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 1. These are proceedings for defamation which are listed for hearing before me on Monday 26 February 2024 for five days. 2. 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 management orders, including updating discovery and for preparation of an agreed Background of Agreed Facts for legal and factual issues. No further orders were sought during 2023 by any of the parties after the orders made by the List Judge. 3. It now transpires that, while the second defendant has complied, the plaintiff has not, and the proceedings are far from ready. The court was not advised of this by the plaintiffs in default. The first defendant is in a difficult position as she can no longer afford legal representation. Those legal representatives did not notify the court of this development. 4. On 7 February 2024 Mr O'Callaghan, who had recently come into the matter as solicitor for the second defendant, asked for the matter to be relisted urgently. The urgency arose from the following: 1. Non-compliance by the plaintiffs their obligations pursuant to Judge Dicker's orders. 2. Failure of the plaintiffs to answer correspondence. 3. On 29 January 2024, the defendants had been served with a medico-legal report by Dr Fukui, a psychiatrist retained by the first plaintiff, despite there being no orders permitting the service of medico-legal reports: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 31.19. 4. The question of the first defendant's representation at the hearing. 1. There have been significant failures by the plaintiffs to comply with the List Judge's orders. Many of these can be resolved by timetabling and, on 9 and 15 February 2024, I made a series of orders for provision of discovery, particulars and answers to interrogatories designed to make these proceedings more ready for hearing than their current parlous state. I have also made orders designed to assist the first defendant to represent herself at the hearing and to accommodate her health problems. Those case management orders are effectively by consent. 2. As part of this case management, I received submissions and heard oral argument on the contested issue of whether leave to serve Dr Fukui's report should be granted. These are my reasons for the orders I made refusing leave. Medical issues as set out in the pleadings 1. The first plaintiff referred to health issues in the statement of claim, namely depression, anxiety and mental anguish requiring medical treatment and intervention, and asserted she had been diagnosed with functional neurological dysphonia. The second plaintiff complained of the impact in a more general way but did not serve or discover any medical evidence. Neither plaintiff provided particulars of injury to health or foreshadowed any intention to serve medico-legal evidence. Some medical records were included in the first plaintiff's List of Documents filed on 28 September 2022, but the significant evidence of health issues is that contained in the revised List of Documents and Dr Fukui's report, both of which were filed on 8 February 2024. Can damage to health be claimed in defamation proceedings? 1. Both plaintiffs start from the difficult position that any claim for injury to health arising from a defamation claim is one of considerable controversy. While evidence is commonly given by the plaintiff and witnesses who have observed the plaintiff's mood and demeanour after the defamatory material was published, "whether this could be extended to evidence of the claimant's physical health is an unsettled question" (Richard Parkes KC etc, Gatley on Libel and Slander (13th ed, 2022, Sweet & Maxwell) at [34,073]). Gatley states that, apart from a decision in Hong Kong involving exceptional circumstances, "there is no reported case of a claimant recovering in defamation for injury to health", although adding that evidence of aggravation of a duodenal ulcer was permitted in Clough v Mirror Newspapers Pty Ltd (Supreme Court (NSW), Clarke J, 28 November 1983, unrep). 2. The only other decision discussing these principles of which I am aware is Lardelli v Nationwide News Pty Ltd (Supreme Court (NSW), Levine J, 17 September 1993, unrep), where Levine J entertained a submission (in interlocutory proceedings) that there was no basis in law for the making of such a claim. Levine J was unprepared to strike the particulars out on that basis alone, but went on to stress that, if such a claim were to be brought at all, "it should be made clear that the plaintiff is making claims in respect of his ill health either as a separate head of compensatory damages and/or…whether this is some peculiar component of the award of damages for injury to feelings" (at 2). 