State of New South Wales v Avery - [2016] NSWCA 147 - NSWCA 2016 case summary — Zoe

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State of New South Wales v Avery

[2016] NSWCA 147

Court of Appeal (NSW)|2016-05-03|Before: McColl JA, Simpson JA

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Source facts

Court

Court of Appeal (NSW)

Decision date

2016-05-03

Before

McColl JA, Simpson JA

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

Background

Mr Avery's claim against the State in the Assault Proceedings was based on an unlawful assault allegedly committed by a police officer on 22 October 2010. Mr Avery's injuries included a broken arm which required surgery. The surgery resulted in complications that delayed Mr Avery's recovery.
Elkaim DCJ heard the Assault Proceedings and found that the State was liable for the assault committed by the police officer. As I have noted, his Honour assessed general damages at $90,000 and awarded Mr Avery $10,000 in punitive damages. His Honour used the term "general damages" because the parties accepted that the assessment of damages in an action for unlawful assault is not governed by the provisions of the Civil Liability Act. [13]
Elkaim DCJ briefly dealt with Mr Avery's claim to interest as follows: [14] "The plaintiff is entitled to interest at 2%. I think this should be levied on half of the general damages. Allowing for two years of interest on $45,000 the result is $1,800". It was common ground in this Court that, although his Honour did not refer to s 100(1) of the Civil Procedure Act, the award of pre-judgment interest was an exercise of the power conferred by that provision.
Elkaim DCJ entered judgment for Mr Avery in the sum of $101,800 and ordered the State to pay Mr Avery's costs of the proceedings on a party and party basis. Since the case took five days to hear, the costs incurred by each party were substantial.
Mr Avery applied to have his costs of the Assault Proceedings assessed. He claimed a total of $133,702.37, made up as follows: $ Professional Costs 70,750.12 (inclusive of GST)

[2]

[7]

The Costs Judgment

The primary Judge pointed out in the Costs Judgment that the practice in personal injuries cases is for the trial judge to make findings for each component of a damages award so that the parties are aware of the amount assessed under each head and can challenge any error on appeal. His Honour cited Haines v Bendall [16] for the proposition that an award of pre-judgment interest pursuant to s 94 of the Supreme Court Act (now s 100 of the Civil Procedure Act) is an "integral element in the attainment of the object of damages, namely, to compensate a plaintiff for injury sustained". Thus an award of interest on past general damages is in the nature of damages and part of the compensation to which a plaintiff is entitled.
In his Honour's view, the fact that s 343(2) of the Legal Profession Act mentions costs before referring to "the addition of interest" supported Mr Avery's position. He pointed out that if s 343(2) covers both pre- and post-judgment interest, a plaintiff who receives a settlement which does not differentiate between damages and interest would have an advantage over a plaintiff who obtains a judgment for the same amount but differentiates between the damages and interest components of the judgment.
The primary Judge said that since pre-judgment interest is a component of the damages awarded to a plaintiff, s 343(2) of the Legal Profession Act cannot be taken to refer to that form of interest. His Honour's view was reinforced by the words "in addition" in s 343(2), which would have no work to do if the sub-section covers both pre-judgment and post-judgment interest. If that was intended, Parliament could simply have said that "no regard is to be had to any interest".
His Honour concluded as follows: "The amount recovered, in my opinion, is the amount of the verdict and judgment entered by the judge in the case, including damages, which were interest on past general, damages. It was not an addition of interest on the total verdict, but an addition of interest in accordance with authority on particular parts of the damages. If this had been a case where there was a claim for past economic loss, there would have been allowance for interest on past economic loss. This would not have been deducted. If this had been a case where [Mr Avery] had paid money for medical expenses, and had been out of pocket for a number of years in relation to that, it may have been that some allowance would have been made for interest on the past loss on the money paid for those expenses. These are all forms of damage … In my opinion, it cannot be that this is one rule for those who go to court and have a judgment entered in their favour by a judge who decides the case, and another rule for those who go to court, have a judge consider their case, and then before verdict is given, settle, and terms of settlement are filed with no indication of what is included for past interest on general damages or other heads of damage. In my opinion, … s 343 should be construed in a way that is in conformity with the broader purposes provided by the statute [that is, to prevent a plaintiff deliberately delaying recovery of the amount of a judgment so as to increase it above the figure of $100,000 by the addition of post-judgment interest]."
Having regard to this conclusion, the primary Judge did not consider it necessary to address the issues raised by the State's cross-appeal.

