Marshall v Fleming

In *Marshall v Fleming*, the applicants sought leave to appeal an interlocutory order made by a primary judge. The dispute concerned the operation and effect of specific Uniform Civil Procedure Rules 2005 (NSW) and a Memorandum of Understanding between the Chief Justice of New South Wales and the Chief Judge of the State of New York, in relation to a referral of questions of law to a member of the New York Panel of Referees. The appeal was heard by Bathurst CJ, Beazley P, and Meagher JA.

The central legal issues before the Court of Appeal were whether the primary judge had erred in making the interlocutory order, particularly concerning the procedural rules governing the referral of questions of law and the effect of the Memorandum of Understanding. The applicants sought to challenge the validity and scope of the orders made by the primary judge in this context.

The Court of Appeal granted the applicants leave to appeal, but limited this leave to three specific matters identified in the judgment. The Court's reasoning, though not fully detailed in the provided text, led to the conclusion that the primary judge's orders were flawed. Consequently, the Court allowed the appeal and set aside the five orders made by the primary judge on 17 May 2013. The costs of the plaintiff's notice of motion were reserved for determination by a judge of the Common Law Division, and directions were given for the filing of submissions regarding the costs of the appeal.