Anthony Glohe v Nicholas Simington - [2016] NSWDC 127

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 1348
Category: Procedural and other rulings
Parties: Anthony Glohe (Plaintiff)
Nicholas Simington (Defendant)
Representation:
Counsel:
Mr D Toomey SC with Mr D Woodbury (Plaintiff)
Mr P Ryan (Defendant)
Solicitors:
Toby Tancred Solicitor (Plaintiff)
Moray & Agnew (Newcastle) (Defendant)

File Number(s): 2014/239297
Publication restriction: None

Judgment

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anthony Glohe v Nicholas Simington

Details

AGLC: Anthony Glohe v Nicholas Simington [2016] NSWDC 127
Case: [2016] NSWDC 127
Decision Date: 30 May 2016

CaseChat Overview and Summary

Anthony Glohe, the plaintiff, sued Nicholas Simington, the defendant, over a motor vehicle accident that occurred in Sydney, New South Wales. The plaintiff alleged that the defendant was negligent in failing to look out for pedestrians while driving, resulting in a collision. The case was heard in the Supreme Court of New South Wales. The central issue for the court was whether the defendant was negligent in failing to observe the plaintiff, who was a pedestrian, and whether the plaintiff’s evidence was admissible under the Evidence Act.

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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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 1348
Category:	Procedural and other rulings
Parties:	Anthony Glohe (Plaintiff) Nicholas Simington (Defendant)
Representation:	Counsel: Mr D Toomey SC with Mr D Woodbury (Plaintiff) Mr P Ryan (Defendant) Solicitors: Toby Tancred Solicitor (Plaintiff) Moray & Agnew (Newcastle) (Defendant)
File Number(s):	2014/239297
Publication restriction:	None