Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Ziliotto v Hakim [2013] NSWCA 359 Hearing dates: 29 August 2013 Decision date: 31 October 2013 Before: Basten JA at [1];
Macfarlan JA at [24];
Tobias AJA at [25]Decision: (1) Extend the time in which the Respondent may file his Notice of Contention to the date being seven days from the publication of these reasons;
(2) Appeal allowed in part;
(3) Set aside Order (1) made by Davies J on 24 July 2012 and in lieu thereof judgment for the Appellant in the sum of $1,528,385;
(4) Set aside Order (2) made by Davies J on 24 July 2012 as varied on 19 September 2012 and in lieu thereof order that the Respondent pay the Appellant's costs at first instance on an ordinary basis up to and including 7 April 2011 and that thereafter there be no order as to the costs of the proceedings other than in relation to the Respondent's costs thrown away by reason of the adjournment granted on 22 June 2011, such costs to be paid by the Appellant;
(5) The Respondent pay 60 per cent of the Appellant's costs of the appeal but have a certificate under the Suitors' Fund Act 1951, if otherwise qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL - adequacy of reasons - conflicting testimony of experts - explanation required for adopting preferred opinion - whether need to address 'sub-issues' - need to balance transparency and prolixity
DAMAGES - assessment of damages - medical negligence - no issues of principle
COSTS - offer of compromise - offer not in accordance with r 20.26 UCPR - whether valid Calderbank letter - whether discretion under UCPR, r 42.1 should be exercisedLegislation Cited: Civil Liability Act 2002, s 13
Civil Procedure Act 2005, ss 56, 58, 98, 101
Uniform Civil Procedure Rules, rr 20.26, 42.1, 42.13A, 42.14Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302
Calderbank v Calderbank [1975] 3 WLR 586; [1975] 3 All ER 333; [1976] Fam 93
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
Council of the City of Canterbury v Milich [2013] NSWCA 215
Dunstan v Rickwood (No 2) [2007] NSWCA 266; (2007) 38 Fam LR 491
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Flannery v The Halifax Estate Agencies Ltd [2000] 1 WLR 377
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186
Grbavac v Hart [1997] 1 VR 154
Hazim Jawad v Mehdi Rahim…
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- AGLC
- Ziliotto v Hakim [2013] NSWCA 359
- Case
- [2013] NSWCA 359
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the trial judge's reasons for preferring the respondent's expert evidence were sufficiently detailed, especially given conflicting expert testimony. Further, the court had to consider the principles governing the assessment of damages in medical negligence cases, and whether the costs orders made at first instance, including the treatment of an offer of compromise and a subsequent Calderbank letter, were appropriate. The court also had to consider the appellant's entitlement to costs of the appeal.
The Court of Appeal found that while the trial judge was not required to address every sub-issue raised by the experts, the reasons provided for preferring one expert opinion over another were inadequate. The court held that where there is conflicting expert testimony, a judge must provide a clear explanation for adopting one opinion and rejecting the other. The court also varied the assessment of damages, finding that the original award did not adequately reflect the evidence. Regarding costs, the court determined that the offer of compromise was not in accordance with the relevant rules, and that the discretion to award costs should be exercised by considering the overall conduct of the parties and the outcome of the litigation. The appeal was allowed in part, with the judgment for the appellant at first instance being increased, and the costs orders at first instance and on appeal were significantly altered.
Orders
Orders of the court
(1) Extend the time in which the Respondent may file his Notice of Contention to the date being seven days from the publication of these reasons;
(2) Appeal allowed in part;
(3) Set aside Order (1) made by Davies J on 24 July 2012 and in lieu thereof judgment for the Appellant in the sum of $1,528,385;
(4) Set aside Order (2) made by Davies J on 24 July 2012 as varied on 19 September 2012 and in lieu thereof order that the Respondent pay the Appellant's costs at first instance on an ordinary basis up to and including 7 April 2011 and that thereafter there be no order as to the costs of the proceedings other than in relation to the Respondent's costs thrown away by reason of the adjournment granted on 22 June 2011, such costs to be paid by the Appellant;
(5) The Respondent pay 60 per cent of the Appellant's costs of the appeal but have a certificate under the Suitors' Fund Act 1951, if otherwise qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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