The plaintiff seeks substantial damages in respect of injuries said to have been caused by the negligence of the defendant on 15 March 2013.
The matter was first allocated a hearing date by the Registrar in 2019. I commenced a seven-day hearing on 16 November 2020.
I refer to my earlier judgment dated 17 November 2020 in respect of the plaintiffs' application to rely on a report of Dr Brew, which was not served in accordance with earlier Court directions and the rules of the Court. [1]
On the third day of the hearing, the employer plaintiffs (William Andrew Kelly, William Richard Kelly and Margaret Jane Kelly) served a handwritten statement of Dr Amy Kelly on the defendants. The statement is a short statement and purports to include comments and observations of Dr Kelly about conversations she had following the plaintiff's accident and, in particular, includes evidence as to her recollection of something said by her husband, William Andrew Kelly ("Mr Kelly"), at some time after the accident.
The first occasion on which the defendant was given notice of the fact that the plaintiff would be seeking to rely on any evidence from Dr Kelly was the third day of the hearing.
On the third day of the hearing, the employers called Mr Kelly as a witness in their case. During examination-in-chief, Mr Robison (who appears on behalf of the employers) asked a question of Mr Kelly about what he may have said to his wife, Dr Kelly, after the accident. The question was objected to and I rejected it on the basis that it could only have been relevant to the credibility of the witness.
Mr Kelly was cross-examined extensively by Mr McCulloch on behalf of the defendants. The effect of the cross-examination is that it was fairly and squarely put to Mr Kelly that he did not witness that which he says he witnessed and that the plaintiff's accident did not occur in the manner alleged by the plaintiff. There was a direct challenge to the credibility of Mr Kelly.
At the conclusion of cross-examination, Mr Kelly was re-examined but no question was asked of him about anything that he might have said to his wife after the accident, that is, the same question that Mr Robison sought to ask him in examination-in-chief.
After Mr Kelly has left the witness box and sat in the body of the Court, as was his entitlement (apart from anything else he is a party to the proceedings), Mr Robison made an application to rely on the written statement of Dr Amy Kelly which had been served on the third day of the hearing, suggesting either that the employer could simply rely on the statement or call oral evidence from the witness.
I asked Mr Robison for an explanation as to how it had all come about that the employers were seeking to rely on this handwritten statement at this time without any compliance with earlier Court orders or the rules.
After he had made some short submissions, Mr Renshaw (who appears for the injured plaintiff), made a submission that the employers should be permitted to recall Mr Kelly for further re-examination on the issue, the subject of the handwritten statement.
The defendants oppose the employers relying on the handwritten statement and the employers being given leave to recall Mr Kelly to ask further questions in re-examination on a number of bases, but primarily that:
1. There has been earlier non-compliance with Court orders and directions in respect of service of evidence. This is a reference to the service of Dr Brew's report, about which I have already made orders.
2. There has been no explanation offered as to how this has all come about, and in circumstances in which the plaintiff seeks to rely on evidence not served in accordance with the rules, it is necessary there be some explanation.
3. This application and submissions were made with Mr Kelly sitting in the back of the court listening.
Having heard those submissions, Mr Robison obtained further instructions. The explanation for the late service of the handwritten statement is that Dr Kelly attended Court, presumably with her husband, Andrew Kelly, and that during a conversation with Mr Renshaw, she either volunteered or was asked about the matters the subject of her statement. It was the first notice that those representing the employers or the injured plaintiff had of the fact that she might have such evidence (if it be relevant) to give.
Whilst Mr Robison offered to call Mr Renshaw to verify that fact, Mr McCulloch appropriately accepted counsel's statement. It would hardly have been appropriate for Mr Renshaw to have entered the witness box.
The applications for leave to recall Andrew Kelly to adduce further evidence in re-examination and to rely on the statement of Dr Amy Kelly are intertwined. I should say, at this stage, I am not making any decision as to whether Dr Kelly's evidence is admissible. I understand there is a dispute between the parties about that and that can be dealt with later if that arises.
It is most unsatisfactory that the plaintiffs in this matter have not complied with Court directions and Court orders in respect of preparation and service of all proper evidence on which they rely.
Mr McCulloch suggests that it is difficult to accept that no-one on behalf of the plaintiffs might have spoken to Dr Kelly and obtained a statement from her at some earlier time. However, Mr Robison assures me, and I accept, that no-one on behalf of the plaintiff did speak to Dr Kelly and obtain a statement.
It seems that she might have been in attendance with her husband, Mr Kelly, from time-to-time, but no-one apparently thought to ask her about whether she had anything relevant to say for the purpose of these proceedings.
In making any decision, I would of course be mindful of and apply s 56 of the Civil Procedure Act 2005 (NSW). The overriding purpose of the Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. However, I might remind those representing the plaintiffs that under s 56(3) the parties to proceedings also have "a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court."
This is the second application made by the plaintiffs - and I mean the employers and the injured plaintiff - to rely on evidence which was not served in accordance with the rules of the Court.
Having said that, I accept two matters raised by Mr Robison, being that he misunderstood the effect and reasons for my rejection of his question in examination-in-chief and that no-one thought to ask Dr Kelly about whether she might be able to give any relevant evidence at any time, until Mr Renshaw asked the question on the third day of the hearing.
Mr Kelly is still here. He can return to the witness box and, subject to any objection, which Mr McCulloch is reserving the right to make, be asked further questions.
In those circumstances, I grant leave to the employers to recall William Andrew Kelly, to ask any further questions in re-examination on the subject which has been the subject of the application.
In circumstances in which the evidence of Dr Kelly is very limited and goes to one discrete point which, in my view, can be the subject of cross-examination by Mr McCulloch and could not have been the subject of any independent investigation by those representing the defendant because it is simply a conversation which is said to take place between Mr Kelly and his wife Dr Kelly, I grant leave to the plaintiff to serve the statement out of time.
I am not, in making this decision, making any decision as to the admissibility of all of Dr Kelly's statement. I will no doubt hear argument about that in due course.
[2]
Endnote
Kelly v Thorn; Monteleone v Thorn [2020] NSWSC 1933.
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Decision last updated: 19 February 2021