Nguyen v Hinsley [No 2]
[2021] WASC 271
•10 AUGUST 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NGUYEN -v- HINSLEY [No 2] [2021] WASC 271
CORAM: KENNETH MARTIN J
HEARD: ON THE PAPERS
PUBLISHED : 10 AUGUST 2021
FILE NO/S: CIV 2085 of 2020
BETWEEN: ANH TU VU NGUYEN
First Plaintiff
DR ANH PTY LTD
Second Plaintiff
AND
REBECCA HINSLEY
Defendant
Catchwords:
Practice and procedure - Orders following strike out - Costs - Early discovery sought and opposed - Early discovery not appropriate
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Costs orders made
Early discovery refused
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Law One (WA) Pty Ltd |
| Second Plaintiff | : | Law One (WA) Pty Ltd |
| Defendant | : | Tang Law |
Case(s) referred to in decision(s):
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347
Marshall v Smith [2013] WASC 432
Nguyen v Hinsley [2021] WASC 220
Rush v Nationwide News Pty Ltd [2018] FCA 357
Zierenberg v Labouchere (1893) 2 QB 183
KENNETH MARTIN J:
Introduction
In the aftermath of my published reasons for decision of 9 July 2021 (see Nguyen v Hinsley [2021] WASC 220) two issues remain to be resolved. First is the issue of the costs of the plaintiffs' strike out application - which as matters have emerged, is now largely uncontroversial.
The other issue arises in relation to the defendant's envisaged provision of a further minute of amended defence and counterclaim in the wake of that strike out decision - which essentially struck out the defence and counterclaim on a basis of large components of that pleading either failing to disclose an arguable cause of action, or exhibiting a lack of coherency (in legal terms 'embarrassing') in various aspects.
Both parties, in the wake of my published reasons and subsequent conferral, provided the court with their respective rival minutes of proposed further orders. As to costs, I refer to the plaintiffs' minute of proposed orders dated 23 July 2021 (folio 38) and the defendant's rival minute of proposed orders dated 23 July 2021 (folio 39).
As to the issue of costs, there should be, in accord with par 2 of the plaintiffs' minute of proposed orders, an order in terms that:
The defendant pay the plaintiffs' costs of the application by letter to the Court dated 24 February 2021 to strike out paragraphs of the amended substituted defence and counterclaim, to be taxed if not agreed, and payable forthwith.
I also received written submissions by each respective party, in the wake of the parties' failure to agree over next steps in the action by reference to a receipt of the defendant's pleading amendments.
The defendant's lawyers provided written submissions of 30 July 2021, in support of its request for discovery prior to filing a re‑amended defence and counterclaim (see folio 41). On 30 July 2021, the plaintiffs' lawyers also provided written submissions - essentially in expressed opposition to the proposed order sought by the defendant for discovery.
Further written submissions of 30 July 2021 were then received from the defendant in response to the plaintiffs' written submissions (see as amended responsive submissions at folio 43).
The controversy which has emerged and now requires my resolution is whether the plaintiffs should provide either general discovery or some other level of categorised discovery to the defendant prior to the defendant filing its envisaged minute of a re‑amended defence and counterclaim.
By the defendant's proposed minute of orders dated 23 July 2021 (folio 39), she seeks orders that:
1.The defendant make any application for discovery prior to pleading by 6 August 2021.
2.The defendant file and serve the substituted defence and counterclaim by 27 August 2021.
Against that course, the plaintiffs essentially say, based on a communication it received from the defendant, that what the defendant now proposes as regards discovery to it, is conceptually untenable. The plaintiffs contend that in order to forage for evidence to ground another attempted exercise in defence pleas of justification (truth) - that the defendant, having experienced much of her justification (truth) defence pleas struck out - only seeks to embark upon a 'fishing' expedition in an attempt to sustain such pleas - under circumstances where she presently holds no factual material capable of being pleaded to support such objectives (see pars 8, 9 and 10 of the plaintiffs' written submissions dated 30 July 2021).
Rival positions on early discovery
Under [227], [228] and [230] of my published reasons of 9 July 2021 I said:
227The plaintiffs' application to strike out the many component paragraphs within the ASDC has largely succeeded - both as against the defence and, as well, against the counterclaim. Given the magnitude of the paragraphs struck out and their internal relationships within the pleading, the most feasible course is for the entirety of the ASDC to be struck out now. That will occur upon the general publication of these reasons on the Court's website. There should also be an order for leave to amend the ASDC on terms. All other issues are reserved.
