Hartley v Australia Meat Holdings Pty Ltd
[1996] QDC 311
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- Unreported Judgment
- Hartley v Australia Meat Holdings Pty Ltd[1996] QDC 311
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Hartley v Australia Meat Holdings Pty Ltd[1996] QDC 311
Hartley v Australia Meat Holdings Pty Ltd[1996] QDC 311
IN THE DISTRICT COURT HELD AT TOOWOOMBA QUEENSLAND | No. 133 of 1995 |
BETWEEN:
CHRISTOPHER JOHN HARTLEY | Plaintiff |
AND:
AUSTRALIA MEAT HOLDINGS PTY LTD | Defendant |
REASONS FOR JUDGMENT - McGILL S.C., D.C.J.
Delivered the 13th day of December 1996
This is an application under r. 171 for an order that the plaintiff, the plaintiff's engineer and the plaintiff's solicitor be authorised to enter upon or into the defendant's land and building to inspect the accident site and for any observation to be made or experiment to be tried upon such terms as may be just. Counsel for the plaintiff/applicant has abandoned that part of the summons which sought an order permitting experiments to be tried; an application in terms of the summons is otherwise pressed, and was resisted by counsel for the defendant, although the real argument was as to the terms upon which inspection should be ordered.
The plaintiff claims damages for personal injury alleged to have been caused by the negligence or breach of statutory duty of the defendant in its capacity as employer of the plaintiff in the position of slicer/tally clerk at an abattoir. It is alleged in the plaint that the plaintiff's duties included continually pushing with excessive physical effort three or sides of beef at once along a steel rail to meet with the beginning of a hydraulic clip system, and frequently pushing, with excessive physical effort, two sides of beef at once up along a steel rail when the hydraulic clip system used to hook on to the sides of beef to raise them up to a higher level in the boning room failed to operate correctly. It is alleged that as a result of having to perform these duties the plaintiff suffered injury to his cervical and thoracic spine and to his right shoulder. It is alleged that the system of work was unsafe, and that the defendant should have replaced the hydraulic clip system with a different system, caused the hydraulic clip system to operate properly, or provided the plaintiff with assistance when it failed to operate properly. It is also alleged that the defendant required the plaintiff to work at too fast a rate, failed to design the workplace properly so as to minimise the risk of injury, and was negligent in other matters concerned with the organisation of the work place. It is alleged that the defendant was in breach of s.9 of the Workplace Health and Safety Act (1989). Liability is in issue; the matter has not yet been placed on a call over list.
This application was argued together with a similar application, in the matter of Pfingst v. Australia Meat Holdings Pty Ltd, involving a similar claim by another employee of the defendant, who was doing somewhat different work at the same abattoir. Some affidavits were read in both applications.
R.171 provides:
“The Court or a Judge may, upon the application of any party to an action or matter, and upon such terms as may be just, make any order that may be necessary for the inspection, detention, or preservation, of any property or thing, being the subject matter of the litigation, or as to which any question may arise therein.”
The wording follows the wording of the first part of O.58(1) of the Rules of the Supreme Court, but unlike that rule does not go on expressly to provide power authorise any person to enter upon or into any land or building in the possession of any party to the cause or matter. It is not obvious whether the explanation for the omission is that there was an intention to grant a more limited power than that applying in the Supreme Court, or whether it was felt that the latter part of O.58(1) was really surplusage since such powers would be implied in a power to make “any order that may be necessary.” The power to enter upon or into any land or building is not one which is readily implied at least in some circumstances. Coco v. The Queen (1994) 179 CLR 427. Note also the distinction between the Common Law Courts and Chancery referred to by Philp J in Rutile Mining Development Pty Ltd. v. Australian Oil Exploration Ltd [1960] Qd.R 480 at 484; when r.171 was drafted, this Court had only very limited equitable jurisdiction so the distinction may be significant. In the present case, however, it has not been argued on behalf of the defendant that there is no power under r.171 to make an order for inspection of property which involves entering upon the defendant's land and I will therefore proceed on the assumption that there is such power.
The affidavit material reveals that, prior to the application being made, there was, quite properly, a request for inspection without an order, which was met with a request that the persons taking part in the inspection execute a deed. There was some dispute as to the terms of the deed, and ultimately agreement was not reached between the parties as to the terms upon which an inspection would be permitted. The affidavit material suggests that once the matter came to the Court the scope of the dispute widened somewhat. The issues, by the time the matter came to be argued, were as follows:
- (a)whether the inspection should take place at the time when the abattoir was not operating;
- (b)whether the plaintiff should pay the defendant's costs of the inspection, and what costs;
- (c)whether the persons that were taking part in the inspection should provide an exemption and indemnity in respect of any personal injury or property damage suffered by them during the inspection;
- (d)whether there should be an express obligation of confidentiality on all persons taking part in the inspection.
