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