The Nominal Defendant v Gabriel

The Nominal Defendant appealed to the Court of Appeal of New South Wales against a decision of Judge Naughton QC. The appeal concerned a motor accident claim brought by the respondent, Gabriel, against the appellant. An insurer had made an admission of liability out of court pursuant to section 81 of the *Motor Accidents Compensation Act 1999* (NSW), and an exemption had been granted allowing the claim to proceed in court. Despite this admission, the Nominal Defendant filed a defence denying liability.

The central legal issue before the Court of Appeal was whether the defence filed by the Nominal Defendant, which denied liability, should be struck out by reason of the earlier admission of liability made by the insurer under section 81 of the *Motor Accidents Compensation Act 1999*. This also raised the question of whether such an admission, once made, could be effectively "withdrawn" by the insurer in subsequent court proceedings.

The Court of Appeal, by majority, determined that the defence was not liable to be struck out. The majority reasoned that an admission made under section 81 of the *Motor Accidents Compensation Act 1999* did not have the effect of precluding the defendant from filing a defence denying liability in subsequent court proceedings. The court held that the admission under section 81 was a procedural step to facilitate the claim, but it did not operate as a binding admission of fact or law that would prevent the defendant from disputing liability in court. The principles concerning the withdrawal of admissions in evidence were considered, but the court found that the statutory scheme under the *Motor Accidents Compensation Act 1999* allowed for the denial of liability in court despite the earlier admission.

Consequently, leave to appeal was granted, and the appeal was allowed. The orders made by Judge Naughton QC were set aside, and the plaintiff's notice of motion to strike out the defence was dismissed. The respondent was ordered to pay the costs of the appellant of the appeal and of the hearing in the court below, and was granted a certificate under the *Suitors Fund Act 1951*.