Mead v Hukins [2019] NSWDC 47

District Court New South Wales

Medium Neutral Citation: Mead v Hukins [2019] NSWDC 47 Hearing dates: 28 February 2019 Date of orders: 08 March 2019 Decision date: 08 March 2019 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Order that the separate question set out in Exhibit DX3 be determined.

(2) Answer the separate question as follows: With reference to the findings of the District Court in Doble Express Transport Pty Limited v John L Pierce Pty Limited [2015] NSWDC 285 that the plaintiff was guilty of contributory negligence; and the contributory negligence was 40% (the findings):

Question A

Do the findings give rise to an issue estoppel that is binding on the parties in the current proceedings?

Answer:

No.

Question B

Alternatively, do the findings give rise to an Anshun estoppel that is binding on the parties in the current proceedings?

Answer:

No.

Question C

Alternatively, does the plaintiff's contention that the findings are not binding in the current proceedings amount to an abuse of process in the current proceedings?

Answer:

No.

(3) Dismiss the defendant's Notice of Motion filed on 30 June 2016.

(4) Order the defendant to pay the plaintiff's costs of the motion. Catchwords: ESTOPPEL – collision of two semi-trailers - two sets of proceedings - earlier proceedings for property damage resulted in liability apportionment – current proceedings for personal injury to one of the drivers – neither plaintiff nor defendant in personal injury proceedings was a party to property damage proceedings – whether parties in current proceedings bound by apportionment findings in earlier proceedings – determination of separate question - whether the apportionment findings give rise to any of the following: issue estoppel, Anshun estoppel or abuse of process – whether legal system brought into disrepute Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Doble Express Transport Pty Limited v John L Pierce Pty Limited [2015] NSWDC 285 Doble Express Transport Pty Limited (administrator appointed) v John L Pierce Pty Limited [2016] NSWCA 352 Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231 Henderson v Henderson (1843) 67 ER 313 Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 10; (1981) 147 CLR 587 Spratt v Perilya Broken Hill Ltd [2016] NSWCA 192 Stewart v Government Insurance Office of NSW (1996) 39 NSWLR 531 Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 Category: Procedural and other rulings Parties: Dene Richard Mead (Plaintiff) Ricky Malcolm Hukins (Defendant) Representation: Counsel: K Andrews (Plaintiff) D Feller SC (Defendant)