Rix v Mahony

[2012] NSWCA 241

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rix v Mahony [2012] NSWCA 241

Hearing dates:

30 July 2012

Decision date:

30 July 2012

Before:

Campbell JA at [1]
Meagher JA at [7]
Barrett JA at [8]

Decision:

Evidence not admitted.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - procedure - application to adduce further evidence on appeal - assertion that evidence should have been before judge in earlier proceedings and would, if admitted, create res judicata estoppel against conclusions of judge in decision appealed from - not correct formulation of res judicata - application refused

WORDS AND PHRASES - "res judicata"

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Frederick George Rix v Lisa Jane Mahony [2009] NSWSC 675
Frederick Rix v Lisa Mahoney [2011] NSWSC 1308

Category:

Interlocutory applications

Parties:

Frederick George Rix (Appellant)
Lisa Jane Mahony (First Respondent)
Dennis Anthony Mahony (Fifth Respondent)

Representation:

Counsel:
Self-Represented (Appellant)
G Kennett SC; F Ramsay (First and Fifth Respondents)
Solicitors:
Self-Represented (Appellant)
Paul Wells & Co (Respondents)

File Number(s):

2011/86859

 Decision under appeal 

Jurisdiction:

9111

Citation:

Frederick Rix v Lisa Mahony [2011] NSWSC 1308

Date of Decision:

2011-11-02 00:00:00

Before:

Bergin CJ in Eq

File Number(s):

2011/86859

Judgment

(Ex Tempore)

1. CAMPBELL JA: The Court has listed for hearing before it today an appeal from a decision that Bergin CJ in Eq gave on 2 November 2011: Frederick Rix v Lisa Mahony [2011] NSWSC 1308.

1. In brief, in that decision her Honour decided a question that had been left undecided in earlier litigation between the parties. The earlier litigation to which I refer is a decision of Forster J: Frederick George Rix v Lisa Jane Mahony [2009] NSWSC 675.

1. Today Mr Rix, who appears for himself on the appeal, has moved on a notice of motion in which he seeks to have the Court receive further evidence. The evidence in question is extensive and relates to factual events over quite some years. The purpose, as he explained it to the Court, was that he wished to invoke the procedure permitted by Uniform Civil Procedure Rules 36.15 and 36.16. Under those rules it is sometimes possible for a judgment to be set aside in certain circumstances where without his own fault a person has not been heard.

1. Proceeding under those rules does not at first sight appear to lie well with the way that issues arise in appeals. However, given that Mr Rix is a litigant in person it would not be appropriate to base a decision on his having identified a doubtful procedural basis for the substance of the relief he seeks.

1. He explained that the purpose for which he seeks to have the Court receive the evidence is that he wishes to rely upon the law relating to res judicata to challenge the decision of Bergin CJ in Eq. He submits that res judicata applies to prevent Bergin CJ in Eq from making a decision contrary to what Forster J should have decided if all evidence that was relevant to the question before Forster J had been presented to him. The evidence he seeks to have this Court receive is, he says, the evidence that should have been presented to Forster J.

1. Mr Fix's formulation of the principle of res judicata is mistaken. The principle of res judicata is one that prevents a cause of action from being asserted again when that cause of action has been litigated in previous proceedings and a judgment has been given concerning it. The way in which Mr Rix seeks to use the evidence in question does not fit within res judicata as so formulated. For that reason, the basis on which he puts the relevance of the evidence is not made out, and the evidence should not be admitted.

1. MEAGHER JA: I agree.

1. BARRETT JA: I also agree.

**********