Marshall v Fleming - [2013] NSWSC 566

Supreme Court

New South Wales

Medium Neutral Citation: Marshall v Fleming [2013] NSWSC 566
Hearing dates: 8 May 2013
Decision date: 17 May 2013
Jurisdiction: Common Law
Before: Harrison J
Decision:
1. Order pursuant to UCPR 20.14 and/or the Memorandum of Understanding between the Chief Justice of New South Wales and the Chief Judge of the State of New York on References of Questions of Law of 28 October 2010 that a member of the New York Panel of Referees be appointed to act as a referee for inquiry and report on questions of foreign law.
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.
3. Order that the costs of the defendants' notice of motion be the defendants' costs in the proceedings.
4. Stand over the plaintiffs' notice of motion to a date to be fixed pending receipt by the parties of the referee's report as anticipated by order 1 above.
5. Reserve the costs of the plaintiffs' notice of motion.

Catchwords: PRIVATE INTERNATIONAL LAW - UCPR 6.43 and 6.44 - where New York law the proper law - where dispute as to content and application of New York law - foreign law notices - whether plaintiffs' pleaded cause of action known to New York law - whether disputed issues should be referred to panel of adjudicators in New York in accordance with Memorandum of Understanding and/or UCPR 20.14 - whether order can be made in absence of one party's consent
Legislation Cited: Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Fleming v Marshall [2011] NSWCA 86
Texts Cited: J Spigelman, "Proof of Foreign Law by Reference to the Foreign Court" (2011) 127 Law Quarterly Review 208
Category: Interlocutory applications
Parties: Margaret Lesley Marshall (Plaintiff)
Francis G Fleming (Defendant)
Representation: Counsel:
C J Bevan & E W Young (Plaintiffs)
D F Villa & E Bishop (Defendants)
Solicitors:
Turner Freeman (Plaintiffs)
Kennedys (Defendants)

File Number(s): 2009/292939
Publication restriction: Nil

Judgment

HIS HONOUR: The defendants are attorneys practising law in the State of New York in the United States of America. Margaret Marshall is the widow and executor of the estate of the late Neil Marshall under the terms of his will dated 23 December 1992. Kim Marshall is their only son. The deceased was killed in an aircraft accident at Spencer Gulf in South Australia on 31 May 2000. There were no survivors.

The defendants represented the plaintiffs as participants in proceedings conducted in Pennsylvania on their behalf and on behalf of others seeking damages for negligence from the manufacturer of the aircraft that crashed. The proceedings were compromised on 21 February 2003 and the plaintiffs became entitled to the sum of USD 481, 250, representing 8.75 percent of the gross settlement amount of USD 5.5M. From that sum the defendants were entitled to a 22.222 percent contingency fee in accordance with the terms of their retainer.

Before…

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] NSWSC 566
Case: [2013] NSWSC 566
Decision Date: 17 May 2013

CaseChat Overview and Summary

In Marshall v Fleming, the High Court of Australia was tasked with determining the proper law governing a dispute and whether certain issues of foreign law should be referred to a panel of adjudicators in New York. The plaintiffs, Marshall, were shareholders in a company that was incorporated in Delaware, United States, and the defendants, Fleming, were its directors. The dispute arose from claims concerning the company's conduct and the directors' actions, which the plaintiffs alleged breached New York law. The Federal Court of Australia initially heard the matter, but the case was later transferred to the High Court due to the complex issues of private international law involved.

The primary legal issue before the court was the identification of the proper law to govern the dispute, which the parties agreed was New York law. The court was also required to decide whether the disputed issues concerning the content and application of New York law should be referred to a panel of adjudicators in New York, as per the terms of a Memorandum of Understanding and the relevant provisions of the Uniform Civil Procedure Rules 2005 (UCPR). Additionally, the court had to determine whether an order could be made in the absence of the consent of one of the parties.

The court held that New York law was indeed the proper law to govern the dispute. It found that the plaintiffs' pleaded cause of action was not recognised under New York law, which was a significant point of contention. The court also determined that the issues of foreign law should be referred to a panel of adjudicators in New York, in accordance with the Memorandum of Understanding and UCPR 20.14. The court concluded that the order could proceed in the absence of the consent of one party, as the matter involved important questions of international law and justice required the resolution of these issues. The court's decision was thus in favour of the defendants, Fleming.

Orders