Nichols (a pseudonym) v CDC Clinics Pty Ltd - [2025] VSC 489

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2023 01652

SALLY NICHOLS (A PSEUDONYM)	Plaintiff
v
CDC CLINICS PTY LTD & ORS (according to the attached schedule)	Defendants

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2025
DATE OF JUDGMENT:	7 August 2025
CASE MAY BE CITED AS:	Nichols (a pseudonym) v CDC Clinics Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 489

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PRACTICE AND PROCEDURE – Plaintiff claims in respect of laser treatment in 2020 – Plaintiff served reports of psychiatrist and plastic surgeon – First defendant arranged examinations of the plaintiff by plastic surgeon and psychiatrist – Examination by plastic surgeon took place – Examination by psychiatrist cancelled at short notice and not re-scheduled – Indemnity dispute – Consequential change of solicitor for first defendant – Original trial date vacated owing to application by first and fourth defendants to bring third-party proceeding claiming indemnity – Original trial date vacated by consent and re-listed to August 2025 – Subsequent timetables of orders in respect of preparation for trial, including mediation – After mediation, and shortly prior to trial, first and fourth defendants seek that the plaintiff be psychiatrically examined – Plaintiff objects – Risk of further adjournment of listed trial date – Whether trial not fair if psychiatric examination not undertaken – Practical issues associated with late discovery – Civil Procedure Act 2010 (Vic), ss 7, 8 and 9 – Davies v Nilsen [2015] VSC 584; Grimmett v Rivdale Pty Ltd (Trading as Angela Sdrinis Legal) [2025] VSC 122 considered – Outstanding interlocutory steps in third-party proceeding – Third party seeks that third-party proceeding be heard separately and as a cause – Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 11.13(1)(b) and 47.04 – AMP Fire & General Insurance Co Ltd v Dixon [1982] VR 833 considered – Both applications made essentially orally at final directions hearing – Adjournment to permit the filing and service of proper material – Applications subsequently made by summonses supported by affidavit material – Application by first and fourth defendants refused – Application by third party allowed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P Lamb	Shine Lawyers
For the First and Fourth Defendants	S Walters, solicitor	VMC Legal
For the Second Defendant	In person
For the Third Defendant	H Daniel	Meridian Lawyers
For the Third Party	D Klempfner	Lander & Rogers

HIS HONOUR:

The following has been revised minimally following the delivery of oral reasons on 7 August 2025.

This matter came on for final directions on Friday, 1 August 2025, in respect of a trial listed to commence on Monday, 11 August 2025, before a judge and jury on an estimate of 10-12 sitting days.

Shortly prior to the hearing, the third party’s solicitor emailed the Court indicating, in substance, that his client would seek an order that the third-party proceeding be heard separately and after determination of the main proceeding.

At final directions,…

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.

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Details

Case: [2025] VSC 489
Decision Date: 7 August 2025

CaseChat Overview and Summary

The plaintiff, Nichols, sought damages for alleged negligence in laser treatment provided by the first defendant, CDC Clinics Pty Ltd, in 2020. The case was heard in the Supreme Court of Victoria. The first defendant had arranged for the plaintiff to be examined by a plastic surgeon and a psychiatrist, with the examination by the plastic surgeon occurring but the psychiatrist's examination being cancelled at short notice and not rescheduled. This led to a dispute over indemnity costs and a change of solicitors for the first defendant. The original trial date was vacated due to an application by the first and fourth defendants to bring a third-party proceeding seeking indemnity. The trial was rescheduled for August 2025, with subsequent timetables of orders for trial preparation, including a mediation process.

The court was required to decide on two key issues. Firstly, whether the plaintiff should be psychiatrically examined prior to the trial, and if so, whether the trial could proceed fairly without such an examination. Secondly, the court had to consider the implications of the late discovery of psychiatric examination material on the procedural fairness of the trial. These issues were examined in light of the Civil Procedure Act 2010 (Vic) and relevant case law, including Davies v Nilsen and Grimmett v Rivdale Pty Ltd. The court also considered the implications of outstanding interlocutory steps in the third-party proceeding and the third party's application to have their proceeding heard separately and as a cause, in accordance with the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

The court found that the application for a psychiatric examination of the plaintiff was made too late and would result in a further adjournment of the listed trial date. The court rejected the argument that the trial could not proceed fairly without the examination, emphasising the practical difficulties and the risk of further delay. The court also held that the late discovery of psychiatric material did not warrant a procedural unfairness in the trial. The applications by the first and fourth defendants were dismissed, while the third party's application to have their proceeding heard separately was allowed. The court ordered an adjournment to permit the filing and service of proper material, with subsequent applications made by summonses supported by affidavit material.

Orders