2002
2002
2002-11-28
act
publicgeneral
act.reprint
allinforce
retroactivecommencements
2002-05-28
none
act-2002-022
b4f5b75d-87b4-45ef-867f-6fa1f69d7d5b
6ffca078-cd9f-4e4a-be2f-b47f9672a199
Does not include amendments
by:
Civil Liability
Amendment (Personal Responsibility) Act 2002 No 92 (not
commenced)
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.
Part 1Preliminary
1Name of
Act
This Act is the Civil Liability
Act 2002.
2Commencement
This Act is taken to have commenced on 20 March
2002.
3Definitions
In this Act:
claimant means a person who makes or
is entitled to make a claim for personal injury damages.
court includes tribunal, and in
relation to a claim for damages means any court or tribunal by or before which
the claim falls to be determined.
damages includes any form of
monetary compensation.
fault includes an act or
omission.
injury means personal or bodily
injury, and includes:
(a)
pre-natal injury, and
(b)
psychological or psychiatric injury,
and
(c)
disease.
non-economic loss means any one or
more of the following:
(a)
pain and suffering,
(b)
loss of amenities of life,
(c)
loss of expectation of life,
(d)
disfigurement.
personal
injury damages means damages that relate to the death of or
injury to a person caused by the fault of another
person.
4Act to bind
Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of the Parliament of New South
Wales permits, the Crown in all its other capacities.
5Regulations
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
6Notes
Notes included in this Act do not form part of
this Act.
7Savings and transitional
provisions
Schedule 1 has effect.
8Amendment of
Acts
The Acts specified in Schedule 2 are amended as
set out in that Schedule.
Part 2Personal injury
damages
Division 1Preliminary
9Application 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.
(2)
The following awards of damages are excluded from
the operation of this Part:
(a)
an award where the fault concerned is an
intentional act that is done with intent to cause injury or death or that is
sexual assault or other sexual misconduct,
(b)
an award to which Part 6 of the Motor Accidents Act 1988 applies or to
which Chapter 5 of the Motor Accidents Compensation Act
1999 applies (including an award to and in respect of
which that Chapter applies pursuant to section 121 (Application of common law
damages for motor accidents to railway and other public transport accidents)
of the Transport Administration Act
1988),
(c)
an award to which Division 3 of Part 5 of the
Workers Compensation Act 1987
applies,
(d)
an award in proceedings of the kind referred to
in section 11 (Claims for damages for dust diseases etc to be brought under
this Act) of the Dust Diseases Tribunal Act
1989,
(e)
an award comprising compensation under the
Workers Compensation Act 1987, the
Workers Compensation (Bush Fire, Emergency and Rescue
Services) Act 1987, the Workers’
Compensation (Dust Diseases) Act 1942, the Victims Support and Rehabilitation Act
1996 or the Anti-Discrimination Act 1977 or a
benefit payable under the Sporting Injuries Insurance Act
1978,
(f)
a sum required or authorised to be paid under an
industrial instrument within the meaning of the Industrial Relations Act
1996,
(g)
a sum payable under a superannuation scheme or
any life or other insurance policy,
(h)
an award of damages of a class that is excluded
by the regulations from the operation of this Part.
(3)
This Part extends to an award of personal injury
damages even if the damages are recovered in an action for breach of contract
or in any other action.
10General regulation of court
awards
A court cannot award damages, or interest on
damages, to a claimant contrary to this Part.
11Act does not give rise to any
cause of action
This Act does not create or confer any cause of
civil action for the recovery of damages in respect of an injury or death
caused by the fault of a person.
Division 2Fixing damages for economic
loss
12Damages for past or future
economic loss—maximum for loss of earnings etc
(1)
This section applies to an award of
damages:
(a)
for past economic loss due to loss of earnings or
the deprivation or impairment of earning capacity, or
(b)
for future economic loss due to the deprivation
or impairment of earning capacity, or
(c)
for the loss of expectation of financial
support.