[9]

The State's Submissions

The State's written submissions contended that the primary Judge erred by elevating common law principles as to the calculation of damages for personal injuries above the plain words of s 343(2) of the Legal Profession Act. His Honour had sought to mould the words of the statute in order to impute to Parliament an intention to implement a particular policy. This was precisely the approach of which French CJ and Hayne J had disapproved in Certain Lloyd's Underwriters v Cross. [17] There was therefore no justification to read a limitation into the plain words of s 343(2) which would prevent the provision applying to pre-judgment interest.
Ms McDonald SC, who appeared with Mr Gration for the State, pointed out that at common law a court has no general power to award interest on damages before entry of judgment. Provisions such as s 100 of the Civil Procedure Act are designed to enable a court to award interest in order to compensate a plaintiff for being kept out of his or her damages award. Such an award requires an exercise of discretion in a plaintiff's favour. Ms McDonald submitted that the statutory mechanism for pre-judgment interest to be awarded to a plaintiff explains the words "the addition of interest" in s 343(2). Although compensating a plaintiff for being kept out of his or her money, an award of interest is made as an addition to the plaintiff's award of damages.
Ms McDonald submitted that the State's construction of s 343(2) of the Legal Profession Act receives support from the provisions of the Civil Liability Act restricting a plaintiff's entitlement to claim interest on damages awards. She relied on s 18(1) of the Civil Liability Act which precludes the award of interest on damages for non-economic loss, gratuitous attendant care services and loss of capacity to provide domestic services.
Ms McDonald recognised that an award of damages for assault is not governed by the Civil Liability Act, but emphasised that s 338(1) of the Legal Profession Act commonly applies to damages awards that are subject to the Civil Liability Act. Both statutes would operate consistently with each other, so she argued, if the Civil Liability Act only allows pre-judgment interest on damages to be awarded in a limited range of cases, and the Legal Profession Act requires any award of pre-judgment interest to be deducted from the "amount recovered" for the purposes of the costs cap imposed by s 338(1) of the Legal Profession Act.
Ms McDonald submitted that there is nothing incongruous in construing s 343(2) to require pre-judgment interest (and costs) to be deducted from the amount of a judgment in favour of a plaintiff, yet not to require any deduction where a plaintiff settles his or her claim for a sum inclusive of interest and costs. She said that it is open to the parties, if they wish to do so, to structure a settlement in a manner that separately identifies the quantum of interest and costs. Ms McDonald also noted that in State of New South Wales v Williamson, the High Court accepted that it is a consequence of Div 9 of Pt 3.2 of the Legal Profession Act that the cost limiting provisions of s 338(1) do not apply to a judgment entered in consequence of a settlement that does not identify how the agreed sum has been calculated.

[10]

Mr Avery's Submissions

Mr Campbell SC, who appeared with Mr Harding for Mr Avery, submitted that the primary Judge correctly concluded that the words "addition of interest" in s 343(2) of the Legal Profession Act refer to the addition of interest after verdict and judgment and not to pre-judgment interest. Mr Campbell contended that it is necessary to give meaning to every word of a statute. Unless the expression "addition of interest" is construed to refer only to post-judgment interest, so he argued, the words "addition of" are superfluous and have no work to do.
Mr Campbell contrasted a judgment which includes an interest component as "an integral element in the attainment of the object of damages" and is therefore compensatory in character, [18] with an entitlement to post-judgment which flows from s 101 of the Civil Procedure Act without the need for any further court order. The latter entitlement is an "addition" to the plaintiff's entitlement to receive the amount due under the judgment.
Mr Campbell supported this contention by submitting that the introductory words of s 338(1) ("amount recovered on a claim") are apt to include all amounts that are in fact recovered by or paid to the plaintiff by virtue of the judgment. These amounts include not only the judgment sum, but any post-judgment interest paid to the plaintiff under s 101 of the Civil Procedure Act. According to this argument, if Parliament intended to confine s 338(1) to the judgment debt and to exclude post-judgment interest, it could have done so simply by saying "[i]f the judgment on a claim for personal injury damages does not exceed $100,000 …".
Mr Campbell submitted that this construction allows ss 338(1) and 343(2) to sit together harmoniously. Section 343(2) is designed to prevent a plaintiff thwarting the overall objective of the legislation, which is to limit the costs of claims for personal injury damages. The provision prevents a plaintiff who obtains judgment for slightly less than $100,000 deliberately delaying enforcement action until accumulated post-judgment interest brings the total amount due to over $100,000.
Mr Campbell rejected the State's suggestion that the construction of s 343(2) he advanced creates a problem similar to the difficulty he said that s 343(2) was intended to avoid. He described as a "chimerical difficulty" the suggestion that a plaintiff might delay bringing a matter to finality in the hope that the delay would cause pre-judgment interest to accumulate and bring an otherwise marginal claim above the costs threshold. Since a plaintiff cannot know in advance precisely the quantum of damages that will be awarded, a delay merely to accumulate pre-judgment interest (assuming the court is prepared to make such an award in view of the delay) is hardly a realistic prospect. In any event, the court has ample case management powers to prevent such abuses.
Mr Campbell invoked the principle that a court should construe legislation so as to minimise the impact on common law rights. The State's construction of Div 9, so he argued, detracts from a successful plaintiff's right to recover the full amount of assessed costs. Mr Campbell also invoked the principle of merger to argue that the costs assessor was not entitled to go behind the judgment. Since Mr Avery's cause of action had merged in the judgment, the assessor could not attempt to unravel its component parts.

