LE BAS v SHAW [1996] NSWCA 318

LE BAS v SHAW

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ and MEAGHER JA 11 March 1996

[1996] NSWCA 318

Gleeson CJ. This is an application for leave to appeal against an interlocutory decision of his Honour Judge Garling given in the District Court on Tuesday 12 December 1995.

The matter comes before this court in the following circumstances. The opponent, Lance Shaw, sued the claimant, Peter Le Bas in the District Court for damages for personal injuries arising out of a motor vehicle accident. There had been previous litigation between the same parties in the Local Court relating to the same motor vehicle accident. The litigation in the Local Court had been decided in favour of Mr Le Bas by Magistrate Gentle in June 1995.

When Mr Shaw sued Mr Le Bas in the District Court Mr Le Bas filed a defence which raised issue estoppel. Paragraphs 6 and 7 of the Amended Notice of Grounds of Defence were as follows:

6 As to the statement of claim the defendant relies upon the decision of Mr Gentle, Magistrate, on 8 June 1995 in proceedings 65592 of 1993 in the Local Court, Downing Centre, Sydney between Peter Le Bas, plaintiff, and Lance Shaw, defendant as follows:

(a) That the motor vehicle accident on 2 July 1992 was caused due to the negligence of the defendant, Lance Shaw; (b) That the defendant, Lance Shaw, had not suffered any contributory negligence on the part of the plaintiff, Peter Le Bas. 7 The defendant will allege that the defendant is estopped from alleging or calling any evidence contrary to the findings of Mr Gentle, Magistrate.

The matter came on for hearing in the District Court in October 1995 and ultimately came before his Honour Judge Garling. The defendant was represented by Mr Hoeben of counsel. The transcript of the proceedings on 4 October 1995 records that Mr Hoeben as the moving part — as he described himself — invited Judge Garling to determine as a preliminary question the issues raised by pars 6 and 7 of the amended notice of grounds of defence. No doubt one of the reasons behind that application was that the defendant, understandably, was taking the attitude that if the point based on issue estoppel was a good point then the defendant should not be put to the trouble and expense of litigating once again the merits of the dispute between Mr Shaw and Mr Le Bas as to who was at fault in the accident.