Millard v Australian Capital Territory - [2020] ACTSC 138

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Millard v Australian Capital Territory
Citation:	[2020] ACTSC 138
Hearing Dates:	21–22, 25, 27 May 2020
DecisionDate:	28 May 2020
Before:	Murrell CJ
Decision:	Each party is to pay its own costs of proceedings SC 185A of 2020.
Catchwords:	PROCEDURE – COSTS – Urgent injunction
Legislation Cited:	Transplantation and Anatomy Act1978 (ACT) ss 27, 45
Cases Cited:	Australian Capital Territory v JT [2009] ACTSC 105; 4 ACTLR 68 Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 Northbridge v Central Sydney Area Health Service [2000] NSWSC 1241; 50 NSWLR 549
Parties:	Jamie Damian Millard (Plaintiff) Australian Capital Territory (Defendant)
Representation:	Counsel D Campbell SC (Plaintiff) N Hancock (Defendant)
Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (Defendant)
File Number(s):	SC 185 of 2020

MURRELL CJ:

This is a costs application in relation to proceedings that have largely resolved.

On Saturday, 16 May 2020, following an argument with the plaintiff (her partner), Khayla Reno left the residence where both were residing. She drove her two children to Tumut, NSW. At the time, Ms Reno was pregnant with the plaintiff’s child. The foetus was approximately 19 weeks old. Generally, a foetus is considered to be viable from about 23 weeks old.

On the afternoon of 16 May 2020, at Tumut, Ms Reno’s vehicle was involved in a very serious motor vehicle accident. She sustained severe head injuries. She was airlifted to The Canberra Hospital and admitted to the intensive care unit, where she came under the care of Dr Robertson. The children were airlifted to Westmead Hospital, NSW. Subsequently, one of the children passed away. The other remains in critical care.

On 7 May 2020, Ms Reno had executed an enduring power of attorney in favour of the plaintiff, inter alia, authorising him to act in relation to healthcare matters.

When Ms Reno arrived at the Canberra Hospital (the Hospital) on the evening of Saturday, 16 May 2020, she was met by the plaintiff, who remained by her side over the weekend.

On the morning of Monday, 18 May 2020, the plaintiff spoke to medical staff and other family members of Ms Reno. He went home to search for the enduring power of attorney. At that stage, the plaintiff could not find the document.

There was a background of some tension between the plaintiff and some (but not all) members of Ms Reno’s family concerning the plaintiff’s alleged treatment of Ms Reno.

During Monday, 18 May, members of Ms Reno’s family told Dr Robertson that, at the time of the motor vehicle accident, Ms Reno may have been in the process of leaving the relationship. No doubt, that was their genuine belief. We will never know whether that was in fact the case or whether, even if it was the case, Ms Reno may have later changed her mind.

At about 11 AM on Monday, 18 May, when the plaintiff returned to the Hospital, he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Millard v Australian Capital Territory

Details

AGLC: Millard v Australian Capital Territory [2020] ACTSC 138
Case: [2020] ACTSC 138
Decision Date: 28 May 2020

CaseChat Overview and Summary

The case of Millard v Australian Capital Territory involved a dispute over the allocation of costs for urgent injunctive relief. The applicant, Millard, sought an injunction to prevent the respondent, the Australian Capital Territory, from taking certain actions. The matter was heard in the Supreme Court of the Australian Capital Territory. The primary focus of the litigation was whether the costs associated with obtaining the urgent injunction should be borne by the respondent or the applicant, and if so, to what extent.

The court was tasked with determining the appropriate legal framework to apply in allocating the costs of urgent injunctive relief, particularly when the injunction was ultimately not granted. The central issue was whether the traditional "costs follow the event" principle applied, or if the court had discretion to order a different cost allocation under specific circumstances. The applicant argued that the costs should be borne by the respondent as the injunction was sought to prevent a significant harm that would have resulted from the respondent's actions. The respondent contended that the costs should be borne by the applicant as the application was ultimately unsuccessful.

In reaching its decision, the court considered the principles governing costs in urgent injunctive proceedings and the relevant statutory provisions. The court found that the traditional principle did not rigidly apply in cases involving urgent injunctive relief, especially where the outcome of the application was uncertain and the potential harm to the applicant was significant. However, the court held that the applicant's costs should not be entirely borne by the respondent. Instead, the court exercised its discretion to order that each party bear their own costs, recognising the complexity of the issues and the importance of the matters at stake.

Ultimately, the court ordered that each party was to pay its own costs of the proceedings. This decision reflects the court's balanced approach to the allocation of costs in cases involving urgent injunctive relief, taking into account the unique circumstances and the importance of the rights and interests of both parties.

Orders

Orders of the court

Each party is to pay its own costs of proceedings SC 185A of 2020.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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