Ms Nguyen has brought various proceedings in the Local Court, this Court and NSW Civil and Administrative Tribunal, following her purchase of a pharmacy. In these proceedings she claims, amongst other things, that the defendants engaged in misleading and deceptive conduct. She also pursues claimed breaches of the contract, pursuing matters which appear to raise questions of Medicare fraud. The matter is listed for hearing in March 2025.
Chen J fixed that hearing date appreciating that the parties' ongoing dispute about the evidence the defendants still wished to serve had yet to be resolved.
By a motion supported by affidavits sworn by their solicitor Mr Zhao, the defendants sought leave to serve further evidence. Those orders were necessary, they not having complied with earlier orders about the service of their evidence. They also pursued the production of various documents, earlier disputes about production having been dealt with in Nguyen v Hwang [2023] NSWSC 782.
The parties resolved their differences about the documents. Ms Hwang also sought, if the leave the defendants sought was granted, an order requiring the defendants to pay $1,450,000 into Court, given her concerns about asset dissipation. But this was not pressed.
At the hearing, while there was no issue about the Court's power to make the orders finally pressed, whether it should exercise that power remained in issue and had to be resolved in light of the requirements of ss 56 to 60 Civil Procedure Act 2005 (NSW).
Having heard the parties I granted the defendants leave to serve further evidence and made orders to which the parties then agreed, which provide a timetable for service of evidence, including expert evidence, which both parties need to put on before the March hearing.
I took that course having taken into account the matter's difficult procedural history. It includes failures, on both sides, to comply with the Court's orders; the agreement reached in relation to production; the defence case that given the nature of Ms Nguyen's allegations, factual findings made in these proceedings may lead to further investigation and even criminal prosecution; Mr Zhao's evidence about what lay evidence had already been prepared and what was required to finalise the expert evidence which the defendants wished to pursue; Ms Nguyen's case, that there was now but limited time for her to meet the proposed evidence; and that the matter had been listed in March on the understanding that the defence motion still had to be resolved.
I also had regard to the enquiries which Ms Nguyen has made of doctors and patients, to which the defendants wish to respond, as well as the proposed evidence concerning business records which go back to 2012. It being the accuracy of the records which Ms Hwang kept which is at the heart of the parties' dispute and about which expert evidence is to be called, including as to valuation.
Mr Zhao, had deposed in his affidavit affirmed on 8 August 2024 that the defendants' further lay evidence would be ready to be served by 16 August 2024, but it had still not been served; that an expert valuer would then begin preparing a report, which would be completed by 18 October if given access to relevant information; that the report of an accounting expert would be completed in the first week of September: that the report of a banking expert who had been engaged would also be completed by 18 October; that subject to the IT and data-analysis expert being granted access to platforms in Ms Nguyen's possession, that report would also then be completed.
Service in November of all the evidence was initially proposed at the hearing, but it became apparent that a different timetable could justly accommodate the parties' respective positions given Mr Zhao's evidence.
In exercising its powers to grant the leave the defendants required, it was necessary to have regard to the overriding purpose specified in s 56 of the Civil Procedure Act, namely, the just, quick and cheap resolution of the real issues in the proceedings. That required regard to be had to the objects specified in s 57(1):
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
The Court also had to seek to act in accordance with the dictates of justice: s 58(1)(b). That required regard to be had to matters specified in s 58(2)(b):
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56(3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
I was satisfied that the timetable finally fixed would give all parties a fair opportunity to advance their respective cases at the March hearing.
The defendants should not expect however, that if they do not avail themselves of the further time they have been given and do not comply with the orders which the Court has now made for the final preparation of the matter for hearing, that they will be given any further opportunities to put on their evidence.
The orders which were made as a result of those conclusions were:
1. The plaintiff to provide particulars of loss and damage by 18 October 2024.
2. The first defendant is to serve lay evidence contemplated at paragraph [19] of Mr Zhao's affidavit of 8 August 2024 on or before 27 September 2024.
3. The plaintiff to organise to provide access to the defendants' expert, Mr Elliot, to the plaintiff's software during the period of 23 September 2024 to 4 October 2024.
4. The plaintiff to serve any report by Mr Elliot on or before 13 October 2024.
5. The defendants to serve further evidence on or before 16 November 2024, limited to:
1. Report of Mariano Rossetto.
2. Evidence of the first defendant relating to the evidence and material in the evidence of Messrs Elliot and Rossetto.
1. The plaintiff to serve evidence in reply on or before 14 February 2025.
2. The experts in each area of expertise are to confer and produce a report pursuant to Practice Note SC CL 1 on or before 28 February 2025.
3. The parties are to provide agreed questions to be asked of the experts on or before 19 February 2025.
4. The defendants to pay the plaintiff's costs thrown away of the Notice of Motion filed 8 August 2024.
5. The matter is listed before Schmidt AJ at 9.30am on 6 December 2024.
6. The listing before the Registrar on the same day is vacated.
7. Liberty to apply.
[2]
Amendments
01 October 2024 - No amendment
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Decision last updated: 01 October 2024