Fernandez v State of New South Wales [2019] NSWSC 1736

Supreme Court New South Wales

Medium Neutral Citation: Fernandez v State of New South Wales [2019] NSWSC 1736 Hearing dates: 28, 29 October 2019 Date of orders: 06 December 2019 Decision date: 06 December 2019 Jurisdiction: Common Law Before: Wright J Decision: The Separate Questions are to be answered as follows:

(1) Did any or all of the Directives require the LHDs to procure a Relevant Guarantee? No.

(2) To the extent that any or all of the Directives provide for the procurement of a Relevant Guarantee, are any or all of the Directives invalid in whole or in part as being repugnant to ss 70 or 71 of the Health Services Act 1997 (NSW)? No

(3) If so, did that repugnance preclude the LHDs from having authority to procure a Relevant Guarantee and if so, to what extent? The question does not arise.

(4) If and to the extent that the LHDs lacked authority to procure a Relevant Guarantee by reason of the invalidity of any of the Directives, does that have the consequence that: a. all or any Relevant Guarantees entered into during the period during which the applicable Directive was in force are void ab initio? and/or b. the LHDs are precluded from enforcing all or any of the Relevant Guarantees entered into during the period during which the applicable Directive was in force? and/or c. the LHDs are required to refund any monies recovered to date paid by a guarantor of a Relevant Guarantee? The question does not arise.

(5) Does s 71 of the Health Services Act 1997 (NSW) necessarily have the consequence that the LHDs provided no consideration for Relevant Guarantees that were given in relation to the provision of health services to Impecunious Ineligible Persons? On the current definition of "Impecunious Ineligible Person", it is inappropriate to answer the question, but, to the extent than an answer can be given on the alternate bases set out in the reasons for judgment, the answer is: No. Catchwords: HEALTH – Public hospitals — Local Health Districts – Health services provided in public hospitals to persons ineligible under Medicare arrangements – Liability of ineligible persons to pay for health services provided at public hospitals — Guarantees procured by Local Health Districts from third parties in respect of health services provided to ineligible persons — Whether policy directives required guarantees to be procured — Whether procuring guarantees inconsistent with, or repugnant to, Health Services Act 1997 (NSW), sections 70 and 71 – Whether guarantees otherwise void or unenforceable Legislation Cited: Administrative Arrangements Order 2014 (NSW) Civil Procedure Act 2005 (NSW) Constitution Act 1902 (NSW) Crown Proceedings Act 1988 (NSW) Health Insurance Act 1973 (Cth) Health Services Act 1995 (NSW) Health Services Amendment (Local Health Districts and Boards) Act 2011 (NSW) Health Services Amendment (Local Health Networks) Act 2010 (NSW) Health Services Regulations 2008 (NSW) Health Services Regulations 2013 (NSW) Health Services Regulations 2018 (NSW) Interpretation Act 1987 (NSW) Public Hospitals Act 1929 (NSW) Cases Cited: Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; [2013] HCA 3 Bell Group NV (in Liq) v Western Australia (2016) 260 CLR 500; [2016] HCA 21 Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270 Health Services Regulations 2018 (NSW) M47/2012 v Director-General of Security (2010) 215 CLR 1; [2012] HCA 46 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 Searle v Commonwealth of Australia [2019] NSWCA 127 State of New South Wales v Commonwealth of Australia (1983) 151 CLR 302 The Queen v A2 [2019] HCA 35 Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard) 13 March 1929 Oxford English Dictionary, Online Ed 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: G Blake SC and P Batley (plaintiffs) K Stern SC and T Phillips (defendants)