Fernandez v State of New South Wales (No 2) [2021] NSWSC 471

Supreme Court New South Wales

Medium Neutral Citation: Fernandez v State of New South Wales (No 2) [2021] NSWSC 471 Hearing dates: 03 May 2021 Date of orders: 03 May 2021 Decision date: 05 May 2021 Jurisdiction: Common Law Before: Wright J Decision: 1. Pursuant to s 166(1) of the Civil Procedure Act 2005 (NSW), that the proceedings no longer continue under Part 10 of the Civil Procedure Act 2005 (NSW). 1A. Order 1 not take effect until 5 July 2021. 2. That, upon order 1 coming into effect, the plaintiffs' proceedings (which will then not be representative proceedings) be dismissed insofar as they seek declaration 1 of the relief claimed in the Amended Statement of Claim and allege the matters set out at paragraphs 10 to 13 of the Amended Statement of Claim. 3. Insofar as the plaintiffs' proceedings have not been dismissed in accordance with order 2, the plaintiffs be granted leave to file a notice of discontinuance pursuant to rule 12.1 of the Uniform Civil Procedure Rules 2005 (NSW). 4. The plaintiffs are to file a notice of discontinuance by 7 July 2021. 5. By 17 May 2021, the 2nd to 16th defendants are to be directed by the 1st defendant to: a. display a notice containing the information referred to in order 7 below (Notice), prior to 7 June 2021, at the hospitals identified in Annexure A which are under their respective control, in: i. the emergency department (if any); and ii. on a noticeboard or other area designated for the provision of information to the public in the main lobby or other main thoroughfare of the hospital; and b. send a copy of the Notice prior to 7 June 2021, to any person who was sent a notice in accordance with order 13(b) of the Court's orders made on 31 May 2019. 6. The plaintiffs are to cause the Notice to be published on the website of Legal Aid NSW and on the Legal Aid NSW Facebook page by 7 June 2021. 7. The Notice referred to in orders 5 and 6 above must state that: a. Order 1 has been made; b. These proceedings will, upon order 1 coming into effect, no longer be a representative action; c. Persons who have guaranteed to one of the 2nd to 16th defendants the payment of monies payable or owing by patients who were not eligible for Medicare benefits will, upon order 1 coming into effect, no longer be a group member of any representative proceeding; d. If persons referred to in (c) above wish to bring a claim or dispute their liability in respect of any guarantee provided by them or monies paid under such a guarantee, they should seek legal advice, including in relation to the expiry of any limitations period which might affect their entitlement to claim. 8. There be no order as to costs, including costs against the plaintiffs of the representative proceedings and the proceedings on the plaintiffs' own behalf and all existing costs orders be vacated. 9. The Court notes that the defendants have released the representative plaintiffs of any liability under the guarantees the subject of these proceedings. Catchwords: CIVIL PROCEDURE – Class action or representative proceedings – Court approval for settlement and discontinuance – Where proceedings no longer continuing as representative proceedings – Orders provide for sufficient notice to be given to group members that the proceedings will no longer continue as representative proceedings – Settlement approved Legislation Cited: Civil Procedure Act 2005 (NSW) Contracts Review Act 1980 (NSW) Health Insurance Act 1973 (Cth) Health Services Act 1997 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Fernandez v State of New South Wales [2019] NSWSC 1736 Fernandez v State of New South Wales [2020] NSWCA 257 Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127 Category: Principal judgment Parties: Garfield Mario Fernandez (First Plaintiff) Apikali Fotu (Second Plaintiff) State of New South Wales (First Defendant) Western Sydney Local Health District (Second Defendant) South Western Sydney Local Health District (Third Defendant) Sydney Local Health District (Fourth Defendant) Northern Sydney Local Health District (Fifth Defendant) Nepean Blue Mountains Local Health District trading as Nepean Hospital (Sixth Defendant) lllawarra Shoalhaven Local Health District (Seventh Defendant) Central Coast Local Health District (Eighth Defendant) Far West Local Health District (Ninth Defendant) Hunter New England Local Health District (Tenth Defendant) Mid North Coast Local Health District (Eleventh Defendant) Murrumbidgee Local Health District (Twelfth Defendant) Northern NSW Local Health District (Thirteenth Defendant) Southern NSW Local Health District trading as Queanbeyan District Hospital (Fourteenth Defendant) Western NSW Local Health District trading as Parkes Hospital (Fifteenth Defendant) South Eastern Sydney Local Health District (Sixteenth Defendant) Representation: Counsel: P Batley (First and Second Plaintiffs) T Phillips (First to Sixteenth Defendants)