Kelly v Thorn; Monteleone v Thorn (No 6)

The defendants seek to rely on a photograph, not having served it in accordance with r 31.10 of the Uniform Civil Procedure Rules 2005 (NSW). The plaintiffs oppose the addition of the photographs on the basis that it has not been served in accordance with r 31.10. The defendants submit that the reason that the photograph was not previously served is because there was a legitimate forensic purpose in not serving the photograph in accordance with the rule.

Rule 31.10 requires that at least seven days before the commencement of a hearing, a party who intends to tender any plan, photograph, audio-visual recording or model at the hearing must give the other parties an opportunity to inspect it and agree to its admission without proof. As further set out in the rule:

The circumstances in which this issue arises is that there was an inspection or view of the scene and the trailer back on 23 February 2018. The defendants took a number of photographs and videos on which privilege has been claimed. I have already made a ruling on that challenge to the claim for privilege.

The plaintiff, Mr Monteleone, and another plaintiff, Mr Andrew Kelly, have given evidence and have been the subject of extensive cross-examination on the circumstances of the accident and the configuration of the trailer without reference to this particular photograph.

At the end of the plaintiffs’ lay evidence, the defendant was called. Although there has been an order for statements, the defendant, just like the plaintiffs before the defendant, sought leave to adduce further evidence. I granted leave on a limited number of topics.

It was during this further evidence being adduced in-chief that the defendant was asked a question about this photograph. Presumably he is going to be asked to describe what is in the photograph.

I accept that the defendant had a legitimate forensic purpose in not providing the photograph, although I must say that my understanding of a rule such as r 31.10 of the UCPR would be that, once that legitimate forensic purpose has been exercised, the rule should be complied with. That is, I understand the proposition that in a case in which the defendant says the accident simply did not occur, the defendant wished to hold back evidence which tended to suggest, on the defendant’s case, that the accident did not occur. However, that does not mean that, once that forensic advantage had been achieved, the photograph should not have been served.

The problem that arises in this matter is that the plaintiffs are taken by surprise because Mr Thorn has been called. No notice has been given to the plaintiffs about this additional further evidence or the photograph. However, having said all that, in reality, as I apprehend it, it would not have made any difference to the plaintiffs’ position if the photograph had been served at the end of the cross-examination of Mr Kelly, rather than before this evidence commences.

I should hasten to add that, although the purpose of r 31.10 is to ensure that a party is not caught by surprise, its intent is really that that other party is given a fair opportunity to understand what is contained in the photograph, such as a complex piece of equipment or a model or something like that.

In this case, this purports to be a photograph of the inside of the trailer and it is capable of being understood just by looking at the photograph. In those circumstances, I permit the defendant to rely on it.