Scott v Bagshaw

FEDERAL COURT OF AUSTRALIA

Scott v Bagshaw [2001] FCA 1564

JOHN JOSEPH SCOTT v LEITH GORDON BAGSHAW, JUDITH HAMPTON BAGSHAW, PHILLIP GREGORY JEFFERSON & JAY ARSCOTT STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LEITH GORDON BAGSHAW

NG 684 of 1994

WHITLAM J
7 NOVEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 684 of 1994

BETWEEN:

JOHN JOSEPH SCOTT
First applicant

AND:

LEITH GORDON BAGSHAW
First respondent

JUDITH HAMPTON BAGSHAW
Second respondent

PHILLIP GREGORY JEFFERSON
& JAY ARSCOTT STEVENSON
AS TRUSTEES OF THE BANKRUPT ESTATE
OF LEITH GORDON BAGSHAW
Third respondents

JUDGE:

WHITLAM J

DATE OF ORDER:

7 NOVEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The first respondent’s motion, notice of which was filed on the 16 August 2001, is refused. 

2.The first respondent pay the applicant’s costs of the motion.

3.The third respondents’ costs of the motion be their costs in the cause.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 684 of 1994

BETWEEN:

JOHN JOSEPH SCOTT
First applicant

AND:

LEITH GORDON BAGSHAW
First respondent

JUDITH HAMPTON BAGSHAW
Second respondent

PHILLIP GREGORY JEFFERSON
AND JAY ARSCOTT STEVENSON
AS TRUSTEES OF THE BANKRUPT ESTATE
OF LEITH GORDON BAGSHAW
Third respondents

JUDGE:	WHITLAM J
DATE:	7 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by the first respondent, Leith Bagshaw, to re-open his case and to strike out parts of the statement of claim. The background to this proceeding is set out in the judgment of the Full Court remitting the application for determination: [1999] FCA 674. It is not necessary to restate that factual matrix.

2. Mr Bagshaw now wishes to re-open his case so as to tender the reasons for judgment in an action in the Supreme Court of New South Wales and to have John Scott and Kenneth Livingstone recalled for cross-examination.  The judgment in question was given by Windeyer J on 16 February 2001, and in his reasons for judgment his Honour refers to evidence of (a) an oral agreement that Mr Livingstone allegedly made in 1994 with John Slattery relating to the ledger account maintained in his name by Ophix and (b) a deed signed by Mr Livingstone in 1999 relating to the same account.  Counsel for Mr Bagshaw submits that this evidence touches on Mr Livingstone’s entitlement to conduct the instant suit.

3. The findings in the Supreme Court action would not, of course, be admissible in the present suit to prove the existence of a fact that was in issue in that action: Evidence Act 1995, s 91. Mr Bagshaw does not propose to call any witnesses in respect of the matters referred to in Windeyer J’s reasons, but merely further to cross-examine Mr Scott and Mr Livingstone on that topic. In my opinion, the interests of justice do not require that he be given that opportunity. First, as the…