Case update: Thorn v Kelly

Mr Ross Monteleone suffered injuries in a work related incident on 15 March 2014 during his employment with William Andrew, William Richard, and Margaret Kelly (Kelly parties). At the time, Mr Andrew Thorn and Thorn Transport Pty Ltd (Thorn parties) were contracted to deliver the 800 merino sheep purchased by the Kelly parties to their property at Rugby.

In the course of unloading the sheep, the Thorn parties allegedly released a ramp suspended from the deck above where Mr Monteleone was unloading the sheep, without any warning to Mr Monteleone. In turn, the ramp struck Mr Monteleone and he suffered a number of physical injuries.

As a consequence of the injuries sustained and his incapacity for work as a result, Mr Monteleone lodged and claimed workers compensation payments from the Kelly parties’ workers compensation insurer.

Mr Monteleone also commenced proceedings out of the Supreme Court of New South Wales seeking damages for his personal injury against the Thorn parties.

The Kelly parties commenced proceedings before the District Court of New South Wales seeking indemnity from the Thorn parties in line with section 151Z of the Workers Compensation Act 1987 (NSW).

A summons was filed before the Supreme Court, interestingly by the Thorn parties, to transfer the District Court indemnity proceedings to the Supreme Court to be heard alongside Mr Monteleone’s personal injury proceedings.

It is noted that counsel for both the Thorn and Kelly parties agreed that the issues in both claims were substantially the same. That is, whether the parties were negligent, whether Mr Monteleone contributed to his injuries, any apportionment of liability between the parties and of course, the quantification of the damages.

However, there was a divergence as to whether the damages and indemnity proceedings ought to be heard together.

Counsel for the Thorn parties submitted that it was ‘against public interest to risk inconsistent verdicts if each case is decided separately in a different court1’. In this regard, counsel submitted that inconsistent verdicts would be ‘manifestly undesirable2’. Counsel also submitted that the overriding purpose of the Civil Procedure Act 2005 (NSW), as found at section 56, favoured one hearing of the claim, not two separate hearings.

Counsel for the Kelly parties submitted that there was no statutory requirement under section 151Z that required the two sets of proceedings to be heard together. Indeed, counsel argued that the indemnity claim was completely independent of the claim for damages and in his view inconsistent verdicts were ‘tolerable’ in the niche area of section 151Z3. Of interest, counsel also submitted that the Kelly parties would be prejudiced in the event that the indemnity claim was delayed, noting that Mr Monteleone’s injuries were yet to stabilise and therefore, the quantum assessment could not be completed with any accuracy.


The indemnity proceedings were ultimately transferred to the Supreme Court of New South Wales to be heard alongside Mr Monteleone’s claim for damages.

In coming to this decision, His Honour Justice Campbell considered the wide application of section 140 of the Civil Procedure Act 2005 (NSW) (transfer of proceedings to a higher court) and noted that although there was nothing before him to suggest that the indemnity claim would exceed the jurisdictional limit of the District Court, there was other ‘sufficient reason’ to transfer the matter.

In the circumstances, Justice Campbell considered that the Thorn parties demonstrated other ‘sufficient reasons’ to transfer the indemnity proceedings to the Supreme Court. Namely, that having two separate courts decide the same issues in two separate hearings was not desirable. In doing so, His Honour applied the principles enunciated in RCS Resolve FM v Serco Australia [2014] NSWSC 1477 at [20]:-

It is manifestly undesirable that the same issue (of fact or law or both) between the same parties should be considered by different judges in different courts. It leads to the risk of inconsistent verdicts. It raises the potential for estoppels to complicate one or other sets of proceedings. And it has the consequence, in terms of costs and other complexities and waste of resources…


The overriding purpose of civil litigation is to not only facilitate, the quick, cheap and just resolution of the issues in the proceedings but also to ensure that the courts resources are not wasted by having two separate trials on the same issues. This avoids inconsistent verdicts and other consequences such as issues of estoppel.

1Thorn v Kelly [2016] NSWSC 1748 (9 December 2016) at [7]
2RCS Resolve FM v Serco Australia [2014] NSWSC 1477 at [20]
3Tickle Industries Pty Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321 at [333]


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