Rickhuss v The Cosmetic Institute Pty Ltd - [2023] NSWSC 666 - NSWSC 2023 case summary — Zoe

NSWNSWSC

Rickhuss v The Cosmetic Institute Pty Ltd

[2023] NSWSC 666

Supreme Court of NSW|2023-03-23|Before: Garling J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2023-03-23

Before

Garling J

Catchwords

[2009] NSWCA 35 Baggs v University of Sydney Union [2013] NSWCA 451 Bright v Femcare Ltd (2002) 195 ALR 574
[2009] FCAFC 26 Murgolo v AAI Ltd (2019) 101 NSWLR 376
[2019] NSWCA 295 Pomare v Whyte (2019) 377 ALR 352
[2011] NSWSC 1083 State of NSW v Gillett [2012] NSWCA 83 Wong v Silkfield (1999) 198 CLR 255

Source

Original judgment source is linked above.

Catchwords

[2009] NSWCA 35 Baggs v University of Sydney Union [2013] NSWCA 451 Bright v Femcare Ltd (2002) 195 ALR 574[2009] FCAFC 26 Murgolo v AAI Ltd (2019) 101 NSWLR 376[2019] NSWCA 295 Pomare v Whyte (2019) 377 ALR 352[2011] NSWSC 1083 State of NSW v Gillett [2012] NSWCA 83 Wong v Silkfield (1999) 198 CLR 255

Judgment (35 paragraphs)

[1]

d (P5) Tiffany Rutherford (P6) Alysha Axen (P7) Sherine Zahr (P8) Emma Love (P9) Candiece Gielisse (P10) Ali Turner (P11) Stefanie Sanchez (P12) The Cosmetic Institute Pty Ltd (ACN 135 061 155) (D1) The Cosmetic Institute Parramatta Pty Limited (ACN 144 469 036) (D2) TCI Bondi Junction Pty Limited (ACN 165 531 895) (D3) TCI Southport Pty Ltd (ACN 605 603 423) (D4) Eddy Dona (D5) Niroshan Sivathasan (D6) Van Huu Anthony Nguyen (D7) Victor Lee (D8) Chi-Vien Duong (aka Charles Wong) (D9) Anh Huy Tang (D10) Napoleon Po Han Chiu (D11) Daniel Kwok (D12) Pedro Miguel da Silva Valente (D13) Fahreen Ali (D14) James Francis Christopher Kenny (D15) Sri Balakrishnan Darshn (D16) Certain underwriters at Lloyd's subscribing to policy no. 04012 (D17) Allied World Assurance Company, Ltd (D18) MDA National Insurance Pty Ltd (D19) Representation: Counsel: D Graham SC / H Chiu / M Robinson (P1-P12) No appearance (D1-D4) R J May (D5) J Gooley / R Higgins (D6) A J McInerney SC / N Bentley (D7-D16) J Tesarsch / P Lamb (D17) T Mehigan SC / T Marskell (D18) M Hamdan (D19)

[4]

Principal Proceedings

This is a representative proceeding which was initially commenced by a Statement of Claim filed on 14 September 2017.
The proceedings are now constituted by the Fifth Further Amended Statement of Claim ("5FASC") which was filed on 31 March 2023 by leave of the Court.
There are 12 individual plaintiffs. They bring claims on behalf of a group of individuals who underwent breast augmentation surgery ("BAS") on or before 29 October 2017, at one of five separate premises of, or associated with, The Cosmetic Institute Pty Ltd ("TCI"). Four of those premises were in New South Wales and one was in Southport in Queensland. To be a group member, an individual has to have had BAS performed by, or with the assistance of, any of the 5th to 16th defendants, and their BAS has to have been carried out in accordance with the TCI System, a term which is defined in 5FASC, and which will be described in greater detail in due course.
The group is divided into 11 sub-groups, the members being those women whose surgery was performed respectively by one of the 6th to 16th defendants who describe themselves as cosmetic surgeons ("the TCI Surgeons").
The 2nd, 3rd and 4th defendants were, at the relevant time, subsidiary companies of the 1st defendant, The Cosmetic Institute Pty Ltd. Each of the four corporate defendants are in liquidation. Leave has been granted to proceed against them. None of them are taking any active role in the litigation. For convenience, they will be referred to as the "TCI Companies".
The 5th defendant, Dr Eddy Dona, was at the relevant time a registered medical practitioner who was practising as a plastic and reconstructive surgeon.
Dr Dona was a director of each of the TCI Companies and the beneficial shareholder of each of the companies. He held a position which was described as being the Medical Director of the TCI Companies.
As will become apparent, the allegations against Dr Dona are that he was the architect and promoter, through the TCI Companies, of a comparatively low-cost BAS system, the TCI System, which he put into operation. It is said that the type of BAS of which he was the architect, had a standard or "one size fits all" approach. It is further said that he advised each of the TCI Companies as to how to implement the BAS using the "one size fits all" approach. It is claimed that he trained each of the TCI Surgeons to carry out the BAS using the "one size fits all" approach.
It is also claimed that he supervised or directed nursing staff, and all other necessary staff, at the locations used by the TCI Companies to provide services. It is convenient to refer to those locations as the TCI Premises.
The claim against the TCI Companies and Dr Dona also includes that they and he made representations to the public, including the group members, about the TCI System of undertaking BAS. These representations were said to be false and misleading.
The TCI Surgeons are each registered medical practitioners who carried out the BAS, on one of the plaintiffs and on many other women. It is said that each of the TCI Surgeons were negligent in and about the way they carried out the BAS because the "one size fits all" approach to BAS was a procedure which was either known to them, or else, ought to have been known to them, carried with it a significantly higher risk of complications, when compared to BAS carried out in other ways. It is said that the TCI Surgeons did not disclose those increased risks to any of the patients who undertook surgery and, by their conduct and participation in the TCI System, they made representations, or by their conduct joined in representations made by others, to their patients about the BAS using the "one size fits all" approach.
The 17th, 18th and 19th defendants are insurers which, it is said, indemnified either Dr Dona or one or other of the TCI Companies ("the Insurers"). The Insurers have declined to provide indemnity with respect to this claim against their insureds. They do so on different bases.
The central plank of the plaintiffs' claims is that the TCI System meant that the BAS procedure was carried out in a standard way by the TCI Surgeons, at the TCI Premises using the "one size fits all" approach.
Paragraph 21 of the 5FASC pleads that approach in the following terms: "21. The BAS performed at the TCI Premises for or on behalf of The Cosmetic Institute, TCI Parramatta, TCI Bondi and/or TCI Southport, adopted the following approach (the One Size Fits All Approach): (a) Pre-operative consultations were conducted, and advice provided to plaintiffs and group members in the absence of an appropriately qualified and trained surgeon; (b) The surgery was performed under either twilight sedation or general anaesthesia which in either case was provided by TCI anaesthetists; (b1) Whether the surgery was performed under twilight sedation or general anaesthesia, the surgery was performed using local anaesthesia injected not by an anaesthetist, but by Eddy Dona or the TCI surgeon in attendance; (c) The surgery was performed using bilateral infra-mammary incisions; (d) Round textured silicone implants were implanted; (e) Implants were inserted into subpectoral pockets and/or using a dual plane approach; (f) The same technique was used irrespective of: (i) Differences in the size or shape of the plaintiffs' and group members' breasts; (ii) Where the plaintiffs' and group members' breasts were tuberous or ptotic; or (iii) Whether a different or additional surgical approaches and techniques were indicated, such as mastopexy. (g) At TCI Parramatta premises and TCI Bondi premises: (i) Surgery was performed by TCI Surgeons under local anaesthesia injected by the TCI Surgeons and twilight sedation provided by TCI Anaesthetists; (ii) Surgery was performed without general anaesthesia; (iii) She same surgical technique was used irrespective of whether general anaesthesia was required so as to enable different or additional surgical approaches. (h) The surgery was performed using the TCI facility; and (i) The surgery was performed by Eddy Dona or the TCI Surgeons."
Although I have only set out in detail the "one size fits all" approach, it was one of six elements which comprised the TCI System as pleaded.
Paragraph 24C1 of 5FASC defines the TCI System and is in the following terms: "The 'TCI System' comprised each of the following elements as pleaded in paragraphs 15-24C above: (a) TCI Facilities; (b) TCI Surgeons; (c) TCI Anaesthetists; (d) The One Size Fits All Approach; (e) Pre-Surgery Consultations; and (f) Post-Surgery Consultations."
That paragraph describing the TCI System is then the relevant descriptor of the harm which gives rise to the tortious claims.
Paragraph 24C2 describes that harm in the following terms: "By reason of the TCI System, the plaintiffs and group members were at an increased risk of having the following complications compared with BAS not performed in accordance with the TCI System (the BAS Complications)".
There are 14 complications then particularised including post-surgical appearance, inappropriate physical results as a consequence of the surgery, infections and other surgical complications, and then more serious complications such as local anaesthetic toxicity or breast implant associated anaplastic large cell lymphoma.
The causes of action pleaded in the 5FASC are two-fold. First, the plaintiffs allege that the TCI Companies, Dr Dona and the TCI Surgeons, owed each of them and each group member, a duty to exercise reasonable care and skill in: 1. first, for Dr Dona, designing, promoting and bringing into existence the TCI System; and 2. secondly, for the TCI Companies, Dr Dona and the TCI Surgeons in the provision of advice about, in the performance of, and in the post-surgical management, of the BAS.
The 5FASC pleads a range of particulars of those breaches. Insofar as the TCI Surgeons are concerned, the particulars of breach of duty are identical with respect to all of the members of each sub‑group.
Insofar as the cause of action in negligence requires the proof of causation, the plaintiffs plead that had the TCI Companies and Dr Dona not been in breach of their duty, the TCI System would not have come into operation and the BAS would not have been performed on the plaintiffs and group members at all. It is also said that the negligence and breach of duty of the TCI Companies and Dr Dona has had the result that the TCI Surgeons would not have performed the surgery on the plaintiff and group members. It is then pleaded that if the plaintiffs and group members had not undergone the surgery, they would not have sustained the injuries or any of the BAS complications, which they each did.
As against each of the TCI Surgeons, the plaintiffs plead in identical terms that had there not been any negligence, the BAS would not have been performed at all, or else not performed by using the TCI System including the one size fits all approach.
The second cause of action contained in the 5FASC, arises from pleaded breaches of the Australian Consumer Law ("the ACL"). The pleading asserts that the BAS constituted the provision of a service supplied in trade or commerce to the plaintiffs and group members and that, therefore, the provisions of the ACL were applicable.
The 5FASC pleads that the performance of the BAS had particular purposes from the perspective of the plaintiffs and group members, including the enlarging of the breasts of the plaintiffs and group members, and the improvement of their aesthetic appearance. These purposes (and some others to a similar effect) are defined as the BAS Purpose.
The pleading also identifies a reasonable expectation for those supplied with the BAS Service, which can be sufficiently summarised here as being constituted by the successful delivery of the BAS Purpose. The reasonably expected results are defined as the BAS Results.
Paragraph 89 of 5FASC is in the following form: "By reason of the TCI System and/or the matters referred to in paragraph 81 above, BAS acquired by the plaintiffs and group members: (a) was supplied by the first to fourth defendants in breach of the guarantee of due skill and care in s 60 of the ACL; (b) was not, within the meaning of s 61(1) of the ACL, reasonably fit for the BAS Purpose; (c) was not of a nature, quality, state or condition, that might reasonably be expected to achieve the BAS results, within the meaning of s 61(2) of the ACL."
That pleading is replicated for each of Dr Dona and the TCI Surgeons.
It is alleged that these breaches of the consumer guarantees were major failures within the meaning of s 268(a), (b) and (e) of the ACL. The 5FASC also pleads that the BAS would not have been acquired by the plaintiffs and group members had they been fully aware of the nature and extent of the failures, and that the BAS supplied by the defendants would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failures.
In addition, by way of a separate cause of action under the ACL, the plaintiffs claim that the representations which were made to them, and which form part of their claim in negligence, also constituted misleading or deceptive conduct, or conduct which was likely to mislead or deceive, contrary to ss 18, and 29(1)(b) and 34 of the ACL.
The causes of action pursuant to the ACL and these allegations are in identical form with respect to each of the non-insurer defendants.
The plaintiffs plead that in reliance on the representations which were made, they were induced to undertake BAS, thereby acquiring the services which they would not have done at all, but for the representations.
The plaintiffs also plead that they have suffered injury, loss and damage and also economic loss, by reason of the negligence of the defendants and their breach of the ACL. Insofar as the plaintiffs rely on breaches of ss 18, 19 and 34 of the ACL, they do not claim damages for personal injuries but rather damages by way of distress and disappointment at the poor aesthetic outcomes of the BAS, and their economic loss including the costs of any rectification surgery.
It is not necessary for me at this stage to set out the causes of action against the Insurers which arise from the liquidation of the TCI Companies, and the refusal of the Insurers to indemnify those companies and Dr Dona.

