Nguyen v Northern Sydney Local Health District (No 2)

1. [1]

   THE COURT: By judgment delivered on 21 May 2025 and entered on that date, this Court dismissed the appeal brought by Dr Tommie Tue Gia Nguyen: Nguyen v Northern Sydney Local Health District [2025] NSWCA 107. At trial, most of Dr Nguyen’s claims were dismissed, but he did obtain a nominal judgment based on a finding of breach of cl 3.7, which was a promise to use best endeavours to offer further employment to him. In the appeal, the respondents made it clear that their challenge to the nominal judgment was only pressed if this Court was minded to interfere with the assessment of damages as nominal (see at [104] of this Court’s judgment).

2. [2]

   On 28 May 2025, Dr Nguyen supplied an affidavit in which he maintained that he had suffered injustice and error by the Court “failing to consider the full fact and evidence at primary trial and at appeal as outlined in the attached Further Written Submission”. The affidavit was accompanied by a submission of 15 paragraphs over five pages.

3. [3]

   No differently from the trial and the appeal, Dr Nguyen does not appear to have been assisted by a legal practitioner. He and the respondents were told by this Court, the day after Dr Nguyen’s materials were received, that his affidavit would be treated as an application under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) and addressed on the papers, and required no response from the respondents.

4. [4]

   These are our reasons for dismissing Dr Nguyen’s application. They assume familiarity with this Court’s earlier judgment.

Dr Nguyen’s submissions in support of his application

1. [5]

   Paragraphs 1-2 of the submissions supplied in support of Dr Nguyen’s application contend that “their Honours erred in their reasons and did not take his submissions (oral and written) at trial and at appeal into their consideration”, concerning his claim that the obligation under cl 3.7 sounded in substantial damages.

2. [6]

   It is convenient to reproduce [99]-[103] of this Court’s reasons dismissing Dr Nguyen’s appeal:

3. [7]

   Dr Nguyen’s submissions are divided into responses to [100]-[101] which concern employment and [102] which concerns research grants.

4. [8]

   First, Dr Nguyen says there was error at [100]-[101] because the “claim of Prof Morris’s adverse view is unsubstantiated because Prof Morris was happy to employ and fund Dr Nguyen’s salary up to 2016”. He says that the fall out between Dr Nguyen and Professor Morris “was due the failure by the NSLHD’s refusal to reassign the IP to both Dr Nguyen and Prof Morris”. The submission continues that the fall out was:

5. [9]

   The second point is that Dr Nguyen submitted at trial and on appeal that both the LHD and the State had the “financial capacity and legal authority” to provide funding for an employment offer, and to provide research lab space.

6. [10]

   The third point is that funding would not have been tied to Professor Morris’ “own money (soft money)”, nor would he be required to work under the control of Professor Morris. Dr Nguyen adds that the involvement of Professor Morris was not argued or pleaded by the LHD at trial or appeal.

7. [11]

   The fourth point responded to the respondents’ submission that there was no reason for Dr Nguyen’s continuing employment when his work concerned a goal that was no longer being pursued. He said that he was an experienced researcher with valuable insights into the commercialisation of his invention, and that he would have accepted an offer of employment. He said that the dispute has caused grave disruption and damage to his professional career.

8. [12]

   Dr Nguyen’s submission also made two points challenging [102] of the reasons. It is said that the Court did not take into consideration the evidence in paragraphs 61-62 of his submissions, which showed that he lost a valuable chance to apply for research grant, which was “supported by expert evidence by Prof Wakefield submitted by the NSLHD at trial”, and that it was “unfair in procedure for their Honours and the primary judge to allow the NSLHD’s last-minute withdrawal of expert evidence”. Secondly, it is said that, as was noted in an affidavit read at trial, “all scientists employed by NSLHD would be expected to apply for research grant”.

9. [13]

   Dr Nguyen’s submissions conclude with a claim for $2.1 million in lost salary plus a sum of $387,000 for loss of opportunity of research grants.

