Monash IVF Pty Ltd v Dr Lynn Burmeister [2017] NSWSC 849

Monash IVF Pty Ltd v Dr Lynn Burmeister [2017] NSWSC 849

Because the defendants made no application, and foreshadowed none, for a stay, transfer to Victoria or other interlocutory relief affecting the prosecution of the NSW proceedings, the Court should not simply desist from making directions. A directions hearing was not the proper vehicle to determine forum non conveniens, abuse of process or similar objections, and there was no reason not to fix the matter for final hearing and make procedural directions.

Jurisdiction
Australia
Judgment Date
23 June 2017
Procedural Posture
Case Management Directions Hearing in Proceedings Commenced Urgently to Enforce a Restraint of Trade Covenant / First Return of Summons; Directions Made and Matter Fixed for Final Hearing
Outcome
Directions made. Matter fixed for final hearing to commence on 17 July 2017, with procedural steps ordered and costs reserved.
Legal Topics
['case Management' 'directions Hearing' 'restraint of Trade' 'overlapping Proceedings' 'forum Shopping' 'comity' 'stay or Transfer']
['civil Procedure' 'equity' 'commercial Law'] ['case Management' 'directions Hearing' 'restraint of Trade' 'overlapping Proceedings' 'forum Shopping' 'comity' 'stay or Transfer']

Case Brief

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Procedural Posture

Case Management Directions Hearing in Proceedings Commenced Urgently to Enforce a Restraint of Trade Covenant / First Return of Summons; Directions Made and Matter Fixed for Final Hearing

Legal Issues

  1. 1 ['Whether the Court should make directions and fix an early final hearing where overlapping Victorian proceedings had earlier been commenced seeking a negative declaration that the restraint provision was unenforceable.' 'Whether, in the absence of any application or foreshadowed application for a stay, transfer or interlocutory relief, the proceedings should simply be adjourned or no directions made out of comity to the Victorian Court.' 'Whether a directions hearing was an appropriate vehicle to determine questions of forum non conveniens, abuse of process or similar objections.']

Ratio Decidendi

Because the defendants made no application, and foreshadowed none, for a stay, transfer to Victoria or other interlocutory relief affecting the prosecution of the NSW proceedings, the Court should not simply desist from making directions. A directions hearing was not the proper vehicle to determine forum non conveniens, abuse of process or similar objections, and there was no reason not to fix the matter for final hearing and make procedural directions.

Court Disposition

Directions made. Matter fixed for final hearing to commence on 17 July 2017, with procedural steps ordered and costs reserved.

Orders

  • ['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...