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Marshall v Fleming

Marshall v Fleming

Case [2014] NSWCA 64 20 March 2014

Appeal

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Civil Procedure

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Court of Appeal

Supreme Court

New South Wales

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Medium Neutral Citation: Marshall v Fleming [2014] NSWCA 64
Hearing dates: 29 July 2013
Decision date: 20 March 2014
Before: Bathurst CJ; Beazley P; Meagher JA
Decision:
(1)Grant the applicants leave to appeal limited to the three matters referred to in par [14] of this judgment.
(2)Direct the applicants to file a Notice of Appeal limited to those matters within 7 days.
(3)Leave to appeal otherwise refused.
(4)Appeal allowed.
(5)Set aside Orders 1 to 5 of the orders of the primary judge made on 17 May 2013.
(6)Reserve the costs of the plaintiff's notice of motion for determination by a judge of the Common Law Division.
(7)Direct the respondents to file such submissions as they wish to make on the question of costs of the appeal within 7 days.
(8)Direct the applicants to file submissions in reply within 7 days.
[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: PROCEDURE - civil - interlocutory order -referral of questions of law to member of New York Panel of Referees - operation and effect of Uniform Civil Procedure Rules 2005 (NSW), rr 6.43, 6.44 and 20.14 and Memorandum of Understanding between Chief Justice of New South Wales and Chief Judge of the State of New York
Legislation Cited: Civil Procedure Act 2005 (NSW), Sch 1, s 4
Supreme Court Act 1970 (NSW), s 25
Uniform Civil Procedure Rules 2005 (NSW), rr 6.43, 6.44, 20.14 and 20.15
Cases Cited: Fleming v Marshall [2011] NSWCA 86
National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209
Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331
Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131
Category: Principal judgment
Parties: Margaret Lesley Marshall (First Applicant)
Kim Neil Marshall (Second Applicant)
Francis G Fleming (First Respondent)
Marc S Moller (Second Respondent)
Steven R Pounian (Third Respondent)
James P Kreindler (Fourth Respondent)
David C Cook (Fifth Respondent)
David Beekman (Sixth Respondent)
Bianca I Rodriguez (Seventh Respondent)
Noah H Kushlefsky (Eighth Respondent)
Robert J Spragg (Ninth Respondent)
Brian J Alexander (Tenth Respondent)
Justin T Green (Eleventh Respondent)
Representation: Counsel:
C J Bevan / E W Young (Applicants)
D F Villa (Respondents)
Solicitors:
Turner Freeman Lawyers (Applicants)
Kennedys (Respondents)

File Number(s): 2013/166332
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9111

Citation:

Marshall v Fleming [2013] NSWSC 566

Date of Decision:

2013-05-17 00:00:00

Before:

Harrison J

File Number(s):

2009/292935

Judgment

THE COURT: The proceedings the subject of this…

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 Marshall v Fleming

Details

AGLC: Marshall v Fleming [2014] NSWCA 64
Case: [2014] NSWCA 64
Decision Date: 20 March 2014

CaseChat Overview and Summary

In *Marshall v Fleming*, the applicants sought leave to appeal an interlocutory order made by a primary judge. The dispute concerned the operation and effect of specific Uniform Civil Procedure Rules 2005 (NSW) and a Memorandum of Understanding between the Chief Justice of New South Wales and the Chief Judge of the State of New York, in relation to a referral of questions of law to a member of the New York Panel of Referees. The appeal was heard by Bathurst CJ, Beazley P, and Meagher JA.

The central legal issues before the Court of Appeal were whether the primary judge had erred in making the interlocutory order, particularly concerning the procedural rules governing the referral of questions of law and the effect of the Memorandum of Understanding. The applicants sought to challenge the validity and scope of the orders made by the primary judge in this context.

