Pascoe v Ferrante - [2012] WADC 56

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: PASCOE -v- FERRANTE [2012] WADC 56

CORAM: DEANE DCJ

HEARD: 4 APRIL 2012

DELIVERED : 13 APRIL 2012

FILE NO/S: APP 65 of 2011

BETWEEN: RAYMOND GEORGE PASCOE
Appellant
AND
ANTHONY FERRANTE
Respondent

Catchwords:

Civil action in Magistrates Court - Appellant driver of a vehicle involved in collision with another vehicle driven by respondent - Owner of respondent's vehicle sues appellant for damages - Respondent not a party to that action - Appellant found liable - Appellant then sues respondent for damages in later action - Whether appellant precluded from doing so on basis of res judicata and/or issue estoppel - Whether there is privity between respondent and owner of vehicle driven by respondent

Legislation:

Civil Liability Act 2002 (WA)

Result:

Appeal allowed
Summary judgment set aside

Representation:

Counsel:

Appellant: Mr W Meredith
Respondent: Mr C Fraser

Solicitors:

Appellant: William Llewellyn Meredith
Respondent: WHL Legal Pty Ltd

Case(s) referred to in judgment(s):

Blair v Perpetual Trustee Co Limited v Curran (Adams' Will) (1939) 62 CLR 464
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (In Liq) (1993) 43 FCR 510
Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510
Guiseppina Dissidomino (by her next friend Maria Rosa Dissidomino) v Butcher Paull & Calder (A firm) & Barthalamos Peter Kakulas QC [2004] WASC 122
Henderson v Henderson (1843) 67 ER 313
Jackson v Goldsmith (1950) 81 CLR 446
Kuligowski v Metrobus [2004] HCA 34
Ramsay v Pigram (1968) 118 CLR 271
Re Trawl Industries of Australia Pty Ltd; (Receivers and Managers Appointed) (In Liquidation); Lake Cumbeline Pty Ltd; Idobook Pty Ltd; Peter Horrobin; Richard Sands; and Raymond Pridmore v Effem Foods Pty Ltd [1992] FCA 272

