Macquarie International Health Clinic Pty Limited v Sydney Local Health Network

[2011] NSWCA 231

Court of Appeal

New South Wales

Case Title:	Macquarie International Health Clinic Pty Limited v Sydney Local Health Network
Medium Neutral Citation:	[2011] NSWCA 231
Hearing Date(s):	1 August 2011
Decision Date:	01 August 2011
Jurisdiction:
Before:	Hodgson JA
Decision:	Accordingly, to give effect to order 4(13) made on 13 December 2010, I give the following directions: (1) Macquarie to make the election referred to in order 4(13) promptly on being given accounting material kept by Area Health up to 22 February 2010, and similar material up to the present. (2) If the election is for an inquiry as to damages, the matter be listed before a judge of the Equity Division to determine the scope of discovery. (3) I also order that the costs of today's proceedings be costs in the inquiry. [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:	PROCEDURE - Directions giving effect to final orders previously made.
Legislation Cited:
Cases Cited:
Texts Cited:
Category:	Procedural and other rulings
Parties:	appellant:  MACQUARIE INTERNATIONAL HEALTH CLINIC PTY LTD ACN 003 857 485 respondent/ cross-appellant:  SYDNEY LOCAL HEALTH DISTRICT first cross-respondent:  MACQUARIE HEALTH CORPORATION LIMITED second cross-respondent:  Dr Thomas Richard WENKART
Representation
- Counsel:	appellant/ cross-respondents:  R E Dubler SC respondent/ cross-appellant:  G K Burton SC/ P K Bruckner
- Solicitors:	appellant/ cross-respondents:  S Moran & Co respondent/ cross-appellant:  Bolzan & Dimitri
File number(s):	2009/298398; 2000/34949
Decision Under Appeal
- Court / Tribunal:
- Before:
- Date of Decision:
- Citation:
- Court File Number(s)
Publication Restriction:

Judgment

1. HIS HONOUR: This matter has been listed before me by Area Health, as I will refer to the party now substituted for that entity, under liberty to apply with a view to dealing with questions arising in giving effect to the orders made by the Court on 13 December 2010.

1. The questions concern particularly the effect of order 4(13) concerning an inquiry.

1. The parties are at odds on two matters in particular: first, the nature of the election referred to in the order, and second, the nature of the inquiry as to damages.

1. The position of Area Health is that the election only relates to a choice as to how damages are to be calculated in an inquiry as to damages.

1. It has been pointed out by Mr Burton that at 10 Black 4605 of the transcript of the hearing before Nicholas J, Macquarie explicitly abandoned paragraph 8 of the orders sought in its fifth amended statement of claim, that being the order seeking an account.

1. However, in my opinion, the effect of order 4(13), which was included in orders that the parties agreed followed from the Court of Appeal judgment, is to give Macquarie an election between an account and damages.

1. At present I do not see any basis on which this order can be relevantly varied.

1. However, having regard to the history of the matter, in my opinion this is an election that Macquarie should make before any further preparation for the inquiry takes place, apart from provision by Area Health of certain records.

1. The procedures for an inquiry as to damages and an account are quite different, and although a plaintiff may be entitled to be reasonably informed before it has to elect, this does not necessarily mean it is entitled to full discovery of every relevant document.

1. In the present case, having regard to the information Macquarie already has and its previous abandonment of its claim for an account, in my view it should make its election promptly once it has this additional material from Area Health.

1. Assuming it elects for an inquiry as to damages, Area Health contends that the inquiry should proceed on evidence before the primary judge, supplemented only by evidence of events occurring since the trial before the primary judge, and that discovery should be limited to events occurring since the trial.

1. Mr Burton pointed out that the trial before the primary judge was not a separate trial of liability. The relevant statement of claim sought damages, not an inquiry as to damages, and no order was made splitting the trial.

1. However, since the Court of Appeal has ordered an inquiry as to damages before a judge other than the primary judge, I do not think the evidence is necessarily limited in this way.

1. I think it will be a matter for the judge hearing the inquiry to determine what procedure would be just, quick and cheap.

1. In my opinion, it would be a reasonable approach to determine that the inquiry be on the basis of the evidence before the primary judge and evidence of events occurring since the trial, with other evidence of events occurring up to the end of the trial being permitted only if substantial grounds are made out for permitting such evidence.

1. Similarly, I think it would be a reasonable approach to have discovery on a similar basis; that is, to order discovery going to matters occurring before the end of the trial only if substantial grounds are made out for ordering such discovery, taking account of the circumstance that there has already been a full hearing on the question of damages, in which both parties have had discovery and have led the evidence they wished to rely on in relation to that question.

1. Accordingly, to give effect to order 4(13) made on 13 December 2010, I give the following directions:

(1) Macquarie to make the election referred to in order 4(13) promptly on being given accounting material kept by Area Health up to 22 February 2010, and similar material up to the present.

(2) If the election is for an inquiry as to damages, the matter be listed before a judge of the Equity Division to determine the scope of discovery.

(3) I also order that the costs of today's proceedings be costs in the inquiry.

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