Luke Brett Moore v State of New South Wales

File Number(s): 2022/00053460

Publication restriction: N/A

EX TEMPORE JUDGMENT

1. This notice of motion by the plaintiff in a suit alleging malicious prosecution against the State of New South Wales came before me in the duty list yesterday, on 8 April, at about 2pm in circumstances of great urgency. The motion sought orders that:

2. The report of Louise Parry dated 20 March 2025 be included as part of the bundle to be provided to the experts’ conclave which is scheduled for 4pm on 8 April 2025.

3. The plaintiff be permitted to rely on the report of Louise Parry dated 20 March 2025 at the hearing of this matter which is listed on 5 May 2025.

4. The reference to the “experts’ conclave” was a reference to a meeting of two psychiatrists who have provided reports at the request of each of the parties. Those experts are Dr Alex Apler, who prepared a report at the request of the defendant, and Dr Stephen Allnutt, who prepared a report at the request of the plaintiff.

5. By the time the matter came before me, the extent of the urgency was reduced somewhat because the conclave of experts had been moved to this Friday, 11 April. However, the parties needed a decision quickly so that the questions to be provided to the doctors could be settled. Because the defendant filed an affidavit of 143 pages, including annexures, about 20 minutes before I came on to the bench, I adjourned the matter overnight for decision after hearing the submissions of counsel. I should say that observation is not meant in any way to be a criticism of the defendant or its solicitor. It is simply the reality of the urgency of matters that come before the duty list which places great pressure on the lawyers for parties to provide the Court with the information needed to make a decision.

6. Ms Parry is a senior clinical neuropsychologist and provided her report dated 20 March 2025 at the request of the plaintiff. The report was directed to the question of whether the plaintiff had pre-existing frontal lobe damage and, if so, what (if any) role that may have played in relation to the plaintiff’s current symptoms, injuries and disabilities or medical conditions identified by the two psychiatrists.

7. On my limited understanding of the case and the issues, the relevance of this opinion is three-fold. First, it may impact on the assessment of whether the acts of the defendant, if proved, exacerbated a pre-existing condition in the plaintiff. Secondly, it may affect a determination of whether the plaintiff’s current presenting symptoms were caused by the defendant’s actions or were already present and unrelated to the trauma the plaintiff says he suffered. Thirdly and relatedly, it may impact on a proper assessment of damages.

8. The defendant’s opposition to the use of Ms Parry’s report, either at trial or to form part of the material to be considered at the conclave, is that it was served so late and in contravention of orders of the Court for service of expert reports. By r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW), the report is not admissible except by leave of the Court. By r 31.28(4), leave is not to be granted in the absence of exceptional circumstances. A significant issue raised by the defendant is that the late service of the report leaves the defendant with no time to retain a brief and obtain an opinion from an alternative neuropsychologist. A significant problem is that some of the testing undertaken by Ms Parry is of the kind that cannot be repeated for some months or, if it is, the results may not be reliable. [1]

9. Against that, as the plaintiff submitted, both psychiatrists have indicated they would be assisted by the provision of a report. Dr Apler said he would be quite interested in any neuropsychological assessments that have been done to evaluate the extent of these brain injuries because a recurrent mood disorder can be associated with frontal lobe damage. Similarly, Dr Allnutt said:

“I note that there has been concern about a possible head injury. On Mini Mental Status examination today, there was no evidence of significant impairment however, frontal lobe damage is subtle and is not evident on a simple Mini Mental Status examination and would require, in my view, formal neuropsychological assessment and whether you pursue this would be a matter between you and your client… He has a pre-existing history of depression potentially some mild brain damage which can only be clarified through neuropsychological testing.”

8. There is no perfect solution to the problem that has arisen. I am not inclined to grant leave under r 31.28 and have not received sufficient assistance from the parties as to whether “exceptional circumstances” exist. Indeed, the notice of motion filed by the plaintiff does not in terms seek leave under that Part.

9. Unusually the defendant sought to cross-examine the plaintiff’s solicitor on his affidavit. I granted leave for that to happen. I accepted Mr Fahey’s evidence and his explanations for obtaining the report from Ms Parry at such a late stage of preparation for trial. That, of itself, does not resolve the issue of leave or, by itself, establish exceptional circumstances under sub-rule (4) because the extent of any prejudice to the defendant may need further exploration. I will reserve the question of the admissibility of the report and any evidence from Ms Parry to the trial Judge.