The Court of Appeal granted the applicants leave to appeal, but limited this leave to three specific matters identified in the judgment. The Court's reasoning, though not fully detailed in the provided text, led to the conclusion that the primary judge's orders were flawed. Consequently, the Court allowed the appeal and set aside the five orders made by the primary judge on 17 May 2013. The costs of the plaintiff's notice of motion were reserved for determination by a judge of the Common Law Division, and directions were given for the filing of submissions regarding the costs of the appeal.

Orders

Orders of the court

(1)Grant the applicants leave to appeal limited to the three matters referred to in par [14] of this judgment.

(2)Direct the applicants to file a Notice of Appeal limited to those matters within 7 days.

(3)Leave to appeal otherwise refused.

(4)Appeal allowed.

(5)Set aside Orders 1 to 5 of the orders of the primary judge made on 17 May 2013.

(6)Reserve the costs of the plaintiff's notice of motion for determination by a judge of the Common Law Division.

(7)Direct the respondents to file such submissions as they wish to make on the question of costs of the appeal within 7 days.

(8)Direct the applicants to file submissions in reply within 7 days.

[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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

Marshall v Fleming [2014] NSWCA 64

Most Recent Citation

Babcock & Brown Dif Iii Global Co-Investment Fund, LP v Babcock & Brown International Pty Limited [2016] VSC 623

Cases Citing This Decision

Choi v NSW Ombudsman [2021] NSWCA 68
Citation 1 (Para 48)

…A similar conclusion was reached in Marshall v Fleming [2014] NSWCA 64 in relation to a purported appointment of a referee where the power in UCPR r 20.14 was for the court to “... make orders for reference to a referee appointed by the court for inquiry and report …”. The primary judge ordered that a member of th…
De Costi Seafoods (Franchises) Pty Limited v Wachtenheim (No 8) [2020] NSWDC 184
Citation 2 (Para 34)

…icer of the Court ”. [24] De Costi submitted that the President of the Law Society, as a solicitor at least, was an officer of the Court. 24. [2014] NSWCA 64 at [31].…
Marshall v Fleming (No 2) [2017] NSWSC 1679
Citation 3 (Para 4)

…eld that [Harrison J] erred in failing to identify the question of law to be determined by the referee, as required by the UCPR: Marshall v Fleming [2014] NSWCA 64 at [27]. [107] Further, a specific referee needed to be appointed under r 20.14, not a panel from which a referee may be selected (as Order 1 in this i…
Marshall v Fleming [2017] NSWSC 1107
Citation 4 (Para 1)

…that the primary judge erred in failing to identify the question of law to be determined by the referee, as required by the UCPR: Marshall v Fleming [2014] NSWCA 64 at [27].…
Babcock & Brown DIF III Global Co-Investment Fund, LP v Babcock & Brown International Pty Limited [2016] VSC 623
Citation 5 (Para 1)

…a and New Zealand Banking Group Ltd & Ors (1995) 37 NSWLR 131, 146-147 (Sheller JA, with whom Mahoney and Meagher JJA agreed); and Marshall v Fleming [2014] NSWCA 64, [20] (Bathurst CJ, Beazley P and Meagher JA).…
Marshall v Fleming (No 2) [2015] NSWCA 69
Citation 6 (Para 1)

…feree for inquiry and report on questions of foreign law.”[2] In addition, certain ancillary orders made by the primary judge were set aside. [1] [2014] NSWCA 64 (“appeal judgment”). [2] Marshall v Fleming [2013] NSWSC 566 at [25].…

See all citing cases →

Cases Cited

Marshall v Fleming [2013] NSWSC 566
Citation 1

…Kennedys (Respondents) File Number(s): 2013/166332 Publication restriction: Nil Decision under appeal Jurisdiction: 9111 Citation: Marshall v Fleming [2013] NSWSC 566 Date of Decision: 2013-05-17 00:00:00 Before: Harrison J File Number(s): 2009/292935…
Fleming v Marshall [2011] NSWCA 86
Citation 2 (Para 1)