[10]

Common Questions Motion

The proceedings have been fixed for a first hearing, with an estimated time of 14 weeks, to commence on 4 September 2023.
At the time the matter was fixed for hearing, the Court directed that each of the plaintiffs' individual cases be heard together and that such common questions as were agreed, or to be determined by reference to the pleadings, would also be heard.
The question of whether there are any common questions now falls to be determined in the context of the Common Questions Motion. This determination will also enable the appropriate "Merck Orders" to be made if any common questions are identified. This term derives from the decision of the Full Court of the Federal Court in Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2009) 355 ALR 20; [2009] FCAFC 26. I will come to this decision shortly.
The notion of a common question of fact or law is central to a representative proceeding under Part 10 of the CPA. The existence of such questions arises at different times and requires attention at various stages of the proceedings. Different considerations may apply at those different times.
The earliest time at which the existence of one or more common questions arises is at the commencement of proceedings when the Statement of Claim is filed. Section 157(1)(c) of the CPA requires as a precondition to the commencement of representative proceedings that the claims of the group members give rise to "… a substantial common question of law or fact". In that context, substantial refers to a question which is "real or of substance": see Wong v Silkfield (1999) 198 CLR 255; [1999] HCA 48 at [27]; Shipley v Maru Financial Management Pty Ltd [2008] NSWSC 252 at [38] and [40].
Such consideration takes place on the basis of the pleadings, not by reference to the true facts or the issue of whether the evidence for each group member is likely to be different.
I note that the context for the consideration of that issue is to be found in the balance of s 157 which provides that representative proceedings can be commenced whether or not the relief sought is different for group members, or if it includes claims for damages which require individual assessment. The section also permits, as representative proceedings, those that are concerned with separate contracts or transactions and those which may involve separate acts or omissions of a defendant done or omitted to be done to individual group members: s 157(2)(a) and (b). I also note that there only has to be one substantial common question. There may be more, although only one needs to be apparent. The fact that a common question may be easily resolved does not deny its existence or its nature as one of substance: Shipley at [40].
Another time at which the consideration of the existence of, and substance of, common questions of fact and law will arise is if an application is made (as here) for an order under s 166 of the CPA that the proceedings no longer continue as a representative proceeding under Part 10 of the CPA. An application for such an order is often conveniently referred to as a "declassing" application. The Court may make such an order if it is satisfied that it is "… in the interests of justice …" to do so: s 166(1) of the CPA. Relevantly for these proceedings, a declassing order may be made : 1. because of case management considerations such as costs and efficiency: s 166(1)(a), (b) and (c); or 2. when a plaintiff is not able to adequately represent the interests of group members: s 166(1)(d); or 3. when it is otherwise inappropriate that the claim be pursued by means of representative proceedings: s 166(1)(e).
I note that s 168 of the CPA makes specific provision for the Court to give directions in circumstances where the identified common questions do not finally determine the claims of all group members.
In considering a declassing application, the Court commences from the position that the proceedings have been properly commenced as a representative action and the Court then considers whether it is in the interests of justice that the matter no longer continues as a representative proceeding: Bright v Femcare Ltd (2002) 195 ALR 574; [2002] FCAFC 243 at [128].
In deciding whether to make a declassing order, a Court will need, in the context of the legislative considerations, particularly efficiency, to consider the nature and extent of the common questions which are contended for and the likelihood that a determination of those issues will assist in the quelling of the dispute between the parties.
Another time at which common questions fall for consideration is at the time, in advance of an initial hearing, that the Court is called upon to consider the making of a "Merck Order".
At [6]ff of the Merck decision, the Court (Moore, Sundberg and Tracey JJ) said: "[6] In our opinion it is desirable, if not necessary, to identify precisely what issues will be determined in the "trial" (and those that will not be determined) on the assumption, which the parties did not gainsay, that at the end of the "trial", orders will be made which reflect the determination made by the trial judge on both questions of fact and law or mixed questions of fact and law. … [7] Also, common issues can be determined. There is plainly a controversy about which issues are common. Merck disputes that the issues pleaded in Mr Peterson's statement of claim are, in truth, common questions. However, it is tolerably clear that the scheme of Part IVA of the Federal Court Act is that whilst a proceeding continues as a representative proceeding, the Court should, in the ordinary course (at least in relation to proceedings involving a sizable group where liability may depend on each member's individual circumstances), initially deal with issues that are common to all members of the representative group or a sub-group of that group. … [8] It seems to us that given that there is controversy about what are the common issues, it would be desirable to structure the "trial" by identifying what might be the common issues for determination, though on the footing that if it became apparent from the evidence and the submissions that they were not common, they would not then be determined lest they be "an issue that relates only to the claims of [one particular] member"."
The Court went on to note that orders of the type being considered would provide "a touchstone for rulings in relation to the evidence …" and other procedural issues which are likely to arise in the course of the hearing.
Finally, it will always be a matter for the trial Judge who hears any common question to determine whether, in light of the evidence, and the facts of which the Judge is satisfied, all of the group members will be bound by the facts found and the determination of any legal issues. Section 179 of the CPA requires the judgment to specify the group members affected by, and bound by, the determination made which can include the determination of any question of law or fact: see s 177(1)(a) and (b) of the CPA. As was demonstrated by the judgment of the Full Court of the Federal Court in Merck at [12], it is a matter for the trial Judge to determine whether an answer to any common question of fact or law is, in light of the evidence, truly a common question.
For the purpose of the elucidation of what questions might be regarded as common and which should be heard at the same time as the claims of the 12 plaintiffs, the plaintiffs produced a set of 45 questions which they contended would all arise as common questions and be applicable to the whole group, or else a particular sub-group. These questions are set out in the Schedule to these reasons.
The plaintiffs contended that these questions would satisfy any of the tests set out above so as to mean that: 1. the proceedings were properly constituted under Part 10 of the CPA; 2. the proceedings ought not to be declassed pursuant to an order under s 166 of the CPA; and 3. a Merck Order should be made for these questions to be heard and determined.

[11]