DEANE DCJ: In this matter Mr Pascoe (the appellant) appeals against the decision of his Honour Magistrate Young in the Magistrates Court in Midland on 17 August 2011 whereby his Honour accepted the submissions made on behalf of Mr Ferrante (the respondent) that the appellant's claim against the respondent was res judicata and should be dismissed. His Honour went on to enter summary judgment in favour of the respondent and ordered that the appellant pay the costs of the action and the application to be assessed if not agreed. It is against that finding or ruling that the appellant appeals in this matter.
In his notice of appeal dated 2 September 2011 the appellant sets out the grounds of his appeal:
1.The learned Magistrate erred in law and in fact in holding that there was an identity of interest between Ms Volpe and the Respondent on the basis that she was the owner of the car and he was the driver, when:
a.the Respondent had not contended to that effect, and the learned Magistrate had not invited the Appellant to comment on that proposition.
b.the learned Magistrate should have held that those facts alone were insufficient to establish an identity of interest; and/or
c.it was inappropriate, at the hearing of a summary judgment application, to determine finally the question of identity of interest.
2.The learned Magistrate erred in law and in fact in holding that Magistrate Sharratt had decided not merely that the Appellant was liable to Ms Volpe for the damage to her car, but that the Appellant was the person solely responsible for that damage, when he should have held that:
a.as a critical page from the transcript of the earlier hearing was not before him, it was not clear precisely what Magistrate Sharratt had found; alternatively
b.Magistrate Sharratt had not so decided; and/or
c.the transcript of the earlier hearing indicated that none of the parties to the case then being heard had raised any issue as to the effect of the Civil Liability Act 2002 (WA) on the liability of the Appellant to Ms Volpe.
3.The learned Magistrate erred in law and in fact in holding that the Appellant's claim for recovery of his costs of the discontinued appeal had no prospects of success, when he should have held that that claim had a reasonable prospect of succeeding.
At the hearing of this appeal counsel for the appellant indicated that ground 3 was not being pursued. As to ground 2, it is the case that although p 27 of the earlier hearing before another judicial officer, his Honour Magistrate Sharratt, was not before Magistrate Young, at the hearing of this appeal both counsel had access to that particular page and it was agreed that there was nothing of critical moment contained in it, in the sense that the material would have impacted upon the findings of Magistrate Young. The transcript of the earlier hearing before Magistrate Sharratt confirms that neither the appellant in this matter who was self‑represented at the earlier hearing or counsel for the respondent at that same hearing raised any issue before Magistrate Sharratt as to the effect of the Civil Liability Act 2002 (WA) on the liability of the appellant to Ms Volpe who was the claimant in that particular action. It would appear that Magistrate Sharratt did not refer to that legislation himself in the course of those proceedings.
At the hearing of this appeal counsel for the appellant refined the original grounds of the appeal to an extent. Essentially three grounds of appeal are raised:
1.That to found res judicata and issue estoppel the respondent must be a privy of Ms Volpe and counsel for the appellant contended that this was not the case.
2.The fact that Magistrate Sharratt awarded damages to Ms Volpe against the appellant in her action against him in the Joondalup Magistrates Court on 19 February 2010 the learned magistrate did not preclude the respondent from responsibility. Further, it was contended that the learned magistrate should have applied the Civil Liability Act 2002 (WA) as one of the drivers involved in the collision, being a reference to the respondent in this appeal, was intoxicated in the sense that he had been consuming alcohol at the time of the collision. It was further submitted that in his reasons in the ruling the subject of this appeal, his Honour Magistrate Young was in error in finding that Magistrate Sharratt had apportioned the blame 'solely' on the appellant. It should be observed in relation to this ground that in the reasons of his Honour Magistrate Sharratt he did not use the word 'sole' or 'solely' in relation to the manner of driving of the appellant.
3.The third ground of the appeal foreshadowed by counsel for the appellant was that if successful in the appeal the appellant ought to be able to argue at a future trial in the Magistrates Court that the alleged negligence of the respondent caused the appellant to incur legal costs and that he ought to be compensated to put the appellant back in the position he would be now but for the negligence of the respondent.
In my view in relation to the third ground of the appeal it would not be proper or appropriate for this court to make a ruling in relation to what should occur with respect to that issue in the event that the appeal is successful. In this regard I accept the submission on behalf of the respondent, that it does not raise any alleged error on the part of Magistrate Young and should the appeal succeed it is an issue for the presiding magistrate to determine upon hearing submissions from counsel.

