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)

  Solicitors:
NSW Compensation Lawyers (Plaintiff)
Vardanega Roberts (Defendant)

File Number(s):

2014/117542

Judgment

Introduction

1. On 20 April 2012 two semi-trailers collided in the fog near Yass. The collision occurred between a semi-trailer travelling north owned by Doble Express Transport Pty Limited (Doble), and driven by Mr Dene Richard Mead, and a semi-trailer executing a right-hand turn across…