228The leave for the defendant to amend her pleading, if she wishes, to respond to the deficiencies as identified by these reasons, should take place by way of circulation of a minute of proposed amended pleading within 21 days of the publication of these reasons. If the plaintiffs do not consent to its filing after having had a reasonable period of say, a further 21 days to digest any proposed amendments, then an application by the defendant seeking leave will be listed for hearing administratively. Orders as per [227] will issue upon the general publication of these reasons.
...
230I shall publish these reasons and allow the parties a period of fourteen (14) days post publication to confer. Absent such agreement by that time, each side should provide its rival minutes of further proposed orders to my Associate.
From [227] above, I indicated that the defendant would have 21 days after the publication of my reasons (at 9 July 2021, noting as well that an advance copy was provided to the parties' lawyers on 8 July 2021) to provide her proposed amendments to her pleading. Essentially then, I envisaged that by no later than 30 July 2021, the defendant would have written and circulated a proposed minute of amended defence and counterclaim that would then be provided to the plaintiffs' lawyers for their review (noting that this is not a substituted defence and counterclaim as the defendant's minute foreshadows).
But instead of circulating a proposed minute of amended defence and counterclaim, the defendant has only indicated that she either wishes to make an application for discovery or, by her lawyers' correspondence to the plaintiffs' lawyers, that they (ie, the defendant's lawyers) have identified some categories of documents sought from the plaintiffs as early discovery. The categories of documents, as identified in the plaintiffs' written submissions, were:
7.1.1all documents relating to the procedure the defendant undertook and its outcomes.
7.1.2all documents relating to the defendant on the plaintiffs' patient management system.
7.1.3all documents relating to the plaintiffs' costings for procedures.
7.1.4all documents relating to complaints made against the first plaintiff.
7.1.5all documents relating to any request for revisions submitted to the plaintiffs.
The plaintiffs' written submissions contending against any provision of discovery say:
8.The only apparent forensic purpose of the proposed discovery orders is to support a potential defence of justification or contextual truth, or a counterclaim in professional negligence, yet the court struck out both of those defences and the counterclaim in its 9 July 2021 reasons, and the defendant has not yet served any further amended defence and counterclaim.
9.The defendant's proposition that she be given discovery of those documents before she files any further amended pleading makes it plain that her purpose in seeking the discovery is for the purpose of ascertaining whether she has any arguable defence or counterclaim, not for the purpose of securing evidence to support a defence or counterclaim as pleaded.
10.This is 'fishing', and is illegitimate. The orders sought by the defendant should not be made.
Emphasising the conceptual inappropriateness of requested discovery by the defendant prior to the finalising of her pleading, the plaintiffs' written submissions refer to the decision of Wigney J in Rush v Nationwide News Pty Ltd [2018] FCA 357 at [169] - [177], in which his Honour considered an analogous context of an application to set aside a subpoena issued in the aftermath of a strike out order against a pleading. At par 16 of their submissions, the plaintiffs say, referring to Wigney J's reasons:
His Honour held that 'A defendant who pleads justification must do so on the basis of the information which it has in its possession when the defence is delivered' and is not permitted to undertake a fishing expedition designed to find something to support its plea. Because the justification defence had just been struck out, his Honour held that it followed that there was not [sic] legitimate purpose for the subpoena and the respondents could not be permitted to rely on it to ascertain whether they might be able to properly plead and particularise a new justification defence: Rush at [172], [175] per Wigney J.
See also my observations in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 at [40] and the observations of Le Miere J in Marshall v Smith [2013] WASC 432 [6].
By the defendant's written submissions of 30 July 2021 (folio 41), as regards the earlier provision of discovery by the plaintiffs, she says that Professor Lewandowski (the defendant's expert whose report is mentioned in my primary reasons published 9 July 2021) has been 'further consulted':
... specifically to opine on the choice of procedure and the method undertaken ...
5.Professor Lewandowski has identified categories of further documents he requires to assist him in informing his opinions, the documents being in the possession of the first and second plaintiffs.
6.The defendant's solicitors will shortly issue a request for the documents identified by Professor Lewandowski. It is anticipated the documents will be in the first and second plaintiffs' possession, custody and control and be readily available to be discovered so they can be provided to Professor Lewandowski (footnotes omitted).
Under its further tranche of responsive submissions (folio 43), the defendant refers to a number of authorities. (including my own decision in Kingsfield Holdings v Sullivan Commercial) essentially rejecting the plaintiff's contention that she is fishing for documents. Instead the defendant says (at subpar 4.1) that she is seeking to:
... properly test the availability of a defence which has been squarely raised (but struck out given the particulars provided to date).
