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[2025] NSWCA 129
procedural. The application under UCPR r 36.16 was dismissed. The Court made no further costs order, observing that any costs incurred by the respondents would be minimal ([24]).
The Court of Appeal refused Dr Nguyen’s request to reopen its earlier dismissal of his appeal. It said the reopening rule is for correcting clear, inadvertent errors, not for having another attempt at arguments already decided. The Court had considered the employment and grant-loss arguments. It found that the evidence did not establish that further employment would have been offered, and that the grant-loss material relied on either stated claimed amounts or was a report that had not been admitted into evidence. The application was dismissed, with no further costs order.
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2,308 words · generated 06/10/2026
In Nguyen v Northern Sydney Local Health District (No 2) [2025] NSWCA 129, the Court of Appeal considered an application by Dr Tommie Tue Gia Nguyen to reopen parts of its earlier judgment dismissing his appeal. The application followed [2025] NSWCA 107, delivered and entered on 21 May 2025 ([1]).
2 cited instruments linked from this judgment.
The underlying appeal included a claim for substantial damages arising from a breach of cl 3.7 of a deed. As the Court summarised, cl 3.7 contained a promise to use best endeavours to offer Dr Nguyen further employment if the health district decided to continue the commercialisation process after three years ([1], [6]). The primary judge had awarded nominal damages for breach, but found no evidence that an offer of paid employment acceptable to Dr Nguyen would have resulted. The Court of Appeal’s earlier judgment dismissed his appeal, including his challenges concerning employment income and research-grant opportunities ([6], reproducing [99]-[103] of the earlier judgment).
On 28 May 2025, Dr Nguyen submitted an affidavit and a 15-paragraph written submission. He asserted that the Court had failed to consider the full facts and evidence from the trial and appeal ([2]). The Court treated the affidavit as an application under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) and advised that it would determine the application on the papers, without requiring the respondents to respond ([3]).
Dr Nguyen’s application again raised whether the breach could support substantial damages for lost employment, whether he could have obtained research grants, how the falling out with Professor Morris should be understood, and whether the respondents’ expert reports should have been considered ([5]-[13]). He concluded by claiming $2.1 million in lost salary and $387,000 for loss of research-grant opportunities ([13]).
The Court dismissed the application. It concluded that it did not identify a correctable inadvertent error, but instead sought to revisit issues already addressed in the appeal ([15], [19], [24]). It made no further costs order, noting that any costs incurred by the respondents would be minimal ([24]).
The Court began with the scope and purpose of r 36.16. It stated that the power is to be exercised “sparingly and with caution”, with regard to the importance of finality in litigation ([14]). It cited Majak v Rose (No 5) [2017] NSWCA 238 at [12]-[13] for those principles. The Court reproduced the explanation that the rule’s serious but limited purpose is to permit correction of “readily identifiable, readily rectifiable, inadvertent errors” without the complication and expense of an appeal ([14]). It also repeated that the rule does not give a litigant a licence to re-agitate decided issues in hope of a more favourable outcome ([14]).
Applying that approach, the Court characterised Dr Nguyen’s employment submissions as a renewed disagreement with the earlier assessment rather than a demonstration of an overlooked slip or inadvertent omission ([15], [19]). It emphasised that the burden was on him to establish substantial damages caused by the breach of cl 3.7. In particular, the relevant case required evidence that using best endeavours would have led to an offer of employment that he would have accepted ([16]-[17]).
The Court considered the argument that the earlier reasons had wrongly relied on a falling out with Professor Morris. Dr Nguyen maintained that the falling out resulted from the health district’s conduct concerning the intellectual property and a deed poll, rather than fault on his part ([8]). The Court said the primary judge had not decided why the falling out occurred; the reference was to the fact that it had occurred ([18]). It also explained why that fact mattered to the employment analysis: the previous arrangement involved employment under Professor Morris’ supervision and funding controlled by him. The falling out therefore counted against simply assuming a renewal of that arrangement and heightened the need for evidence that an offer would be made ([18]).
The Court further identified gaps in the evidence concerning what work Dr Nguyen would perform, who would supervise him, whether AIGD would use his services, and whether AIGD would pay for them. It noted there was no evidence that AIGD would license him to continue commercialisation work at its or the State’s expense ([19]). Those points did not resolve every possible factual question about employment; they explained why, in the Court’s view, the submissions did not supply evidence that could support the claimed substantial damages.