There were certain other terms in the draft deed which were not the subject of any contention before me, and to which I shall refer to later. To some extent the issues were interrelated, since the defendant's attitude in respect of some terms depended on whether others were imposed as sought by it. To some extent therefore there is some overlap in the discussion that follows.
I should start with some preliminary observations as to what I take to be the basic approach to the rule. The purpose of the rule is to make orders “that may be necessary”, that is to say necessary for the purpose of doing justice between the parties to the action. Smith v Peters (1875) LR 20 Eq. 511 at 513, quoted in Rutile Mining v. Australian Oil Exploration (supra) at p.485. The use of that expression, however, suggests that an order under the rule is not one which is as readily made as if power were in terms one to make “any order that may be thought appropriate”. The applicant for such an order should be able to show that the inspection sought is necessary in the sense that there is good reason to think that the applicant will be prevented from obtaining a just resolution of the cause or matter unless such an order is made. It follows that the inspection ordered should be no more extensive than such as is necessary in this sense. An order should not be made for an inspection which is really no more than an attempt by a plaintiff to fish for a case: Tudor Accumulator Co Ltd v. China Mutual Steam Navigation Co Ltd [1930] WN 200 at 201 per Scrutton LJ; Marconi's Wireless Telegraph Co Ltd v. The Commonwealth (1912) 15 CLR 685; Reid v. Frost Developments Pty Ltd (1964) 81 WN (pt.1) NSW 389. The function of imposing terms on the order is essentially to prevent the order from being excessively burdensome on the defendant; terms which merely provide some unrelated benefit in return are inappropriate: Topp v. Lawnton Sawmill [1968] QWN 34. Broadly speaking, in my opinion, terms should be moulded which would minimise the detriment to the defendant from the order, but not so as to prevent the plaintiff from obtaining the real benefit of such an order.
Inspection While The Abattoir is Operating
The rule permits inspection “of any property or thing”. In my opinion, that is a reference to some physical property or thing capable of being inspected, and indeed capable of being detained or requiring preservation as may be appropriate pending the outcome of the litigation. In my opinion, the rule does not extend to the inspection of a process, or a system of work, or a manner of doing things, and does not extend to empowering the Court to require a defendant to give a demonstration of the use it makes of the property or thing for the benefit of the plaintiff or other persons inspecting. Contrast the express provision for a demonstration in the New South Wales Supreme Court Rules Pt 25 r. 8(1) The primary purpose of an inspection of property is to enable the evidence of that party's witnesses to be understood more clearly: Reid v. Frost (supra) at page 391. There is some parallel with the situation during a trial, where there is a distinction between a view for the purpose of understanding the evidence and a demonstration, which should only be permitted as part of the trial if both parties consent: Scott v. Numurkah Corporation (1954) 91 CLR 300. If a demonstration will not be ordered for the purposes of a trial without the consent of the defendant, a defendant should not be in substance ordered before trial to provide against its will a demonstration to the plaintiff and his witnesses of its method of operating the abattoir.
There have been read before me affidavits by three engineers, who might be conveniently described as industrial safety experts, and who from time to time give evidence in matters of this nature. Each of them has sworn that it is extremely difficult for him to provide a detailed and accurate report concerning an injury on the kill floor/boning room of an abattoir if he is unable to view the chain in operation, and that on such an inspection what is observed is the particular task that the plaintiff had been performing. It seems to me that insofar as this involves the experts seeking a demonstration of the defendant's system of work, it is something which is beyond the scope of r.171. Indeed, counsel for the plaintiff conceded, in my view correctly, that the plaintiff was not entitled to obtain a demonstration of the system of work, but sought to avoid the imposition of a term that the inspection take place at a time when the abattoir was not operating.
The works manager of the defendant's abattoir has sworn an inspection while the abattoir is operating is disruptive and dangerous (affidavit of Drommel s. 22.11.96 paras 4-6). There is a risk that the employees working on the production line will be distracted, and this could increase the risk of injury to them from the sharp knives with which they work, or result in some disruption to the orderly flow of product along the production line, which could lead to short cuts being taken to catch up. It is quite understandable that the presence of visitors at the abattoir could act as a distraction to the employees, particularly in circumstances where visitors are unusual; the affidavit also indicates that tour groups, for example, are not allowed access. I am prepared to find that there is some risk of injury or disruption to production if the inspection takes place while the abattoir is operating, and that detriment or potential detriment to the defendant or others could be avoided by having the inspection at a time when it is not operating. The defendant is also concerned about the safety of the inspecting party, and that can largely be overcome by having the inspection at a time when the abattoir is not operating.