Background

In order to place in context the grounds of the appeal and the submissions made by counsel on behalf of the parties it is necessary to canvass in some detail the history of the matter to date.
On 13 November 2008 a Mercedes motor vehicle, being driven by the appellant but registered and owned by his mother, came into collision with a Commodore motor vehicle being driven by the respondent. The Commodore was owned by the respondent's partner and fiancée, Ms Volpe, and he was driving it with her knowledge and permission. It was described in submissions by counsel at this appeal as a family motor vehicle in the sense that it was shared by the respondent and Ms Volpe and used when each of them required it. Ms Volpe was not present at the time of the collision. As a result of the collision both motor vehicles were wrecked.
It was not in dispute that at the time of the collision the respondent had been consuming alcohol. The exact percentage of alcohol in his blood at the relevant time was not before the court at the hearing of this appeal, but counsel for the respondent advised the court that following the collision the respondent was charged and pleaded guilty to having in excess of 0.08% of alcohol in his blood and he was sentenced for that offence.
The appellant was also charged in relation to the collision on the basis that he failed to give way at the T‑intersection pursuant to reg 52(1) of the Road Traffic Code 2000.
The appellant defended that charge and went to trial in the Joondalup Magistrates Court on 14 January 2010 before his Honour Magistrate Lawrence. It is not necessary to consider in any detail the evidence at that trial, save to observe that in the end Magistrate Lawrence acquitted the appellant as he was not satisfied that the prosecution had proved its case beyond a reasonable doubt.
Following this as a result of damage being sustained to her Commodore vehicle in the collision, Ms Volpe brought an action for damages against the appellant in the Joondalup Magistrates Court, being action JOO2700 of 2008. That matter proceeded to trial before Magistrate Sharratt on 19 February 2010. It is to be noted that the respondent in this appeal was not a party to that action, although he was called as a witness on behalf of Ms Volpe and cross‑examined by the appellant at the hearing.
There was evidence before Magistrate Sharratt that Ms Volpe was at all times the respondent's fiancée and the Commodore motor vehicle, although owned by Ms Volpe, was used by the respondent given that it was a family vehicle or car.
During the course of cross‑examination the appellant questioned the respondent in relation to the respondent's blood alcohol level at the time of the collision and the appellant also asserted that the respondent was speeding at the time of the collision. The appellant also gave evidence at the hearing and was cross‑examined by counsel for Ms Volpe.
His Honour Magistrate Sharratt delivered his decision and expressed his reasons for it at the conclusion of the trial. He noted that Ms Volpe's claim against the appellant was originally in the sum of $14,252 on the basis that the appellant was negligent in that he failed to keep a lookout, (by that I understand that the learned magistrate was referring to a proper lookout in all of the circumstances). The issue in dispute was described as involving whether the appellant was negligent and whether he failed to keep a lookout. Magistrate Sharratt referred to the fact that the appellant had been acquitted in an earlier trial relevant to the charge against him pursuant to the Road Traffic Code.
His Honour Magistrate Sharratt then made reference to the evidence concerning the circumstances of the collision. He referred to Mr Ferrante's evidence that he was driving Ms Volpe's vehicle along the road in a straight line and noted that he did not have any obligation to give way to any other person, rather the obligation to do so rested on the appellant. The reason for this was that the appellant was facing a 'give way' sign at the T‑junction intersection. Reference was made to photographs before the court which assisted it in determining the type of view that the appellant had as he approached the intersection. The appellant's evidence was that he was the only vehicle at the intersection and this was not disputed. The appellant's evidence was that he looked to his left given that he was intending to make a right turn and then he looked to his right. He did not see any other vehicles. The appellant asserted that he had a clear view of about 50 m which would appear to be an estimate only on his part. Referring to photographs before him Magistrate Sharratt expressed the opinion that there was a clear view, as I understand it, in relation to oncoming traffic from the appellant's perspective in the vicinity of over 120 m.
In the course of his reasons Magistrate Sharratt said the fact that the respondent was charged with excess 0.08 could be relevant, but in the case before him it did not have a great deal of relevance as the respondent's duty was simply to travel in a straight line in his motor vehicle and this according to Magistrate Sharratt's findings was what occurred. He noted that essentially the appellant's position was that he simply did not see the respondent and the appellant inferred from that that the speed the respondent must have been travelling at was so great that the respondent covered the distance from the corner of photographs being exhibits E and D in such a short period of time that when the appellant looked right immediately prior to entering the intersection and proceeded to do so he did not even travel as far as the median strip before his vehicle came into collision with the vehicle driven by the respondent. In the end Magistrate Sharratt came to the view that the appellant inferred that the respondent must have been speeding because the appellant said he did not see him before the collision.
