Green v Healthscope Limited t/as The Hills Private Hospital

Judgment INTRODUCTION 1Before the Court are two notices of motion. 2The first is a notice of motion filed by the plaintiff, seeking an order that time be extended for service of the statement of claim on the second defendant. In support of that motion the plaintiff read, without objection, the affidavit of Paul Kenneth Creed sworn on 27 September 2013. 3The second is a notice of motion filed by the second defendant seeking that the proceedings be dismissed. In support of that motion the second defendant read, also without objection, affidavits of: (i)Jelena Zmiric (undated); (ii)Michelle Anne Stares (undated); (iii)Samantha Kennedy sworn on 5 November 2013.

THE FACTS 4The following summary of the facts is drawn largely from the affidavit of Mr Creed. Since 2012, Mr Creed has had the day to day carriage of the matter on the plaintiff's behalf, under the supervision of Lee Hagipantelis. No affidavit has been filed by Mr Hagipantelis. To the extent that Mr Creed deposed to matters which took place prior to the date on which he assumed carriage of the matter, he has done so by reference to his review of the relevant file. 5The plaintiff filed a statement of claim in the District Court on 25 January 2012, bringing proceedings against four defendants seeking damages for negligence. In short, it is alleged that in late 2008 and early 2009, the plaintiff attended upon the premises of the second defendant suffering from (inter alia) weakness and numbness in the right upper limb. It is alleged that on those occasions the plaintiff was in fact suffering from episodic transient ischemia which, it is alleged, is a precursor to stroke or infarct. 6The plaintiff alleges that she later suffered a stroke and that had her signs and symptoms been properly identified and diagnosed on those occasions upon which she attended at the second defendant's premises, such stroke would not have occurred. Various particulars of negligence are pleaded, including a failure to properly diagnose her condition. 7Prior to filing the statement of claim, a search of the business name "The Hills Private Hospital" ("the hospital") was conducted by the plaintiff's solicitors. It stated that the business was carried on from an address in Baulkham Hills. However, it also stated that the corporation which carried on the business, Healthscope Pty Limited, had its registered office in Melbourne. Notwithstanding that, the statement of claim was delivered to the hospital premises. Annexed to the affidavit of Mr Creed is an affidavit of the process server, Mr Koopstra, who delivered the statement of claim. According to that affidavit, at the time of attending the premises with the statement of claim Mr Koopstra asked an employee of the second defendant, identified as Ms Zmiric: "Is this the company registered office of Healthscope Pty Limited trading as the Hills Private Hospital and are you an employee of this office who is authorised to accept service of these documents?" 8According to Mr Koopstra, Ms Zmiric responded: "Yes, it is. Yes I am". 9In her affidavit (commencing at paragraph 9) Ms Zmiric has stated that she has no specific recollection of being given the statement of claim by Mr Koopstra, and has no specific recollection of the conversation to which Mr Koopstra deposed as set out in [8] and [9] above. 10Ms Kennedy, the Executive Personal Assistant to the General Manager of the hospital, stated (at paragraph 6 of her affidavit) that she had no recollection of receiving the statement of claim and in fact has never received such a document in her present role, or in her previous role as Front Office Manager. Similarly Ms Stares, who was the General Manager of the hospital in February 2012, stated (at paragraph 5 of her affidavit) that she has no recollection of ever seeing the statement of claim and that had it come to her notice she would have brought it to the attention of the appropriate person(s). 11On 14 February 2012, a letter under the hand of Mr Hagipantelis was sent to the hospital serving two medical reports. It should be noted that this letter, and the various other letters to which I have referred below as having been sent by Mr Hagipantelis to the hospital, were all headed "RE: LIZA GREEN DATE OF ACCIDENT: 2 JANUARY 2009" 12Given the cause of action brought by the plaintiff, the reference to "date of accident" was apt to confuse. 13No response was forthcoming from the hospital to the letter of 14 February 2012. 14On 26 April 2012 a pre-trial conference was held at the District Court. There was no appearance on behalf of the second defendant on that occasion. Accordingly, on 4 May 2012 a letter under the hand of Mr Hagipantelis was sent to the hospital advising that the pre-trial conference had been adjourned until 11 May 2012. Once again, there was no response forthcoming from the hospital to that letter. 15At the adjourned pre-trial conference on 11 May 2012 there was again no appearance on behalf of the second defendant. A third letter under the hand of Mr Hagipantelis, dated 16 May 2012, was sent to the hospital. The letter enclosed a copy of the affidavit of service of the statement of claim, and advised that the pre-trial conference had been further adjourned to 12 June 2012. 