It seems to me that the defendant has some genuine concerns about an inspection while the plant is operating, and that some detriment to the defendant from the inspection can be avoided if the plant is inspected while it is not operating. I can readily understand that from the point of view of the plaintiff and his engineering experts an inspection while the plant is operating would be more useful, but not, in my opinion, for any purpose which is properly within the scope of this rule. The Court cannot make an order beyond the limits of the rule just because it would be convenient or desirable to do so: Thiess v. T.C.N. Channel Nine Pty Ltd (No 2) [1992] 1 Qd.R 237 at 240. (See also Nicholls v. McLeay (1971) 1 S.A.S.R. 442). It may well be helpful in the practical sense for the defendant's expert to have the opportunity of observing the system of work, but I suspect that that benefit would be properly characterised as improving the value of the inspection as a fishing expedition. Insofar as the plant consists of property or things, they can be inspected while it is not operating. To the extent that more would be seen by an inspection while the plant was operating, in my opinion it would take the inspection beyond the terms of r.171.
At least the majority of the Court of Appeal in England in Tudor Accumulator Co Ltd v. China Mutual Steam Navigation Co Ltd (supra) expressed the view that the English equivalent did not extend to an order for inspection of the method adopted by a party in manufacturing and packing goods, and I regard that case as supporting the construction of the rule according to the natural meaning of the words used. I do not regard the decision in Ash v. Buxted Poultry Ltd (The Times, 29.11.89) as a precedent. Although the context was similar to that here, and an order was made for a videotape to be made of the defendant's process, the order was based on the “auxiliary jurisdiction” of the High Court in England discussed in S. v. McC [1972] AC 24 at 46-47. Even if the approach in that case is a correct application of that jurisdiction, it is not applicable to this Court which has no such inherent jurisdiction.
I propose therefore to impose a condition that the inspection take place at a time when the abattoir is not operating. The plaintiff, of course, will be able to be present and will be able to explain to the expert the way in which he was required to work, and that should be sufficient to enable the expert to obtain an adequate understanding of the system of work.
Term as to Cost
In principle, in my opinion, an inspection should generally be at the cost of the party seeking the inspection, although much will depend on the circumstances of an individual case and such a term should not be imposed if it would have the effect of frustrating an order otherwise necessary in order to do justice in the action. Counsel for the defendant argued that the position was analogous to the production of documents for inspection after they were discovered in an action, the cost of which is part of the producing party's costs of the action, (although if photocopies are requested and provided, that is usually on terms that the requesting party pays the coping costs at once.) The difference, however, is that under r.187 and r.189 there is a right to inspection of documents which have been discovered or referred to in pleadings or particulars, where r.171 merely provides a discretion to order an inspection upon such terms as may be just. Even when ordering inspection under r.190, the Court would be concerned to minimise harm to a producing party from the inspection; see for example Derby and Co Ltd v. Weldon (No. 9) [1991] 1 WLR 652. In an appropriate case that could involve the imposition of a term as to costs.
There seems to be little guidance in the authorities dealing with r.171 and similar provisions, no doubt because in the ordinary case there is no significant costs involved in undertaking the inspection, so costs are not sought. The costs sought in the present case were not all that great, and it emerged during argument that most of them related to costs which would be incurred only if the abattoir was inspected during production. Indeed, during argument, counsel for the defendant said that if that were not going to occur, no claim for costs would be made, so in the circumstances it is not necessary to consider this point further.
Exemption from Liability and Indemnity
The defendant sought the execution of a deed by all the persons attending the inspection, by which they disavowed responsibility on the part of the defendant for any loss or injury to person or property suffered during the inspection, including through the negligence of the defendant, and indemnifying the defendant from any action arising as a result of the tour of inspection. All three of the engineers whose affidavit evidence is before me on behalf of the plaintiff have said they would not be prepared to conduct an inspection if they were required to sign a deed containing such provisions, and it appears that the practical effect of imposing such a condition is therefore likely to be that it will be difficult for the plaintiff to obtain a suitable expert to provide such a report.
