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. Rule 31.10 of the UCPR 1. Rule 31.10 of the UCPR provides for a prohibition on tender of any films which have been made where they have not been served in accordance with r 31.10(1) unless the Court is satisfied that, here, the defendants had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the items, or else if the Court grants leave. Discernment 1. It seems to me that the proper construction of this rule is that the onus is on a party who intends to tender any of the items set out in r 31.10(1) at a hearing to consider whether or not disclosure ought to occur, or else whether it can satisfy the Court that it had a legitimate forensic purpose for not disclosing the material. Whether or not the party had a legitimate forensic purpose is one which seems to me to depend, at least in part, on what the issues joined at the trialare, the evidence lead during the trial, the real issues in dispute, and the weight which the evidence may carry. As well, there may be balancing considerations to be considered when the material is tendered. 2. As the discussions recorded in the transcript of this hearing will show, there are an enormous range of factual possibilities as to the circumstances surrounding the tender of material of the kind under consideration. The Court best placed to determine the balancing of all of those issues, including the obligations under the rule and admissibility in accordance with the Evidence Act 1995, is the Court which is hearing the proceedings rather than a different court in advance of, and not seized with, all of the facts and not having the benefit of submissions from both parties, such as this Court is, to make that determination. 3. In the circumstances in this case, I think it is inappropriate for this Court to make a determination in advance granting the leave which is sought and I leave it to the trial Judge to determine whether the material should be admitted, notwithstanding the failure to serve it. Orders 1. Accordingly, I dismiss the Notice of Motion of 29 October 2020. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2021