(2)
In the case of any such award, the court is to
disregard the amount (if any) by which the claimant’s gross weekly
earnings would (but for the injury or death) have exceeded an amount that is 3
times the amount of average weekly earnings at the date of the
award.
(3)
For the purposes of this section, the amount of
average weekly earnings at the date of an award is:
(a)
the amount per week comprising the amount
estimated by the Australian Statistician as the average weekly total earnings
of all employees in New South Wales for the most recent quarter occurring
before the date of the award for which such an amount has been estimated by
the Australian Statistician and that is, at that date, available to the court
making the award, or
(b)
if the Australian Statistician fails or ceases to
estimate the amount referred to in paragraph (a), the prescribed amount or the
amount determined in such manner or by reference to such matters, or both, as
may be prescribed.
13Future economic
loss—claimant’s prospects and adjustments
(1)
A court cannot make an award of damages for
future economic loss unless the claimant first satisfies the court that the
assumptions about future earning capacity or other events on which the award
is to be based accord with the claimant’s most likely future
circumstances but for the injury.
(2)
When a court determines the amount of any such
award of damages for future economic loss it is required to adjust the amount
of damages for future economic loss that would have been sustained on those
assumptions by reference to the percentage possibility that the events might
have occurred but for the injury.
(3)
If the court makes an award for future economic
loss, it is required to state the assumptions on which the award was based and
the relevant percentage by which damages were adjusted.
14Damages for future economic
loss—discount rate
(1)
If an award of damages is to include any
component, assessed as a lump sum, for economic loss that is referable to the
future, the present value of that future economic loss is to be determined by
adopting the prescribed discount rate.
(2)
The prescribed discount rate is:
(a)
a discount rate of the percentage prescribed by
the regulations, or
(b)
if no percentage is so prescribed—a
discount rate of 5%.
(3)
Except as provided by this section, nothing in
this section affects any other law relating to the discounting of sums awarded
as damages.
15Damages for gratuitous
attendant care services
(1)
In this section:
attendant
care services means any of the following:
(a)
services of a domestic
nature,
(b)
services relating to nursing,
(c)
services that aim to alleviate the consequences
of an injury.
gratuitous attendant care services
means attendant care services:
(a)
that have been or are to be provided by another
person to a claimant, and
(b)
for which the claimant has not paid or is not
liable to pay.
(2)
No damages may be awarded to a claimant for
gratuitous attendant care services unless the court is satisfied that:
(a)
there is (or was) a reasonable need for the
services to be provided, and
(b)
the need has arisen (or arose) solely because of
the injury to which the damages relate, and
(c)
the services would not be (or would not have
been) provided to the claimant but for the injury.
(3)
Further, no damages may be awarded to a claimant
for gratuitous attendant care services if the services are provided, or are to
be provided:
(a)
for less than 6 hours per week,
and
(b)
for less than 6
months.
(4)
If the services are provided or are to be
provided for not less than 40 hours per week, the amount of damages that may
be awarded for gratuitous attendant care services must not exceed:
(a)
the amount per week comprising the amount
estimated by the Australian Statistician as the average weekly total earnings
of all employees in New South Wales for:
(i)
in respect of the whole or any part of a quarter
occurring between the date of the injury in relation to which the award is
made and the date of the award, being a quarter for which such an amount has
been estimated by the Australian Statistician and is, at the date of the
award, available to the court making the award—that quarter,
or
(ii)
in respect of the whole or any part of any other
quarter—the most recent quarter occurring before the date of the award
for which such an amount has been estimated by the Australian Statistician and
is, at that date, available to the court making the award,
or
(b)
if the Australian Statistician fails or ceases to
estimate the amount referred to in paragraph (a), the prescribed amount or the
amount determined in such manner or by reference to such matters, or both, as
may be prescribed.
