AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 20 September 2013

Spanos by his tutor Spanos v Thornberry

[2013] NSWDC 193

Assault & violence
COSTS APPROVAL OF COURT SOUGHT UNDER SS 75 77 CIVIL PROCEDURE ACT 2005 (NSW) WHETHER AGGRAVATED DAMAGES AVAILABLE

Citation: Spanos by his tutor Spanos v Thornberry [2013] NSWDC 193
Court: District Court of New South Wales
Date: 20 September 2013
Judge: Gibson DCJ

Background

The plaintiff, a 12-year-old boy, was assaulted by an adult woman at a park following a football presentation. The defendant followed him into a public toilet and, on the plaintiff's account, forced his head into a urinal and flushed it. The defendant admitted only to throwing a cup of water at him and briefly placing a hand on his shoulder. The defendant was subsequently charged with common assault and received a 12-month good behaviour bond with no conviction recorded under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The plaintiff, through his mother as tutor, commenced proceedings in the District Court claiming damages for assault, including aggravated and exemplary damages. The proceedings settled the day before the hearing date for a sum below the District Court's monetary threshold, which ordinarily would engage the costs-limiting provisions under UCPR r 42.35. Court approval of the settlement was required because the plaintiff was a minor under ss 75 to 77 of the Civil Procedure Act 2005 (NSW).

The central dispute at the approval hearing was not the settlement amount itself, but who should bear the costs of proceedings conducted in a court whose jurisdictional threshold the settlement did not meet.

  • Whether commencement and continuation of proceedings in the District Court was "warranted" under UCPR r 42.35, given the settlement sum fell below the court's monetary threshold
  • Whether the court should exercise its discretion under s 98 of the Civil Procedure Act 2005 (NSW) to limit or exclude certain costs items
  • Whether aggravated damages were available on the facts
  • Whether exemplary damages were available where the defendant's criminal penalty amounted to a "nominal penalty" within the meaning of Gray v Motor Accidents Commission (1998) 196 CLR 1
  • Whether the plaintiff's late oral application for a gross sum costs order under s 98(4) should be granted

Decision

Gibson DCJ held that commencement and continuation of proceedings in the District Court was warranted. The claim raised genuine complexity: the facts were disputed, aggravated damages were arguably available given the nature of the assault on a child in a public toilet, and the availability of exemplary damages required careful legal analysis given the defendant's criminal sentence. These were not matters that could be dismissed as obviously appropriate for the Local Court at the outset.

On the question of exemplary damages, the court considered the High Court's reasoning in Gray v Motor Accidents Commission, which limits exemplary damages in civil proceedings where the defendant has already been punished criminally, unless that punishment amounted to a "nominal penalty." The good behaviour bond with no conviction recorded was a live candidate for characterisation as a nominal penalty. Combined with the defendant's ongoing denial of the more serious aspects of the assault, this kept the exemplary damages question genuinely open throughout the proceedings.

The court declined to limit costs under s 98. Having found the District Court proceedings were warranted, and noting the conduct of the litigation on both sides involved significant steps, no basis was established to exclude particular cost items sought by the defendant. The defendant's notice of motion was dismissed.

The plaintiff's late oral application for a gross sum costs order under s 98(4) was refused. The court noted that such applications require formal notice to the opposing party and a properly itemised party-to-party memorandum. Neither was present: the costs assessment before the court had been prepared on a solicitor-client basis by the defendant's own solicitors, and the defendant's counsel indicated she was not in a position to meet the application.

Orders Made

  • The defendant's notice of motion was dismissed.
  • Costs of the notice of motion were made the plaintiff's costs in the proceedings.
  • The settlement was approved pursuant to ss 75 to 77 of the Civil Procedure Act 2005 (NSW).
  • Judgment was entered for the plaintiff in the agreed sum.
  • The defendant was ordered to pay the plaintiff's costs of the proceedings, including the notice of motion, as agreed or assessed.
  • The net settlement sum was directed to be paid to the NSW Trustee and Guardian for investment until the plaintiff turns 18.

Key Takeaways

  • The District Court confirmed that where a civil assault claim genuinely raised questions of aggravated and exemplary damages, commencement in that court could be "warranted" under UCPR r 42.35 even if the ultimate settlement sum fell below the monetary threshold.
  • A good behaviour bond with no conviction recorded under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) may constitute a "nominal penalty" for the purposes of the Gray v Motor Accidents Commission analysis, potentially preserving a plaintiff's entitlement to seek exemplary damages in subsequent civil proceedings.
  • Under UCPR r 42.35, the question of whether the higher court was warranted requires examination of the state of the proceedings as they unfolded, not simply a retrospective comparison of the settlement sum against the jurisdictional threshold.
  • Gross sum costs orders under s 98(4) of the Civil Procedure Act require formal notice to the opposing party and a properly prepared party-to-party costs memorandum. An oral application made at the hearing without these prerequisites will not be granted.
  • Where proceedings involving a minor plaintiff are settled, any net sum must be directed to the NSW Trustee and Guardian for investment until the plaintiff reaches adulthood, consistent with the court's protective role in approving minor settlements.

Legislation and Cases Referenced

Legislation
- Civil Procedure Act 2005 (NSW), ss 75, 76, 77 and 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(b)
- Uniform Civil Procedure Rules 2005 (NSW), rr 18.4, 42.34 and 42.35

Cases
- Certain Lloyd's Underwriters Subscribing to Contract No 1HOOAAQS v Cross & Thelander [2012] HCA 56
- Daniels v Thompson [1998] 3 NZLR 22
- Day v Ocean Beach Hotel [2013] NSWCA 250
- Gray v Motor Accidents Commission (1998) 196 CLR 1
- Lamb v Cotogno (1987) 164 CLR 1
- Starr-Diamond v Diamond (No 4) [2013] NSWSC 811
- State of New South Wales v Quirk [2012] NSWCA 216
- Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11
- Zandata Pty Ltd v Riley [2013] NSWSC 49