Nguyen v Northern Sydney Local Health District (No 2)

[2025] NSWCA 129

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Nguyen v Northern Sydney Local Health District (No 2) [2025] NSWCA 129

Hearing dates:

On the papers

Decision date:

10 June 2025

Before:

Bell CJ; Leeming JA; McHugh JA

Decision:

Application to reopen refused.

Catchwords:

PRACTICE – application to reopen under UCPR r 36.16 – no basis for reopening

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:

Majak v Rose (No 5) [2017] NSWCA 238

Nguyen v Northern Sydney Local Health District [2025] NSWCA 107

Category:

Procedural rulings

Parties:

Tommie Tue Gia Nguyen (Applicant)
Northern Sydney Local Health District (First Respondent)
State of New South Wales (Second Respondent)

Representation:

Counsel:
Applicant in person

File Number(s):

2024/447390

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2024] NSWSC 1533

Date of Decision:

29 November 2024

Before:

Parker J

File Number(s):

2021/38818

JUDGMENT

1. THE COURT: By judgment delivered on 21 May 2025 and entered on that date, this Court dismissed the appeal brought by Dr Tommie Tue Gia Nguyen: Nguyen v Northern Sydney Local Health District [2025] NSWCA 107. At trial, most of Dr Nguyen’s claims were dismissed, but he did obtain a nominal judgment based on a finding of breach of cl 3.7, which was a promise to use best endeavours to offer further employment to him. In the appeal, the respondents made it clear that their challenge to the nominal judgment was only pressed if this Court was minded to interfere with the assessment of damages as nominal (see at [104] of this Court’s judgment).

2. On 28 May 2025, Dr Nguyen supplied an affidavit in which he maintained that he had suffered injustice and error by the Court “failing to consider the full fact and evidence at primary trial and at appeal as outlined in the attached Further Written Submission”. The affidavit was accompanied by a submission of 15 paragraphs over five pages.

3. No differently from the trial and the appeal, Dr Nguyen does not appear to have been assisted by a legal practitioner. He and the respondents were told by this Court, the day after Dr Nguyen’s materials were received, that his affidavit would be treated as an application under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) and addressed on the papers, and required no response from the respondents.

4. These are our reasons for dismissing Dr Nguyen’s application. They assume familiarity with this Court’s earlier judgment.

Dr Nguyen’s submissions in support of his application

5. Paragraphs 1-2 of the submissions supplied in support of Dr Nguyen’s application contend that “their Honours erred in their reasons and did not take his submissions (oral and written) at trial and at appeal into their consideration”, concerning his claim that the obligation under cl 3.7 sounded in substantial damages.

6. It is convenient to reproduce [99]-[103] of this Court’s reasons dismissing Dr Nguyen’s appeal:

Grounds 10 and 11 – loss of employment salary and opportunity to obtain government research grants due to breach of cl 3.7

99 The gravamen of these grounds is that the primary judge should have awarded Dr Nguyen substantial damages for the LHD’s breach of its obligation in cl 3.7 of the Deed to use its best endeavours to offer further employment to him at an appropriate salary level, if it decided to continue with the commercialisation process at the end of 3 years. By ground 10, Dr Nguyen says that his Honour erred in not considering evidence that Dr Nguyen had lost employment income as a result of this breach. Dr Nguyen also contends that his efforts to obtain other funding and employment and to restart his research were “futile” given the failure on the part of the LHD to reassign the IP. Finally, Dr Nguyen says that both the LHD and the State had the financial and legal capacity to fund Dr Nguyen’s research. By ground 11, Dr Nguyen contends that the primary judge erred by failing to consider evidence that the LHD’s breach of cl 3.7 denied him the opportunity to apply for government research grants.

100 The entirety of the primary judge’s reasoning on damages for breach of cl 3.7 was at [152]-[154]:

The conclusion that there was a breach by NSLHD of its obligation under cl 3.7 entitles Dr Nguyen to nominal damages. But the obligation was only an obligation to use best endeavours, and was not a guarantee of an actual offer of employment. If Dr Nguyen is to recover more than nominal damages, he must prove that, had NSLHD complied with its obligation, an offer of paid employment acceptable to him would have in fact resulted.

