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. Judge Garling acceded to Mr Hoeben's proposal, which as I understand it was not the subject of any formal notice of motion. The transcript records that his Honour received evidence relevant to the issue estoppel question and then heard full argument from both counsel, and ultimately reserved his decision. On 12 December 1995 his Honour gave a reserved judgment which was in favour of the plaintiff, Mr Shaw. At the close of his judgment, having given his reasons for holding against the defendant on the issue estoppel point his Honour 2 UNREPORTED JUDGMENTS perhaps unnecessarily said that he would strike out pars 6 and 7 of the amended grounds of defence. He then made an order for costs. It seems to be common ground that it was the expectation of the parties that he would then go ahead and at some convenient date hear and determine the remaining issues in the case. However, the defendant filed an application for leave to appeal to this court from the interlocutory decision of Judge Garling. Although a reading of the concluding part of the judgment of Judge Garling of 12 December 1995 in isolation from the rest of the background which I have mentioned might create the impression that his Honour dealt with the matter as a pleading application, it seems quite clear that in the events that occurred what his Honour was doing was dealing, in a separate or preliminary fashion, with one of the issues in the trial, that is to say the question of issue estoppel raised by pars 6 and 7 of the defence. In those circumstances if, when his Honour ultimately hears the matter to finality, he decides the case in favour of the plaintiff, and against the defendant, then the defendant will in any appeal be entitled toraise as one of the grounds of appeal a complaint about the way in which his Honour decided the issue estoppel question. In those circumstances of course the issue estoppel question may never ultimately arise for decision on appeal in this litigation. If Judge Garling, having heard all the evidence in the case decides in favour of the defendant — as the Magistrate apparently did in the earlier proceedings — then the issue estoppel point will have become theoretical. I would propose that the application for leave to appeal should be refused and that the claimant should pay the claimant's costs. Meagher JA. I agree. Gleeson CJ. The order of the court will be as I proposed. Orders accordingly.