[11]

Principles of Construction

There is no dispute between the parties that the approach to the construction of Div 9 of Pt 3.2 of the Legal Profession Act should be that stated in Project Blue Sky Inc v Australian Broadcasting Authority: [19] "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos [20] , Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed. [70] A legislative instrument must be construed on a prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. [71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. … [78] … [T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." [Some citations omitted.]
The difficulty is not stating the relevant principles but applying them to legislation which may be expressed opaquely. In Certain Lloyd's Underwriters v Cross, [21] a case involving Div 5B of Pt 11 of the Legal Profession Act 1987 (NSW) (1987 Act), the predecessor to Div 9, there was no significant dispute as to the principles of statutory construction. However, of the ten appellate judges who addressed the interrelationship between Div 5B of Pt 11 of the 1987 Act and Pt 2 of the Civil Liability Act in this Court [22] and the High Court, five took one view and five another. Statutory construction is not a mechanical task.

[12]

Pre-Judgment Interest

At common law, the courts had only limited power to award interest on damages. That power did not extend to the "general run of cases" such as claims for personal injury damages. [23] Generally speaking, therefore, the authority to award interest on personal injury damages must be found in statute. In New South Wales, s 100(1) of the Civil Procedure Act provides that authority.
An award of interest up to the date of judgment is an award in the nature of damages. [24] The award is an integral element in compensating the plaintiff for the injuries he or she has sustained. Accordingly, the award of damages is compensatory in character and is designed to compensate the plaintiff for being kept out of money theoretically due to him or her from a time prior to the delivery of a judgment.
An award of personal injury damages, subject to statute, covers various heads of damage such as loss of earning capacity, non-economic loss, medical costs past and future, and the need for care services. In exercising the statutory discretion to award interest, the court generally differentiates between the heads of damage. This is because it is necessary to pay due regard to the nature of the detriment and the time for which the plaintiff has suffered the detriment, although "nice apportionment" among the various detriments is not always required. [25]
A plaintiff who seeks to have interest included in the judgment sum must specifically claim interest up to judgment pursuant to s 100(1) of the Civil Procedure Act. [26] If the court includes interest in the judgment entered in favour of a plaintiff, the court's reasons ordinarily record the basis on which interest has been allowed and the calculations made to assess the quantum of interest to be included in the judgment. In practice, therefore, although the court usually gives judgment for an amount inclusive of interest (as in the present case), the interest included in the judgment sum is usually readily ascertainable.

[14]

Legislative Scheme

The legislative history of Div 5B of Pt 11 of the 1987 Act is recounted in the judgment of Crennan and Bell JJ in Certain Lloyd's Underwriters v Cross. [28] Division 5B was carried over into Div 9 of Pt 3.2 of the Legal Profession Act and equivalent provisions are now found in the Application Act. It is not necessary for present purposes to repeat the account of the legislative history of Div 9.
In Newcastle City Council v McShane (No 3), [29] Mason P made general observations about the operation of Div 5B of Pt 11 of the 1987 Act, which apply equally to Div 9 of Pt 3.2 of the Legal Profession Act. The following comments reflect in part Mason P's observations.
The central provision of Div 9 is s 338(1). It fixes a statutory maximum for the costs for legal services provided to a party in connection with a claim for personal injury damages. The cap applies if the "amount recovered" on the claim does not exceed $100,000. Section 343(2) directs that in determining the "amount recovered" on a claim for personal injury damages, no regard is to be had to any part of the amount recovered that is attributable to costs or to the addition of interest.
Subject to certain exceptions, [30] the maximum costs are fixed at 20 per cent of the amount recovered (or $10,000) in the case of a plaintiff and 20 per cent of the "amount sought to be recovered" (or $10,000) in the case of a defendant. Some "dim illumination" [31] is cast on the meaning of the expression "sought to be recovered", by s 338(6). It provides that if proceedings are commenced on a claim, the "amount sought to be recovered by the plaintiff is taken to be the amount sought to be provided by the plaintiff at the hearing".
Section 338(4) applies the statutory cap to:

costs payable as between a law practice and a client (s 338(4)(a));
an award of costs made by a court or tribunal against "another party" (s 338(4)(b); and
an assessment of fair and reasonable costs by a costs assessor (s 338(4)(c)).

