Moran v Moran [No 1] [2000] NSWSC 149

Reported Decision : (2000) Aust Torts Reports 81-554

New South Wales Supreme Court

CITATION : Moran v Moran [No 1] [2000] NSWSC 149 revised - 28/03/2000 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20032/98; 21360/95 HEARING DATE(S) : 31/1/2000 1/2/2000 - 3/2/2000 JUDGMENT DATE : 3 February 2000

Kristina Moran (Pl) Douglas John Moran (1D) PARTIES : Greta Richmond Moran (2D) Peter Moran (3D) Moran Health Care Group Pty Ltd (4D) Doug Moran Holdings Pty Ltd (5D) JUDGMENT OF : Kirby J

COUNSEL : P Semmler QC/D E Baran (Pl) I Harrison SC/L McFee (Defs) SOLICITORS : Carroll & O'Dea (Pl) Clayton Utz (Defs) CATCHWORDS : Hearsay - Admissibility of conversation DECISION : Ref para 8

Revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

KIRBY J

Thursday 3 February 2000

20032/98 - Kristina MORAN v Douglas J MORAN & Ors 21360/95 - Kristina MORAN v Douglas J MORAN & Ors

JUDGMENT [No 1] - Re admissibility of conversation between plaintiff and Dr Bowen-James

1 HIS HONOUR: In the course of a brief opening of the defendant's case, Mr Harrison SC referred to a letter which the plaintiff had written to the first defendant in July 1994. The letter included comments which were critical of her late husband. Mr Harrison SC foreshadowed that if Mr Semmler QC, on behalf of the plaintiff, did not deal with the letter he would, when he cross examined Mrs Moran. 2 Mr Semmler QC in response, one gathers, to that invitation, sought to ask the plaintiff about certain advice which she had been given by Dr Alan Bowen-James, a psychiatrist, before the dispatch of the letter. Dr Bowen-James has been referred to in the evidence of Mrs Moran. It has been said that for a number of years he treated Mrs Greta Moran (the mother of the deceased, and the second defendant), and Mr Peter Moran (the brother of the deceased, and the third defendant). 3 The plaintiff has given evidence that, after certain family differences, Brendan Moran consulted Dr Bowen-James, as did she. Indeed, according to the plaintiff, Brendan did so as a condition of his continued receipt of salary from the fourth defendant, The Moran Health Care Group Pty Limited. 4 Dr Bowen-James, it should be said, has apparently since been struck off the medical register. I am told by Mr Semmler that he was approached by the plaintiff's solicitors, but refused to co-operate. He was not amongst the witnesses Mr Semmler identified at the outset of the case as witnesses he intended to call on behalf of the plaintiff. Mr Semmler informed me that he has no present intention of calling Mr Bowen-James. 5 However, Mr Semmler, in the absence of the jury, provided an outline of the evidence which he expected Mrs Moran would be in a position to give, relating to certain advice which she alleges was given to her by Dr Bowen-James. Dr Bowen-James is alleged to have said the following to the plaintiff: "Brendan is having a hard time dealing with the fact that he knows, and has always known, that his mother has never liked him, let alone loved him. Greta feels Brendan is evil. This is something that has gone back to Brendan's birth. It is not something that has developed. The Morans are a dysfunctional family. They have a lot of money and they think they can do what they like. Peter has always disliked Brendan. When they were very young Peter got the blame for something Brendan had done. Doug beat the crap out of Peter. He should have gone to hospital. They have all grown up in an atmosphere of extreme violence. You are not going to get them to back off on Brendan by bringing Peter's physical violence to their attention because they don't see that there is anything wrong with it. Doug and Greta's relationship is extremely violent." 6 The letter Mrs Moran sent to the first defendant in July 1994 is unquestionably relevant. It is a commentary upon certain events which are central to her claim. Her state of mind in sending that letter also seems to me relevant. Insofar as she had advice before the despatch of the letter, and that advice influenced her mind, the advice is a matter indirectly relevant. It does not, I believe, offend the hearsay rule. However, the conversation as set out above seems to me to go well beyond advice. It includes a commentary upon the family which is clearly prejudicial, and, in my view, arguably irrelevant. 7 Even if it is relevant, as being part of the advice that influenced Mrs Moran at the time she wrote to the first defendant, it seems to me, in terms of s135 of the Evidence Act, that its probative value is substantially outweighed by the danger of unfair prejudice to the defendants. 8 I therefore rule that the plaintiff may give evidence as to her conversation with Dr Bowen-James (as he then was) confined to the following: · First, that he said words to the effect that, "You are not going to get them to back off on Brendan by bringing Peter's physical violence to their attention because they don't see that there is anything wrong with it". · Secondly, anything said as to how she should approach the issue with the defendants. **********