Nominal Defendant v Saleh

(2011) 57 MVR 412; [2011] NSWCA 16

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appellate review of findings of fact
3. › Errors in process of fact-finding
4. › Whether denial of procedural fairness
5. › Whether defendant deprived of fair trial
6. › Whether substantial miscarriage of justice
7. › Supreme Court Act 1970 (NSW), s 75A
8. › Uniform Civil Procedure Rules 2005 (NSW), r 51.53
1. Appeal
2. › Appellate review
3. › Natural justice
4. › Whether case determined on points not raised by parties
5. › Whether primary judge acted of own motion to reject evidence absent cross-examination or submissions
6. › Whether failure to consider parties' submissions
7. › Whether failure to give party opportunity to deal with potential adverse finding
1. Torts
2. › Negligence
3. › Motor vehicle accident
4. › Whether unidentified vehicle caused plaintiff's accident
5. › Whether verdict in plaintiff's favour sustainable
6. › Motor Accidents Compensation Act 1999 (NSW)
1. Evidence
2. › Expert evidence
3. › Opinion
4. › Whether factual basis for expert opinion established
5. › Whether facts expert relied on sufficiently like facts established at trial
6. › Whether open to primary judge to reject opinion on basis factual foundation not established

Quick Take

A trial judge who rejects evidence on grounds not raised by the opposing party in cross-examination or submissions, and without giving the affected party an opportunity to address those criticisms, denies that party procedural fairness. This extends to expert evidence where the factual foundation for the expert's opinion was not challenged. Where such procedural unfairness affects the entitlement of a party to make submissions on issues of fact, it is difficult for a court of appeal to conclude that compliance with natural justice could have made no difference, and a new trial will ordinarily be ordered.