The statutory cap applies to legal services provided to a "plaintiff" and to a "defendant". These terms are given extended definitions in s 337(1). A "plaintiff" is a person who makes or is entitled to make a claim for personal injury damages; a "defendant" is a person against whom such a claim is or may be made. Since the statutory maximum applies to law practices providing services to parties prior to the institution of proceedings, Div 9 is not restricted to costs for legal services incurred by parties in and after the commencement of legal proceedings. That this is the intention is reinforced by s 343(1), which expands the meaning of "amount recovered" in s 338(1) to include any amount paid under a settlement, whether or not legal proceedings have been instituted.
The costs cap is capable of operating in a blunt manner. If the "amount recovered" by a plaintiff is precisely $100,000 (as the State says happened in this case), he or she cannot obtain a costs order from an amount greater than $20,000. If, however, the plaintiff recovers $100,005, the statutory cap does not apply. The difference in the recoverable costs, particularly in a factually complex dispute, may be considerable. There is, however, nothing new in legislation which conditions a plaintiff's entitlement to recover costs from a defendant on obtaining judgment for a minimum amount. [32]
Lawyers and their clients can protect themselves from the potentially blunt operation of Div 9 in three ways:

the costs cap does not apply to the recovery of costs payable as between a law practice and a client if they have entered into a costs agreement that complies with Div 5 (s 339(1));
either party to a claim for personal injury damages may make a reasonable offer of compromise which, if refused, opens the way to an order for indemnity costs (s 340(1)); and
the court may order certain services to be excluded from the maximum costs limitation (s 341).

In Newcastle City Council v McShane (No 3), [33] Mason P said that the "obvious purpose" of what is now Div 9 is to promote efficiency on the part of the legal profession and to contain claims costs. His Honour deduced this legislative purpose both from the text of the legislation and the second reading speech of the Premier in introducing the original legislation. [34] In my view, there is nothing in Mason P's analysis that is inconsistent with the approach of the majority in Certain Lloyd's Underwriters v Cross.

[15]

