Kelly v Thorn; Monteleone v Thorn (No 4)

[2020] NSWSC 1936

Supreme Court

New South Wales

Medium Neutral Citation:

Kelly v Thorn; Monteleone v Thorn (No 4) [2020] NSWSC 1936

Hearing dates:

20 November 2020

Date of orders:

20 November 2020

Decision date:

20 November 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

The plaintiff’s application to adduce evidence from Mr Pulver is rejected.

Catchwords:

EVIDENCE — relevance — expert evidence

Category:

Procedural rulings

Parties:

Proceedings 2015/326714
William Andrew Kelly (First Plaintiff)
William Richard Kelly (Second Plaintiff)
Margaret Jane Kelly (Third Plaintiff)
Andrew Thorn (First Defendant)
Thorn Transport Pty Limited (Second Defendant)

Proceedings 2016/74936
Ross Monteleone (formerly Poyser) (Plaintiff)
Andrew Thorn (First Defendant/First Cross-Claimant)
Thorn Transport Pty Limited (Second Defendant/Second Cross-Claimant)
William Andrew Kelly (First Cross-Defendant)
William Richard Kelly (Second Cross-Defendant)

Representation:

Counsel:
Proceedings 2015/326714
L D Robison (Plaintiffs)
M T McCulloch SC with D P Kelly (Defendants)

Proceedings 2016/74936
A Renshaw with B Adam (Plaintiff)
M T McCulloch SC with D P Kelly (Defendants/Cross-Claimants)
L D Robison (Cross-Defendants)

Solicitors:
Proceedings 2015/326714
Benson Law (Plaintiffs)
Gillis Delaney Lawyers (Defendants)

Proceedings 2016/74936
AR Conolly & Company Lawyers (Plaintiff)
Gillis Delaney Lawyers (Defendants/Cross-Claimants)
Benson Law (Cross-Defendants)

File Number(s):

2015/326714; 2016/74936

Publication restriction:

None

REVISED EX TEMPORE Judgment

1. This is a further application by the plaintiff to adduce additional evidence that was not served in accordance with the Court’s earlier orders and rules. On this occasion, the plaintiff seeks to adduce oral evidence from a Mr Paul Pulver who is the state manager of Livestock, Bulk and Rural Carriers Association.

2. On 8 September 2020, the solicitors for the plaintiff, AR Conolly & Co, wrote to the solicitors for the defendants informing them that they propose to call as an expert Mr Pulver to give evidence about the responsibilities of stock carriers of sheep.

3. According to the letter of 8 September 2020, Mr Pulver had spoken to them and was happy to give evidence but had declined to provide a statement of his expert opinion because he is the president of the association of which the defendant is a member.

4. As set out in the letter of 8 September 2020 the plaintiff says, “We've put you on notice of the following expert evidence which it is proposed that Paul Pulver will give…”. There is then a summary of the evidence which is to the effect that:

1. it is usual practice for a person such as the plaintiff assisting the stock carrier to put his arm through the rails of the trailer for the purposes of turning stock or helping stock out;

2. electric prods are banned from use on sheep; and

3. when stock is loaded, carried and unloaded, the stock carrier is responsible for the loading, carrying and unloading.

5. Mr Renshaw submits that this evidence is really evidence of custom and usage rather than expert evidence and should be permitted on that basis.

6. Mr McCulloch objects to the admission of the evidence on the basis that:

1. it is plaintiff’s case that he was instructed by the defendant to place his arm through the rails rather than that, as a matter of practice, that is in fact what all persons such as the plaintiff do when assisting a stock carrier;

2. Mr Andrew Kelly had already given evidence to the effect there is evidence of such a practice; and

3. the submission that this is really custom and usage-type evidence and not expert evidence should not be accepted.

7. I accept the defendants’ submissions.

8. Firstly, I have difficulty understanding the probative value of such evidence, having regard to the case that is being pursued by the plaintiff. Secondly, the statement about electric prods has not been raised in any pleadings and does not appear to be an issue in the case. Thirdly, it is not up to Mr Pulver to offer an opinion as to who is responsible, that is, legally responsible, for loading and unloading the sheep. Fourthly, it does seem to me that such evidence would be in the nature of expert evidence.

9. Indeed, the solicitors for the plaintiff specifically informed the solicitors for the defendants that the plaintiff intended to call Mr Pulver as an expert to give expert evidence.

10. In the circumstances, the plaintiff’s application to adduce evidence from Mr Pulver is rejected.

**********

Decision last updated: 19 February 2021