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Munro v Wheeler

Munro v Wheeler

Case [2024] NSWDC 23 15 February 2024

Expert Evidence

Admissibility of Evidence

Limitation Periods

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Munro v Wheeler [2024] NSWDC 23
Hearing dates: 15 February 2024
Date of orders: 15 February 2024
Decision date: 15 February 2024
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Pursuant to UCPR r 31.19, refuse leave to the Plaintiffs to tender or otherwise rely upon the medical report of Dr Fukui filed 8 February 2024.

Catchwords:
EXPERT EVIDENCE – Plaintiffs in defamation proceedings serve a medico-legal report 28 days before the hearing without first having obtained leave for service of expert reports under UCPR r 31.19 – whether UCPR r 31.28(1)(c) permits service without such leave as long as the report is served 28 days beforehand – whether failure to comply with UCPR r 31.19 is a mere irregularity – whether failure to seek leave “promptly” has been satisfactorily explained – prejudice to defendants – application for leave refused

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 15.12, 15.14, 31.1, 31.19, 31.28

Cases Cited:
● P1 v Trustees of the Daughters of Our Lady of the Sacred Heart; ● P2 v Trustees of the Daughters of Our Lady of the Sacred Heart; ● P3 v Trustees of the Daughters of Our Lady of the Sacred Heart; ● P4 v Trustees [2015] NSWSC 698
3 Rivers Estate Pty Ltd v Consult Survey GRA Pty Ltd [2023] NSWSC 1217
Addison v BHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433
Cerutti v Crestside Pty Ltd [2014] QCA 33
Chapman v Chapman [2007] NSWSC 1109
Clough v Mirror Newspapers Pty Ltd (Supreme Court (NSW), Clarke J, 28 November 1983, unrep)
Gershowitz v Kaye [2021] NSWDC 128
Hrdavec v State of New South Wales [2018] NSWSC 1081
Lardelli v Nationwide News Pty Ltd (Supreme Court (NSW), Levine J, 17 September 1993, unrep)
Shellharbour City Council v Minister for Planning [2011] NSWCA 195
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506
Yacoub v Pilkington (Australia) Pty Ltd [2007] NSWCA 290

Texts Cited:
Richard Parkes KC etc, Gatley on Libel and Slander (13th ed, 2022, Sweet & Maxwell) at [34,073]
P Taylor, Ritchie’s Uniform Civil Procedure New South Wales, LexisNexis at p. 7830

Category: Procedural rulings
Parties: Ainslee Kate Munro (1st Plaintiff)
Lauren Alicia Marhant (2nd Plaintiff)
Shannan Kathleen-Jean Wheeler (1st Defendant)
Anne-Marie Francis Curry (2nd Defendant)
Representation:
Counsel:
D Edwards (solicitor for the Plaintiffs)
T O’Callaghan (solicitor for the 2nd Defendant)
Solicitors:
Australian Property Lawyers (Plaintiffs)
1st Defendant (self-represented)
360Certainty Legal (2nd Defendant)

File Number(s): 2021/00168977
Publication restriction: Nil

Judgment

The applications before the court

These are proceedings for defamation which are listed for hearing before me on Monday 26 February 2024 for five days.
The List Judge set the matter down for hearing on 1 February 2023, more than a year before the date on which this trial will commence, which was plenty of time for the parties to prepare their respective cases. His Honour also made a careful series of case…

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 Munro v Wheeler

Details

AGLC: Munro v Wheeler [2024] NSWDC 23
Case: [2024] NSWDC 23
Decision Date: 15 February 2024

CaseChat Overview and Summary

The plaintiffs, Munro and another, initiated defamation proceedings against Wheeler. They sought to rely on a medico-legal report from Dr Fukui, which was served 28 days before the hearing. However, the plaintiffs did not first obtain leave for the service of expert reports as required under UCPR r 31.19. The defendants sought an order preventing the plaintiffs from relying on the report, arguing that the failure to comply with UCPR r 31.19 was not merely an irregularity and that the plaintiffs had not satisfactorily explained why they did not seek leave promptly. The court was tasked with determining whether UCPR r 31.28(1)(c) allowed service of the report without leave, provided it was served 28 days before the hearing, and whether the failure to comply with UCPR r 31.19 was a mere irregularity or had prejudiced the defendants.

