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Mulroe v Mulroe

Mulroe v Mulroe

Case [2022] NSWSC 1459 26 October 2022

Expert Evidence

Admissibility of Evidence

Civil Procedure Act

UCPR r 31.17

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Mulroe v Mulroe [2022] NSWSC 1459
Hearing dates: 17 October 2022
Date of orders: 26 October 2022
Decision date: 26 October 2022
Jurisdiction: Equity
Before: Hallen J
Decision:
Orders that the Plaintiff’s notice of motion filed on 7 September 2022 seeking the appointment of an adversarial expert be dismissed with costs.

Catchwords:
EVIDENCE – Expert evidence – Plaintiff seeks appointment of an adversarial expert, rather than joint expert, principally because a party has the right in litigation to “control her own destiny” – No attempt made by Plaintiff’s solicitors prior to filing and serving notice of motion to engage with Defendant’s solicitors on identity of any joint expert to be appointed – Relevance and importance of Civil Procedure Act, the UCPR, and Practice Note SC Eq 5 regarding expert evidence – Significance of UCPR r 31.17 which identifies the main purposes of the expert evidence rules – Relevant part of the Civil Procedure Act and the UCPR to safeguard the impartiality of the expert – Relevance of case management principles – Significance of nature of the proceedings which are Probate proceedings and the utility of the evidence of an adversarial expert, who neither saw, nor treated, the deceased

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 15, 56, 57, 58, 61, 62
Succession Act 2006 (NSW) s 129
Uniform Civil Procedure Rules 2005 (NSW) Pt 31 Div 2, sch 7, rr 31.17, 31.19, 31.20, 31.23(1), 31.37, 31.38, 31.41(1), 31.43

Cases Cited:
Anthony and Comino v Sanderson [1994] QCA 527
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bates v Messner (1967) 67 SR (NSW) 187
Baulderstone Hornibrook v HBO & DC Pty Ltd [2001] NSWSC 821
Coyne v Calabro [2009] NSWSC 1023
Daniels v Walker [2000] 1 WLR 1382
Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279
English v Stewart [2022] NSWSC 268
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157
Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326
Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372
Kelly v Kelly (2019) 17 ASTLR 429; [2019] NSWSC 994
Neales & Neales (2022) 64 Fam LR 592; [2022] FedCFamC1A 41
Oxley v Oxley [2018] NSWSC 91
Polivitte Ltd v Commercial Union Assurance Co. Plc [1987] 1 Lloyd's Rep 379
Re Estates Brooker-Pain and Soulos [2019] NSWSC 671
Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195
Starr v Miller [2022] NSWCA 46
Starr v Miller; Starr v Miller [2021] NSWSC 426
The Estate of Genevieve Bryan [2021] NSWSC 567
Tsoutsouvas & Tsoutsouvas [2012] FamCA 521
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
Whitehouse v Jordan [1981] 1 WLR 246
Wurz bht NSW Trustee and Guardian v Elawaad…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mulroe v Mulroe

Details

AGLC: Mulroe v Mulroe [2022] NSWSC 1459
Case: [2022] NSWSC 1459
Decision Date: 26 October 2022

CaseChat Overview and Summary

In the case of Mulroe v Mulroe, the dispute revolves around the appointment of an expert witness in a probate proceeding. The plaintiff sought the appointment of an adversarial expert rather than a joint expert, asserting the right to control their own destiny in litigation. The court was required to determine whether the plaintiff's solicitors made an adequate attempt to engage with the defendant's solicitors regarding the appointment of a joint expert before proceeding with their application for an adversarial expert. The court's decision was influenced by relevant statutes, including the Civil Procedure Act, the Uniform Civil Procedure Rules (UCPR), and the Practice Note SC Eq 5, which provide guidance on expert evidence in litigation. The significance of UCPR r 31.17 was particularly pertinent, as it outlines the main purposes of the expert evidence rules, which include safeguarding the impartiality of the expert.

The court examined the procedural steps taken by the plaintiff's solicitors and found that no attempt was made to engage with the defendant's solicitors before filing and serving the notice of motion. The court emphasised the importance of the Civil Procedure Act and the UCPR in ensuring the impartiality of expert evidence, as well as the relevance of case management principles. The nature of the proceedings, being probate proceedings, and the utility of the evidence of an adversarial expert, who neither saw nor treated the deceased, were also considered. The court concluded that the plaintiff's solicitors' failure to engage in the process for appointing a joint expert before applying for an adversarial expert was a significant factor in the decision.

The court ultimately determined that the plaintiff's application for the appointment of an adversarial expert should be dismissed. The decision underscored the importance of adhering to procedural rules and engaging in the process for appointing a joint expert before seeking an adversarial expert. The court's reasoning highlighted the relevance of statutory provisions, procedural rules, and case management principles in safeguarding the impartiality of expert evidence in litigation. The court's decision served as a reminder of the importance of following procedural requirements and engaging in good faith negotiations with opposing parties regarding the appointment of expert witnesses in litigation.

Orders