Kelly v Thorn; Monteleone v Thorn (No 2) [2020] NSWSC 1934

Kelly v Thorn; Monteleone v Thorn (No 2) [2020] NSWSC 1934

Although the plaintiffs' non-compliance with directions and orders about preparation and service of evidence was unsatisfactory, the Court accepted the explanation that Dr Amy Kelly's possible evidence only emerged on the third day of the hearing and accepted Mr Robison's explanation about the earlier re-examination issue. Mr Kelly was still present and could be recalled subject to objection, and Dr Kelly's proposed evidence was limited to a discrete conversation that could be tested by cross-examination and could not have been the subject of independent investigation by the defendants. Leave was therefore granted to recall William Andrew Kelly for further re-examination on the subject of...

Jurisdiction
Australia
Judgment Date
19 November 2020
Procedural Posture
Common Law Negligence Damages Proceedings / Procedural Rulings During Hearing on Applications to Recall a Witness for Further Re Examination and to Serve a Statement Out of Time
Outcome
Applications granted; admissibility of Dr Kelly's evidence reserved.
Legal Topics
['witness Evidence' 'recall of Witness for Further Re Examination' 'late Service of Evidence' 'service of Witness Statement Out of Time']
['evidence' 'civil Procedure'] ['witness Evidence' 'recall of Witness for Further Re Examination' 'late Service of Evidence' 'service of Witness Statement Out of Time']

Case Brief

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Procedural Posture

Common Law Negligence Damages Proceedings / Procedural Rulings During Hearing on Applications to Recall a Witness for Further Re Examination and to Serve a Statement Out of Time

Legal Issues

  1. 1 ["Whether the employers should be granted leave to recall William Andrew Kelly for further questions in re-examination about the subject of Dr Amy Kelly's statement." "Whether the plaintiff should be granted leave to serve Dr Amy Kelly's handwritten statement out of time." 'Whether the applications should be refused because of non-compliance with earlier Court orders, absence of explanation, and the circumstance that Mr Kelly heard the application from the body of the Court.']

Ratio Decidendi

Although the plaintiffs' non-compliance with directions and orders about preparation and service of evidence was unsatisfactory, the Court accepted the explanation that Dr Amy Kelly's possible evidence only emerged on the third day of the hearing and accepted Mr Robison's explanation about the earlier re-examination issue. Mr Kelly was still present and could be recalled subject to objection, and Dr Kelly's proposed evidence was limited to a discrete conversation that could be tested by cross-examination and could not have been the subject of independent investigation by the defendants. Leave was therefore granted to recall William Andrew Kelly for further re-examination on the subject of...

Court Disposition

Applications granted; admissibility of Dr Kelly's evidence reserved.

Orders

  • ['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.' 'I grant leave to the plaintiff to serve the statement out of time.']