CHONG v NGUYEN [2005] NSWSC 588

New South Wales Supreme Court

CHONG v NGUYEN [2005] NSWSC 588 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 2 September 2005

JUDGMENT DATE : 23 September 2005

JURISDICTION : Supreme Court of New South Wales

JUDGMENT OF : Rothman J at 1

DECISION : AT PARA [50]: The defendant shall respond to interrogatories 3, 8, 11 and 15(d) of the Plaintiff's Notice to Answer Interrogatories dated 30 September 2004.

CATCHWORDS : Professional negligence - State of mind interrogatories - Objections to Interrogatories - Whether interrogatories where necessary for fair trial - Meaning of "necessary"

LEGISLATION CITED : Supreme Court Rules Part 24

Boyle v Downs [1979] 1 NSWLR 192 Shutt v Queenan [2000] NSWCA 341 CASES CITED : Griebart v Morris [1920] 1 KB 659 Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435

Plaintiff - Gek Ngor CHONG PARTIES : Defendant - Hung Trung NGUYEN

FILE NUMBER(S) : SC 2004/20082

Plaintiff - Mr D Graham COUNSEL : Defendant - Mr S Woods

Plaintiff - McLaughlin & Riordan SOLICITORS : Defendant - David Ian Brown

LOWER COURT JURISDICTION :

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Rothman J

23 September 2005

2004/20082 GEK NGOR CHONG v HUNG TRUNG NGUYEN

JUDGMENT 1 HIS HONOUR: On 17 February 2000, the plaintiff, Gek Ngor Chong, went to a doctor, the defendant Hung Trung Nguyen, complaining of tiredness and weight gain. After that date, Ms Chong consulted Dr Nguyen on a number of occasions expressing on each occasion the same or similar complaint. 2 Dr Nguyen sent Ms Chong for certain blood tests over the period 18 February 2000 to 1 November 2001 during which time Dr Nguyen diagnosed Ms Chong as suffering, at least, from depression. 3 Dr Nguyen did not diagnose or prescribe treatment for any kidney disease or condition until 20 February 2001 or later. 4 On 1 November 2001 Ms Chong suffered renal failure and on 6 November 2001 underwent a renal biopsy at Liverpool Hospital which, it is said, demonstrated a severe long-standing IgA nephropathy. 5 On 23 March 2004 Ms Chong commenced these proceedings claiming damage for alleged negligence of Dr Nguyen for failing to diagnose or treat the kidney condition within a reasonable time. 6 Since 23 March 2004 there have been various amendments to the pleadings and Ms Chong now relies on a Further Amended Statement of Claim filed on 19 April 2005 from which the above recital is taken. It does not matter, at this stage or for the purpose of the current proceedings, whether all of the above withstands the burden of proof on Ms Chong. The above is reiterated for the purpose of stating the necessary background for the motion with which I am now dealing. 7 On 3 November 2004 the Court ordered the defendant, Dr Nguyen, to answer interrogatories. The plaintiff, Ms Chong, now alleges that some of the interrogatories have not been answered which allegation is admitted but defended on the basis that the questions asked are impermissible. In order to deal with the issues raised in the motion now before the Court, it is necessary to deal briefly with the principles that inform the exercise of the Court's power to order a party to answer interrogatories. These proceedings continue to be dealt with under the Supreme Court Rules, rather than the Uniform Civil Procedure that came into force on 17 August 2005. 8 The issues required to be addressed include whether the order to answer the unanswered questions is necessary and whether the questions seek, impermissibly, answers that go to the state of mind of the person being interrogated.