The Nominal Defendant v Kostic [2007] NSWCA 14

New South Wales Court of Appeal

CITATION: The Nominal Defendant v Kostic [2007] NSWCA 14 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 07/02/06

JUDGMENT DATE: 15 February 2007

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 2; Campbell JA at 83

DECISION: (1) The appeal is upheld. (2) The judgment of Black DCJ is set aside. The assessment of damages is remitted to the District Court for rehearing as a new trial. (3) Save as regards the costs of the blue book (those costs not being recoverable from the appellant or from the respondent), the respondent is to pay the costs of the appeal. (4) The respondent to have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise entitled. (5) The registrar be requested to send a copy of this judgment to the Attorney General with a request that he give favourable consideration to an ex gratia payment covering so much of the costs of the trial as were thrown away in consequence of the manner in which the issues were handled in the judgment.

CATCHWORDS: APPEAL - grounds - failure to give reasons - whether trial judge failed to give reasons or to give adequate reasons - failure to consider evidence - whether trial judge failed to give consideration to relevant evidence - whether new trial should be ordered. D

LEGISLATION CITED: Motor Accidents Compensation Act 1999 (NSW), s 128 Suitors Fund Act 1951 (NSW)

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Darke v El Debal [2006] NSWCA 86 CASES CITED: Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 Mifsud v Campbell (1991) 21 NSWLR 725 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 Whalan v Kogarah Municipal Council [2007] NSWCA 5