WILLIAMSON v STATE OF NSW

Supreme Court of NSW|2010-03-04|Before: Hall J, Commission J

CITATION : WILLIAMSON v STATE OF NSW [2010] NSWSC 229

(1) That proceedings numbered 3084 of 2007 be transferred from the District Court of New South Wales to the Sydney Registry of the Supreme Court of New South Wales. DECISION : (2) A declaration that the costs of the proceedings referred to in Order (1), the subject of the consent Judgment/Order dated 27 December 2008, are not regulated by the provisions of s.338 of the Legal Profession Act 2004. (3) Subject to paragraph (4), the defendant to pay the plaintiff's costs of and incidental to these proceedings. (4) In the event that the defendant seeks to be heard on the order as to costs in (3), grant liberty to apply, any such application to be made within 14 days of the date of this judgment.

Civil Liability Act 2002 Civil Procedure Act 2005 LEGISLATION CITED : Interpretation Act 1987 Legal Profession Act 2004 Legal Profession Act 1987 Supreme Court Act 1970

Ainsworth v Criminal Justice Commission (1991-1992) 174 CLR 564 Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 Attorney-General for NSW v Smits (1998) 45 NSWLR 521 CIC Insurance Limited v Bankstown Football Club Limited (1995) 187 CLR 384 Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333 Jabetin Pty Limited v Liquor Administration Board & Ors [2005] NSWCA 92 King v Greater Murray Area Health Service [2007] NSWSC 914 CASES CITED : Koh v Ku (2009) 9 DCLR (NSW) 387 Myer Stores Limited v Soo [1991] 2 VR 597 Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286 Regina v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Limited (1953) 88 CLR at 119 State of New South Wales v Ibbett (2005) 65 NSWLR 168 Sydney Water Limited v Industrial Relations Commission of NSW (2004) 61 NSWLR 661(CA) Trobridge v Hardy (1955) 94 CLR 147 Watson v Marshall & Cade (1971) 124 CLR 621

PARTIES : Jayson WILLIAMSON v STATE OF NEW SOUTH WALES

COUNSEL : P: F Austin D: M Hutchings

SOLICITORS : P: I V Knight D: Triumph Legal Services

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: The plaintiff, by summons filed on 14 August 2009, claims declaratory relief that the costs in District Court proceedings No 3084 of 2007 are not regulated by the cost capping provisions of s.338 of the Legal Profession Act 2004. The summons is supported by the affidavit of Peter Anjos sworn on 3 August 2009. 2 The defendant, the State of New South Wales ("the State") submits that the Court ought not make the declaration claimed and submits that the plaintiff's application should be dismissed. 3 The proceedings in the District Court of New South Wales were instituted on 19 July 2007. In the Statement of Claim initiating the proceedings, the plaintiff sued the State on the basis of vicarious liability for the alleged unlawful acts of certain members of the New South Wales Police Service in respect of incidents said to have occurred on Saturday 26 August 2006. 4 The plaintiff alleged that the abovementioned police officers committed a series of intentional torts, namely, alleged assault, alleged unlawful arrest and alleged false imprisonment. In the proceedings, the plaintiff claimed that he suffered personal injury, loss and damage. Accordingly, he claimed for damages, aggravated damages and exemplary damages.

