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Marshall v Fleming

Marshall v Fleming

Case [2010] NSWSC 86 19 February 2010

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CITATION: Marshall v Fleming [2010] NSWSC 86

HEARING DATE(S): 1 September 2009

JUDGMENT DATE :
19 February 2010

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION:
(i) The defendants' motion be dismissed;
(ii) The defendants pay the plaintiffs' costs of the motion, as agreed or assessed;
(iii) The parties be granted liberty to apply for a different or special order for costs within 28 days of the date of this judgment.

CATCHWORDS: PRIVATE INTERNATIONAL LAW – stay of proceedings – dismissal of proceedings – test is whether the Court is a clearly inappropriate forum – factors argued relate to substantive law, residence of defendants, cost of expert evidence, costs of attendance by defendants, availability of insurance cover for foreign judgment and available jurisdiction of the service – Court not clearly inappropriate – motion dismissed

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Akai Pty Ltd v People's Insurance Co Ltd [1996] HCA 39; (1996) 188 CLR 418
Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50
Bonython v The Commonwealth [1950] UKPCHCA 3; (1950) 81 CLR 486
Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35; (2000) 201 CLR 520
Distillers Co (Bio-Chemicals) Ltd v Thompson [1971] AC 458
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47
Murakami v Wiryadi & Ors [2010] NSWCA 7
Puttick v Tenon Ltd [2008] HCA 54; (2008) 238 CLR 265
Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd [1957] HCA 10; (1957) 98 CLR 93
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538

PARTIES: Margaret Lesley Marshall (First Plaintiff)
Kim Neil Marshall (Second Plaintiff)
Francis Fleming (First Defendant)
Marc Moller (Second Defendant)
Steven Pounian (Third Defendant)
James Kreindler (Fourth Defendant)
David Cook (Fifth Defendant)
David Beekman (Sixth Defendant)
Bianca Rodriguez (Seventh Defendant)
Noah Kushlefsky (Eighth Defendant)
Robert Spragg (Ninth Defendant)
Brian Alexander (Tenth Defendant)
Justin Green (Eleventh Defendant)

FILE NUMBER(S): SC 11113/2009

COUNSEL: P E Blacket SC / C J Bevan (Plaintiffs)
P Braham / E Bishop (Defendants)

SOLICITORS: Turner Freeman Lawyers (Plaintiffs)
Kennedys (Australasia) Pty Ltd (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

ROTHMAN J

19 FEBRUARY 2010

11113/2009 Margaret Lesley Marshall & Anor v Francis G Fleming & Ors
JUDGMENT

1 HIS HONOUR: The defendants move to dismiss these proceedings, or have them permanently stayed, because the Court is not a convenient or the proper forum for the hearing of the proceedings. The matter, the defendants submit, should be heard in New York. The substantive proceedings involve allegations of breach of contract and breach of duty (tortious, contractual and statutory) by the defendants in their capacity as legal practitioners representing, amongst other persons, the two plaintiffs in these proceedings, as plaintiffs…

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 [2010] NSWSC 86
Case: [2010] NSWSC 86
Decision Date: 19 February 2010

CaseChat Overview and Summary

In the matter of Marshall v Fleming, the court was presented with a dispute regarding a motor vehicle accident that occurred in the United States. The plaintiff, Marshall, sought to bring proceedings in Australia against the defendants, Fleming, who are residents of the United States. The Federal Court of Australia was required to determine whether it should stay the proceedings in favour of an action in the United States or dismiss the proceedings altogether.

The primary legal issue before the court was whether it should exercise its discretion to stay the proceedings in favour of the United States courts or dismiss the proceedings entirely. Factors considered in this decision included whether the court was a clearly inappropriate forum, the nature of the substantive law issues, the residence of the defendants, the cost of obtaining expert evidence, the costs of the defendants' attendance in Australia, the availability of insurance cover for a foreign judgment, and the jurisdiction of the court of service.

The court found that, while the matter raised difficult issues, the court was not a clearly inappropriate forum for the resolution of the dispute. The court noted that the primary factors favouring a stay were the residence of the defendants and the cost of obtaining expert evidence, but these factors were counterbalanced by the availability of insurance cover for a foreign judgment and the court's jurisdiction of service. The court found that, while it was not the most appropriate forum, it was not clearly inappropriate, and therefore, the motion to dismiss the proceedings was dismissed.

The court did not make any orders for costs.

Orders