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 Solicitors: Beilby Poulden Costello – Plaintiff Kennedys – Defendant File Number(s): 2013/254605 Publication restriction: Nil Judgment INTRODUCTION 1. By an amended notice of motion dated 14 September 2016 and filed in court on 26 October 2016 ("the motion") the defendant, without entering an appearance or submitting to the jurisdiction of the Court, seeks the following orders: 1. a declaration pursuant to r. 12.11(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) ("the Rules") that the originating process issued in these proceedings has not been duly served upon him; 2. in the alternative, an order pursuant to r. 12.11(1)(b) of the Rules setting aside the service of the originating process upon the defendant; 3. an order pursuant to r. 12.11(1)(e) of the Rules discharging the order made on 12 June 2015 that the time for service of the statement of claim be extended; 4. an order pursuant to r. 12.11(1)(a) of the Rules setting aside the originating process; 5. a declaration pursuant to r. 12.11(1)(g) of the Rules that the Court has no jurisdiction over the defendant in respect of the subject matter of the proceedings; 6. in the alternative, an order pursuant to r. 12.11(1)(h) of the Rules declining to exercise jurisdiction in the proceedings; 7. in the alternative, an order that the proceedings be permanently stayed; 8. costs; and 9. any such relief as the Court deems appropriate. 1. The orders sought are opposed by the plaintiff. 2. In support of the orders sought the defendant read the following affidavits: 1. Peter Craney of 23 March 2016; 2. Peter Craney of 11 May 2016; and 3. Peter Craney of 25 August 2016. 1. In addition, the defendant relied on two expert opinions of Paul Dean, Barrister-at-Law of the London Bar, dated 12 May 2016 and 2 November 2016. The opinions of Mr Dean go to various matters of English procedural law. I will return to aspects of those opinions in due course. 2. The plaintiff read the following affidavits: 1. Courtenay Poulden of 21 October 2014; 2. Courtenay Poulden of 28 May 2015; 3. Courtenay Poulden of 26 October 2016; 4. Vincent Severino of 7 December 2015; and 5. Shannon Peta Cleary of 4 July 2016. 1. It should be noted that the affidavits of Mr Poulden of 21 October 2014 and 28 May 2015 were in fact annexed to the first of Mr Craney's affidavits. FACTUAL BACKGROUND 1. On 21 August 2013 the plaintiff, who is a resident of NSW, filed a statement of claim in which she pleaded a case in negligence and breach of contract against the defendant. In short, the plaintiff alleges that the defendant held himself out to be, and was in fact, a qualified medical practitioner specialising in cosmetic surgery, who practiced in London. It is the plaintiff's case that she consulted the defendant for advice in relation to, and in contemplation of, surgical procedures which he subsequently performed, and which involved liposuction, injection and surgical correction to the plaintiff's stomach area, thighs and buttocks. 2. The plaintiff alleges that in breach of his contract with her, the defendant failed to (inter alia) exercise reasonable skill and care in the conduct of those surgical procedures. She further alleges that as her treating surgeon, the defendant owed her a duty to (inter alia) exercise due and proper care and skill in carrying out any surgical procedure, and in warning, informing and advising her of any material risk which was inherent in such procedure. The plaintiff alleges that in breach of that duty, the defendant failed to advise her that there was a material and inherent risk in the procedures which were subsequently carried out, and that he failed to exercise reasonable skill and care in performing them. In particular, the plaintiff alleges that her right buttock was deformed by one procedure, by reason of which she has suffered loss and damage. 3. There is no issue that pursuant to r. 6.2(4)(a) of the Rules the time for service of the statement of claim on the defendant was six months from the date of filing. Accordingly, the statement of claim was required to be served by 21 February 2014. There is no also issue that the statement of claim was not served by that time, nor is there any issue that the plaintiff did not seek an extension of time for the service of the statement of claim before the expiry of that six month period. In these circumstances, the statement of claim became stale on 22 February 2014. 4. On 12 May 2014, Mr Poulden, the plaintiff's solicitor, purported to serve the statement of claim on the defendant by mail. In his affidavit of 26 October 2016 Mr Poulden stated (inter alia) as follows: 2. On 12 May 2014 at 9 Harley Street London, United Kingdom, I served (the defendant) with the following documents – a. Statement of Claim filed 21 August 2013. b. Report of Dr Michael McGlynn dated 24 April 2014. c. Clinical notes of the practice at 111 Harley Street London. 3. I served the documents by prepaid post. 4. The documents were not returned to me. 1. There was no response from the defendant to this purported service. There was a further attempt by Mr Poulden to serve the statement of claim by post on 30 June 2014. Again, there was no response from the defendant. 2. On or about 13 August 2014 the statement of claim was provided to the Principal Registrar of the Court to effect service on the defendant pursuant to r. 11A.4 of the Rules. The Principal Registrar of the Court wrote to Mr Poulden on 22 August 2014 and stated: The following documents have been received and forwarded to the Department of Foreign Affairs and Trade for service: 1. Request for Service Abroad of Judicial Documents and Certificate. 2. Summary of Document to be Served. 3. Statement of Claim filed on 21/8/2013. 1. On 30 October 2014 the Principal Registrar wrote to Mr Poulden stating: I refer to your request for service in United Kingdom and return the relevant documents, as they were unable to be served on Dr Dirk Dremer (sic) of Harley Street Aesthetics. The bailiff was unable to serve the documents in person and cannot leave the documents at work/Commercial place of the defendant. 