Simoes v Kel Campbell Pty Ltd; Simoes v Moon

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Simoes v Kel Campbell Pty Ltd; Simoes v Moon [2018] NSWCA 284

Hearing dates:

21 May 2018

Decision date:

22 November 2018

Before:

McColl JA at [1];
Basten JA at [2];
Lonergan J at [47]

Decision:

In each matter:

 

(1)   Application for leave to appeal dismissed.

 (2)   Applicant to pay the respondent’s costs.

Catchwords:

APPEALS – leave to appeal – applicant purported to file notices of appeal as of right when leave required – summons seeking leave filed out of time on day of hearing – whether extension of time to file leave summons should be granted – whether leave to appeal should be granted

 

EVIDENCE – admissions – civil proceedings – applicant claimed to have green light when entering intersection – applicant made admission to the contrary to police in interview – notebook entry regarding interview admitted without objection – whether evidence of admission should have been excluded on basis it was influenced by violent, oppressive, inhuman or degrading conduct – Evidence Act 1995 (NSW), s 84

EVIDENCE – medical records – clinical notes included history of motor vehicle accident seemingly inconsistent with applicant’s evidence – clinical notes tendered by applicant without explanation or reservation – whether trial judge approached medical records with appropriate caution – Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 referred to

Legislation Cited:

District Court Act 1973 (NSW), s 127
Evidence Act 1995 (NSW), s 84

Cases Cited:

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Category:

Principal judgment

Parties:

2017/262699:
Americo Nuno Simoes (Applicant)
Kel Campbell Pty Ltd (Respondent)

  2017/262706:
Americo Nuno Simoes (Applicant)
Brian Vincent Moon (Respondent)

Representation:

Counsel:
S Wheelhouse SC/J E Doyon (Applicant)
M Claridge (Kel Campbell Pty Ltd)
J Turnbull SC/B Wilson (Brian Moon)

  Solicitors:
CMC Lawyers (Applicant)
KPL Lawyers (Kel Campbell Pty Ltd)
Sparke Helmore Lawyers (Brian Moon)

File Number(s):

2017/262699; 2017/262706

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

1 September 2017

Before:

Gibb DCJ

File Number(s):

2016/38448; 2016/191492

Judgment

1. McCOLL JA: I agree with Basten JA’s reasons and the orders his Honour proposes.

2. BASTEN JA: Bestic Street, Rockdale runs west from the Grand Parade at Brighton-Le-Sands until it meets the Princes Highway. There is a major intersection some halfway along its length where it crosses West Botany Street. On the afternoon of Saturday, 20 December 2014 the applicant, Americo Nuno Simoes, had driven south past the airport and turned right into Bestic Street, heading west. Brian Vincent Moon was driving a petrol tanker north on West Botany Street. At the intersection of Bestic Street and West Botany Street the tanker collided with the passenger side of Mr Simoes’ vehicle. The intersection was controlled by traffic lights.

3. On 5 February 2016 the owner of the prime mover, Kel Campbell Pty Ltd commenced proceedings against Mr Simoes in relation to the damage caused to the tanker. A defence was filed on 31 March 2016. On 23…