Marshall v Fleming

[2013] NSWCA 195

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Marshall v Fleming [2013] NSWCA 195

Hearing dates:

17 June 2013

Decision date:

17 June 2013

Before:

Basten JA

Decision:

(1) Stay orders 1, 2 and 3 made by Harrison J on 17 May 2013 pending the determination of the proceedings in this Court.

(2) Direct that the application for leave to appeal and the appeal be subject to a concurrent hearing.

(3) Order that the proceedings be expedited on the basis that the hearing of the matters will be completed within half a day but subject to obtaining a date which is available to counsel presently briefed in the matter.

(4) Refer the matter to the Registrar for fixing a date for directions in respect of the white folder including any supplementary material such as that foreshadowed by the respondent, namely the transcript and submissions before Harrison J.

(5) Order that the costs of the motion be costs in the appeal.

[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 - judgments and orders - stay pending hearing of application for leave to appeal and appeal - where interlocutory judgment made orders referring questions of foreign law to referee panel - accepted that order for referral should be stayed - whether ancillary order should also be stayed - where ancillary order for parties to agree on questions of foreign law to be referred within certain timeframe - where time for compliance with order expired

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 6.43, 6.44, 20.14

Category:

Procedural and other rulings

Parties:

Margaret Lesley Marshall (First Applicant)
Kim Neil Marshall (Second Applicant)
Francis G Fleming (First Respondent)

Representation:

C J Bevan/E W Young (Applicants)
D F Villa (Respondents)
Turner Freeman Lawyers (Applicants)
Kennedys (Respondents)

File Number(s):

CA 2013/166332

 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):

SC 2009/292935

Judgment

1. BASTEN JA: The proceedings presently before the Court involve a motion seeking stays of various orders made by Harrison J on 17 May 2013. The underlying proceedings involve claims by the plaintiffs against their former New York attorneys in respect of the conduct of the attorneys in imposing certain conditions on the release of moneys which were owing to the plaintiffs by way of damages payable under a claim in tort brought against the manufacturer of an aircraft.

1. It is not necessary to discuss any further the nature of the underlying proceedings, nor is it necessary to say more about the present matter before this Court other than that it involves the operation of the Uniform Civil Procedure Rules 2005 (NSW) for resolving issues arising under foreign law. The law in question is the law of the State of New York, with the Supreme Court of which this Court has a Memorandum of Understanding for determining such matters.

1. On 17 May Harrison J made four orders of which only one is presently in issue. The primary order was an order made, purportedly pursuant to r 20.14 and the Memorandum of Understanding, that certain questions of law be referred to a New York referee for determination. There is an appeal against the primary judgment and that will be heard in due course, if leave is granted. It is an interlocutory judgment and accordingly the plaintiffs, who are the applicants in this Court, require leave to appeal. It is a matter which involves the interrelationship between rr 6.43, 6.44 and 20.14 of the Uniform Civil Procedure Rules.

1. There is a dispute between the parties as to the way in which the questions of foreign law are to be formulated in order to comply with the rules. Counsel for the plaintiffs have taken issue with the manner in which the notices have so far been formulated by the defendants. There is obviously a question as to how those notices are to be formulated. The extent to which it will be determined by the appeal in this Court is also a matter of dispute between the parties. However, once it is accepted (as it is) that the order for referral should be stayed and that other orders as to costs, for example, in the proceedings so far, also be stayed, the question which remains is whether to stay order 2 made by Harrison J, which is in the following terms:

"2. Direct that the parties confer and agree within 14 days upon the questions of foreign law that are to be referred in accordance with order 1 above."

1. The problem in respect of compliance with that order is, in part, the time frame, which has now expired. It is obviously unsatisfactory that the order be allowed to remain on foot in those terms if there is some contest as to whether, and if so how, it should be complied with, which may be determined by the appeal to this Court. Whether the plaintiff's position, that it is unable to agree with the way in which the questions have so far been formulated, has merit or not is not a matter which I propose to determine today. It seems to me that there is a relationship between the formulation of the questions and the interrelationship of the rules to which I have referred.

1. The parties also seek, although with some reticence, expedition of the hearing of the application for leave to appeal and the appeal. They agree that it would be appropriate for both to be determined concurrently.

1. In the circumstances, the balance of convenience suggests that the order should be stayed; that means, in effect, varying the time for compliance with the order on the assumption that an order in that form will outlive the appeal in any event.

1. I propose to make the following orders in accordance with the motion filed by the plaintiffs, the appellants in this Court, on 3 June 2013:

(1) Stay orders 1, 2 and 3 made by Harrison J on 17 May 2013 pending the determination of the proceedings in this Court.

(2) Direct that the application for leave to appeal and the appeal be subject to a concurrent hearing.

(3) Order that the proceedings be expedited on the basis that the hearing of the matters will be completed within half a day but subject to obtaining a date which is available to counsel presently briefed in the matter.

(4) Refer the matter to the Registrar for fixing a date for directions in respect of the white folder including any supplementary material such as that foreshadowed by the respondent, namely the transcript and submissions before Harrison J.

(5) Order that the costs of the motion be costs in the appeal.

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Decision last updated: 26 June 2013