1. At some time between about 30 October 2014 and 29 May 2015 (it is not clear precisely when) the plaintiff's solicitor apparently became aware that the defendant was working as a medical practitioner in the United Arab Emirates. On 29 May 2015 the plaintiff brought an ex-parte application in this Court seeking an order that the time for service of the statement of claim be extended to 30 September 2015. The affidavit of Mr Poulden of 28 May 2015 was read in support of that application. To the extent that it is relevant for present purposes, that affidavit stated the following: 2. The Statement of Claim in this matter was issued on 21 August 2013. 3. At the time of the filing of the statement of claim the Defendant was a medical practitioner working in the United Kingdom. 4. I attempted service on the defendant by mail on 12 May 2014 and 30 June 2014. I received no response. 5. The plaintiff attempted service of the Statement of Claim in accordance with Rule 11a.4(2)(sic) of the Uniform Civil Procedure Rules following a request made on 14 August 2014. 6. On 30 October 2014 I was advised that the defendant could not be served with the statement of claim. 7. I have subsequently received advice that the Defendant is now practising at the American British Surgical and Medical Centre in Dubai. I have identified the relevant address as being Mezzanine Floor, 21st Century Building, Abu Bakar Al Siddique Road, Deira, Dubai. 8. The United Arab Emirates is not a signatory to the convention on the service abroad of judicial and extra judicial documents in Civil or Commercial matters. 9. I have been able to arrange by other means to have service of the statement of claim affected (sic) personally on the Defendant in Dubai. 10. The statement of claim is now stale. 1. On 12 June 2015, an order was made pursuant to r. 1.12 of the Rules that the time for service of the statement of claim be extended up to and including 30 September 2015. Notwithstanding the contents of para. 9 of Mr Poulden's affidavit, there is no evidence of any personal service being effected on the defendant in Dubai. However on 24 September 2015 Vincent Severino, an investment banker who apparently resided in London, attended what I gather are the defendant's consulting rooms at Harley Street, London. In his affidavit of 7 December 2015, Mr Severino stated (inter alia) the following: 3. I entered the medical surgery and I asked the lady at reception if she was the receptionist for Dr Dirk Kremer. She responded, "Yes". 4. I handed the receptionist an envelope containing the documents comprised in Annexed (sic) "A" hereof and asked her if she could pass the envelope to Dr Kremer. She responded, "yes I will". 5. I then handed the envelope to her and left the premises. 6. At approximately 6:20pm I telephoned the surgery of Dr Kremer. I said to a female person who picked up the telephone: - "Were you the receptionist who received the yellow envelope containing legal documents for Dr Kremer?" She responded: - "Yes". 7. I said to her, "I am the person who handed you the envelope". I then said, "what is your name?". She responded, "Jennifer Farleigh". 8. I then said, "Are you the personal assistant of Dr Kremer?" She responded, "I am not his PA. His PA is Sharon Pattison". 9. She then said, "the envelope was handed to Dr Kremer this afternoon". THE QUESTIONS ARISING ON THE MOTION 1. Having regard to the way in which the submissions of the parties were developed at the hearing of the motion, the following questions arise for determination: 1. Has the motion been filed out of time? 2. If so, should I grant the defendant, in the exercise of my discretion, an extension of time in which to file the motion? 3. Should the extension order of 12 June 2015 be discharged? 4. What is the appropriate forum for the proceedings? 5. Has the statement of claim been properly served? Has the motion BEEN filed out of time? Submissions of the plaintiff 1. Senior counsel for the plaintiff submitted that having regard to the provisions of r. 12.11(2) the Rules, the motion had been filed substantially out of time and should be dismissed. 2. It was submitted that the period permitted under the Rules for the filing of the motion was 28 days after service of the statement of claim and that the motion had not been filed until almost 2 years after the statement of claim was served by Mr Poulden on the defendant by post on 12 May 2014. It was further submitted that even if the date of service was taken to be 24 September 2015 (that being the date on which Mr Severino attended the defendant's consulting rooms in London and left a copy of the statement of claim with the receptionist) the motion had been filed after the lapse of more than six times the permitted period. 3. Senior counsel conceded that in the event that I concluded that the motion had been filed out of time, I retained a discretion to make an order extending the period. However he submitted that absent consent or clear evidence to support an extension of time after a lapse of such a long period, a rule such as this should be followed according to its terms: Keevers v O'Neill (1977) 30 FLR 300; [1977] 1 NSWLR 587 at 591 per Ash J. 4. It was submitted that in all of these circumstances, the motion should be dismissed. Submissions of the defendant 1. Counsel for the defendant submitted that in a case where the very fact of service was in issue, it would make no sense for r. 12.11(2) to be read in the way for which the plaintiff contended. Moreover, counsel submitted that the opinions of Mr Dean established that neither the purported service of the statement of claim by post, nor its delivery by Mr Severino to the defendant's surgery in 2015, constituted valid service. In these circumstances, it was submitted that time had not commenced to run. 2. Counsel for the defendant emphasised that neither Mr Dean's expertise, nor his opinions, had been the subject of any objection or challenge. He submitted that the effect of those opinions was that service had not been properly effected according to English law, and that accordingly there was no time limit applicable to the filing of the defendant's motion. Consideration 1. In considering this question there are a number of provisions of the Rules which are relevant. 