His Honour Magistrate Sharratt on the evidence before him rejected the proposition that the respondent was travelling so fast that he was unable to be seen by the appellant and he described the appellant's evidence in that regard as being a matter of fantasy. Rather, the learned magistrate was of the view that the appellant entered into the intersection after failing to see the respondent in his vehicle. This finding was made in the context that although the appellant did not carry a burden of proof, he nonetheless had failed to discredit the evidence of the respondent. Magistrate Sharratt therefore concluded that the respondent's level of intoxication was irrelevant, as he was driving his vehicle in a straight line and there was no evidence that he was swerving around or that he was in the second lane before he came into collision with the appellant's vehicle. It was an unavoidable conclusion in Magistrate Sharratt's opinion that the appellant would not have entered the intersection had he known another vehicle was oncoming but he did so because he failed to keep a proper lookout and see the respondent. He found that negligence had been proven on the basis that the appellant had failed to keep a proper lookout and that a reasonably prudent driver with a view of over 100 m would have seen the respondent's vehicle coming and therefore would not have moved into the intersection. The learned magistrate noted that the absence of any evidence emanating from the trial of the appellant involving the offence pursuant to the Road Traffic Code of which the appellant was acquitted of the charge of failing to give way and the fact that the respondent had been drinking at the time of the collision did not change the learned magistrate's decision. Finally, in relation to the issue of damages his Honour Magistrate Sharratt referred to the Red Book containing values of motor vehicles accepted by the courts and according to the transcript of the trial (p 33) the sum of $9,840 by way of damages was awarded to Ms Volpe, although submissions before the court in this appeal suggest it was $9,040. In the end I do not believe a great deal turns on the precise amount of damages awarded.
The appellant then appealed his Honour Magistrate Sharratt's decision to the District Court. However due to what counsel for the appellant described as a limited ability to adduce evidence in the appeal process, the appellant chose to discontinue the appeal and instead immediately instituted proceedings, in the Magistrates Court at Midland, against the respondent Mr Ferrante, being the driver of Ms Volpe's vehicle at the time of the collision. In this context it must be noted that this is not an appeal against the findings of Magistrate Sharratt. It has however been necessary to refer to them in some detail to explain what later followed and the proceedings the subject of this appeal. The solicitors who had previously represented Ms Volpe indicated that they would also be representing the respondent in the action against him by the appellant.
The respondent's solicitors then made a summary judgment application to strike out the appellant's claim on the basis of res judicata and issue estoppel. In those proceedings both the appellant and respondent were represented by counsel who each filed written submissions in relation to the respondent's application for summary judgment. The application came on before his Honour Magistrate Young in the Midland Magistrates Court on 17 August 2011. Magistrate Young indicated to counsel that he had read the submissions they had each filed and inquired as to whether there was any further material to which counsel wished to draw his attention.
Counsel for the respondent, who was the applicant in the summary judgment application, said his understanding was that the appellant was in his action seeking three things, being damages for the damage to his motor vehicle sustained in the collision as well as loss and damages which were said to have arisen from the previous hearing in the Magistrates Court in Joondalup and finally he was seeking costs of the discontinued appeal. There then followed some brief discussion between counsel for the respondent and the learned magistrate concerning those matters and he then heard further short oral submissions from the appellant's counsel.
Following this his Honour Magistrate Young delivered his decision and the reasons for it in response to the application. It is against this decision, as has previously been noted, that the current appeal lies.
In the course of his reasons his Honour Magistrate Young briefly outlined the history of the matter prior to it coming before him. He noted that in his application the respondent sought to have the claim made against him by the appellant dismissed pursuant to s 18 of the Magistrates Court (Civil Proceedings) Act 2004:
Summary judgment, Court may give
18(1) The Court may give judgment against a claim without a trial if the party making the claim does not satisfy the Court that the claim has a reasonable prospect of succeeding.
(2)The Court may give judgment in favour of a claim without a trial if the party defending the claim does not satisfy the Court that the defence has a reasonable prospect of succeeding.
(3)In order to determine whether a claim or a defence has a reasonable prospect of succeeding, the Court may determine any necessary question of fact or law.
(4)If under subsection (3) the Court determines one or more questions of law and there is no question of fact or mixed fact and law in issue between the parties, the determination of the question of law is final for the purposes of proceedings in this Court in relation to the case concerned.
(5)The powers in subsection (1), (2) and (3) may be exercised –
(a)in relation to all or a part of a claim or a defence; and
(b)regardless of which party, or of whether any party, has made an application to the Court for their exercise;
(6)The Court may set aside a judgment given under this section and may do so on conditions as to payment of costs or as to other matters.
(7)No appeal lies against the Court's decision to refuse to give judgment under subsection (1) or (2).
Notwithstanding that counsel for the respondent in submissions referred to O 16 r 1 of the Rules of the Supreme Court 1971, Magistrate Young stated that he would proceed on the basis that it was an application under s 18 of the Magistrates Court (Civil Proceedings) Act 2004 and further said that in his view the claim made by the appellant could not succeed as a result of the application of the principles of res judicata and/or issue estoppel. He therefore allowed the application and dismissed the appellant's claim. Formal orders by the court were that upon the application of the respondent (who was the defendant in those proceedings) dated 22 June 2011 it was ordered that;
1.Application for summary judgment granted.
2.Claim dismissed.
3.Claimant to pay costs of the action and application to be assessed if not agreed.

