Nominal Defendant v Saleh

The appeal concerned a motor vehicle accident where the plaintiff, Mr. Saleh, alleged that an unidentified vehicle caused his injuries. The Nominal Defendant was the statutory insurer representing the unidentified vehicle. The primary judge found in favour of Mr. Saleh, awarding him $1,333,398 in damages. The Nominal Defendant appealed this decision to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in his fact-finding process, whether the Nominal Defendant had been denied procedural fairness, and whether the verdict in favour of the plaintiff was sustainable. Specifically, the court considered whether the primary judge had determined the case on points not raised by the plaintiff, acted of his own motion to reject the defendant's evidence without adequate opportunity for the parties to respond, failed to consider submissions, or awarded damages significantly exceeding the amount sought for a particular head of damage without proper notice. The court also examined whether the primary judge was entitled to reject expert evidence, even if admitted without objection, on the basis that its factual foundation was not established, and whether rejecting evidence not challenged in cross-examination could lead to a wrong finding of fact.

The Court of Appeal found that the primary judge had denied the Nominal Defendant procedural fairness. The judge had rejected the evidence of the defendant's witnesses, including expert evidence, on grounds that were not foreshadowed by the plaintiff and were not the subject of submissions or cross-examination. This meant the Nominal Defendant was not afforded an opportunity to address the adverse findings or to present further evidence or submissions. The court concluded that the primary judge's approach deprived the Nominal Defendant of a fair trial and that there had been a substantial miscarriage of justice.

Consequently, the appeal was allowed. The verdict and judgment in favour of Mr. Saleh were set aside, and the proceedings were remitted to the District Court for a new trial on all issues. The costs of the first trial were to be determined by the judge conducting the new trial, and the respondent was ordered to pay the appellant's costs of the appeal.