Rickhuss v The Cosmetic Institute Pty Ltd (No 4)

1. [1]

   These Reasons for Judgment deal with a number of Notices of Motion.

2. [2]

   The Motions were the subject of extensive submissions and evidence (occupying 12 volumes of material and requiring reference to the pleadings which are contained within 4 further volumes of material). Lengthy written submissions were produced by the parties which extended to hundreds of pages. Oral submissions occupied 5 separate hearing days. Because of the proximity of the hearing dates fixed for the proceedings, these reasons have been produced as expeditiously as possible. In producing them, I have considered all of the submissions, although I may not have referred to them all in these reasons.

3. [3]

   Giving the approaching hearing dates, on 20 July 2023, I announced the formal orders to the parties and indicated that my reasons would be published as soon as possible. These are my reasons for making the orders, which were announced to the parties, and which are set out in full at the end of these reasons.

4. [4]

   It is necessary to understand the context of the Motions and in these reasons to lay out in a relatively brief form a description of the proceedings as a whole.

Principal Proceedings

1. [5]

   This is a representative proceeding which was initially commenced by a Statement of Claim filed on 14 September 2017.

2. [6]

   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.

3. [7]

   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.

4. [8]

   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”).

5. [9]

   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”.

6. [10]

   The 5th defendant, Dr Eddy Dona, was at the relevant time a registered medical practitioner who was practising as a plastic and reconstructive surgeon.

7. [11]

   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.

8. [12]

   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.

9. [13]

   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.

10. [14]

    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.

11. [15]

    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.

12. [16]

    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.

13. [17]

    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.

14. [18]

    Paragraph 21 of the 5FASC pleads that approach in the following terms:

15. [19]

    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.

16. [20]

    Paragraph 24C1 of 5FASC defines the TCI System and is in the following terms:

17. [21]

    That paragraph describing the TCI System is then the relevant descriptor of the harm which gives rise to the tortious claims.

18. [22]

    Paragraph 24C2 describes that harm in the following terms:

19. [23]

    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.

20. [24]

    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. (1)

       first, for Dr Dona, designing, promoting and bringing into existence the TCI System; and

    2. (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.

21. [25]

    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.

22. [26]

    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.

23. [27]

    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.

24. [28]

    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.

25. [29]

    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.

26. [30]

    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.

27. [31]

    Paragraph 89 of 5FASC is in the following form:

28. [32]

    That pleading is replicated for each of Dr Dona and the TCI Surgeons.

29. [33]

    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.

30. [34]

    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.

31. [35]

    The causes of action pursuant to the ACL and these allegations are in identical form with respect to each of the non-insurer defendants.

32. [36]

    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.

33. [37]

    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.

34. [38]

    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.

The Notices of Motion

1. [39]

   By a number of Notices of Motion, or Amended Notices of Motion, the TCI Surgeons raise a number of issues which are central to and important for this litigation.

2. [40]

   The first issue is raised by the Further Amended Notice of Motion filed in Court on 8 June 2023. This can conveniently be called the “Common Questions Motion”. This Further Amended Notice of Motion subsumed the relief sought in four earlier Notices of Motion or Amended Notices of Motion which were filed respectively on 19 March 2021, 3 June 2022, 23 March 2023, and 7 June 2023 (which amended and replaced two earlier Notices of Motion filed on 3 and 19 May 2023).

3. [41]

   The Common Questions Motion seeks 23 different orders from the Court dealing with the 5FASC and the representative proceedings generally. Some of these orders are in the alternative. The general topics identified in the orders can be classified in the following way:

4. [42]

   In order to succeed in obtaining any of the relief sought, the TCI Surgeons need to persuade the Court that there are no, or no sufficient, common questions identified in 5FASC, and that the pleadings which seek to articulate those common questions are deficient.

5. [43]

   The second Notice of Motion is that filed by the TCI Surgeons on 19 May 2023. It seeks orders that the TCI Surgeons are not obliged to produce various documents because of legislative constraints relating to the disclosure of person and health information. It is convenient to refer to this Notice of Motion as the “Restricted Information Motion”. The entitlement of the TCI Surgeons to the orders sought was not the subject of significant opposition. However, the Court needs to be satisfied that such orders should be made.

6. [44]

   The third Notice of Motion seeking orders is the Amended Notice of Motion filed by the TCI Surgeons in Court on 8 June 2023. This Amended Motion replaced an earlier Notice of Motion filed on 3 May 2023.

7. [45]

   In this Amended Notice of Motion, the TCI Surgeons seek orders for Further and Better Discovery by the plaintiff. It seeks those orders in the context of a dispute between the plaintiff and the TCI Surgeons about the range of documents relevant to the determination of the limitation period with respect to the claims brought by the plaintiffs (or some of them). This Amended Notice of Motion can conveniently be referred to as the “Limitation Act Motion”. The orders sought centre upon the proper interpretation of s 50D of the Limitation Act 1969 (NSW).