2. Firstly, r. 1.13 is in the following terms: Fixing times If no time is fixed by these rules, or by any judgment or order of the court, for the doing of any thing in or in connection with any proceedings, the court may, by order, fix the time within which the thing is to be done. 1. Rule 6.9 is in the following terms: How appearance entered (1) A defendant may enter an appearance in proceedings by filing a notice of appearance. (2) A defendant who files a defence in proceedings is taken to have entered an appearance in the proceedings. 1. Rule 6.10 is in the following terms: Time for appearance (1) For the purposes of these rules, the time limited for a defendant to enter an appearance (whether by filing a notice of appearance in accordance with this Division or by filing a defence in accordance with Division 4) is: (a) in the case of proceedings commenced by statement of claim: (i) 28 days after service on the defendant of the statement of claim or such other time as the court directs for the filing of a defence, or (ii) if the defendant makes an unsuccessful application to have the statement of claim set aside, 7 days after the refusal of the application, whichever is the later, or (b) in the case of proceedings commenced by summons: (i) on or before the return day stated in the summons, or (ii) if the defendant makes an unsuccessful application to have the summons set aside, 7 days after the refusal of the application, whichever is the later. (2) A reference in subrule (1) (b) to a summons extends, in relation to the Land and Environment Court, to an application that, in accordance with the rules of that Court, commences proceedings in Class 1, 2 or 3 of that Court's jurisdiction. 1. Against that background r. 12.11 provides as follows: 12.11 Setting aside originating process etc (1) In any proceedings, the court may make any of the following orders on the application of a defendant: (a) an order setting aside the originating process, (b) an order setting aside the service of the originating process on the defendant, (c) an order declaring that the originating process has not been duly served on the defendant, (d) an order discharging: (i) any order giving leave to serve the originating process outside New South Wales, or (ii) any order confirming service of the originating process outside New South Wales, (e) an order discharging any order extending the validity for service of the originating process, (f) an order protecting or releasing: (i) property seized, or threatened with seizure, in the proceedings, or (ii) property subject to an order restraining its disposal or in relation to which such an order is sought, (g) an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings, (h) an order declining to exercise jurisdiction in the proceedings, (i) an order granting such other relief as the court thinks appropriate. (2) Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings. (3) Notice of motion under subrule (2): (a) may be filed without entering an appearance, and (b) must bear a note stating the applicant's address for service. (4) The making of an application for an order under subrule (1) does not constitute submission to the jurisdiction of the court. 1. Rule 10.20(2)(a) requires that originating process in proceedings in this Court be personally served. Rule 10.21 prescribes two modes of personal service: 10.21 How personal service effected generally (1) Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document. (2) If by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person. (3) Service in accordance with subrule (2) is taken to constitute personal service. 1. Having regard to rr. 6.9 and 6.10, the time limit for a defendant to enter an appearance in proceedings is 28 days after service of the statement of claim, or such other time as the court directs for the filing of a defence. Accordingly, having regard to r. 12.11(2), a motion seeking an order of the kinds set out in r. 12.11(1) must be filed within that time. However, the phrase "28 days after service on the defendant of the statement of claim" as it is used in r. 6.10 must be taken to be a reference to valid service under the rules. 2. Pursuant to r. 11.2, an originating process may be served outside Australia in the circumstances referred to in Schedule 6 of the Rules. Paragraph (e) of that Schedule provides that one of those circumstances is where the proceedings are founded wholly or partly on damage suffered in NSW caused by a tortious act or omission wherever occurring. "Damage" for the purposes of that paragraph is not limited to immediate physical injury or loss suffered when the cause of action first accrued: Brix-Neilsen v Oceaneering Australia Pty Limited [1982] 2 NSWLR 173; Challenor v Douglas [1983] 2 NSWLR 405. In light of the contents of para. (19) of the plaintiff's affidavit, I am satisfied that the present proceedings fall within para. (e) of Schedule 6. Accordingly, it was open to the plaintiff to attempt service of the statement of claim outside Australia. 3. Prima facie, personal service of a statement of claim is required by r. 10.20(2)(a). In the present case, neither the purported service by post which was undertaken by Mr Poulden, nor the purported service by Mr Severino in leaving a copy of the statement of claim with the defendant's receptionist, constituted personal service under the Rules. As to the latter, the reference in r. 10.21 to "the person" must be taken as a reference to the person to be served, in this case the defendant. However, the requirement for personal service of the statement of claim in the present case is subject to r. 11.6 which states: Mode of service A document to be served outside Australia need not be personally served so long as it is served on the person in accordance with the law of the country in which service is effected (my emphasis). 1. It is in light of the bolded passage of rule 11.6 that the opinions of Mr Dean become relevant. In the first of those opinions, and by reference to the affidavits of Mr Poulden of 28 May 2015, and Mr Severino of 7 December 2015, Mr Dean concluded (at para. 16) that there had not been valid service of the statement of claim on the defendant according to English law. In the second of his opinions, and by reference to the decision in Murrills v Berlanda and anor. [2014] EWCA Civ 6, Mr Dean confirmed (at para. 9) that postal service at the defendant's business address in Harley Street, London was not effective under English law. 2. No objection was taken to the admission of Mr Dean's opinions, and I accept them. They support the conclusion that neither the purported service by mail set out by Mr Poulden in his affidavits, nor the actions of Mr Severino in leaving a copy of the statement of claim at the defendant's surgery, constitute valid service under English Law. Accordingly, the provisions of r. 11.6 have not been satisfied. 