3. Clearly, Levine J would have expected particularisation of a relatively thorough kind, given the rarity of such claims. That would have included compliance with court rules for the provision of particulars of personal injury claims. This was the response of the second defendant's former solicitors in these proceedings as well. As Messrs Kennedys pointed out in their letter of 24 September 2021, "if the first plaintiff wished to allege she had sustained personal injury by reason of the publication of the allegedly defamatory matters, she is required to give the particulars specified by UCPR rr 15.12 and 15.14, and serve copies of the documents required to be served under those Rules." This is a correct statement of the requirements for conduct of proceedings where an injury requiring medical diagnosis and/or treatment is required, whether it be at common law or pursuant to a statutory regime. 4. When the plaintiffs' solicitors were advised of this requirement, they could have provided the particulars identified by Levine J and served the particulars specified by UCPR rr 15.12 and 15.14, or they could have explained why they did not consider this was necessary, or they could have raised this issue for case management during directions hearings. They did not do so. To the contrary, they stated, in their letter in reply, that this medical evidence was "a circumstance of aggravation and pled [sic] in aid of the claim for aggravated damages as opposed to a claim for personal injuries". In other words, this was not a claim of any kind, but merely a factual issue going to one aspect of aggravated damages. 5. Mr O'Callaghan submits that if that were the case, the evidence is inadmissible, as it does not go to a fact in issue. Injury to health is not a basis for a claim of aggravated damages unless there is some connecting factor (for example, Mr Lardelli argued that the journalist 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: "[38] Conduct which is improper, unjustifiable or lacks bona fides may affect reputation. In such a case the damage "continues until it is caused to cease"[ by an avowal by the defendant that the defamation is untrue or a judgment in the plaintiff's favour. Accordingly, damages may be increased by an unjustifiable failure to apologise or retract, by unjustifiable persistence in making untrue allegations or by the conduct of the defence of proceedings in a manner which is unjustifiable, improper or lacking in bona fides. The robust but reasonable pursuit of a bona fide defence where there is evidence to support it does not permit an award of aggravated damages. Pleading and persisting in a defence of truth without a proper basis does. [39] Conduct which is improper, unjustifiable or lacks bona fides may increase injury to feelings by causing the plaintiff greater indignity. Bad conduct by the defendant may outrage the plaintiff's feelings. In Carson McHugh J stated, "the anger of the plaintiff is placated only when he or she knows that the defendant has been punished for the wrong". However, care is required that an award to compensate the plaintiff for injured feelings has "an appropriate and rational relationship" with the harm sustained and does not contain an impermissible punitive element which exceeds what is necessary to "assuage the hurt, indignation and desire for retribution which the plaintiff feels"." [Citations omitted] 1. Even if the report were admissible 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]. 2. There have not been many decisions concerning the circumstances in which leave to serve reports under UCPR r 31.19 will be granted, but all give similar reasons if refusing leave when such applications come before the court, namely the need for fairness to the parties in litigation, as well as the prejudice to the opposing party. In the present case, the egregious length of time the plaintiffs have taken to serve the report (and their failure to explain this) and the prejudice to the defendants arising both from that delay and the imminent hearing are such that the application must be refused, for the reasons set out in more detail below. The relevant UCPR provisions for service of expert reports 1. UCPR r 31.19 provides: 31.19 Parties to seek directions before calling expert witnesses (1) Any party— (a) intending to adduce expert evidence at trial, or (b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial, must promptly seek directions from the court in that regard. (2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore. (3) Unless the court otherwise orders, expert evidence may not be adduced at trial— (a) unless directions have been sought in accordance with this rule, and (b) if any such directions have been given by the court, otherwise than in accordance with those directions. (4) This rule does not apply to proceedings with respect to a professional negligence claim. 1. The text of this rule could not be clearer. Service of an expert report is not permitted unless the court has granted leave. The plaintiffs' solicitors, who practice in Queensland, say they were unaware of this rule. That is surprising since, as is pointed out in Ritchie's Uniform Civil Procedure (NSW) at p. 7830, UCPR r 31.19 has an equivalent in Queensland. 