Nominal Defendant v Saleh [2011] NSWCA 16

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nominal Defendant v Saleh [2011] NSWCA 16 Hearing dates: 24 February 2010 Decision date: 17 February 2011 Before: Beazley JA [1] Giles JA [2] McColl JA [3] Decision: 1. Appeal allowed. 2. Set aside the verdict and judgment for the respondent of $1,333,398 and the order that the appellant pay the respondent's costs. 3. Remit the proceedings to the District Court for a new trial on all issues. 4. Costs of the first trial to be at the disposal of the judge conducting the new trial. 5. Respondent to pay appellant's costs of the appeal and have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - motor vehicle accident - whether unidentified vehicle caused plaintiff's accident - whether verdict in plaintiff's favour sustainable

APPEAL - appellate review of findings - whether errors in process of fact-finding - whether denial of procedural fairness -whether defendant deprived of fair trial - whether substantial miscarriage of justice

APPEAL - appellate review - natural justice - whether denial of procedural fairness - whether case determined in plaintiff's favour substantially on points not raised by plaintiff and not identified by primary judge at trial - whether primary judge acted of own motion absent cross-examination or submissions by plaintiff to reject evidence of defendant's witnesses - whether failure to consider parties' submissions - whether failure to give party opportunity to deal with potential adverse finding - whether primary judge's conclusions favouring plaintiff's case soundly based