Fernandez v State of New South Wales [2020] NSWCA 257

Fernandez v State of New South Wales [2020] NSWCA 257

The application for leave to appeal was refused as the issue of any repugnancy or invalidity in the impugned parts of the directives is not dispositive or necessary to resolve the enforceability of guarantees at this stage; determination of utility weighed against granting leave, particularly where severance is possible and further evidence may be led at final hearing. None of the grounds for unenforceability of guarantees depend on the directives’ validity; thus, the Court declined to decide on the separate question now.

Jurisdiction
Australia
Judgment Date
20 October 2020
Procedural Posture
Application for Leave to Appeal in Representative Proceedings / Application for Leave to Appeal – Court of Appeal (post Separate Questions, Primary Decision Nswsc)
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['public Hospital Administration' 'guarantees for Medicare Ineligible Patients' 'statutory Construction—health Services Act' 'unconscionable Conduct' 'misrepresentation' 'validity of Policy Directives' 'discretion to Determine Separate Questions']
['health Law' 'administrative Law' 'contract Law' 'consumer Law'] ['public Hospital Administration' 'guarantees for Medicare Ineligible Patients' 'statutory Construction—health Services Act' 'unconscionable Conduct' 'misrepresentation' 'validity of Policy Directives' 'discretion to Determine Separate Questions']

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Procedural Posture

Application for Leave to Appeal in Representative Proceedings / Application for Leave to Appeal – Court of Appeal (post Separate Questions, Primary Decision Nswsc)

Legal Issues

  1. 1 ['Whether policy directives requiring guarantees from third parties for Medicare ineligible patients are invalid as repugnant to Health Services Act 1997 (NSW) s 71' 'Whether there is utility in determining the validity of the directives as a separate question' 'Whether the guarantees are unenforceable, invalid, or unjust under various statutory or common law grounds']

Ratio Decidendi

The application for leave to appeal was refused as the issue of any repugnancy or invalidity in the impugned parts of the directives is not dispositive or necessary to resolve the enforceability of guarantees at this stage; determination of utility weighed against granting leave, particularly where severance is possible and further evidence may be led at final hearing. None of the grounds for unenforceability of guarantees depend on the directives’ validity; thus, the Court declined to decide on the separate question now.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['Dismiss the summons seeking leave to appeal.' "Order applicants pay respondents' costs of the application on the ordinary basis."]