Monash IVF Pty Ltd v Dr Lynn Burmeister
[2017] NSWSC 849
•23 June 2017
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Monash IVF Pty Ltd v Dr Lynn Burmeister [2017] NSWSC 849 Hearing dates: 23 June 2017 Decision date: 23 June 2017 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: Directions. Matter fixed for final hearing to commence on 17 July 2017 and appropriate procedural steps ordered
Catchwords: CASE MANAGEMENT – directions hearing – where proceedings commenced urgently to enforce a restraint of trade covenant – where proceedings were commenced in Victoria by the defendants earlier seeking a bare negative declaration – first return of summons in this Court – no application for stay or transfer and none foreshadowed – application that Court simply make no directions – appropriateness of fixing matter for final hearing in this Court and otherwise making directions Legislation Cited: Civil Procedure Act 2005 (NSW)
Supreme Court Act 1986 (Vic)Cases Cited: Kawasaki Steel Corporation v Owners and Others Interested in the Ship “Daeyang Honey” (1993) 120 ALR 109 Category: Procedural and other rulings Parties: Monash IVF Pty Ltd - First Plaintiff
Monash IVF Group Limited - Second Plaintiff
Dr Lynn Burmeister - First Defendant
Ippoliti Pty Ltd - Second DefendantRepresentation: Counsel:
Solicitors:
A.S. Bell SC with Y Shariff and V. Bulut - Plaintiffs
J. B. Davis QC with E.L. Murphy - Defendants
Clayton Utz - Plaintiffs
M&K Lawyers - Defendants
File Number(s): 2017/185462
EX TEMPORE Judgment
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HIS HONOUR: It is unusual for the Court to give reasons at all, let alone reasons as extensive as these, for the making of directions. Why it is, in my view, necessary and appropriate to do so here, will shortly emerge.
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The plaintiffs Monash IVF Pty Limited (Monash) provide fertility services. The first defendant, Dr Lynn Burmeister (the doctor) is a gynaecologist and fertility specialist. The second defendant is her company. The doctor was one of the equity holders in a clinics enterprise. Monash acquired her interest on terms which included her giving covenants in restraint of trade.
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The doctor has apparently made it clear that she intends to engage in conduct which will, if the covenants bind her, apparently breach them. Her position is that the covenants are unenforceable.
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As is often the case at directions hearings, the Court is informed of things from the bar table which, especially if they are not disputed, are taken into account in making appropriate directions. That has happened here.
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On 21 June 2017, Monash sought and I gave leave to it to issue and serve, on short notice, proceedings to enforce the restraint. I made the Summons returnable in the first instance this morning. When that application was made, I was informed that the doctor had on 16 June 2017 herself commenced proceedings in the Employment and Industrial List of the Supreme Court of Victoria for a bare declaration:
“…that the Restraint Provision is unenforceable.”
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I was also informed that in accordance with the practice in that Court, a Summons had been filed seeking directions which Summons was returnable on Monday 26 June 2017. Those directions apparently include one for Monash to bring any claim or seek interlocutory or final injunctive relief.
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It is apparent that the two sets of proceedings significantly overlap.
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This morning, in another unusual feature, the Court had the benefit at a directions hearing of the appearance of senior counsel on both sides.
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Monash seeks the fixing of an early hearing date (even a provisional one) and appropriate directions to get the matter ready. It puts that its proceedings have been regularly commenced and it seeks the expedition which this Court can, and is expected to give, commercial disputes of substance. It argues that the party seeking to enforce the restraint, is the natural moving party. It says that it called for undertakings from the doctor on pain of instituting proceedings, and that before it could institute them, the doctor commenced in Victoria, in a clear case of “forum shopping”. I was referred to the decision of Gummow J in Kawasaki Steel Corporation v Owners and Others Interested in the Ship “Daeyang Honey” (1993) 120 ALR 109 at 114 on this topic, in the context of seeking negative declaratory relief.
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The doctor, on the other hand, seeks nothing more than that no directions be made, and that these proceedings be adjourned to some date in the future, but at least until after the expected directions hearing next Monday before an Associate Judge of the Victorian Court.