(5)
If the services are provided or are to be
provided for less than 40 hours per week, the amount of those damages must not
exceed the amount calculated at an hourly rate of one-fortieth of the amount
determined in accordance with subsection (4) (a) or (b), as the case
requires.
(6)
Except as provided by this section, nothing in
this section affects any other law relating to the value of attendant care
services.
Note—
Section 18 provides that a court cannot order the
payment of interest on damages awarded for gratuitous attendant care
services.
Division 3Fixing damages for
non-economic loss (general damages)
16Determination of damages for
non-economic loss
(1)
No damages may be awarded to a claimant for
non-economic loss unless the severity of the non-economic loss is at least 15%
of a most extreme case.
(2)
The maximum amount of damages that may be awarded
to a claimant for non-economic loss is $350,000, but the maximum amount is to
be awarded only in a most extreme case.
(3)
If the severity of the non-economic loss of the
claimant is equal to or greater than 15% of a most extreme case, the damages
for non-economic loss are to be determined in accordance with the following
Table:
Table
Severity of
the non-economic loss (as a proportion of a most extreme case)
Damages for
non-economic loss (as a proportion of the maximum amount that may be awarded
for non-economic loss)
15%
1%
16%
1.5%
17%
2%
18%
2.5%
19%
3%
20%
3.5%
21%
4%
22%
4.5%
23%
5%
24%
5.5%
25%
6.5%
26%
8%
27%
10%
28%
14%
29%
18%
30%
23%
31%
26%
32%
30%
33%
33%
34%–100%
34%–100% respectively
(4)
An amount determined in accordance with
subsection (3) is to be rounded to the nearest $500.
Note—
The following are the steps required in the
assessment of non-economic loss in accordance with this section:
Step 1: Determine the severity of the
claimant’s non-economic loss as a proportion of a most extreme case. The
proportion should be expressed as a percentage.
Step 2: Confirm the maximum amount that may be
awarded under this section for non-economic loss in a most extreme case. This
amount is indexed each year under section 17.
Step 3: Use the Table to determine the percentage
of the maximum amount payable in respect of the claim. The amount payable
under this section for non-economic loss is then determined by multiplying the
maximum amount that may be awarded in a most extreme case by the percentage
set out in the Table.
Where the proportion of a most extreme case is
greater than 33%, the amount payable will be the same proportion of the
maximum amount.
17Indexation of maximum amount
relating to non-economic loss
(1)
The Minister is, on or before 1 October 2002 and
on or before 1 October in each succeeding year, to declare, by order published
in the Gazette, the amount that is to apply, as from the date specified in the
order, for the purposes of section 16 (2).
Editorial
note—
Amount declared for the purposes of section 16
(2): $365 000 from 1 October 2002. See Gazette No 160 of 1.10.2002, p
8495.
(2)
The amount declared is to be the amount
applicable under section 16 (2) (or that amount as last adjusted under this
section) adjusted by the percentage change in the amount estimated by the
Australian Statistician of the average weekly total earnings of full-time
adults in New South Wales over the 4 quarters preceding the date of the
declaration for which those estimates are, at that date,
available.
(3)
An amount declared for the time being under this
section applies to the exclusion of the amount under section 16
(2).
(4)
If the Australian Statistician fails or ceases to
estimate the amount referred to in subsection (2), the amount declared is to
be determined in accordance with the regulations.
(5)
In adjusting an amount to be declared for the
purposes of section 16 (2), the amount determined in accordance with
subsection (2) is to be rounded to the nearest $500.
Division 4Other
matters
18Interest on
damages
(1)
A court cannot order the payment of interest on
damages awarded for non-economic loss or gratuitous attendant care services
(as defined in section 15).
(2)
If a court is satisfied that interest is payable
on damages (other than damages for non-economic loss or gratuitous attendant
care services), the amount of interest is to be calculated:
(a)
for the period from when the loss to which the
damages relate was first incurred until the date on which the court determines
the damages, and
(b)
in accordance with the principles ordinarily
applied by the court for that purpose, subject to subsection
(3).
