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

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.

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…

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 [2013] NSWCA 195
Case: [2013] NSWCA 195
Decision Date: 17 June 2013

CaseChat Overview and Summary

In *Marshall v Fleming*, the applicant sought a stay of certain interlocutory orders made by Harrison J, which included referring questions of foreign law to a referee panel and an ancillary order requiring the parties to agree on those questions within a specified timeframe. The court accepted that the order for referral should be stayed, but the dispute concerned whether the ancillary order should also be stayed, particularly as the time for compliance with that order had already expired.

The primary legal issue before the court was whether an ancillary order, which required parties to agree on questions of foreign law to be referred to a referee panel within a certain timeframe, should be stayed pending the determination of an application for leave to appeal and the appeal itself. This question arose in circumstances where the time for compliance with the ancillary order had expired.

Basten JA considered the nature of the orders and the purpose of a stay. His Honour reasoned that the ancillary order was intrinsically linked to the primary order for referral. Given that the primary order was to be stayed, it followed that the ancillary order, which facilitated the implementation of the primary order, should also be stayed. The court noted that the expiry of the time for compliance did not render the ancillary order moot, as it could still have practical consequences.

The court ordered a stay of the relevant orders made by Harrison J pending the determination of the proceedings in the Court of Appeal. The application for leave to appeal and the appeal were to be heard concurrently and expedited. Costs of the motion were reserved as costs in the appeal.

Orders

Orders of the court

(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.]

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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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