Boulos v Martin (No 2) [2012] NSWCA 161

Boulos v Martin (No 2) [2012] NSWCA 161

The motion was dismissed because the applicant did not file within the time required by r 36.16 and did not establish any basis under r 36.15 that the earlier refusal of leave was made irregularly, illegally or against good faith. His complaints amounted to an assertion that the Court had erred in applying res judicata, which could only be pursued by special leave to the High Court. In any event, the District Court decision rested on cause of action estoppel, not Anshun estoppel, because the negligence cause of action had merged in the Local Court judgment and could not be re-litigated for further damages arising from the same breach of duty.

Jurisdiction
Australia
Judgment Date
18 May 2012
Procedural Posture
Interlocutory Application / Notice of Motion Seeking Review of the Court of Appeal's 26 March 2012 Decision Refusing Leave to Appeal
Outcome
Motion dismissed to the extent it sought review of the Court's 26 March 2012 refusal of leave to appeal.
Legal Topics
['review of Interlocutory Orders' 'refusal of Leave to Appeal' 'uniform Civil Procedure Rules 2005 (nsw) R 36.15' 'uniform Civil Procedure Rules 2005 (nsw) R 36.16' 'res Judicata' 'cause of Action Estoppel' 'self Represented Litigants' 'natural Justice']
['civil Procedure' 'estoppel'] ['review of Interlocutory Orders' 'refusal of Leave to Appeal' 'uniform Civil Procedure Rules 2005 (nsw) R 36.15' 'uniform Civil Procedure Rules 2005 (nsw) R 36.16' 'res Judicata' 'cause of Action Estoppel' 'self Represented Litigants' 'natural Justice']

Case Brief

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Procedural Posture

Interlocutory Application / Notice of Motion Seeking Review of the Court of Appeal's 26 March 2012 Decision Refusing Leave to Appeal

Legal Issues

  1. 1 ['Whether the Court of Appeal could review its earlier refusal of leave to appeal under Uniform Civil Procedure Rules 2005 (NSW) r 36.15 or r 36.16.' 'Whether the earlier refusal of leave was made irregularly, illegally or against good faith.' 'Whether the applicant had shown an arguable error concerning res judicata or cause of action estoppel.' 'Whether the applicant had been denied natural justice or procedural fairness.']

Ratio Decidendi

The motion was dismissed because the applicant did not file within the time required by r 36.16 and did not establish any basis under r 36.15 that the earlier refusal of leave was made irregularly, illegally or against good faith. His complaints amounted to an assertion that the Court had erred in applying res judicata, which could only be pursued by special leave to the High Court. In any event, the District Court decision rested on cause of action estoppel, not Anshun estoppel, because the negligence cause of action had merged in the Local Court judgment and could not be re-litigated for further damages arising from the same breach of duty.

Court Disposition

Motion dismissed to the extent it sought review of the Court's 26 March 2012 refusal of leave to appeal.

Orders

  • ['Order that, to the extent that the Notice of Motion seeks to review the decision of this Court on 26 March 2012 refusing leave, that aspect of the Motion is dismissed.']