The court examined the provisions of UCPR r 31.19, which requires leave to serve an expert report, and UCPR r 31.28(1)(c), which deals with the service of expert reports by parties. The court found that UCPR r 31.28(1)(c) did not permit service without leave as long as the report was served 28 days before the hearing. It was held that failure to comply with UCPR r 31.19 was not a mere irregularity. The court also found that the plaintiffs had not satisfactorily explained why they did not seek leave promptly and that the defendants had been prejudiced by this failure. Consequently, the plaintiffs' application for leave was refused.

In light of the court's decision, the plaintiffs were not permitted to tender or otherwise rely upon the medical report of Dr Fukui filed on 8 February 2024. The court granted the defendants' application under UCPR r 31.19, effectively barring the plaintiffs from using the report in their defamation proceedings. This outcome highlights the importance of adhering to procedural requirements in litigation, particularly concerning the service of expert evidence, and the potential consequences of failing to do so.

Orders

Orders of the court

Pursuant to UCPR r 31.19, refuse leave to the Plaintiffs to tender or otherwise rely upon the medical report of Dr Fukui filed 8 February 2024.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Munro v Wheeler [2024] NSWDC 23

Most Recent Citation

Munro v Wheeler (No 2) [2024] NSWDC 492

Cases Citing This Decision

Munro v Wheeler (No 3) [2025] NSWDC 3
Citation 1 (Para 470)

…endant also challenged the admissibility of a medico-legal report served upon his client. I made a ruling in relation to that report: Munro v Wheeler [2024] NSWDC 23.…
Munro v Wheeler (No 2) [2024] NSWDC 492
Citation 2 (Para 16)

…mpliance by the plaintiffs with the orders made by Dicker SC DCJ on 1 February 2023. Both these issues were the subject of orders ( Munro v Wheeler [2024] NSWDC 23).…

See all citing cases →

Cases Cited

3 Rivers Estate Pty Ltd v Consult Survey GRA Pty Ltd [2023] NSWSC 1217
Citation 1 (Para 25)

…have taken this approach. Lack of familiarity with UCPR r 31.19 was not accepted as an excuse in 3 Rivers Estate Pty Ltd v Consult Survey GRA Pty Ltd [2023] NSWSC 1217 at [39] (“lack of awareness on the part of its solicitors of r 31.19 of the UCPR and PN 1”). Beech-Jones J stressed that a detailed explanation was r…
Gershowitz v Kaye [2021] NSWDC 128
Citation 2 (Para 20)

…v Pilkington (Australia) Pty Ltd [2007] NSWCA 290 at [66]. Attempts to rely on UCPR r 1.12 have largely been unsuccessful: see Gershowitz v Kaye [2021] NSWDC 128 at [28]-[38]. Even if a party could persuade the court to make an order under r 1.12, a key reason for refusing to make an order under r 1.12 has been wh…
Addison v BHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433
Citation 3 (Para 20)

…reason for refusing to make an order under r 1.12 has been where the matter is already fixed for hearing: Addison v BHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433. If invoked before me, I would not have permitted reliance upon this provision.…
Hrdavec v State of New South Wales [2018] NSWSC 1081
Citation 4 (Para 13)

…n the exercise of the discretion: Shellharbour City Council v Minister for Planning [2011] NSWCA 195 at [32]-[39]; Hrdavec v State of New South Wales [2018] NSWSC 1081 at [8].…
● P1 v Trustees of the Daughters of Our Lady of the Sacred Heart; ● P2 v Trustees of the Daughters of Our Lady of the Sacred Heart; ● P3 v Trustees of the Daughters of Our Lady of the Sacred Heart; ● P4 v Trustees.. [2015] NSWSC 698
Citation 5 (Para 19)

…Trustees of the Daughters of Our Lady of the Sacred Heart; ● P3 v Trustees of the Daughters of Our Lady of the Sacred Heart; ● P4 v Trustees [2015] NSWSC 698 at [20]-[26]. Beech-Jones J’s observations that UCPR r 31.19 must prevail (a position conceded by the moving party in those proceedings, in the course of arg…
Cerutti v Crestside Pty Ltd [2014] QCA 33
Citation 6 (Para 12)

…rnalist knew he was about to go into hospital). The nature of aggravated damages claims is explained by Applegarth J in Cerutti v Crestside Pty Ltd [2014] QCA 33 as follows:…
Shellharbour City Council v Minister for Planning [2011] NSWCA 195
Citation 7 (Para 13)

