Nominal Defendant v Niko Cencic - [2001] NSWCA 69

Reported Decision:
(2001) 33 MVR 233
[2001] ACL Rep 325 NSW 187

New South Wales

Court of Appeal

CITATION: Nominal Defendant v Niko Cencic [2001] NSWCA 69

FILE NUMBER(S): CA 40857/99

HEARING DATE(S): 13/03/01

JUDGMENT DATE:
3 May 2001

PARTIES :

The Nominal Defendant
v
Niko Cencic

JUDGMENT OF: Meagher JA at 1; Handley JA at 17; Powell JA at 18

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 6128/99

LOWER COURT
JUDICIAL OFFICER : Hosking DCJ

COUNSEL: Appellant: H G Shore
Respondent: R Goodridge

SOLICITORS: Appellant: Sparke Helmore
Respondent: Firths - The Compensation Lawyers

CATCHWORDS: Tort - negligence - where trial judge ordered separate hearings of liability and damages - assessment of damages - appeal allowed in part.

CASES CITED:
Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304
Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151
Simmonds v Spooner (No 3)(unreported, NSW CA, 28/03/95)
Stead v State Government Insurance Commission (1986) 161 CLR 141
State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liquidation)(1999) 73 ALJR 306

DECISION: 1. Appeal allowed (in part); 2. Judgment below set aside; 3. Order a new trial limited to damages; 4. No order made as to costs of appeal; 5. Respondent is to have a certificate under the Suitors Funds Act 1951; 6. Costs of the first trial to abide the result of the new trial.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40857/99

MEAGHER JA

HANDLEY JA

POWELL JA

THE NOMINAL DEFENDANT v CENCIC

The Nominal Defendant represented Mr Magro, the driver of a car that collided with the respondent’s car. The respondent successfully sued the Nominal Defendant at trial and was awarded $260,875 damages. The Nominal Defendant appealed against the trial judge’s decision on both liability and quantum. A further ground of appeal contended for was that the trial judge should not have ordered a separate hearing of liability and quantum and that this error necessitated a new trial.

HELD

per Meagher JA (Handley & Powell JJA agreeing):

(i) The trial judge’s decision to have separate hearings on quantum and liability was a discretionary one. No error is apparent that warrants appellate intervention.

(ii) There is no basis to disturb the trial judge’s finding on liability.

(iii) The trial judge’s decision on damages should be set aside.

ORDERS

1 Appeal allowed in part.

2 Judgment below set aside.

3 Order a new trial limited to damages.

4 No order made as to costs of the appeal.

5 Respondent is to have a certificate under the Suitors Funds Act 1951.

6 Costs of the first trial to abide the result of the new trial.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40857/99

MEAGHER JA

HANDLEY JA

POWELL JA

Thursday, 3 May 2001

THE NOMINAL DEFENDANT v CENCIC

JUDGMENT

1 MEAGHER JA: This is an appeal against a verdict obtained by a plaintiff (the present respondent) against the appellant Nominal Defendant in…

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.

Continue reading Nominal Defendant v Niko Cencic

Details

AGLC: Nominal Defendant v Niko Cencic [2001] NSWCA 69
Case: [2001] NSWCA 69
Decision Date: 3 May 2001

CaseChat Overview and Summary

The appeal concerned a claim in negligence brought by the respondent, Niko Cencic, against the Nominal Defendant. The dispute arose from injuries sustained by Mr Cencic in a motor vehicle accident. The case was heard in the Court of Appeal of New South Wales, with Meagher, Handley and Powell JJA presiding.

The primary legal issue before the Court of Appeal was whether the trial judge had erred in ordering separate hearings for the determination of liability and the assessment of damages. This procedural decision was challenged by the appellant, the Nominal Defendant.

The Court of Appeal allowed the appeal in part, setting aside the judgment of the trial court. The Court ordered a new trial, but crucially, this new trial was to be limited solely to the assessment of damages. The Court made no order as to the costs of the appeal, but the respondent was granted a certificate under the Suitors Funds Act 1951. The costs of the first trial were ordered to abide the outcome of the new trial.

Orders

Orders of the court

1. Appeal allowed (in part); 2. Judgment below set aside; 3. Order a new trial limited to damages; 4. No order made as to costs of appeal; 5. Respondent is to have a certificate under the Suitors Funds Act 1951; 6. Costs of the first trial to abide the result of the new trial.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Nominal Defendant v Niko Cencic [2001] NSWCA 69
FILE NUMBER(S):	CA 40857/99
HEARING DATE(S):	13/03/01
JUDGMENT DATE:	3 May 2001
PARTIES :	The Nominal Defendant v Niko Cencic
JUDGMENT OF:	Meagher JA at 1; Handley JA at 17; Powell JA at 18

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	6128/99
LOWER COURT JUDICIAL OFFICER :	Hosking DCJ

COUNSEL:	Appellant: H G Shore Respondent: R Goodridge
SOLICITORS:	Appellant: Sparke Helmore Respondent: Firths - The Compensation Lawyers
CATCHWORDS:	Tort - negligence - where trial judge ordered separate hearings of liability and damages - assessment of damages - appeal allowed in part.
CASES CITED:	Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304 Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 Simmonds v Spooner (No 3)(unreported, NSW CA, 28/03/95) Stead v State Government Insurance Commission (1986) 161 CLR 141 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liquidation)(1999) 73 ALJR 306
DECISION:	1. Appeal allowed (in part); 2. Judgment below set aside; 3. Order a new trial limited to damages; 4. No order made as to costs of appeal; 5. Respondent is to have a certificate under the Suitors Funds Act 1951; 6. Costs of the first trial to abide the result of the new trial.