Fleming v Marshall

Case [2011] NSWCA 86

Court of Appeal

New South Wales
Case Title: Fleming v Marshall
Medium Neutral Citation: [2011] NSWCA 86
Hearing Date(s): 21 February 2011
Decision Date: 08 April 2011
Jurisdiction:
Before:

Spigelman CJ at [1]
Macfarlan JA at [12]
Sackville AJA at [97]
Decision:

Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRIVATE INTERNATIONAL LAW - application for stay of proceedings on forum non conveniens basis - proceedings against New York attorneys alleging breach of retainer by failure promptly to pay to clients monies received in settlement of Pennsylvania proceedings - whether New South Wales a clearly inappropriate forum - significance of alternative forum being unavailable and of identity of the proper law of the contract of retainer - significance of place of contracting to determination of proper law of contract
Legislation Cited:

Family Provision Act 1982
Supreme Court Act 1970
Uniform Civil Procedure Rules
Cases Cited:

Amin Rasheed Corporation v Kuwait Insurance Co [1984] AC 50
Akai Pty Ltd v The People's Insurance Company Limited [1996] HCA 39; (1996) 188 CLR 418
Bonython v Commonwealth of Australia (1950) 81 CLR 486; [1951] AC 201
Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35; (2000) 201 CLR 520
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124
Entores Ltd v Miles Far East Corporation [1955] 2 QB 327
Garsec Pty Ltd v His Majesty The Sultan of Brunei [2008] NSWCA 211; (2008) 250 ALR 682
House v R [1936] HCA 40; (1936) 55 CLR 499
In the matter of United Railways of the Havana and Regla Warehouses Ltd [1960] Ch 52
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
McGregor v Potts [2005] NSWSC 1098; 68 NSWLR 109
Murakami v Wiryadi [2010] NSWCA 7; (2010) 268 ALR 377
Perpetual Trusteee Co Ltd v Khoshaba [2006] NSWCA 61; (2006) 14 BPR 26,639
Puttick v Tenon Ltd [2008] HCA 54; (2008) 238 CLR 265
Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491
Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd [1957] HCA 10; (1957) 98 CLR 93
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Texts Cited:

Bowstead & Reynolds on Agency, 19th ed (2010) Sweet & Maxwell
Dicey, Morris & Collins, The Conflict of Laws, 14th ed (2006) Thomson Sweet & Maxwell
J J Spigelman "Proof of Foreign Law by…

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Fleming v Marshall [2011] NSWCA 86
Case
[2011] NSWCA 86
Decision Date

CaseChat Overview and Summary

In *Fleming v Marshall*, the New South Wales Court of Appeal considered an application by the defendants, New York attorneys, for a stay of proceedings brought by the plaintiffs, their former clients. The dispute concerned allegations that the defendants had breached their retainer by failing to promptly pay monies received in settlement of Pennsylvania proceedings to the plaintiffs. The defendants sought the stay on the grounds that New South Wales was a clearly inappropriate forum for the litigation.

The central legal issues before the Court of Appeal were whether New South Wales was a clearly inappropriate forum, and if so, whether a stay should be granted. In determining this, the Court had to consider the significance of the alternative forum being unavailable to the plaintiffs and the identity of the proper law of the contract of retainer, including the relevance of the place of contracting to that determination.

The Court of Appeal dismissed the appeal, upholding the primary judge's decision. The reasoning focused on the principles governing applications for a stay of proceedings on the basis of *forum non conveniens*. The Court affirmed that the discretion to grant a stay is a broad one, but it must be exercised judicially. The unavailability of an alternative forum was a significant factor, as was the proper law of the contract. The Court found that New South Wales was not a clearly inappropriate forum, and therefore, the stay was not warranted. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPIGELMAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ

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