In the course of his reasons Magistrate Young noted that it was not in dispute as a principle of law that issue estoppel arises where there has been a final decision on the merits by a judicial officer with the appropriate jurisdiction. He also noted:
There is a principle arising out of public interest considerations largely, a consideration that there must be some finality to proceedings and that parties cannot bring a succession of claims based on the same cause of action.
Unfortunately some portions of the transcript of his Honour Magistrate Young's reasons are not reproduced due to his words being indistinct on the recording but at p 8 of the transcript Magistrate Young appears to note that in relation to issue estoppel what is required is:
A final decision involving the same issue and also both of those (indistinct) have a requirement that the parties to the decision or the privies are the same as the parties in the original proceedings.
He noted that in the case before him the question which arose was 'whether the question raised by the current action is the same as that determined in the earlier trial and whether the parties can be said to be the same parties or their privies'.
He said that the appellant argued that a question raised in the case before Magistrate Young was not the same because in the proceedings before Magistrate Sharratt there was no consideration of the Civil Liability Act 2002 (WA) and therefore there was a failure on the part of the learned magistrate in those proceedings to consider whether there should be some apportionment.
Section 5AK of the Civil Liability Act provides:
1.In any proceedings involving an apportionable claim –
(a)the liability of a Defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claim that the court considers just having regard to the extent of the Defendant's responsibility for the damage or loss; and
(b)the court may give judgment against the Defendant for not more than that amount.
Further, he noted that the appellant submitted that the claim before Magistrate Sharratt involved a claim between the owner of the vehicle being driven by Mr Ferrante (who, it is common ground, was Ms Volpe) and Mr Pascoe. Following from this it was said on behalf of the appellant that the claim before Magistrate Young involved Mr Pascoe taking action against Mr Ferrante as the driver of the other vehicle and it may also involve some consideration of whether Mr Ferrante could be said to be liable to Mr Pascoe and/or liable wholly or partly to Ms Volpe.
His Honour Magistrate Young indicated he had read the transcript of the trial before Magistrate Sharratt and in his opinion the decision made in that particular case was that the accident was solely the fault of Mr Pascoe. As has previously been noted in these reasons, that precise language was not used by his Honour Magistrate Sharratt in his reasons. Magistrate Young then went on to state that in his view it was implicit that in his decision his Honour Magistrate Sharratt was saying that Mr Ferrante was not to blame for the accident and therefore that Mr Ferrante could not be liable either to Mr Pascoe or Ms Volpe. He went on to observe that in order for the court to conclude that Mr Ferrante was liable to Ms Volpe and/or Mr Pascoe it would have to decide inconsistently with the decision reached earlier (presumably being a reference to the decision of Magistrate Sharratt) that Mr Ferrante was the party at fault, either wholly or partly. Magistrate Young went on to state that the issue of who was at fault was the very issue or whole issue in the trial before Magistrate Sharratt and that the learned magistrate in that case explicitly found that although Mr Ferrante admitted to having an excess blood alcohol content, the accident was still caused solely by Mr Pascoe.
In his Honour Magistrate Young's view the sole issue in the trial before Magistrate Sharratt was which of the two drivers caused the accident and he went on to observe that in his view there could be no doubt that in the proceedings before him, the court was being asked to revisit that same issue. He noted that the relief claimed by the appellant in the case before him could only come about if the court decided that Mr Ferrante was negligent and the accident was caused wholly or partly by him. Magistrate Young said that this would necessarily involve a finding inconsistent with that reached by Magistrate Sharratt in the earlier proceedings. He then went on to observe that the fact that the claim before him was brought by Mr Pascoe against Mr Ferrante and did not involve Ms Volpe, did not change the fundamental character of the claim which invited a finding of fault against Mr Ferrante.
