Hodder v Hamilton and Fitzpatrick (Ruling No 2)

[2014] VCC 219

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
GENERAL DIVISION

Case No. CI-12-00943

ALLAN HODDER	Plaintiff
v
TRACEY HAMILTON	First Defendant
and
JOHN PAUL FITZPATRICK	Second Defendant

---

JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	11, 12 and 13 February 2014
DATE OF RULING:	13 February 2014
CASE MAY BE CITED AS:	Hodder v Hamilton & Fitzpatrick (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2014] VCC 219

RULING
---

Subject:  DISCHARGE OF JURY

Catchwords:             Cross-examination by Defence Counsel – characterisation by Defence of events as “extraordinary” and “ridiculous” – consistency of characterisation with plaintiff’s evidence

Ruling:  Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Hore-Lacy SC with Mr J P Brett	Arnold Thomas & Becker
For the Defendants	Mr C J Blanden SC with Mr B G Mason	Hunt & Hunt

HIS HONOUR:

1       In this matter, application was made by Senior Counsel for the plaintiff to discharge the jury effectively on the basis that at a number of places in the transcript, namely at transcript 77, commencing line 7; transcript 84, commencing line 7; transcript 85, commencing line 8; transcript 92, commencing line 20; transcript 93, commencing line 1, the effect of the questions by Defence Counsel during the cross-examination of the plaintiff amounted to a characterisation by defendants’ counsel that the sequence of events was extraordinary and ridiculous and thus would have induced the plaintiff to have made complaint of same to either the second-named defendant, the ambulance officer or the hospital after the event.  Insofar as counsel for the defendants used terms such as “extraordinary” and “ridiculous”, together with “lunatic manoeuvre” (the latter being subsequently withdrawn in front of the jury), in my view, Counsel’s characterisation in that form is at least consistent with the plaintiff’s evidence-in-chief that when he was several rungs up the ladder and the second-named defendant then alighted the ladder, causing it to shake or tremble, induced him to utter an expletive along the lines of “for fuck’s sake” such that the questions are permissible in the context of this case.

2       I dismiss the application.

- - -