Amount Recovered

It will be recalled that Mr Campbell submitted that the expression "amount recovered on a claim for personal injuries" in s 338(1) refers to the amount actually paid to a plaintiff on a claim for personal injury damages, as distinct from the amount of any judgment entered by the court in favour of the plaintiff. Once s 338(1) is understood in this way, so Mr Campbell argued, the purpose of s 343(2) becomes clear. Its purpose is to ensure that the "amount recovered" by the plaintiff (that is, the amount actually paid) does not include any portion of the amount attributable to costs or to the addition of post-judgment interest.
Mr Campbell's argument did not make it entirely clear whether he was contending that the "amount recovered" in s 338(1) means the amount actually received by a plaintiff pursuant to a judgment (whether more or less than the amount of the judgment) or the amount actually received by the plaintiff over and above the amount of the judgment. I understood him to be submitting that "amount recovered" is equivalent to the amount actually received pursuant to a judgment, whether more or less than the amount of the judgment. I shall proceed on this basis.
It is of course clear that the "amount recovered" in s 338(1) includes any amount paid under a compromise or settlement of a claim, since s 343(1) says as much. But that does not necessarily mean that where a contested claim for personal injuries is finalised by a judgment or order of the court, the amount recovered is the amount actually paid under the judgment or order, rather than the amount of the judgment in favour of the plaintiff.
In support of the contention that the "amount recovered" means the amount actually paid under a judgment, Mr Campbell correctly pointed out that s 338(1) does not say "the amount recovered in a judgment", but refers simply to the "amount recovered". He also pointed out that s 338(1) does not contain any other language explicitly stating that the "amount recovered" is confined to the amount of a court judgment rather than the amount paid by a defendant.
The absence of any express reference to a "judgment" must be taken into account in construing s 338(1). But in my view, where a contested claim for personal injury damages is resolved by a judgment or order of the court, the expression "amount recovered on a claim for personal injury damages" refers to the amount of the judgment or order in favour of the plaintiff and not to the amount actually paid pursuant to the judgment. I reach this conclusion for several reasons.
First, the general principle is that the word "recover" has a technical meaning signifying recovery by means of an enforceable judgment or order of a court, although the word may receive a broader interpretation depending on the statutory language. [35] In the absence of countervailing considerations, the language used in s 338(1) suggests that the provision is intended to apply to the judgment sum awarded by a court on a claim for personal injury damages and not to the amount actually paid to or received by the plaintiff pursuant to the judgment. The fact that specific provision is made in s 343(1) for amounts paid under a compromise or settlement tends to support this interpretation of the language in s 338(1). If the "amount recovered" in s 338(1) means the amount actually paid to a plaintiff on a claim for personal injury damages, there would presumably be no need for s 343(1).
Secondly, had the drafter intended the expression "amount recovered" in s 338(1) to refer to an amount paid to the plaintiff, whether pursuant to a judgment or otherwise, it would have been very easy to say so. Other provisions in Div 9 explicitly distinguish between an "amount recovered" and an "amount paid". Thus s 343(1) states that the "amount recovered" on a claim includes any "amount paid" under a compromise or settlement. Section 338(4)(a) provides that a law practice is not entitled to "be paid or recover" for legal services an amount that exceeds the maximum. The contrast in Div 9 between an amount recovered and an amount paid suggests that, subject to any express provision to the contrary (as in s 343(1)), the "amount recovered" in s 338(1) refers to the judgment or order of a court in favour of a plaintiff, rather than any amount actually paid in satisfaction of the judgment or order.
Thirdly, if the statutory maximum imposed by s 338(1) applies whenever the amount actually received by a plaintiff pursuant to a judgment does not exceed $100,000, the legislation would produce odd results. Not all defendants in personal injury cases are insured. If a judgment proves difficult to enforce, a successful plaintiff wishing to have a costs order assessed may be unable to do so until it is known how much can be recovered under the judgment. Similarly, a costs assessor may not know whether the statutory cap applies to an assessment until the plaintiff has completed enforcement action. This is likely to have the effect, at least in some cases involving substantial costs, of delaying the assessment of costs and finalisation of the litigation. [36]
A law practice is unlikely to face the same difficulties in recovering costs from a client above the statutory cap since it can protect itself by entering into a costs agreement with the client. But if there is no such agreement, a law practice faces difficulties similar to those confronting a plaintiff seeking an assessment of party and party costs. If the "amount recovered" means the amount actually paid under a judgment, it may be unclear for a very long time whether the law practice is subject to the statutory cap.
The present case involves a claim for personal injury damages that was determined by a judgment of the court awarding damages to the plaintiff and not by virtue of a compromise or settlement (which is addressed in s 343(1)). In such a case, for the reasons I have given, I construe the "amount recovered" in s 338(1) to mean the amount of the judgment in favour of the plaintiff and not the amount actually paid to the plaintiff pursuant to the judgment. It follows that where a plaintiff obtains judgment in contested proceedings, the "amount recovered" within s 338(1) of the Legal Profession Act does not include any post-judgment interest paid to the plaintiff.

[16]

Must Pre-Judgment Interest be Deducted?