16On 24 May 2012 Ms Kennedy forwarded a letter to the plaintiff's solicitors, marked for the attention of Mr Hagipantelis. Having commenced with the salutation "Dear Lee", it read as follows: "As per our hospital records, Liza Green (File No. LBH: Lee Hagipantelis:KMA:022025) has not been a patient here at the current (sic) The Hills Private Hospital. We reopened as a Rehabilitation and Mental Health Facility in September 2009. All previous The Hills Private Hospital patient records are now held at Norwest Private Hospital - 11 Norbrik Drive, BELLA VISTA 2153 - 02 8882 8882. For any further information, please do not hesitate to contact me". 17Ms Kennedy's letter made no reference to the proceedings, the statement of claim, or the pre-trial conferences which had taken place prior to that time. It was obviously non-responsive to the letters of Mr Hagipantelis of 14 February, 4 May and 16 May. Despite that, no attempt was made, either by Mr Hagipantelis or by Mr Creed, to make contact with Ms Kennedy, or anyone else at the hospital. 18At the pre-trial conference on 12 June 2012 there was, for the third successive time, no appearance on behalf of the second defendant. Orders were made facilitating (inter alia) service of the plaintiff's evidentiary material and the matter was listed for a directions hearing on 11 September 2012. On 19 June 2012 Mr Hagipantelis sent a further letter to the hospital advising of the orders which had been made. 19On 28 June 2012 another letter was sent by Ms Kennedy to Mr Hagipantelis. It was in identical terms to the letter of 24 May 2012 and, significantly, it returned Mr Hagipantelis' letter of 19 June 2012 to him. Even in the face of that returned correspondence, no contact was made with the hospital by anyone on the plaintiff's behalf. 20The affidavit of Mr Creed is silent as to what occurred between June 2012 and March 2013. It was within that period, namely on 25 July 2012, that the statement of claim expired. 21On 8 March 2013, Mr Creed sent a letter to the hospital serving material in support of the plaintiff's claim for damages for domestic services. Sending that letter completely ignored what had previously occurred in respect of the correspondence which had passed between Ms Kennedy and Mr Hagipantelis. In particular, it ignored the fact that Mr Hagipantelis' correspondence had been returned to him by Ms Kennedy. Ms Kennedy responded to Mr Creed's letter by letter of 14 March 2013. The terms of that letter (under cover of which Mr Creed's letter of 8 March 2013 was also returned) were identical to those of her letters of 24 May 2012 and 28 June 2012. None of this prompted Mr Creed to make contact with Ms Kennedy, or anyone else at the hospital. 22A directions hearing was then held in the District Court on 10 April 2013. According to the affidavit of Mr Creed, a representative of one of the other defendants indicated on that occasion that documents produced under subpoena had "indicated that there was a change in the corporate entity owning and operating The Hills Private Hospital". Although Mr Creed does not expressly say so, I infer that the suggestion of a change in the corporate entity caused him to make further enquiries as to that issue. 23On 28 May 2013, Mr Creed obtained an extract of the business name "The Hills Private Hospital", along with an extract pertaining to Healthscope Pty Limited. Mr Creed does not specify precisely when it was that he became aware of the suggestion that there had been a change in the relevant corporate entity, although I infer it was on, or shortly after, the directions hearing of 10 April 2013. Why further documentation was not obtained until 28 May 2013, some six weeks later, is not explained. In any event, the documentation obtained by Mr Creed contained precisely the same information as that which was already in his possession, namely that the business of the hospital was conducted by a company whose registered office was in Melbourne. 24 On 18 June 2013, Mr Creed forwarded a letter to Healthscope Pty Limited at its registered office in Melbourne, under cover of which he served a number of documents, including the statement of claim. His affidavit is silent on what it was that prompted him to do so. If it was the case that he did so as the result of a close perusal of the documents obtained on 28 May 2013 (which, as I have said, contained information identical to that which was already in his possession) his affidavit is silent on why it was that almost three weeks elapsed before he sent the letter of 18 June 2013. In any event, following that letter, the second defendant filed a notice of appearance on 20 June 2013. The second defendant's solicitor also advised that instructions were being sought as to the issue of service. 25An order was subsequently made transferring the proceedings to this court. On 27 August 2013, a timetable was agreed upon by all parties, including the second defendant, for the service of particulars and evidentiary statements. 26The plaintiff's notice of motion was not brought until 17 September 2013, some three months after Mr Creed's letter of 18 June 2013. Even then, the motion was brought in response to the second defendant's motion, filed on 10 September, seeking that the proceedings be dismissed. 27The second defendant does not dispute that service was effected upon it on 18 June 2013. However, this was well outside the time limit of six months imposed by r. 6.2(4)(b)(ii) of the Uniform Civil Procedure Rules ("the rules"). The operation of that rule required service of the statement of claim to be effected by 25 July 2012. Accordingly, as at 18 June 2013, the statement of claim was not valid for service.