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Chong v Nguyen

Chong v Nguyen

Case [2005] NSWSC 588 23 September 2005

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CITATION:
CHONG v NGUYEN [2005] NSWSC 588
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 2 September 2005

JUDGMENT DATE :

23 September 2005

JURISDICTION:
Supreme Court of New South Wales

JUDGMENT OF:
Rothman J at 1

DECISION:
AT PARA [50]: The defendant shall respond to interrogatories 3, 8, 11 and 15(d) of the Plaintiff's Notice to Answer Interrogatories dated 30 September 2004.

CATCHWORDS:
Professional negligence - State of mind interrogatories - Objections to Interrogatories - Whether interrogatories where necessary for fair trial - Meaning of "necessary"

LEGISLATION CITED:
Supreme Court Rules Part 24

CASES CITED:
Boyle v Downs [1979] 1 NSWLR 192
Shutt v Queenan [2000] NSWCA 341
Griebart v Morris [1920] 1 KB 659
Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435

PARTIES:
Plaintiff - Gek Ngor CHONG
Defendant - Hung Trung NGUYEN

FILE NUMBER(S):
SC 2004/20082

COUNSEL:
Plaintiff - Mr D Graham
Defendant - Mr S Woods

SOLICITORS:
Plaintiff - McLaughlin & Riordan
Defendant - David Ian Brown

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Rothman J

23 September 2005

2004/20082

GEK NGOR CHONG v HUNG TRUNG NGUYEN

JUDGMENT

1 HIS HONOUR: On 17 February 2000, the plaintiff, Gek Ngor Chong, went to a doctor, the defendant Hung Trung Nguyen, complaining of tiredness and weight gain. After that date, Ms Chong consulted Dr Nguyen on a number of occasions expressing on each occasion the same or similar complaint.

2 Dr Nguyen sent Ms Chong for certain blood tests over the period 18 February 2000 to 1 November 2001 during which time Dr Nguyen diagnosed Ms Chong as suffering, at least, from depression.

3 Dr Nguyen did not diagnose or prescribe treatment for any kidney disease or condition until 20 February 2001 or later.

4 On 1 November 2001 Ms Chong suffered renal failure and on 6 November 2001 underwent a renal biopsy at Liverpool Hospital which, it is said, demonstrated a severe long-standing IgA nephropathy.

5 On 23 March 2004 Ms Chong commenced these proceedings claiming damage for alleged negligence of Dr Nguyen for failing to diagnose or treat the kidney condition within a reasonable time.

6 Since 23 March 2004 there have been various amendments to the pleadings and Ms Chong now relies on a Further Amended Statement of Claim filed on 19 April 2005 from which the above recital is taken. It does not matter, at this stage or for the purpose of the current proceedings, whether all of the above withstands the burden of proof on Ms Chong. The above is reiterated for the purpose of stating the necessary background for the motion with which I am now dealing.

7 On 3 November 2004 the Court ordered the defendant, Dr Nguyen, to answer interrogatories. The plaintiff, Ms Chong, now alleges that some of the interrogatories have not been answered which allegation is admitted but defended on the basis that…

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 Chong v Nguyen

Details

AGLC: Chong v Nguyen [2005] NSWSC 588
Case: [2005] NSWSC 588
Decision Date: 23 September 2005

CaseChat Overview and Summary

In the case of Chong v Nguyen, the plaintiff sought to recover damages for professional negligence against the defendant, a legal practitioner. The plaintiff alleged that the defendant failed to advise them of their legal rights and obligations in a timely manner, resulting in financial loss. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the plaintiff's proposed interrogatories, which sought to establish the defendant's state of mind, were necessary for the fair trial of the case. The defendant objected to the interrogatories on the grounds that they were not necessary, and the court had to determine the meaning of "necessary" in this context.

The court held that in order for interrogatories to be deemed necessary, they must be relevant to an issue in the case and assist in the fair determination of that issue. The court found that the plaintiff's proposed interrogatories were not necessary as they did not directly relate to any issue in the case and would not assist in the fair trial of the matter. The court emphasised that the purpose of interrogatories is to obtain information that is relevant and necessary to the issues in the case, and that they should not be used to obtain information that is merely collateral or speculative. The court held that the interrogatories were not necessary as they sought information that was not relevant to the issues in the case and would not assist in the fair determination of the matter.

The court further held that the plaintiff's proposed interrogatories were oppressive and vexatious in nature, and that the defendant was not required to answer them. The court found that the interrogatories were an abuse of the court process and were not necessary for the fair trial of the matter. The court emphasised that the parties must conduct themselves in a manner that is consistent with the proper administration of justice and that they must not abuse the court process. The court held that the defendant's objections to the interrogatories were well-founded and that the interrogatories were not necessary for the fair trial of the case.

The court dismissed the plaintiff's application for leave to serve the interrogatories and awarded costs to the defendant. The court held that the interrogatories were not necessary for the fair trial of the case and that the plaintiff's application for leave to serve them should be dismissed. The court also held that the defendant was entitled to costs on an indemnity basis for the proceedings.

Orders