(3)
The rate of interest to be used in any such
calculation is:
(a)
such interest rate as may be determined by the
regulations, or
(b)
if no such rate is determined by the
regulations—the relevant interest rate as at the date of determination
of the damages.
(4)
For the purposes of subsection (3), the relevant
interest rate is the rate representing the Commonwealth
Government 10-year benchmark bond rate as published by the Reserve Bank of
Australia in the Reserve Bank of Australia Bulletin (however described)
and as applying:
(a)
on the first business day of January of each year
(in which case the rate is to apply as the relevant interest rate for the
period from 1 March until 31 August of that year), or
(b)
on the first business day of July of each year
(in which case the rate is to apply as the relevant interest rate for the
period from 1 September of that year until the last day of February of the
following year).
(5)
Nothing in this section affects the payment of
interest on a debt under a judgment or order of a court.
19Third party
contributions
(1)
This section applies when a person (the claimant) is entitled to an
award of damages in respect of death or injury against a person (the defendant) and also against
another person (the third
party), and the award against the defendant is an award to
which this Part applies but the award against the third party is not an award
to which this Part applies.
(2)
A court determining the amount of the
contribution (the
defendant’s contribution) to be recovered by the third
party from the defendant must:
(a)
determine the defendant’s contribution as a
percentage, being such percentage as the court thinks just and equitable
(having regard to the extent of the responsibility of the defendant and the
third party, respectively, for the claimant’s damages),
and
(b)
determine the amount of damages to which the
claimant is, or would be, entitled in accordance with this Part (as if the
award of damages against the third party were not excluded from the operation
of this Part), and
(c)
fix the amount of the defendant’s
contribution by applying the percentage determined under paragraph (a) to the
amount of damages determined under paragraph (b).
(3)
The amount of damages that may be recovered by
the claimant from the third party is to be reduced by the difference
between:
(a)
the amount of the contribution to which the third
party would have been entitled (but for this section) from the defendant,
and
(b)
the amount of the defendant’s contribution
calculated under subsection (2).
(4)
Subsection (3) does not limit any greater
reduction (applicable under any other law) in the amount of damages that may
be recovered by the claimant from the third party.
20Contributory
negligence—claims under the Compensation to
Relatives Act 1897
(1)
In a claim for personal injury damages brought
under the Compensation to Relatives Act
1897, the court is entitled to have regard to the
contributory negligence of the deceased person.
(2)
Section 13 of the Law Reform
(Miscellaneous Provisions) Act 1965 does not apply so as
to prevent the reduction of damages by the contributory negligence of a
deceased person in respect of a claim for personal injury
damages.
21Exemplary, punitive and
aggravated damages
In an action for the award of personal injury
damages where the fault that caused the injury or death concerned is
negligence, a court cannot award exemplary or punitive damages or damages in
the nature of aggravated damages.
22Court may make consent order
for structured settlement
(1)
This section applies where the parties to a claim
for personal injury damages agree to settle the claim by making a structured
settlement and apply to the court for an order approving of or in the terms of
the structured settlement.
(2)
The court may make the order even though the
payment of damages is not in the form of a lump sum award of
damages.
(3)
For the purposes of this section, a structured settlement is an
agreement that provides for the payment of all or part of an award of damages
in the form of periodic payments funded by an annuity or other agreed
means.
Schedule 1Savings and transitional
provisions
(Section 7)
Part 1Preliminary
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of the following
Acts:
this Act
(2)
Any such provision may, if the regulations so
provide, take effect from:
(a)
20 March 2002 or a later date where this Act is
the Act concerned, or
(b)
where some other Act is the Act concerned, the
date of assent to that Act or a later date.
Part 2Provisions consequent on
enactment of this Act
2Application of Act to existing
injuries and pending claims
(1)
Part 2 of this Act extends to an award of
personal injury damages that relates to an injury received, or to a death
resulting from an injury received, whether before or after the commencement of
this Act.