Submissions of the TCI Surgeons

The TCI Surgeons submit that the 5FASC does not give rise to any common question of law or fact as between the plaintiffs and the TCI Surgeons, nor between the group members and the TCI Surgeons, because an analysis of that pleading demonstrates that there was not "… a substantial question of law or fact …" as that phrase is used in s 157(1)(c) of the CPA. In making this submission, the TCI Surgeons fasten on the fact that the nature of the surgery undertaken is necessarily individualistic, which turns on identifying which surgical technique was used irrespective of anatomical differences in each patient including whether different or additional surgical approaches or techniques were indicated in that patient's case: see paragraph 21(f) of the 5FASC. The TCI Surgeons submit that such an allegation necessarily involves a close examination on an individual basis of the surgical technique chosen, the individual patient anatomy, the individual breast anatomy, what the TCI Surgeon said to the patient, what the patient said to the TCI Surgeon, and how the TCI Surgeon actually performed the BAS on the patient.
The TCI Surgeons submit that on any consideration of this central question, it simply cannot give rise to any substantial common question and that, therefore, the proceedings as pleaded in the 5FASC do not demonstrate compliance with s 157 of the CPA, nor with s 161 of the CPA insofar as any question of law pleaded is not common to the claims of group members: s 161(1)(c) of the CPA.
The TCI Surgeons submit that the deficiency in the 5FASC is that it hinges on the false premise that paragraph 21(f) which is set out at [18] above, gives rise to a common question of fact. They submit that the consequence of this false premise is that it has the effect of reversing the onus of proof in the proceedings and thereby creating procedural unfairness for the TCI Surgeons "… who must defend an allegation which [they] can only do by adducing evidence about each individual group members' BAS procedure".
Ultimately, the TCI Surgeons submit that the plaintiffs' pleading and their contention that there are substantial common questions of fact or law, ignores the proposition that their case theory is premised on "similarity" between different transactions (i.e., BAS performed on many, many patients) which, by their very nature, do not give rise to a common question of law or fact.
Notwithstanding the submission of the plaintiffs that 5FASC raises a "systems case" by reference to the contents of [24C1] and the pleading of risk of harm set out in [24C2] of 5FASC, the TCI Surgeons submit that, nevertheless, it is not possible to identify a substantial common question of law or fact.
The submissions draw attention to the wording in paragraph 21 of the pleading, which has been set out at [18] above. They submit that 21(f), which pleads that the same technique was used irrespective (i.e., without any regard to, or independent of) anatomical differences, necessitates an individual enquiry with respect to the individual circumstances of the BAS performed by each of the TCI Surgeons on one of the plaintiffs and the sub-group of members described by reference to each TCI Surgeon. Put differently, the TCI Surgeons submit that in order to resist the proposition that they systemically adopted in each patient's operation the "one size fits all" approach (which included adopting the same surgical technique without regard to the individual differences), the only way in which they can mount a defence is to examine the surgery undertaken in the case of every group member, which they submit must mean that there can be no common question of fact.
The TCI Surgeons submit that the inevitable consequence of a conclusion to that effect is that the plaintiffs do not have any privity of interest with the group members either at large, or by reference to their sub-group, and accordingly do not have a sufficient representative capacity to commence or continue the proceedings. The TCI Surgeons submit that it follows that the proceedings were not properly commenced under Part 10 and that the proceedings should be struck out and dismissed or else declassed.
In expansion of their submissions that there can be no common question of fact, the TCI Surgeons submit that each patient, and their BAS, and their dealings with the relevant TCI Surgeon, turn on an examination of all facts and circumstances relevant to that individual. Each patient's BAS, it is submitted, is premised on different facts from one to the other, from the patient's anatomy to the patient's interaction with their surgeon, including what was said and what was not said, and then how the surgeon went about performing the surgery. They submit that because this requires an individualised assessment of the facts and circumstances relevant to an individual patient, the only issue which exists is an entirely individualised one and not one having any common question of fact.
The consequence of this, the TCI Surgeons submit, is that with respect to the claims of individual group members, they are unable to examine them in the current proceedings. First, because the TCI Surgeons do not know, and are not told, the identity of each individual group member including essential details about them such as their date of birth, the date of their surgery, where the surgery was performed, who performed it and relevant material facts relating to their individual anatomy which would be contained within a copy of the TCI clinical records which would need to be provided by each individual group member to afford procedural fairness to the surgeon were they to commence an individual case.
The TCI Surgeons draw attention to the fact that so far as presently appears during the relevant pleaded period, there were approximately 13,500 individual BAS operations performed at the TCI Premises. They note that the plaintiffs do not intend to, and have not taken steps towards, obtaining the production of the clinical records for each of these 13,500 procedures. Accordingly, they submit, it is simply not possible to demonstrate that there is any common question of fact to be described which would give rise to any issue estoppel enforceable by the TCI Surgeons against any group member.
In the absence of all of the clinical records for all of the patients who underwent BAS operations, the TCI Surgeons submit that they are confronted by an incurable procedural unfairness. That procedural unfairness is incurable because: 1. the TCI Surgeons do not have access to the clinical records of all of the procedures; and 2. the pleadings do not, and do not attempt to, identify the facts, matters and circumstances of each group member giving rise to a claim.
As a matter of evidence, the TCI Surgeons note that they do not hold the clinical records in respect of each procedure, and that the clinical records were the property of the TCI Companies. The business operated by those companies was, after liquidation of the TCI Companies, sold to a business owned by a company not involved in these proceedings by the name of Macquarie Cosmetic Institute Pty Ltd.
As well, for the purposes of this Motion, the TCI Surgeons rely upon evidence put before the Court which they submit the Court ought to accept, which is that the infra-mammary approach for the insertion of the implants which were used - being an approach under the muscle - and/or a dual-plane approach as described in paragraphs 21(c) and (e) of 5FASC, is widely accepted by peer professional opinion as competent medical practice.
Given that opinion, which was not challenged on the Common Questions Motion, the TCI Surgeons submitted that asserting a breach of duty in circumstances where a widely and commonly accepted surgical technique was used, can only be established by having regard to the individual circumstances of each patient, and the particular application of that approach in the circumstances of that patient. They submit that that is necessarily an individual question, which does not suggest any commonality amongst group members.
Another way in which the TCI Surgeons put their submissions with respect to the systems case as described by the plaintiffs, is to say that these proceedings are: "… in reality, a series of individualised medical negligence cases, each of which turns on its own individual facts, dressed up as concerning a substantial common question of fact or law (the 'System of BAS'), but which on proper analysis involves no, or little, more than the [plaintiffs] identifying the component elements of BAS, and then describing those steps as a 'System of BAS'. In truth, the relevant steps involved in the alleged 'System' under the 'One Sized Fits All Approach' are nothing more than what occurs in most, if not all, BAS."
Insofar as the causes of action pursuant to the ACL are concerned, the TCI Surgeons submit that the guarantee under s 60 of the ACL, that requires the provider of a service to render it with due care and skill, is no different in principle from a common law claim in negligence and, accordingly, its submissions which have been recounted to date continue to apply.
Insofar as the claims are made for breaches of ss 61(1) and (2) of the ACL, being the purpose and result guarantees, the TCI Surgeons submit that the BAS purpose set out at [85] of the 5FASC cannot be anything other than an inherently individualistic finding, and it is not open to plead such a generic purpose.
Insofar as the case based on misleading and deceptive representation is concerned, the TCI Surgeons also submit that a consideration of the individual circumstances of each group member and the context of the questioned conduct, together with the particular stated knowledge of the patient to whom the conduct is directed, are all relevant in considering whether or not the conduct was misleading or deceptive or likely to mislead or deceive. They point out that the relevant state of mind is that of the individual, not of some hypothetical individual receiving such representation.
In light of the foregoing, the TCI Surgeons submit that it cannot be that the efficiency and costs of the proceeding continuing as a representative proceeding are such that they would outweigh the costs which they are likely to incur. They submit that the representative proceedings will not provide an efficient and effective means of dealing with all of the claims of the group members.

[12]

Submissions of the Plaintiffs

The plaintiffs submit that the relief sought on this Common Questions Motion is premised upon a single contention, namely that the claims of the plaintiff and group members are "individualistic" and raise no common questions of fact or law.
The plaintiffs submit that the short and complete answer to this proposition is that it misunderstands the purport of the case made by the plaintiffs. The plaintiffs submit their case encompasses the fundamental proposition that the TCI System (as that term is defined in the pleadings) was so unsafe and liable to cause injury, that it should not have been put on the market and offered to those members of the public wanting BAS. They submit that, fundamentally, the plaintiffs' claims are all akin to a "no transaction case". That is to say, had the TCI System not been put on the market and offered to the public, the plaintiffs and group members would not have undergone surgery at the TCI Premises at the hands of the TCI Surgeons and, had they not undergone surgery, then none of the complications and injuries which they have sustained would have occurred.
The plaintiffs acknowledge that in due course, individual assessments will inevitably be required with respect to the particular injuries and complications suffered by each plaintiff and each group member, and whether those complications or injuries were causally related to the surgery which each plaintiff and group member underwent. However, as the plaintiffs submit, that type of assessment, which is not atypical in representative proceedings arising out of tort, occurs at a time after the determination of the common questions which have been identified.
The plaintiffs, in answer to the TCI Surgeons' submission which I have captured from [65] above, respond that there is no need to enquire into the question of whether a particular surgical technique which was used was warranted for a particular patient. The plaintiffs' submissions note that the plaintiffs have always accepted that surgical technique alone was appropriate for many patients. Their case is that the TCI System (one component, amongst many other components, one of which is the surgical technique) as a whole was inappropriate and should not have been on the market. The plaintiffs submit that the system which had at its core an inability to offer any meaningful variation of the single available surgical technique, irrespective of whether a variation was warranted in respect of a particular patient, could not, on any view, be an adequate one. The same submission is made with respect to any inadequacy of infection control processes, absence of appropriate clinical governance processes, the use of the same highly textured implant and the use of twilight sedation in lieu of anaesthesia.
Accordingly, the plaintiffs submit that as their case articulates a particular system which they allege was in place and used for each patient, and that that system should not have been available to the public, there is no need, at least at the initial hearing when common questions are to be explored, to descend into the minutiae or the individual circumstances of each group member (other than each of the plaintiffs) before the proposed common questions can be answered.
The plaintiffs submit that the submissions of the TCI Surgeons misconceive the meaning and scope of the pleading insofar as it adopts a "one size fits all" approach to the BAS which was performed. The plaintiffs submit that it is important to recognise that the pleading of the "one size fits all" approach which is set out at [18] above, is that it encapsulates the whole approach of the defendants to the provision of BAS at the TCI Premises.
Accordingly, the plaintiffs submit that the notion persistently advanced by the TCI Surgeons, that the surgery performed on the plaintiffs and group members was "inherently individualistic", simply fails to address the nature of the plaintiffs' case.
In using the term "inherently individualistic", the plaintiffs point to this paragraph of the TCI Surgeons' Further Written Submissions: "[42] As has already been submitted, each patient, and their BAS, and their dealings with the relevant TCI doctors is inherently individualistic, turning on an examination of the facts relevant to that individual. Each patient's BAS is premised on different facts from one to the other: from the patient's anatomy, the patient's interaction with the TCI doctor, including what the patient said to the TCI doctor and what the TCI doctor said to the TCI patient, and how the TCI doctor performed the BAS in respect of the individual patient's anatomy."
The plaintiffs' response again simply put is that: "… the mantra of the claims being "individualistic" does not address the no transaction case, misapprehends the TCI System that has been pleaded, focusses on only one component of the system, and confuses the time when individual circumstances fall to be assessed in personal injury actions."
The plaintiffs point to the decision of Wigney J in Bywater v Appco Group Australia Pty Ltd [2018] FCA 707, which was a case dealing with a "standardised system" and "systematic" misconduct. In response to a declassing action on the basis that the proposed common questions could only be answered by assessing individual circumstances of each group member, Wigney J said at [117]: "117. Nor can it be concluded, at least at this stage, that it would be otherwise inappropriate that the claims of the group members be pursued by means of a representative proceeding. If, as events transpire, the evidence adduced by Mr Bywater fails to establish that the agreements, systems and structures employed by Appco were invariable as between the group members, or that the agreements, systems and structures were so prescriptive and all-encompassing that the individual circumstances of the group members are essentially irrelevant in terms of determining whether group members were employees or independent contractors, the Court may refuse to answer common questions … as presently framed."
His Honour concluded that it could not be said at that stage of the proceedings before him, that the current representative nature of the proceedings would not provide an efficient or effective means of dealing with group members' claims.
The plaintiffs also point to a judgment of mine in Giles v The Commonwealth of Australia [2014] NSWSC 83, in which a declassing application was refused in circumstances where although it was likely that there would be individual variations in the identity and treatment of each resident, there was nevertheless a question involving a systemic application of physical and sexual abuse perpetrated on children at a school and farm in an abusive environment. They submit that the circumstances here are analogous.
Insofar as the TCI Surgeons' submissions refer to the need for an investigation of the factual circumstances of each patient, and that in order so to do the TCI Surgeons need the clinical records of each of the group members which have not been produced, the plaintiffs contend that there is no need to investigate the factual circumstances of the BAS undergone by each group member. They submit that they intend to prove the fact of the system "… predominantly by documentary evidence (which includes admissions by those who created and operated the system), together with expert evidence".
The plaintiffs' submissions draw attention to the fact that the TCI Surgeons themselves are best placed to know whether or not a system of the kind alleged by the plaintiffs was in existence, and whether they did or did not follow it. Their submissions point to the fact that the TCI Surgeons would be the best people to know whether they in fact declined to perform surgery in accordance with a standard methodology including reporting on a pro forma and pre-typed operation report.
The plaintiffs accept that questions of causation relating to any breach of duty which they establish and the individual plaintiff's circumstances, may well be a matter of individual assessment.
The plaintiffs' submissions seek to illustrate the commonality of their cases by drawing attention to the terms of an important common question. The plaintiffs' proposed common question dealing with a breach of duty is in these terms: "Was adopting the TCI System of itself, in breach of a TCI Surgeon's duty of care to each patient?"
The plaintiffs draw attention to the word "itself" in that common question to indicate what is being sought to be alleged, and that such a question, in order to be answered, does not require the examination of the circumstances of the case of each individual group member.

