Kelly v Thorn; Monteleone v Thorn (No 6) [2020] NSWSC 1938

Kelly v Thorn; Monteleone v Thorn (No 6) [2020] NSWSC 1938

The defendants had a legitimate forensic purpose for not earlier providing the photograph, and although the plaintiffs were taken by surprise, service at the end of Mr Kelly's cross-examination rather than immediately before the evidence would not in reality have made any difference. The photograph purported to show the inside of the trailer and was capable of being understood by looking at it, so the defendant was permitted to rely on it notwithstanding non-compliance with r 31.10.

Jurisdiction
Australia
Judgment Date
20 November 2020
Procedural Posture
Procedural Ruling on Admissibility of Documentary Evidence / During Hearing, While the Defendant Was Adducing Further Evidence in Chief
Outcome
The defendant was permitted to rely on the photograph notwithstanding non-compliance with r 31.10 of the Uniform Civil Procedure Rules 2005 (NSW).
Legal Topics
['documentary Evidence' 'tender of Photographs' 'late Service' 'uniform Civil Procedure Rules 2005 (nsw), R 31.10' 'legitimate Forensic Purpose']
['evidence' 'civil Procedure'] ['documentary Evidence' 'tender of Photographs' 'late Service' 'uniform Civil Procedure Rules 2005 (nsw), R 31.10' 'legitimate Forensic Purpose']

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Procedural Posture

Procedural Ruling on Admissibility of Documentary Evidence / During Hearing, While the Defendant Was Adducing Further Evidence in Chief

Legal Issues

  1. 1 ['Whether the defendants should be permitted to rely on a photograph that had not been served in accordance with r 31.10 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the defendants had a legitimate forensic purpose for not previously giving the plaintiffs an opportunity to inspect the photograph.' 'Whether the plaintiffs were unfairly surprised or denied a fair opportunity to understand the photograph.']

Ratio Decidendi

The defendants had a legitimate forensic purpose for not earlier providing the photograph, and although the plaintiffs were taken by surprise, service at the end of Mr Kelly's cross-examination rather than immediately before the evidence would not in reality have made any difference. The photograph purported to show the inside of the trailer and was capable of being understood by looking at it, so the defendant was permitted to rely on it notwithstanding non-compliance with r 31.10.

Court Disposition

The defendant was permitted to rely on the photograph notwithstanding non-compliance with r 31.10 of the Uniform Civil Procedure Rules 2005 (NSW).

Orders

  • ['I permit the defendant to rely on the photograph not in accordance with r 31.10 of the Uniform Civil Procedure Rules 2005 (NSW).']