Gary Mountain v Vaughan Liddicoat

[2006] ACTSC 73

GARY MOUNTAIN v VAUGHAN LIDDICOAT
[2006] ACTSC 73 (10 July 2006)

EX TEMPORE JUDGMENT

No.  SC 719 of 2005

Judge:             Madgwick J
Supreme Court of the ACT

Date:              10 July 2006

IN THE SUPREME COURT OF THE     )
  )          No.  SC 719 of 2005
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:GARY MOUNTAIN

Plaintiff

AND:VAUGHAN LIDDICOAT

Defendant

ORDER

Judge:  Madgwick J
Date:  10 July 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. Costs be assessed or taxed on a solicitor/client basis since 26 October 2005.

1. The parties have settled this matter, including by way of an agreement that the defendants should pay the plaintiff’s costs.  However both parties desire the Court to determine whether, in the assessment or taxation of costs, effect should be given to a Calderbank letter written by the plaintiff’s solicitors to the insurer for the defendant on 5 October 2005 before the commencement of action.

1. The defendant makes the point that it is only by the procedures for subpoena of the production of documents that become available to it after the commencement of an action that relevant information can be obtained.  This is true as a general point, but it needs to be considered in the circumstances of the particular case.  Here the defendant fairly says the only serious material that it needed to check was as to the plaintiff’s prior medical history.  It is clear that, in the circumstances, the defendant was in a position, practically speaking, to obtain this information before 5 October 2005 and that negotiations had been continuing for over a year.

1. Everybody would agree that settlement of claims such as these, particularly the smaller ones, without litigation, is desirable.  The defendant’s insurer no doubt has a similar view.  In order to encourage a reasonable regime to give effect to that desirable policy, it seems to me appropriate to require the exercise of reasonable diligence by a defendant to obtain information pre-trial if it is to avoid the consequences of a Calderbank letter.  I do not wish to be critical of those involved in this case, however, the circumstances are such that it seems to me that effect should be given to the letter. 

1. The costs since 26 October 2005 should be assessed or taxed on a solicitor/client basis.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Date:    25 July 2006

Counsel for the plaintiff:  F M G Parker
Solicitor for the plaintiff:  Gary Robb & Associates
Counsel for the defendant:  P J Nolan
Solicitor for the defendant:  Sparke Helmore
Date of hearing:  10 July 2006
Date of judgment:  10 July 2006