Green v Healthscope Limited t/as The Hills Private Hospital [2014] NSWSC 43

Green v Healthscope Limited t/as The Hills Private Hospital [2014] NSWSC 43

The second defendant's notice of appearance did not waive its objection because the objection concerned the statement of claim not being valid for service when served, not the fact or manner of service. Rules 10.20 and 10.14 did not overcome that invalidity, and although steps had been taken to bring the statement of claim to the second defendant's notice, discretion under r. 10.14 was not exercised because the plaintiff's solicitors failed to address obvious issues about the second defendant's knowledge of the proceedings. An extension under r. 1.12 was refused because, despite the likely limitation consequences and absence of demonstrated prejudice, the plaintiff provided no...

Jurisdiction
Australia
Judgment Date
13 February 2014
Procedural Posture
Practice and Procedure Service of Statement of Claim / Plaintiff's Notice of Motion for Extension of Time for Service and Second Defendant's Notice of Motion Seeking Dismissal
Outcome
The plaintiff's notice of motion was dismissed and the proceedings against the second defendant were dismissed.
Legal Topics
['service of Originating Process' 'extension of Time for Service' 'waiver of Objection to Service' 'substituted and Informal Service' 'dismissal of Proceedings']
['civil Procedure'] ['service of Originating Process' 'extension of Time for Service' 'waiver of Objection to Service' 'substituted and Informal Service' 'dismissal of Proceedings']

Case Brief

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Procedural Posture

Practice and Procedure Service of Statement of Claim / Plaintiff's Notice of Motion for Extension of Time for Service and Second Defendant's Notice of Motion Seeking Dismissal

Legal Issues

  1. 1 ['Whether the second defendant waived any objection to service by filing a notice of appearance under r. 10.19 of the Uniform Civil Procedure Rules 2005.' 'Whether service of the statement of claim was deemed to have been effected under r. 10.20 or r. 10.14 of the Uniform Civil Procedure Rules 2005.' 'Whether the Court should extend time for service of the statement of claim under r. 1.12 of the Uniform Civil Procedure Rules 2005.']

Ratio Decidendi

The second defendant's notice of appearance did not waive its objection because the objection concerned the statement of claim not being valid for service when served, not the fact or manner of service. Rules 10.20 and 10.14 did not overcome that invalidity, and although steps had been taken to bring the statement of claim to the second defendant's notice, discretion under r. 10.14 was not exercised because the plaintiff's solicitors failed to address obvious issues about the second defendant's knowledge of the proceedings. An extension under r. 1.12 was refused because, despite the likely limitation consequences and absence of demonstrated prejudice, the plaintiff provided no...

Court Disposition

The plaintiff's notice of motion was dismissed and the proceedings against the second defendant were dismissed.

Orders

  • ['The notice of motion filed by the plaintiff on 17 September 2013 is dismissed.' 'The proceedings brought by the plaintiff against the second defendant are dismissed.' 'The Court will hear the parties on the question of costs.']