3. As I have previously noted, the reference to "service …. of the statement of claim" in r. 6.10(1)(a)(i) must be taken to be a reference to valid service. For the reasons I have given, the statement of claim has not been validly served, be it under the Rules or under English law. 4. The time limit prescribed by r. 12.11(2) is fixed by reference to that imposed by r. 6.10(1)(a)(i). As the time limit imposed by r. 6.10(1)(a) is fixed by reference to the date of valid service, and as valid service has not been effected, the motion has not been brought out of time. In these circumstances, it is not necessary for me to consider the question of an extension of time in which to file the motion. SHOULD THE EXTENSION ORDER OF 12 JUNE BE DISCHARGED? Submissions of the defendant 1. Counsel for the defendant submitted that in the exercise of my discretion I should consider: 1. whether the plaintiff had provided a satisfactory explanation for her failure to apply for an extension of time before the expiration of the statement of claim; 2. the length of the overall delay and the explanation for it; 3. whether the delay was deliberate; 4. whether notice had been given to the defendant of the claim; 5. the conduct of the parties generally; 6. the hardship or prejudice caused to the plaintiff by refusing the application, or to the defendant by granting it; and 7. the provisions of ss. 56 to 59 of the Civil Procedure Act 2005 (NSW) ("the CPA"). 1. Counsel for the defendant submitted that consideration of these various matters supported the conclusion that an extension of time was not appropriate. In short, he submitted that all, or at least the vast majority of, the relevant factors weighed against such a conclusion. He pointed, in particular, to the fact that: 1. the proceedings were brought shortly before the expiration of the limitation period; 2. plaintiff did not seek an order for extension within the 6 month period following the filing of the statement of claim and had not explained why she had failed to do so; 3. the proceedings were commenced just prior to the expiry of the limitation period, which provided an additional reason for the plaintiff to act diligently and effect service promptly; and 4. the extension application had not been brought until 29 May 2015, in circumstances where the delay in bringing it had not been explained, properly or at all. Submissions of the plaintiff 1. Senior counsel for the plaintiff effectively separated the period between 21 August 2013 (being the date of filing of the statement of claim) and 29 May 2015 (being the date of making the application for an extension order) into four separate periods as follows: 1. 21 August 2013 to 11 May 2014 (the period between the filing of the statement of claim and the first purported service upon the defendant by mail) (period 1); 2. 12 May 2014 to 13 August 2014 (the period between the first purported service by mail and the application under r. 11A.4) (period 2); 3. 14 August 2014 to 30 October 2014 (the period between the application under r. 11A.4 and the advice received from the Principal Registrar that service could not be effected) (period 3); and 4. 31 October 2014 and 28 May 2015 (the period between receipt of the advice from the Principal Registrar and the bringing of the application for an extension of time) (period 4). 1. Senior counsel submitted that the evidence established that the delay in periods 2, 3 and 4 had been due to "difficulties with service". He submitted that during those periods the plaintiff's solicitor had been attempting, albeit without success, to serve the statement of claim. Senior counsel conceded that there was no explanation for the delay which had been occasioned within period 1. 2. Senior counsel for the plaintiff further submitted that the interests of justice compelled a determination in favour of the plaintiff on this question because (inter alia) the proceedings had been commenced within the limitation period. He further emphasised that there was no suggestion that the failure to attempt service of the statement of claim during period 1 was in any way attributable to the plaintiff herself, and that on the evidence, the fault for the delay was attributable to the plaintiff's solicitor. Consideration 1. The discretion conferred by r. 1.12 is not fettered. However, a plaintiff who seeks an extension of time must establish a proper and adequate reason for such extension being granted: Pell v Hodges [2007] NSWCA 234 at [30] per Handley AJA (Tobias JA agreeing) and the authorities cited therein. The plaintiff bears the onus of establishing that an order should have been made at the relevant time: Weston v Publishing and Broadcasting Limited (2011) 83 ACSR 206; [2011] NSWSC 433 at [14] and [153] per Ward J (as her Honour then was). 2. In Kleinwort Benson Limited v Barbrak Limited [1987] AC 597 Lord Brandon identified the three categories of case in which an application for an order extending time in which to serve a statement of claim might be made. His Lordship said (at 615-616): My Lords, there are three main categories of cases in which, on an application for extension of the validity of a writ, questions of limitation of action may arise, all being cases in which the writ has been issued before the relevant period of limitation, that is to say the period applicable to the cause of action on which the claim made by the writ is founded, has expired. Category (1) cases are where the application for extension is made at a time when the writ is still valid and before the relevant period of limitation has expired. Category (2) cases are where the application for extension is made at a time when the writ is still valid but the relevant period of limitation has expired. Category (3) cases are where the application for extension is made at a time when the writ has ceased to be valid and the relevant period of limitation has expired. In both category (1) cases and category (2) cases, it is still possible for the plaintiff (subject to any difficulties of service which there may be) to serve the writ before its validity expires, and, if he does so, the defendant will not be able to rely on a defence of limitation. In category (1) cases, but not category (2) cases, it is also possible for the plaintiff, before the original writ ceases to be valid, to issue a fresh writ which will remain valid for a further 12 months. In neither category (1) cases nor category (2) cases, therefore, can it properly be said that, at the time when the application for extension is made, a defendant who has not been served has an accrued right of limitation. In category (3) cases, however, it is not possible for the plaintiff to serve the writ effectively unless its validity is first retrospectively extended. In category (3) cases, therefore, it can properly be said that, at the time when the application for extension is made, a defendant on whom the writ has not been served has an accrued right of limitation. 1. His Lordship went on to say (at 623): Good reason is necessary for an extension in both category (2) cases and category (3) cases. But in category (3) cases the applicant for an extension has an extra difficulty to overcome, in that he must also give a satisfactory explanation for his failure to apply for extension before the validity of the writ expired. 1. In the present case, one of the factors relied upon by the defendant was that the proceedings had not been commenced by the plaintiff until shortly before the expiry of the limitation period. In Tolcher v Gordon (2005) 53 ACSR 442; [2005] NSWCA 135, Hodgson JA said (at [3]): [3] Although the three-year period is a limit for the commencement of such proceedings, not service of the proceedings, in my opinion an important aspect of the public policy behind the limitation period is that potential defendants should be made aware of claims against them within a reasonable time; so that in my opinion, delay in service of such proceedings, in contravention of the rules, is particularly serious if it occurs after the expiration of the three-year limitation period. A liquidator who does not commence proceedings until just before expiry of the limitation period should in my opinion be especially diligent in pursuing prompt service of the proceedings. 1. However Tobias JA (with whom Ipp JA agreed) took a different view (at [87]): [87] In my opinion, delaying the institution of the action until three days before the expiry of the limitation period cannot be a relevant consideration in the context of an application to set aside the dismissal of the action under Part 18 rule 9, a rule which is, to a limited degree only, akin to dismissal for want of prosecution rule. Certainly it is not a limitation provision; rather, it is a case management rule. Thus in Birkett v James [1978] AC 297 (a want of prosecution case) Lord Diplock (at 320) makes the point that in such a case, "time elapsed before issue of the writ which does not extend beyond the limitation period cannot be treated as inordinate delay; the statute itself permits it." 1. In Weston (supra) Ward J cited (at [176]) the judgment of Hodgson JA in Tolcher (supra). Having done so, her Honour noted (at [190]) that the statement of claim in that case was filed only a matter of days before the expiration of the limitation period. She went onto to observe (at [313]) the statements of Hodgson JA in Tolcher regarding the importance of a defendant being made aware of the fact that a claim was being made against him. However her Honour did not expressly follow the reasoning of Hodgson JA in Tolcher. 2. The majority in Tolcher were clearly of the view that delaying the institution of proceedings until a short time before the expiration of the limitation period could not be a relevant consideration on an application such as the present. To the extent that competing views have been expressed about this issue, I consider that I am bound by the decision of the majority in Tolcher. In any event, and putting that issue to one side, the remaining factors weigh heavily in favour of the order extending time for service being discharged. 3. The present case falls squarely within the third category identified by Lord Brandon. Accordingly, quite apart from any other consideration, the plaintiff is required to satisfactorily explain the failure to apply for an extension prior to 22 February 2014 when the statement of claim became stale. No such explanation appears anywhere in the evidence. 4. The application for an extension of time was not made until 29 May 2015, some 15 months after the statement of claim expired. Although there were, as set out in the evidence of Mr Poulden, some attempts to serve the statement of claim during that period, I am unable to accept the submission of senior counsel for the defendant that this lengthy period of delay is properly explained by there having been "difficulties with service". In this regard, the division of the period between 21 August 2013 and 28 May 2015 (a period of 21 months) into separate and discrete periods is telling. For example, there is no evidence at all as to what (if any) steps were being undertaken to progress the matter between August 2013 and May 2014 when service was first attempted by post. That is a period of almost nine months. Similarly, there is an absence of evidence of what was taking place to progress the matter between October 2014 and May 2015. That is a period of some seven months. In the absence of any explanation, those periods of unexplained delay reflect an approach which is fundamentally at odds with the general tenor of the provisions of ss. 56-59 of the CPA. The plaintiff's prosecution of these proceedings has, on any view of it, been less than diligent. It is fundamentally at odds with the facilitation of the just, quick, and cheap resolution of the issues which is contemplated by s. 56 of the CPA, and equally at odds with the emphasis, in s. 59 of the CPA, upon the necessity to minimise delay. 