…ressed a provisional view that the proper law of the retainer between the respondents and the applicants was the law of New York ( Fleming v Marshall [2011] NSWCA 86 at [78]-[81]).…
Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54
Citation 3 (Para 1)

…Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131 at 146-147; Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 at [120].…
United States Trust Company of New York v Australia and New Zealand Banking Group Ltd [1994] NSWCA 46
Citation 4 (Para 1)

…Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 at 226; United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131 at 146-147; Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 at [120].…
National Mutual Holdings Pty Ltd v The Sentry Corporation [1990] FCA 510
Citation 5 (Para 1)

…matter in proceedings conducted in Australia, it would not be admissible as to the second: National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 at 226; United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131 at 146-147; Neilson v Overseas Projects…
National Mutual Holdings Pty Ltd v The Sentry Corporation [1989] FCA 840
Citation 6 (Para 1)

…Whilst expert evidence would be admissible as to the first matter in proceedings conducted in Australia, it would not be admissible as to the second: National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 at 226; United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131 at 146-147; Neilson v Oversea…

Legislation Cited

Uniform Civil Procedure Rules 2005 (NSW) 20.14, 20.15, 6.43, 6.44
5 mentions (from Para 1)
Supreme Court Act 1970 (NSW) 25, 25)
2 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Marshall v Fleming [2014] NSWCA 64
Hearing dates:	29 July 2013
Decision date:	20 March 2014
Before:	Bathurst CJ; Beazley P; Meagher JA
Decision:	(1)Grant the applicants leave to appeal limited to the three matters referred to in par [14] of this judgment. (2)Direct the applicants to file a Notice of Appeal limited to those matters within 7 days. (3)Leave to appeal otherwise refused. (4)Appeal allowed. (5)Set aside Orders 1 to 5 of the orders of the primary judge made on 17 May 2013. (6)Reserve the costs of the plaintiff's notice of motion for determination by a judge of the Common Law Division. (7)Direct the respondents to file such submissions as they wish to make on the question of costs of the appeal within 7 days. (8)Direct the applicants to file submissions in reply within 7 days. [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:	PROCEDURE - civil - interlocutory order -referral of questions of law to member of New York Panel of Referees - operation and effect of Uniform Civil Procedure Rules 2005 (NSW), rr 6.43, 6.44 and 20.14 and Memorandum of Understanding between Chief Justice of New South Wales and Chief Judge of the State of New York
Legislation Cited:	Civil Procedure Act 2005 (NSW), Sch 1, s 4 Supreme Court Act 1970 (NSW), s 25 Uniform Civil Procedure Rules 2005 (NSW), rr 6.43, 6.44, 20.14 and 20.15
Cases Cited:	Fleming v Marshall [2011] NSWCA 86 National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 United States Trust Co of New York v Australia and New Zealand Banking Group Ltd (1995) 37 NSWLR 131
Category:	Principal judgment
Parties:	Margaret Lesley Marshall (First Applicant) Kim Neil Marshall (Second Applicant) Francis G Fleming (First Respondent) Marc S Moller (Second Respondent) Steven R Pounian (Third Respondent) James P Kreindler (Fourth Respondent) David C Cook (Fifth Respondent) David Beekman (Sixth Respondent) Bianca I Rodriguez (Seventh Respondent) Noah H Kushlefsky (Eighth Respondent) Robert J Spragg (Ninth Respondent) Brian J Alexander (Tenth Respondent) Justin T Green (Eleventh Respondent)
Representation:	Counsel: C J Bevan / E W Young (Applicants) D F Villa (Respondents) Solicitors: Turner Freeman Lawyers (Applicants) Kennedys (Respondents)
File Number(s):	2013/166332
Publication restriction:	Nil
Decision under appeal	Jurisdiction: 9111 Citation: Marshall v Fleming [2013] NSWSC 566 Date of Decision: 2013-05-17 00:00:00 Before: Harrison J File Number(s): 2009/292935