…le on some other basis, mere admissibility is not enough to enliven the exercise of the discretion: Shellharbour City Council v Minister for Planning [2011] NSWCA 195 at [32]-[39]; Hrdavec v State of New South Wales [2018] NSWSC 1081 at [8].…
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506
Citation 8 (Para 21)

…arlier court orders for service have been complied with, where a further report is said to be necessary ( Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506 at [11]). There remains a discretion to reject the report if it does more than “merely update”, in which case the expert report will be rejected, as…
Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290
Citation 9 (Para 20)

…e defaulting party to escape the “exceptional circumstances” that would otherwise have to be established: Yacoub v Pilkington (Australia) Pty Ltd [2007] NSWCA 290 at [66]. Attempts to rely on UCPR r 1.12 have largely been unsuccessful: see Gershowitz v Kaye [2021] NSWDC 128 at [28]-[38]. Even if a party could persu…
Chapman v Chapman [2007] NSWSC 1109
Citation 10 (Para 23)

…y functioning, relationships, overall quality of life and long term consequences. They note that the second defendant refers to Chapman v Chapman [2007] NSWSC 1109 but submit that it can be distinguished “on a number of different bases but principally because Justice Brereton found that the report would be of no uti…

Legislation Cited

Uniform Civil Procedure Rules 2005 (NSW) 1.12, 15.12, 15.14, 31.1, 31.19, 31.28
6 mentions (from Para 3)
Civil Procedure Act 2005 (NSW) 56
2 mentions (from Para 24)
Evidence Act 1995 (Cth)
1 mention (from Para 33)

Medium Neutral Citation:	Munro v Wheeler [2024] NSWDC 23
Hearing dates:	15 February 2024
Date of orders:	15 February 2024
Decision date:	15 February 2024
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Pursuant to UCPR r 31.19, refuse leave to the Plaintiffs to tender or otherwise rely upon the medical report of Dr Fukui filed 8 February 2024.
Catchwords:	EXPERT EVIDENCE – Plaintiffs in defamation proceedings serve a medico-legal report 28 days before the hearing without first having obtained leave for service of expert reports under UCPR r 31.19 – whether UCPR r 31.28(1)(c) permits service without such leave as long as the report is served 28 days beforehand – whether failure to comply with UCPR r 31.19 is a mere irregularity – whether failure to seek leave “promptly” has been satisfactorily explained – prejudice to defendants – application for leave refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 15.12, 15.14, 31.1, 31.19, 31.28
Cases Cited:	● P1 v Trustees of the Daughters of Our Lady of the Sacred Heart; ● P2 v Trustees of the Daughters of Our Lady of the Sacred Heart; ● P3 v Trustees of the Daughters of Our Lady of the Sacred Heart; ● P4 v Trustees [2015] NSWSC 698 3 Rivers Estate Pty Ltd v Consult Survey GRA Pty Ltd [2023] NSWSC 1217 Addison v BHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433 Cerutti v Crestside Pty Ltd [2014] QCA 33 Chapman v Chapman [2007] NSWSC 1109 Clough v Mirror Newspapers Pty Ltd (Supreme Court (NSW), Clarke J, 28 November 1983, unrep) Gershowitz v Kaye [2021] NSWDC 128 Hrdavec v State of New South Wales [2018] NSWSC 1081 Lardelli v Nationwide News Pty Ltd (Supreme Court (NSW), Levine J, 17 September 1993, unrep) Shellharbour City Council v Minister for Planning [2011] NSWCA 195 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506 Yacoub v Pilkington (Australia) Pty Ltd [2007] NSWCA 290
Texts Cited:	Richard Parkes KC etc, Gatley on Libel and Slander (13th ed, 2022, Sweet & Maxwell) at [34,073] P Taylor, Ritchie’s Uniform Civil Procedure New South Wales, LexisNexis at p. 7830
Category:	Procedural rulings
Parties:	Ainslee Kate Munro (1st Plaintiff) Lauren Alicia Marhant (2nd Plaintiff) Shannan Kathleen-Jean Wheeler (1st Defendant) Anne-Marie Francis Curry (2nd Defendant)
Representation:	Counsel: D Edwards (solicitor for the Plaintiffs) T O’Callaghan (solicitor for the 2nd Defendant) Solicitors: Australian Property Lawyers (Plaintiffs) 1st Defendant (self-represented) 360Certainty Legal (2nd Defendant)
File Number(s):	2021/00168977
Publication restriction:	Nil