Appanna v Anglesea Hospital Limited - [2017] NZHC 2257

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-001794 [2017] NZHC 2257

BETWEEN
NALENDRA (NAYLIN) APPANNA

Plaintiff

AND

ANGLESEA HOSPITAL LIMITED Defendant

NEW ZEALAND PRIVATE SURGICAL HOSPITALS ASSOCIATION INC Proposed Intervener

Hearing: 15 September 2017

Appearances:

E Sweet and B Moore for Plaintiff/Respondent
M J Fisher and K J Ng for Applicant/Defendant

Judgment:

18 September 2017

JUDGMENT OF VENNING J PARTICULARS/FURTHER DISCOVERY

This judgment was delivered by me on 18 September 2017 at 4.00 pm, pursuant to Rule 11.5 of the
High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: DLA Piper, Wellington
Kemps Weir Lawyers, Auckland

Copy to: A H Waalkens QC, Auckland
M J Fisher/K J Ng, Auckland

APPANNA v ANGLESEA HOSPITAL LIMITED [2017] NZHC 2257 [18 September 2017]

Introduction

[1] The plaintiff is an obstetrician and gynaecologist. The defendant owns and operates a private hospital. The plaintiff performed medical procedures, including surgeries on patients at the defendant’s hospital. The defendant suspended the plaintiff’s operating privileges on 30 March 2016. On 6 October 2016 the Court granted an interim injunction in favour of the plaintiff reinstating his credentialing status and operating privileges pending further of the Court.

[2] The plaintiff says that in suspending his operating privileges the defendant was in breach of an agreement with him. He also says the defendant has not complied with the injunction order in that it has failed to provide appropriate nursing support to him to allow him to operate at its hospital.

[3] The plaintiff raises three causes of action against the defendant:

· breach of agreement;

· breach of fiduciary duty;

· judicial review.

[4] Under the first two causes of action the plaintiff alleges he has suffered and continues to suffer loss and damage. He claims:

· damages for harm caused to his reputation;

· damages to compensate for pecuniary loss;

· general damages of $25,000.

Application

[5] The defendant seeks orders for further and better discovery and for further particulars. The applications are directed at obtaining information concerning the losses claimed by the plaintiff.

[6] The defendant argues that High Court rr 5.26, 5.32 and 5.33 require the plaintiff to particularise the amount of damages claimed.

[7] The defendant’s application for further and better discovery seeks the following:

1 documents relating to the financial performance of the plaintiff’s

business as a surgeon since 31 March 2012, including: (a) annual financial statements;
(b) income tax returns and GST returns;

(c) records evidencing the identity of each patient referred to the plaintiff by general practitioners or others, including those patients:

(i) on whom the plaintiff performed a surgical procedure;

(ii) on whom the plaintiff did not perform a surgical procedure;

(d)invoices issued by the plaintiff in relation to surgical procedures performed by the plaintiff at Anglesea Hospital Limited or Southern Cross Hospital Limited or Braemore Hospital Limited, or Grace Hospital Limited;

2all documents (including electronic documents) coming into existence subsequent to 2 September 2016 evidencing communications between the plaintiff or his…

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: [2017] NZHC 2257
Decision Date: 18 September 2017

CaseChat Overview and Summary

The case of Appanna v Anglesea Hospital Limited involved an obstetrician and gynaecologist, Nalenndra (Naylin) Appanna, who alleged that Anglesea Hospital Limited had breached an agreement and a fiduciary duty, and sought judicial review, following the suspension of his operating privileges at the hospital. The plaintiff claimed damages for harm to his reputation, pecuniary loss, and general damages of $25,000. The defendant sought further and better discovery and for particulars concerning the losses claimed by the plaintiff.

The key issues before the Court were whether the plaintiff was required to provide particulars of damages and whether the remaining categories of documents the plaintiff refused to disclose were still relevant. The Court held that the plaintiff must provide particulars of the damages claimed, including special and reputational damages, as soon as they are reasonably available, and that the plaintiff should be in a position to provide these particulars given the time elapsed since the end of the financial year. The Court rejected the plaintiff's argument that particulars should await the conclusion of the finalisation of the plaintiff’s expert’s brief, noting that the provision of particulars of damage would not require an amended statement of claim.

Regarding the discovery application, the Court found that while the invoices issued by the plaintiff in relation to surgical procedures performed at various hospitals would enable the defendant to test the plaintiff's claim for damages, the identity of each patient referred to the plaintiff was not required. The Court also noted that the information concerning the plaintiff's dealings with other hospitals was relevant only if the defendant was aware of those circumstances at the time it suspended the plaintiff's operating privileges.

The Court ordered that the plaintiff must provide further particulars of the damages claimed and the documents sought in the discovery application. The plaintiff was required to provide particulars of the damages claimed by 6 November 2017, and the discovery documents by 22 September 2017. The Court also set a timetable for the steps leading up to the fixture commencing 30 April 2018, including deadlines for serving evidence, lists of documents, and expert witness briefs. The Court further ordered that the defendant was to have costs on the application and preparation of submissions for both applications on a 2B basis, together with the disbursements associated, but the costs of the hearing itself were to lie where they fell.

Orders