Fuller v McLeod [2016] NSWDC 371

District Court New South Wales

Medium Neutral Citation: Fuller v McLeod [2016] NSWDC 371 Hearing dates: 23 November 2016 Date of orders: 23 November 2016 Decision date: 23 November 2016 Jurisdiction: Civil Before: Neilson DCJ Decision: Leave granted to tender photographs MFI 5 Catchwords: EVIDENCE – PHOTOGRAPHS – Copies of photographs not served pursuant to UCPR 31.10 – Produced on subpoena by Commissioner of Police and an insurer – Both parties have access to the photographs for a considerable period of time – Leave to tender photographs granted Legislation Cited: Government Information (Public Access) Act 2009 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: Craig Anthony Fuller (Plaintiff) Peter McLeod (Defendant) Representation: Counsel: Mr J Ringrose (Plaintiff) Mr D Hanna (Defendant)

Solicitors: Ticli Blaxland Lawyers (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2014/96759 Publication restriction: No

Judgment 1. HIS HONOUR: The plaintiff seeks to tender MFI 5. MFI 5 are 25 poor quality images in black and white of what were originally photographs. The plaintiff objects to the tender of MFI 5 pursuant to UCPR 31.10 on the basis that they have not been served in accordance with that rule at least seven days prior to the commencement of the hearing. 2. The first thing to note is the provenance of the photographs. Each bears at the foot an over‑stamp, if I may use that expression, headed, "Government Information (Public Access) Act 2009". Beneath that are the words, "Document has been issued by the NSW Police Force Information Access Unit". Clearly the original documents were held, or are held, by the New South Wales Police. 3. A number of subpoenas for production were issued to the NSW Police. The first subpoena was returned on 12 June 2014. It became packet S5. A second subpoena addressed to the Commissioner of Police was returned on 17 June 2014, and that packet was marked S9. A third subpoena for production was issued to the NSW Police Force and returned on 11 May 2015. That packet of documents was marked exhibit S13. None of the photographs in MFI 5 are contained in any of the packets of documents produced by or on behalf of the NSW Police. 4. On 27 May 2014 a subpoena passed under the seal of the Court at the request of the defendant's solicitor addressed to CGU Workers Compensation. Documents were produced by CGU Workers Compensation (NSW) Limited on 17 June 2014. The photographs which are MFI 5 were contained in the documents produced by CGU (Workers Compensation). They are covered by a letter from the NSW Police Force addressed to CGU Insurance bearing date 23 November 2011, which was received by CGU Workers Compensation (NSW) Limited on 25 November 2011. The covering letter is a "Notice of Determination" under the Government Information (Public Access) Act 2009, forwarded to the insurer by Senior Sergeant Brand, Coordinator of the Information Access Unit of the NSW Police. 5. It is clear that the photographs were originally in the records of the NSW Police Force. That packet of documents was inspected by the defendant's solicitors on 18 June 2014, and by the plaintiff's solicitors on 20 June 2014, two days later. On 14 December 2015 a second subpoena addressed to CGU (Workers Compensation) was issued at the request of the solicitor for the defendant and passed under the seal of the Court. The documents were produced by the addressee of the subpoena on 27 January 2016. Those documents contain another copy of MFI 5, together with a copy of the same determination which originally covered inter alia the documents which became MFI 5. That determination also covers other documents produced by the NSW Police. That packet of documents was inspected by the plaintiff on 18 February 2016, and by the defendant on 2 March 2016. In other words, each party's solicitor had been well aware of the existence of these photographs since June 2014, over two years ago. Each party clearly had photocopy access to the documents. 6. When I look at the documents, it becomes clear to me that they were made by the members of the Police Force on the date of the accident here in question, 27 April 2011. The thing which might throw one "off track" is the photocopy of a Queensland registration plate DD 4330, though that is immediately followed by photographs of a trailer. The trailer is identified in exhibit 1 as having a Queensland registration O25 QHX; however, that might be the wrong registration number. It was provided by the defendant to Police in Queensland when he made a statement at Goodna on 10 May 2011, a number of weeks after the collision in question. Otherwise, there is nothing inconsistent with what I have heard and seen in these proceedings. 7. I can identify the plaintiff from the first photograph in MFI 1 and MFI 5. The second photograph appears to be of an elbow and might show an abrasion. Photographs numbered 3 and 4 are of jeans which, it would appear to me, were still on someone's leg. The photograph which I have numbered 5 is the photograph of the Queensland registration plate DD 4330. Photographs 6, 7, 8 are all of a trailer similar to the trailer described by the plaintiff and which is undoubtedly shown in exhibit B. Photographs 9, 10 and 11 show a damaged tyre on a wheel which appears to be laying on a piece of metal which looks awfully like the floor of the trailer which can be seen in the photograph numbered 6 and is consistent with the evidence of the defendant. He had to get a new tyre, and what is shown could be the tyre and wheel that were removed from the trailer in Woodburn shortly after the collision. Photograph 12 in MFI 5 shows the registration number of the plaintiff's truck, and a number of photographs numbered between 13 and 17 appear to be of truck parts consistent with the damage to the truck identified by Senior Constable Brown in his notebook, a copy of which is exhibit 2. 8. Photographs 18, 19, 20 show what appear to be some grass, and perhaps some bitumen, and some debris, and which prove absolutely nothing. However, photograph 21 shows on its right‑hand side bitumenised shoulder of a road, then a single lane of what appears to be the Pacific Highway and then the brython wire fence separating one side of the carriageway from the other and referred to by the plaintiff as the "cheese cutter". It would appear to be an attempt to photograph the scene of the accident that the police sought to identify. Photograph 22 includes a photograph of a police car facing one direction and looking back in the direction from which the police car had travelled. The police car is stationary, parked partly on the shoulder and the rest of it on the verge on the side of the shoulder. 9. Photograph 23 appears to be a photograph of a very old piece of wood, which could once have been a guide post, and photograph 25 is of the same piece of wood with a police baton next to it to indicate its length. Those photographs were clearly made by the police. A policeman put the baton beside it to measure the length in question. The documents up to photograph 29, is another very poor image, again, show a part of the shoulder, carriageway and brython wire fence of a road. 10. The only inference to be drawn from the photographs which I have numbered 22 and photograph 25 is that these were photographs taken by the members of the New South Wales Police. They have been available to both parties for a long time. Each party was in a position to try to clarify how they were made and when they were made. However, they were not shown to Senior Constable Brown, who might have been able to have his memory jogged by their being shown to him, and he may have been able to then recollect taking the photographs. They were shown to Senior Constable Hosken who had no recollection of either his or Senior Constable Brown's taking photographs, but his recollection of events was extremely vague. He was able to identify to a large extent what the photographs showed, but they did not jog his memory to indicate to him that he had taken the photographs but the same approach had not been taken with Senior Constable Brown. 11. In the circumstances, I grant leave pursuant to UCPR 31.10(2)(b) for the plaintiff to tender the photographs, MFI 5. There are some photographs from which no inference at all can be drawn, and, as I said, the images are of very poor quality, but, nevertheless, I can see how they might be relevant and I permit the tender. MFI 5 will become exhibit P.