Court of Appeal
Supreme Court
New South Wales
- Summary available
- 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 34Cases 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 57Category: Principal judgment Parties: The Nominal Defendant (Appellant)
Michael Timothy Cordin (Respondent)Representation: Counsel:
Solicitors:
R Stitt QC / B Kelleher (Appellant)
P Doherty SC / G Radburn (Respondent)
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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- Case
- [2017] NSWCA 6
- Decision Date
CaseChat Overview and Summary
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
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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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