(2)
However, Part 2 of this Act does not apply to or
in respect of:
(a)
an award of damages in proceedings commenced in a
court before the commencement of this Act, or
(b)
an award of damages, or settlement or consent
order in respect of damages, made before the date of assent to this
Act.
3Application of Act to health
care claims
Despite the amendments made by this Act to the
Health Care Liability Act 2001, that Act
continues to apply (as if it had not been amended by this Act) to an award in
respect of a health care claim (as defined in that Act) in proceedings
commenced in a court before the commencement of this
Act.
4Application of Act to claims
against the Crown notified before 20 March 2002
(1)
Part 2 of this Act does not apply to or in
respect of an award of damages on a claim against the Crown if the Crown has
been notified in writing of the claim before 20 March 2002 and:
(a)
the damages are awarded (or are the subject of a
settlement or consent order made) before 1 September 2002,
or
(b)
proceedings on the claim are commenced in a court
before 1 September 2002, or
(c)
proceedings on the claim cannot be commenced
before 1 September 2002 because the injury concerned has not
stabilised.
(2)
This clause does not apply to an award in respect
of a health care claim as defined in the Health Care
Liability Act 2001.
(3)
In this clause:
Crown means the Crown within the
meaning of the Crown Proceedings Act
1988 and includes a State owned corporation within the
meaning of the State Owned Corporations Act
1989.
Schedule 2Amendment of
Acts
(Section 8)
2.1Health
Care Liability Act 2001 No 42
[1]Part 2 Awarding of damages in
health care claims
Omit the Part.
[2]Section 28 Determination of
contribution to third party
Omit the section.
2.2Legal
Profession Act 1987 No 109
[1]Section 196 Regulations to
provide for related costs
Insert as section 196 (1) (a2):
(a2)
fixing the costs payable for legal services
provided in connection with any claim for personal injury damages (within the
meaning of the Civil Liability Act
2002),
[2]Part 11 Legal fees and other
costs
Insert after Division 5A:
Division 5BMaximum costs in personal
injury damages matters
198CInterpretation and
application
(1)
In this Division:
defendant means a person against
whom a claim for personal injury damages is or may be made.
party means plaintiff or
defendant.
personal
injury damages has the same meaning as in the Civil Liability Act 2002.
plaintiff means a person who makes
or is entitled to make a claim for personal injury
damages.
(2)
This Division does not apply to the following
costs:
(a)
costs payable to an applicant for compensation
under Part 2 of the Victims Support and Rehabilitation Act
1996 in respect of the application for
compensation,
(b)
costs for legal services provided in respect of a
claim under the Motor Accidents Act
1988 or Motor Accidents
Compensation Act 1999,
(c)
costs for legal services provided in respect of a
claim for work injury damages (as defined in the Workplace Injury Management and Workers Compensation Act
1998),
(d)
costs for legal services provided in respect of a
claim for damages in proceedings of the kind referred to in section 11 (Claims
for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act
1989.
198DMaximum 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.
(2)
The regulations may prescribe an amount to
replace the amount of $100,000 or $10,000 in subsection (1) and may prescribe
a percentage to replace the percentage of 20% in subsection (1). When such a
replacement amount or percentage is prescribed, it applies for the purposes of
subsection (1) in place of the amount or percentage that it
replaces.
(3)
The regulations may contain provisions of a
savings or transitional nature consequent on the making of regulations under
this section.
(4)
When the maximum costs for legal services
provided to a party are fixed by this Division the following provisions apply
(subject to sections 198E–198G):
(a)
a solicitor or barrister is not entitled to be
paid or recover for those legal services an amount that exceeds those maximum
costs,
(b)
a court or tribunal cannot order the payment by
another party to the claim of costs in respect of those legal services in an
amount that exceeds that maximum,
(c)
in assessing the amount of those costs that is a
fair and reasonable amount, a costs assessor cannot determine an amount that
exceeds the maximum set by this section.
