions of fact and degree" outlined in Gray v Motor Accident Commission at [45]. This question, as Mr Robison pointed out in his very able submissions, is whether exemplary damages are still available because the "nominal penalty" the defendant received, and whether there were arrangements about what would be charged and admitted. As Mr Keane states there is no transcript of the Sutherland Local Court proceedings, evidence would have to be given by Mr Keane, and possibly persons at Sutherland Local Court, about what occurred. 29In State of New South Wales v Quirk [2012] NSWCA 216 at [169] Tobias A-JA, considering a similar issue in relation to UCPR r 42.34 (whether proceedings should have been commenced and continued in the District rather than the Supreme Court), noted that there was no prior authority as to the application of this rule. The plaintiff in those proceedings had succeeded on some claims but failed in relation to a malicious prosecution claim. Tobias A-JA rejected the submission that the action should have been conducted in the District Court even though there were no complex legal or factual issues and the monetary amount, even if the plaintiff were totally successful (at [171]), would have been below the threshold. The case was nevertheless sufficiently complex to warrant being conducted in the Supreme Court, where the parties had the benefit of a highly experienced judge in the Common Law Division (see also Zandata Pty Ltd v Riley [2013] NSWSC 49 at [94]). 30In the present case, a magistrate sitting in the Local Court at Sutherland would have had to determine damages issues that the High Court has described as difficult. An additional complication is that Mr Keane is unable to remember the name of the magistrate who determined the penalty, and inquiries would need to be made about this in the event that there was some objection to the same magistrate hearing these civil proceedings. The proceedings would require case management and, if the proceedings settled, approval of the settlement, either in the long mention lists that are a feature of Local Court practice, or as special fixtures. These issues would add to the burdens of one of the busiest local courts in New South Wales, if that court had been required to hear these proceedings. 31 By comparison, the District Court offers case management in a special list conducted by the Judicial Registrar, which in this case had the practical result that these proceedings only needed to be listed twice before the Judicial Registrar for a hearing date to be allocated. The District Court provides mediation facilities where the registrars with many years of experience in personal injury claims are able to offer mediations on a speedy and inexpensive basis. Where a claim brought by a person under a legal disability (as the plaintiff is here) is settled, and court approval of the settlement is required, the District Court offers a special weekly settlement list, outside regular court hours, to suit the convenience of practitioners and to reduce costs. For these reasons, many personal injury claims for which the amount of the award falls below the threshold are brought in this court, in the interests of speedy case management and trial. 32Finally, I note that there would be the same ceiling on the costs to be assessed, no matter in which court these proceedings were heard, by reason of the principles explained by the High Court of Australia in Certain Lloyd's Underwriters Subscribing to Contract No 1HOOAAQS v Cross & Thelander [2012] HCA 56. 33Taking into account the complexities of the case and the advantages of the District Court for a person in the plaintiff's position, I am satisfied that the plaintiff was warranted in commencing and continuing these proceedings in the District Court. The application under UCPR 42.35(2) that the plaintiff should not be entitled to his costs is dismissed.

The defendant's s 98 application 34The alternative application brought by the plaintiff is to disallow certain costs pursuant to s 98 of the Act, the nature of which is identified in the list set out in the notice of motion. Two reasons are advanced for this. 35The first is that additional costs (such as travelling and higher filing and hearing fees) were incurred because the proceedings were brought in the District Court at Sydney, instead of Sutherland Local Court. That is essentially an argument based on the same principles as the submission for no costs to be paid pursuant to UCPR r 43.35, and I reject it for the same reasons. 36The second is that items set out in the solicitor and client memorandum of costs attached to the affidavit of Giuseppe Bonura would not be able to be claimed on a party/party basis. It is submitted that claims for travelling, for example, are impermissible. The circumstances in which a claim for travelling may be permitted are described in detail by Professor Dal Pont, "Law of Costs", 2nd ed., 2009 at [17.43] - [17.46]. These are matters which can be dealt with on assessment. It would create confusion and uncertainty for me to refuse to order certain costs, and then require the costs assessor to parse and analyse those findings in relation to the work done. Once again, I note the submission of the parties that the cap on costs for these proceedings is $10,000, a figure well below the costs set out in the assessment attached to Mr Bonura's affidavit.

The plaintiff's application 37In the course of submissions Mr Robison made an oral application for leave to seek a gross sum costs order pursuant to s 98(4) of the Act. The lump sum he sought was $10,000, being the maximum costs available. 38Courts are generally cautious about making gross sum costs orders, tending to make them in specific circumstances where the usual process of costs assessment would be productive of "expense, delay and aggravation": Starr-Diamond v Diamond (No 4) [2013] NSWSC 811 at [8] per Slattery J. Any such application should be brought formally, so that the opposing party has an opportunity to consider specific issues in relation to the sum sought. The assessed bill before me is prepared on a solicitor and client basis, not a party/party basis, which is an additional difficulty. In addition, this costs assessment has been prepared by the solicitors for the defendant, a factor which other judges have considered to be an insufficient guide as to the costs in question: Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11. 39Counsel for the defendant stated that she was not in a position to meet such an application. As I indicated to Mr Robison after hearing this application outlined, it is not possible, in the absence of a properly itemised party/party memorandum, and notice to his opponent, for such an application to be dealt with today. These are my reasons for refusal to grant leave to the plaintiff to bring such an application.

Orders (1)Grant leave under Uniform Civil Procedure Rules 2005 (NSW) r 18.4 for the defendant's notice of motion to be returnable instanter. (2)Defendant's notice of motion dismissed. (3)Costs of the notice of motion to be the plaintiff's costs in the proceedings. (4)Pursuant to ss 75 - 77 Civil Procedure Act 2005 (NSW) I approve the settlement set out in the Consent Judgment filed in court today. (5)Judgment for the plaintiff for the sum in paragraph 1 of the Consent Judgment. (6)Note the provisions of paragraphs 3 - 4 of the Consent Judgment. (7)Defendant pay plaintiff's costs of these proceedings, including the notice of motion, as agreed or assessed. (8)The net sum referred to in paragraph 2 of the Consent Judgment is to be paid direct to the NSW Trustee and Guardian for investment until the plaintiff attains the age of 18 years.

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: 11 October 2013