Nguyen v Rickhuss

Case [2023] NSWCA 249

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Nguyen v Rickhuss [2023] NSWCA 249
Hearing dates: 28 September 2023
Decision date: 26 October 2023
Before: Ward P; Leeming JA; Basten AJA
Decision:

1 Grant leave to appeal.

2 Direct the applicants to file a notice of appeal in accordance with the draft notice of appeal, and otherwise dispense with the requirements as to service.

3 Dismiss the appeal.

4 The applicants to pay the costs of the first to twelfth respondents.

Catchwords:

CIVIL PROCEDURE – representative proceedings – claims based on breast augmentation surgery performed by defendant/appellant medical practitioners – whether litigation should continue to proceed as representative proceedings – whether claims in statement of claim gave rise to substantial common questions of law and fact – whether representative plaintiffs’ and group members’ claims “common” or “individualistic” – where representative plaintiffs alleged that all surgery was performed according to same system, which gave rise to increased risk of harm – primary judge correct to find that statement of claim gave rise to substantial common questions of law and fact

Legislation Cited:

Civil Procedure Act 2005 (NSW), Pt 10, ss 157, 161, 162, 166, 173, 175, 179, 182

Federal Court of Australia Act 1976 (Cth), Pt IVA, s 33C(1)

Supreme Court Act 1970 (NSW), s 101(2)(e)

Supreme Court Act 1986 (Vic), Pt 4A, s 33C

Supreme Court Rules 1970 (NSW), Pt 8, r 13

Uniform Civil Procedure Rules 2005 (NSW), rr 6.19, 6.22

Cases Cited:

Agnello v Heritage Care Pty Ltd [2021] VSC 838

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15

Bright v Femcare Ltd [2002] FCAFC 243; 195 ALR 574

Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398; [1995] HCA 9

Community & Public Sector Union v Crown in Right of Victoria (1999) 90 IR 4

Jameson v Professional Investment Services Pty Ltd (2009) 72 NSWLR 281; [2009] NSWCA 28

Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27

Universities of Oxford and Cambridge v George Gill & Sons [1899] 1 Ch 55

Wong v Silkfield Pty Ltd (1999) 199 CLR 255; [1999] HCA 48

Texts Cited:

B Spencer, “Class Actions, Heightened Commonality, and Declining Access to Justice” (2013) 93 Boston University Law Review 441

Category:Principal judgment
Parties: Van Huu Anthony Nguyen, Victor Lee, Chi-Vien Duong (aka Charles Wong), Anh Huy Tang, Napoleon Po-Han Chiu, Daniel Kwok, Pedro Miguel da Silva Valente, Farheen Ali, James Francis Christopher Kenny, Sri Balakrishnan Darshn (First to Tenth Applicants)
Amy Rickhuss, Kylie Pollock, Jessica Bruen, Kirsty-Anne Rowlands, Lily Knowland, Tiffany Rutherford, Alysha Axen, Sherine Zahr, Emma Love, Candiece Gielisse (Nee Bailey), Ali Turner, Stefanie Sanchez (First to Twelfth Respondents)
The Cosmetic Institute Pty Ltd (in liq) (Thirteenth Respondent)
The Cosmetic Institute Parramatta Pty Ltd (in liq) (Fourteenth Respondent)
TCI Bondi Junction Pty Ltd (in liq) (Fifteenth Respondent)
TCI Southport Pty Ltd (in liq) (Sixteenth Respondent)
Eddy Dona…

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Details
AGLC
Nguyen v Rickhuss [2023] NSWCA 249
Case
[2023] NSWCA 249
Decision Date

CaseChat Overview and Summary

The applicants, medical practitioners who performed breast augmentation surgeries, sought leave to appeal a decision of the primary judge who had found that the claims brought by the representative plaintiffs, on behalf of a group of patients, gave rise to substantial common questions of law and fact, and that the litigation should proceed as a representative proceeding. The dispute concerned allegations that the surgical system employed by the applicants increased the risk of harm to patients.

The central legal issue before the appellate court was whether the primary judge had erred in finding that the claims raised substantial common questions of law and fact, thereby permitting the matter to continue as a representative proceeding. This required the court to consider whether the claims of the representative plaintiffs and the group members were sufficiently "common" or were instead too "individualistic" to warrant a representative proceeding.

The appellate court reasoned that the statement of claim alleged a systemic failure in the surgical procedure, which, if proven, would apply to all patients who underwent surgery under that system. This systemic allegation meant that the core questions of whether the system was defective and whether it caused harm were common to all group members. The court found that the primary judge had correctly identified these substantial common questions and was therefore correct in allowing the matter to proceed as a representative proceeding.

The appeal was dismissed, with the applicants ordered to pay the costs of the first to twelfth respondents.

Orders

Orders of the court

1 Grant leave to appeal.

2 Direct the applicants to file a notice of appeal in accordance with the draft notice of appeal, and otherwise dispense with the requirements as to service.

3 Dismiss the appeal.

4 The applicants to pay the costs of the first to twelfth respondents.

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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