In my view, there is no evidence that, had the NSLHD used best endeavours to try to obtain employment for Dr Nguyen, such an offer would have resulted. Any continued employment by Dr Nguyen would have had to have been funded by “soft money” under the control of Professor Morris. By that stage, it appears that the money had run out. And it seems that Professor Morris had formed the view, influenced no doubt by Dr Nguyen’s earlier obstruction of efforts to commercialise the invention, that he was not reliable. Whether that was a correct view or not does not need to be decided. The fact was that Professor Morris had fallen out with Dr Nguyen.

Accordingly, there is no evidence to support a claim for substantial damages for breach of cl 3.7.

101 Grounds 10 and 11 both rely upon the premise that LHD using its best endeavours to secure him employment would have led to his continuing to be employed at the same salary, and with the opportunity and ability to apply for government research grants. The conclusion of the primary judge to the contrary is not the subject of convincing challenge by Dr Nguyen. He makes the point that the promise in cl 3.7 was not tied to the availability of “soft money”, and as much may be accepted. However, the fact remains that Dr Nguyen advanced no properly articulated case that there was a realistic prospect of his gaining employment after his falling out with Professor Morris, in circumstances where Professor Morris had controlled the funding for his salary for the previous decade. If he were to be employed, it is unclear what he would be doing and under whose supervision he would be working. The only thing that is certain is that he would not be working under Professor Morris.

102 The primary judge’s reasons did not expressly address Dr Nguyen’s claim that the LHD’s breach of its obligation deprived him of an affiliation with a research lab which in turn rendered him unable to apply for government research grants – an argument which although not pleaded was advanced before his Honour in written submissions. But once again, Dr Nguyen has not advanced a case based on evidence that he would have obtained research grants, or that he lost a valuable chance of obtaining research grants by reason of a failure by the LHD to use its best endeavours to secure employment for him. In his submissions in this Court, Dr Nguyen relied only upon the report of Professor Wakefield, which was not in evidence.

103 It follows that Dr Nguyen’s Notice of Appeal must be dismissed, none of his grounds of appeal having been upheld.

7. Dr Nguyen’s submissions are divided into responses to [100]-[101] which concern employment and [102] which concerns research grants.

8. First, Dr Nguyen says there was error at [100]-[101] because the “claim of Prof Morris’s adverse view is unsubstantiated because Prof Morris was happy to employ and fund Dr Nguyen’s salary up to 2016”. He says that the fall out between Dr Nguyen and Professor Morris “was due the failure by the NSLHD’s refusal to reassign the IP to both Dr Nguyen and Prof Morris”. The submission continues that the fall out was:

further exacerbated by the NSLHD, and in part by Prof Morris, because Dr Nguyen refused to sign the Deed Poll when repeatedly demanded by the NSLHD with personal threats, and in part by Prof Morris, to give the NSLHD the legal effect to relinquish all Dr Nguyen’s rights, title and recognition as the leading inventor in its 02 June 2016 email, 28 June 2016 email and 29 July 2016 email in its commercial deal and arrangement with AIGD, which Dr Nguyen later discovered in 2019 as a company incorporated by Mr Peter Spencer and his associates. These facts evinced that the fall out was not a fault of Dr Nguyen but by the NSLHD’s intention and conduct to deprive Dr Nguyen of his rights and recognition as the leading inventor of the IP via its demand on Dr Nguyen to sign the Deed Poll.

By the facts and reason above, it is unfair and injustice by the decision of the primary judge and their Honour in CAJ[100- 101] to put any weight on the fall out as a fault on Dr Nguyen’s part and/or as a bearing determinant in their consideration or assessment of the prospect of an employment offer of the NSLHD’s best endeavour obligation under cl 3.7 and its damages.

9. The second point is that Dr Nguyen submitted at trial and on appeal that both the LHD and the State had the “financial capacity and legal authority” to provide funding for an employment offer, and to provide research lab space.

