Nominal Defendant v McLennan [2012] NSWCA 148

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nominal Defendant v McLennan [2012] NSWCA 148 Hearing dates: 12 and 18 August 2011 Decision date: 18 May 2012 Before: Beazley JA (at [1]), McColl JA (at [18]), Macfarlan JA (at [230]) Decision: 1. Appeal allowed. 2. Set aside the judgment of Levy DCJ of 8 June 2010. 3. Remit the matter to the District Court of New South Wales for a new trial. 4. Costs of the first trial to be in the discretion of the judge who hears the second trial. 5. Respondent to pay the costs of the appeal and have a certificate under the Suitor's Fund Act 1951 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: APPEAL AND NEW TRIAL - credibility of witness - adverse credit findings against plaintiff at trial - where liability reliant on plaintiff's evidence - whether whole of plaintiff's evidence should be rejected - whether judge palpably misused advantage as trial judge - whether trial judge dealt adequately with inconsistencies in evidence and medical opinions

EVIDENCE - medical evidence - whether plaintiff had retrograde amnesia - whether failure by trial judge to properly analyse medical evidence - whether trial judge erroneously substituted own opinion of medical issues for evidence