Fleming v Marshall - [2010] NSWCA 152

NEW SOUTH WALES COURT OF APPEAL

CITATION:
FLEMING v MARSHALL [2010] NSWCA 152

FILE NUMBER(S):
2010/62931

HEARING DATE(S):
28/06/2010

JUDGMENT DATE:
28 June 2010

PARTIES:
Applicants:

Francis Fleming
Marc Moller
Steven Pounian
James Kreindler
David Cook
David Beekman
Bianca Rodriguez
Noah Kushlefsky
Robert Spragg
Brian Alexander
Justin Green

Respondents:
Margaret Lesley Marshall
Kim Neil Marshall

JUDGMENT OF:
Handley AJA

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
A: C Bevan
R: P Braham

SOLICITORS:
Chris Finn, Kennedys
Armando Gardiman, Turner Freeman

CATCHWORDS:
PRACTICE & PROCEDURE - Court of Appeal - application for leave to appeal - non-compliance with rules - irregularities - Civil Procedure Act s 63 - irregularities validated.
PRACTICE & PROCEDURE - Court of Appeal - security for costs - general rule - Court of Appeal rule - only special circumstances - only for appeals - application for security to be heard with leave application.

LEGISLATION CITED:
Civil Procedure Act

CATEGORY:
Procedural and other rulings

CASES CITED:
Tomko v Palasty (No 2) [2007] NSWCA 369.

TEXTS CITED:

DECISION:
1. I vacate the directions hearing presently fixed before the Registrar on 5 July.
2. I direct that the leave application be heard as a leave application only.
3. I refer prayers 2, 3 and 4 dealing with security for costs in the notice of motion of 10 June 2002 to the Full Court hearing the leave application.
4. Any further evidence in support of prayers 2, 3 and 4 of the notice of motion of 10 June and any evidence in answer by the respondents to that motion is to be filed and served on or before 5pm on 26 July.
5. Any evidence from the respondents to the notice of motion of 10 June in answer to further evidence from the applicants to be filed and served by 5pm on 9 August.
6. Any notice for a witness to attend for cross-examination is to be given on or before 5 pm on 16 August.
7. I extend the time for the respondents to file and serve their response to the application for leave to appeal and their submissions in reply on the application for security for costs to 26 July.
8. I direct that the applicants for leave to appeal file and serve an orange book on or before 23 August to include the evidence on the application for security for costs, the submissions on the application for leave to appeal and on the application for security for costs, and this judgment.
9. I reserve the costs to date of the motion of 10 June to the Full Court.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2010/62931
HANDLEY AJA
28 JUNE 2010

Francis G Fleming v Marshall

Judgment

HIS HONOUR: The motions today arise out of proceedings commenced in the Common Law Division by the widow and son of a passenger who was killed when an aircraft crashed into the sea…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fleming v Marshall

Details

AGLC: Fleming v Marshall [2010] NSWCA 152
Case: [2010] NSWCA 152
Decision Date: 28 June 2010

CaseChat Overview and Summary

In Fleming v Marshall, the applicant sought leave to appeal from a decision of the primary judge. The respondent sought security for costs of the appeal.

The primary legal issues before the court were whether to grant leave to appeal and, if so, whether to order security for costs. The court also had to consider the procedural irregularities in the application for leave to appeal and the timing of the security for costs application.

Handley AJA noted that the rules of the Court of Appeal had not been strictly complied with in relation to the application for leave to appeal. However, applying section 63 of the Civil Procedure Act, the court had the power to validate such irregularities. Regarding security for costs, the general rule in the Court of Appeal is that security will only be ordered in special circumstances, and only for appeals. The court determined that the application for security for costs should be heard concurrently with the application for leave to appeal.

The court made several directions regarding the filing and service of evidence and submissions for both the leave to appeal and security for costs applications, and reserved the costs of the motion to the Full Court hearing the leave application.

Orders

Orders of the court

1. I vacate the directions hearing presently fixed before the Registrar on 5 July.

2. I direct that the leave application be heard as a leave application only.

3. I refer prayers 2, 3 and 4 dealing with security for costs in the notice of motion of 10 June 2002 to the Full Court hearing the leave application.

4. Any further evidence in support of prayers 2, 3 and 4 of the notice of motion of 10 June and any evidence in answer by the respondents to that motion is to be filed and served on or before 5pm on 26 July.

5. Any evidence from the respondents to the notice of motion of 10 June in answer to further evidence from the applicants to be filed and served by 5pm on 9 August.

6. Any notice for a witness to attend for cross-examination is to be given on or before 5 pm on 16 August.

7. I extend the time for the respondents to file and serve their response to the application for leave to appeal and their submissions in reply on the application for security for costs to 26 July.

8. I direct that the applicants for leave to appeal file and serve an orange book on or before 23 August to include the evidence on the application for security for costs, the submissions on the application for leave to appeal and on the application for security for costs, and this judgment.

9. I reserve the costs to date of the motion of 10 June to the Full Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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