On research grants, the Court checked the material Dr Nguyen said had been overlooked. It identified two pieces: paragraph 201(iv) of his affidavit, which stated amounts claimed for salary and grant opportunities, and paragraphs 72-74 of Professor Wakefield’s report ([20]-[21]). The former quantified his claimed loss; the latter was not in evidence, as the earlier appeal judgment had already noted ([21]-[22]). The Court therefore found no failure to consider evidence capable of supporting the grant-loss claim ([22]).
Finally, the Court rejected the renewed complaint about the respondents’ expert reports. It referred to the earlier appeal reasons, which recorded that the respondents had served reports but had not called the experts, and that the applicant had been told at trial that the reports were not evidence ([23], referring to Nguyen [2025] NSWCA 107 at [69]-[72]). In the Court’s view, this was a matter already dealt with on appeal, not a reason to reopen the judgment.
The decision describes the applicable rule as it stood for this application. Under r 36.16(1), the Court may vary a judgment or order before entry; the Court stated that r 36.16(3A) extends that power to an application such as this one, made within 14 days ([14]). The Court did not set out the full text of either provision, and this account is limited to its description.
The central principle the Court applied was not presented as a new test. The Court described the approach as “well established” and cited Majak v Rose (No 5) for the need to exercise the power sparingly and cautiously ([14]). It also recited the limited purpose of correcting readily identifiable and readily rectifiable inadvertent errors, while guarding against unnecessary re-litigation and harm to finality ([14]).
The decision’s application of that principle turns on the difference between identifying an error in the judgment and repeating a disagreement with its reasoning. Dr Nguyen argued that the Court had failed to consider submissions and evidence. The Court reviewed the identified arguments and materials, then concluded that they had been dealt with or did not constitute evidence before it ([18]-[23]). On that basis, the application did not meet the rule’s limited purpose.
The judgment does not purport to alter the legal test for proving substantial damages for breach of cl 3.7. In applying the earlier appeal analysis, it stated that Dr Nguyen needed evidence that a further employment offer would have resulted and that he would have accepted it ([17]). It also explained that the lack of evidence about the proposed work, supervision and funding remained relevant ([18]-[19]). Those observations concern the claim as presented and the basis for reopening, rather than a general ruling on every best-endeavours employment clause.
The judgment therefore records an application of the previously stated reopening principles, not a reported change in the law. It identifies the earlier appeal, [2025] NSWCA 107, as the decision whose reasoning Dr Nguyen sought to revisit and refers to Majak for the governing caution ([1], [14]).
At [14], the Court said the power must be exercised “sparingly and with caution”. In plain English, a reopening application is not another ordinary opportunity to argue the case. The Court described the purpose as correcting a readily identifiable and readily rectifiable inadvertent error.
At [16], the Court said the onus rested on Dr Nguyen to make out a case for substantial damages caused by the breach. This explains why the Court focused on evidence linking the alleged breach to a likely employment offer and resulting loss, rather than on the mere fact that the clause had been breached.
At [18], the Court distinguished the existence of a falling out from the reasons for it. The primary judge, as the Court understood the reasons, recorded that the falling out had occurred without deciding who caused it. The Court considered the breakdown relevant because the previous employment arrangement had depended on Professor Morris’ supervision and funding control.
At [19], the Court listed matters for which it said there was no evidence: whether AIGD would use Dr Nguyen’s services, pay for them, or license further commercialisation work. In plain English, the Court considered that the application did not fill the evidentiary gaps it had identified in the earlier appeal.
At [22], the Court stated that it had not failed to consider the evidence raised in Dr Nguyen’s submissions. It found that the cited affidavit paragraph stated the quantum claimed and that Professor Wakefield’s report was not in evidence. This was the Court’s response to the claim that grant-related evidence had been overlooked.
At [24], the Court concluded that the application sought “to revisit parts of this Court’s reasons with which he is dissatisfied” and dismissed it. This captures the procedural character of the decision: the Court did not conduct a fresh appeal or reassess the entire dispute.
