Western Sydney Local Health District v Jaca

1. [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. [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. [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. [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. [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]:

6. [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. [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. [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. [9]

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

10. [10]

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

Orders

1. [11]

   For these reasons I order that:

   1. (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. (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. (3)

      That the costs be costs in the cause.