10. The only submission made by senior counsel for the plaintiff was on the question of whether the stricture of sub-rule 31.28(4) was “a classic illustration of exceptional circumstances because our experts threw it up.” While that is a powerful consideration, I expect the trial Judge will expect more assistance than that.

11. On the other hand, it is correct that both psychiatrists expressed a view that the results of such testing may be of assistance in formulating their opinions.

12. A solution raised in argument is that the conclave prepares two separate reports. The first would include their joint and/or separate opinions as to the issues and questions put to the parties absent a consideration of Ms Parry’s report. The second would include their opinions once Ms Parry’s report is taken into account. If that is achievable, I consider it to be the best solution available.

13. An issue raised by the plaintiff is the problem that once the psychiatrists have seen and considered Ms Parry’s report and the neuropsychological testing undertaken by her, they will not be able to “unsee” it. As it was put by Mr Williams “it would be in a sense hard to unscramble the egg”.

14. While I accept this is a consideration, I would have thought that each of the experts would be capable of taking a scientific approach and be able to provide an opinion on both bases and in such a way that their ultimate evidence at the trial would not be contaminated by having seen those results if the trial Judge forms the view that they are not admissible.

15. However, before the report is provided to them, the parties should seek their guidance, that is the expert witnesses’ guidance, as to whether they are able to provide alternative opinions, that is one with and one without the benefit of Ms Parry’s report. If either or both consider this to be unrealistic, the parties will have leave to approach my Associate to allow me to consider alternative solutions. One possible solution is to abandon or cancel the pre-trial conclave and allow the issues to be ventilated before the trial Judge. It may be that the evidence could be given, perhaps even should be given, sequentially in the old-fashioned way, rather than by way of conclave or concurrent evidence. Alternatively, the conclave could be held once the trial Judge has resolved the issue of the admissibility of Ms Parry’s report.

16. In the meantime, I will do what I can to arrange for the matter to be allocated a trial Judge quickly so that any further skirmishes can be dealt with by that Judge. My enquiries overnight show that the earliest that that can happen will be next week. I am hoping notwithstanding that problem and the problems that I have already canvassed that it will be possible for the conclave scheduled for this Friday to continue one way or the other.

17. The orders or directions I will make will require the conclave to provide two separate reports. The first report will be prepared without knowledge of Ms Parry’s testing and opinions. Once that report is prepared, the psychiatrists may have access to the report and prepare a second report following a continuation of the conclave, or if it’s more correct to say, a second conclave.

18. I should note that neither party foreshadowed the possibility of seeking to vacate the trial date and I will confirm the trial date of 5 May 2025.

19. For those hurriedly prepared reasons, I make the following orders:

20. Confirm the trial date of 5 May 2025;

21. Recommend a trial Judge be allocated for a 3-week hearing commencing 5 May 2025 expeditiously;

22. Reserve the decision on prayer 2 of the notice of motion to the trial Judge;

23. As to prayer 1, allow the expert conclave to have access to the report of Ms Parry, (“the report”), but only on the following conditions:

(a) Before the report is provided to the experts each psychiatrist is to be consulted as to whether they are able to disregard the evidence of Ms Parry and the neuropsychological testing reported by her if the report is ultimately ruled to be inadmissible; (b) If either psychiatrist indicates they are unable to do so, the report is not to be provided to either and the parties have liberty to apply to my Associate, until the trial Judge is appointed, to list the matter urgently before me to consider alternative orders; (c) If the psychiatrists both indicate they are able to do so, the conclave is:

(i) To provide a joint report as to their opinions in the absence of consideration of the report; and (ii) Be provided with the report once the joint report has been provided, ideally within 24 hours of the conclave; and (iii) Provide a second report once that report has been considered and the conclave has reconvened.

5. The costs of and incidental to the notice of motion are reserved to the trial Judge.

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Endnote

Exhibit M to Ms E K Morris’ affidavit dated 8 April 2025, “Neuropsychological Assessment of Children and Adults with Traumatic Brain Injury” at page 4 of 37.