Supreme Court New South Wales Medium Neutral Citation: Kelly v Thorn; Monteleone v Thorn (No 3) [2020] NSWSC 1935 Hearing dates: 19 November 2020 Date of orders: 19 November 2020 Decision date: 19 November 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: I grant leave to the defendants to adduce further evidence from the doctors, limited at this stage to the extent to which any film impacts upon matters raised in their original reports. Catchwords: EVIDENCE — witness evidence — requests to call witnesses — expert witnesses Cases Cited: Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372 Markus v Provincial Insurance Company Limited (1983) 25 NSWCCR 1 Category: Procedural rulings Parties: Proceedings 2015/326714 William Andrew Kelly (First Plaintiff) William Richard Kelly (Second Plaintiff) Margaret Jane Kelly (Third Plaintiff) Andrew Thorn (First Defendant) Thorn Transport Pty Limited (Second Defendant) Proceedings 2016/74936 Ross Monteleone (formerly Poyser) (Plaintiff) Andrew Thorn (First Defendant/First Cross-Claimant) Thorn Transport Pty Limited (Second Defendant/Second Cross-Claimant) William Andrew Kelly (First Cross-Defendant) William Richard Kelly (Second Cross-Defendant) Representation: Counsel: Proceedings 2015/326714 L D Robison (Plaintiffs) M T McCulloch SC with D P Kelly (Defendants) Proceedings 2016/74936 A Renshaw with B Adam (Plaintiff) M T McCulloch SC with D P Kelly (Defendants/Cross-Claimants) L D Robison (Cross-Defendants) Solicitors: Proceedings 2015/326714 Benson Law (Plaintiffs) Gillis Delaney Lawyers (Defendants) Proceedings 2016/74936 AR Conolly & Company Lawyers (Plaintiff) Gillis Delaney Lawyers (Defendants/Cross-Claimants) Benson Law (Cross-Defendants) File Number(s): 2015/326714; 2016/74936 Publication restriction: None REVISED EX TEMPORE Judgment 1. The defendants seek to adduce further evidence from the doctors they have retained for the purposes of this case, and to cross-examine any doctors retained by the plaintiff, in relation to the film shown by the defendants to the plaintiff during cross-examination. 2. The plaintiff and the employer plaintiffs oppose the defendants being permitted to adduce any further evidence from any doctor or, indeed, cross-examine any of their own doctors on the material which was the subject of the film. 3. During the course of argument, there was extensive debate about the proper approach for a party to take in circumstances in which a party seeks to withhold evidence, that is, not serve evidence prior to the hearing in accordance with the orders of the Court having regard to the principles set out in cases such as Markus v Provincial Insurance Company Limited [1] and Halpin v Lumley General Insurance Ltd. [2] 4. Mr Renshaw expressed concern that the plaintiff was unaware that earlier orders had been made allowing the defendant to withhold the surveillance film or any medical evidence. Mr McCulloch informed the Court that, although an application had been made seeking an order that the defendants not be required to serve the film, Garling J had dismissed the application. 5. However, he submits that the film had been shown to the plaintiff and admitted into evidence without objection by the plaintiff and, as such, it is now necessary and permissible for the defendants to obtain further evidence from the doctors on the effect and consequences of the film. 6. He submits that otherwise evidence given by the doctors would be based on incomplete facts. That is, they would not be aware of the film and how (on the defendants' case) it was inconsistent with the history provided to those doctors. 7. Mr Renshaw submits (using his language) that the film is anodyne and of little use. He opposes the doctors being able to give further evidence. He says they should be shown all of the film — that is, all seven hours of the film — and should be informed of how long actual surveillance was undertaken. He submits that, unless they are shown all of the film, they will gain a false view as to the significance of what is shown in the film. 8. By my calculations, the defendants organised surveillance for 328 hours of the plaintiff. They obtained approximately seven hours of film. 9. I directed that the defendants make all of the film and all of the reports available to the plaintiff whilst cross-examination was taking place. Mr Renshaw did not seek to re-examine the plaintiff on any other aspect of the film not shown to the plaintiff. He has not, until now, raised any issue about any other matters that might be relevant in the film. I should add that the film that was shown to the plaintiff was an edited or "highlighted" version of perhaps an hour or more. 10. I accept Mr McCulloch's submission that in circumstances where the film has been admitted without objection, where the whole of the film has been provided to those representing the plaintiff, and where doctors who have formed opinion without regard to the film (the defendants say on a false history), the defendants should be permitted to adduce such further evidence as may be available from the doctors once they have seen the film. 11. In the circumstances, I grant leave to the defendants to adduce further evidence from the doctors, limited at this stage to the extent to which any film impacts upon matters raised in their original reports. ********** Endnotes 1. (1983) 25 NSWCCR 1. 2. (2009) 78 NSWLR 265; [2009] NSWCA 372. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2021