His Honour Magistrate Young then considered the next issue whereby the appellant argued that the doctrines of res judicata and issue estoppel did not arise because the parties in the matter before Magistrate Young were not the same parties as those in the matter before Magistrate Sharratt. In response counsel for the respondent argued that on the facts of the case, Mr Ferrante must be regarded as a privy of Ms Volpe so that in truth the parties to the action were the same parties. That latter submission was accepted by Magistrate Young and he referred to the case of Guiseppina Dissidomino (by her next friend Maria Rosa Dissidomino) v Butcher Paull & Calder (A firm) & Barthalamos Peter Kakulas QC [2004] WASC 122 where Commissioner Odes QC in relation to the identity of parties, being a reference to the parties and their privies, noted that to invoke either res judicata or issue estoppel as a defence it is necessary to establish an identity or privity of the parties in the two proceedings or, put another way, there must be an identity of interest between the parties or their privies. Magistrate Young said that in his view the notion of a privity of interest arose in the matter before him because of the subject matter of the case and not because there was any special relationship between the parties, because he went on to state that the privity of interest between Ms Volpe and Mr Ferrante arose not because Ms Volpe was Mr Ferrante's fiancée or because the car driven by Mr Ferrante was described as a family car, but simply because the subject matter of the dispute in both actions was essentially the same.
He said that in his view the identity of the owner of the car in the first case, being Ms Volpe, was a formality and was incidental to the real issue which concerned who was at fault in the collision. Magistrate Young then observed in his view, if a judicial finding were made in favour of an owner of a vehicle that the vehicle was damaged solely by the negligence of the driver of another vehicle, then that finding must necessarily apply to the driver of the owner's vehicle (on my understanding this is a reference to Mr Ferrante) such as to make Ms Volpe and Mr Ferrante privies. It was that convergence and identity of interest which in Magistrate Young's view created the plea of res judicata (he also made reference to issue estoppel but given that a portion of the transcript was indistinct it is unclear of exactly what the context of that reference was) and not any personal relationship that might exist between Ms Volpe and Mr Ferrante.
In relation to the question of the Civil Liability Act 2002 (WA) Magistrate Young said he was of the view that apportioning was considered when the matter came on before Magistrate Sharratt. He said that given the issue at trial concerned who was at fault the learned magistrate having found the appellant solely to blame, would no doubt have thought it superfluous to have gone further and considered apportionment, which would only be relevant if Magistrate Sharratt made a finding of fact that the accident was caused by or contributed to by Mr Ferrante. Magistrate Young noted that if Magistrate Sharratt did err in failing to consider the issue of apportionment, then that would be a matter which should be remedied by an appeal and not by fresh proceedings being brought.
He elaborated upon this finding by saying that the issue of whether Mr Pascoe might have a claim for damage to his car against Mr Ferrante was so closely connected to the subject matter of the claim in the hearing before Magistrate Sharratt, as for it to be reasonably expected the matter would be raised. Accordingly, in Magistrate Young's view the appellant would be prevented from having a new trial seeking to rely upon the Civil Liability Act 2002 (WA) and/or claim that Mr Ferrante should be liable for damage to Mr Pascoe's car, as to do so would raise issues inconsistent with the findings and judgment of Magistrate Sharratt.