2. UCPR r 31.28 (1) provides: 31.28 Disclosure of experts' reports and hospital reports (cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3) (1) Each party must serve experts' reports and hospital reports on each other active party— (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion. (3) Except by leave of the court, or by consent of the parties— (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied— (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1). 1. The plaintiffs' solicitors were sufficiently aware of the UCPR rules for service of expert reports to refer, in their covering letter to the solicitor for the second defendant, to UCPR r 31.28 which requires service within 28 days, the inference being that service of any report was acceptable as long as it occurred 28 days before the hearing. 2. At first blush, UCPR r 31.28(1)(c) does appear to permit the service of any report even where there is no order made, as long as the report is served 28 days beforehand. However, such a reading would directly conflict with UCPR r 31.19, which clearly prohibits the service of expert reports without leave, as Beech-Jones J pointed out in ● 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 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 argument) has not been referred to in other applications for leave since that judgment was handed down, from which it can be assumed that this was the first and only attempt to assert that UCPR r 31.28(1)(c) trumped UCPR r 31.19. 3. I note that, where there is an order for service of reports but it has not been complied with, attempts have been made to seek an extension under UCPR r 1.12, rather than r 31.28, which would enable the 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 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 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. 4. In practical terms, UCPR r 31.28(1)(c) tends to be applied to updating reports served after earlier 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 was the case in Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd. There is no question of Dr Fukui's report falling into any such category here. 5. Conformably with the interpretation of UCPR r 31.19 by Beech-Jones J, I am satisfied that for the plaintiffs to serve medico-legal reports in a defamation action, leave to do so is required under UCPR r 31.19. I am satisfied that no other rule (including UCPR r 31.28(1)(c)) would permit the service of such a report without that leave being sought promptly and being granted by the Court in the manner described by Beech-Jones J. Is failure to seek leave under UCPR r 31.19 a mere irregularity? 1. The plaintiffs submit that failure to comply with UCPR r 31.19 is an irregularity which can be resolved if the court is satisfied that the relevant expert reports required for the purpose of assisting the court in resolving the proceedings. The plaintiffs warn me that if I fail to give sufficient weight to the obtaining of a just result to the parties, this "may lead to an appellable error due the [sic] Courts [sic] discretion being [sic] miscarried" (submissions, paragraph 14). They submit that the expert report confirms the medical history of the first plaintiff and the diagnosis as well as an assessment of the impact on her daily 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 utility or assistance to the court" (submissions, paragraph 20). 2. The language and content of many of the provisions in UCPR r 31.19 concerning service of expert reports is in mandatory terms. In much the same way that expert reports must refer to the Code of Conduct and that their evidence must be contained in a report, the requirement for leave to be sought is mandatory. Where orders are made, applications are made to serve reports out of time face a daunting task, as terms such as "exceptional" are used. As Beech-Jones J noted at [24], the "strictures" of the case management provisions in s 56 of the Civil Procedure Act 2005 (NSW) must be observed in relation to expert evidence. 3. All of the judgments where leave has been sought 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 required for not seeking such an order earlier (at [25]). The explanation of overlooking the rule, particularly where Ritchie's notes that a similar rule is in operation in Queensland might amount to an explanation from a litigant in person, but is no excuse for a firm of solicitors who have counsel (at Senior and junior level) briefed to advise and appear. 4. I am therefore satisfied that the failure to seek an order is no mere irregularity. Even if it were, the lateness of service and the consequential prejudice to the defendants would result in refusal of leave, for the reasons set out below. Fairness, prejudice and "promptly" 1. Mr Edwards acknowledged that, even if the second defendant had found a doctor who had been able to knock on the first plaintiff's door the day after service of the report, examine her on the spot and prepare a report that was served that day, it would be less than 28 days before the hearing, because the plaintiffs waited until precisely 28 days before the hearing to serve the report. 2. The first source of prejudice is the inability of the defendants to reply to the report which, given the reference in the covering letter to UCPR r 31.28, is more likely than not to have been the intention of the timing of its service. 