Orders for Access to property for testing by Expert so as to give Evidence on Main Issue in proceedings

23/04/2020

We recently acted for importers of vehicles and equipment from overseas in a number of proceedings in the NSW Civil and Administrative Tribunal (NCAT).  Our client was deemed to be the manufacturer of the engineered powered machines (machines) in Australia for the purposes of the Australian Consumer Law, by reason of the fact that the overseas manufacturer did not have a presence in Australia.

The issue in the proceedings was whether the machines in question were as powerful as represented by our client to the applicants at the time of sale.

It was alleged by the applicant owners of the machines that the machines purchased were less powerful than represented at sale.

As that was the main issue in the claims, our client wanted to be able to meet the assertion by having the machines tested by an expert.

Accordingly, a request was made of the applicants to make their machines available for testing.

Each applicant refused.

Hence, our submission was that it would be unfair to our client to be deprived of the opportunity of meeting the principal allegation in the proceedings by direct testing of the applicants’ machines.

The relevant proceedings were in NCAT, where the procedures are much more informal than in a traditional Court.

However, it is instructive if a similar issue arose in the proceedings commenced in a Court of New South Wales, the Rules (UCPR r 23.8) allows for an order for inspection in certain circumstances:

Inspection of property

(1)      For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following:

(a)      the inspection of any property,

(b)      the taking of samples of any property,

(c)      the making of any observation of any property,

(d)      the trying of any experiment on or with any property,

(e)      the observation of any process.

(2)      An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property.

(3)      A party applying for an order under this rule must, so far as practicable, serve notice of motion on each person who would be affected by the order if made.

(6)      In this rule, property includes any land and any document or other chattel, whether in the ownership or possession of a party or not.

The Supreme Court of New South Wales in AJ Lucas Operations Proprietary Limited v CPW Trailer Sales and Repairs Proprietary Limited allowed the Application that:

The proper test under the Uniform Civil Procedure Rules 2005 (UCPR) is contained in r 23.8. That is, the orders would be made, only if, they facilitated the proper determination of the proceedings. I bear in mind the similarity of that terminology with the terminology in ss 56, 57 and 58 of the Civil Procedure Act 2005, which impose upon the Court, the parties and their legal representatives a duty to facilitate the just, quick and cheap resolution of the real issues in the proceedings. It seems to me that an inspection of the kind sought would, subject to a couple of aspects, facilitate the quick, just and cheap resolution of the real issues between the parties and the orders would facilitate the proper determination of the proceedings.

Sanderson M in Jackson McDonald Services Pty Ltd & Anor v Who Hup (Australia) Pty Ltd considered an application for access to inspect premises that were the subject of the cause of action. The Court held:

“It is common ground between the parties that the condition of the building is central to the dispute.  Clearly, both parties will rely upon expert evidence to support their respective positions and, so far as the plaintiffs are concerned, that will necessitate an inspection of the building by an expert.  Prima facie, then, the plaintiffs are entitled to the orders they seek.”

The Tribunal ultimately accepted our submissions in the above matters and made orders allowing for access to the machines in question.

The form of Orders made in favour of our client in that case included the following:

1. The Applicant shall allow the Respondent's expert to examine and test the machine the subject of this application at a time and date mutually agreed between the parties. The Respondent is to make contact with the Applicant to set the time and date. The examination and testing is to take place at the Applicant's premises by the use of mobile testing equipment.
2. Leave is granted to the parties to have this matter relisted if there are any difficulties with respect to compliance with the order above. An application for relisting shall set out the reasons why the relist is sought and any access order proposed. A copy of the Application for relisting shall be served on the other party on the same date it is filed with the Tribunal.

At Watson & Watson our highly experienced Commercial Litigation Solicitors are adept at marshalling all relevant evidence to give clients the best prospects of success in their claims or defences, and where necessary, in applying for orders to facilitate that evidence being given, such as in orders for access to property.  Should you have any concerns in relation to your matter or queries in relation to a proposed claim, please contact Richard Watson Accredited Specialist Commercial Litigation or Shereen Da Gloria Personal Assistant to discuss your matter and seek timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.