10. The third point is that funding would not have been tied to Professor Morris’ “own money (soft money)”, nor would he be required to work under the control of Professor Morris. Dr Nguyen adds that the involvement of Professor Morris was not argued or pleaded by the LHD at trial or appeal.

11. The fourth point responded to the respondents’ submission that there was no reason for Dr Nguyen’s continuing employment when his work concerned a goal that was no longer being pursued. He said that he was an experienced researcher with valuable insights into the commercialisation of his invention, and that he would have accepted an offer of employment. He said that the dispute has caused grave disruption and damage to his professional career.

12. Dr Nguyen’s submission also made two points challenging [102] of the reasons. It is said that the Court did not take into consideration the evidence in paragraphs 61-62 of his submissions, which showed that he lost a valuable chance to apply for research grant, which was “supported by expert evidence by Prof Wakefield submitted by the NSLHD at trial”, and that it was “unfair in procedure for their Honours and the primary judge to allow the NSLHD’s last-minute withdrawal of expert evidence”. Secondly, it is said that, as was noted in an affidavit read at trial, “all scientists employed by NSLHD would be expected to apply for research grant”.

13. Dr Nguyen’s submissions conclude with a claim for $2.1 million in lost salary plus a sum of $387,000 for loss of opportunity of research grants.

Consideration

14. Rule 36.16(1) empowers the Court to vary a judgment or order before it has been entered, and r 36.16(3A) extends that power to a case such as the present, where Dr Nguyen has applied within 14 days. It is well established that the power conferred by r 36.16 (a) is to be exercised “sparingly and with caution”, having regard to the importance of finality of litigation, and (b) “does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them”: Majak v Rose (No 5) [2017] NSWCA 238 at [12]-[13]. The purpose of the power was stated by this Court as follows at [12]:

The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court). Abuse of the rule is detrimental to the administration of justice in unnecessarily and unfairly (to other litigants) taking up the time of the court. Nor does abuse of the rules facilitate the just, quick and cheap resolution of the issues between parties. On the contrary, unwarranted reliance on r 36.16 is oppressive to the successful party and a drain on the Court’s resources.

15. Dr Nguyen’s application falls well outside those principles.

16. Turning first to the points made in response to [100]-[101], all misapprehend the reasoning of the primary judge and this Court. The onus rested on Dr Nguyen to make out a case of substantial damages caused by a breach of cl 3.7. It is not self-apparent that a breach of an obligation to use best endeavours to offer employment to Dr Nguyen would sound in the substantial damages he claims.

17. The primary judge found at [153] that there was no evidence to support a claim for substantial damages. On Dr Nguyen’s case, he needed to establish, by evidence, that the breach of an obligation to use best endeavours to employ him would have led to an offer of employment which Dr Nguyen would have accepted. At trial, he attempted to discharge that burden by expert evidence. But his own expert evidence was not admitted into evidence, from which decision no appeal has ever been brought, and the respondents did not tender the expert evidence they had served, doing so in a way which was transparent to Dr Nguyen as explained in this Court’s judgment (as to which see further below because Dr Nguyen’s dissatisfaction with this is part of his challenge to the reasoning in [102]).

18. Not only did Dr Nguyen not discharge that onus, but as the primary judge observed, there was a falling out between him and Professor Morris. As the primary judge made clear at [153], reproduced in this Court’s judgment at [100], he was not expressing a view as to the reason for the falling out, but merely that it had occurred. Dr Nguyen evidently has a strong view about the reason for the falling out, but that is not an issue which arises in the appeal, even assuming it was something determined by the primary judge or could be determined by this Court. The falling out tells against a renewal of Dr Nguyen’s employment as it had been for many years – namely, under Professor Morris’ supervision and paid by funds controlled by him – and heightened the need for Dr Nguyen to establish by evidence that an offer would be made to him.