In Central Queensland Speleological Society Inc v. Central Queensland Cement Pty Ltd (No. 2) [1989] 2 QdR 537 an order for inspection was made of property which was said to be dangerous, in circumstances where an indemnity was to be given by the persons entering from the defendant's premises for the purpose of carrying out the inspection. In that case the defendant had alleged that the premises were dangerous, and had sought to resist inspection on this basis. Senior Master McLauchlan (as His Honour then was) accepted that this was a matter to be weighed in the exercise of the discretion, but said that if the persons carrying out the inspection with a full knowledge of the dangers associated therewith were prepared to go on the premises an order should be made, although “all steps ought to be taken to lessen the danger”. It appears in that case that the indemnity was offered by the plaintiff's witnesses, and the only argument about it was whether it was adequate if one of the persons concerned was killed during the inspection. The affidavit of Mr Drommel, the works manager, does not suggest that the premises are dangerous except in connection with conveyor belt systems, which would presumably be switched off when the plant was not operating, but any industrial premises can be dangerous to people who are not familiar with them, and I can understand that an abattoir might be dangerous because, for example, of the risk of contamination of walk ways and steps with slippery fat.
In Steamship New Orleans Co v. London and Provincial Marine and General Insurance Co [1909] 1 KB 943, an order made required a ship to be brought from Singapore to Europe, and the order, which had been sought by the defendant, was to be “upon special terms at the defendant's risk”: page 947. Unfortunately, (from my point of view), the action was subsequently settled and the final terms of the order were never drawn up. I am not quite sure what was meant by this expression in the context of that litigation. I thought at first that it meant simply that the defendants would have to pay for insurance cover on the vessel, but it appears that the plaintiff was already asserting that the vessel was a constructive total loss, and if that were true, the plaintiff might be no worse off if the vessel did sink during the voyage to Europe, leaving aside, as the Court seems to have, the prospect of some prejudice to others from such an event. Indeed, their Lordships seem to have thought that the voyage would be a useful test of the plaintiff's allegation.
In Rathmell v. State of Queensland (Writ 36 30/84, Master Weld, 11-8-86, unreported) the respondent to an application under O.58 r. 1 sought an indemnity against any action however arising for injury loss or damage including for negligence. Master Weld decided that this was wider than it ought to be, but did require an indemnity in respect of injury loss or damage arising without negligence on the part of the defendant, something which he thought could arise given that the place to be inspected was inside a prison. In that matter the cost of escort and security during the inspection was to be met by the applicant, although it became part of his costs of the action.
It seems to me that in principle there is a good deal to be said for the proposition that if people want to inspect premises, and the owner of the premises asserts that they are dangerous, the persons inspecting should do so at their own risk, that is to say they should either be prepared to run the risk themselves of suffering any loss or injury as a result of the inspection, or arrange (or have arranged for them by the party at the party's expense) appropriate insurance cover to provide against loss or injury during the inspection. I suspect that such cover could be arranged, although there is no evidence of that before me. During the hearing I did raise the possibility of the defendant arranging special insurance cover in respect of the visit with a view to the plaintiff being required to pay the cost of that. I was subsequently informed by counsel for the defendant (with the knowledge and consent of counsel for the plaintiff) that the defendant's existing public liability policy would provide cover to the defendant in respect of any claim by any member of the inspecting party who suffered any injury during the inspection without any additional cost to the defendant. In those circumstances, the practical solution in the present case is that the defendant will not in fact be prejudiced by being exposed to the extra risk of liability for injury as a result of this inspection, and therefore no condition for an indemnity should be imposed. I am, however, concerned that there is a real risk that, if that pragmatic solution comes to be applied regularly, the result will be more claims on such policies and hence an increase in the premiums paid for them. The practical effect may be that in the long term the cost of inspections of this nature is borne by people who take out liability insurance. I would therefore not like this decision to be treated as a precedent for the proposition that a term requiring an indemnity will never be imposed unless the other party can show that its insurance premium is likely to rise if an inspection is ordered without such a term.
Undertaking as to Confidentiality
Only one of the plaintiff's potential experts indicated an unwillingness to give an undertaking as to confidentiality. The defendant's evidence in Mr Drommel's affidavit was that the defendant produces specific orders for specific clients, particularly in Japan, and this requires the meat to be processed and trimmed in a special way for customer specifications which are unique to each customer, and a knowledge of how meat is trimmed to meet the requirements of a particular customer is regarded by the defendant as a trade secret. There is no evidence which directly contradict that proposition, and I can see no reason to reject it. In any case, the purpose of an inspection under r.171 is to assist in doing justice between the parties to the action or matter, and restricting the persons inspecting the premises from using the information obtained for any other purpose is not inconsistent with that objective.