8. [46]

   The fourth Notice of Motion is that filed by the plaintiffs seeking orders relevant to the production of documents in a redacted form. It was filed on 18 May 2023. The Notice of Motion also seeks orders setting aside a series of subpoenas for the production of documents served by the TCI Surgeons on various expert witnesses whose reports have been served by the plaintiffs on the other parties in accordance with Court directions. It will be convenient to call this Notice of Motion the “Plaintiffs’ Motion”.

9. [47]

   As some of the relief sought in the Common Questions Motion would have the effect of making much of the relief sought in the other motions otiose, it is appropriate to address that motion first.

Common Questions Motion

1. [48]

   The proceedings have been fixed for a first hearing, with an estimated time of 14 weeks, to commence on 4 September 2023.

2. [49]

   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.

3. [50]

   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.

4. [51]

   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.

5. [52]

   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].

6. [53]

   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.

7. [54]

   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].

8. [55]

   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. (1)

      because of case management considerations such as costs and efficiency: s 166(1)(a), (b) and (c); or

   2. (2)

      when a plaintiff is not able to adequately represent the interests of group members: s 166(1)(d); or

   3. (3)

      when it is otherwise inappropriate that the claim be pursued by means of representative proceedings: s 166(1)(e).

9. [56]

   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.

10. [57]

    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].

11. [58]

    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.

12. [59]

    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”.

13. [60]

    At [6]ff of the Merck decision, the Court (Moore, Sundberg and Tracey JJ) said:

14. [61]

    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.

15. [62]

    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.

16. [63]

    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.

17. [64]

    The plaintiffs contended that these questions would satisfy any of the tests set out above so as to mean that:

18. [65]

    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.

19. [66]

    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.

20. [67]

    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”.

21. [68]

    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.

22. [69]

    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.

23. [70]

    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.

24. [71]

    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.

25. [72]

    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.

26. [73]

    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.

27. [74]

    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.

28. [75]

    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:

29. [76]

    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.

30. [77]

    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.

31. [78]

    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.

32. [79]

    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:

33. [80]

    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.

34. [81]

    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.

35. [82]

    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.

36. [83]

    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.

37. [84]

    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.

38. [85]

    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.

39. [86]

    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.

40. [87]

    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.

41. [88]

    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.

42. [89]

    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.

43. [90]

    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.

44. [91]

    In using the term “inherently individualistic”, the plaintiffs point to this paragraph of the TCI Surgeons’ Further Written Submissions:

45. [92]

    The plaintiffs’ response again simply put is that:

46. [93]

    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]:

47. [94]

    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.

48. [95]

    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.

49. [96]

    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”.

50. [97]

    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.

51. [98]

    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.

52. [99]

    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:

53. [100]

    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.

54. [101]

    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.

55. [102]

    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.

56. [103]

    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.

57. [104]

    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.

58. [105]

    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.

59. [106]

    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.

60. [107]

    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.

61. [108]

    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.

62. [109]

    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. (1)

       the bringing of representative proceedings;

    2. (2)

       the continuation of those representative proceedings; and

    3. (3)

       the determination of questions by way of Merck Orders.

63. [110]

    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.

64. [111]

    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.

65. [112]

    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.

66. [113]

    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.

67. [114]

    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.

68. [115]

    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.

69. [116]

    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.

70. [117]

    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.

71. [118]

    It is appropriate to deal next with the Limitation Act Motion.

Limitation Act Motion

1. [119]

   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:

2. [120]

   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.

3. [121]

   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.

4. [122]

   Section 50D of the Limitation Act is in the following form:

5. [123]

   For convenience, I will refer in these reasons to the three facts set out in s 50D(1) as “the s 50D facts”.

6. [124]

   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:

7. [125]

   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.

8. [126]

   At [103]ff, Beazley JA said:

9. [127]

   The other members of the Bench agreed with the judgment of Beazley JA. Campbell JA added some further remarks, saying at [131] this:

10. [128]

    Baggs v University of Sydney Union [2013] NSWCA 451, was another decision which considered s 50D of the Limitation Act.

11. [129]

    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]):

12. [130]

    His Honour went on to deal with this in a manner consistent with the decision in Baker-Morrison.

13. [131]

    At [36], his Honour said:

14. [132]

    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]:

15. [133]

    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:

16. [134]

    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.

17. [135]

    Having referred with ongoing approval to the judgments in Baker-Morrison, Murgolo and Pomare, Basten AJA went on at [63] to say:

18. [136]

    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.

19. [137]

    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.

20. [138]

    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.

21. [139]

    The second group of documents, which are described in 15 subparagraphs, relate to:

    1. (1)

       documents dealing with any decision made not to join the TCI Surgeons to the class action prior to June 2020;

    2. (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. (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. (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. (5)

       any expert reports or documents created in the course of enquiries mounted by Turner Freeman to explore bringing proceedings.

22. [140]

    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.

23. [141]

    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.

24. [142]

    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:

25. [143]

    In a further letter of 20 June 2016 from Turner Freeman to Ms Pollock, the following paragraph is drawn to attention:

26. [144]

    In a further letter of 25 November 2016, Turner Freeman wrote to Ms Pollock the following:

27. [145]

    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:

28. [146]

    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.