While I have not accepted Mr Campbell's submission as to the meaning of s 338(1) of the Legal Profession Act, that is not the end of the analysis. It is still necessary to consider whether, in a case where the court has entered judgment in favour of a plaintiff for personal injury damages, s 343(2) requires pre-judgment interest to be deducted from the judgment sum in order to determine the "amount recovered" for the purposes of s 338(1).
Section 343(2) must be read together with ss 338(1) and 343(1). For the reasons I have given, subject to s 343(1), the "amount recovered" for the purposes of s 338(1) does not mean the amount actually paid under a judgment but the amount of the judgment in favour of the plaintiff. The effect of s 343(1) is to include in the "amount recovered" the amount paid under a compromise or settlement. In a particular case, the amount paid under a compromise or settlement might include interest that has accrued after the date the parties entered into the compromise or settlement. For example, the terms of settlement may provide for the defendant to pay an agreed sum by instalments, with interest to accrue at a specified rate on so much of the agreed sum as is unpaid.
In the absence of s 343(2), s 343(1) would presumably mean that the amount actually paid to a plaintiff under a settlement or compromise, including interest on deferred payments, would form part of the "amount recovered" for the purposes of s 338(1). This would allow a plaintiff who agrees to compromise his or her claim for not more than $100,000 to avoid the statutory cap by having interest paid on the settlement sum taken into account in determining the "amount recovered". Section 343(2) prevents this result by providing that in determining the "amount recovered", no regard is to be had to any part of the amount recovered that is attributable to "the addition of interest".
This statutory language is entirely apt to ensure that any interest that accrues and is paid to a plaintiff after the parties compromise or settle the plaintiff's claim is to be disregarded in determining the "amount recovered". The primary dictionary definition of "interest" is "a payment, or sum paid, for the use of money borrowed … or the forbearance of a debt". [37] The expression "any part of the amount recovered that is attributable … to the addition of interest" is therefore appropriate to describe interest that accrues and is paid on the sum that the defendant has agreed to pay to compromise the plaintiff's claim but has not yet been paid in full. To put the point another way, the function of s 343(2) in the statutory scheme is to ensure that where a claim is compromised or settled, the "amount recovered" does not include any post-compromise interest paid to the plaintiff. Contrary to the State's submissions, the reason for s 343(2) using the expression "addition of interest" in s 343 is not to ensure that pre-judgment interest is deducted from the "amount recovered", but to ensure that post-compromise interest paid to a plaintiff is deducted from what otherwise would be the "amount recovered".
I interpolate that I have already expressed the view that, independently of s 343(2), the "amount recovered" in s 338(1) does not refer to the amount paid to the plaintiff pursuant to a judgment or order given or made after a contested hearing. It follows that s 343(2) is not needed to ensure that post-judgment interest is to be disregarded in calculating the "amount recovered", although it is possible that the provision is intended to put the matter beyond doubt. But even if s 343(2) has no application to post-judgment interest, it clearly has work to do in relation to the treatment of post-compromise interest in determining the "amount recovered".
The foregoing analysis suggests that s 343(2) of the Legal Profession Act, when construed in its statutory context, is not directed to whether pre-judgment interest included in a judgment or order of the court is to be deducted from the "amount recovered". Specifically, it suggests that while s 343(2) requires post-compromise interest and perhaps post-judgment interest paid to a plaintiff to be disregarded in determining the "amount recovered", it does not require pre-judgment interest awarded by a court to be deducted.
This conclusion is consistent with the statutory language. If the term "interest" is understood in the sense to which I have referred, the inclusion of pre-judgment interest in a judgment or order is not readily described as "part of the amount recovered that is attributable … to the addition of interest". An award of interest by a court pursuant to s 100 of the Civil Procedure Act compensates the plaintiff for having been kept out of the damages to which he or she is found to be entitled. Until the court exercises its statutory power to award interest, the plaintiff has no accrued entitlement to receive interest on any particular sum or in any particular amount. Indeed the plaintiff has no entitlement to the payment of a particular sum until damages are assessed and orders made. Furthermore, the award of interest and its inclusion in a judgment sum is not a mere mechanical task simply requiring interest at a given rate to be added to a given sum. The court must exercise a judgment as to whether an allowance for interest can and should be made in respect of a head of damage and, if so, how the quantum of interest should be calculated.
As Mr Campbell submitted, if s 343(2) is intended to require both pre-judgment and post-compromise interest to be disregarded in determining the "amount recovered", the wording of the provision is curious. As I have observed, the expression "addition of interest" is apt to describe the calculation required to determine the amount of interest payable on an amount or amounts a defendant has agreed to pay to compromise a claim. It is less apt to describe the process by which a court determines the amount of interest that should be included in a judgment in respect of the heads of damage claimed by the plaintiff. If s 343(2) was intended to apply to pre-judgment interest, it would have been simple to say so. Section 343(2) could have stated that in determining the "amount recovered" no regard is to be had to any part of the amount recovered that represents interest.
For these reasons I think that the direction in s 343(2) of the Legal Profession Act to disregard "any part of the amount recovered that is attributable to … the addition of interest" does not apply to interest included in the judgment sum pursuant to s 100(1) of the Civil Procedure Act.
The construction I favour is consistent with the purpose of Div 9 discerned by Mason P in Newcastle City Council v McShane (No 3). [38] The construction I favour also avoids an apparent anomaly identified by Mr Campbell although I do not regard the avoidance of the anomaly as a decisive consideration. If s 343(2) is construed to require pre-judgment interest to be disregarded, a plaintiff who obtains a judgment after a contested hearing will usually be in a worse position so far as the statutory cap is concerned than a plaintiff who settles the claim. That is because the interest component of the judgment will usually (although not invariably) be ascertainable, while the settlement sum will not ordinarily distinguish between damages and interest. In the latter case it would be difficult to attribute any part of the settlement sum to interest. [39]
It follows from what I have said that the primary Judge was correct to conclude that the costs assessor had erred in law in holding that the pre-judgment interest awarded to Mr Avery in the Assault Proceedings was to be deducted from the judgment sum in order to determine the "amount recovered" for the purposes of s 338(1) of the Legal Profession Act.
It is therefore not necessary to address Mr Campbell's argument that the State's construction of s 343(2) of the Legal Profession Act would involve an intrusion on common law rights or his contention that the costs assessor was not entitled to go behind the District Court judgment. I note, however, that the first argument appears to lack a foundation since no common law right would be infringed and the second appears to overlook s 338(4)(c) of the Legal Profession Act.
I should add that Div 9 gives rise to questions of construction that do not arise in the present case. For example, there may be an issue as to whether "any amount paid under a compromise or settlement" within s 343(1) includes an amount paid to the plaintiff pursuant to a consent judgment. There may also be an issue as to the treatment of an amount a defendant agrees to pay in settlement of a claim but which is not in fact paid. These issues should be left to cases in which they arise for decision.