3. The second source of prejudice is that the plaintiff's medical condition nearly three years after the incidents in question may well have undergone significant changes. The defendants have lost the opportunity to have the plaintiff medically examined at the time that she refers to these symptoms first showing themselves and during the subsequent years. This is particularly relevant to the second defendant's defence, as her case at trial will be that the publications complained of by the plaintiff were immediately removed and were effectively only online for a few hours. How that resulted in the medical conditions complained of by the first plaintiff is a matter she was entitled to explore. Delay in serving medical reports is a significant issue in proceedings of any kind. 4. As to fairness generally, in Hrdavec v State of New South Wales, Fagan J emphasised that the delay was the critical factor (there was no explanation for a delay of 20 months after the proceedings commenced). That is a particular problem in these proceedings as well, which have been on foot for over 32 months and where the application for leave was made only after objection was taken by the second defendant seeking rulings from the court. The prejudice arising from being able to have either or both of the plaintiffs medically examined over this period is overwhelming. 5. In conclusion, the report was served without warning 28 days prior to the hearing, in circumstances where the defendants cannot possibly meet the evidence by expert material in reply. As is made clear in Chapman v Chapman by Brereton J, the word "promptly" in UCPR r 31.19 means that an application must be made to seek directions of the court before any expert is even retained. Mr O'Callaghan generously states that the letter of instruction to the expert was sent on 23 November 2023 without such a direction being sought beforehand, but I am of the view that this is an issue about which the court's permission should have been sought from the earliest stages of this litigation, as injury to health was clearly within the plaintiffs' purview of issues to be pleaded and particularised when the statement of claim was being drafted. This lengthy delay is unsatisfactorily explained. The application for leave has been accordingly refused. The other medical evidence the plaintiffs have discovered 1. The first plaintiff has discovered, but not served, medical reports from other practitioners. I have not seen these, but understand these are not medico-legal documents and do not refer to the Code of Conduct. I am uncertain what medical evidence, if any, the second plaintiff proposes to rely upon. 2. I apprehend that there will be attempts to tender medical reports or documents at the hearing, in which case it is desirable to have an early determination of their admissibility pursuant to s 192A of the Evidence Act 1995 (NSW), which argument will take place on 22 February 2024. 3. The question of admissibility of these documents is one of two issues I propose to deal with on 22 February 2024. There are issues between the parties as to the adequacy of particulars, interrogatories and discovery, which I have also listed for argument on 22 February 2024. 4. I suspect that both these arguments may take some time and have determined that any other disputes (such as foreshadowed challenges by the second defendant to the second matter complained of, the imputations and the Reply) are best left until trial. 5. To save time at the trial and to meet the needs of the self-represented first defendant, who has medical issues, I have made orders for a statement from her but not for a full affidavit (UCPR r 31.1) given her status as a litigant in person. To be fair to both parties, given the medical issues raised on behalf of the first plaintiff, I have made orders for both plaintiffs to prepare statements in the same somewhat informal way. I have been guided in this regard by the observations in Ritchie's at [31.1.10] and by the practice of ordering statements adopted by some judges in the Federal Court in defamation proceedings. It is a short time frame, but the parties have managed to achieve a great deal in the past ten days and this will hopefully continue. 6. It is important to try to preserve the hearing date. Mr Edwards tells me both the plaintiffs are anxious to proceed. Both defendants have told the court frankly that they face bankruptcy as a result of these proceedings. The first defendant cannot afford to be represented and the second defendant has dispensed with the services of her former solicitor and counsel after incurring legal fees between $150,000 and $200,000. It is in the interests of all parties for these proceedings to go ahead to trial if that can realistically be achieved. Thanks to the relisting of these proceedings by the new solicitor for the second defendant, this is now possible. Orders 1. 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. ********** 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: 19 February 2024