The Nominal Defendant v Cordin

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Court of Appeal


Supreme Court


New South Wales

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  • Amendment notes
Medium Neutral Citation: The Nominal Defendant v Cordin [2017] NSWCA 6
Hearing dates: 14 September 2016
Decision date: 03 February 2017
Before: Macfarlan JA at [1];
Emmett AJA at [134];
Davies J at [160]
Decision:

(1)   Appeal upheld.
(2)   Set aside the judgment of the District Court (Judge Levy SC) of 26 February 2016.
(3)   Order a new trial of the action.
(4)   The respondent should pay the appellant’s costs of the appeal.
(5) The respondent should have a certificate under the Suitors’ Fund Act 1951 (NSW) if so entitled.
(6)   The costs of the first trial should abide the costs of the re-trial.

Catchwords: TORTS – negligence – motor vehicles – respondent found injured near his bicycle on unsealed road – whether fall caused by push from behind by unidentified motor vehicle or due to bicycle striking a pothole – whether requirement for appellate intervention in respect of credit-based finding satisfied - Fox v Percy (2003) 214 CLR 118 – whether primary judge erred in analysis of contemporaneous documents
Legislation Cited: Evidence Act 1995 (NSW), ss 76, 78
Motor Accidents Compensation Act 1999 (NSW), s 34
Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Coote v Kelly; Northam v Kelly [2016] NSWSC 1447
Cordin v The Nominal Defendant [2016] NSWDC 12
Duic v Duic [2013] NSWCA 42
Elayoubi v Zipser [2008] NSWCA 335; [2008] Aust Torts Reports 81-895
Fitzgibbon v The Waterways Authority [2003] NSWCA 294
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm)
Gulic v O’Neill [2011] NSWCA 361
Jones v The Queen (1997) 191 CLR 439
Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36
Plomp v The Queen (1963) 110 CLR 234
State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306; [1999] HCA 3
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1
Toben v Nationwide News Pty Ltd [2016] NSWCA 296
Waterways Authority v Fitzgibbon [2005] 79 ALJR 1816; [2005] HCA 57
Category:Principal judgment
Parties: The Nominal Defendant (Appellant)
Michael Timothy Cordin (Respondent)
Representation:

Counsel:
R Stitt QC / B Kelleher (Appellant)
P Doherty SC / G Radburn (Respondent)

  Solicitors:
Hall & Wilcox Lawyers (Appellant)
Trenches McKenzie Cox Solicitors (Respondent)
File Number(s): CA 2016/85337
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Civil
Citation:
[2016] NSWDC 12
Date of Decision:
26 February 2016
Before:
Levy SC DCJ
File Number(s):
DC 2014/150247

HEADNOTE

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

At about 11.00am on 2 September 2012 the respondent, Mr Michael Cordin, fell from his mountain bicycle when riding it on Minyon Falls Road in the Nightcap National Park, north of…

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Details
Case
[2017] NSWCA 6
Decision Date

CaseChat Overview and Summary

The Nominal Defendant appealed to the Court of Appeal of New South Wales against a judgment of the District Court, which had found the appellant liable for injuries sustained by the respondent, Mr. Cordin. Mr. Cordin was found injured near his bicycle on an unsealed road, and the central dispute concerned the cause of his fall: whether it was due to being pushed by an unidentified motor vehicle or due to his bicycle striking a pothole.

The Court of Appeal was required to determine whether the primary judge erred in their findings of fact, particularly concerning the credit of witnesses and the analysis of contemporaneous documents. Specifically, the court considered whether the threshold for appellate intervention in a credit-based finding, as established in cases like *Fox v Percy*, was met, and whether the primary judge's analysis of the evidence, including documentary evidence, was flawed.

The Court of Appeal found that the primary judge had erred in their assessment of the evidence. The court concluded that the primary judge's findings were not supported by the evidence, particularly in relation to the analysis of contemporaneous documents and the assessment of witness credit. Consequently, the appeal was upheld, the judgment of the District Court was set aside, and a new trial of the action was ordered. The respondent was ordered to pay the appellant's costs of the appeal, with the costs of the first trial to abide the outcome of the re-trial.

Orders

Orders of the court

(1) Appeal upheld.

(2) Set aside the judgment of the District Court (Judge Levy SC) of 26 February 2016.

(3) Order a new trial of the action.

(4) The respondent should pay the appellant’s costs of the appeal.

(5) The respondent should have a certificate under the Suitors’ Fund Act 1951 (NSW) if so entitled.

(6) The costs of the first trial should abide the costs of the re-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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