[13]

Discernment

The Court is confronted, on this initial issue, with the question of whether there are any common questions, and if so, what they are. The positions of the parties are entirely divergent.
The plaintiffs on the one hand say that there are many substantial questions of fact or law, which can be determined efficiently within this representative proceeding. They accept that some elements of the ultimate claim for damages by any individual group member will need to be individually addressed and assessed.
On the other hand, the TCI Surgeons approach the matter on the basis that each individual surgical procedure performed by them on a plaintiff or group member was an individual procedure which was performed in circumstances which were applicable appropriately to that individual, in light of that individual's needs and circumstances, and from that perspective it is not possible to find any commonality of fact or law.
One area of the broader dispute amongst all parties which the submissions of the TCI Surgeons overlook is that the 1st to 5th defendants, the TCI Companies and Dr Dona, are the subject of claims against them, which if established inform, and may well prove, the claims against the TCI Surgeons. Common questions as between the plaintiffs and group members on the one hand, and the TCI Companies and Dr Dona on the other, have been formulated which, if established, may also inform the proof of liability against the TCI Surgeons.
Questions such as was there a TCI System, if so who designed and implemented it, what the components of it were, and whether amongst the features of the TCI System there was an increased risk of the occurrence in patients of the BAS complications, address the existence and features of the TCI System. As well, questions such as were the TCI Surgeons trained by the 1st to 5th defendants to adopt the TCI System, and whether they did adopt it in the course of providing surgery, are as well designed to, and intended to, identify the existence of the system. Inevitably, these questions will raise evidentiary matters, about the relationship between the TCI Companies and the TCI Surgeons, as well as with Dr Dona. To the extent that there are such common questions, it seems to me that they ought be heard and determined at the same time as all other common issues. This is a matter which is in the interests of justice.
As it has always been pleaded, the case against the TCI Surgeons is one which alleges that they used an inappropriate system of BAS, which system had the identified features which are pleaded. The pleading is also one where it is alleged that if there was such a system, and if it was implemented, then that of itself was a breach of the TCI Surgeon's duty of care. As well, it is alleged that the system was such that it should never have been made available to the public. If that be so, then the proceedings against the TCI Surgeons are akin to a no transaction case of the kind seen in representative proceedings involving tort claims and defective product claims.
I do not accept the submissions of the TCI Surgeons that the only realistically available way of defending the allegations brought by the plaintiffs and group members is to examine each and every case of every group member. Whilst that may be necessary in due course, at least for the purpose of establishing injury, loss and damage, that is not the issue with which the Court is presently engaged. The issue upon which the Court is presently engaged is whether there are any common questions, and if so whether they were sufficient to enable commencement of the proceedings under Part 10 of the CPA, and whether they are of such substance as to permit the proceedings, in the interests of justice, to continue under Part 10.
The fact that there may be individual questions at some later point in the proceedings is unsurprising. In representative proceedings based upon claims in tort, damages will often be individually assessed.
But the Motion presently being considered involves questions of whether there are any common questions which are of substance and which are sufficient to permit: 1. the bringing of representative proceedings; 2. the continuation of those representative proceedings; and 3. the determination of questions by way of Merck Orders.
The 5FASC is a clear pleading which centres upon the alleged provision to women of BAS in accordance with a defined system, and at a fixed cost. It pleads that the surgery was carried out at premises owned or controlled by TCI, which had particular features. And, further, it pleads that the system under which the BAS was performed was devised, designed and implemented by the TCI Companies and/or Dr Dona and was at all times under the control and direction of the TCI Companies and Dr Dona. If such allegations as are contained in those pleadings are established, they are realistically likely to be matters common to the plaintiff and group members. The component parts of the surgery are described in the pleadings. The critical paragraph [24C1], sets out what the TCI System is. It is important to note that the pleading alleges that the TCI System was comprised of each of the elements there set out, namely the TCI Facilities, the TCI Surgeons and anaesthetists, the one size fits all approach to the surgery, together with standardised pre‑surgery and post-surgery consultations.
It is a matter for the plaintiffs to prove the existence of such a system, its component parts, its nature and consequences and whether such system was or was not reasonable in all the circumstances. Necessarily involved in that case is whether there was an increased risk, for any patient being operated upon according to that system, of the occurrence of BAS complications.
I am well satisfied, having regard to the way in which the claim is pleaded, that each of the pleaded causes of action is capable of giving, and is likely to give, rise to common questions of fact or law between the plaintiffs and the TCI Companies and Dr Dona, and, as well, between the plaintiffs and the TCI Surgeons such that representative proceedings are the most efficient way in which those common questions can be addressed.
The way in which the TCI Surgeons go about addressing the claims of the plaintiffs, and the common questions affecting the group members in evidence is a matter for their forensic choice. I do not accept, however, that the only (or the essential) way, or even a realistic way, to disprove these allegations and to address the common questions is by examining every single individual operation for every single group member by reference to their individual medical records. The Court will have before it at any hearing the claims of the 12 plaintiffs. No doubt their individual surgeries will be examined closely. A comparison can be readily made on the evidence of those twelve cases with the system pleaded. Such a comparison may well assist in the proof of the pleaded TCI System, or else may demonstrate its non-existence, or else its non-implementation, in which case, a verdict in favour of the TCI Surgeons may well follow. Such a verdict would, as it seems to me at this stage, be likely to be applicable to all group members.
If the examination of those surgeries demonstrates that they were, as the TCI Surgeons submit, "inherently individualistic", then that would be one way in which the allegation of a systemic approach could be defended. As well, as is apparent from the plaintiffs' submissions, they intend to prove the system by reference to documents and other material which does not necessarily touch individually upon the carrying out of the surgery. The TCI Surgeons can defend such allegations by reference to other documents, or by reference to their own evidence. Whether they choose to go into evidence is a matter of ordinary forensic determination in the course of litigation.
I am satisfied that the common questions proposed by the plaintiffs as set out in the schedule to these reasons arise on the pleadings and are appropriate to be specified as common questions at the hearing presently fixed in September. Given the nature of those questions, the centrality and importance of them, together with the efficiency of the questions being determined in a representative proceeding rather that in a range of individual proceedings, I am satisfied that the interests of justice tell against the making of an order under s 166 of the CPA.
In those circumstances, I do not need to consider, or resolve the seemingly complex question contained in the submissions made by the Insurers about whether the Court has the power under s 166 of the CPA to make an order for the declassing of a part of the proceedings but not the whole of them.
It follows that the relief sought in the Further Amended Notice of Motion filed 8 June 2023 should not be granted, and this Motion should be dismissed.
It is appropriate to deal next with the Limitation Act Motion.

[14]

Limitation Act Motion

The Amended Notice of Motion, filed in Court on 8 June 2023, crystallises the relief sought by the TCI Surgeons with respect to the Limitation Act Motion. It is sufficient to set out Order 4A which is sought in the Limitation Act Motion because it explains and gives context to the issues which separate the parties. It is in the following form: "4A. An order that the Orders made on 10 March 2023, at paragraph 12, required, and still requires, each lead plaintiff to give verified discovery of all documents held, created, sent or received (including by their servants or agents, such as Turner Freeman) by the lead plaintiff up to 19.6.2020 recording or referring to what could reasonably inform an assessment of the matters stated in s 50D(1)(a)-(c) and s 50D(2) of the Limitation Act 1969 (NSW) (Limitation Act), including: a. the fact that the lead plaintiff knew (or ought to have known) that she had suffered an injury as a result of Breast Augmentation Surgery (BAS); b. the fact that the lead plaintiff knew (or ought to have known) that her injury was caused by the fault of the surgeon who performed her BAS; c. the fact that the lead plaintiff knew (or ought to have known) that her injury was sufficiently serious to justify the bringing of an action on the cause of action; d. what the lead plaintiff's legal representatives and other retained professionals (including experts) knew with respect to the matters stated in s 50D(1)(a)-(c) of the Limitation Act concerning each of the defendants to the proceeding (not just the seventh to sixteenth defendants); e. what the lead plaintiff's legal representatives and other retained professionals (including experts) ought to have known with respect to the matters stated in s 50D(1)(a)-(c) of the Limitation Act concerning each of the defendants to the proceeding (not just the seventh to sixteenth defendants); f. what the lead plaintiff's legal representatives and other retained professionals (including experts) told the lead plaintiffs with respect to the matters stated in s 50D(1)(a)-(c) of the Limitation Act concerning each of the defendants to the proceeding (not just the seventh to sixteenth defendants); g. what the lead plaintiff's legal representatives and other retained professionals (including experts) did not tell the lead plaintiffs with respect to the matters stated in s 50D(1)(a)-(c) of the Limitation Act concerning each of the defendants to the proceeding (not just the seventh to sixteenth defendants); h. what inquiries the lead plaintiff made, including of their legal representatives and other retained professionals (including experts) with respect to the matters stated in s 50D(1)(a)-(c) of the Limitation Act concerning each of the defendants to the proceeding (not just the seventh to sixteenth defendants); i. what the lead plaintiff should have known, or would have known, had they made inquiries, including of their legal representatives and other retained professionals (including experts), with respect to the matters stated in s 50D(1)(a)-(c) of the Limitation Act concerning each of the defendants to the proceeding (not just the seventh to sixteenth defendants)."
In the Limitation Act Motion, the TCI Surgeons also seek another distinct order as an alternative to proposed Order 4A. In this alternative order, Order 4B, the TCI Surgeons seek a practically identical order to that in 4A, with the difference that the alternative order is proposed to be made as a fresh order, that is, a fresh order further to the orders made on 10 March 2023.
The differences between the parties, debated in correspondence, relate to the terms and the proper interpretation of s 50D of the Limitation Act, and the areas of factual enquiry which are relevant to a determination of any question under that provision.
Section 50D of the Limitation Act is in the following form: 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts - (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.

[15]

