Jeanette Jana BHT Ronald Jana v Western Sydney Local Health District trading as Westmead Hospital [2021] NSWSC 1444

Supreme Court New South Wales

Medium Neutral Citation: Jeanette Jana BHT Ronald Jana v Western Sydney Local Health District trading as Westmead Hospital [2021] NSWSC 1444 Hearing dates: 8 November 2021 Date of orders: 11 November 2021 Decision date: 11 November 2021 Jurisdiction: Common Law Before: Davies J Decision: 1. The defendants are authorised to make the following deductions from the judgment sum: i. such amount as is owing to Centrelink pursuant to a final notice received by the defendant(s); ii. such amount as is the subject of a notice of charge or recovery from the National Disability Insurance Agency; iii. such amount payable to Medicare pursuant to the Health and Other Services (Compensation) Act 1995 (Cth) and in accordance with any notice of charge. 2. After the deductions referred to in paragraph 2 pursuant to section 77 of the Civil Procedure Act 2005, the defendants are to pay the balance of the judgment sum into Court pending an application for the benefit of the plaintiff or as otherwise ordered by the Court. 3. Payment of costs will not be due and no interest shall be payable in respect of costs if the costs are paid within 28 days after whichever of the following events occurs last: (a) The costs being agreed; or (b) Receipt by the defendants of a Certificate as to Determination of costs by a Cost Assessor; or (c) Receipt by the defendants of a written document signed by the plaintiff authorising and directing payment of the costs. (d) If interest becomes payable in accordance with 5 (a)-(c) the interest will only be calculated from the date which is 28 days after the last event. 4. The Court notes that the parties agree that these terms are not to be disclosed except in the following circumstances: (a) as required by law; or (b) where the defendants seek contribution or indemnity from a third party; or (c) a copy of these terms is provided to Centrelink (Department of Human Services) and NDIA in relation to the determination of any refund. Catchwords: CIVIL PROCEDURE – plaintiff sued first and second defendant for injuries arising out of medical negligence – Calderbank offer accepted by plaintiff – approval of settlement – where three statutory deductions must be made from amount of settlement – where defendants propose term to be included in consent judgment withholding interest payable until certificates received from Commonwealth entities – whether such term should be implied in consent judgment CONTRACTS – construction -- whether proposed term was a standard term in consent judgments – where implying term into judgment would have effect of varying s 101 of the Civil Procedure Act – where term does not fall within any of categories of implied terms identified in relevant case law – where no basis for implication of term Legislation Cited: Civil Procedure Act 2005 (NSW) ss 76, 77, 101 Health and Other Services (Compensation) Act 1995 (Cth) ss 4, 23, 24, 28, 30, 32, 33, 33B National Disability Insurance Scheme Act 2013 (NSW) Social Security Act 1991 (Cth) ss 1184, 1184B Cases Cited: BP Refinery (Westernport) Pty Limited v Shire of Hastings (1994) 180 CLR 266 Calderbank v Calderbank [1975] 3 All ER 333 Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 State of New South Wales v Banabelle Electrical Pty Limited (2002) 54 NSWLR 503; [2002] NSWSC 178 Texts Cited: Nil Category: Principal judgment Parties: Jeanette Jana BHT Ronald Jana (Plaintiff) Western Sydney Local Health District trading as Westmead Hospital (First Defendant) Mohammed Sharif Dowla (Second Defendant) Representation: Counsel: D Higgs SC & D Del Monte (Plaintiff) M Windsor SC & S Kettle (First Defendant) B Epstein (Second Defendant)