Nominal Defendant v Smith

Case [2015] NSWCA 339

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Nominal Defendant v Smith [2015] NSWCA 339
Hearing dates:18 September 2015
Decision date: 03 November 2015
Before: Basten JA at [1]; Leeming JA at [60]; Simpson JA at [98]
Decision:

(1)   Allow the appeal and set aside the judgment against the Nominal Defendant given in the District Court on 6 February 2015.

 

(2)   Set aside orders (1)-(4) made in the District Court and in place thereof:

 

(a)   give judgment for the plaintiff against the first defendant (Ryan Harris) in the sum of $425,366;

 

(b)   order that the first defendant pay the plaintiff’s costs of the first trial.

 

(3)   Remit to the District Court the remaining issues, including any claim by the first defendant for contribution to the costs payable by it to the plaintiff.

 (4)   Order that the second respondent (Ryan Harris) pay the costs of the appellant in this Court.
Catchwords: APPEAL – civil – function of appellate court in relation to fact finding at trial – motor accident – claim against Nominal Defendant, Motor Accidents Compensation Act 1999 (NSW), s 34 – whether unidentified vehicle involved – whether primary judge erred in his findings of fact – whether primary judge assessed testimonial evidence on the balance of probabilities – whether findings made on reliability of witness evidence
Legislation Cited: District Court Act 1973 (NSW), s 127
Motor Accidents Compensation Act 1999 (NSW), ss 34, 145
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited: Abalos v Australian Postal Commission (1990) 171 CLR 167
Armagas Ltd v Mundogas SA [1985] 1 Lloyds LR 1
Biogen Inc v Medeva plc [1997] RPC 1
Bradley v Matloob [2015] NSWCA 239
Cashman v Kinnear [1973] 2 NSWLR 495
Dearman v Dearman (1908) 7 CLR 549
Doe d Devine v Wilson (1855) 10 Moo PC 502; 14 ER 581
Dunleavy v Peak [2009] NSWCA 72
Fox v Percy [2003] HCA 22; 214 CLR 118
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186
James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) CLR 53; [1998] HCA 78
Jereme Smith v Ryan Harris & The Nominal Defendant [2014] NSWDC 254
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Nominal Defendant v Mokbel [2015] NSWCA 3
R v Gittany (No 4) [2013] NSWSC 1737
Sodeman v The King (1936) 55 CLR 192
Speirs v Caledonian Collieries Ltd (1957) 57 SR(NSW) 483
Timberland Property Holdings Ltd v Julie Bundy [2005] NSWCA 419
Warren v Coombes (1979) 142 CLR 531
Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255
Texts Cited: P McClellan, “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655
Category:Principal judgment
Parties: Nominal Defendant (Appellant/Cross-Respondent)
Jereme Smith (First Respondent)
Ryan Harris (Second Respondent/Cross-Appellant)
Representation:

Counsel:
K P Rewell SC/W M Fitzsimmons (Appellant/Cross-Respondent)
No appearance (First…

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AGLC
Nominal Defendant v Smith [2015] NSWCA 339
Case
[2015] NSWCA 339
Decision Date

CaseChat Overview and Summary

The appeal concerned a claim brought by the respondent, Mr Smith, against the Nominal Defendant under the *Motor Accidents Compensation Act 1999* (NSW). Mr Smith alleged he had been injured in a motor accident involving an unidentified vehicle. The primary judge in the District Court had found in favour of Mr Smith, holding the Nominal Defendant liable. 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 findings of fact, particularly in relation to the involvement of an unidentified vehicle, and whether those findings were properly assessed on the balance of probabilities. The court was required to consider the reliability of the testimonial evidence presented at trial and whether the primary judge had adequately assessed this evidence when making his findings.

The Court of Appeal allowed the appeal, setting aside the judgment against the Nominal Defendant. The court found that the primary judge had erred in his assessment of the evidence. Consequently, the Court of Appeal set aside the original orders and entered judgment for Mr Smith against the first defendant, Ryan Harris, in the sum of $425,366, ordering that Mr Harris pay Mr Smith's costs of the first trial. The remaining issues, including any claim for contribution by Mr Harris, were remitted to the District Court. Mr Harris was also ordered to pay the costs of the Nominal Defendant in the Court of Appeal.

Orders

Orders of the court

(1) Allow the appeal and set aside the judgment against the Nominal Defendant given in the District Court on 6 February 2015.

(2) Set aside orders (1)-(4) made in the District Court and in place thereof:

(a) give judgment for the plaintiff against the first defendant (Ryan Harris) in the sum of $425,366;

(b) order that the first defendant pay the plaintiff’s costs of the first trial.

(3) Remit to the District Court the remaining issues, including any claim by the first defendant for contribution to the costs payable by it to the plaintiff.

(4) Order that the second respondent (Ryan Harris) pay the costs of the appellant in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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