19. It was necessary for Dr Nguyen to establish by evidence what he would have been doing in the premises of cl 3.7. There was no evidence to suggest that AIGD would use the services of Dr Nguyen. There was no evidence that AIGD would pay for any services provided by Dr Nguyen (noting that AIGD in fact paid no money for the intellectual property it acquired). There was no evidence to suggest that AIGD might license Dr Nguyen to continue, either at its expense or the State’s expense, to seek to commercialise the invention. None of the points raised by Dr Nguyen detract from those considerations. In any event, in substance Dr Nguyen’s submissions are an attempt to reargue this aspect of the appeal, as opposed to identifying a slip or inadvertent omission in this Court’s judgment.

20. Turning to Dr Nguyen’s dissatisfaction with [102], this Court did consider what was advanced in paragraphs 61-62 of his written submissions. Those submissions refer to precisely two pieces of evidence. One is paragraph 201(iv) of Dr Nguyen’s affidavit. That is no more than a statement of the quantum of his claim. For the sake of transparency, it is best to reproduce the paragraph in its entirety (noting that not all of paragraphs 200(i)-(iii) were admitted into evidence at trial):

For the reasons in paragraphs 200(i)-(iii) above, I therefore seek to claim the Loss of Future Employment Incomes and Opportunities of an amount of:

(a) $150,000 (salary) x 4 years loss of future incomes = $600,000 and

(b) $1,573,356 (Loss of NHMRC Investigator Grant Opportunity), or

(c) $917,747 (Loss of NHMRC Idea Grant Opportunity).

21. The second is paragraphs 72-74 of Professor Wakefield’s report. That report was not in evidence, as noted in [102].

22. There was no failure by this Court to have regard to the evidence to which Dr Nguyen had made submissions. Dr Nguyen did not in fact point to any evidence capable of sustaining his claim for damages which was before the Court, a point which was made in [102].

23. This aspect of Dr Nguyen’s submission also seeks to reagitate his dissatisfaction with the rejection of his challenge concerning a report filed and served by the defendants in advance of trial but not ultimately tendered by them. That was addressed at length when dealing with ground 6 of his appeal at [69]-[72]:

69 By this (apparently twofold) ground, Dr Nguyen first complained that the primary judge failed to consider two expert reports “submitted” by the LHD (one by Professor Denis Wakefield and one by Mr Paul Richard Davies). Dr Nguyen also said that the primary judge erred in drawing inferences about the value of the invention based on AIGD’s failure to commercialise it, that pharmaceutical companies had expressed interest in the invention which demonstrated that commercialisation was available and feasible, and that the fact that AIGD held onto the IP suggested that the invention was commercially valuable.

70 The complaint in respect of the failure to rely on the expert reports can be simply disposed of. Although the LHD did serve two expert reports, it chose not to call those experts at trial and their evidence was not read. Dr Nguyen was on notice of this. At the commencement of the respondents’ case, counsel for the respondents indicated the likely state of play as follows:

LARISH: … It’s very unlikely that I will call my two experts, but I just wish to reserve my position on that until after Dr Kuchler is done.

71 Counsel concluded the respondents’ case without calling either expert. In oral closing submissions at trial, Dr Nguyen was made aware of the resulting position:

HIS HONOUR: … We’ve addressed 4.3, we’ve addressed 4.4, but the next question is damages. Do you have anything to say? I’ve rejected your damages, your evidence on damages, at least my understanding is. I should say that you’ve referred in your written submissions-in-chief to what the defendant’s expert said.

PLAINTIFF: Yes.

HIS HONOUR: But that never made it into evidence because that was never relied upon by the defendant, so I don’t have to – I can’t have regard to that, and it’s not available.

PLAINTIFF: Yes, your Honour.

72 It is not now open to Dr Nguyen to complain that the primary judge did not rely upon expert evidence that was not before him. Dr Nguyen was unrepresented, but each of counsel for the defendants and the primary judge made it transparently clear that the LHD’s expert evidence was not read.

Conclusion and orders

24. Dr Nguyen’s application under r 36.16 to revisit parts of this Court’s reasons with which he is dissatisfied must be dismissed. This Court informed the parties on the day after Dr Nguyen’s affidavit and submissions were received that it would be determined on the papers, without any need for response by the respondents. If any costs were incurred by the respondents, they will be minimal, such that there is no need for a further costs order.

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Decision last updated: 10 June 2025