The jurisdiction of the Court 5 The plaintiff seeks to invoke the jurisdiction of this Court to grant declaratory relief pursuant to s.75 of the Supreme Court Act 1970 and/or s.98(1) and s.56(2) of the Civil Procedure Act 2005. The primary bases for the proceedings are s.63 and s.75 of the Supreme Court Act. 6 In support of its submission that the Court should not exercise its jurisdiction to grant declaratory relief, the State contended that a final determination is not possible where the plaintiff has not sought orders for final relief. In such circumstances, it was submitted, the Court ought refuse to grant the declaration sought. Reliance was placed on dicta of the High Court in Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286. 7 The State further contended that the declaration sought (if made) was not capable of bringing all issues between the parties to a conclusion. The submission, accordingly, was that the Court ought not make the declaration sought unless consequential orders were also sought which, if made, would finally dispose of all issues between the parties. 8 The plaintiff, on the other hand, submitted that the Court's jurisdiction under s.75 may be invoked to make a declaratory order in the present case. In circumstances where the nature of the order sought is one directed at the determination of a legal controversy in which the plaintiff has a real interest the summons is not directed at answering abstract or hypothetical questions: Ainsworth v Criminal Justice Commission (1991-1992) 174 CLR 564 at 581-582. 9 As to the timing of the application, it was submitted for the plaintiff that, whilst the jurisdiction of the statutory decision-maker (the cost assessor) has not been invoked so as to determine whether the plaintiff's costs exceed $16,000, there is, in fact, no real dispute between the parties that they do. The legal controversy between the parties, it was argued, prevents them from entering into negotiations with a view to reaching an agreement on costs. 10 Mr F Austin of counsel for the plaintiff also contended that, although the costs assessor's power to make an order has not yet been exercised, the Court may, nonetheless, exercise its discretionary power to grant declaratory relief if there is a real likelihood or danger of such an order being made: Regina v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Limited (1953) 88 CLR at 119; Sydney Water Limited v Industrial Relations Commission of NSW (2004) 61 NSWLR 661(CA) at [63]. 11 It was also argued for the plaintiff that the present application can be seen as a test case in that there is no other decision of this Court on the issue that arises from the interaction of the provisions of s.337(1) of the Legal Profession Act and the provisions in Part 2 of the Civil Liability Act 2002. This, it was said, was particularly so by reason of what was said to be the apprehended reliance by the State upon the earlier decision of King v Greater Murray Area Health Service [2007] NSWSC 914 noting, however, that the relevant legislative provisions have been amended since the date of the decision in that case. 12 The present application, accordingly, is made in circumstances in which there was said to be a real chance that the decision in King (supra) could be followed by an assessor and lead to an assessment of the costs on an incorrect basis. That could result in unnecessary work and expense: Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333 at [31]. 13 I have concluded that there is considerable force in the submissions made on behalf of the plaintiff and that, as in Hattersley (supra), this is a case in which the circumstances indicate that it is of utility and appropriate to make a declaratory order which will have the effect of determining the basis upon which costs should be assessed: Ainsworth (supra) and Attorney-General for NSW v Smits (1998) 45 NSWLR 521. It is clear from the nature of the issues that arise in the determination of the fundamental question raised by the summons that there is a useful and worthwhile purpose to be served in this Court exercising its jurisdiction in relation to the meaning and operation of the provisions of s.338 of the Legal Profession Act.

Evidence 14 In support of the summons, as earlier indicated, the plaintiff relied upon the affidavit of Peter Anjos sworn 3 August 2009 (except for paragraphs 5 and 6 which were not read). The affidavit annexes relevant documentation including the pleadings, the Statement of Particulars, particulars requested and supplied by correspondence and a copy of the Consent Judgment/Order filed with the District Court of New South Wales on 22 December 2008. 15 Mr M Hutchings of counsel, who appeared on behalf of the State, tendered a medical report of Dr Selwyn Smith, consultant psychiatrist, dated 21 August 2008. Mr Austin objected to the tender of the report. The State sought to rely upon it as containing a psychiatric opinion to the effect that the plaintiff, claimed in the proceedings that he had developed a Chronic Adjustment Disorder with Depressed and Anxious Mood. Mr Hutchings contended that it was evidence of the fact that the damages claimed included damage in the nature of psychiatric "injury". The report was admitted subject to relevance and became Exhibit 1 in the proceedings.

The statutory scheme 16 Section 338 of the Legal Profession Act limits the amount of costs that may be recovered on a claim for personal injury damages "if the amount recovered … does not exceed $100,000". The section was enacted as part of the State Government's reform of tort law. It appears in Part 3.2, Division 8 of the Act. 17 The maximum costs permitted by the section applies in respect of amounts recovered "… on a claim for personal injury damages …": s.338(1). It limits the amount of costs that may be recovered on a claim for personal injury damages "if the amount recovered … does not exceed $100,000". 18 Importantly for the present proceedings, s.337(1) provides that the phrase "personal injury damages", is to have "… the same meaning as in Part 2 of the Civil Liability Act 2002". The meaning of the latter expression (examined below), is the central question for determination. 19 Against that background, the relevant statutory provisions are set out below.