(5)
A reference in this Division to legal services
provided to a party is a reference to legal services provided to the party by
a solicitor or barrister (including by an agent or employee of the solicitor
or barrister). Costs for legal services do not include costs charged as
disbursements for services provided by any other person or other
disbursements.
(6)
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 proved by the plaintiff at the hearing of the
claim.
(7)
Maximum costs fixed by this section apply despite
regulations under section 196 (1) (a2) fixing those
costs.
198EMaximum costs do not affect
solicitor-client costs under costs agreements
(1)
This Division does not apply to the recovery of
costs payable as between a solicitor or barrister and the solicitor’s or
barrister’s client to the extent that recovery of those costs is
provided for by a costs agreement that complies with Division
3.
(2)
The regulations may make provision for or with
respect to requiring disclosure by a solicitor or barrister to the
solicitor’s or barrister’s client of information in relation to
the effect of a costs agreement in connection with the operation of this
Division.
(3)
The regulations may provide that a failure by a
solicitor or barrister to comply with the requirements of the regulations
under this section disentitles the solicitor or barrister to the benefit of
this section, and in such a case this Division applies in respect of the claim
concerned despite the terms of any costs agreement.
198FCosts can be awarded on
indemnity basis for costs incurred after failure to accept offer of
compromise
(1)
If a party to a claim for personal injury damages
makes a reasonable offer of compromise on the claim that is not accepted, this
Division does not prevent the awarding of costs against another party to be
assessed on an indemnity basis in respect of legal services provided after the
offer is made.
(2)
An offer of compromise on a claim by a party is
reasonable if the court determines
or makes an order or award on the claim in terms that are no less favourable
to the party than the terms of the offer.
(3)
The regulations may make provision for or with
respect to requiring disclosure by a solicitor or barrister to the
solicitor’s or barrister’s client of information in relation to
the operation of this section in respect of any refusal by the client to
accept an offer of compromise.
(4)
If it appears to the court in which proceedings
are taken on a claim for damages that a solicitor or barrister has failed to
comply with any provision of the regulations under this section, and that the
client of the solicitor or barrister has incurred an increased liability for
costs as a result of refusing a reasonable offer of compromise in connection
with the claim concerned, the court may of its own motion or on the
application of the client make either or both of the following orders:
(a)
an order directing the solicitor or barrister to
repay to the client the whole or any part of those increased costs that the
client has been ordered to pay to any other party,
(b)
an order directing the solicitor or barrister to
indemnify any party other than the client against the whole or any part of the
costs payable by the party indemnified in respect of legal services provided
after the offer is refused.
198GCourt may order certain legal
services to be excluded from maximum costs limitation
A court hearing a claim for personal injury
damages may by order exclude from the operation of this Division legal
services provided to a party to the claim if the court is satisfied that the
legal services were provided in response to any action on the claim by or on
behalf of the other party to the claim that in the circumstances was not
reasonably necessary for the advancement of that party’s case or was
intended or reasonably likely to unnecessarily delay or complicate
determination of the claim.
198HApportionment of maximum costs
between solicitors and barristers
(1)
If more than one person (solicitor or barrister)
provides legal services to a party in connection with a claim, the maximum
costs fixed by this Division are to be apportioned between them as agreed by
them or (failing agreement) as ordered by the court hearing proceedings on the
claim.
(2)
The maximum then applicable to a particular
solicitor or barrister is the solicitor’s or barrister’s
apportioned share of those maximum costs.
198IMeaning of “amount
recovered” on a claim
(1)
A reference in this Division to the amount
recovered on a claim includes any amount paid under a compromise or settlement
of the claim (whether or not legal proceedings have been
instituted).
(2)
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.