29. [147]

    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.

30. [148]

    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.

31. [149]

    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.

32. [150]

    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:

33. [151]

    These two possible constructions have been described as understanding the phrase in s 50D either in the active sense or the passive sense.

34. [152]

    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.

35. [153]

    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.

36. [154]

    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.

37. [155]

    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.

38. [156]

    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.

39. [157]

    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.

40. [158]

    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.

41. [159]

    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.

42. [160]

    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.

43. [161]

    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]:

44. [162]

    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:

45. [163]

    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.

46. [164]

    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.

47. [165]

    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.

48. [166]

    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:

49. [167]

    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.

50. [168]

    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.

51. [169]

    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.

52. [170]

    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.

53. [171]

    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.

54. [172]

    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.

55. [173]

    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.

56. [174]

    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.

57. [175]

    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.

58. [176]

    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.

Restricted Information Motion

1. [177]

   On 19 May 2023, the TCI Surgeons filed the Restricted Information Motion, seeking the following orders:

2. [178]

   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.

3. [179]

   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.

4. [180]

   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:

5. [181]

   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.

6. [182]

   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.

7. [183]

   However, clause 11(2)(b) is in the following form:

8. [184]

   I note that the definition of “organisation” would be sufficient to include each of the TCI Surgeons.

9. [185]

   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:

10. [186]

    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.

11. [187]

    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.

12. [188]

    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.

13. [189]

    In that respect, I regard a Notice to Produce as being, in substance and for all relevant purposes, the equivalent of subpoena for production.

14. [190]

    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.

15. [191]

    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.

16. [192]

    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.

17. [193]

    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.

18. [194]

    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.

19. [195]

    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.

20. [196]

    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.

21. [197]

    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.

22. [198]

    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.

23. [199]

    These conclusions are sufficient to dismiss the Notice of Motion.

24. [200]

    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. [201]

    I am satisfied that the Notice of Motion should be dismissed, and an order will be made to that effect.

26. [202]

    I will add the following order:

    1. (1)

       For the avoidance of doubt, I order that the 6th to 16th defendants produce all documents falling within Categories 7, 13 and 15 of the Notices to produce dated 16 January 2023.

27. [203]

    It seems to me that this is a matter which arises in the ordinary course of the proceedings. There is no question of any particular result which would affect the order for costs.

28. [204]

    Accordingly, I will order that costs of this Motion are to be costs in the cause.

Plaintiffs’ Motion

1. [205]

   The Plaintiffs’ Motion seeks to set aside subpoenas addressed to various experts who the plaintiffs have retained for the purpose of giving expert evidence on the basis that the documents sought are covered by legal professional privilege. The plaintiffs also seek leave nunc pro tunc to make redactions to various documents produced on discovery. They seek other consequential orders.

2. [206]

   On 3 May 2023, the TCI Surgeons served subpoenas on a number of individual experts, and on MQ Health Pty Ltd (an organisation connected with one expert), requiring the production of their records and documents speaking generally, which related to, or were used in, the preparation of their reports. Those reports have been served and are to be relied upon by the plaintiffs.

3. [207]

   The plaintiffs served the reports in compliance with an order of the Court which was made pursuant to r 31.28(1)(a) of the UCPR in the course of the typical case management directions of the Court.

4. [208]

   The plaintiffs claim client legal privilege with respect to those documents and decline to produce them.

5. [209]

   In correspondence, the solicitor for the TCI Surgeons told the solicitors for the plaintiffs that any such privilege had been waived by reference to material produced on discovery.

6. [210]

   The parties have been unable to agree. As a consequence, this Motion has been filed.

7. [211]

   The plaintiffs rely on the following grounds in support of the Plaintiffs’ Motion:

8. [212]

   These issues raise, in substance, these central issues:

9. [213]

   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).

10. [214]

    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.

11. [215]

    Thirdly, the TCI Surgeons submit that the documents have apparent relevance for the purposes of cross-examination of the experts at the hearing.

12. [216]

    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.

13. [217]

    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.

14. [218]

    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.

15. [219]

    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:

16. [220]

    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.

17. [221]

    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.

18. [222]

    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.

19. [223]

    That provision is in the following form:

20. [224]

    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.

21. [225]

    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.

22. [226]

    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.

23. [227]

    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:

24. [228]

    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).

25. [229]

    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).

26. [230]

    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.

27. [231]

    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.

28. [232]

    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.

29. [233]

    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.

30. [234]

    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.

31. [235]

    For these reasons, I decided that it was appropriate to uphold the Plaintiffs’ Motion and make the orders which are recorded below.

Orders

1. [236]

   In respect of each Notice of Motion, I record the orders made on 20 July 2023 as follows:

   1. (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:

   2. (2)

      In relation to Notice of Motion dated 19 May 2023, I make the following orders:

   3. (3)

      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:

   4. (4)

      In relation to the Notice of Motion filed by the plaintiff on 18.5.23, I make the following orders: