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Wilsons Ceramics Pty Ltd v Pantaenius Australia Pty Ltd[2021] QDC 74

Wilsons Ceramics Pty Ltd v Pantaenius Australia Pty Ltd[2021] QDC 74

DISTRICT COURT OF QUEENSLAND

CITATION:

Wilsons Ceramics Pty Ltd v Pantaenius Australia Pty Ltd [2021] QDC 74

PARTIES:

Wilsons Ceramics Pty Ltd (ABN 28 100 491 709)
(Plaintiff)

v

PANTAENIUS AUSTRALIA PTY LTD (ABN 95 148 013 085)
(Defendant)

FILE NO/S:

3167 of 2019

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

4 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2021 with further written submissions received 24 February 2021, 9 March 2021 and 12 March 2021

JUDGE:

Kefford DCJ

ORDER:

I order:

1. The application is dismissed.

2. The matter be listed for further mention on Thursday, 6 May 2021 at 9 am.

CATCHWORDS:

APPLICATION IN PENDING PROCEEDING – where the proceeding relates to the condition of the hull of the plaintiff’s yacht – where the defendant insurer seeks an order for inspection to facilitate further core sampling of the hull – whether it is a pre-requisite that the inspection be “necessary” – whether it would be appropriate to exercise discretion to make an order for inspection

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) r 250

CASES:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27, applied

Evans Deakin Pty Ltd v Orekinetics & Ors [2002] QSC 42; [2002] 2 Qd R 345, applied

Hartley v Australia Meat Holdings Pty Ltd [1996] QDC 311, distinguished

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705, 729-30 [59]-[60], applied

Rooskov v Laconholme [2002] QDC 217, distinguished

COUNSEL:

J B Rolls for the plaintiff

C Templeton for the defendant

SOLICITORS:

Kerin Lawyers for the plaintiff

Hall & Wilcox Lawyers for the defendant

Introduction

  1. [1]
    The plaintiff is the owner of a yacht called “Enhansed” (“the vessel”).  The vessel was insured under a policy issued by the defendant.  The plaintiff alleges that on 9 November 2017 the vessel was struck by lightning and that, as a consequence, the vessel was damaged beyond all economic repair.[1]   The particulars of that allegation include that the lightning strike exited the box steel frame via the hull, creating lightning exit holes throughout the hull which caused saltwater ingress into the structural steel box frame into the bilge.  The plaintiff also alleges that the condition of the vessel after the lightning strike was such that the vessel was not fit for its intended purpose, it could not be made seaworthy for its intended purpose, it was not able to be sold for its intended purpose, and the structural integrity of the hull, amongst other things, had been compromised by the lightning strike.[2]  The defendant denies these allegations and says the vessel is not beyond reasonable economic repair.  The defendant alleges that the vessel can be restored to its pre-incident condition. 
  2. [2]
    The integrity of the hull is a central issue in the proceeding.  It appears to be common ground that the hull is a fibre reinforced epoxy cored sandwich construction with a gelcoat finish.  Experts retained by the parties have undertaken two main forms of testing on three small areas of the hull, with conflicting results.  There has been ultrasonic and eddy current testing by the experts retained by the plaintiff, who conclude that there is damage.  There has been core-sampling and FTIR spectroscopy analysis on those samples by experts retained by the defendant.  They say that no or minimal damage is revealed. 
  3. [3]
    The defendant contends that further testing is required to determine the exact nature and extent of the damage, chiefly on the basis that the method of testing undertaken by the experts for the plaintiff is unsuitable and does not address the question of the extent of the damage.  The defendant proposes to undertake core-sampling.  The plaintiff has refused the defendant’s request to undertake an inspection of the vessel for that purpose.
  4. [4]
    This is an application made by the defendant for leave to inspect the vessel.  The application is made pursuant to r 250 of the Uniform Civil Procedure Rules 1999 (Qld).  It is opposed by the plaintiff.
  5. [5]
    The issues for me to determine are:
    1. (a)
      whether the Court has power to make an order for inspection under r 250 of the Uniform Civil Procedure Rules 1999; and, if so
    2. (b)
      whether an order should be made in the exercise of the Court’s discretion.

Does the Court have power to make an order for inspection?

  1. [6]
    Rule 250 of the Uniform Civil Procedure Rules 1999 states:

250 Inspection, detention, custody and preservation of property

  1. (1)
    The court may make an order for the inspection, detention, custody or preservation of property if—
  1. (a)
    the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or
  1. (b)
    inspection of the property is necessary for deciding an issue in a proceeding.

Note

Under the Acts Interpretation Act 1954, schedule 1—

property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.

  1. (2)
    Subrule (1) applies whether or not the property is in the possession, custody or power of a party.
  1. (3)
    The order may authorise a person to do any of the following—
  1. (a)
    enter a place or do another thing to obtain access to the property;
  1. (b)
    take samples of the property;
  1. (c)
    make observations and take photographs of the property;
  1. (d)
    conduct an experiment on or with the property;
  1. (e)
    observe a process;
  1. (f)
    observe or read images or information contained in the property including, for example, by playing or screening a tape, film or disk;
  1. (g)
    photograph or otherwise copy the property or information contained in the property.
  1. (4)
    In the order, the court may impose the conditions it considers appropriate, including, for example, a condition about—
  1. (a)
    payment of the costs of a person who is not a party and who must comply with the order; or
  1. (b)
    giving security for the costs of a person or party who must comply with the order.
  1. (5)
    The court may set aside or vary the order.”
  1. [7]
    There is no dispute between the parties that the vessel is property of the kind referred to in r 250(1)(a).  The plaintiff contends that this is not sufficient to permit the Court to make an order for inspection of the vessel.  It says the Court only has power to order inspection if the defendant satisfies r 250(1)(b).  The defendant disagrees.  It submits that the Court has power to make an order for inspection under either r 250(1)(a) or (b).  The defendant says that, in any event, the evidence establishes compliance with r 250(1)(b).

Does the Court have power to order inspection under r 250(1)(a)?

  1. [8]
    In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory), Hayne, Heydon, Crennan and Kiefel JJ said:[3]

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”

  1. [9]
    The language of r 250(1) of the Uniform Civil Procedure Rules 1999 is clear.  It provides for two situations in which the Court has power to make an order for the inspection of property.  First, when the property is the subject of a proceeding or is property about which a question may arise in a proceeding.  Second, when inspection of the property is necessary for deciding an issue in a proceeding.  The word “or” between the two subparagraphs indicates that they contain alternative sources of power.
  2. [10]
    The plaintiff contends that the rule should be construed contrary to its ordinary meaning.  It submits that as r 250(1)(b) refers explicitly to “inspection”, it necessarily applies in relation to an order for inspection of property, and an order for inspection cannot be made by satisfying only r 250(1)(a).  The plaintiff says that if r 250(1) were construed by reference to its ordinary meaning, r 250(1)(b) would be rendered otiose.
  3. [11]
    I do not accept the plaintiff’s submissions.  Rule 250(1)(b) has application to a potentially broader class of property than that covered by the first subparagraph of r 250(1).  Subparagraph (a) relates to property that is itself central to the proceeding.  The centrality of the property to the proceeding is sufficient to empower the Court to make an order dealing with the property, without any requirement for its inspection to be “necessary”.  Subparagraph (b) on the other hand concerns a potentially broader class of property, being property that is neither the subject of a proceeding nor the subject of a question in the proceeding.  It extends to property that may be of evidential value only.  Absent the direct connection to the proceeding, a higher threshold of necessity is imposed.  That is, inspection of the property may only be ordered if it is necessary for deciding an issue in a proceeding. 
  4. [12]
    In support of its submission that the inspection must be “necessary”, the plaintiff also relies on the following observations by Her Honour Judge O’Sullivan in Rooskov v Laconholme:[4]  

“The judgment of McGill DCJ In Hartley v Australia Meat Holdings Pty Ltd (unreported, District Court of Queensland, Brisbane, No 133 of 1995, McGill DCJ, 13.12.96) gives an indication of the meaning of “necessary” in the context of this Rule. In relation to the corresponding rule in the previous District Court Rules His Honour said (at p4):

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 Eq 511 at 513, quoted in Rutile Mining v Australian Oil Exploration at p485. The use of that expression, however, suggests that an order under the rule is not one which is made as if power were in terms one to make “any order that may be 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 in 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 (pt1) NSW 389.”

  1. [13]
    The plaintiff’s reliance on these observations is misguided.  The observations do no more than explicate the meaning of “necessary” in the context of an application for an order for inspection.  They do not analyse whether necessity of inspection is a pre-requisite to the exercise of the Court’s power to order inspection under r 250.  Moreover, at the time Hartley v Australia Meat Holdings Pty Ltd[5] was decided, the equivalent of r 250 was in different terms.  Under the earlier rule, any exercise of the Court’s power was on the pre-condition that the order was “necessary”.  This is not the case under r 250, where only the second subparagraph requires that the inspection be “necessary”.
  2. [14]
    For the reasons set out above, the Court has power to make an order for inspection of the vessel.

Should an order be made in the exercise of the discretion?

  1. [15]
    The defendant requests that the Court exercise its discretion to order:

“1. Pursuant to r 250 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the vessel ‘Enhansed’ (vessel) that is the subject of these proceedings be preserved by the Plaintiff for the purpose of performance of Order 2.

  1.  The Parties and their expert(s) be permitted to jointly:

a. access and inspect the vessel;

b. transport the vessel as reasonably necessary (and in a manner approved by a shipwright or other appropriately qualified expert) for the purposes of inspecting it and conducting the testing / repairs described in subparagraphs 2d – g below;

c. lift the vessel from the water to hard stand;

d. grind away areas of gell coat that each considers reasonably necessary to identify areas of the hull laminate that the Plaintiff alleges are damaged by lightning;

e. perform percussion testing on the hull;

f. take up to five core samples each from the vessel’s hull in locations chosen by each of the parties;

g. repair the location of the gell coat and core samples taken using a repair protocol approved by a Naval Architect; and

h. return the vessel to the water.”

  1. [16]
    The exercise of the Court’s discretion under r 250 was considered by the Honourable Justice Chesterman in Evans Deakin Pty Ltd v Orekinetics Pty Ltd & Ors,[6] wherein His Honour observed:

“The discretion conferred by the rule is a wide one.  It should not be limited by the superimposition of conditions not found in the rule itself.  The order should not be made unless, on the material before the court, it is proper to do so.  It must be remembered that the rule exists to promote the efficient and economical conduct of litigation.  If the result of an inspection would tend to bring about such a result the discretion should, I apprehend, ordinarily be exercised in favour of inspection subject to there being some countervailing circumstance.  To say that there must be formidable grounds for alleging an infringement before inspection will be ordered is to say only that there must be sufficient grounds for making the order.  I do not think that there is any benefit in using any more particular or pejorative adjective.  It is no doubt true that an order for inspection of property will not be made unless there is some evidence that the plaintiff’s rights are being infringed and that an inspection will facilitate proof of the claim.  This, I expect, is all that is meant by saying there must be a substantial and genuine dispute.  There are, of course, degrees of suspicion as well as of proof.  It is pointless to resort to semantic differences and refuse inspection where there is “mere suspicion” of an infringement, but allow it where there is “strong suspicion” or “proof” of it, even if the proof be weak.  The discretion conferred by UCPR 250 should be addressed by considering whether in all the circumstances of a particular case the plaintiff has shown sufficient grounds for intruding on the defendant’s property.”[7]

  1. [17]
    While it is not a pre-requisite to demonstrate that an inspection of the property is necessary, the necessity of the inspection is nonetheless a relevant consideration in the exercise of the Court’s discretion.  It is not the only relevant consideration.  It is also relevant to have regard to the effects of transporting the vessel and the testing process on the integrity of the vessel.
  2. [18]
    The defendant submits that the inspection and further testing that it seeks is necessary.  In the alternative, it submits that the order should be made under r 250(1)(a) for the purpose of doing justice between the parties as, otherwise, it will be prevented from obtaining a just resolution.  The defendant raises five matters in support of its position.
  3. [19]
    First, the defendant says there is a dispute between the parties about the effectiveness of the various methods of testing and the results obtained to date and, without an order for inspection, the defendant cannot confront the criticisms the plaintiff makes of its testing.  In this respect, the defendant says that the plaintiff criticises the defendant’s existing core sample evidence on the basis that it covers a small area of the boat and does not align with the location of voids and spot discontinuities reported by the ultrasonic testing undertaken by its expert.  In those circumstances, the defendant says that the plaintiff’s refusal to allow the defendant to undertake further testing operates to prevent a just resolution. 
  4. [20]
    The criticisms to which the defendant refers are contained within a report dated 5 March 2020 that was prepared by Carolyn Wilson, a director of the plaintiff.  They are founded on the difference in results recorded in the report the plaintiff obtained from Inspections X-Ray & Testing (“IXT”) dated 8 April 2019 as compared to the results of the core samples tested by Dr Rogers, an industrial chemist retained by the defendant.  Ms Wilson says that the areas of dis-bonding identified in the report prepared by IXT align with visible areas of lightning exit points on the hull.  By way of contrast, she says that three of the four core samples provided to Dr Rogers for assessment have been taken from areas of the hull where there are no visible signs of exit holes.
  5. [21]
    Second, the defendant says that further core samples taken precisely from those areas may quell the dispute between the parties and, in any event, is likely to be highly useful to the Court because it will assist in resolving the conflicts between the two testing methodologies.
  6. [22]
    Third, the existing core-sampling was done sometime before 27 May 2019, prior to the commencement of proceedings by claim filed on 3 September 2019.  The defendant says a significant body of the evidence relied upon by the plaintiff in support of its constructive total loss case post-dates the defendant’s investigations.  As such, by the plaintiff refusing access to the vessel, the defendant is denied the opportunity to meet the arguments now presented in these proceedings.
  7. [23]
    Fourth, the defendant submits that the further testing has utility.  In this respect, it relies on the evidence of Mr Dovell, a naval architect retained by it.  On 14 May 2019, Mr Dovell wrote a report in a letter to Michael Lieberman of IMS Loss Adjusters & Marine Surveyor in relation to the IXT report.  In his report, Mr Dovell says that he is not an expert in non-destructive testing of composite structures.  He says much of the IXT report is beyond his understanding, although he also says he has made use of non-destructive testing in several situations, including the assessment of damage to a hull shell.  Mr Dovell opines that ultrasound testing of composites in the marine industry is not widely used as the quality of most boatyard-produced laminates contain considerable void content.  Given the void potential, Mr Dovell opines that ultrasound testing can only be used effectively in the marine industry if there is a baseline for comparison.  Mr Dovell says the voids identified in the IXT report could be either voids created during the original construction or delamination associated with structural damage.  He says there is no way to differentiate between the two without reference to a baseline scan.  As such, he says the IXT Report is of no value in identifying structural damage in the laminate caused by the recent lightning strike. 
  8. [24]
    In an affidavit affirmed on 9 October 2020, Mr Dovell opines that the necessary and appropriate method to confirm whether the vessell’s hull has been compromised as a result of the alleged lightning strike and to identify whether the damage, if any such damage exists, is repairable is “to take further core samples from a variety of locations on the vessel’s hull”. 
  9. [25]
    Fifth, the defendant submits that the orders it seeks will not unduly interfere with the plaintiff’s property.  It says the evidence supports that the vessel can be transported safely to a location to conduct further testing, and that taking core samples will not compromise the integrity of the hull. 
  10. [26]
    With respect to the effect of the core samples on the integrity of the hull, the defendant relies on the evidence of Mr Dovell.  In an affidavit affirmed on 9 October 2020, Mr Dovell says:

“It is my further expert opinion that taking further core samples from the hull will not prejudice the vessel’s structural integrity.  Hull core samples are easily repaired and I will provide an appropriate repair protocol that will reinstate those areas from which core samples are taken leaving them as sound and strong as prior to the core sample having been taken.”

  1. [27]
    The defendant says this opinion is supported by the naval architect retained by the plaintiff, Mr Lyons, as he did not make any suggestion that core sampling would compromise the integrity of the hull and he has accepted that it is a possible testing process, albeit one that should be done after other testing.
  2. [28]
    The plaintiff disputes that the inspection and testing sought by the defendant is necessary to resolve the issue about the nature and extent of the damage to the vessel.  It says that the expert evidence supports that various non-destructive methods of testing could be undertaken to ascertain the nature and extent of damage.  In addition, the plaintiff says that destructive methods are not warranted at this stage, particularly in light of evidence that throws doubt on the adequacy of the repair of the hull in the location of the existing core samples.
  3. [29]
    In support of their respective positions, both parties made extensive, but selective, reference to opinions expressed in reports prepared by experts.  They also made numerous allegations about the reliability of the evidence of the various experts, and about the meaning of the selective parts of the evidence referred to by their opponent. 
  4. [30]
    It is apparent from the submissions that there is a dispute between the parties about the appropriate method of testing (i.e. core sampling or ultrasonic testing).  This is not an issue that should be decided at an interlocutory stage. 
  5. [31]
    Given the centrality of the condition of the hull to this proceeding and the extent of further expert evidence obtained by the plaintiff since the defendant last had an opportunity to inspect the vessel, there is force to the defendant’s submission that further inspection of the vessel is necessary.  However, I am not presently persuaded that the form of testing proposed in the orders sought by the defendant is appropriate for the reasons that follow.
  6. [32]
    The defendant has not adequately demonstrated that the destructive testing technique that it seeks to undertake will not compromise the integrity of the hull.  Leaving aside that the defendant did not demonstrate that Mr Dovell, as a naval architect, is appropriately qualified to express opinions on such matters, the evidence of Mr Dovell is unpersuasive. 
  7. [33]
    In Makita (Australia) Pty Ltd v Sprowles[8], Heydon JA made the following pertinent observations about expert evidence:

“59 If Professor Morton’s report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions. In Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39–40, Lord President Cooper, in a case concerning liability for damage to dwelling houses allegedly caused by blasting operations in the course of constructing a sewer, said:

“The only difficulty experienced by the Lord Ordinary and developed before us arose from the scientific evidence regarding explosives and their effect. This evidence was given by Mr Teichman, one of the technical staff of the ICI, with whom a fellow employee, Mr Sheddan, was taken as concurring. Mr Sheddan was cross-examined on his qualifications with considerable effect, and the point was taken that Mr Teichman was truly uncorroborated. I do not consider that in the case of expert opinion evidence formal corroboration is required in the same way as it is required for proof of an essential fact, however desirable it may be in some cases to be able to rely upon two or more experts rather than upon one. The value of such evidence depends upon the authority, experience and qualifications of the expert and above all upon the extent to which his evidence carries conviction, and not upon the possibility of producing a second person to echo the sentiments of the first, usually by a formal concurrence. In this instance it would have made no difference to me if Mr Sheddan had not been adduced. The true question is whether the Lord Ordinary was entitled to discard Mr Teichman’s testimony and to base his judgment upon the other evidence in the case.

Founding upon the fact that no counter evidence on the science of explosives and their effects was adduced for the pursuer, the defenders went so far as to maintain that we were bound to accept the conclusions of Mr Teichman. This view I must firmly reject as contrary to the principles in accordance with which expert opinion evidence is admitted. Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court.  Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.

Lord Carmont expressed “complete agreement” with those views. Lord Russell said (at 42):

The opinion expressed by an expert witness in any branch of technical science depends for its effect on, inter alia, his qualifications, skill and experience in that science. If it appears to be based on a sufficiency of research directed accurately and relevantly to a particular issue and to be so supported as to convince a Court of its fundamental soundness and applicability to the particular issue, a Court is entitled, although not obliged, to accept it, even if unsupported by any corroborative expert opinion. Secondly the defenders argued that in the absence of any counter evidence of expert opinion in the science professed by Mr Teichman the Court is bound to take his opinion as conclusive, and as decisive of the issue. I am clearly of opinion that that argument must be rejected as being contrary to the principles by which the rules of evidence are regulated, and as constituting an unwarrantable encroachment on the judicial function of the Court. I respectfully agree with your Lordship’s observations on that topic.”

Lord Keith concurred with all the opinions expressed.

60 Davie’s case is not to be read as reflecting only a principle peculiar to Scottish law. Before it was decided, in R v Jenkins; Ex parte Morrison [1949] VLR 277 at 303, Fullagar J said that an expert witness must “explain the basis of theory or experience” upon which the conclusions stated are supposed to rest, for, as Sir Owen Dixon said in an extra-judicial address quoted by Fullagar J, “Courts cannot be expected to act upon opinions the basis of which is unexplained”.”