Res judicata and issue estoppel

Blair v Perpetual Trustee Co Limited v Curran (Adams' Will) (1939) 62 CLR 464, 532 described the distinction between res judicata and issue estoppel in this way:
The distinction between res judicata and issue estoppel is that in the first, the very right or cause of action claimed or put in suit has, in the former proceedings, passed into judgment, so that it is merged and has no longer any independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
In Spencer, Bower & Handley Res Judicata, (4^th ed) [8.19], the author's note:
An issue estoppel only applies if an issue in the second proceedings is the same as one decided in or covered by the first.
At [8.20] the author's note:
Where the issue in the second proceedings is not the same as that decided in, or covered by the first, there is no estoppel.
In a joint judgment of Gleeson CJ, McHugh J, Gummow J, Kirby J, Hayne J, Callinan J, Heydon J in Kuligowski v Metrobus [2004] HCA 34 [21], the court noted that:
In his speech in Carl Zeiss Stiftung v Rayner and Keeler Limited (No 2) [1967] 1 AC 853, 935, Lord Guest, after noting that the doctrine of issue estoppel had been accepted by Australian courts for a number of years, indicated that, for the doctrine to apply in the second set of proceedings, the requirements to establish issue estoppel were:
(1)That the same question has been decided;
(2)That the judicial decision which is said to create the estoppel was final; and
(3)That the parties to the judicial decision or their privies where the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
Essentially, when the doctrine of issue estoppel applies, the parties and their privies are precluded from contending to the contrary that which has been put in issue by them and solemnly found against them; Blair v Curran (531); Ramsay v Pigram (1968) 118 CLR 271, 276.
Similarly, the doctrine of res judicata applies where a court has given judgment in relation to matters that are the subject of litigation. Once that occurs, the claims made in the earlier proceedings between the same parties or their privies cannot be re‑litigated in subsequent proceedings. In the event that a party in the first set of proceedings fails to advance a matter which might have been brought forward as part of those proceedings, whether by negligence, inadvertence or even accident, they are precluded from opening the same subject in litigation with the same parties; Henderson v Henderson (1843) 67 ER 313. There are sound policy reasons for this principle because, as has been noted by various courts on numerous occasions, essentially there must be an end to litigation.
A critical question that is before this court on this application, it appears to me, is whether the respondent, Mr Ferrante is, and was, at all material times a privy of Ms Volpe. The basis upon which the respondent's counsel submitted that this question should be answered in the affirmative has previously been referred to in these reasons. The question is how does one determine whether a party is a privy to another party. The test as to whether or not a privity of interest exists between parties put forward in the case of Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510, 515 (Megarry VC) was criticised by Gummow J in Trawl Industries (Re Trawl Industries of Australia Pty Ltd; (Receivers and Managers Appointed) (In Liquidation); Lake Cumbeline Pty Ltd; Idobook Pty Ltd; Peter Horrobin; Richard Sands; and Raymond Pridmore v Effem Foods Pty Ltd [1992] FCA 272) in [72] of his judgment as being 'a loosely phrased, however alluring, invitation to judicial idiosyncrasy'. Rather, Gummow J preferred a test set out in Ramsay v Pigram and Jackson v Goldsmith (1950) 81 CLR 446. That test described the basic requirement for establishing a privity of interest as being 'that the privy must claim under or through' the person of whom he is said to be privy.
In oral submissions to this court, counsel for the respondent referred to the fact that the relationship between a party and privy of that party must be such that the supposed privy obtains a benefit or incurs an obligation from the preceding action. Counsel then went on to submit that the respondent, Mr Ferrante, did obtain a benefit from the preceding action before his Honour Mr Sharratt in the sense that the family car was written off or destroyed and that as a result of that action, there was judgment in a sum equivalent to what was considered to be the value of the vehicle. Therefore both the respondent and Ms Volpe obtained a benefit from that decision and each were in a position from a financial perspective to replace the vehicle. It is the case however that the Full Court of the Federal Court of Australia in Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (In Liq) (1993) 43 FCR 510 concluded that fact that a person may obtain some advantage as a result of a successful claim does not make that person a privy because mere commercial or financial interest does not cause privity of interest to arise.
