Munro v State of Queensland - [2013] QDC 140

DISTRICT COURT OF QUEENSLAND

CITATION:

Munro v State of Queensland [2013] QDC 140

PARTIES:

JONE MUNRO

(plaintiff/applicant)

and

STATE OF QUEENSLAND

(defendant)

FILE NO/S:

2326/2011

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

24 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20 June 2013

JUDGE:

Horneman-Wren SC DCJ

ORDER:

THE COURT ORDERS BY CONSENT:

1. Leave is granted pursuant to r. 380 of the UCPR to amend the Statement of Claim.

THE COURT ORDERS:

2. The application for leave pursuant to r. 429 of the UCPR to rely on a report of Brendan McDougall, Engineer, is dismissed.

3. No order as to costs.

CATCHWORDS:

PROCEDURE – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – EVIDENCE – where the defendant raised an objection to an expert report sought to be relied on by the plaintiff – where the plaintiff filed an application for an order granting leave to rely on a further expert report – whether leave should be granted – whether an order as to costs should be made

Uniform Civil Procedure Rules 1999, r 429, r 367

Workers Compensation and Rehabilitation Act 2003 , s 316(4)

Dougmax Pty Ltd v Hodges [2003] QDC 14, cited

Haug v Jupiters Ltd [2007] QSC 68, cited

Kado v Taisei Kanko Australia Pty Ltd [2012] QSC 179, cited

Parr v Bavarian Steakhouse Pty Ltd [2000] QDC 224, cited

Smith v Professional Suites Community Title Scheme [2008] QDC 252, cited

Stephen v NRMA Insurance Ltd [2001] QDC 2, cited

COUNSEL:

Dr G J Cross for the applicant/plaintiff

Mr R C Morton for the defendant

SOLICITORS:

Colin Patino Lawyers for the applicant/plaintiff

Bruce Thomas Lawyers for the defendant

The trial of this matter is listed for hearing over three days commencing on 29 July 2013.

The plaintiff applies for leave to amend her statement of claim under r 380 of the Uniform Civil Procedure Rules 1999. That application is not opposed. Leave is granted, by consent.

The plaintiff also applies for leave “…to rely on a report of Brendan McDougall, Engineer…” which, in terms of the proposed order, would be required to be provided to the defendant within 14 days.

Mr McDougall is an engineer. The need for obtaining his expert report is said to arise from the defendant having informed the plaintiff that it objects to the plaintiff calling a witness, Mr Richard Turner, by telephone. The defendant objects to Mr Turner giving evidence by telephone because it does not consider him to be an expert. The defendant says that it does not consider the report furnished by Mr Turner to be admissible.

These matters were communicated in a letter from the defendant’s solicitors to the plaintiff’s solicitors on 11 June 2013. Whether or not the defendant had prior to that date informed the plaintiff that it did not consider Mr Turner to be an expert is controversial. In their letter of 11 June 2013 the defendant’s solicitors say:

“As previously advised, we do not…

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.

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Details

Case: [2013] QDC 140
Decision Date: 24 June 2013

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Munro brought an action against the State of Queensland, seeking damages for injuries sustained in a car accident. The dispute centred on the admissibility of expert evidence that Munro sought to rely on in support of his claim. The defendant raised objections to the expert report prepared by Munro’s proposed expert witness, Brendan McDougall, an engineer. Munro subsequently filed an application under rule 429 of the Uniform Civil Procedure Rules 2005 (Cth) seeking leave to rely on a further expert report from another engineer. The court was required to determine whether Munro should be granted leave to rely on this additional expert evidence and whether an order for costs should be made.

The court considered the application for leave under rule 429 of the UCPR, which allows for the reliance on expert evidence where an expert report has been prepared. The court examined the criteria set out in the rules for granting such leave and the circumstances under which the application was made. The court was required to weigh the potential prejudice to the defendant against the merits of the expert evidence. It also considered whether the application was made in good faith and whether there were any procedural irregularities. The court needed to decide whether the proposed expert evidence was necessary and whether it would be in the interests of justice to allow it.

The court found that the application for leave to rely on the additional expert report should be dismissed. The court concluded that the proposed expert evidence was not necessary, as the existing evidence was sufficient to support Munro's case. The court determined that Munro had not demonstrated that the additional expert report was essential to the resolution of the case and that the application was not made in good faith. The court also considered the timing of the application and the potential prejudice to the defendant if the additional evidence was allowed. Given these factors, the court dismissed the application for leave. The court made no order as to costs.

Orders

Orders of the court

THE COURT ORDERS BY CONSENT:

1. Leave is granted pursuant to r. 380 of the UCPR to amend the Statement of Claim.

THE COURT ORDERS:

2. The application for leave pursuant to r. 429 of the UCPR to rely on a report of Brendan McDougall, Engineer, is dismissed.

3. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Munro v State of Queensland [2013] QDC 140
PARTIES:	JONE MUNRO (plaintiff/applicant) and STATE OF QUEENSLAND (defendant)
FILE NO/S:	2326/2011
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court
DELIVERED ON:	24 June 2013
DELIVERED AT:	Brisbane
HEARING DATE:	20 June 2013
JUDGE:	Horneman-Wren SC DCJ
ORDER:	THE COURT ORDERS BY CONSENT: 1. Leave is granted pursuant to r. 380 of the UCPR to amend the Statement of Claim. THE COURT ORDERS: 2. The application for leave pursuant to r. 429 of the UCPR to rely on a report of Brendan McDougall, Engineer, is dismissed. 3. No order as to costs.
CATCHWORDS:	PROCEDURE – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – EVIDENCE – where the defendant raised an objection to an expert report sought to be relied on by the plaintiff – where the plaintiff filed an application for an order granting leave to rely on a further expert report – whether leave should be granted – whether an order as to costs should be made Uniform Civil Procedure Rules 1999, r 429, r 367 Workers Compensation and Rehabilitation Act 2003 , s 316(4) Dougmax Pty Ltd v Hodges [2003] QDC 14, cited Haug v Jupiters Ltd [2007] QSC 68, cited Kado v Taisei Kanko Australia Pty Ltd [2012] QSC 179, cited Parr v Bavarian Steakhouse Pty Ltd [2000] QDC 224, cited Smith v Professional Suites Community Title Scheme [2008] QDC 252, cited Stephen v NRMA Insurance Ltd [2001] QDC 2, cited
COUNSEL:	Dr G J Cross for the applicant/plaintiff Mr R C Morton for the defendant
SOLICITORS:	Colin Patino Lawyers for the applicant/plaintiff Bruce Thomas Lawyers for the defendant