Nominal Defendant v Ismail [2014] NSWCA 432

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nominal Defendant v Ismail [2014] NSWCA 432 Hearing dates: 13 November 2014 Decision date: 17 December 2014 Before: Basten JA at [1]; Barrett JA at [76]; Emmett JA at [77] Decision: (1) Allow the appeal and set aside orders (1) and (2) made in the District Court on 31 March 2014. (2) Order that there be a retrial of the questions of liability and, if liability is established, contributory negligence. (3) Dismiss the appellant's motion to allow further evidence on appeal; (4) Dismiss the cross-appeal. (5) Order that the respondent and cross-appellant (Ms Ismail) pay the costs of the appellant and cross-respondent (Nominal Defendant) in this Court, including the costs of the motion. (6) Grant the respondent (Ms Ismail) a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal. [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 - order for new trial - findings based on inadmissible evidence - whether unchallenged findings sufficient to determine liability without need for a retrial - inconsistencies between witnesses' account of accident - whether inconsistencies can be resolved by appellate court - opportunity at trial to assess reliability of accounts on the basis of witnesses' oral presentation