SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT v Gillan; Gillan v ACT |
Citation: | [2019] ACTSC 200 |
Hearing Date: | 13 November 2018 |
DecisionDate: | 2 August 2019 |
Before: | Penfold J |
Decision: | 1. The ACT is to pay Mr Gillan’s costs in the Magistrates Court proceedings on an indemnity basis. 2. The ACT is to pay Mr Gillan’s costs of the appeal on an indemnity basis. 3. The ACT is to pay Mr Gillan’s costs of the cross-appeal on the ordinary basis. 4. Orders 2 and 3 are stayed until further order. |
Catchwords: | PROCEDURE – COSTS – plaintiff’s claim of medical negligence by defendant based on defendant’s failure to offer alternative treatments for ruptured Achilles tendon – Calderbank offer by plaintiff in Magistrates Court rejected – plaintiff’s damages in Magistrates Court lower than amount offered in Calderbank offer – Supreme Court appeal by defendant and cross-appeal by plaintiff – plaintiff’s damages on appeal higher than amount offered in Calderbank offer – whether defendant’s rejection of Calderbank offer reasonable – rejection based on defendant’s misunderstanding of plaintiff’s case and misapplication of medical literature about consequences of alternative treatments –misunderstanding of plaintiff’s case maintained despite detailed explanations of plaintiff’s case – misunderstanding of plaintiff’s case maintained in Supreme Court appeals – defendant to pay plaintiff’s Magistrates Court costs on indemnity basis – defendant to pay plaintiff’s costs of defendant’s Supreme Court appeal on indemnity basis – defendant to pay plaintiff’s costs of plaintiff’s Supreme Court cross-appeal on ordinary basis. |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 46 Court Procedures Rules 2006 (ACT) r 5052 |
Cases Cited: | ACT v Gillan; Gillan v ACT [2018] ACTSC 223 Baresic v Slingshot Holdings Pty Ltd (No 2) [2005] NSWCA 160 |
Parties: | Australian Capital Territory (Appellant/Cross-respondent) Andrew Bruce Gillan (Respondent/Cross-appellant) |
Representation: | Counsel S Arthur (Appellant/Cross-respondent) G Segal and L Casey (Respondent/Cross-appellant) |
| Solicitors ACT Government Solicitor (Appellant/Cross-respondent) Slater & Gordon (Respondent/Cross-appellant) | |
File Number: | SCA 39 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 13… |
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- Case
- [2019] ACTSC 200
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the reasonableness of the ACT's rejection of the Calderbank offer, which was predicated on a misunderstanding of Mr Gillan's case and an incorrect application of medical literature regarding alternative treatments. The court needed to assess whether this misunderstanding was a factor in the rejection and if it was reasonable under the circumstances. Furthermore, the court had to decide on the appropriate costs orders for the proceedings in both the Magistrates Court and the Supreme Court. This included whether the ACT should pay Mr Gillan's costs on an indemnity basis and whether the costs of the appeals should be subject to any stay.
The court found that the ACT's rejection of the Calderbank offer was unreasonable, as it was based on a persistent misunderstanding of Mr Gillan's case and an incorrect interpretation of the medical literature. Despite detailed explanations from Mr Gillan, the ACT continued to maintain this misunderstanding, even in the Supreme Court. The court held that the ACT's rejection of the Calderbank offer was not reasonable and ordered that the ACT pay Mr Gillan's costs in the Magistrates Court on an indemnity basis. Additionally, the ACT was ordered to pay Mr Gillan's costs for both the appeal and the cross-appeal, with the costs of the appeals to be paid on an indemnity basis, except for the costs of the cross-appeal, which were to be paid on the ordinary basis. The orders for payment of the appeal costs were stayed until further order.
In summary, the court ruled that the ACT's rejection of the Calderbank offer was unreasonable due to a misunderstanding of Mr Gillan's case and misapplication of medical literature. Consequently, the ACT was ordered to pay Mr Gillan's costs in the Magistrates Court on an indemnity basis and his costs for both the appeal and the cross-appeal, with the costs of the appeal to be paid on an indemnity basis and the costs of the cross-appeal on the ordinary basis. The orders for payment of the appeal costs were stayed pending further direction.
Orders
Orders of the court
1. The ACT is to pay Mr Gillan’s costs in the Magistrates Court proceedings on an indemnity basis.
2. The ACT is to pay Mr Gillan’s costs of the appeal on an indemnity basis.
3. The ACT is to pay Mr Gillan’s costs of the cross-appeal on the ordinary basis.
4. Orders 2 and 3 are stayed until further order.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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