FLEMING v MARSHALL [2010] NSWCA 152

New South Wales Court of Appeal

CITATION: FLEMING v MARSHALL [2010] NSWCA 152

HEARING DATE(S): 28/06/2010

JUDGMENT DATE: 28 June 2010

JUDGMENT OF: Handley AJA at 1

1. I vacate the directions hearing presently fixed before the Registrar on 5 July. 2. I direct that the leave application be heard as a leave application only. 3. I refer prayers 2, 3 and 4 dealing with security for costs in the notice of motion of 10 June 2002 to the Full Court hearing the leave application. 4. Any further evidence in support of prayers 2, 3 and 4 of the notice of motion of 10 June and any evidence in answer by the respondents to that motion is to be filed and served on or before 5pm on 26 July. DECISION: 5. Any evidence from the respondents to the notice of motion of 10 June in answer to further evidence from the applicants to be filed and served by 5pm on 9 August. 6. Any notice for a witness to attend for cross-examination is to be given on or before 5 pm on 16 August. 7. I extend the time for the respondents to file and serve their response to the application for leave to appeal and their submissions in reply on the application for security for costs to 26 July. 8. I direct that the applicants for leave to appeal file and serve an orange book on or before 23 August to include the evidence on the application for security for costs, the submissions on the application for leave to appeal and on the application for security for costs, and this judgment. 9. I reserve the costs to date of the motion of 10 June to the Full Court.

CATCHWORDS: PRACTICE & PROCEDURE - Court of Appeal - application for leave to appeal - non-compliance with rules - irregularities - Civil Procedure Act s 63 - irregularities validated. - PRACTICE & PROCEDURE - Court of Appeal - security for costs - general rule - Court of Appeal rule - only special circumstances - only for appeals - application for security to be heard with leave application.