Monteleone v Thorn [2020] NSWSC 1620

Supreme Court New South Wales

Medium Neutral Citation: Monteleone v Thorn [2020] NSWSC 1620 Hearing dates: 02 November 2020 Date of orders: 02 November 2020 Decision date: 02 November 2020 Jurisdiction: Common Law Before: Garling J Decision: Dismiss the Notice of Motion of 29 October 2020. Catchwords: CIVIL PROCEDURE - service in accordance with Rule 31.10 of the UCPR – defendant seeking order to excuse service of material – whether serving material would significantly reduce its evidentiary weight – held that question should be determined by trial judge – motion dismissed Legislation Cited: Evidence Act 1995 Uniform Civil Procedure Rules 2005 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural rulings Parties: Ross Monteleone (formerly Poyser) (P) Andrew Thorn (D) Representation: Counsel: Ex parte (P) M McCulloch (D)

Solicitors: Gillis Delaney Lawyers (D) File Number(s): 2016/74936 Publication restriction: Not Applicable

EX TEMPORE Judgment 1. On 29 October 2020, the first and second defendants sought orders by a Notice of Motion to excuse compliance with r 31.10(1) of the Uniform Civil Procedure Rules 2005 (the "UCPR") in respect of eight investigation reports, and the accompanying video of the plaintiff going about a series of activities. 2. The defendants also sought that the Motion be heard ex parte, and that various orders by way of suppression and non-publication be made.

Defendants' Submissions 1. Putting it simply, the defendants submit, by reference to the Statement of Particulars filed by the plaintiff on 6 October 2020, that the plaintiff has asserted a significant number of continuing disabilities as forming part of his claim which are contradicted in whole or in substantial part by the material in the investigating reports and films. The defendants submit that they would be disadvantaged if they were obliged, in compliance with r 31.10 of the UCPR, to serve copies of that material or, alternatively, to make the material available for inspection prior to the plaintiff giving evidence. That disadvantage is said to be that the plaintiff would, if on notice, have the capacity to so alter his evidence as to render the evidentiary weight of the material in the reports and film to be only slight. 2. As well, the defendants submit that if they are not obliged to disclose the material, the evidentiary weight will, having regard to the statement of particulars, be very significant indeed.