It is fundamental to the question of privity of interest that a person, in this case the respondent, must defend through or under the person with whom it is claimed he has a privity of interest, namely Ms Volpe. In that regard with respect, I do not consider that his Honour Magistrate Young properly applied the test when he said at (9) [4] of his reasons for decision:
In my view, the notion of a privity of interest arises because of the subject matter of the case and not because there was any special relationship between the parties … [privity of interest] would arise, in my view, in almost any situation in which the owner of a car allowed another person to drive it. For example, it would be a nonsense, in my view, if a company car used by a variety of different employees involved in an accident and there was found to be no privity of interest between the company as owner and the driver of the vehicle on the day of the accident …
It is clear that in the action heard before Magistrate Sharratt that Ms Volpe alone was the plaintiff and it was she who sued Mr Pascoe, the appellant in these proceedings. The respondent in these proceedings, Mr Ferrante was not a party to the preceding action nor was the vehicle in his name and it is not to the point that he may have been Ms Volpe's fiancé and a regular user of her vehicle as it was a family car. Those two criteria do not render him a privy of Ms Volpe for the purposes of the application of the principle of res judicata. The fact that Mr Ferrante gave evidence at those earlier proceedings and may arguably have had a commercial interest in their outcome or have been at some risk commercially if the action had failed, is not to the point.
In my view, issue estoppel does not apply in this matter to prevent the appellant from pursuing his action against the respondent. It may be that the issues in the action by the appellant against the respondent are very similar and it may be that if the matter proceeds to trial, similar evidence will be given, but the fact is that the matter before his Honour Magistrate Sharratt on the earlier occasion concerned Ms Volpe suing the appellant in relation to his alleged culpability in the cause of the collision whereas the appellant now wishes to pursue an action alleging culpability on the part of Mr Ferrante in the cause of the collision. For that reason, I do not accept that it can be said that the same question has been decided and as previously noted, I do not accept the argument on the part of counsel for the respondent in this matter, that the parties to the judicial decision, being the decision by his Honour Magistrate Sharratt, or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
I find that the appellant has made out the first ground of appeal and therefore as the respondent, Mr Ferrante was not a privy of Ms Volpe in the proceedings before his Honour Magistrate Sharratt, the doctrines of res judicata and issue estoppel do not apply. As a consequence the appellant is not prevented or estopped from pursuing his action against the respondent.
It is necessary to consider the second ground of appeal raised by the appellant. It is the fact that in his reasons for decision, his Honour Magistrate Young found that his Honour Magistrate Sharratt had apportioned blame for the collision 'solely' on the appellant, but a reading of Magistrate Sharratt's reasons does not indicate that he used that precise language.
It is common ground that the appellant, who was self‑represented at the proceedings before his Honour Magistrate Sharratt, did not plead or raise the Civil Liability Act 2002 (WA) and in particular, s 5AI of that legislation or s 5AK of the legislation.
I accept the submission on behalf of counsel for the respondent that it was not incumbent upon Ms Volpe as the plaintiff in those earlier proceedings, or her counsel, to raise the issue before Magistrate Sharratt. It is not readily apparent from a reading of Magistrate Sharratt's reasons and findings that he applied the relevant portions of that legislation and I do not accept that one can infer from his reasons that he did so.
In the normal course of events, if the appellant wished to allege that Magistrate Sharratt was in error in failing to consider and apply the Civil Liability Act 2002 (WA), the appropriate course of action would have been for the appellant to have lodged an appeal from the decision of Magistrate Sharratt. However, as I have found that neither res judicata nor issue estoppel apply in this case as there was no privity between Ms Volpe and the respondent, that issue falls away. In the event that the appellant wishes to pursue his action against the respondent, any findings or lack of findings in the proceedings before his Honour Magistrate Sharratt do not bind the parties to the action for the very reason that they are different parties and this is a different action.
For the reasons stated, this appeal is allowed and the summary judgment entered by his Honour Magistrate Young against the appellant on 17 August 2011 in the Magistrates Court at Midland is set aside. I will hear counsel as to any orders sought in relation to the costs of this appeal.