The Nominal Defendant v Richards & Anor [2001] NSWCA 367

The Nominal Defendant v Richards & Anor [2001] NSWCA 367

Delaney DCJ made a fundamental error by treating the identity of the vehicle separately from the evidence identifying Mr Busbridge as the driver. If Mr Busbridge was the driver of the blue Ford Falcon involved in the collision, the overwhelming inference would be that the vehicle was QKR 928 and therefore identified for the purposes of s 28. The failure to make the critical finding whether Mr Busbridge was the driver meant that the trial was not decided according to law. Because that issue depended on credibility findings and Ms Richards had no notice of the proposed amendment seeking a new trial, the appeal and amendment application were not finally determined and had to be re-listed...

Jurisdiction
Australia
Judgment Date
16 October 2001
Procedural Posture
Motor Accidents Damages Appeal / Appeal From District Court Liability Verdict; Application to Amend Notice of Appeal to Seek a New Trial Deferred
Outcome
No final order was made on the application to amend the Notice of Appeal or on the appeal; the Nominal Defendant was required to re-list the appeal after giving notice to Ms Richards and serving these reasons on her.
Legal Topics
['nominal Defendant' 'motor Accidents Act 1988, S 28' 'identification of Vehicle' 'identification Evidence' 'amendment to Notice of Appeal' 'new Trial']
['motor Accidents' 'civil Procedure' 'evidence'] ['nominal Defendant' 'motor Accidents Act 1988, S 28' 'identification of Vehicle' 'identification Evidence' 'amendment to Notice of Appeal' 'new Trial']

Case Brief

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Procedural Posture

Motor Accidents Damages Appeal / Appeal From District Court Liability Verdict; Application to Amend Notice of Appeal to Seek a New Trial Deferred

Legal Issues

  1. 1 ["Whether the trial judge erred in concluding that the identity of the vehicle that collided with Ms Richards' vehicle was not established for the purposes of s 28 of the Motor Accidents Act 1988." 'Whether the trial judge erred by failing to decide whether Mr Busbridge was the driver of the offending vehicle.' 'Whether the Court of Appeal could enter judgment against Mr Busbridge or should consider ordering a new trial.' "Whether the Nominal Defendant's application to amend the Notice of Appeal should be determined only after notice to Ms Richards."]

Ratio Decidendi

Delaney DCJ made a fundamental error by treating the identity of the vehicle separately from the evidence identifying Mr Busbridge as the driver. If Mr Busbridge was the driver of the blue Ford Falcon involved in the collision, the overwhelming inference would be that the vehicle was QKR 928 and therefore identified for the purposes of s 28. The failure to make the critical finding whether Mr Busbridge was the driver meant that the trial was not decided according to law. Because that issue depended on credibility findings and Ms Richards had no notice of the proposed amendment seeking a new trial, the appeal and amendment application were not finally determined and had to be re-listed...

Court Disposition

No final order was made on the application to amend the Notice of Appeal or on the appeal; the Nominal Defendant was required to re-list the appeal after giving notice to Ms Richards and serving these reasons on her.

Orders

  • ['The Nominal Defendant to re-list the appeal after having given notice of the application for the amendment to the Notice of Appeal to the first respondent and serving a copy of these reasons upon the first respondent.' "At the resumed hearing the application for amendment to the Notice of Appeal will be determined...