[19]

Endnotes

Avery v State of New South Wales (District Court (NSW), Delaney ADCJ, 17 August 2015, unrep) (Costs Judgment).
The determination was accompanied by a statement of reasons, as required by s 370(a) of the Legal Profession Act 2004 (NSW) (Legal Profession Act).
Avery v State of New South Wales (District Court (NSW), Elkaim SC DCJ, 29 November 2012, unrep) (Assault Judgment).
See Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282.
By the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act), s 167(a). Section 4 of the Application Act applies the Legal Profession Uniform Law set out in Sch 1 to the Legal Profession Uniform Application Act 2014 (Vic) as a law of New South Wales.
Application Act, Sch 1.
The amounts and the percentages stated in s 338(1) may be varied by regulation s 338(2). No such regulations have been made.
Legal Profession Act, s 337(1).
[2012] HCA 57; 248 CLR 417 (French CJ, Hayne and Kiefel JJ, Crennan and Bell JJ dissenting on this issue).
State of New South Wales v Williamson [2012] HCA 57; 248 CLR 417 at [18] (French CJ and Hayne J); at [44] (Kiefel J); see also Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [41] (French CJ and Hayne J), at [104] (Kiefel J).
See Civil Liability Act, s 3B(1)(a).
See also s 302(2). See now the definition in s 6 of the Legal Profession Uniform Law.
Assault Judgment at [3]-[4].
Assault Judgment at [134].
No issue arises in this Court as to the small adjustment to disbursements, although there is an issue as to whether the assessor should have allowed counsel's fees.
[1991] HCA 15; 172 CLR 60 at 66 (Mason CJ, Dawson, Toohey and Gaudron JJ).
Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [26].
Haines v Bendall [1991] HCA 15; 172 CLR 60 at 66 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[1998] HCA 28; 194 CLR 355 at [69]-[71], [78] (McHugh, Gummow, Kirby and Hayne JJ). The principles were restated by French CJ and Hayne J in Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [23]-[26]; see also at [88]-[89] (Kiefel J), at [68]-[70] (Crennan and Bell JJ dissenting, but not as to the principles to be applied).
(1955) 92 CLR 390 at 397.
[2012] HCA 56; 248 CLR 378.
See Cross v Certain Lloyds Underwriters; Thelander v Certain Lloyds Underwriters [2011] NSWCA 136; New South Wales v Williamson [2011] NSWCA 183.
Hungerfords v Walker [1989] HCA 8; 171 CLR 125 at 149 (Mason CJ and Wilson J), at 152 (Brennan and Deane JJ), at 156-157 (Dawson J).
This paragraph is based on Haines v Bendall [1991] HCA 15; 172 CLR 60 at 66 (Mason CJ, Dawson, Toohey and Gaudron JJ). See also MBP (SA) Pty Ltd v Gogic [1991] HCA 3; 171 CLR 657 at 663 per curiam.
Fire and All Risks Insurance Co Ltd v Callinan [1978] HCA 31; 140 CLR 427 at 132-133 per curiam.
Uniform Civil Procedure Rules, r 6.12(6).
Civil Procedure Act, s 101(4).
(2012) 248 CLR 378 at [55]-[61].
[2005] NSWCA 437, 65 NSWLR 155 at [15] (Giles JA and Hunt AJA agreeing).
Section 338A, for example, increases the maximum costs for some claims heard by the District Court.
Newcastle City Council v McShane (No 3) [2005] NSWCA 437; 65 NSWLR 155 at [15].
The County Courts Act 1867 (UK), s 5, for example, provided that a plaintiff could not recover costs in a County Court action in which judgment was obtained for less than £20, unless a special order was made. In Fergusson v Davison (1882) 8 QBD 470, a plaintiff who recovered £19 2s 7d was deprived of his costs.
Newcastle City Council v McShane (No 3) [2005] NSWCA 437; 65 NSWLR 155 at [23].
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 May 1987 at 2087. The relevant passage is reproduced in Newcastle City Council v McShane (No 3) [2005] NSWCA 437; 65 NSWLR 155 at [22].
Reiter v Commissioner of Taxation [2008] FCA 1068; 113 FCR 492 at 497 (Branson J), citing Wigens v Cook (1859) 141 ER 659 and Fergusson v Davison (1882) 8 QBD 470.
If the defendant has no assets at all, the outcome of a costs assessment may not matter. But a costs assessment may permit the plaintiff to submit a larger proof of debt against the bankrupt estate of a defendant and thus have a greater share of any funds available for distribution among unsecured creditors.
The Macquarie Dictionery (2nd ed, 1990). The definition in The Shorter English Oxford Dictionary (3rd ed 1962) is to similar effect.
See at [64**] above.
See New South Wales v Williamson [2012] HCA 57; 248 CLR 417 at [35] (French CJ and Hayne J, Kiefel J agreeing).