(1) The Legal Profession Act 2004 20 Section 337, Interpretation and application, as noted above, provides that "personal injury damages has the same meaning as in Part 2 of the Civil Liability Act 2002". 21 Section 338(1) provides:- "338 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, (b) in the case of legal services provided to a defendant - maximum costs are fixed at 20% of the amount sought to be recovered by the plaintiff or $10,000, whichever is greater." (emphasis added)

(2) The Civil Liability Act 2002 22 The Civil Liability Act was assented to on 18 June 2002, with a retrospective commencement date of 20 March 2002. The Act has been amended on a number of occasions since its commencement. 23 The purpose and object of the Act is stated to be:- "An Act to make provision in relation to the recovery of damages for death or personal injury caused by the fault of a person; to amend the Legal Profession Act 1987 in relation to costs in civil claims; and for other purposes." 24 The Civil Liability Act contains 10 parts. As Spigelman CJ observed in State of New South Wales v Ibbett (2005) 65 NSWLR 168 at [7], each Part of the Act has its own definition section, except Part 1, in which s.3B appears, containing generally applicable definitions (eg, the word "damages", which is defined subject to specified payments, as any form of monetary compensation). 25 Section 3B of the Civil Liability Act is an important provision. So far as relevant, it provides:- "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 …" (emphasis added) 26 Part 2 of the Civil Liability Act (comprising only two sections) contains (a) definition provisions and (b) provisions concerned with the application of Part 2, Personal injury damages:- "11 Definitions In this Part: injury means personal injury and includes the following: (a) pre-natal injury, (b) impairment of a person's physical or mental condition, (c) disease. personal injury damages means damages that relate to the death of or injury to a person." 27 Section 11A provides as follows:- "11A 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 by section 3B. … (3) A court cannot award damages, or interest on damages, contrary to this Part. …"

The plaintiff's claim in the District Court 28 As set out above, s.338(1) of the Legal Profession Act applies to a "claim for personal injury damages". The Statement of Claim filed in the District Court on 19 July 2007 sought damages, aggravated and exemplary damages, and orders in respect of interest and costs. The pleaded causes of action, as earlier noted, were based upon alleged assaults (three in number), alleged unlawful arrest and alleged false imprisonment. 29 The State, in its written submissions (paragraph [19]) emphasised that the plaintiff in the District Court proceedings claimed that he had suffered personal injury in the nature of an impairment of his "physical or mental condition". This was relied upon to support the contention that the proceedings constituted a claim for "personal injury damages" within the meaning of that phrase in the Civil Liability Act. 30 The State also referred to the fact that the plaintiff had alleged that he had suffered "personal injury and loss, and damage" as a result of the occurrence of the facts pleaded in the Statement of Claim (in particular, paragraph [11]). 31 In addition, in paragraph [11] of the Statement of Claim, the plaintiff sought the following:- "(b) Aggravated damages, particulars of which are as follows:- (b.i) humiliation; (b.ii) loss of dignity; (b.iii) injured feelings, including psychological trauma. (c) Exemplary Damages; particulars of which are that assaults were committed by the police officers with: (c.i) reckless indifference to the plaintiff's health and safety; and (c.ii) contumelious disregard for the plaintiff's civil liberties." 32 The plaintiff's position is that, in accordance with the Statement of Claim, a mix of causes of action were pleaded in which damages were sought in respect of the alleged assaults being intentional torts for personal injury (both physical and psychological) and, in addition, damages on causes of action (not involving personal injury), namely in respect of alleged unlawful arrest and alleged false imprisonment.

The consent judgment 33 Judgment filed in the District Court on 22 December 2008 contains the following paragraphs:- "BY CONSENT and without admission of liability: 1. Judgment for the plaintiff in the sum of [amount specified] plus costs of these proceedings … as agreed or assessed …" 34 The consent Judgment/Order then noted paragraphs whereby the defendant was at liberty to deduct and pay, inter alia, statutory benefits that had been paid to or on behalf of the plaintiff, provisions as to interest and a provision as to confidentiality. The amount of the judgment has not been reproduced in the extract above by reason of the confidentially provision in the consent Judgment. 35 The consent Judgment/Order was signed on behalf of the parties and dated 19 December 2008.

