ACT v Gillan; Gillan v ACT

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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
Brian JohnHarris v Mark Harris (No 2) [2013] NSWSC 1157
Degman Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354
Gett v Tabet [2009] NSWCA 76
Gretton v Commonwealth of Australia [2007] NSWSC 149
Fowdh v Fowdh (Unreported, New South Wales Court of Appeal, Acting President Mahoney, 4 November 1993)
Ingot Capital Investments v Macquarie Equity Capital Markets (No 7) [2008] NSWSC 199
Lowe v Lowe(No 3) [2015] NSWSC 1800
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Sharn Stanley v QBE Management Services Pty Ltd [2012] FWA 10164
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Tabet v Gett [2010] HCA 12; 240 CLR 537
Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27; 94 NSWLR 108
White Constructions (ACT) Pty Ltd (in liq) v White [2004] NSWSC 303

Xia v Yu [2018] NSWSC 1725

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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Details
Case
[2019] ACTSC 200
Decision Date

CaseChat Overview and Summary

In the case of ACT v Gillan; Gillan v ACT, the plaintiff, Mr Gillan, sued the Australian Capital Territory (ACT) for medical negligence in their handling of his ruptured Achilles tendon. The case originated in the Magistrates Court of the ACT and was subsequently appealed to the Supreme Court of the ACT. Mr Gillan argued that the ACT failed to offer him alternative treatments, which resulted in significant harm. The ACT rejected Mr Gillan’s Calderbank offer and the case proceeded to the Supreme Court, where Mr Gillan’s damages claim was ultimately increased. The court was tasked with determining whether the ACT's rejection of the Calderbank offer was reasonable and appropriate, given the misunderstanding of Mr Gillan's case and the misapplication of medical literature.

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

On 17 August 2018 I handed down judgment in ACT v Gillan; Gillan v ACT [2018] ACTSC 223 (the appeal judgment). I dismissed the ACT’s appeal against a Magistrate’s decision on liability, and upheld Mr Gillan’s appeal against the Magistrate’s decision on damages. As part of that decision, I foreshadowed an order that the ACT pay the costs of both appeals, subject to the parties indicating that they wished to make submissions about the costs of the appeal. Counsel for Mr Gillan indicated that as well as seeking indemnity costs for the appeal proceedings, Mr Gillan also sought a variation of the costs orders made in the Magistrates Court. This judgment deals with both the application for variation of the Magistrates Court costs orders, and with the costs orders to be made in respect of the appeal proceedings. The parties provided written submissions about these matters, and made brief oral submissions on 13 November 2018. Further written submissions were made about particular matters arising during the hearing of oral submissions. Determining this application involves consideration of three proceedings, being the Magistrates Court proceedings and the two Supreme Court appeals. The plaintiff in the Magistrates Court was the respondent and the cross-appellant in the Supreme Court, while the defendant in the Magistrates Court was the appellant and the cross-respondent in the Supreme Court. In this judgment I shall simply refer to the plaintiff/respondent/cross-appellant as Mr Gillan, and to the defendant/appellant/cross-respondent as the ACT. Both parties had legal representation at all times, so at some points reference to a party should be read as a reference to the party’s legal representatives. The proceedings were instituted in the Magistrates Court in February 2013. Copies of correspondence between the parties have been provided to me, as follows. In this letter, the ACT rejects an informal settlement conference “until such time as your client has served the necessary evidence for him to possibly succeed in his case”; expresses the view that Mr Gillan will not be able to do so; and makes a Calderbank offer, open for 28 days, to agree to the case being dismissed with no order as to costs (noting that the ACT’s costs are currently $16.380.04). The writer then explains why in his view Mr Gillan could not win, noting first that Mr Gillan’s ruptured Achilles tendon had been diagnosed (so there was no need for the ultrasound or MRI mentioned in the statement of claim), that Dr Lunz says that non-operative treatment was one of the options, and that there is no allegation that the treatment was provided negligently. He then goes on to suggest problems with Mr Gillan’s evidence (whether Mr Gillan would be able to prove that he was not offered the choice of treatment, and that if he had been, he would have chosen surgery) and then notes that if Mr Gillan did prove those matters, he would next need to prove that the breach of duty had materially contributed to the harm suffered. In this context, the writer refers both to s 46 of the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act) and to the NSW Court of Appeal’s reaffirmation in Gett v Tabet [2009] NSWCA 76 at [8] (which the writer says was endorsed by the High Court in Tabet v Gett [2010] HCA 12; 240 CLR 537) of the proposition that:

Ratio Decidendi

Legal Principle Established

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