Marshall v Fleming

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.