Munro v Wheeler [2024] NSWDC 23

Munro v Wheeler [2024] NSWDC 23

The plaintiffs’ failure to seek leave under UCPR r 31.19 before serving the expert report of Dr Fukui is fatal; service 28 days before hearing under r 31.28(1)(c) does not displace the leave requirement. Lateness, lack of adequate explanation, and material prejudice to the defendants from inability to reply compelled refusal of leave. Non-compliance with r 31.19 is not a mere irregularity but a substantive bar to adducing the expert evidence.

Parties
1st Plaintiff: Ainslee Kate Munro; 2nd Plaintiff: Lauren Alicia Marhant; 1st Defendant: Shannan Kathleen-Jean Wheeler; 2nd Defendant: Anne-Marie Francis Curry
Jurisdiction
Australia
Judgment Date
15 February 2024
Procedural Posture
Defamation / Interlocutory Application for Leave to Rely on Expert Report
Outcome
Leave refused to serve or rely upon the medical report of Dr Fukui filed 8 February 2024.
Legal Topics
Expert Evidence, Defamation, Case Management, Aggravated Damages, Leave to Serve Expert Report
Civil Procedure Expert Evidence Defamation Case Management Aggravated Damages Leave to Serve Expert Report

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Parties

Ainslee Kate Munro

1st Plaintiff

Lauren Alicia Marhant

2nd Plaintiff

Shannan Kathleen-Jean Wheeler

1st Defendant

Anne-Marie Francis Curry

2nd Defendant

Procedural Posture

Defamation / Interlocutory Application for Leave to Rely on Expert Report

Legal Issues

  1. 1 Whether leave should be granted under UCPR r 31.19 to serve and rely on Dr Fukui’s medico-legal report
  2. 2 Whether failure to comply with UCPR r 31.19 is a mere irregularity
  3. 3 Interpretation and applicability of UCPR r 31.28(1)(c) in the absence of directions under r 31.19

Ratio Decidendi

The plaintiffs’ failure to seek leave under UCPR r 31.19 before serving the expert report of Dr Fukui is fatal; service 28 days before hearing under r 31.28(1)(c) does not displace the leave requirement. Lateness, lack of adequate explanation, and material prejudice to the defendants from inability to reply compelled refusal of leave. Non-compliance with r 31.19 is not a mere irregularity but a substantive bar to adducing the expert evidence.

Court Disposition

Leave refused to serve or rely upon the medical report of Dr Fukui filed 8 February 2024.

Orders

  • 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.