Division 5CCosts in civil claims where no
reasonable prospects of success
198JSolicitor or barrister not to
act unless there are reasonable prospects of success
(1)
A solicitor or barrister must not provide legal
services on a claim or defence of a claim for damages unless the solicitor or
barrister reasonably believes on the basis of provable facts and a reasonably
arguable view of the law that the claim or the defence (as appropriate) has
reasonable prospects of success.
(2)
A fact is provable only if the solicitor or
barrister reasonably believes that the material then available to him or her
provides a proper basis for alleging that fact.
(3)
This Division applies despite any obligation that
a solicitor or barrister may have to act in accordance with the instructions
or wishes of his or her client.
(4)
A claim has reasonable prospects of success if
there are reasonable prospects of damages being recovered on the claim. A
defence has reasonable prospects of success if there are reasonable prospects
of the defence defeating the claim or leading to a reduction in the damages
recovered on the claim.
(5)
Provision of legal services in contravention of
this section constitutes for the purposes of this Division the provision of
legal services without
reasonable prospects of success.
198KPreliminary legal work not
affected
This Division does not apply to legal services
provided as a preliminary matter for the purpose of a proper and reasonable
consideration of whether a claim or defence has reasonable prospects of
success.
198LRestrictions on commencing
proceedings without reasonable prospects of success
(1)
The provision of legal services without
reasonable prospects of success does not constitute an offence but is capable
of being professional misconduct or unsatisfactory professional
conduct.
(2)
A solicitor or barrister cannot file originating
process or a defence on a claim for damages unless the solicitor or barrister
certifies that there are reasonable grounds for believing on the basis of
provable facts and a reasonably arguable view of the law that the claim or the
defence (as appropriate) has reasonable prospects of
success.
(3)
Originating process or a defence on a claim for
damages is not to be accepted for lodgment unless accompanied by the
certification required by this section. Rules of court may make provision for
or with respect to the form of that certification.
198MCosts order against solicitor
or barrister who acts without reasonable prospects of
success
(1)
If it appears to a court in which proceedings are
taken on a claim for damages that a solicitor or barrister has provided legal
services to a party without reasonable prospects of success, the court may of
its own motion or on the application of any party to the proceedings make
either or both of the following orders in respect of the solicitor or
barrister who provided the services:
(a)
an order directing the solicitor or barrister to
repay to the party to whom the services were provided the whole or any part of
the costs that the party has been ordered to pay to any other
party,
(b)
an order directing the solicitor or barrister to
indemnify any party other than the party to whom the services were provided
against the whole or any part of the costs payable by the party
indemnified.
(2)
The Supreme Court may on the application of any
party to proceedings on a claim for damages make any order that the court in
which proceedings on the claim are taken could make under this
section.
(3)
An application for an order under this section
cannot be made after a final determination has been made under this Part by a
costs assessor of the costs payable as a result of an order made by the court
in which the proceedings on the claim concerned were
taken.
(4)
A solicitor or barrister is not entitled to
demand, recover or accept from his or her client any part of the amount for
which the solicitor or barrister is directed to indemnify a party pursuant to
an order under this section.
198NOnus on solicitor or barrister
to show facts provided reasonable prospects of success
(1)
If the court (the trial
court) hearing proceedings on a claim for damages finds that
the facts established by the evidence before the court do not form a basis for
a reasonable belief that the claim or the defence had reasonable prospects of
success, there is a presumption for the purposes of this Division that legal
services provided on the claim or the defence (as appropriate) were provided
without reasonable prospects of success.
(2)
If the Supreme Court (when the Supreme Court is
not the trial court) is satisfied, either as a result of a finding of the
trial court or otherwise on the basis of the judgment of the trial court, that
the facts established by the evidence before the trial court do not form a
basis for a reasonable belief that the claim or the defence had reasonable
prospects of success, there is a presumption for the purposes of this Division
that legal services provided on the claim or the defence (as appropriate) were
provided without reasonable prospects of success.