(a) Submissions for the plaintiff 36 In the Plaintiff's Outline of Submissions dated 23 September 2009, Mr Austin on behalf of the plaintiff dealt with the relationship between Division 9, Maximum costs in personal injury damages matters, of the Legal Profession Act and the provisions in Part 2 of the Civil Liability Act. 37 He contended that the words of s.337 of the Legal Profession Act must be given their ordinary meaning by reference to the context of the Act as a whole (which includes the existing state of the law and the mischief the legislature was seeking to remedy: Written submissions, paragraph [32]). It was contended that only if plain words gave rise to an inconvenience or improbability of result that the literal meaning would then give way to an alternative construction which is more reasonably open and which more closely conforms to the legislative intent: CIC Insurance Limited v Bankstown Football Club Limited (1995) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ. 38 In favour of the broader interpretation contended for on behalf of the plaintiff, it was argued that s.337(1) defines "personal injury damages", not only by reference to s.11 of the Part 2 of the Civil Liability Act but also by reference to the provisions of Part 2 generally. 39 Reliance was placed in argument upon the provisions of s.3B of the latter Act (which is found in Part 1). So far as is relevant, that section is to the effect that the Civil Liability Act does not apply to or in respect of civil liability (and awards of damages in those proceedings) of a person in respect of an intentional act that is done by the person with intent to cause injury. 40 It was also argued that the phrase "personal injury damages" is a term of art and has a special meaning in the particular context in which it is found. Parliament could not have intended, it was argued, to exclude claims for personal injury damages in respect to the civil liability of persons for intentional acts from the operation of the Civil Liability Act, without also excluding them from the operation of Division 9 of the Legal Profession Act. 41 Division 9 of the Legal Profession Act, Maximum costs in personal injury damages matters (which contains s.337 and s.338) it was emphasised, was ancillary to the Civil Liability Act. Mr Austin submitted that the phrase "personal injury damages" in s.337(1) in the Legal Profession Act should be read down and made subject to the same qualifications or restrictions as in the Civil Liability Act. Reliance, in this respect, was placed upon dicta in Jabetin Pty Limited v Liquor Administration Board & Ors [2005] NSWCA 92 at [45] and [92]. To find otherwise, it was argued, would give rise to an improbability of result. In this respect it was noted that the proceedings in the District Court involved claims for damages other than for personal injury. 42 It was Mr Austin's submission that the plaintiff's proceedings in the District Court involved a claim in respect of an intentional act done by the relevant person or persons with intent to cause injury and that, accordingly, the plaintiff's claim comes within the meaning of s.3B(a). On that basis, the plaintiff's claim, it was contended, was excluded from the operation of the Civil Liability Act, not merely from Part 2 of that Act. 43 Finally, to the extent to which there was any ambiguity in the provisions in question, the plaintiff placed reliance upon the provisions of s.34(1) of the Interpretation Act 1987 and, in that respect, the Second Reading Speech relating to the Civil Liability Bill which became the Civil Liability Act. 44 Mr Austin contended that the Second Reading Speech enabled one to discern that it was an intention of Parliament to introduce measures to reduce premiums. Reference was also made to the aim of achieving reductions in the cost of personal injury claims.

(b) Submissions for the defendant 45 Mr Hutchings of counsel on behalf of the State contended that s.337(1) does not incorporate the limitations arising under s.3B of the Civil Liability Act, subtitled "Civil liability excluded from Act". The section, he argued, simply defines "personal injury damages" by incorporating the meaning of both "injury" and "personal injury damages" in s.11 of the Civil Liability Act. Accordingly, it was argued that s.337(1) is clear and free of ambiguity in providing that "personal injury damages" has the meaning as in Part 2 of the Civil Liability Act untrammelled by the limitations in Part 2. 46 It was the State's contention that s.11A in Part 2 does not apply so as to affect the meaning in s.11 in relation to the words "personal injury damages". The section, he contended, speaks to a separate issue concerned with the application of Part 2. It is only in that context that the excluding provisions of s.3B operate. Mr Hutchings contended that s.11 provided (transcript, p.14):- "… a whole descriptor and gives meaning to that phrase in s.337 of the Legal Profession Act." 47 Although found in Part 2, it was argued that s.11A did not assist in deriving the meaning of the phrase "personal injury damages" in any way. 48 Submissions were also made in relation to the nature of the plaintiff's claim in the District Court. It was submitted that, having regard to the definition of "injury" inter alia, as "impairment of a person's physical or mental condition" and "personal injury damages" as being damages that "relate to the death or injury of a person", both the particulars of the Statement of Claim and Dr Smith's report (Exhibit 1) made it clear that the plaintiff's claim in the District Court was one for personal injury damages. I will return to the question of the nature of the plaintiff's claim below.