Relevant Authorities

For convenience, I will refer in these reasons to the three facts set out in s 50D(1) as "the s 50D facts".
The provisions of s 50D have been discussed in a number of authorities. It is necessary to refer to a number of them. In Baker-Morrison v State of NSW (2009) 74 NSWLR 454; [2009] NSWCA 35 at [57], Basten JA, with whom Ipp and Macfarlan JJA agreed, considered the proper interpretation of s 50D(2). This sub-section has often been described as requiring "constructive knowledge" on the part of a plaintiff. Basten JA said: "The objective test - "ought to know". 57. The next question was whether the plaintiff's mother ought to have known each of the facts identified in subs 50D(1). The answer to that question must depend upon the effect of subs (2). It purports to provide a definition of what is covered by the phrase ought to know. That description is premised on an assumption that the person had not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken. … 59. The phrase ought to have known can mean either that the person should have inquired as to a fact (the active sense) or that he or she should have been told of the fact (the passive sense). In this context, "should" connotes a culpable omission, either by the person who should have known, or by the other person who should have supplied advice or information. If the limitation period had been intended to commence, not because of a failure on the part of the putative plaintiff to take reasonable steps, but because of the failure of another person, that could and should have been made clear. Rather, the expression ought to know was identified by reference only to what the putative plaintiff "would" have found out, if he or she had taken all reasonable steps. That language is apt to engage the active sense of the expression only. Further, the word "would" (rather than "should") is inconsistent with any expectation of an inquiry into the conduct of the potential source of information or advice."
This decision was considered by a Bench of five judges in the Court of Appeal in New South Wales v Gillett [2012] NSWCA 83, because it was argued that Baker-Morrison was wrongly decided and misconstrued the meaning of s 50D.
At [103]ff, Beazley JA said: "103. The State submitted that the construction given to s 50D(2) was incorrect. It submitted that the subsection posed a hypothetical situation. A person is deemed to have knowledge of the facts if they would have been ascertained by a person taking all reasonable steps before that time to ascertain the facts. 104. In my opinion, there was no error of construction in the challenged portions of Baker-Morrison on this issue. As I understand his Honour's reasons, Basten JA was doing no more than postulating an objective test. For the purposes of s 50D(2), the court had to determine whether a fact within the meaning of s 50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. This would involve an inquiry of the steps actually taken by the plaintiff, if any, and whether those steps satisfied the court's determination of what were reasonable steps to take in the particular circumstances of a given case."
The other members of the Bench agreed with the judgment of Beazley JA. Campbell JA added some further remarks, saying at [131] this: "131. … For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff's own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Thus, knowledge of actionability is necessary before s 50D(1)(c) is satisfied. And, because it is involved in there being "fault", actionability is likewise one of the "key factors necessary to establish liability" that must be known before s 50D(1)(b) is satisfied."
Baggs v University of Sydney Union [2013] NSWCA 451, was another decision which considered s 50D of the Limitation Act.
Meagher JA (with whom Macfarlan and Hoeben JJA agreed) considered the decision in Baker-Morrison. Baggs was a case in which an injured plaintiff had received advice from two firms of solicitors. The first told her that it was most unlikely that they would recommend her pursuing a claim for damages against her employer because the employer owned the building in which she had sustained her injury. The second firm of solicitors, about three months later, seemed to have given advice although the detail of that was unclear. However, the issue that was before the Court of Appeal was whether the injured plaintiff took all reasonable steps to ascertain the identity of the party against whom she had a cause of action for negligence. Meagher JA recorded that issue in the following terms (at [35]): "… It is said that the enquiry made by the initial solicitors was totally inadequate and that had Ms Baggs sought further advice from [the second firm of solicitors] in respect of the same subject that firm "would have taken full instructions and carried out appropriate enquiries"."
His Honour went on to deal with this in a manner consistent with the decision in Baker-Morrison.
At [36], his Honour said: "36. There are at least two difficulties with this argument. First, it is not suggested that the applicant appreciated or had any basis for believing that the advice which she had received from the first firm of solicitors was not given carefully or that it was not correct. That being the position, from her perspective there is no reason suggested as to why, acting reasonably, she was required to seek a further opinion. Secondly, there were, on the basis of the advice that she had received, significant limitations on her right to recover from the University in a claim for work injury damages. … As a result there was no urgency in her pursuing any claim she had at common law. In these circumstances it is not shown that the taking of all reasonable steps required Ms Baggs before June 2005 to seek advice from a second firm of solicitors in relation to a matter on which she had already received a written opinion."
In Murgolo v AAI Ltd (2019) 101 NSWLR 376; [2019] NSWCA 295, the Court of Appeal again considered s 50D. Basten JA, with whom Macfarlan and Leeming JJA agreed, said at [66]: "66. … Section 50D(2) has been understood to mean that the objective test is only engaged if the person has not taken all reasonable steps to ascertain a particular fact. A plaintiff, like Mr Murgolo, who seeks legal advice promptly after being injured and is compliant with his lawyer's instructions will have taken all reasonable steps. Accordingly, the test in his case is not objective, but subjective, turning on what the person knows of each of the identified facts. That is commonly the case. Because a potential defendant will often not know what the potential claimant knows, a large degree of certainty is missing. 67. … Where professional advice was required, the section was simply silent as to how the professional advice was to be attributed to the plaintiff's subjective knowledge, and as to how the negligence or mistakes of the professional adviser might affect the outcome. 68. Because of the variable factors affecting the commencement date of the period, some of which require evaluative judgment, the provisions have been aptly described as giving rise to a floating limitation period, with varying degrees of uncertainty as to its commencement date."
It is next convenient to refer to the decision of the Court of Appeal in Pomare v Whyte (2019) 377 ALR 352; [2019] NSWCA 317. In that decision, Basten JA, (with whom Macfarlan JA agreed, Emmert AJA in dissent) noted that less than a year after a motor vehicle accident in which the driver had been injured, the driver consulted with solicitors in relation to recovering compensation, including damages, with respect to his injuries. At [13]-[14], Basten JA said: "13. In Baker-Morrison the Court accepted that subs (2) provided a definition of the phrase "ought to know" in relation to a fact and at a particular time. A definition may be comprehensive or indicative. It may have been arguable that subs (2) was an indicative definition and did not cover the field of what fell within the defined phrase. However, it has been understood to be comprehensive. The phrase thus applies, not only "if", but only if, the fact would have been ascertained by taking the appropriate steps. Further, the phrase "ought to know" has been construed as referring to actual knowledge in the active sense, and not what the person should have been told (the passive sense). Thus, where a claimant has consulted solicitors in a timely fashion, the inquiry is as to what they told the claimant, not what they knew but did not communicate, nor what they should have known had they made inquiries which they did not make. 14. One consequence of the provision so understood is that a negligent solicitor may escape responsibility for a delay in bringing proceedings because the plaintiff will not be out of time and will therefore not have been deprived of the opportunity to obtain recovery for his injury."
The most recent decision of the Court of Appeal is to be found in Horne v J K Williams Contracting Pty Ltd [2023] NSWCA 58. Gleeson JA and Griffiths AJA agreed with the judgment of Basten AJA.
Having referred with ongoing approval to the judgments in Baker-Morrison, Murgolo and Pomare, Basten AJA went on at [63] to say: "[63] Whatever the solicitors may have thought necessary by way of obtaining confirmation or evidence to support the plaintiff's claim, none of this material contradicted the factual proposition that the appellant had known from the time of the accident who was responsible. As noted in Baker-Morrison at [45], it is the plaintiff's knowledge, and not that of any agent or solicitor, which is the focus of the statutory test. Further, despite the difficulties discussed in the cases as to the dividing line between suspicion, belief and knowledge, this was not a case where the appellant could deny knowledge of the identity of the responsible party, nor did he do so."

[16]

The Disputed Documents

The TCI Surgeons contend that there are obviously documents that ought to have been discovered but which have not been. As well, they complain that such categories of documents as have been produced may not have been discovered "properly" in the sense that some documents are redacted for relevance or privilege.
In order to support the relevance of these documents, the TCI Surgeons point to other discovered material and submit that it is apparent from that material that these documents exist, and that there is no good reason why they should not be discovered.
Two of the categories relate to documents arising from or containing complaints made to the Health Care Complaints Commission and any ensuing documents, or else complaints made by any of the plaintiffs to the TCI Companies or Dr Dona about their procedures and treatments.
The second group of documents, which are described in 15 subparagraphs, relate to: 1. documents dealing with any decision made not to join the TCI Surgeons to the class action prior to June 2020; 2. documents concerning when the legal advisers to any of the lead plaintiffs "… considered their cause of action changed from not discoverable to discoverable (or having accrued)"; 3. documents which constituted "preliminary investigations" undertaken by Turner Freeman, or which relate to opinions of experts which had been referred to in letters of Turner Freeman; 4. documents relating to "investigations or inquiries into 'who to implicate in the proceedings and whether individual surgeons also need to be joined'"; and 5. any expert reports or documents created in the course of enquiries mounted by Turner Freeman to explore bringing proceedings.
It is apparent that these categories of documents that are sought, have been identified by the TCI Surgeons from statements made in correspondence by Turner Freeman to various of the plaintiffs.
There are other documents which either because they have not been produced or else those that have been produced have been redacted, fall within the category of documents which the TCI Surgeons claims have not been adequately discovered.
It is convenient here to set out extracts from correspondence sent to various of the lead plaintiffs by their solicitors which the TCI Surgeons point to as the support for their entitlement to the discovered documents. For example, in a letter from Turner Freeman to one of the plaintiffs, Ms Pollock, dated 15 January 2016, Turner Freeman wrote: "We have an extensively investigated your matter and spoken to several experts, namely a plastic surgeon, a cosmetic surgeon and also an expert anaesthetist. We provide the following summary of our initial findings to date:

The surgeon who operated on you was not an appropriately qualified, trained and credentialed surgeon.
All surgeries at TCI were performed using the same surgical approach and technique with the insertion of the same type of implant regardless of the size or shape of your breast and regardless of your anatomy. We know that your complaint is not in relation to your physical appearance however, this is information that you need to know.
Despite your surgery being performed under twilight sedation, it is likely that you felt pain during your surgery and moved during your surgery. This meant there was increased risk of inappropriate breast pockets being created into which your implants were then insert [sic], your implants being positioned incorrectly, excessive tissue trauma, haemorrhage, infection and your surgical wounds rupturing and even capsular contracture.
The reaction that you had was due to increasing and accumulative doses of a local anaesthesia being administered to you during this surgery to prevent you from experiencing pain and to prevent you from moving during the surgery. This is what exposed you to an increased risk of local anaesthetic toxicity and why you reacted the way you did with seizures. Based on our initial findings, we advise that we are considering commencing a class action against The Cosmetic Institute rather than an individual action in respect of your case. This will save you considerable cost and will assist with the efficient management of your claim."

In a further letter of 20 June 2016 from Turner Freeman to Ms Pollock, the following paragraph is drawn to attention: "We have received the preliminary opinion of an expert plastic surgeon and in essence, his view is that TCI, through their surgeons, acted unreasonably and inappropriately in their treatment of you. The main issues are that it was unreasonable for TCI to adopt a one size fits all approach, lack of adequate training by the surgeons and the improper use of local anaesthetic and sedation."
In a further letter of 25 November 2016, Turner Freeman wrote to Ms Pollock the following: "We are continuing to investigate the best method by which to advance your claim against the Cosmetic Institute and we are continuing to obtain expert evidence from leading plastic and reconstructive surgeons to assist in this regard. We believe that your matter has good prospects of success. Our current investigations are centred upon determining the most appropriate manner in which to bring your claim to a resolution. We consider that if a class action is indeed viable, that would allow us to bring your claim to a resolution without incurrent significant legal costs given the ability to share the costs among the members of the class action. Should we form an opinion that a class action is not a suitable method by which to resolve your claim, we will pursue your claim individually on your behalf."

