Citation: Reeves v State of New South Wales (No 3) [2023] NSWDC 243
Court: District Court of New South Wales
Date: 7 July 2023
Judge: Abadee DCJ
Background
This judgment resolved the costs question following two earlier decisions on liability and damages in a civil action brought by a plaintiff against the State of New South Wales arising from events at Chatswood Police Station on 22 October 2020. The plaintiff had pursued three distinct causes of action: wrongful arrest with consequent battery and false imprisonment over the full period of detention; a narrower "secondary" false imprisonment claim covering a discrete 16-minute period in an interview room; and malicious prosecution.
The plaintiff failed on the primary false imprisonment and battery claim, and on malicious prosecution. He succeeded only on the secondary false imprisonment claim, and only because the court had rejected the broader unlawful arrest argument. General damages of $5,000 (plus interest) were awarded; claims for aggravated and exemplary damages were dismissed.
The parties disagreed sharply on costs. The State sought an order that the plaintiff pay 75% of the State's costs, with the State paying 25% of the plaintiff's costs, subject to a statutory cap. The plaintiff sought an order that the State pay 90% of his costs.
Legal Issues
- Whether an "issue by issue" approach to costs was appropriate given the plaintiff's mixed and limited success across multiple causes of action.
- Whether the plaintiff's damages award constituted "personal injury damages" within the meaning of section 11 of the Civil Liability Act 2002 (NSW), which would have activated a statutory cap on recoverable costs under the Legal Profession Uniform Law Application Act 2014 (NSW).
Decision
Issue by issue costs approach
Abadee DCJ held that the ordinary rule, that costs follow the event, required careful attention to what the "event" actually was in a multi-claim proceeding. The plaintiff's single success was on a fallback claim that was structurally premised on his primary claim failing. The court rejected the plaintiff's submission that the evidence across all claims was essentially coextensive, finding instead that the preponderance of the litigation effort was directed at claims the plaintiff lost. The settlement offers were treated as irrelevant: the State did not press its own offers, and the plaintiff's offer of $10,000 was not bettered by the judgment. Comparisons drawn by the plaintiff to other cases, including Raad and Murphy, were distinguished on the basis that the plaintiffs in those cases succeeded on wrongful arrest, giving those outcomes a fundamentally different character.
The court concluded that the overall costs result should proportionately reflect the State's success on the large majority of issues (characterised as 75%) and the plaintiff's more limited success (25%). Applying an offsetting approach in the interests of clarity and finality, the court arrived at a single net order rather than cross-orders.
Statutory cap on costs
The State argued that the plaintiff's damages reflected an "impairment of mental condition," satisfying the definition of "personal injury damages" in section 11 of the Civil Liability Act, and that a costs cap should therefore apply under Schedule 1 of the LPULA Act. The court rejected this argument. The general damages of $5,000 were awarded to reflect the plaintiff's injured feelings during the 16-minute detention, specifically the experience of being scared and anxious when his right to obtain legal advice was not respected. Those feelings were not consequential upon any physical or psychiatric injury caused by the imprisonment. Drawing on the High Court's analysis in New South Wales v Williamson and Moore v Scenic Tours, the court held that the damages did not relate to an impairment of the plaintiff's physical or mental condition and therefore did not constitute "personal injury damages." The statutory cap did not apply.
Orders Made
- The plaintiff pay the defendant 50% of its costs of the proceeding, as agreed or assessed.
Key Takeaways
- Where a plaintiff succeeds only on a fallback claim that is structurally dependent on the failure of a primary claim, the court may treat the overall outcome as favouring the defendant for costs purposes, even though the plaintiff obtained a judgment.
- An "issue by issue" approach to costs is available in multi-claim proceedings where success is genuinely mixed, and the court may offset competing entitlements into a single net costs order.
- General damages for injured feelings arising from a short period of false imprisonment, where those feelings are not consequences of physical or psychiatric injury, do not amount to "personal injury damages" under section 11 of the Civil Liability Act 2002 (NSW).
- Settlement offers are not automatically material to a costs discretion. Where the defendant does not press its own offers and the plaintiff does not obtain a result more favourable than its own offer, neither set of offers affects the analysis.
- Costs outcomes in comparable cases offer limited guidance. The District Court noted that differences in the underlying liability findings, particularly whether a plaintiff succeeded on wrongful arrest, can fundamentally change the costs landscape.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), ss 3B, 11, 43A
- Civil Procedure Act 2005 (NSW), ss 56, 98
- Legal Profession Uniform Law Application Act 2014 (NSW), s 61 and Schedule 1
- Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1
Cases
- Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
- Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
- Moore v Scenic Tours (2020) 268 CLR 326
- Murphy v State of New South Wales [2023] NSWSC 407
- New South Wales v Corby (2010) 76 NSWLR 439
- New South Wales v Ibbett (2005) 65 NSWLR 168
- New South Wales v Williamson (2012) 248 CLR 417
- Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98
- Raad v State of New South Wales [2017] NSWDC 63
- Raad v State of New South Wales (No 2) [2017] NSWDC 94
- Reeves v State of NSW [2023] NSWDC 196
- Reeves v State of NSW (No 2) [2023] NSWDC 232