Fleming v Marshall

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.