5. For all of these reasons, I am satisfied that the order extending the time for service of the statement of claim should be discharged. what Is the appropriate forum for the proceedings? Submissions of the defendant 1. Counsel for the defendant submitted that a series of factors which connected these proceedings to England were such as to render this Court a clearly inappropriate forum in which to determine the proceedings. 2. Firstly, counsel pointed to the fact that the plaintiff's claim was based upon acts and omissions said to have taken place in England. He pointed out that in these circumstances the law to be applied by the trial judge was that of England, that being the place where the wrong was said to have been committed. Although counsel did not suggest that this was a determinative factor, he submitted that it was an important one in determining the degree of connection between the proceedings and England. 3. Secondly, counsel pointed to the fact that the majority of the evidence going to the issue of liability was to be found in England. In this regard, he pointed out that the defendant continued to practice, and reside, in London. He submitted that as a consequence, the defendant would be required to travel to Australia for any trial and that this would cause a significant disruption to his practice and considerable inconvenience to his patients. In light of the fact that there was a clear liability issue, counsel submitted that there was necessarily a strong likelihood that other professional and administrative staff associated with the defendant's practice would be called in his case, all of whom were located in England. Counsel also pointed to the fact that because part of the plaintiff's case against the defendant was pleaded in negligence, and because liability was in issue, the professional standards of plastic surgeons in England would necessarily be relevant in determining the question of breach of duty. It was submitted that there would accordingly be a necessity to call expert witnesses who resided in England. 4. Thirdly, and whilst recognising that the plaintiff had given some evidence of the potential difficulties for her if the proceedings were heard in England, counsel for the defendant submitted that this was of comparatively less significance. In particular, he submitted that although the plaintiff had asserted that she was unfamiliar with any legal practitioner(s) in England who might accept a retainer to act for her on a contingency basis, she had not given evidence of any steps that she had taken to investigate that issue. Counsel also pointed to a similar absence of such evidence in the affidavits of Mr Poulden. 5. Finally, in advancing the defendant's position, counsel recognised that as a person who is ordinarily resident in NSW, the plaintiff had a legitimate juridical advantage of bringing her action in this Court. He also acknowledged the significant juridical disadvantage to the plaintiff if the proceedings were stayed (or dismissed), given that her claim in England was now statute barred, requiring her to seek an extension of time in order to proceed. However notwithstanding these matters, counsel submitted that the factors connecting the proceedings with England were significantly greater than those establishing a connection with NSW, rendering this Court a clearly inappropriate forum in which to deal with the matter. Submissions of the plaintiff 1. Senior counsel for the plaintiff acknowledged the significance of the necessity to apply the law of England in determining whether the defendant's case was made out. However, he pointed out that counsel for the defendant had acknowledged that a judge of this Court would be able to apply English law without difficulty. 2. Senior counsel for the plaintiff accepted that the relevant acts and omissions giving rise to the plaintiff's causes of action occurred in London. However he took issue with the suggestion that the majority of the evidence would be called from persons resident in England. He pointed, in particular, to the plaintiff's evidence that following the breakdown of her relationship with her partner in June 2011, she had returned to Australia and had remained here ever since. He also pointed to the plaintiff's evidence that following her return to Australia she had received a vast amount of medical treatment from a large number of different medical practitioners, all of whom resided and practiced in NSW. He further submitted that whilst it may be that the professional standards of plastic surgeons in England were likely to be relevant in determining the question of breach, it remained the case that the plaintiff relied upon the evidence of medical practitioners in Australia. 3. Senior counsel also emphasised the fact that on the basis of the plaintiff's evidence, she had limited financial means to travel to England, and that there was no evidence of any similar difficulties or constraints placed upon the defendant. To the extent that it was suggested that there would be disruption to the defendant, and to his patients, if he was required to travel to Australia, senior counsel pointed out that any hearing date in this Court would be listed with more than sufficient notice to allow the defendant to make appropriate arrangements in respect of his personal and professional affairs. It was submitted that even if the matter were to proceed in England, there would still be some level of disruption to the defendant's practice. 4. Senior counsel for the plaintiff accepted that there were likely to be legal practitioners in England who would be willing to act in a matter such as this on a contingency basis. However, he relied on the fact that the plaintiff had engaged her present solicitor in this State more than three years ago, and that the defendant had also retained a solicitor in this State. 