Fleming v Marshall

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.