(a) The statutory provisions and history of amendments 49 The defendant in the present proceedings relies upon the decision of Harrison AJ in King (supra): written submissions, paragraphs [22] to [25] and [28]. However, since the decision in that case, a similar issue to that which arises for determination in the present proceedings was considered and determined by her Honour Truss DCJ in Koh v Ku (2009) 9 DCLR (NSW) 387. The Court there decided that the costs recoverable by the plaintiff against the defendant in respect of sexual assault and/or false imprisonment in the amount of $63,870 awarded by the District Court, were not limited to the costs allowed by s.338(1)(a) of the Legal Profession Act. 50 In Koh (supra), her Honour conveniently set out the legislative history (at 390) which is instructive and which I gratefully adopt. Her Honour there recorded the following:- "Schedule 2.2[2] of the Civil Liability Act 2002 (NSW) inserted Div 5B maximum costs in personal injury damages matters into Pt 11 of the Legal Profession Act 1987 (NSW). This Division included ss.198C and 198D. Section 198D(1)(a) provided:- '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.' Section 198C contained the following definition:- ''personal injury damages'' has the same meaning as in the Civil Liability Act 2002.' At that time, s.3 Definitions , which was in Pt 1 of the Civil Liability Act 2002, provided:- ' personal injury damages means damages that relate to the death of or injury to a person caused by the fault of another person.' On 6 December 2002, the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) came into force. This Act made a number of amendments to the Civil Liability Act 2002 including:- (a) The definition of personal injury damages was omitted from s.3, (Schedule 2[2]). Section 11 was omitted and replaced with a new section ( Definitions ). This included a definition of personal injury damages which was a modified form of the earlier definition in that the words caused by the fault of another person , were removed (Schedule 2[5]). (b) Section 11A was inserted by the same clause and became part of Pt 2. (c) Section 9 (which had excluded from the operation of Pt 2 damages where the fault concerned was an intentional act) was omitted (Schedule 2[5]) and s.3B was inserted (Schedule 2[3]). (d) As a consequential amendment the definition of personal injury damages in s.198C(1) of the Legal Profession Act 1987 was omitted and replaced with a definition in identical terms to that which now appears in s.3378(1) of the 2004 Act (Schedule 4.5). On 1 October 2005, the Legal Profession Act 1987 was repealed in its entirety and replaced by the Legal Profession Act 2004 (NSW). Sections 198C and 198D of the 1987 Act were replicated in ss.337 and 338 of the 2004 Act." 51 The terms of the interpretation provision contained in s.337(1) of the Legal Profession Act concerning the expression "personal injury damages" is critical and differs from the equivalent provision in the former provisions of s.198C of the Legal Profession Act 1987. As Truss DCJ noted, the latter section formerly provided that the expression "personal injury damages" "… has the same meaning as in the Civil Liability Act 2002". 52 As Truss DCJ also observed in Koh (supra), it is of importance to note that the expression "personal injury damages" under s.337(1) of the Legal Profession Act is expressed in more restricted or precise terms than was previously the case in that it provided that that expression "… has the same meaning as in Part 2 of the Civil Liability Act 2002" (emphasis added). 53 Truss DCJ concluded (at 382 to 383):- "In my view, the critical matter is that s.337(1) of the LP Act defines personal injury damages by reference to the same meaning in Pt 2 of the CL Act. Significantly, it does not define personal injury damages simply by reference to the CL Act (as was the case with the original version of s.198C). For this reason, I consider, that the meaning of personal injury damages in s.337(1) ought not be determined by reference to s.11 alone and that regard must be had to the entirety of Pt 2, which includes s.11A(1). It follows that the reference to personal injury damages in Pt 2 of the CL Act encompasses only personal injury damages awarded under that Part and not damages for personal injury which have been specifically excluded there from." 54 Her Honour concluded that the costs recoverable on a claim for personal injury damages which were fixed by s.338(1)(a) of the Legal Profession Act 2004 do not include costs recoverable in respect of damages for personal injury awarded outside the operation of the Civil Liability Act. 55 Accordingly, the costs recoverable by the plaintiff in that case were not limited to those allowed by s.338(1)(a) of the Legal Profession Act.