Consideration

1. [14]

   Rule 36.16(1) empowers the Court to vary a judgment or order before it has been entered, and r 36.16(3A) extends that power to a case such as the present, where Dr Nguyen has applied within 14 days. It is well established that the power conferred by r 36.16 (a) is to be exercised “sparingly and with caution”, having regard to the importance of finality of litigation, and (b) “does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them”: Majak v Rose (No 5) [2017] NSWCA 238 at [12]-[13]. The purpose of the power was stated by this Court as follows at [12]:

2. [15]

   Dr Nguyen’s application falls well outside those principles.

3. [16]

   Turning first to the points made in response to [100]-[101], all misapprehend the reasoning of the primary judge and this Court. The onus rested on Dr Nguyen to make out a case of substantial damages caused by a breach of cl 3.7. It is not self-apparent that a breach of an obligation to use best endeavours to offer employment to Dr Nguyen would sound in the substantial damages he claims.

4. [17]

   The primary judge found at [153] that there was no evidence to support a claim for substantial damages. On Dr Nguyen’s case, he needed to establish, by evidence, that the breach of an obligation to use best endeavours to employ him would have led to an offer of employment which Dr Nguyen would have accepted. At trial, he attempted to discharge that burden by expert evidence. But his own expert evidence was not admitted into evidence, from which decision no appeal has ever been brought, and the respondents did not tender the expert evidence they had served, doing so in a way which was transparent to Dr Nguyen as explained in this Court’s judgment (as to which see further below because Dr Nguyen’s dissatisfaction with this is part of his challenge to the reasoning in [102]).

5. [18]

   Not only did Dr Nguyen not discharge that onus, but as the primary judge observed, there was a falling out between him and Professor Morris. As the primary judge made clear at [153], reproduced in this Court’s judgment at [100], he was not expressing a view as to the reason for the falling out, but merely that it had occurred. Dr Nguyen evidently has a strong view about the reason for the falling out, but that is not an issue which arises in the appeal, even assuming it was something determined by the primary judge or could be determined by this Court. The falling out tells against a renewal of Dr Nguyen’s employment as it had been for many years – namely, under Professor Morris’ supervision and paid by funds controlled by him – and heightened the need for Dr Nguyen to establish by evidence that an offer would be made to him.

6. [19]

   It was necessary for Dr Nguyen to establish by evidence what he would have been doing in the premises of cl 3.7. There was no evidence to suggest that AIGD would use the services of Dr Nguyen. There was no evidence that AIGD would pay for any services provided by Dr Nguyen (noting that AIGD in fact paid no money for the intellectual property it acquired). There was no evidence to suggest that AIGD might license Dr Nguyen to continue, either at its expense or the State’s expense, to seek to commercialise the invention. None of the points raised by Dr Nguyen detract from those considerations. In any event, in substance Dr Nguyen’s submissions are an attempt to reargue this aspect of the appeal, as opposed to identifying a slip or inadvertent omission in this Court’s judgment.

7. [20]

   Turning to Dr Nguyen’s dissatisfaction with [102], this Court did consider what was advanced in paragraphs 61-62 of his written submissions. Those submissions refer to precisely two pieces of evidence. One is paragraph 201(iv) of Dr Nguyen’s affidavit. That is no more than a statement of the quantum of his claim. For the sake of transparency, it is best to reproduce the paragraph in its entirety (noting that not all of paragraphs 200(i)-(iii) were admitted into evidence at trial):

8. [21]

   The second is paragraphs 72-74 of Professor Wakefield’s report. That report was not in evidence, as noted in [102].

9. [22]

   There was no failure by this Court to have regard to the evidence to which Dr Nguyen had made submissions. Dr Nguyen did not in fact point to any evidence capable of sustaining his claim for damages which was before the Court, a point which was made in [102].

10. [23]

    This aspect of Dr Nguyen’s submission also seeks to reagitate his dissatisfaction with the rejection of his challenge concerning a report filed and served by the defendants in advance of trial but not ultimately tendered by them. That was addressed at length when dealing with ground 6 of his appeal at [69]-[72]:

Conclusion and orders

1. [24]

   Dr Nguyen’s application under r 36.16 to revisit parts of this Court’s reasons with which he is dissatisfied must be dismissed. This Court informed the parties on the day after Dr Nguyen’s affidavit and submissions were received that it would be determined on the papers, without any need for response by the respondents. If any costs were incurred by the respondents, they will be minimal, such that there is no need for a further costs order.