The Nominal Defendant v Kostic [2007] NSWCA 14 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
07/02/06
JUDGMENT DATE:
15 February 2007
JUDGMENT OF:
Hodgson JA at 1; Ipp JA at 2; Campbell JA at 83
DECISION:
(1) The appeal is upheld. (2) The judgment of Black DCJ is set aside. The assessment of damages is remitted to the District Court for rehearing as a new trial. (3) Save as regards the costs of the blue book (those costs not being recoverable from the appellant or from the respondent), the respondent is to pay the costs of the appeal. (4) The respondent to have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise entitled. (5) The registrar be requested to send a copy of this judgment to the Attorney General with a request that he give favourable consideration to an ex gratia payment covering so much of the costs of the trial as were thrown away in consequence of the manner in which the issues were handled in the judgment.
CATCHWORDS:
APPEAL - grounds - failure to give reasons - whether trial judge failed to give reasons or to give adequate reasons - failure to consider evidence - whether trial judge failed to give consideration to relevant evidence - whether new trial should be ordered. D
The Nominal Defendant (Appellant) Sladjana Kostic (Respondent)
FILE NUMBER(S):
CA 40341/06
COUNSEL:
S G Campbell SC/S McCarthy (Appellant) I D M Roberts SC/R J M Foord (Respondent)
SOLICITORS:
McLachlan Chilton (Appellant) Martin Bell & Co (Respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 642/05
LOWER COURTJUDICIAL OFFICER:
Black DCJ
LOWER COURT DATE OF DECISION:
12/05/06, 18/08/06
CA 40341/06 DC 642/05
HODGSON JA IPP JA CAMPBELL JA
Thursday 15 February 2007
THE NOMINAL DEFENDANT v SLADJANA KOSTIC
Judgment
1 HODGSON JA: I agree with Ipp JA.
2 IPP JA: On 9 February 2007, this Court (constituted by Mason P, Tobias JA and myself) delivered judgment in Whalan v Kogarah Municipal Council [2007] NSWCA 5, the first paragraph of which reads:
“This is yet another appeal from the District Court that must succeed by reason of the manifest inadequacy of the trial judge’s reasons. The authorities that govern judges’ duties to give reasons are, or should be, permanently engraved in the minds of all judicial officers. These duties are designed to ensure that a judge wrestles adequately with the issues in the case, to enable appellate accountability and to provide…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Nominal Defendant v Kostic [2007] NSWCA 14
Case
[2007] NSWCA 14
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between the Nominal Defendant and Kostic, heard in the Court of Appeal of New South Wales. The core of the disagreement revolved around the adequacy of the trial judge's reasons for their decision, particularly concerning the consideration of evidence presented.
The Court of Appeal was required to determine whether the trial judge had failed to provide sufficient reasons for their judgment, or had failed to adequately consider relevant evidence. A further issue was whether these perceived failures warranted the ordering of a new trial.
The Court found that the trial judge had indeed failed to give adequate reasons for their decision and had not properly considered all the relevant evidence. Consequently, the judgment of the District Court was set aside, and the assessment of damages was remitted to the District Court for a rehearing. The respondent was ordered to pay the costs of the appeal, with specific provisions regarding certain costs and a certificate under the Suitors' Fund Act. The registrar was also requested to forward a copy of the judgment to the Attorney General for consideration of an ex gratia payment for wasted trial costs.
Orders
Orders of the court
(1) The appeal is upheld. (2) The judgment of Black DCJ is set aside. The assessment of damages is remitted to the District Court for rehearing as a new trial. (3) Save as regards the costs of the blue book (those costs not being recoverable from the appellant or from the respondent), the respondent is to pay the costs of the appeal. (4) The respondent to have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise entitled. (5) The registrar be requested to send a copy of this judgment to the Attorney General with a request that he give favourable consideration to an ex gratia payment covering so much of the costs of the trial as were thrown away in consequence of the manner in which the issues were handled in the judgment.