(b) Statutory construction of the provisions that apply to the plaintiff's case 56 The present case, like that decided by Truss DCJ, and unlike the situation in King (supra), involves proceedings that post-date the amendment to s.337 of the Legal Profession Act. Accordingly, the question of costs is to be determined in light of s.337 of the Legal Profession Act as it stood at the time of the present proceedings. 57 It is, of course, a well-accepted starting point to the understanding of any document is that it must be read in its entirety: Statutory Interpretation of Australia, 6th ed, D C Pearce and R S Geddes at [4.2]. As the learned authors there note the courts have frequently said that the approach to the interpretation of an Act is that:- "Every passage in a document must be read, not as if it were entirely divorced from its context, but as part of the whole instrument" ( Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1927) 35 CLR 449 at 455 per Isaacs and Richard JJ) 58 In the discussion at [4.2], the learned authorise state:- "… It is often tempting to look only at the section that seems immediately applicable to the problem in hand. But this is likely to lead to a misconception of the total effect of the provision …" 59 As French CJ recently stated in Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at 31:- "… It must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referrable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy." 60 In relation to definitions in a statute, it has been observed:- "All definitions of the meanings of words or phrases used in legislation are to be read either expressly or impliedly as subject to the qualification 'unless the contrary intention appears': Hall v Jones (1942) 42 SR(NSW) 203 … Transport Accident Commissioner v Treloar [1992] 1 VR 447 at 449 …" Statutory Interpretation in Australia (supra) at [6.62] 61 The relevant provisions of Part 2 of the Civil Liability Act, namely, s.11, Definitions, as well as s.11A, Application of Part, though enacted at different times take their place in the Act as companion provisions. The two sections comprise the entirety of Division 1, Preliminary, of Part 2. As a matter of structure the "definition" and "application of divisions" contained in s.11 and s.11A of the Civil Liability Act bear a similarity with s.337 of the Legal Profession Act, in that, the provisions in that section, sub-titled "Interpretation and Application", are also concerned with both the definition and the application of particular statutory provisions. 62 The provisions of Division 2 of Part 2 of the Civil Liability Act, are directed to the subject of the awarding or the determination of "personal injury damages". Thus, s.11A(1) states:- "11A(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 by s.3B ." (emphasis added) 63 Read together, s.11 contains definitions of "injury" and "personal injury damages" whilst s.11A is concerned with statutory requirements to be met with respect to awards of personal injury damages except for awards that are excluded by s.3B. 64 In relation to the definition of "personal injury damages" in s.337(1) of the Legal Profession Act, the following matters are noted:-

(1) Section 337(1) does not itself directly define "personal injury damages" . The definition of the expression is effected by means of a cross-reference to the meaning of that same expression in Part 2 of the Civil Liability Act .

(2) The cross-referencing in s.337(1) to the Civil Liability Act referred to in (1) is not by way of a reference to a specified or to a particular section of the Civil Liability Act (eg, s.11). Instead, s.337(1) states that that phrase has the same meaning " as in Part 2 " of the Civil Liability Act .

(3) The provisions of Part 2, Personal Injury Damages , of the Act consist, as noted above, of two sections, namely, s.11 and s.11A of the Act. They together constitute Division 1 of Part 2.