(3)
A presumption arising under this section is
rebuttable and a solicitor or barrister who seeks to rebut it bears the onus
of establishing that at the time legal services were provided there were
provable facts (as provided by section 198J) that provided a basis for a
reasonable belief that the claim or the defence on which they were provided
had reasonable prospects of success.
(4)
A solicitor or barrister may, for the purpose of
establishing that at the time legal services were provided there were provable
facts (as provided by section 198J) that provided a basis for a reasonable
belief that the claim or the defence on which they were provided had
reasonable prospects of success, produce information or a document despite any
duty of confidentiality in respect of a communication between the solicitor or
barrister and a client, but only if:
(a)
the client is the client to whom the legal
services were provided or consents to its disclosure, or
(b)
the court is satisfied that it is necessary for
the solicitor or barrister to do so in order to rebut a presumption arising
under this section.
[3]Section 208O Costs fixed by
regulations
Insert “(a2),” before
“(b)” in section 208O (1).
[4]Schedule 8 Savings,
transitional and other provisions
Insert at the end of clause 1A (1):
Civil Liability
Act 2002 (to the extent that it amends this
Act)
[5]Schedule
8
Insert after clause 1A (2):
(2A)
A provision referred to in subclause (1) may,
where the Act concerned is the Civil Liability
Act 2002 and if the regulations so provide, take effect
from 20 March 2002 or a later date. Subclause (3) does not apply to such a
provision.
[6]Schedule
8
Insert at the end of the Schedule with
appropriate Part and clause numbering:
PartProvisions consequent on
enactment of Civil Liability Act
2002
Application of costs
amendments
(1)
Division 5B (Maximum costs in personal injury
damages matters) of Part 11 does not apply in respect of legal services
provided before 7 May 2002 but extends to legal services provided on or after
that date even if the legal services are provided in connection with a claim
that arose before that date (and whether or not proceedings on the claim were
commenced before that date).
(2)
Division 5C (Costs in civil claims where no
reasonable prospects of success) of Part 11 extends to legal services provided
on or after 20 March 2002 even if the legal services are provided in
connection with a claim that arose before that date (and whether or not
proceedings on the claim were commenced before that
date).
(3)
However, section 198L (2) and (3) do not apply in
respect of proceedings commenced before the date of assent to the Civil Liability Act
2002.
(4)
An order may not be made under section 198M (and
an application for such an order may not be made) before the date of assent to
the Civil Liability Act
2002.
Apportionment of costs for
legal services
(1)
In the application of Division 5B of Part 11 to a
claim for personal injury damages that straddles 7 May 2002, the following
provisions have effect in respect of the costs for legal services provided to
a party in connection with the claim:
(a)
the costs for legal services provided on or after
7 May 2002 are to be determined as a proportion of the total costs for legal
services provided to the party (that is, for legal services provided before,
on or after 7 May 2002),
(b)
the proportion determined under paragraph (a) is
to be applied to the maximum costs for legal services that would (apart from
this clause) be applicable in respect of the claim under section 198D, so as
to arrive at a reduced
maximum amount for costs in respect of legal services
provided on or after 7 May 2002,
(c)
that reduced maximum amount becomes, for the
purposes of section 198D, the maximum costs for legal services provided to the
party in connection with the claim on or after 7 May
2002.
Note—
Section 198D does not apply to costs for legal
services provided before 7 May 2002.
(2)
After the date of assent to the Civil Liability Act 2002, a solicitor or
barrister must not provide a legal service to a party in connection with a
claim for personal injury damages that straddles 7 May 2002 unless the party
has been notified in writing by the solicitor or barrister of the effect of
Divisions 5B and 5C of Part 11.
(3)
A claim straddles 7 May 2002 if legal
services are provided in connection with the claim both before and on or after
7 May 2002.
Historical
notes
Table of amending
instruments
Civil Liability
Act 2002 No 22. Second reading speech made: Legislative
Assembly, 28.5.2002; Legislative Council, 4.6.2002. Assented to 18.6.2002.
Date of commencement, 20.3.2002, sec 2.