The Nominal Defendant v Cordin

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.