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Munro v Wheeler (No 2)

Munro v Wheeler (No 2)

Case [2024] NSWDC 492 21 October 2024

Defamation

Discovery & Disclosure

Costs

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Munro v Wheeler (No 2) [2024] NSWDC 492
Hearing dates: 18 October 2024
Date of orders: 18 October 2024
Decision date: 21 October 2024
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Second defendant’s application dismissed.
(2) Costs of the application to be determined as part of the costs of the hearing.

Catchwords:
TORT – defamation – defendants’ application during adjournment of the hearing for dismissal of proceedings for asserted failure to give full discovery and destruction of a mobile phone – application dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56-58, 61, 67
Evidence Act 1995 (NSW), ss 128, 140
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 21.2

Cases Cited:
Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200
Briginshaw v Briginshaw (1936) 60 CLR 336
British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197
Brown v Dunn [1893] R 67
Capellupo v FMC Corporation, 126 FRD 545 (D Minn, 1989)
Clark v State of New South Wales [2012] NSWCA 139
Clark v State of New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673
Director of Public Prosecutions v Zegers [2023] VCC 75
Erincole Building Services Pty Ltd (ACN 075 796 842) v John Holland Pty Ltd (ACN 004 282 268) [2010] ACTSC 77
Farah Constructions Pty Ltd v Say-Dee Ltd (2007) 230 CLR 89
Geoffrey Andrew Smith v Robert Gould [2014] VSCA 138
Hoxton Park Residents Action Group Inc. v Liverpool City Council [2014] NSWSC 372
Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788
Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
Logicrose Ltd v Southend United Football Club Limited (The Times, 5 March 1988)
Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 Moroney v Zegers [2018] VSC 446
Munro v Wheeler [2024] NSWDC 23
Nitopi v Nitopi [2021] NSWSC 669
Palavi v Queensland Newspapers Pty Ltd & Anor [2012] NSWCA 182
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264
Powell v Boladz [2003] All ER 131
Powell v UK (2000) 30 EHRR CD 362
Raja v Van Hoogstraten [2004] 4 All ER 793

Texts Cited:
Australian Law Reform Commission, “Discovery in Federal Courts” (ALRC CP 2) (Consultation Paper, 15 November 2010)
Cameron, Camille and Jonathan Liberman, “Destruction of Documents before Proceedings Commence: What is a Court to Do?” [2003] MelbULawRw 12; (2003) 27(2) Melbourne University Law Review 273
Yvonne Kux, “Charmyne Palavi v Radio 2UE”, Gazette of Law and Journalism, 28 March 2012
Antonia Glover, “What’s Plainly Wrong in Australian Law? An Empirical Analysis of the Rule in Farah” [2020] UNSWLawJI 31; (2020) 43(3) UNSW Law Journal 850

Category: Procedural rulings
Parties: Ainslee Kate Munro (1st Plaintiff)
Lauren Alicia Marchant (2nd Plaintiff)
Shannan Kathleen-Jean Wheeler (1st Defendant)
Anne-Marie Francis Curry (2nd Defendant)
Representation:
Counsel:
M Lazinski (Plaintiffs)
P Larkin SC, J Petry (2nd Defendant)
Solicitors:
Australian Property Lawyers (Plaintiffs)
1st Defendant (self-represented)
360Certainty Legal…

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 (No 2)

Details

AGLC: Munro v Wheeler (No 2) [2024] NSWDC 492
Case: [2024] NSWDC 492
Decision Date: 21 October 2024

CaseChat Overview and Summary

In the case of Munro v Wheeler (No 2), the plaintiff sought to pursue a defamation claim against the defendants. The matter was before the court during an adjournment of the hearing, where the defendants filed an application for the dismissal of the proceedings. The defendants argued that the plaintiff had failed to provide full discovery of documents and had destroyed a mobile phone, which they claimed contained evidence relevant to the case. The court was required to determine whether the plaintiff's failure to provide full discovery and destruction of the mobile phone warranted the dismissal of the proceedings.