5. Finally, senior counsel submitted that if it was concluded that this Court was not the appropriate forum, the plaintiff's causes of action would be statute barred in England, requiring her to obtain leave before the matter could proceed. Whilst acknowledging that this was not a decisive factor, it was submitted that it was nevertheless a significant consideration and one which weighed heavily in favour of the plaintiff's position. Consideration 1. In Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538; [1990] HCA 55 the plurality (Mason CJ, Deane, Dawson and Gaudron JJ) observed that the principles to be applied in an application for a stay on "inappropriate forum" grounds were those stated by Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32. The relevant principles were summarised by the plurality (Dawson, Gaudron, McHugh and Gummow JJ) in Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 at 587 as follows: In Voth, this court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, "the discussion by Lord Goff in Spiliada of relevant `connecting factors' and `a legitimate personal or juridical advantage' provides valuable assistance". In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being "where the case may be tried `suitably for the interests of all the parties and for the ends of justice' ". 1. In McGregor v Potts and ors (2005) 68 NSWLR 109; [2005] NSWSC 1098 Brereton J, having set out part of the passage in Henry (supra) extracted above, said (at [43]): The Voth principles do not require proof of actual vexation or oppression; what they require is proof of a sufficient imbalance of the "connecting factors" that it can be said that the local forum is a "clearly inappropriate", as distinct from "less appropriate", one. Once that is established, the law presumes vexation and oppression will be occasioned to the foreign party by requiring it to litigate in a clearly inappropriate forum, without requiring proof of actual vexation or oppression. 1. His Honour went on to observe (at [51]): …The "clearly inappropriate" forum test contemplates a trial on all issues extant at the time that the forum question is determined, and does not speculate that the case may narrow as it progresses. In an application of this type, the court proceeds on the assumption that the case will run to trial on all issues, and evaluates the relative convenience of each forum on that assumption. It is, therefore, erroneous to discount as "conjecture" the difficulties which, on that assumption, may be occasioned to the foreign party, just because the extent of the vexation might be reduced if issues fall away or the case settles. In short, the possibility that some or even all of the issues may be resolved does not affect the appropriateness of the forum. Accordingly, in my opinion, in discounting matters of potential vexation and oppression as "conjecture" because it was too early to say whether they would in fact arise, the Master fell into error. 1. Bearing in mind these principles, and having regard, in particular, to the fact that the relevant test contemplates that there will be a trial on all issues, the various "connecting factors" to which the parties referred in their respective submissions may be assessed as follows. 2. Firstly, the acts and omissions relevant to the determination of the issue of liability in respect of the allegation of negligence occurred, in their entirety, in England. It is evident from the affidavit of Mr Craney of 23 March 2016 that liability is very much in issue from the defendant's point of view. In BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 Callinan J (at [259]) emphasised the importance of this factor (citations omitted): [259] As I have already pointed out, the primary judge, whilst accepting that the tort arose in substance in South Australia, in the end failed to give this matter much, if any weight at all. In my opinion it will always be an important matter. In some of the cases the expression "natural forum" has been used. I would take the expression to mean in most cases the forum of the jurisdiction in which the tort was committed. It seems to me to be only logical that at least prima facie that forum will be better equipped to deal with the issues. The events have taken place there. Some, if not most of the parties have had, and are likely to continue to have a presence there. Proximity to the courts there is likely to lead to both expedition, and savings in expense. But of at least equal importance to all of these is the fact that the events giving rise to the claim were at the time subject to, and regulated by the law of the jurisdiction where they occurred, and in respect of the evaluation of which the court of that place should be the most experienced and efficient. One relevant law will usually be the law relating to insurance. Policies are likely to have been implemented on the basis of the law there relating to damages, remedies, court and appeals. In other ways also, with respect, for example, to relations between employers and employees, the revenue laws and commercial laws, and compliance with safety and environmental standards, it may be assumed that the parties have organised their affairs with an eye to the state laws governing them. The parties' reasonable expectation would almost certainly be that in the event of a dispute about any of these matters, it would be resolved according to those laws as interpreted and applied by the court of that state. To these important matters the primary judge has made no reference. 1. Secondly, and arising from the first matter, I am satisfied that the vast of the witnesses who are likely to give evidence going to the liability issue (including the defendant himself) are located in England. In particular, it is evident from Mr Craney's affidavit of 23 March 2016 that in respect of the question of liability, the defendant is likely to adduce evidence from nursing, administrative and surgical staff from both the clinic at which the relevant pre-operative consultations and assessments were carried out, as well the hospital at which the surgical procedures were performed. Mr Craney's affidavit identifies four such persons by name. There is also a reference to an undefined number of other potential witnesses drawn from both medical and administrative staff. Whilst the plaintiff has set out (in para. 17 of her affidavit) those medical and other practitioners whom she has consulted (all of whom are apparently resident in Australia) it appears that the vast majority of those witnesses would, if called, give evidence going to damages. Moreover, it is difficult, in light of the terms in which the statement of claim has been pleaded, to ascertain the relevance of evidence to be called from (for example) chiropractors whom the plaintiff has consulted. 