(emphasis added)

  1. [34]
    As was noted by Heydon JA at 733 [68], the trier of fact must arrive at an independent assessment of the opinions and their value.  This cannot be done unless their basis is explained.
  1. [35]
    Mr Dovell does not explain the basis for his opinions.  He does not provide the repair protocol, thereby denying the plaintiff the ability to test the veracity of the opinions he expresses about its ability to ensure adequate repair.  Mr Dovell’s evidence involves little more than an unsubstantiated assertion that any damage resulting from the taking of further core samples could be repaired according to an undisclosed protocol leaving the vessel as sound and strong as it was prior to the testing.  As such, the defendant has not adduced sufficient evidence to satisfy me that the orders it seeks would not result in unacceptable interference with the plaintiff’s property. 
  1. [36]
    In addition, I am not persuaded that the orders have the utility asserted by the defendant for four reasons.
  2. [37]
    First, it is not apparent from Ms Wilson’s report that she has any relevant expertise that would warrant weight being given to any views she has expressed in her report of 5 March 2020. 
  1. [38]
    Second, it is not clear that the plaintiff intends to adopt the position advanced by Ms Wilson in her report of 5 March 2020.  Since the date of Ms Wilson’s report, the plaintiff has received numerous expert reports. 
  2. [39]
    Third, the more recent expert reports obtained by the plaintiff note that there is an overlap between the defendant’s core sample 2 and testing area 2 of the IXT report and suggest that it permits a comparison of the results of the two testing methodologies.  Those reports also contain other criticisms of the core sampling methodology that are unrelated to the extent of sampling.  In those circumstances, it is presently unclear how permitting the drilling of further core samples would assist in resolving the conflicts between the two testing methodologies.
  3. [40]
    Fourth, I am not presently persuaded that there is sufficient utility to any further core sampling to warrant undertaking such invasive testing without first utilising available non-invasive techniques.  My reservations in this regard are informed by Mr Dovell’s acceptance that he is not an expert in non-destructive testing of composite structures and that much of the IXT report is beyond his understanding.  In addition, Mr Dovell’s opinion that further core samples are “necessary and appropriate” is unpersuasive given the paucity of detail provided by Mr Dovell to substantiate that opinion.  Mr Dovell does not specify the number of core samples that should be taken, nor does he identify the location on the hull from which he says the further core samples should be taken.  He does not explain why he considers the existing samples to be insufficient.  These deficiencies in the evidence of Mr Dovell are amplified by the absence of any evidence from Mr Dovell, or any other expert retained by the defendant, addressing the expert reports obtained by the plaintiff.  Those reports include opinions from experts from several disciplines who opine that further relevant information about the extent of damage and the likely repairs can be obtained by utilising alternative, less invasive, testing methods.  Those experts provide detailed explanations substantiating their opinions that stand in stark contrast to the bald assertions of Mr Dovell.

Conclusion

  1. [41]
    For the reasons set out above, I am not satisfied that it is presently appropriate to make the orders proposed by the defendant.
  2. [42]
    The matter will be listed for further mention on Thursday 6 May 2021 at 9 am for the purpose of hearing from the parties about:
    1. (a)
      whether orders should be made to progress the matter to hearing, including orders with respect to the nomination of experts to be relied on and the production of expert reports; and
    2. (b)
      whether the matter should be placed on the commercial list.

Footnotes

[1]  Statement of Claim, [8].

[2]  Statement of Claim, [9(d)].

[3]  [2009] HCA 41; (2009) 239 CLR 27, 46 [47] (citations omitted).

[4]  [2002] QDC 217, [24].

[5]  [1996] QDC 311.

[6]  [2002] QSC 42; [2002] 2 Qd R 345.

[7] Evans Deakin Pty Ltd v Orekinetics Pty Ltd & Ors [2002] QSC 42; [2002] 2 Qd R 345, 350-1 [19].

[8]  [2001] NSWCA 305, (2001) 52 NSWLR 705, 729-30 [59]-[60].

Close

Editorial Notes

  • Published Case Name:

    Wilsons Ceramics Pty Ltd v Pantaenius Australia Pty Ltd

  • Shortened Case Name:

    Wilsons Ceramics Pty Ltd v Pantaenius Australia Pty Ltd

  • MNC:

    [2021] QDC 74

  • Court:

    QDC

  • Judge(s):

    Kefford DCJ

  • Date:

    04 May 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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