Western Sydney Local Health District v Jaca

[2017] NSWSC 1626

Supreme Court

New South Wales

Medium Neutral Citation:

Western Sydney Local Health District v Jaca [2017] NSWSC 1626

Hearing dates:

24 November 2017

Date of orders:

24 November 2017

Decision date:

24 November 2017

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

(1) The Plaintiff has leave to continue the proceedings in the absence an appearance or otherwise of the Defendant pursuant to r 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW).

 

(2) The Plaintiff has leave for substituted service of this Notice of Motion and any additional documents requiring service pursuant to r 10.44 of the Uniform Civil Procedure Rules 2005 (NSW).

 (3) That the costs be costs in the cause.

Catchwords:

PROCEDURE – notice of motion - no appearance by defendant – defendant overseas – matters to be considered when granting leave to proceed

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Rossiter v Core Mining Ltd [2015] NSWSC 360

Category:

Procedural and other rulings

Parties:

Western Sydney Local Health District ABN 48 702 394 764 (Plaintiff)
Virginia Jaca (Defendant)

Representation:

Counsel:
Ms A Spies (Plaintiff)

  Solicitors:
MRM Lawyers (Plaintiff)

File Number(s):

2017/96612

Publication restriction:

Nil

Judgment

1. These proceedings were commenced in March 2017 by Statement of Claim. The Health District seeks to recover unpaid costs of treatment which Ms Jaca, who resides in the Philippines, received at Westmead Hospital. She has not entered an appearance and so the 42 day period stipulated in r 11.8 of the Uniform Civil Procedure Rules 2005 (NSW) for filing an appearance has expired.

2. By Amended Motion filed in accordance with leave granted by Registrar Bradford in October 2017, the Health District sought leave to continue the proceedings in the absence of an appearance by Ms Jaca under r 11.8AA and under r 10.14(3) a direction that the notice required to by r 11.7 be taken to have been served on 16 November.

3. The motion was heard today ex parte. It is supported by affidavits sworn by Ms Pye, a team leader in the employ of the plaintiff, sworn in November 2017; an affidavit of Ms O’Brien, a licensed process server, sworn in also November 2017 and an affidavit sworn by Mr Flavier, another process server, sworn in April 2017.

4. I am satisfied that the discretion to direct that the notice required by r 11.7 be taken to have been served on 16 November must be exercised, given the evidence of Ms Flavier, which establishes that on 16 November, Ms Jaca was provided with a copy of the amended motion by email, as well as other documents, including the notice required by r 11.7. Ms Jaca has acknowledged receipt of the documents and indicated that she could not afford to appear in the proceedings, or to obtain representation.

5. The requirements of r 11.8AA were considered by Adamson J in Rossiter v Core Mining Ltd [2015] NSWSC 360, where her Honour observed at [11]:

“In Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [50]-[61] the High Court addressed the matters to be considered in deciding whether leave under UCPR r 11.4 (1) ought be granted are whether:

(a)    the defendant has been properly served;

(b) the claims in the originating process fall within UCPR, Sch 6;

(c)    the plaintiff has an arguable case, in the sense that it would be sufficient to survive an application for summary judgment; and

(d)    the local forum is clearly inappropriate and there is another more appropriate forum.”

6. In this case Mr Flavier’s affidavit establishes that the Statement of Claim was earlier served personally upon Ms Jaca in the Philippines in April 2017.

7. Ms O’Brien’s evidence establishes that the Health District’s claim is one which falls within the Schedule 6 to the Rules, it being a claim in contract for what remains unpaid for medical treatment and related services which Ms Jaca received at Westmead Hospital in September 2016, in respect of which an overseas resident patient’s declaration acknowledging responsibility for payment for the services, was provided.

8. Ms O’Brien’s evidence also establishes that there is an arguable basis for the claim, given the services provided, the invoices rendered, the payments made and what remains unpaid.

9. In these circumstances there can be no question that this is the appropriate forum for the hearing of these proceedings.

10. In the result I am satisfied that the orders sought she be made.

Orders

11. For these reasons I order that:

1. The Plaintiff has leave to continue the proceedings in the absence an appearance or otherwise of the Defendant pursuant to r 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW).

2. The Plaintiff has leave for substituted service of this Notice of Motion and any additional documents requiring service pursuant to r 10.44 of the Uniform Civil Procedure Rules 2005 (NSW).

3. That the costs be costs in the cause.

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Decision last updated: 24 November 2017