Kelly v Thorn; Monteleone v Thorn (No 7)

[2021] NSWSC 117

Supreme Court

New South Wales

Medium Neutral Citation:

Kelly v Thorn; Monteleone v Thorn (No 7) [2021] NSWSC 117

Hearing dates:

19 November 2020

Date of orders:

19 November 2020

Decision date:

19 February 2021

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

The statement of Dr Amy Kelly dated 19 November 2020 is admitted.

Catchwords:

EVIDENCE — documentary evidence — tender of documents — admissibility — late service — res gestae

Legislation Cited:

Evidence Act 1995 (NSW), s 108

Cases Cited:

Adelaide Chemical and Fertilizer Company Limited v Carlyle (1940) 64 CLR 514; [1940] HCA 44

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

Judgment

1. The plaintiff seeks to tender a statement of Dr Amy Grant dated 19 November 2020.

2. Although the statement was not served in accordance with the orders of the Court, I have already ruled on the objection on that basis.

3. This is the judgment in respect of the defendant’s contention that the following part of the statement is inadmissible:

“He said: ‘Oh my god, I think Ross may have broken his arm. Andrew Thorn dropped the deck of the truck on his arm.’”

4. The defendant submits that that statement is inadmissible. He submits that the statement is of no probative value and is not admissible to prove the fact of what occurred.

5. The plaintiff submits that the statement is admissible on two bases being:

1. it forms part of the res gestae; and

2. it is admissible as impacting upon the credibility of Andrew Kelly, having regard to s 108(3) of the Evidence Act 1995 (NSW).

6. Mr Kelly stated in his evidentiary statement and during cross-examination that he was present at the scene of the accident when the accident occurred. He stated that he observed the accident. He stated that he observed the deck of the trailer dropping onto the plaintiff’s arm.

7. Mr Kelly’s credibility is in issue.

8. It has been suggested (either expressly or by implication) that his evidence has been fabricated or reconstructed. He has been challenged on whether he was even there and, if he was there, what he saw.

9. There can be no doubt that the defendant’s position is that Mr Kelly could not have seen that which the plaintiff asserts happened and that which Mr Kelly asserts he saw, did not and could not have happened.

10. Evidence that in the short period after the accident, Mr Kelly went home and made the statement to his wife is, on the plaintiff’s case, evidence of a prior consistent statement of Mr Kelly. That is, the statement made to his wife is said to be consistent with the evidence he has given in these proceedings.

11. It is thus admissible as an exception to the credibility rule under s 108(3) of the Evidence Act. It is also admissible as part of the res gestae.

12. It is relevant on account of its contemporaneity with the accident.

13. It is not merely part of the narrative. It is contemporaneous with the events which happened. [1]

    1. Adelaide Chemical and Fertilizer Company Limited v Carlyle (1940) 64 CLR 514 at 526 (Starke J); [1940] HCA 44.

14. The essential question is whether Mr Kelly observed the accident said by the plaintiff to have occurred. The accident happened on his property. He went home after the accident and made the statement to his wife.

15. In my view, it is sufficiently contemporaneous with the res to be admissible as part of the res gestae.

16. The fact that, according to Dr Kelly, Mr Kelly said that the defendant dropped the deck on the plaintiff’s arm at a point contemporaneous with the accident is admissible, not only for the purpose of re-establishing the credibility of Mr Kelly, but is evidence of the fact that Mr Kelly did observe the deck drop on the plaintiff’s arm.

17. In the circumstances, the statement of Dr Amy Kelly dated 19 November 2020 is admitted.

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Endnote

Decision last updated: 19 February 2021