Counsel for the plaintiff argued that there was an implied obligation on the person engaged in the inspection not to use the information obtained for any other purpose, similar to the implied obligation in relation to documents produced on discovery not to use them for any collateral or ulterior purpose: Nicol v. Brisbane City Council [1969] Qd.R 371 at 377. However, a Court may require an express undertaking as a condition of inspection even on discovery of documents in an appropriate case; Church of Scientology of California v. Department of Health and Social Security [1979] 3 All ER 97 at 106. In my opinion it is no answer to a request for an express undertaking merely to say that there will be an implied undertaking in any event; if the members of the inspecting party will be subject to an implied undertaking in any event they are not prejudiced by giving an express undertaking, and the other party can, I think, reasonably draw some comfort from the existence of an express written undertaking as to confidentiality, the existence of which would also facilitate proof if that party sought to take proceedings in the event of the undertaking being breached. I think, therefore, it is appropriate that one of the terms of the order for inspection be that all persons inspecting pursuant to the order give a written undertaking to the defendant in terms of Clause 2.4 of the draft deed. There was no dispute about the terms of that undertaking if an express undertaking were appropriate.
Other Matters
Mr Drommel's affidavit refers to the requirement of the Australian Quarantine Inspection Service for certain precautions to be taken to prevent contamination of the processing area. The precautions are obviously reasonable, as the defendant could obviously suffer very substantial loss if there was any contamination of its product. The inspecting party should be required to comply with all of the defendant's requirements directed to maintaining the quarantine regime at the abattoir.
Two other matters raised in the draft deed which were not specifically the subject of objection were a requirement that the inspection be confined to the area where the accident occurred, and a requirement that the persons engaged in the inspection not contact any employee of the defendant except persons authorised by the defendant to accompany the inspecting party. The former is reasonable except that it should refer to the area where the plaintiff was doing the work referred to in the plaint. It think the latter is also reasonable, if confined to the period of the inspection.
I therefore order that the plaintiff, one representative of his solicitors, and one engineer nominated by the plaintiff, may on a day and at a time to be agreed, or failing agreement to be fixed by further order, be at liberty to enter upon the defendant's premises at “Beef City”, Purrawanda via Toowoomba referred to in paragraph 2 of the plaint to inspect that part of the abattoir thereon where the plaintiff claims to have been carrying out the duties referred to in paragraph 3 of the plaint and the plant and equipment in that part of the abattoir, and to make any measurements and drawings and take photographs of the same, subject to the following conditions:
- 1.The inspection not take place at a time when the plant and equipment in that part of the abattoir to be inspected is actually operating.
- 2.Each person taking part in the inspection pursuant to this order provide to the defendant, not later than at the commencement of the inspection, a written undertaking signed by that person in the following terms:
- “I, (insert name and address) hereby undertake that I will not disclose to any person any confidential information of or relating to Australia Meat Holdings Pty Ltd or any of its trade or business secrets of which I become possessed arising out of my inspection pursuant to an order of the District Court of the abattoir at “Beef City”, Purrawanda via Toowoomba, operated by that company, save for the purposes of litigation currently existing between Australia Meat Holdings Pty Ltd and Christopher John Hartley.”
- 3.The inspection is to be confined to those places where the plaintiff claims he was carrying out the duties alleged in paragraph 3 of the plaint.
- 4.All persons participating in the inspection are to comply with all of the defendant's requirements directed to satisfying the requirements of the Australian Quarantine Inspection Service in respect of the abattoir, and any other reasonable requirements of the defendant directed to preventing any contamination of the product of the abattoir.
- 5.The persons engaged in the inspection are not, while taking part in the inspection, to contact any employee of the defendant except persons authorised by the defendant to accompany the inspecting party.
I give liberty to apply on seven days notice. With regard to costs, it seems to me that on the whole the defendant has been more successful than the plaintiff in respect of the matters in issue in this application. When this matter initially came before me in Toowoomba, I considered that on the material then before me the plaintiff had not established a need to inspect machinery in use, that is with the abattoir operating, although I was prepared to order an inspection of the machinery while it was not in use. That was a view arrived at without the benefit of further argument and further consideration as to the scope of r.171, and I have now come to the opinion that that rule is not wide enough to cover orders for the inspection of the machinery in use. Nevertheless, counsel when appearing for the plaintiff sought an adjournment in order to put further material before me. That adjournment was granted but on terms that the plaintiff pay the defendant's costs of the adjournment. I will hear further submissions in relation to the costs of the application.