(4) The wording of s.337(1) does not invoke phraseology such as "as defined" or as "referred to" in a particular section of the Civil Liability Act . The reference is to the whole of Part 2, ie, "as in Part 2" . As a matter of statutory language, the terms of s.337(1) differ from other cross-references in s.337(2): see, for example, s.337(2)(c) which employs the phrase, "… as defined in the Workplace Injury, Management and Workers' Compensation Act 1998 and s.337(2)(d) which includes the phrase "… of the kind referred to in s.11 … of the Dust Diseases Tribunal Act 1989" . 65 The matters referred to in the preceding paragraph support the construction that "personal injury damages" in s.337(1) must be taken as referring to the meaning of that phrase by reference and regard to the provisions of Part 2 of the Civil Liability Act and not merely by the provisions of s.11 of that Part. 66 Section 11, if read as an isolated provision, would include all awards of personal injury damages. To so read the phrase "as in Part 2" in s.337(1) would not be consonant with the meaning (or the application) of the phrase as stated and provided for in that Part. 67 A definition provision in an Act may define in broad terms a subject, matter or a concept. However, the width or scope of its meaning may be narrowed or limited by the terms of other provisions in the same Act. "Damages" is monetary compensation ordered or awarded by a court or tribunal: see s.3, Civil Liability Act. "Damages" under that Act may be awarded, subject to its provisions, as a remedy in certain classes of actions for personal injury (eg, negligence or statutory breach). However, damages in actions belonging in other classes (eg, specified intentional torts), though involving compensation for personal injury, are not to be assessed and awarded as prescribed by the Act. 68 In that way the statutory concept of "personal injury damages" in the latter Act is properly understood as referring, not to both classes of case referred to in the preceding paragraph. It applies to the former class not the latter. 69 Section 11A states, in effect, that Part 2 is concerned with that kind of award of personal injury damages, inter alia, that is based on civil liability such as in negligence, statutory breach etc. It makes clear, however, that Part 2 is not directed to prescribing requirements in respect of damages for personal injury resulting from an intentional act that comes within s.3B(1)(a). "Damages" in the latter kind of case are not "personal injury damages" to which Part 2 applies (Part 2 including, as it does, the very definition provisions in s.11).