[17]

Submissions of the TCI Surgeons

Senior Counsel for the TCI Surgeons, in his submissions on this Motion, drew the Court's attention to paragraph 66 of the affidavit of the solicitor for the plaintiff, Ms Sally Gleeson, sworn 1 June 2023, because, as Senior Counsel recognised, that paragraph encapsulated conveniently the nature of the dispute between the TCI Surgeons and the plaintiffs about the appropriate extent of discovery. That paragraph read: "The defendants seek documents concerning when the plaintiffs' legal advisers, not the plaintiffs themselves, considered the cause of action against the doctors to be discoverable. On my understanding of the law, discoverability turns on the knowledge or constructive knowledge of the plaintiffs themselves as to the facts in s 50D(1) of the Limitation Act 1969. In undertaking discovery in accordance with Order 12(d) made on 10 March 2023, that is the approach I have taken. I have therefore not discovered documents that concern when the plaintiffs' legal advisers considered the cause of action against the doctors to be discoverable unless they also concern when the plaintiffs themselves considered the course of action to be discoverable."
The TCI Surgeons submit that upon a construction of s 50D of the Limitation Act which is reasonably arguable, and which has not been precluded by the decisions to which reference has been made, they are entitled to discovery of all documents on the issue of discoverability, in the hands of the plaintiffs' lawyers, including those documents which the plaintiffs have never seen, and which go to informing the plaintiffs' lawyers about the advice which those lawyers provided to the plaintiffs.
The argument of the TCI Surgeons about s 50D is that the expression "ought to know" as that is found in s 50D(1), refers to "what a reasonable person in the plaintiff's position would have known and not what the plaintiff personally knew". The TCI Surgeons point to the content of paragraph 6.28 of the Review of the Law of Negligence Final Report (September 2002), which is more commonly known as the Ipp Report, as the support for their submission about the appropriateness of the alternative interpretation of s 50D(2) for which they contend.
The TCI Surgeons submit that the definition of the phrase "ought to know" which is to be found in s 50D(2), is not a comprehensive definition of the phrase as it appears in the earlier subsection, and does not cover the field of what that phrase may mean, but rather is indicative only of what the phrase may mean. The TCI Surgeons also submit that properly construed, s 50D(2) refers to knowledge which includes what the plaintiffs should have been told. It follows, the TCI Surgeons submit, that the plaintiffs are obliged to discovery of everything which the plaintiffs' solicitors knew at the relevant time even though that knowledge may not have been ever communicated to the plaintiffs.
The TCI Surgeons acknowledge that given the consequence of their construction of s 50D is that, as the conduct of a solicitor advising the plaintiff is relevant to an enquiry, it must follow that a plaintiff does not avoid the consequences of delay in bringing proceedings out of time because their solicitor may have been at fault in undertaking the task of researching advice or providing incorrect advice to the plaintiff.
In support of this argument, the TCI Surgeons draw attention to the remarks of Basten JA in [59] of Baker-Morrison which identifies the possibility that the phrase "ought to have known" could carry two possible meanings, namely: 1. that the person should have enquired as to a fact, namely a sense which requires an active step on the part of a plaintiff; or 2. that the person should have been told of the fact, namely a proposition which did not require any action on the part of the plaintiff but nevertheless the receipt of knowledge in a passive way.
These two possible constructions have been described as understanding the phrase in s 50D either in the active sense or the passive sense.
Notwithstanding that in [59] of Baker-Morrison, Basten JA concluded that on a proper construction of s 50D, the phrase "ought to know" should be interpreted in the active sense, the TCI Surgeons contend that it is reasonably arguable that the passive sense is an available construction of the section. In advancing that argument, they point to the fact that the remarks of Basten JA in Baker-Morrison were obiter from which this Court, or they, are not precluded from departing, or preferring the alternative construction.
Accepting that the remarks of Basten JA were correct, the TCI Surgeons argue that his Honour's judgment contained significant qualifications, which have the effect of allowing them to distinguish that decision.
The TCI Surgeons point to the fact that the decision in Frizelle v Bauer [2009] NSWCA 239 at [30], the Court of Appeal did not decide the correctness of the obiter of Basten JA in Baker-Morrison. The TCI Surgeons also note that in Murgolo, to which I have referred above, again the Court did not think it necessary to finally determine the issue.
The TCI Surgeons submit that because their preferred construction is reasonably arguable, in order for the plaintiffs' submission, that discovery is not required of the solicitors' documents, to be accepted for the purpose of this Motion, the Court has to be persuaded that the "passive use" approach for which they contend has to be determined by this Court to be "so obviously untenable that it cannot possibly succeed" invoking the test for summary dismissal of the kind stated in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
Accordingly, what is put by the TCI Surgeons is that unless this Court concludes that the construction of s 50D advanced by them is doomed to failure, they are entitled to discovery of documents well beyond the scope limited by what Ms Gleeson said in paragraph 66 of her affidavit.

[18]

The Plaintiffs' Submissions

The plaintiffs submit that the characterisation by the TCI Surgeons about the enquires to be made with respect to s 50D is erroneous. The plaintiffs submit that the reliance on the test posited in the Ipp Report is unpersuasive because it is apparent that the legislature, when it was passed the Act, did not accept the recommendation of the Ipp Report and made changes to the words of the relevant provision.
The plaintiffs next submit that on a plain reading of text of s 50D in the context of the significant amendments to the Limitation Act which were effected, the legislation requires that attention be paid to the knowledge of the plaintiff at any given time, and where the issue is one of constructive knowledge, attention be paid to what steps the plaintiff took with respect to the existence of a cause of action. To that extent, the plaintiff says that the decision in Baker-Morrison and following cases makes it plain that the knowledge of the solicitors with whom the plaintiff had consulted, is not a relevant issue. Rather, it is what the plaintiff knew, or in the absence of actual knowledge, what steps they took to inform themselves of the relevant s 50D facts.
The plaintiffs do not accept the submission of the TCI Surgeons that the remarks of Basten JA in Baker-Morrison are obiter. Rather, they submit that his Honour was engaged in the construction of the section as a whole, which was a relevant matter for the determination of the proceedings before him. The plaintiffs submit that the conclusion reached by Basten JA, with whom the other judges agreed, is a clear demonstration of how s 50D(2) is to be construed.
The plaintiffs place significant emphasis on the decision of the five judge Bench of the Court of Appeal in Gillett. They submit that the judgment in Gillett deals directly with the issue of s 50D(2) and the application of Baker‑Morrison in circumstances where the issue about the extension of time was the constructive knowledge of Mr Gillett.
The plaintiffs submitted that it is apparent from [99] of Gillett that the Court of Appeal was considering whether Basten JA's reasons at [59] of Baker‑Morrison erroneously construed s 50D(2). The plaintiffs point to the following statement in Gillett by Beazley JA at [104]: "104 In my opinion, there was no error of construction in the challenged portions of Baker-Morrison on this issue. As I understand his Honour's reasons, Basten JA was doing no more than postulating an objective test. For the purposes of s 50D(2), the court had to determine whether a fact within the meaning of s 50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. This would involve an inquiry of the steps actually taken by the plaintiff, if any, and whether those steps satisfied the court's determination of what were reasonable steps to take in the particular circumstances of a given case."
The plaintiffs also point to some remarks of Campbell JA in the decision of Gillett, in particular at [121], where his Honour noted that whilst the provisions of s 50C and s 50D are closely based upon the recommendation of the Ipp Report, the terms of the section do not follow those recommendations precisely. In particular, at [131], Campbell JA said, in reference to s 50D(1)(c), this: "131 For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff's own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Thus, knowledge of actionability is necessary before s 50D(1)(c) is satisfied."
The plaintiffs contend that the gravamen of this paragraph makes it clear that, in interpreting s 50D, one is talking about the knowledge of the plaintiff and not the knowledge of a legal advisor or perhaps medical advisor to whom the plaintiff turns for assistance in determining whether the actionability provision of s 50D(1)(c) is satisfied.
The plaintiffs submit that Gillett has determined authoritatively the controversy which the TCI Surgeons wish to agitate, and that this Court is bound by Gillett to reject the submissions of the TCI Surgeons that the construction of s 50D(2) which they seek to advance is a reasonably arguable one.
The plaintiffs then point to the later cases, to which earlier reference has been made, as indicating that there has not been any departure in those cases from the interpretation formulated by the decision of the Court of Appeal in Baker-Morrison which was followed, and approved, in Gillett.
The plaintiffs submit that it is beyond argument on the authorities that the issue is the knowledge of the plaintiff and not anyone else. They draw attention to [13] of Pomare where Basten JA said: "13. … Thus, where a claimant has consulted solicitors in a timely fashion, the inquiry is as to what they told the claimant, not what they knew but did not communicate, nor what they should have known had they made inquiries which they did not make. 14. One consequence of the provision so understood is that a negligent solicitor may escape responsibility for a delay in bringing proceedings because the plaintiff will not be out of time and will therefore not have been deprived of the opportunity to obtain recovery for his injury."
I observe that although Emmert AJA dissented in the result, his Honour did not suggest that the approach to the determination of the factual dispute should be made by reference to any principle different from that set out in Baker‑Morrison.

[19]

Discernment

In my opinion, the proper interpretation of s 50D of the Limitation Act is now well settled. The authorities to which reference has been made establish that the enquiry required of that section is to consider whether the plaintiff actually knew of the s 50D facts. The subsidiary question is when the plaintiff knew of those facts, because it is from that date that the three-year limitation period commences to run.
If the plaintiff did not actually know of those facts before a period of three years prior to commencing proceedings, the relevant question to be considered is whether the plaintiff ought to have known of those facts at an earlier time.
The phrase "ought to have known" is defined comprehensively in s 50D(2) in the following way: a person will be found to have had the necessary constructive knowledge if the relevant fact would have been ascertained by the plaintiff had the plaintiff taken all reasonable steps before that time to ascertain the fact.
Given that this comprehensive definition concentrates on the conduct of the plaintiff, namely whether they had taken all reasonable steps to ascertain the fact, that must necessarily mean that the enquiry does not go beyond that which the plaintiff in fact did to ascertain the fact and what the plaintiff was told. The text of s 50D(2) does not require any examination of what someone other than the plaintiff knew or perhaps could, with reasonable steps, have established.
There is no room for the knowledge of a professional advisor, solicitor, doctor or other relevant expert to be examined to determine whether the plaintiff took all reasonable steps to ascertain a fact. The proper interpretation of the legislative provisions would have the consequential effect a plaintiff is bound by the negligent conduct of their solicitor, or any other expert with whom they have consulted for advice about the s 50D facts, even though the plaintiff has acted appropriately in seeking the advice, and would not necessarily be aware of that negligence or inadequacy on the part of their legal or expert advisers.
It follows from that conclusion, which is dictated in my view by the various decisions of the Court of Appeal to which I have referred, and by which I am bound, that the argument sought to be raised by the TCI Surgeons is erroneous and must fail. There is no room for a consideration of s 50D(2) as being an indicative definition, and there is no room for consideration of whether s 50D(2) requires knowledge acquired in a passive way.
Accordingly, it follows that the TCI Surgeons are not entitled to examine the documents which they seek or the information contained in the redacted documents which they seek.
It also follows that discovery undertaken in accordance with the approach adopted by the solicitor for the plaintiffs, Ms Gleeson, was properly and comprehensively provided. There is no other reason why further and better discovery would be ordered.
In those circumstances, the Amended Notice of Motion of the TCI Surgeons filed in Court on 8 July 2023 dealing with the further and better discovery, being the Limitation Act Motion, must be dismissed.