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She puts that she commenced first and regularly invoked the jurisdiction of that Court and that for this Court to make directions in these proceedings, especially to fix the matter for hearing, is to fail to afford appropriate comity to that Court and impermissibly to interfere with its processes. The term “abuse of process” was mentioned, as was breach of the Civil Procedure Act 2005 (NSW) and the Victorian equivalent. In approaching the Court as it did, and obtaining a quick return date, she suggests that Monash is the forum shopper.
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I was informed that those acting on behalf of the doctor had today (during this directions hearing) obtained information from the Associate to the learned Judge in charge of the Employment and Industrial List in Victoria, that the resources of that List could accommodate a two to four day hearing of a case of this type in mid-July to late-August this year. That information then was refined to be that apparently the learned Judge would need to check a few things before that could occur.
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The difficulty here for the doctor is that there is no application, and none is foreshadowed, in this Court for a stay or transfer to Victoria or for any appropriate interlocutory relief affecting the due prosecution of the proceedings in this Court. Had such an application been made, different considerations would have applied. There is merely a request to the Court to desist from making directions, as it would normally do. A directions hearing is not an appropriate vehicle to determine any questions of forum non conveniens, abuse of process, or the like.
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I consider that the Victorian Court would approach the matter in the same way as I intend to.
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There is, it seems to me, no reason why directions should not be made and the case not fixed for final hearing in this Court.
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In circumstances where there is no application before the Court, I would not wish the making of directions and the fixing of a hearing to be seen, and I should stress it is not intended to, disrespect the Victorian Court in any way, or preclude it from making any order which it, in its discretion considers appropriate in the circumstances which have occurred.
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My proceeding as I have done is a function of the fact that the doctor has not sought to motivate her objection in the traditional way.
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I will fix the matter for hearing to commence on 17 July 2017 on an estimate of three days, noting that Monash’s estimate is two days and the doctor’s estimate is four days and that the practice in this List is that proceedings, whatever the estimate, run to their conclusion. I took the implication from the information concerning the enquiry made in Victoria that the doctor considered those dates to be appropriate, and would be ready.
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I observe, although it plays no part in today’s outcome, that the contractual arrangements include a provision that they are governed by the laws of this State and a submission to the non-exclusive jurisdiction of the Courts of this State.
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Neither party suggested that the case should not be brought to urgent hearing. On behalf of the doctor, it was properly put that every endeavour would be made to comply with directions to do so.
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I record that these directions in no way restrict the ability of any party to bring any appropriate motion before this Court at any time.
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The Court made the following orders and gave the following directions:
The proceedings are set down for hearing on an estimate of three days to commence on 17th July 2017.
The plaintiffs are to serve all affidavit evidence upon which they rely in chief by 10.00am on 27th June 2017.
The defendants are to serve all evidence upon which they intend to rely by 7th July 2017. Any evidence in reply is to be served by 13th July 2017.
The parties are to endeavour to agree a statement of agreed issues. If that has not been agreed upon by 7th July 2017, the defendants are to serve, together with their evidence, their Commercial List Response and any Cross-Claim. And in that event, the plaintiffs are to serve any Reply and any Response to any Cross-Claim, together with their evidence, on 13th July 2017.
On 14th July 2017 the parties are to provide me with a Court Book containing the following: the affidavits intended to be relied upon by the parties (in a section without the exhibits); a separate section containing the pleadings and statement of issues (if any) which the parties have agreed; and a section containing all documents intended to be relied upon by any party. They are to be chronologically sequenced as far as practicable and sequentially numbered without tabs.
The parties are to exchange brief written submissions not exceeding three pages and they are to be contained in the Court Book.
I give the parties leave to make returnable on 6th July 2017 a Motion provided it is filed and served by Wednesday 28th June 2017. Any material in response is to be filed and served by 3rd July 2017. The parties are to provide my Associate with a brief written outline not exceeding two pages by 4th July 2017.
The parties have liberty to apply on six hours’ notice to be given in business hours.
I reserve the costs of today.
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His Honour informed the parties that he expected them to cooperate with respect to disclosure of documents and that they are to exercise liberty to apply as soon as it became apparent that the intervention of the Court may be required.
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Amendments
27 June 2017 - Spelling correction
26 June 2017 - Amendment to Orders
Decision last updated: 27 June 2017
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