The judgment is most directly relevant to an application seeking to reopen a civil judgment under UCPR r 36.16 where the applicant says that the court overlooked submissions or evidence, but the material shows that the complaint was already considered or that the material was not evidence before the court. The Court’s reasoning highlights the importance of identifying a particular inadvertent error capable of correction, rather than simply asserting that the reasons were wrong ([14]-[15], [20]-[23]).
The case also illustrates the distinction between material exchanged before trial and material admitted into evidence. The respondents had served expert reports but did not call the experts. The earlier appeal reasons, as reproduced in this judgment, recorded that the trial judge and respondents’ counsel made that position clear ([23]). The Court treated the complaint about those reports as already resolved, not as a fresh basis to reopen.
For damages claims like the one discussed here, the decision illustrates a fact-sensitive evidentiary question: whether there is evidence supporting the chain between breach, a likely offer of employment, acceptance, and the claimed loss. The Court referred to gaps about duties, supervision, funding and any role for AIGD ([17]-[19]). It also considered that a claim for lost grant opportunities required evidence capable of supporting the alleged lost chance, rather than a statement of the amount claimed or a report not in evidence ([20]-[22]).
The judgment does not establish that every reopening application involving overlooked evidence must fail, nor does it state that a particular form of evidence will always be sufficient. Its conclusion concerns the arguments and evidentiary record described in this matter. The practical trigger shown by the decision is a reopening application that, on the Court’s assessment, repeats earlier arguments without identifying a correctable inadvertent error.
The supplied judgment contains no information about later decisions treating Nguyen v Northern Sydney Local Health District (No 2) [2025] NSWCA 129. It was delivered on 10 June 2025, and the document does not cite any subsequent judicial treatment of this decision. It would therefore be unsupported to say that later courts have followed, distinguished, applied or criticised it.
The judgment itself refers to two authorities. It cites Majak v Rose (No 5) [2017] NSWCA 238 for the principles governing r 36.16 ([14]). It also considers the earlier appeal in Nguyen v Northern Sydney Local Health District [2025] NSWCA 107, particularly its analysis of employment damages and research-grant evidence ([1], [6], [23]). These are the authorities addressed in the supplied reasons; they are not evidence of how later courts treated the present decision.
For research purposes, any account of subsequent treatment would require later judgments or another source not included here. This deep dive does not make a claim about such later treatment.
The decision leaves questions that it did not need to determine. First, it does not decide the underlying reasons for the falling out between Dr Nguyen and Professor Morris. The Court said that the primary judge had recorded the falling out without deciding why it happened, and that the reasons for it were not an issue that arose in the reopening application ([18]).
Second, the decision does not determine what employment arrangement could have been available under cl 3.7 in different factual circumstances. It identifies the absence of evidence about the duties, supervision, funding and involvement of AIGD in this case ([18]-[19]); it does not set out a universal standard for proving that an offer would have resulted from a best-endeavours obligation.
Third, the reasons do not determine the substantive value of the claimed research-grant opportunities. The Court addressed whether the material relied upon demonstrated an overlooked error in the earlier judgment. It found that the identified affidavit paragraph stated claimed amounts and that the Wakefield report was not in evidence ([20]-[22]). It did not make a fresh assessment of grant prospects.
Fourth, the judgment does not explore how r 36.16 might apply to a different kind of alleged error, such as a demonstrable accidental omission from reasons. The Court restated the general purpose of the rule and held that the complaints before it did not fit that purpose ([14]-[15], [24]). The supplied reasons therefore provide an application of the principle to this procedural history, not an exhaustive account of every circumstance in which reopening may be available.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
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
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).
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.
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.
These are our reasons for dismissing Dr Nguyen’s application. They assume familiarity with this Court’s earlier judgment.
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.
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.
Dr Nguyen’s submissions are divided into responses to [100]-[101] which concern employment and [102] which concerns research grants.
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.
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.
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.
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.
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”.
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.
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.
Dr Nguyen’s application falls well outside those principles.
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.
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]).
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.
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.
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).
The second is paragraphs 72-74 of Professor Wakefield’s report. That report was not in evidence, as noted in [102].
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].
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.
**********
Nguyen
Northern Sydney Local Health District
The application under UCPR r 36.16 was dismissed. The Court made no further costs order, observing that any costs incurred by the respondents would be minimal ([24]).