Nominal Defendant v Mokbel

The appeal concerned a claim brought by the plaintiff against the Nominal Defendant in the District Court of New South Wales, arising from a motor accident. The plaintiff alleged that an unidentified vehicle was involved in the incident and had been negligently driven, causing the plaintiff's injuries. The Nominal Defendant, representing the interests of an unidentified driver, challenged the trial judge's assessment of the evidence.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in finding that an unidentified vehicle was involved in the accident and, consequently, whether the plaintiff had established the necessary elements for a claim against the Nominal Defendant. The appeal also involved a cross-appeal by the plaintiff.

The Court of Appeal allowed the appeal, setting aside the District Court's judgment. The court found that the evidence presented at trial did not support the conclusion that an unidentified vehicle was involved in the accident. Consequently, the court entered judgment for the Nominal Defendant and ordered the plaintiff to pay the defendant's costs of the proceedings at first instance. The plaintiff's cross-appeal was dismissed. The respondent was ordered to pay the appellant's costs of the appeal, with a certificate granted under the Suitor’s Fund Act 1951 (NSW) in respect of those costs.