In passing I would, with respect, reject the attempted de minimus rationalisation of the deficiencies exposed in the previously iterated defence and counterclaim pleading (by reference simply to a mere absence of particulars). The defendant then contends (at subpar 4.2) that there is an exception in circumstances where one party exclusively has in their possession the information or documents necessary to allow a defendant to provide particulars of a specific plea - referring to Zierenberg v Labouchere (1893) 2 QB 183, 188 (per Lord Esher MR). In passing, I note Zierenberg is one of the cases I mention in my reasons in Kingsfield Holdings v Sullivan.
Finally, by its responsive written submissions, the defendant says (at subpar 4.3):
In these proceedings, the outcome of the subject procedure has been ruinous for the defendant but whether the first plaintiff's conduct of the procedure is sufficient to found an allegation of professional incompetence to the required level is a matter for expert evidence and, accordingly in the circumstances of this case, it is appropriate to allow the defendant to have discovery of documents relevant to that expert evidence prior to her determining what plea is available (or not because it cannot be appropriately particularised).
Evaluation
On my assessment the plaintiffs' rejection of the defendant's request for discovery at this time on the basis that it is an attempted fishing expedition, must be accepted. The character of the classes of documents sought by reference to pars 7.1.2, 7.1.3, 7.1.4 and particularly and 7.1.5 (as identified in the plaintiffs' written submissions (folio 40)) on their face, indicate a foreshadowed attempt to forage for information to sustain what has been exposed as deficient pleas of substantial truth and contextual truth in the prior iteration of the defendant's pleaded defence (which has now been struck out).
Pleas of justification advanced by way of attempted defence against the making of a defamatory imputation against a person's character or reputation, are a very serious matter. Extreme or unsuccessful pleas of justification may deliver an adverse trial repercussion for a defendant by way of aggravated damages. Such defence pleas, being of the utmost seriousness, should not be made as wishful 'hail Marys' rendered in a hope of later finding something through the discovery process to shore up a deficient evidentiary foundation for such a plea.
Nor are such pleading decisions capable of being 'subcontracted' out to experts such as to Professor Lewandowski - as is, in effect, foreshadowed in the defendant's submissions.
In the primary reasons, I indicated that the defendant's medical negligence counterclaim was just conceptually sustainable on the basis of possibly invoking the doctrine of res ipsa loquitur. The doctrine was not expressly mentioned in the defendant's previously iterated pleading. It was, in effect, winkled out during verbal dialogue with counsel for the defendant. Absent that just arguable by inference analysis of the defendant's counterclaim, it would otherwise have been dismissed without leave to amend - as failing to disclose any arguable cause of action. It was only by the inferred invocation of the res ipsa doctrine arrived at in verbal discussion with the defendant's counsel (see [123] of the primary reasons) ‑ that the counterclaim survived dismissal without leave, on the basis it would be tidied up in due course.
In the present matter, it is for the defendant to timeously get her pleaded house in order in terms of her presently deficient defence and counterclaim. To render a very serious allegation of professional negligence against a medical practitioner without already holding an arguable evidentiary foundation, or to proceed in an opportunistic hope that something might emerge from the other side on discovery to shore up the case, is not a forensic approach that can be endorsed or condoned. The position here looks to be that the defendant, having been faced with receiving the plaintiffs' defamation grievances, sought to strike back and 'up the ante' with a medical negligence counterclaim. As regards the counterclaim, the defendant was found wanting, in terms of any real detail other than that the defendant herself complains of having suffered an adverse post operative outcome. The defendant's forensic tactic appears to have misfired. She would appear to have reaped what she has sown and now seeks early discovery from the plaintiffs. That will not be allowed.
By reference to the 21‑day time limit for an amended pleading that I identified in [228] of the primary reasons, that allocated time has now elapsed. The defendant should not be able to obtain a de facto extension of time by a side wind of calling for early discovery from the plaintiffs prior to the close of pleadings.
Under the plaintiffs' minute of proposed orders and par 4 of their written submissions, they seek an order that essentially, by 4.00 pm on 13 August 2021, the defendant file and serve a minute of proposed re‑amended defence and re‑amended counterclaim. There should be an order in those terms.
The defendant's minute of re‑amended defence and counterclaim, when filed, will eventually require leave in order to be allowed. The plaintiffs will have a period of 21 days after receipt of the defendant's minute to evaluate whether they are content to proceed upon that minute, or otherwise. For avoidance of doubt, the minute to be provided by the defendant should be properly marked up to indicate all augmentation and excisions in accord with the Rules of the Supreme Court 1971 (WA): see O 21 r 9(2).
Conclusion
Orders in the terms is indicated by these reasons will issue contemporaneously with their publication and provision to the parties.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Martin
10 AUGUST 2021
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