(c) The District Court proceedings - whether "personal injury damages" claims under Part 2, Civil Liability Act 70 Central to the plaintiff's claim in the District Court was the allegation of him having been assaulted on multiple (three in all) occasions in consequence of which he sustained physical injury (including, according to Exhibit 1, an injury to the neck, bleeding nose, abrasions, facial lacerations) and continuing physical impairment by way of neck pain and paraesthesia in the left hand and a dull ache in his left upper limb. He also claimed psychological sequelae including depression and withdrawal. 71 In the context of determining the nature of the claim brought by the plaintiff in the District Court, it is necessary to consider the provisions of s.3B. If that section applied to the proceedings insofar as they involved "civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury …", then, as indicated in paragraphs [67] to [69] the proceedings fell to be determined in accordance with the general law and not the statutory scheme under Part 2 of the Civil Liability Act. In other words, s.11A excludes an award of personal injury damages from the operation of Part 2 if it is excluded from that Part by virtue of s.3B. 72 The damages under the consent Judgment dated 19 December 2008 constituted monetary compensation, inter alia, in respect of the assault claims, that is, in respect of intentional acts allegedly carried out by the police officers in question with intent to cause injury to the plaintiff. The contrary understandably was not argued. An award of damages for civil liability in respect of such intentional torts as elsewhere discussed is, of course, one that falls outside the scope and operation of the Civil Liability Act. 73 In Ibbett (supra), Basten JA observed at [203]:- "An intentional act … at least if done with intent to injure, will take the matter outside the operation of the Civil Liability Act, by virtue of s.3B(1)(a) …" 74 In Dr Smith's report (Exhibit 1), under the sub-heading "Relevant history", the plaintiff's complaint of the development of neck pain is referred to as being a result of the "altercation that occurred on 26 August 2006". Under the sub-heading "Account of the police assault" (p.3), the plaintiff gave a history of the physical assaults that he claimed had occurred on 26 August 2006. 75 Under the sub-heading "Psychiatric opinion", Dr Smith expressed the opinion that the plaintiff "… in response to the assault sustained on 26 August 2006, has developed a chronic adjustment disorder …" (emphasis added). 76 He confirmed (p.5, point 4) that the psychological injury, in his opinion, "… has been a direct outcome of the assault that he was exposed to" (emphasis added). 77 Subsequent references in the report to incidents again seem to refer back to the particular assault incidents recorded earlier in the report. 78 On the basis of the case as pleaded for the plaintiff (and having regard to Exhibit 1), the damages awarded under the consent Judgment may be taken, at least with respect to an unspecified portion, as being damages in respect of the assaults referred to in the Statement of Claim as the "first", "second" and "third" assaults, being an award of damages in respect of alleged intentional acts carried out by the police officers in question with intent to cause injury. 79 The plaintiff particularised the specific physical injuries he claimed he suffered in consequence of the "first assault" and "second assault" in paragraphs [6] and [7] of the Statement of Claim. In paragraph [8], reference was made to the "third assault" as one to his back. There was no allegation that he, by some means, suffered "injury' as a result of the alleged false imprisonment or alleged unlawful arrest. The medical evidence, as noted above, confirmed that the cause(s) of the personal injuries alleged (both the physical injuries and the diagnosed psychiatric disorder) were the alleged assaults. 80 The plaintiff's causes of action for alleged false imprisonment and alleged unlawful arrest are, of course, not in their nature claims for personal injury. An action for false imprisonment is an action in trespass to the person which is committed when the voluntary conduct of one person directly subjects another to total deprivation of freedom of movement without lawful jurisdiction. The tort provides a remedy to an individual against unlawful restraint of personal liberty of movement, the most elementary and important of all common law rights: Trobridge v Hardy (1955) 94 CLR 147 per Fullager J at 152. 81 A claim of false imprisonment is actionable, per se, without proof of damage: see Watson v Marshall & Cade (1971) 124 CLR 621. As the decision in that case confirms, in such an action a court, in addition to awarding damages for loss of liberty, may compensate a plaintiff for injury to feelings and loss of reputation. In Myer Stores Limited v Soo [1991] 2 VR 597 at 603, Murphy J observed that:- "The damages in an action for false imprisonment are generally awarded not for a pecuniary loss but for a loss of dignity, mental suffering, disgrace and humiliation." 82 In that case, Murphy J noted that damage in the form of deleterious effects on the plaintiff's health, mental suffering, loss of dignity, disgrace and humiliation may form the basis for legitimate corresponding components in an award. The fact that the plaintiff in the present case claimed damages for false imprisonment of the nature referred to in the above extract (loss of dignity, mental suffering etc) does not, of course, thereby convert the proceedings in respect of the tort of false imprisonment into a claim for personal injury. 83 It is unnecessary here to examine at any length the action for alleged unlawful arrest. There is no evidentiary or other material which would establish that the plaintiff's claim in that respect could be properly characterised as a claim for personal injury, whether physical or mental injury impairment or both. The consent Judgment in the plaintiff's favour, as earlier stated, having regard to the causes of action pleaded, can be taken as having been an award of damages in respect of the intentional torts alleged by the plaintiff. On examination of the pleadings and evidence, the claims for alleged false imprisonment and unlawful arrest were not personal injury damages claims and accordingly they fell outside the scope and operation of the Civil Liability Act. 84 The plaintiff is, accordingly, entitled to the declaratory relief sought in the summons.

(1) That proceedings numbered 3084 of 2007 be transferred from the District Court of New South Wales to the Sydney Registry of the Supreme Court of New South Wales.

(2) A declaration that the costs of the proceedings referred to in Order (1), the subject of the consent Judgment/Order dated 27 December 2008, are not regulated by the provisions of s.338 of the Legal Profession Act 2004.

(3) Subject to paragraph (4), the defendant to pay the plaintiff's costs of and incidental to these proceedings.

(4) In the event that the defendant seeks to be heard on the order as to costs in (3), grant liberty to apply, any such application to be made within 14 days of the date of this judgment. **********

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Legal Profession Act 1987(NSW)

Civil Liability Amendment (Personal Responsibility) Act 2002(NSW)

Legal Profession Act 2004(NSW)

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