The Nominal Defendant v Cordin

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.