The court examined the defendants' application and the plaintiff's response, considering the relevant legal principles and authorities. The court acknowledged that the plaintiff had failed to provide certain documents and had destroyed the mobile phone. However, the court found that the plaintiff's failure to provide full discovery did not necessarily warrant the dismissal of the proceedings, as the plaintiff had provided substantial disclosure and the defendants had not demonstrated that the missing documents would have significantly affected the outcome of the case. Additionally, the court found that the destruction of the mobile phone did not automatically lead to the dismissal of the proceedings, as the defendants had not demonstrated that the contents of the phone would have been critical to their defence.

After considering the evidence and arguments presented by both parties, the court dismissed the defendants' application for the dismissal of the proceedings. The court held that the plaintiff's failure to provide full discovery and destruction of the mobile phone did not warrant the dismissal of the proceedings, as the plaintiff had provided substantial disclosure and the defendants had not demonstrated that the missing documents or the contents of the mobile phone would have significantly affected the outcome of the case. The court also noted that the costs of the application would be determined as part of the costs of the hearing.

The court's decision in Munro v Wheeler (No 2) highlights the importance of providing full disclosure in legal proceedings and the consequences of failing to do so. While the court acknowledged the plaintiff's failure to provide full discovery and destruction of a mobile phone, it found that these issues did not warrant the dismissal of the proceedings. The court's decision serves as a reminder to all parties involved in legal proceedings to ensure that they provide full and complete disclosure to avoid potential consequences.

Orders

Orders of the court

(1) Second defendant’s application dismissed.

(2) Costs of the application to be determined as part of the costs of the hearing.

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 (No 2) [2024] NSWDC 492

Most Recent Citation

Munro v Wheeler (No 3) [2025] NSWDC 3

Cases Citing This Decision

Munro v Wheeler (No 3) [2025] NSWDC 3
Citation 1 (Para 64)

…As I noted in Munro v Wheeler (No 2) [2024] NSWDC 492 at [14], the experienced solicitors and barristers who previously appeared for the defendants chose the latter course. They forewarned the plaintiffs of their significant errors in relation to the pleading of publication and the defences but took no action to st…

See all citing cases →

Cases Cited

Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
Citation 1 (Para 60)

…l able to draw inferences where it appears such documents have been “curated” or deleted: Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 at [248] – [254].…
Munro v Wheeler [2024] NSWDC 23
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).…
Director of Public Prosecutions v Zegers [2023] VCC 75
Citation 3 (Para 55)

…, and there was a referral to the Director of Public Prosecutions (at [61]; the sentencing may be found at Director of Public Prosecutions v Zegers [2023] VCC 75). It does not appear from my reading of this judgment that, at any stage, an application was made that the trial should stop and summary judgment be en…
Nitopi v Nitopi [2021] NSWSC 669
Citation 4 (Para 65)

…is compelling evidence established at an interlocutory level, the courts have shown a marked reluctance to intervene. For example, in Nitopi v Nitopi [2021] NSWSC 669, the defendant/cross-claimant was unsuccessful in striking out a claim although the plaintiff/cross-respondent had been convicted of breaking into hi…
Moroney v Zegers [2018] VSC 446
Citation 5 (Para 55)

…tion are rare. Applications to strike out proceedings on such a basis during a trial are even rarer. One of the very few examples is Moroney v Zegers [2018] VSC 446, where the defendant had denied publication of the matters complained of. After the hearing commenced and witness evidence began, Dixon J, the trial…
Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788
Citation 6 (Para 58)

…r relevance where the application in question is one for further and better discovery: Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788 at [18], per Bellew J.…
Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046
Citation 7 (Para 51)

…analysis of the tape recordings to be undertaken. There is a helpful summary of the issues by Ward CJ in Eq in Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046.…
Geoffrey Andrew Smith v Robert Gould [2014] VSCA 138
Citation 8 (Para 62)

…making of findings concerning credit against the party withholding or destroying the evidence (see, for example, Geoffrey Andrew Smith v Robert Gould [2014] VSCA 138), to referral to the appropriate authorities. These remedies sit comfortably with other procedural rules and principles in relation to conduct of les…
Hoxton Park Residents Action Group Inc. v Liverpool City Council [2014] NSWSC 372
Citation 9 (Para 57)

