FLEMING v MARSHALL

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.

CASES CITED: Tomko v Palasty (No 2) [2007] NSWCA 369.

Francis Fleming Marc Moller Steven Pounian James Kreindler David Cook David Beekman PARTIES: Bianca Rodriguez Noah Kushlefsky Robert Spragg Brian Alexander Justin Green

Respondents: Margaret Lesley Marshall Kim Neil Marshall

COUNSEL: A: C Bevan R: P Braham

SOLICITORS: Chris Finn, Kennedys Armando Gardiman, Turner Freeman

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2010/62931

28 JUNE 2010 Francis G Fleming v Marshall Judgment 1 HIS HONOUR: The motions today arise out of proceedings commenced in the Common Law Division by the widow and son of a passenger who was killed when an aircraft crashed into the sea off South Australia on 31 May 2000. 2 The widow and her son brought proceedings in the United States against the manufacturer of the aircraft. The plaintiff's Australian lawyers retained the services of a firm of New York attorneys practising under the name of Kriendler & Kriendler. The proceedings were ultimately compromised and a substantial sum was recovered for the benefit of the dependants of the deceased. 3 Questions then arose as to whether a de facto partner of the deceased under a relationship which commenced some years before his death was entitled to a share in the sum recovered. The de facto partner had not been a party to the proceedings in the United States but for some reason the New York attorneys thought that she may be entitled to a share. The sorting out of that situation caused the widow and the son to incur substantial legal costs in Australia and the United States and delayed their receipt of the sum recovered. 4 The widow and son have taken the view that the New York attorneys were guilty of breaches of duty in dealing with a possible claim by the de facto partner of the deceased and they commenced proceedings in this Court and effected service on Kriendler & Kriendler in New York. The defendants filed a motion on 18 May 2009 seeking to have the statement of claim set aside, or the proceedings permanently stayed, or for the Court to decline to exercise its jurisdiction in respect of the causes of action pleaded in the statement of claim. The motion was heard by Rothman J who gave judgment on 19 February 2010 dismissing the motion and ordering the defendants to pay the plaintiffs' costs. The defendants promptly filed a notice of intention to appeal. 5 On 19 May the defendants filed an application for leave to appeal. The situation in the Registry that day was chaotic as a result of the introduction of a new computer filing system. 6 UCPR Pt 51 r 9, which is made applicable by r 10(1)(a), required the leave application to be commenced within 3 months from the date of judgment, and UCPR Pt 51 r 12(1) required the White folder to be filed and served within that period. Rule 12 (2)(b) required the White folder to contain the applicants' summary of argument. The solicitors acting for the defendants filed the necessary copies within time but failed that day to serve a copy on the solicitors for the plaintiffs. Moreover the White folders as filed and as served on 21 May did not include the applicants' summary of argument, which was not filed and served until 31 May. 7 Mr Bevan, who appeared for the plaintiffs, submitted that the Court has no power under Pt 51 r 9 to extend the time for the taking of these steps once the period of 3 months has expired and referred to Tomko v Palasty (No 2) [2007] NSWCA 369. That may be so but s 63 of the Civil Procedure Act is capable of being applied in such a case. 8 Section 63(1) provides: "(1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or the rules of Court, whether in respect of time, place, manner, form or content or in any other respect.

(2) Such a failure: (a) is to be treated as an irregularity, and.

(b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings. 9 In my judgment s 63 is available to deal with irregularities arising from a failure to comply strictly with the requirements of UCPR Pt 51 r 9. In the present case the irregularities and delays are of a minor nature and to some extent were due to difficulties in filing documents on 19 May as a result of the new computer filing system. 10 I therefore treat the failures of compliance with the Rules as irregularities and direct that the summons for leave to appeal be treated as properly filed and the proceedings as properly instituted. I make those orders on the notice of motion filed on behalf of the defendants on 16 June and I order the applicants to pay the respondents' costs of that motion. 11 The other notice of motion filed on 10 June on behalf of the plaintiffs seeks an order that the summons be struck out or dismissed as incompetent and in the alternative, orders for security for costs. I decline to strike out or dismiss the summons for leave to appeal having made orders on the other notice of motion validating the steps taken to commence the proceedings. 12 I will refer the plaintiffs' application for security for costs and related orders to the Full Court that will hear the leave application. UCPR Pt 42 r 21, the general provision dealing with security for costs, applies to proceedings in the Court of Appeal. For the purposes of that rule plaintiff includes an appellant or applicant in the Court of Appeal in accordance with the definition in UCPR Pt 51 r 1(4)(a). There are also special provisions in UCPR Pt 51 r 50, dealing with the Court of Appeal, which authorise orders for security for costs. The special rule only applies to security for costs in "an appeal" and does not apply in an application for leave to appeal. Part 51 r 50(3) provides that the special rule does not affect the powers of the Court under the general rule in Pt 42 r 21. 13 Pt 52 r 50 authorises this Court to make an order for security for the costs of an appeal "in special circumstances". There is no such requirement in UCPR Pt 42 r 21. Although Pt 42 r 21 is applicable as a matter of power it is arguably relevant to the exercise of that discretion that the special rule in this Court does not apply to an application for leave to appeal and that power is only exercisable in special circumstances. 14 The Court's assessment of the merits of the leave application is likely to affect the exercise of its discretion to order security for costs. In the circumstances, it seems to me the proper course is to refer so much of the plaintiffs' notice of motion of 10 June as relates to security for costs to the Full Court which is to hear the leave application. 15 Under normal circumstances this leave application may have been heard as on appeal to permit the Court to finally dispose of the matter without a second hearing. However my decision to refer the application for security for costs to the Full Court to be heard with the leave application leads me to direct that the leave application be heard as such. This will enable the Court, if minded to order security for costs of the appeal, to make that order if leave is granted. 16 On the notice of motion filed by the respondents to the leave application on 10 June, I make the following orders:

I vacate the directions hearing presently fixed before the Registrar on 5 July.

I direct that the leave application be heard as a leave application only.

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.

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.

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.

Any notice for a witness to attend for cross-examination is to be given on or before 5 pm on 16 August.

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.

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.

I reserve the costs to date of the motion of 10 June to the Full Court.

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