[20]

Restricted Information Motion

On 19 May 2023, the TCI Surgeons filed the Restricted Information Motion, seeking the following orders: "1. An order that the Court order otherwise under UCPR 34.2(1) that the TCI Doctors are not required to produce documents falling within Category 7 of the Notices to Produce dated 16 January 2023, whether pursuant to s 99A(2) of the Health Care Complaints Act 1993 (NSW), because Category 7 lacks a legitimate forensic purpose or otherwise. 2. An order that the Court order otherwise under UCPR 34.2(1) that the TCI Doctors are not required to produce documents falling within Categories 13 and 15 of the Notices to Produce dated 16 January 2023, whether because of disclosure of personal and health information of a TCI patient is not permitted to be disclosed pursuant to s 11(2) (and clause 11 of Schedule 1, Health Privacy Principles) of the Health Records and Information Privacy Act 2002 (NSW), because categories 13 and 15 lack a legitimate forensic purpose or otherwise. 3. Costs."
The solicitors for the TCI Surgeons, Ms Byers, in an affidavit sworn on 19 May 2023, expressed a concern that the documents which fell into these three categories of discovery appeared to be "subject to statutory or other prohibitions, or objections, to production". The categories had been the subject of an agreement reached in discussion between the plaintiffs and the TCI Surgeons.
Category 7 sought the production of documents which evidenced any complaints made about each individual defendant surgeon concerning their performance of BAS in circumstances where they had been notified by the Health Care Complaints Commission or Medical Council of such complaints. Categories 13 and 15 sought documents created during the period the individual defendants were engaged with the TCI Companies which dealt with audit/peer review of surgeries performed by the defendant and their participation in morbidity and mortality meetings with respect to TCI patients.
Senior Counsel for the TCI Surgeons drew attention to the following statutory provisions. In respect of Category 7, he drew attention to s 99A(2) of the Health Care Complaints Act 1993, which provides that: "… [a] a person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information contained in exercising a function under this Act."
With respect to the Categories 13 and 15, which on their face may well reveal personal and health information about a TCI patient, Senior Counsel for the TCI Surgeons drew attention to the provisions of s 11(2) of the Health Records and Information Privacy Act 2002 (NSW), which obliged the TCI Surgeons to comply, with respect to such information, with the Health Privacy Principles.
In particular, Senior Counsel drew attention to clause 11 of the Health Privacy Principles which are set out in Schedule 1 to the Health Records and Information Privacy Act which clause prohibits disclosure of relevant information for a purpose other than the purpose for which the information was collected falling within one of 14 identified categories. Production in answer to a Notice to Produce does not fall within those categories.
However, clause 11(2)(b) is in the following form: "An organisation is not required to comply with the provision of this clause if - … (b) non-compliance is otherwise permitted (or is necessary implied or reasonably contemplated) under any Act or any other law (including the State Records Act 1988), …"
I note that the definition of "organisation" would be sufficient to include each of the TCI Surgeons.
My attention was also drawn to the provisions of s 13 of the Health Records and Information Privacy Act which are in the following terms: "13(1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions. (2) … (3) In this section, judicial functions of a court or tribunal mean such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, …"
The TCI Surgeons submit that some doubt arises with respect to the application of the legislation to which I have referred in circumstances where the Notices to Produce were issued by the solicitors for the plaintiffs without any express court order. They do not submit that the absence of a court order excuses compliance with the Notices, nor do they suggest that the Notices were in any way invalid because of the absence of a Court order. Rather, they submit that they may be constrained by the restrictions in the legislation, preventing them from producing the documents.
Rule 34.2 of the UCPR provides that a party must produce a document or thing in accordance with the Notice to Produce without the need for any subpoena for production.
Whilst I accept that a Notice to Produce to the Court is not a direct order of the Court, the effect of r 34.2 is to impose a statutory obligation on the party to whom a Notice to Produce is directed to produce the relevant documents in the absence of a Court order.
In that respect, I regard a Notice to Produce as being, in substance and for all relevant purposes, the equivalent of subpoena for production.
The plaintiffs opposed the relief sought, contending that the legislation did not place any prohibition or restriction on the production of the documents. However, the plaintiffs did not oppose the Court ordering the production of the documents by the TCI Surgeons.

[21]

Discernment

The prohibition on the production of documents pursuant to the Health Care Complaints Act seems to me to be one which is limited to circumstances where the document is produced as a consequence of information obtained in exercising a function under the Act.
Senior Counsel for the TCI Surgeons submitted that it was arguable that in responding to a complaint which is made against a doctor, that doctor is exercising a function under the Act because they are compelled to respond to any complaint or request for information.
I respectfully disagree. Complying with an obligation under the Act does not mean that the person the subject of that obligation, here the TCI Surgeons, either has, or else is exercising, a function under the Act.
Nor would a person making a complaint, who has the statutory right to do such a thing as set out in s 7 of the Health Care Complaints Act, be exercising a function under the Act. A right to complain does not extend to being considered to be a function under the Act, or the exercise of such a function.
I am well satisfied that none of the TCI Surgeons were exercising a function under the Health Care Complaints Act and, accordingly, the restriction does not apply to them.
Insofar as the issue with respect to the Health Privacy Principles was raised, Senior Counsel submitted that it was not unarguably clear that a Notice to Produce was an order of the Court and, further, that subpoenas (or inferentially Notices to Produce) were not specifically addressed in the Health Privacy Principles as being the reason why documents containing health and privacy information could be produced.
In my view, it is clear from the terms of the Health Privacy Principles, in the context of s 13 of the Act to which I have earlier referred, that the powers of the Court to require production of documents either because of the effect of the UCPR, or alternatively because of a direct order made by the Court, are completely unaffected by the Health Privacy Principles.
In my view, the effect of s 13 is to exclude the exercise by this Court of its power by way of either a subpoena or a Notice to Produce from being subject to any constraint contained in the Health Records and Information Privacy Act and, accordingly, any person required to produce material in the course of any proceedings being the subject of any constraint.
These conclusions are sufficient to dismiss the Notice of Motion.
However, I recognise that an alternative path to the same end would be to make an order requiring production of all of the documents. Although it is not entirely clear that such an order needs to be made, in the circumstances of this case and for the avoidance of doubt, I will make such an order.

[25]

The Submissions of the TCI Surgeons

The TCI Surgeons submit that the documents sought by the subpoena have a legitimate forensic purpose in several respects. The first is that the documents have "relevance or apparent relevance" to the state of mind of the plaintiffs of the kind relevant to s 50D(1). The phrase "relevance or apparent relevance" is relied upon for the meanings discussed in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [61]-[69] per Bell P (as the Chief Justice formerly was).
Secondly, the documents have an apparent relevance to the systems case in that the documents will reveal whether the operative procedures used on the plaintiffs demonstrated the existence of the systems case, or that any systemic approach was applied to the plaintiffs or any of the group members.
Thirdly, the TCI Surgeons submit that the documents have apparent relevance for the purposes of cross-examination of the experts at the hearing.
The TCI Surgeons point to the absence of any specific evidence dealing with the usual, or any, matters relevant to oppression such as the number of documents, the extent of any searches, the time and costs and expenses of any search and any particular difficulties arising from the wording of the Schedule to the subpoena.
Senior Counsel for the TCI Surgeons also submits that to the extent that any legal professional privilege applies, it has been waived by reason of the plaintiffs "positively asserting" that they did not have actual knowledge of the s 50D(1) facts prior to 18 June 2017. Senior Counsel also submits that there has been an "issue waiver" by reason of the contents of [21] of 5FASC. His submissions note, in particular, that the waiver extends to derivative waiver of any "associated document", i.e., any document the contents of which are reasonably necessary to understand the document in respect of which privilege has been waived.
The submissions by the TCI Surgeons about express waiver depend upon the contents of the correspondence between Ms Gleeson, the solicitor for the plaintiffs (and her firm, Turner Freeman), and the plaintiffs about the existence of a viable cause of action, an expression encompassing the fact described in s 50D(1)(c) of the Limitation Act.
Reference was made earlier to correspondence with Ms Pollock, which the TCI Surgeons again point to as an appropriate example for the purposes of the submissions relevant to this Motion. There is no doubt that in this correspondence, Turner Freeman have referred to expert opinions which they have received, and refer to the effect of that advice. Relevant phrases include:

"According to several experts … the TCI doctor was not appropriately trained, qualified and credentialled".
"[Turner Freeman] have obtained supportive expert opinions that identify various shortcomings in TCI's approach to the surgery …"
"… the preliminary opinion of an expert plastic surgeon, in essence, was that TCI through their surgeons acted unreasonably and inappropriately in their treatment."

The TCI Surgeons' submissions point to the necessity for them to have access to the various expert reports referred to in order to understand the advice given to Mrs Pollock and each of the other plaintiffs. They submit that the basis of their entitlement is issue waiver, express disclosure waiver and/or derivative waiver under the Evidence Act, ss 122(2), 122(3)(b) and 126. They extend this approach to all of the documents captured by the subpoenas which have been issued.
The TCI Surgeons also draw attention to the sworn answers to interrogatories which all plaintiffs, except one, have filed. They submit that in those answers, the plaintiffs each made positive assertions that prior to the relevant three-year limitation period, they did not have actual knowledge of the s 50D(1) facts. The TCI Surgeons rely on these positive assertions as demonstrating that the maintenance of privilege over any document dealing with, or which may be associated with, the plaintiff's state of mind (which has been so asserted) would be inconsistent with their clear waiver. This waiver includes, it is submitted, documents in the possession of third parties, solicitors and experts, which may be relevant to the plaintiffs' assertion of lack of knowledge.

[26]

Discernment

The question of whether the objections by the plaintiffs to the production of the documents called for by the subpoenas is subject to the provisions of the Evidence Act, or the principles determined by common law depends upon the text of s 131A of the Evidence Act.
That provision is in the following form: 131A Application of Part to preliminary proceedings of courts (1) If - (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following - (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6.
The purpose of these provisions is to apply the later sections dealing with objections to the admissibility of evidence, and the applicable principles, which arise during the course of a trial, to pre-trial proceedings.
It is to be observed that the plaintiffs are not those who received the subpoenas, they do not have any obligation to produce any documents pursuant to those subpoenas and, accordingly, are not "the person" who is the subject of any "disclosure requirement" as those terms are used in s 131A.
However, it is equally the case that the plaintiffs have a "sufficient interest" within the meaning of r 33.4(1) of the UCPR, in having the Court make orders setting aside the subpoenas where the documents are being sought by an opponent in proceedings for the purpose of advancing the opponent's interests in the proceedings by attacking the case for the plaintiffs. The TCI Surgeons did not suggest that the plaintiffs lacked standing to bring this Motion.
Nevertheless, the existence of a "sufficient interest" in a party to proceedings cannot be used to extend the reach of s 131A so as to apply the Evidence Act provisions to the plaintiffs, who are not the subject of any "disclosure requirement". As White J observed in Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083 at [28], s 131A only applies where: "… the person objecting to disclosure on the ground of privilege is the same person who was required to produce the document. The section does not apply when a claim for privilege is made by persons other than the person required to produce the documents."
In expressing that conclusion, his Honour cited Allsop P in New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [32] (with whom Hodgson JA and Sackville AJA agreed).
Accordingly, I conclude that I need to consider the issues raised by this Motion in accordance with common law principles and not by reference to the provisions of the Evidence Act relied upon by the TCI Surgeons: Singtel Optus at [28] (White J).
It is appropriate to turn next to the issue of whether the plaintiffs have waived any legal professional privilege in the documents, the existence of which (speaking generally) does not seem to be in dispute. The first question here is whether there has been a waiver of that privilege by reason of the service of the expert reports pursuant to a Court order, in advance of the hearing of the proceedings.
The plaintiffs contend that, in reliance on Sevic because the documents have been served under compulsion of law, there cannot be any waiver of their privilege, unless and until, the documents are later tendered in evidence, or otherwise used on the hearing of the proceedings. In Gillies v Downer EDI Limited [2010] NSWSC 1323, I considered, for the reasons which I expressed, that I was bound to apply Sevic in that case. I consider that I am bound in these proceedings by the authority of Sevic to hold that the service of the expert reports in advance of the hearing of the proceedings does not involve any waiver of legal professional privilege by the plaintiffs.
The next issue which arises is whether there has been a waiver, or derivative waiver, of the expert opinions, and the documents upon which those expert opinions have been based, by reason of the fact that the plaintiffs have disclosed for the purposes of the limitation issue (to which the provisions of s 50D are relevant), the advice which they received about the s 50D facts. As I understand the submissions of the TCI Surgeons, they submit that there has been such a waiver because of what they contend to be the correct interpretation of s 50D, namely that they are entitled to examine not just the knowledge of the plaintiffs, but their legal and expert advisers as well. For the reasons which I have expressed above, I do not think that such an interpretation of s 50D is available, and that I am bound by authority to that effect.
Finally, I should note that I accept that the TCI Surgeons may have a legitimate forensic purpose in seeking access to at least some of the documents which are covered by the subpoenas, that being for the purpose of challenging the opinions of the experts in cross-examination of them, or other witnesses in the proceedings. However, as I am satisfied that the documents are privileged, and that privilege has not been waived, the mere existence of this legitimate forensic purpose does not entitle the defendants to access the documents.
For completeness, I am satisfied that these principles are equally applicable to the subpoena addressed to MQ Health Pty Ltd, because to the extent that the organisation holds any documents, they do so on behalf of the expert retained by the plaintiffs. There is no reason to make any different order with respect to this subpoena.
For these reasons, I decided that it was appropriate to uphold the Plaintiffs' Motion and make the orders which are recorded below.

