District Court
New South Wales
Medium Neutral Citation: Anthony Glohe v Nicholas Simington [2016] NSWDC 127 Hearing dates: 23 - 27 November 2015; 30 May 2016 Date of orders: 30 May 2016 Decision date: 30 May 2016 Jurisdiction: Civil Before: Cogswell SC DCJ Decision: MFI 12 is admitted into evidence and the limitations on exhibit 1 under s 136 of the Evidence Act are removed.
Catchwords: TORTS - Negligence - Road accident cases – Liability of drivers of vehicles – Failure to look-out – Pedestrian accidents; EVIDENCE – Admissibility – Hearsay – Exception: documents – General principles – Matters relating to maker of statement – Attendance and calling – Whether maker “available” – Whether inability to cross-examine maker is unfair prejudice under s135 Evidence Act Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Fulham Partners LLC v National Australia Bank Limited [2013] NSWCA 296
Leybourne v Permanent Custodians Limited [2010] NSWCA 78
Papakosmas v The Queen [1999] HCA 37; 186 CLR 297
R v Clark [2001] NSWCCA 494; 123 A Crim R 406
Seven Network Limited v News Limited (No 8) [2005] FCA 1348Category: Procedural and other rulings Parties: Anthony Glohe (Plaintiff)
Nicholas Simington (Defendant)Representation: Counsel:
Solicitors:
Mr D Toomey SC with Mr D Woodbury (Plaintiff)
Mr P Ryan (Defendant)
Toby Tancred Solicitor (Plaintiff)
Moray & Agnew (Newcastle) (Defendant)
File Number(s): 2014/239297 Publication restriction: None
Judgment
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This is a case where a man claims he was run over by another man who was driving a car. He says the other man swerved towards where he was standing beside the road and injured him. The man driving the car denies he did and denies that he was in any way negligent for the injuries which the man at the side of the road received. The man at the side of the road is Mr Glohe. The man driving the car is Mr Simington.
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The case started before me in Orange on 23 November 2015. Mr D R Toomey SC, who appears with Mr D Woodbury, called his client, Mr Glohe, to give evidence. Other witnesses were called. Mr P D Ryan, who appears for Mr Simington, called his client to give evidence a few days into the case. In circumstances which will be obvious from the transcript, Mr Simington could not complete his evidence. The case was adjourned for directions and further hearing to Sydney.
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Today Mr Ryan has produced and tendered an affidavit of a Ms Burrows dated 17 March 2016. It became exhibit VD3. It attaches a report from Dr Andrew Robertson, a consultant psychiatrist. That report concludes that "Mr Simington is psychiatrically unfit to give evidence in this matter." To address the fact that his client is not able to complete his evidence, Mr Ryan tenders exhibit 1. Exhibit 1 is the transcript of an interview between the police and his client taken at the time of the accident. Exhibit 1 is presently limited under s 136 of the Evidence Act 1995. The effect…
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- AGLC
- Anthony Glohe v Nicholas Simington [2016] NSWDC 127
- Case
- [2016] NSWDC 127
- Decision Date
CaseChat Overview and Summary
The court considered whether a document, MFI 12, could be admitted as evidence and whether the limitations on exhibit 1 under section 136 of the Evidence Act should be lifted. The plaintiff argued that the defendant’s inability to cross-examine the maker of the document was an unfair prejudice under section 135 of the Evidence Act. The court examined whether the maker of the statement was available to be called as a witness and whether the defendant’s inability to cross-examine them constituted an unfair prejudice.
After evaluating the arguments and the relevant provisions of the Evidence Act, the court admitted MFI 12 into evidence and removed the limitations on exhibit 1 under section 136 of the Evidence Act. The court found that the maker of the statement was not available to be called as a witness and that the defendant’s inability to cross-examine them did not constitute an unfair prejudice. Therefore, the plaintiff's evidence was deemed admissible.
Orders
Orders of the court
MFI 12 is admitted into evidence and the limitations on exhibit 1 under s 136 of the Evidence Act are removed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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