Cleary v Kremer [2016] NSWSC 1781

Supreme Court New South Wales

Medium Neutral Citation: Cleary v Kremer [2016] NSWSC 1781 Hearing dates: 26 October 2016; Further written submissions 14 November 2016 and 15 November 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Common Law Before: Bellew J Decision: 1. The matter is listed for directions before me at 9.45 am on 3 February 2017.

2. The parties are to prepare Short Minutes giving effect to the conclusions reached in this judgment.

3. Absent agreement as to costs, the parties are to forward written submissions to my Associate, not exceeding 2 pages in length, by 5.00 pm on 1 February 2017. Catchwords: PRACTICE AND PROCEDURE – Service of Statement of Claim – Where defendant was a resident of the United Kingdom – Whether Statement of Claim validly served under Australian or English law

PRACTICE AND PROCEDURE – Where order had been made extending the time for service of Statement of Claim – Where application for that order had been made at a time when the Statement of Claim had become stale - Application by defendant to discharge that order - No proper explanation by the plaintiff for the delay in making application for the original order for extension - Where plaintiff's prosecution of proceedings was fundamentally at odds with the just, quick and cheap resolution of proceedings

PRACTICE AND PROCEDURE – Where defendant was a medical practitioner - Where plaintiff claimed damages for breach of contract and negligence arising out of surgical procedures performed by the Defendant – Where all of the relevant acts and omissions bearing upon the issue of liability occurred in England – Consequent necessity to apply English law to the determination of that issue - Where the majority of lay witnesses going to the question of liability were located in England – Where the expert evidence was likely to be adduced from witnesses in England – Where documentary evidence located in England – Where there would be significant disruption to the defendant's practice if the matter were litigated in Australia – Supreme Court of NSW an inappropriate forum Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 Brix-Neilsen v Oceaneering Australia Pty Limited [1982] 2 NSWLR 173 Challenor v Douglas [1983] 2 NSWLR 405 Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 Keevers v O'Neill (1977) 30 FLR 300; [1977] 1 NSWLR 587 Kleinwort Benson Limited v Barbrak Limited [1987] AC 597 McGregor v Potts and ors (2005) 68 NSWLR 109; [2005] NSWSC 1098 Murrills v Berlanda and anor. [2014] EWCA Civ 6 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32 Pell v Hodges [2007] NSWCA 234 Tolcher v Gordon (2005) 53 ACSR 442; [2005] NSWCA 135 Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538; [1990] HCA 55 Weston v Publishing and Broadcasting Limited (2011) 83 ACSR 206; [2011] NSWSC 433 Category: Principal judgment Parties: Shannon Peta Cleary – Plaintiff Dr Dirk Kremer – Defendant Representation: Counsel: D J Hooke SC and S Holmes – Plaintiff D Lloyd – Defendant