Parties

Applicant/Plaintiff:

State of New South Wales

Respondent/Defendant:

Avery

Legislation Cited (9)

Legal Profession Act 2004(NSW)

Legal Profession Act 1987(NSW)

By the Legal Profession Uniform Law Application Act 2014(NSW)

Legal Profession Uniform Application Act 2014(Vic)

Civil Liability Act 2002(NSW)

Civil Procedure Act 2005(NSW)

Legal Profession Uniform Law Application Act 2014(NSW)

Supreme Court Act 1970(NSW)

Legal Profession Uniform Law Application Act 2014(Vic)

Cases Cited (14)

HEADNOTE [This headnote is not to be read as part of the judgment] This was an application for judicial review of a decision of the District Court. The respondent (Mr Avery) brought proceedings in the District Court against the applicant (the State) claiming damages for assault by a police officer (Assault Proceedings). The District Court gave judgment for Mr Avery for $101,800 (including $1,800 in pre-judgment interest) and ordered the State to pay costs. Mr Avery subsequently appealed to the District Court the decision of the costs assessor, who found that Mr Avery's costs were capped at $20,000 (plus $2,000 GST) by s 338(1) of the Legal Profession Act 2004 (NSW). The primary Judge (Delaney ADCJ) considered that Mr Avery's costs were not capped by s 338(1) and remitted the matter to the costs assessor. Section 338(1) applies where the "amount recovered on a claim for personal injury damages does not exceed $100,000" and s 343(2) states that in determining the "amount recovered" for personal injury damages "no regard is to be had to any part of the amount recovered that is attributable to costs or to the addition of interest". The primary Judge considered that the expression "the addition of interest" in s 343(2) refers only to post-judgment interest, and therefore it was not open to the costs assessor to deduct the pre-judgment interest of $1,800 in determining the "amount recovered". The State sought judicial review of that decision, on the basis that the primary Judge should have construed s 343(2) to require the deduction of the pre-judgment interest awarded to Mr Avery for the purposes of s 338(1). Held, per Sackville AJA (McColl JA agreeing at [1], Simpson JA agreeing at [2]) dismissing the application: (1) The expression "amount recovered" in s 338(1) means the amount of the judgment or order in favour of the plaintiff and not the amount actually paid to the plaintiff pursuant to the judgment. Therefore, where a plaintiff obtains judgment in contested proceedings, the "amount recovered" within s 338(1) does not include any post-judgment interest paid to the plaintiff. [69]-[74], [79] Reiter v Commissioner of Taxation [2008] FCA 1068; 113 FCR 492 at 497 (Branson J); Wigens v Cook (1859) 141 ER 659; Fergusson v Davison (1882) 8 QBD 470. (2) The function of s 343(2) is to ensure that where a claim is compromised or settled, the "amount recovered" does not include any post-compromise interest paid to the plaintiff which is to be disregarded [77]-[79] (3) The direction in s 343(2) to disregard "any part of the amount recovered that is attributable to … the addition of interest" for the purposes of s 338(1) does not apply to interest included in the judgment sum pursuant to s 100(1) of the Civil Procedure Act, being pre-judgment interest. [79]-[84] Newcastle City Council v McShane (No 3) [2005] NSWCA 437; 65 NSWLR 155; New South Wales v Williamson [2012] HCA 57; 248 CLR 417 (4) The primary Judge was correct to conclude that the costs assessor had erred in law in deducting the pre-judgment interest awarded to Mr Avery in the Assault Proceedings from the judgment sum in order to determine the "amount recovered" for the purposes of s 338(1) of the Legal Profession Act. [85], [90]

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