Spanos by his tutor Spanos v Thornberry [2013] NSWDC 193

District Court New South Wales

Medium Neutral Citation: Spanos by his tutor Spanos v Thornberry [2013] NSWDC 193 Hearing dates: 20 September 2013 Decision date: 20 September 2013 Before: Gibson DCJ Decision: (1) Grant leave under Uniform Civil Procedure Rules 2005 (NSW) r 18.4 for the defendant's notice of motion to be returnable instanter. (2) Defendant's notice of motion dismissed. (3) Costs of the notice of motion to be the plaintiff's costs in the proceedings. (4) Pursuant to ss 75 - 77 Civil Procedure Act 2005 (NSW) I approve the settlement set out in the Consent Judgment filed in court today. (5) Judgment for the plaintiff for the sum in paragraph 1 of the Consent Judgment. (6) Note the provisions of paragraphs 3 - 4 of the Consent Judgment. (7) Defendant pay plaintiff's costs of these proceedings, including the notice of motion, as agreed or assessed. (8) The net sum referred to in paragraph 2 of the Consent Judgment is to be paid direct to the NSW Trustee and Guardian for investment until the plaintiff attains the age of 18 years. Catchwords: COSTS - defendant sentenced to good behaviour bond for a period of 12 months, with no conviction recorded, pursuant to s 10(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), for assault on a minor - minor commences proceedings for damages for assault - approval of court sought under ss 75 - 77 Civil Procedure Act 2005 (NSW) - claim settled for amount below the District Court's monetary threshold (Pt 42 r 42.35 Uniform Civil Procedure Rules 2005 (NSW)) - defendant submits no costs should be payable as these proceedings should not have been commenced or continued in the District Court - defendant alternatively argued that circumstances warranted limiting of costs under s 98 Civil Procedure Act 2005 (NSW) - nature, conduct and complexity of proceedings - range of general damages likely to be awarded - whether aggravated damages available - whether exemplary damages available where the defendant's sentence amounted to a "nominal penalty" (Gray v Motor Accidents Commission (1998) 196 CLR 1 at [45]) - whether late application by plaintiff for a gross sum costs order under s 98(4) should be granted - order for defendant to pay plaintiff's costs on a party/party basis Legislation Cited: Civil Procedure Act 2005 (NSW), ss 75-77 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 Cited: 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 Texts Cited: Dal Pont, Law of Costs, 2nd edition, 2009 Ontario Law Reform Commission, Report on Exemplary Damages (1991) Category: Principal judgment Parties: Plaintiff: Luke Spanos by his tutor Helen Spanos Defendant: Donna Thornberry Representation: Plaintiff: Mr L Robison Defendant: Ms A Moen Plaintiff: Marsdens Law Group Defendant: Macedone Legal File Number(s): 2012/284128 Publication restriction: None