Marshall v Prescott; Marshall v Fleming - [2012] NSWSC 188

Supreme Court

New South Wales

Medium Neutral Citation: Marshall v Prescott; Marshall v Fleming [2012] NSWSC 188
Hearing dates: 23 February 2012
Decision date: 07 March 2012
Jurisdiction: Common Law
Before: Schmidt J
Decision:
1. The two motions are dismissed.
2. Unless the parties approach within 7 days to be heard on the question of costs, the Court's order will be that the plaintiffs are to bear the defendants' costs of the motions, as agreed or assessed.

Catchwords: PROCEDURE - notices of motion - orders sought to have two sets of proceedings be heard by one judge, one immediately after the other - application opposed - different claims under different laws - New South Wales laws, New York laws and consideration of Pennsylvanian laws - question of delay - motions dismissed - costs
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA)
Uniform Civil Procedure Rules 2005
Cases Cited: Fleming v Marshall [2011] NSWCA 86
Marshall v Fleming [2010] NSWSC 86
Category: Procedural and other rulings
Parties:
Matter Number 2009/297404

Margaret Leslie Marshall (First Plaintiff)
Kim Neil Marshall (Second Plaintiff)
Michael Prescott (Defendant)

Matter Number 2009/292935
Margaret Leslie Marshall (First Plaintiff)
Kim Neil Marshall (Second Plaintiff)
Francis G Fleming (First Defendant)
Marc S Moller (Second Defendant)
Steven R Pounian (Third Defendant)
James P Kreindler (Fourth Defendant)
David C Cook (Fifth Defendant)
David Beekman (Sixth Defendant)
Bianca I Rodriguez (Seventh Defendant)
Noah H Kushlefsky (Eighth Defendant)
Robert J Spragg (Ninth Defendant)
Brian J Alexander (Tenth Defendant)
Justin T Green (Eleventh Defendant)
Representation: Counsel:
Mr CJ Bevan SC with E Young (Plaintiffs)
Ms E Bishop (Defendant in 2009/292935)
Mr B McManus (Defendant in 2009/297404)
Solicitors:
Turner Freeman (Plaintiffs)
Colin Biggers & Paisley (Defendants in 2009/292935)
Kennedys (Defendants in 2009/297404)

File Number(s): 2009/297404 2009/292935

Judgment

In 2009, the plaintiffs brought two sets of proceedings in this Court. The first, against an Australian solicitor, Mr Michael Prescott and the second, against the eleven members of a New York firm of solicitors, Kreindler & Kreindler. They had each acted for Mrs Marshall, the first plaintiff, (in Mr Prescott's case only for a certain period), in relation to proceedings which Mrs Marshall and a number of others pursued in the United States (in Pennsylvania), against the manufacturer of certain parts of an aircraft. That aircraft had been involved in an accident in South Australia in 2001. Mrs Marshall's husband was one of those killed in the accident. Mrs Marshall brought the Pennsylvanian proceedings in her own right, as executor of her husband's estate and on behalf of her son, the second plaintiff. Those proceedings were settled, with the result that the New York firm held settlement moneys in its trust account.

Mrs Marshall then brought proceedings in this Court against her husband's former de facto partner, Ms Carruthers, in relation to a dispute over their respective entitlements to the settlement monies held by the New York firm. It appears that this litigation was resolved…

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 Prescott; Marshall v Fleming

Details

AGLC: Marshall v Prescott; Marshall v Fleming [2012] NSWSC 188
Case: [2012] NSWSC 188
Decision Date: 07 March 2012

CaseChat Overview and Summary

In the case of Marshall v Prescott and Marshall v Fleming, the primary issue before the court was whether two sets of proceedings, each involving distinct legal claims under varying jurisdictions, should be consolidated and heard by a single judge. The proceedings involved claims under New South Wales law, New York law, and potentially Pennsylvanian law. The plaintiffs sought to consolidate the cases, arguing that doing so would be efficient and fair. The defendants opposed the motion, contending that the cases involved different claims and laws, and that consolidation would lead to unnecessary delays and complications. The court had to determine whether the principles of judicial economy and convenience outweighed the defendants' arguments regarding the distinct nature of the claims.

The court examined the legal principles governing consolidation of proceedings, focusing on the need for a common question of law or fact. It was noted that the claims in the two sets of proceedings were distinct, with one involving a contract governed by New South Wales law and the other potentially involving New York law, and possibly Pennsylvanian law. The court considered whether the potential for delay and the complexity of resolving issues under different jurisdictions justified consolidation. It concluded that the differences in the claims and the applicable laws were significant enough to warrant separate hearings, and that consolidating the proceedings would not serve the interests of justice.

Accordingly, the court dismissed the plaintiffs' motions to consolidate the proceedings, finding that the cases should be heard separately. The court also considered the issue of costs, ultimately ordering that the plaintiffs bear their own costs and the defendants bear a portion of the costs associated with the motions. The reasoning focused on the distinct nature of the claims and the lack of a compelling reason to consolidate, given the differing jurisdictional and legal issues involved. This decision underscores the importance of carefully considering the nature of the claims and the potential for delay when deciding whether to consolidate proceedings involving different jurisdictions and laws.

Orders