[27]

Orders

In respect of each Notice of Motion, I record the orders made on 20 July 2023 as follows: 1. In relation to the Further Amended Notice of Motion dated 7 June 2023 and filed in Court on 8 June 2023 by the 7th - 16th defendants, I make the following orders: 1. Further Amended Notice of Motion dated 7.6.23 dismissed. 2. Order the 7th - 16th defendants to pay the plaintiffs' costs of the Further Amended Notice of Motion dated 7.6.23 3. Order each other defendant to pay his and its own costs of the Further Amended Notice of Motion dated 7.6.23. 1. In relation to Notice of Motion dated 19 May 2023, I make the following orders: 1. Notice of Motion dated 19.5.23 dismissed. 2. For avoidance of doubt, order that the 7th - 16th defendants are to produce all documents falling within Categories 7, 13 and 15 of the Notice to Produce dated 16.1.23. 3. Order that costs of this Notice of Motion are to be costs in the cause. 1. In relation to the Amended Notice of Motion by the 7th - 16th defendants dated 7 June 2023 and filed on 8 June 2023, I make the following orders: 1. Order that the Amended Notice of Motion be dismissed. 2. Order the 7th to 16th defendants to pay the plaintiffs' costs of the Notice of Motion. 3. Order each other defendant to pay his and its own costs of the Notice of Motion. 1. In relation to the Notice of Motion filed by the plaintiff on 18.5.23, I make the following orders: 1. Pursuant to r 33.4 of UCPR 2005, set aside the Subpoena to Produce filed on 3.5.23 by the 7th - 16th defendants and served on each of the following persons: 1. Professor Anand Deva; 2. Professor Mark Ashton; 3. Dr Rohit Kumar; 4. Dr Matthew Griffiths; 5. Professor Michael Whitby; 6. Professor Clifford Hughes; and 7. MQ Health Pty Ltd. 1. Order that the plaintiffs have leave nunc pro tunc to make redactions to documents produced on discovery pursuant to Orders 12 and 13 of the Courts orders of 10.3.23 in the manner and form set out in Exhibit SG1 to the affidavit of Salley Gleeson sworn 18.5.25. 2. Stand over to 10.8.23, Order 3 of the Notice of Motion to enable further submissions to be made. 3. Dismiss Order 4 of the Notice of Motion. 4. Otherwise dismiss the Notice of Motion. 5. Order that the 7th to 16th defendants are to pay the costs of the plaintiffs with respect to Order 1 of the Notice of Motion. 6. Otherwise order each party to pay their and its own costs of the Motion.

[30]

Consumer Guarantees - s 61(1) 12. Was designing, implementing and/or applying the TCI System in breach of the first to fifth defendants' guarantee under s 61(1) of the ACL, that the BAS would be reasonably fit for the BAS Purpose? Whole Group 13. Was training the TCI Surgeons to adopt the TCI System in breach of the first to fifth defendants' guarantee under s 61(1) of the ACL, that the BAS would be reasonably fit for the BAS Purpose? Whole Group 14. Was adopting the TCI System, of itself, in breach of a TCI Surgeon's guarantee under s 61(1) of the ACL, that the BAS would be reasonably fit for the BAS Purpose? Whole Group Consumer Guarantees - s 61(2) 15. Was designing, implementing and/or applying the TCI System in breach of the first to fifth defendants' guarantee under s 61(2) of the ACL, that the BAS and any product resulting from it would be of such a nature, and quality, state or condition, that it might reasonably be expected to achieve the result that the patient wished the BAS to achieve? Whole Group 16. Was training the TCI Surgeons to adopt the TCI System in breach of the first to fifth defendants' guarantee under s 61(2) of the ACL, that the BAS and any product resulting from it would be of such a nature, and quality, state or condition, that it might reasonably be expected to achieve the result that the patient wished the BAS to achieve? Whole Group 17. Was adopting the TCI System, of itself, in breach of a TCI Surgeon's guarantee under s 61(2) of the ACL, that the BAS and any product resulting from it would be of such a nature, and quality, state or condition, that it might reasonably be expected to achieve the result that the patient wished the BAS to achieve? Whole Group Consumer Guarantees - General Issues 18. Do ss 60, 61(1) and 61(2) apply to the fifth defendant and the TCI Surgeons, despite s 131 of the Competition and Consumer Act 2010? Whole Group 19. If there were any breaches of consumer guarantees under ss 60 or 61 of the ACL, were they "major failures" within the meaning of ss 268(a), (d) and (e) of the ACL? Whole Group

[31]

Representations to the public 20. Which (if any) of the Representations did the first to fourth defendants make to the public? Whole Group 21. Did the fifth defendant engage in the conduct pleaded in paragraph 24F of the 4FASOC? Whole Group 22. If so, which (if any) of the Representations did the fifth Defendant make to the public by such conduct? Whole Group 23. Did the TCI Surgeon engage in the conduct pleaded in paragraph 24H of the 4FASOC? Separate answer for each Sub-Group 24. If so, which (if any) of the Representations did the TCI Surgeon make to the public by such conduct? Separate answer for each Sub-Group Representations to patients 25. If some or all of the conduct pleaded in [24J] occurred in respect of a patient, would that amount to the first to fourth defendants making the Representations to the patient? Whole Group 26. If some or all of the conduct pleaded in [24L] occurred in respect of the [TCI Surgeon's] patient, would that amount to the [TCI Surgeon] making the Representations to the patient? Separate answer for each Sub-Group Misrepresentations 27. If any of the Representations were made by any of the defendants in answer to Questions 20, 22, 24, 25-26 above, was the making of the Representations misleading or deceptive, or likely to mislead or deceive in contravention of s 18 of the ACL? Whole Group 28. If any of the Representations were made by any of the defendants in answer to Questions 20, 22, 24, 25-26 above, was the making of the Representations in breach of its/his duty of care to the patient? Whole Group

[34]

Insurance - MDANI - claim under the 2014 MDANI Policy 33. Did Dr Dona give MDANI notice, during the 2014 MDANI Policy period, of facts that gave rise to the claim(s) made against him in these proceedings by the first plaintiff (Ms Rickhuss)? Whole Group If "yes" to question 33: 34. (a) Do the claims by the second to twelfth plaintiffs against Dr Dona in these proceedings arise from the same act(s) or omission(s) or one or more related acts or omissions as Ms Rickhuss's claim(s)? Whole Group (b) Are the claims by the second to twelfth plaintiffs to be treated as the same claim(s) as Ms Rickhuss's claim(s) pursuant to clause 20 of the 2014 MDANI Policy? and Are the claims by the second to twelfth plaintiffs deemed pursuant to clause 20 of the 2014 MDANI Policy to have been made during the 2014 MDANI Policy period? 35. If "yes" to question 33 and to the extent that Dr Dona is liable for Ms Rickhuss claim(s), does that or do those claim(s) arise directly out of Dr Dona's provision of healthcare services, as defined by the 2014 MDANI Policy, within the meaning of clause 1 of the 2014 MDANI Policy? Whole Group 36. If "yes" to questions 34(a), (b) and (c) and to the extent that Dr Dona is liable for the claims made against him by the second to twelfth plaintiffs in these proceedings, do any (and if so which) of those claims arise directly out of Dr Dona's provision of healthcare services, as defined by the 2014 MDANI Policy, within the meaning of clause 1 of the 2014 MDANI Policy? Whole Group If "yes" to question 35, is MDANI's liability to indemnify Dr Dona for Ms Rickhuss's claim(s) pursuant to the 2014 MDANI Policy excluded or reduced to nil by operation of: 37. (a) Exclusion 21.1 of the 2014 MDANI Policy? Whole Group (b) Exclusion 21.2 of the 2014 MDANI Policy? and/or Section 28(3) of the ICA? If "yes" to question 36, is MDANI's liability to indemnify Dr Dona for the claim(s) of the second to twelfth plaintiffs pursuant to the 2014 MDANI Policy excluded or reduced to nil by reason of: 38. (a) Exclusion 21.1 of the 2014 MDANI Policy? Whole Group (b) Exclusion 21.2 of the 2014 MDANI Policy? and/or Section 28(3) of the ICA? 39. Was the performance of BAS outside the training and/or qualifications of any (and if so which) of the sixth to sixteenth defendants (the TCI Doctors)? Whole Group 40. If "yes" to question 39, is MDANI's liability to indemnify Dr Dona pursuant to the 2014 MDANI Policy for the claims of the plaintiffs whose BAS was performed by each such TCI Doctor and of each such plaintiff's Sub-Group members excluded by reason of exclusion 22.1(a) of the 2014 MDANI Policy? Whole Group 41. Is MDANI's liability to indemnify Dr Dona for the claims of any plaintiffs and group members whose BAS was performed by one or more of the TCI Doctors while that or those TCI Doctor(s) were not under Dr Dona's supervision excluded by reason of exclusion 22.1(b) of the 2014 MDANI Policy? Whole Group Insurance - MDANI - claim under the 2016 MDANI Policy 42. If the answers to questions 33 and/or 35(a), (b) and (c) are "no" and to the extent that Dr Dona is liable for any claims made by the plaintiffs and group members against him in these proceedings, does that or do those claim(s) arise directly out of Dr Dona's provision of healthcare services, as defined by the 2016 MDANI Policy, within the meaning of clause 1 of the 2016 MDANI Policy? Whole Group If the answer to question 42 is "yes", is MDANI's liability to indemnify Dr Dona excluded or reduced to nil by operation of: 43. (a) Exclusion 18.1 of the 2016 MDANI Policy? Whole Group (b) Exclusion 18.2 of the 2016 MDANI Policy? Section 28(2) or (3) of the ICA? 44. If "yes" to question 39, is MDANI's liability to indemnify Dr Dona pursuant to the 2014 MDANI Policy for the claims of the plaintiffs whose BAS was performed by each such TCI Doctor and of each such plaintiff's Sub-Group members excluded by reason of exclusion 19.1(a) of the 2016 MDANI Policy? Whole Group 45. Is MDANI's liability to indemnify Dr Dona for the claims of any plaintiffs and group members whose BAS was performed by one or more of the TCI Doctors while that or those TCI Doctor(s) were not under Dr Dona's supervision excluded by reason of exclusion 19.1(b) of the 2016 MDANI Policy? Whole Group

Rickhuss v The Cosmetic Institute Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (35 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (27)

Cited By (4)