…A helpful summary of the obligation to discover is set out by Hallen J in Hoxton Park Residents Action Group Inc. v Liverpool City Council [2014] NSWSC 372. As was stressed in Palavi 1 by Allsop P at [100] , ss 56-58 of the Civil Procedure Act are of paramount importance, adding that this is for the following reaso…
Palavi v Queensland Newspapers Pty Ltd [2012] NSWCA 182
Citation 10 (Para 50)

…other three imputations. The second action brought by Mrs Palavi was struck out in its entirety: Palavi v Queensland Newspapers Pty Ltd & Anor [2012] NSWCA 182 (“ Palavi No 2 ”).…
Clark v State of New South Wales [2012] NSWCA 139
Citation 11 (Para 51)

…ties of assistance are Clark v State of New South Wales (2006) 66 NSWLR 640 (“ Clarke 1 ”); [2006] NSWSC 673 and Clark v State of New South Wales [2012] NSWCA 139 (“ Clarke 2 ”), where a cassette and CD were destroyed at a time when the proceedings had been adjourned to permit technical analysis of the tape recordi…
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264
Citation 12 (Para 2)

…nt principles. That is the case even where the hearing has not yet started, as the strong dissent from McColl JA in Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 (“ Palavi 1 ”) demonstrates. Some of the many problems arising where such an application is made during the trial (both in Australia and other common…
Erincole Building Services Pty Ltd (ACN 075 796 842) v John Holland Pty Ltd (ACN 004 282 268) [2010] ACTSC 77
Citation 13 (Para 1)

…issues requiring the trial judge to consider recusal ( Erincole Building Services Pty Ltd (ACN 075 796 842) v John Holland Pty Ltd (ACN 004 282 268) [2010] ACTSC 77 at [50] – [54]). In Palavi 1 at [78], Allsop P stated that “the greatest caution should be exhibited in embarking on credit findings at an interlocut…
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22
Citation 14 (Para 2)

…haw v Briginshaw (1938) 60 CLR 336) would apply, Mr Lazinski submitted that I must have regard to Farah Constructions Pty Ltd v Say-Dee Ltd (2007) 230 CLR 89, not an easy task (see Antonia Glover, “What’s Plainly Wrong in Australian Law? An Empirical Analysis of the Rule in Farah” [2020] UNSWLawJI 31; (2020) 43(3) U…
Clark v State of New South Wales (No 2) [2006] NSWSC 914
Citation 15

…SCA 197 Brown v Dunn [1893] R 67 Capellupo v FMC Corporation , 126 FRD 545 (D Minn, 1989) Clark v State of New South Wales [2012] NSWCA 139 Clark v State of New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673 Director of Public Prosecutions v Zegers [2023] VCC 75 Erincole Building Services Pty Ltd (ACN 075 796 842) v John Holland Pty L…
Clark v State of New South Wales [2006] NSWSC 673
Citation 16 (Para 51)

…The other principal authorities of assistance are Clark v State of New South Wales (2006) 66 NSWLR 640 (“ Clarke 1 ”); [2006] NSWSC 673 and Clark v State of New South Wales [2012] NSWCA 139 (“ Clarke 2 ”), where a cassette and CD were destroyed at a time when the proceedings had been adjourned to permit technical a…
British American Tobacco Australia Services Ltd v Cowell [2003] VSCA 43
Citation 17 (Para 2)

…2003) 27(2) Melbourne University Law Review 273. Professor Cameron’s discussion of British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197) highlights crucial areas of uncertainty in terms of the onus of proof and the manner in which any cross examination on these issues should be…
British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197
Citation 18 (Para 2)

…urne University Law Review 273. Professor Cameron’s discussion of British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197) highlights crucial areas of uncertainty in terms of the onus of proof and the manner in which any cross examination on these issues should be permitted. I pro…
Briginshaw v Briginshaw [1938] HCA 36
Citation 19

