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Health & Aged Care News Alert: National Disability Insurance Scheme relevant to interim payment application

News Alert 11 December 2015

Eastbury v Genea Limited (formerly known as Sydney IVF Limited) [2015] NSWSC 1834 is an interesting interlocutory decision regarding an interim payment application (plus late joinder of a new defendant and related limitation question).

The plaintiffs sought an interim payment under section 82 of the Civil Procedure Act (NSW).  This was opposed by the defendant (Genea) on the basis that it denied liability for the claim.  Relying on Forster v Hunter New England Area Health Service (2010), the Supreme Court found  it likely that the plaintiffs would succeed at trial in obtaining judgment for substantial damages against the defendant (at [56]).  Genea was thus ordered to make an interim payment of $100,000 to the plaintiffs.

In argument against the interim payment, the defendant said there was insufficient evidence of need for an interim payment given the possibility that many of the services claimed will be covered by the National Disability Insurance Scheme (NDIS) (at [57]).  The plaintiffs'  affidavit evidence was that their sons would be transitioned to a new program under the NDIS 'in the near future'.  After considering the expenses likely to be incurred by the plaintiffs, the Court commented that 'while... [the] NDIS will offer some benefits, it is not known at this stage what they will be.'

According to its website, roll out of the full NDIS scheme in New South Wales, Victoria, Queensland, South Australia, Tasmania and the Northern Territory will start progressively from July 2016.  Until then it remains unclear the full extent to the benefits that will be available to participants.
 


Don Munro, Partner
Sydney

News Alert 11 December 2015
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