SUPREME COURT OF NEW SOUTH WALES
RICKHUSS & ORS
THE COSMETIC INSTITUTE PTY LIMITED & ORS
(2017 / 279308)
REPRESENTATIVE ACTION CONCERNING BREAST AUGMENTATION SURGERY PERFORMED ON PATIENTS OF THE COSMETIC INSTITUTE
NOTICE OF PROPOSED SETTLEMENT OF MS AMY RICKHUSS’ INDIVIDUAL CLAIM
1. The TCI Class Action
On 14 September 2017, representative proceedings were commenced in the Supreme Court of New South Wales against a number of defendants (the TCI Class Action). The lead plaintiffs who are bringing the proceedings are Ms Rickhuss (the first plaintiff), Ms Pollock, Ms Bruen, Ms Rowlands, Ms Knowland, Ms Rutherford, Ms Axen, Ms Zahr, Ms Love, Ms Gielisse, Ms Turner and Ms Sanchez (plaintiffs). The first four defendants are The Cosmetic Institute Pty Limited (in liquidation), TCI Bondi Pty Limited (in liquidation), The Cosmetic Institute Parramatta Pty Limited (in liquidation) and TCI Southport Pty Limited (in liquidation) (TCI companies). The fifth defendant is a plastic surgeon, Dr Eddy Dona (Dona). The defendants who performed surgery at the TCI companies are Dona, Dr Niroshan Sivathasan, Dr Van Huu Anthony Nguyen, Dr Victor Lee, Dr Chi-Vien Duong (aka Charles Wong), Dr Anh Huy Tang, Napoleon Po-Han Chiu, Dr Daniel Kwok, Dr Pedro Miguel da Silva Valente, Dr Farheen Ali, Dr James Francis Christopher Kenny, Dr Sri Balakrishnan Darshn (the doctor defendants). The remaining defendants are Certain underwriters at Lloyd’s subscribing to policy no. 04012, Allied World Assurance Company Ltd and MDA National Insurance Pty Ltd (insurer defendants).
The proceedings concern allegations about breast augmentation surgery performed at the TCI companies’ premises or by the doctor defendants engaged and trained by the TCI companies and Dona. Persons on whose behalf the proceeding has been brought are defined as “group members”. Group members include several sub-groups of women who were operated on by the same doctor defendant. For example, those group members who were operated on by Dr Sivathasan are all known as “Sivathasan sub-group members”. Each of the plaintiffs are lead plaintiffs for these sub-groups. Ms Rickhuss is the lead plaintiff for the Sivathasan Sub-Group.
You have previously received opt out and registration notices.
2. Why am I receiving this notice?
On 17 November 2023, an application was filed by the first plaintiff, Ms Amy Rickhuss, in the Supreme Court for leave to settle and discontinue her individual claim in the proceedings against Dr Sivathasan and the other defendants and to withdraw as a representative plaintiff in the proceedings. Prior to that application being heard, the Supreme Court ordered that a notice of Ms Rickhuss’ proposed settlement and withdrawal be given to registered group members. Notice of the proposed settlement is required to be provided to group members because of sections 174 and 175 of the Civil Procedure Act 2005 (NSW).
You are receiving this notice because you are a registered group member, having already registered your claim in relation to this class action.
Before the Court will approve the proposed settlement, it must be satisfied that notice of the proposed settlement has been provided to all group members.
3. What is the proposed settlement?
Dr Sivathasan and Ms Rickhuss have entered into a confidential settlement on a without admissions basis in order to resolve her individual claim against him. If the proposed settlement is approved, Ms Rickhuss will withdraw from the proceedings against all defendants and will cease being a plaintiff or a group member.
Is there a substitute for Ms Rickhuss?
Notice of a proposed settlement by a representative party must be provided to group members to enable them to find a group member who is willing to be substituted as the lead plaintiff.
In this case, Ms Ursula Raad has agreed to be substituted as a plaintiff for Ms Rickhuss to take over the conduct of the proceedings in her place on behalf of group members, including the remaining Sivathasan sub-group members. If the Court approves Ms Rickhuss’ settlement, Ms Raad will become a lead plaintiff in Ms Rickhuss’ place and will continue to represent group members and women who are part of the Sivathasan sub-group.
4. What should group members do?
(a) Option 1: Do Nothing
If the proposed settlement is approved, as you are already a registered group member, you do not need to take any further action to participate in the proceedings or in any subsequent settlement of the proceedings.
If you do nothing, you will remain a group member and remain bound by any order or judgment in the representative proceeding. The plaintiffs, including Ms Raad, will continue to bring the proceedings on your behalf up to the point where the Court determines the questions that are common to the claims of the plaintiffs and the group members. If the proceeding settles and the Court makes an order that only those who registered for settlement are entitled to obtain the benefit of any settlement reached, then you will be entitled to any benefit obtained from settlement of the proceedings. If the settlement is approved by the Court, the representative proceeding will be ended.
(b) Option 2: Object to the proposed settlement and substitution
If you wish to object to the approval of the proposed settlement or the substitution of Ms Raad for Ms Rickhuss you should send an email to the Associate to Justice Weinstein setting out, in summary, why you oppose Ms Rickhuss’ settlement or the substitution of Ms Raad for Ms Rickhuss. Emails should be sent to firstname.lastname@example.org by 4 December 2023.
You may also attend, or send a representative to attend, the hearing of the application and seek to be heard in relation to your objection. The Court will hear the application to approve the proposed settlement on 5 December 2023 at 10:00 am. The hearing will take place at the Supreme Court in the Law Courts Building, Queens Square, Sydney.
5. Where can you obtain further information?
Please consider the above matters carefully. If you want further information, you can contact the plaintiffs’ solicitors, Turner Freeman Lawyers on (02) 8222 3333, or on the website (https://www.turnerfreeman.com.au/nsw/cosmetic-institute-class-action/). You can also seek your own legal advice.
This notice is published pursuant to Orders made by the Supreme Court on 24 November 2023.