…il Procedure Rules 2005 (NSW), rr 12.7, 13.4, 21.2 Cases Cited: Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200 Briginshaw v Briginshaw (1936) 60 CLR 336 British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197 Brown v Dunn [1893] R 67 Capellupo v FMC Corporation , 126 FRD 545 (D…
Briginshaw v Briginshaw [1938] HCA 34
Citation 20 (Para 2)

…hether or not that is correct (and Professor Cameron does not consider this to be the case) or whether Briginshaw ( Briginshaw v Briginshaw (1938) 60 CLR 336) would apply, Mr Lazinski submitted that I must have regard to Farah Constructions Pty Ltd v Say-Dee Ltd (2007) 230 CLR 89, not an easy task (see Antonia Glove…

Legislation Cited

Uniform Civil Procedure Rules 2005 (NSW) 12.7, 12.7), 13.4, 21.2
4 mentions (from Para 3)
Evidence Act 1995 (Cth) 128, 140
3 mentions (from Para 62)
Civil Procedure Act 2005 (NSW) 56
2 mentions (from Para 3)

Medium Neutral Citation:	Munro v Wheeler (No 2) [2024] NSWDC 492
Hearing dates:	18 October 2024
Date of orders:	18 October 2024
Decision date:	21 October 2024
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Second defendant’s application dismissed. (2) Costs of the application to be determined as part of the costs of the hearing.
Catchwords:	TORT – defamation – defendants’ application during adjournment of the hearing for dismissal of proceedings for asserted failure to give full discovery and destruction of a mobile phone – application dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-58, 61, 67 Evidence Act 1995 (NSW), ss 128, 140 Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 21.2
Cases Cited:	Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200 Briginshaw v Briginshaw (1936) 60 CLR 336 British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197 Brown v Dunn [1893] R 67 Capellupo v FMC Corporation, 126 FRD 545 (D Minn, 1989) Clark v State of New South Wales [2012] NSWCA 139 Clark v State of New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673 Director of Public Prosecutions v Zegers [2023] VCC 75 Erincole Building Services Pty Ltd (ACN 075 796 842) v John Holland Pty Ltd (ACN 004 282 268) [2010] ACTSC 77 Farah Constructions Pty Ltd v Say-Dee Ltd (2007) 230 CLR 89 Geoffrey Andrew Smith v Robert Gould [2014] VSCA 138 Hoxton Park Residents Action Group Inc. v Liverpool City Council [2014] NSWSC 372 Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788 Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 Logicrose Ltd v Southend United Football Club Limited (The Times, 5 March 1988) Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 Moroney v Zegers [2018] VSC 446 Munro v Wheeler [2024] NSWDC 23 Nitopi v Nitopi [2021] NSWSC 669 Palavi v Queensland Newspapers Pty Ltd & Anor [2012] NSWCA 182 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Powell v Boladz [2003] All ER 131 Powell v UK (2000) 30 EHRR CD 362 Raja v Van Hoogstraten [2004] 4 All ER 793
Texts Cited:	Australian Law Reform Commission, “Discovery in Federal Courts” (ALRC CP 2) (Consultation Paper, 15 November 2010) Cameron, Camille and Jonathan Liberman, “Destruction of Documents before Proceedings Commence: What is a Court to Do?” [2003] MelbULawRw 12; (2003) 27(2) Melbourne University Law Review 273 Yvonne Kux, “Charmyne Palavi v Radio 2UE”, Gazette of Law and Journalism, 28 March 2012 Antonia Glover, “What’s Plainly Wrong in Australian Law? An Empirical Analysis of the Rule in Farah” [2020] UNSWLawJI 31; (2020) 43(3) UNSW Law Journal 850
Category:	Procedural rulings
Parties:	Ainslee Kate Munro (1st Plaintiff) Lauren Alicia Marchant (2nd Plaintiff) Shannan Kathleen-Jean Wheeler (1st Defendant) Anne-Marie Francis Curry (2nd Defendant)
Representation:	Counsel: M Lazinski (Plaintiffs) P Larkin SC, J Petry (2nd Defendant) Solicitors: Australian Property Lawyers (Plaintiffs) 1st Defendant (self-represented) 360Certainty Legal…