The Nominal Defendant v Cordin - [2019] NSWCA 85

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: The Nominal Defendant v Cordin [2019] NSWCA 85
Hearing dates: 6 November 2018
Decision date: 24 April 2019
Before: Leeming JA at [1];
Sackville AJA at [2];
Simpson AJA at [9]
Decision:
1. Appeal dismissed.
2. The appellant to pay the respondent’s costs of the appeal.
Catchwords:
TRAFFIC LAW AND TRANSPORT — Traffic law — Motor accident legislation — Claim for damages — principles concerning cases where defendant is Nominal Defendant — approach to evidence in such cases — whether primary judge exercised sufficient care in evaluating evidence — no error in primary judge’s approach

APPEAL AND NEW TRIAL — appeal — general principles — interference with discretion of court below — whether primary judge’s findings of fact were demonstrated to be wrong by incontrovertible facts or uncontested testimony or are glaringly improbable or contrary to compelling inference — appellate intervention not justified
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — UCPR r 42.14 — whether reasonableness of unsuccessful party’s conduct of litigation determinative of whether indemnity costs order to be made against them —reasonableness of conduct is not determinative — primary judge’s indemnity costs order upheld
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 42.14
Cases Cited: Australia and New Zealand Banking Group Ltd [2016] NSWCCA 93
Cordin v Nominal Defendant [2016] NSWDC 12
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Freeman v Griffiths (1976) 13 SASR 494
Hofer v Miller [1957] SASR 41
Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721
Michael Timothy Cordin v NRMA Insurance Limited acting on behalf of the Nominal Defendant (unreported, NSW District Court, 9 May 2018)
Michael Timothy Cordin v NRMA Insurance Limited acting on behalf of the Nominal Defendant (unreported, NSW District Court, 27 July 2018)
NSW Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
The Nominal Defendant v Cordin [2017] NSWCA 6
Texts Cited: Nil
Category: Principal judgment
Parties: The Nominal Defendant (Appellant)
Michael Timothy Cordin (Respondent)
Representation:
Counsel:
R Stitt QC/B Wilson (Appellant)
H Marshall SC/L Brazel (Respondent)
Solicitors:
Hall & Wilcox (Appellant)
Trenches McKenzie Cox (Respondent)

File Number(s): 2018/164325
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Date of Decision:

9 May 2018

Before:

Norton SC DCJ

File Number(s):

2014/150247

Headnote

[This headnote is not to be read as part of the judgment]

The respondent was injured when he was thrown from his mountain bicycle on a road in northern NSW.

He commenced proceedings in the District Court, claiming damages for the personal injury. He alleged that he had been thrown from his bicycle after being “shunted” from behind by a motor…

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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Details

Case: [2019] NSWCA 85
Decision Date: 24 April 2019

CaseChat Overview and Summary

The Nominal Defendant appealed to the Court of Appeal of New South Wales against a judgment of the primary judge in favour of the respondent, Ms. Cordin, who had brought a claim for damages arising from a motor accident. The central dispute concerned the respondent's entitlement to damages under the relevant motor accident legislation, particularly in circumstances where the defendant was the Nominal Defendant, a statutory insurer.

The Court of Appeal was required to determine whether the primary judge had erred in their evaluation of the evidence presented in support of Ms. Cordin's claim, and whether the primary judge had exercised sufficient care in reaching their findings of fact. Furthermore, the appeal raised questions regarding the principles governing appellate intervention in a primary judge's findings of fact, specifically whether the primary judge's findings were demonstrably wrong based on incontrovertible facts, uncontested testimony, or were otherwise glaringly improbable or contrary to compelling inference. The Court also considered the appropriateness of an indemnity costs order made by the primary judge against the Nominal Defendant.

The Court of Appeal upheld the primary judge's decision, finding no error in the approach taken to evaluating the evidence. The Court reiterated the principles that appellate courts should be slow to interfere with a primary judge's findings of fact unless those findings are shown to be wrong by incontrovertible facts, uncontested testimony, or are glaringly improbable or contrary to compelling inference. The Court also affirmed the primary judge's indemnity costs order, clarifying that the reasonableness of the unsuccessful party's conduct of litigation is not determinative of whether such an order should be made.

Consequently, the appeal was dismissed, and the Nominal Defendant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant to pay the respondent’s costs of the appeal.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	The Nominal Defendant v Cordin [2019] NSWCA 85
Hearing dates:	6 November 2018
Decision date:	24 April 2019
Before:	Leeming JA at [1]; Sackville AJA at [2]; Simpson AJA at [9]
Decision:	1. Appeal dismissed. 2. The appellant to pay the respondent’s costs of the appeal.
Catchwords:	TRAFFIC LAW AND TRANSPORT — Traffic law — Motor accident legislation — Claim for damages — principles concerning cases where defendant is Nominal Defendant — approach to evidence in such cases — whether primary judge exercised sufficient care in evaluating evidence — no error in primary judge’s approach APPEAL AND NEW TRIAL — appeal — general principles — interference with discretion of court below — whether primary judge’s findings of fact were demonstrated to be wrong by incontrovertible facts or uncontested testimony or are glaringly improbable or contrary to compelling inference — appellate intervention not justified COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — UCPR r 42.14 — whether reasonableness of unsuccessful party’s conduct of litigation determinative of whether indemnity costs order to be made against them —reasonableness of conduct is not determinative — primary judge’s indemnity costs order upheld
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 42.14
Cases Cited:	Australia and New Zealand Banking Group Ltd [2016] NSWCCA 93 Cordin v Nominal Defendant [2016] NSWDC 12 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Freeman v Griffiths (1976) 13 SASR 494 Hofer v Miller [1957] SASR 41 Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 Michael Timothy Cordin v NRMA Insurance Limited acting on behalf of the Nominal Defendant (unreported, NSW District Court, 9 May 2018) Michael Timothy Cordin v NRMA Insurance Limited acting on behalf of the Nominal Defendant (unreported, NSW District Court, 27 July 2018) NSW Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 The Nominal Defendant v Cordin [2017] NSWCA 6
Texts Cited:	Nil
Category:	Principal judgment
Parties:	The Nominal Defendant (Appellant) Michael Timothy Cordin (Respondent)
Representation:	Counsel: R Stitt QC/B Wilson (Appellant) H Marshall SC/L Brazel (Respondent) Solicitors: Hall & Wilcox (Appellant) Trenches McKenzie Cox (Respondent)
File Number(s):	2018/164325
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Civil Date of Decision: 9 May 2018 Before: Norton SC DCJ File Number(s): 2014/150247