2. Thirdly, the fact that the defendant resides in England means that there would necessarily be a disruption to his medical practice, and thus to the treatment of his patients, if he were required to travel to Australia for the purposes of the proceedings. The affidavit of Mr Craney of 23 March 2016 establishes that leaving aside the substantial cost involved, if the matter were to proceed in Australia the defendant would be required to be absent from London for a significant period, during which he would be unable to perform surgery and attend to pre and post-operative treatment of his patients. I accept Mr Craney's evidence that the defendant's patients are typically scheduled for surgery months in advance. Although the parties in a matter such as this would be given several months' notice of the hearing date, the fact remains that there would necessarily be disruption to the defendant's professional practice, as well as an associated cost (for which he would be responsible) associated with retaining a locum to act in his stead. There is no evidence that the plaintiff would be subjected to any similar dislocation, disruption or inconvenience if she were required to travel from Australia to England for a trial. It was suggested in submissions that the plaintiff was unable to meet the cost of travel to England. However, the evidence is that she is presently employed and earns in excess of AUD$100.000.00 per year. In this regard, the observations of Brereton J in McGregor (supra) are apt (at [77]): [77] Mr Wales submitted that the detriment to Ms McGregor from having to litigate in England was that of increased cost. No doubt it will be more costly for Ms McGregor to litigate in England than in Australia, but conversely it will be more costly for the defendants to litigate in New South Wales than in England. This will be so in virtually every such case, and it cannot be a matter of much significance: the question is which of the parties should have the burden of bearing the additional cost of litigating overseas, and the effect of the Voth principles is that a party should not be required to bear the increased cost burden of litigating in a clearly inappropriate forum, such costs being a type of oppression or vexation contemplated by the Voth test. 1. Fourthly, the majority of the documentary evidence relevant to the issue of liability would appear to be located in England, in circumstances where the affidavit of Mr Craney of 11 May 2016 establishes that the defendant no longer has any relationship with the clinic through which the plaintiff first consulted him. It can be reasonably anticipated that one or other of the parties will seek production of (inter alia) the relevant patient file(s) and clinical notes. It may be that such evidence will also be relevant to the question of damages. 2. Fifthly, the parties agreed that the trial judge would be required to apply the law of England in the determination of the proceedings. In McGregor (supra) Brereton J observed (at [54], citations omitted): The circumstance that the governing law is that of England is a very significant factor, partly because the court of the forum whose law is to be applied is prima facie the best qualified to apply it, and partly because if foreign law is to be applied in a local forum there is immediate prejudice and additional cost in having to prove that foreign law 1. Finally, as I have previously noted, it was submitted on behalf of the plaintiff that if the matter were not litigated in this Court, she would be prejudiced by the fact that her claim in England would be statute barred, thus requiring her to seek an extension of time in order to proceed. Obviously, there is no certainty that such an application, if made, would be successful. However even accepting that this is a relevant consideration, it is not decisive: McGregor at [79] citing BHP v Schultz (supra) at [258] per Callinan J. It is also relevant that on the evidence before me, there are legal practitioners in England who would be likely to be in a position to assist the plaintiff if the matter were litigated in that country, and who would be prepared to act for her on a contingency basis. 2. In my view, the various connecting factors identified in the present case are such as to lead to the conclusion that this Court is a clearly inappropriate forum in which to deal with the matter, and that the appropriate forum is England. Once again, the observations of Brereton J in McGregor (at [84]) are apt: [84] The Voth principles do not require proof of actual vexation or oppression; what they require is proof of a sufficient imbalance of the "connecting factors" that it can be said that the local forum is a "clearly inappropriate" - as distinct from "less appropriate" - one; once that is established, the law presumes that vexation and oppression will be occasioned to the foreign party by compelling it to litigate in a clearly inappropriate forum, without requiring proof of actual vexation or oppression. Analysis of the relevant "connecting factors" shows that this case has everything to do with England and practically nothing to do with New South Wales. Even without evidence of actual prejudice, New South Wales is a clearly inappropriate forum. It follows that, once the defendants had established so strong a nexus with the United Kingdom and so slender a nexus with New South Wales as was apparent here, they did not additionally have to establish actual prejudice, and it was erroneous to discount the potential prejudice on the basis that it was largely a matter of conjecture. The approach that the Master took, in effect, was to require clear proof of actual oppression or vexation. That goes beyond what the "clearly inappropriate forum" test in Voth, properly understood, requires. HAS THE STATEMENT OF CLAIM BEEN PROPERLY SERVED? 1. At [31]-[35] above I concluded (in the context of the first issue arising on the motion) that the statement of claim has not been properly served. ORDERS 1. Given the conclusions I have reached, I make the following orders: 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2016