Evans v Health Administration Corporation [2019] NSWSC 1781

Supreme Court New South Wales

Medium Neutral Citation: Evans v Health Administration Corporation [2019] NSWSC 1781 Hearing dates: 9 December 2019 Date of orders: 09 December 2019 Decision date: 12 December 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. The settlement of the proceedings, in accordance with the Deed of Settlement between the plaintiff, the first defendant and the plaintiff's solicitor (Centennial Lawyers) dated 7 November 2019, as amended by the deed of variation dated 3 December 2019 (Settlement Deed) is approved pursuant to s 173 of the Civil Procedure Act 2005 (NSW). 2. The Plaintiff is authorised, including nunc pro tunc, to enter into and give effect to the Settlement Deed, for and on behalf of the Group Members and each of them. 3. By 20 December 2019 the Plaintiff is to provide Group Members, as defined in the Settlement Deed, with a form by which they may claim their entitlement under the Settlement Deed. 4. The Settlement Distribution Fund, as defined in the Settlement Deed, is to be administered by Centennial Lawyers, in accordance with the Settlement Deed. 5. Claims by Group Members for a payment out of the Settlement Distribution Fund and distributions by Centennial Lawyers are to be made in accordance with the procedure in clause 10 of the Settlement Deed. 6. The plaintiff's costs are approved in the amount of $250,000 and payment of such costs in accordance with the Settlement Deed is approved. 7. The costs of administering the Settlement Distribution Fund (being bank administration costs, limited to administration and other fees or charges issued by St George bank to Centennial Lawyers) are to be borne by the Fund from any moneys remaining after the initial entitlements have been distributed pursuant to cl 10.2(b) of the Settlement Deed and before the balance of the Fund is distributed in accordance with cl 10.2(c) of the Settlement Deed. 8. Upon completion of the distribution of any remaining monies pursuant to cl 10 of the Settlement Deed, the Proceedings shall be taken to be dismissed. 9. The period in which a party may appeal or seek leave to appeal these Orders is abridged to 7 days, with the consent of the parties. 10. All previous costs orders between the parties are vacated. 11. There be no order as to costs of the Proceedings. 12. The persons and entities affected and bound by these orders are the plaintiff, the defendants and each Group Member who has not opted out of the Proceedings. 13. Direct the plaintiffs' solicitor to notify Ward CJ in Eq's Associate within seven days of the completion of the distribution of moneys pursuant to clause 10 of the Settlement Deed. Catchwords: CIVIL PROCEDURE – Representative proceedings – Settlement or discontinuance – Court approval – held that the proposed settlement was fair and reasonable in the interests of all group members considered as a whole – held that it was appropriate to allocate a differential amount to the lead plaintiff, who has taken on the stress and burden of acting as the representative plaintiff to date. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 173, 175(4) Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 29, 236 Health Records and Information Privacy Act 2002 (NSW), Sch 1 Privacy Act 1988 (Cth) Privacy and Personal Information Act 1998 (NSW), Pt 2, Div 1 Supreme Court Act 1970 (NSW), s 68 Supreme Court Act 1986 (Vic), s 38 Cases Cited: 'D' and Wentworthville Leagues Club [2011] AICmr 9 'DK' and Telstra Corporation Limited [2014] AICmr 118 'EQ' and Great Barrier Reef Marine Authority [2015] AICmr 11 ALZ V SafeWork (NSW) (No 4) [2017] NSWCATAD 1; AOZ v Rail Corporation NSW (No 2) [2015] NSWCATAP 179 Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 CJU v SafeWork NSW [2018] NSWCATAD 300 Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270 Dorajay Pty Ltd v Aristocrat Leisure Ltd [2009] FCA 19 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Giller v Procopets (No 2) (2009) 24 VR 1; [2009] VSCA 72 Hodges v Waters (No 7) (2015) 232 FCR 97; [2015] FCA 264 Jane Doe v Australian Broadcasting Corporation [2007] VCC 281 Jo and Comcare [2016] AICmr 64 Johnston v Endeavour Energy [2016] NSWSC 1132 King v Liverpool City Council (No 3) [2018] NSWSC 1047 Rowe v AusNet Electricity Services Pty Ltd [2015] VSC 232 Smith v Australian Executor Trustees Limited; Creighton v Australian Executor Trustees Limited (No 4) [2018] NSWSC 1584 Wheelahan v City of Casey [2011] VSC 215 Wilson v Ferguson [2015] WASC 15 Category: Principal judgment Parties: Tracey Evans (Plaintiff) Health Administration Corporation (First Defendant) Waqar Malik (Second Defendant) Representation: Counsel: M Rivette with M Gerace (Plaintiff) Mr S Free SC with Ms J Taylor (Defendants)