Godden v MTS Pacific Pty Ltd - [2010] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
GODDEN & ANOR v MTS PACIFIC PTY LTD
[2010] SASC 63
Reasons of Judge Lunn a Master of the Supreme Court
22 March 2010
PROCEDURE
Terms on which defendant's experts should have access to plaintiffs' land for an inspection - s 38 Supreme Court Act - what amounts to an obstruction within s 38(2) - whether plaintiffs should be prevented from observing what defendant's experts do in the course of the inspection - held no right to preclude observation unless it amounted to an obstruction - whether any condition about observation could be imposed under 6RR 147 and 117(1).

GODDEN & ANOR v MTS PACIFIC PTY LTD
[2010] SASC 63
Reasons on defendant’s application for inspection of vineyard by its experts.

JUDGE LUNN: The vineyard which is the subject of this action is owned by the defendant, but is leased to the plaintiffs. Up until 12 August 2004 the defendant managed the vineyard for the plaintiffs. The plaintiffs allege that it did not employ the best vineyard practice in its management and this has resulted in past and long-term loss of productivity of the vines. The lease requires the defendant to make a continuing supply of water available to the plaintiffs’ vineyard from adjoining land owned by the defendant. There is a dispute about the amounts of water which have been so supplied and which the defendant is obliged to supply. It is alleged that the plaintiffs have lost productivity from their vines because of the defendant’s failure to supply sufficient water. The defendant had pleaded that any loss of productivity of the vines through lack of water is because the volume of water which the defendant is required to supply is not sufficient for the vines. It has also pleaded contributory negligence by the plaintiffs in their management practices for the vineyard since August 2004.
The pleadings raise many issues on which expert evidence from viticulturists will be relevant. The plaintiffs have delivered a report from their expert, Dr Davidson. The defendant has retained two experts, one of whom comes from Italy. Those experts have not yet provided their reports. They require further inspections of the vineyard before they will be able to do so.
By an application dated 3 March 2010 the defendant sought orders relating to its experts inspecting, and taking of samples of soil and vines from, the vineyard and for further disclosure of documents by the plaintiffs. At the hearing on 12 March I was informed that apart from the matter dealt with below the parties were either agreed on the orders to be made or to have some parts of the application adjourned for subsequent argument.
Part of the application sought the following orders:
2That the plaintiffs give to the defendant’s experts, whether alone or in the company of the defendant’s manager and/or legal advisors, unconditional access to the plaintiff’s vineyard to enable them to attend upon and inspect the plaintiffs’ vineyard on reasonable notice for the purpose of preparation of expert reports for use in the proceedings.
…..
4That the plaintiffs, whether by themselves or by their agents or representatives, be restrained from interfering with the inspection of the plaintiff’s vineyard by the defendant’s experts whether by:
aseeking to participate in the process of inspection.
bseeking to hear the discussions which occur during the course of the inspection.
cseeking to observe the process of inspection.
The plaintiffs are prepared to give undertakings in terms of 4a and b. The point which was argued was whether the access sought in paragraph 2 should be unconditional in that under paragraph 4c the plaintiffs should not be permitted to observe the process of inspection by the defendant’s experts.
The defendant’s application was made under 6R 147(1) which provides:
147 Court may make orders for gathering evidence
(1)The Court may, on its own initiative or on application by a party to proceedings (or proposed proceedings) before the Court, make orders for the gathering of evidentiary material by –
(a)taking samples;
(b)making and recording observations;
(c)taking photographs or making films;
(d)carrying out tests, analyses or experiments.
Neither that Rule, nor any other Rule, expressly empowers the Court to direct that a person authorised by the Court be permitted to enter the land of another party, or of a stranger to the action, for the purpose of carrying out the functions set out in 6R 147(1). In other jurisdictions Courts have held that they have an inherent power to authorise such entry on to land (William’s Victorian Supreme Court Practice Vol 1, [37.01.10] but in this State the power is conferred by s 38 of the Supreme Court Act. It was not suggested that s 38 did not provide a sufficient power or that the Court could resort to some wider inherent power to authorise entry by the defendant’s experts onto land in the exclusive possession of the plaintiffs.
Section 38 of the Supreme Court Act provides:
38 Inspection of property in legal proceedings
(1)For the purpose of any proceeding therein, the court may order a view or inspection of any land or chattel, and any judge, juryman, or other person authorised by the order, may enter on any land or premises which it is necessary or convenient to enter on for the purpose of such inspection.
(2)Every person in possession of any such land or premises shall allow such entry for the purposes aforesaid, and in case of any obstruction or refusal of such entry, the person or persons so obstructing or refusing such entry, shall be deemed to be guilty of a contempt of court, and be liable to punishment accordingly.
It is a section apparently peculiar to this State, although it partly replicates Order 50 Rules 4 and 5 of the English Rules of the Supreme Court 1883. As far as I am aware there is no reported authority on the scope of its operation.
I accept the submissions of the plaintiffs’ counsel that s 38 does not deprive the persons legally in possession of the land of any of their proprietary rights in the land. It merely penalises any obstruction or refusal of an authorised entry as a contempt of Court. Provided the persons in possession of the land do not obstruct or refuse the entry of the persons authorised by the order of the Court in carrying out the activities which they are authorised to perform on the land, s 38 does not prevent those persons in possession of the land from exercising their lawful rights as possessors of the land.
There is no reported authority on what constitutes “obstruction” for the purposes of s 38(2). In the context of the English Police Act 1964, which made it an offence to wilfully obstruct a constable in the execution of his duty, Lord Parker CJ in Rice v Connolly [1966] 2 QB 414 at 419 said:
…. “obstruct” in s 51(3) ….. is the doing of any act which makes it more difficult for the police to carry out their duty …..
By analogy I consider “obstruction” in s 38 means anything which make it unreasonably difficult for the persons authorised by the Court to carry out their permitted functions on the land. What would constitute such obstruction is likely largely to be a question of fact and degree in the circumstances of the particular case.
The affidavit of the defendant’s solicitor filed on 3 March 2010 raised a number of possibilities about difficulties which might be encountered if the plaintiffs’ agents observed the process of inspection by the defendant’s experts. However, I excluded these parts of his affidavit as they were not admissible evidence but merely speculation or not properly established information and belief evidence. There was no evidence from the defendant’s experts themselves about whether their tasks might be prejudiced if they were observed by the plaintiffs’ agents. (This is in the context of the plaintiffs not acting outside of the proposed undertakings given in respect of paragraphs 4a and b of the application). Thus there is no evidence that there would be any likely obstruction of the inspection of the vineyard by the defendant’s experts.
Even if it is permissible to impose a term on the inspection as sought in paragraph 4c, it would not be appropriate to impose it in this case. It would be far too broad and far reaching. It would mean that if any of the agents of the plaintiffs going about their lawful business in the vineyard at the time of the inspection, and without in any way obstructing the inspection, was to observe anything which was done by the plaintiffs’ experts, the condition could be breached. The plaintiffs could only insure that they complied with such a condition if they entirely vacated the vineyard during the whole time of any inspection. There is no proper basis to require them to do that in the absence of any evidence of any observations made by them might have an adverse effect on the activities of the defendant’s experts. Rather it should be left so that if anything occurs in the course of the inspections by the defendant’s experts which does prejudice them carrying out their authorised tasks, an application can be made to the Court in respect of it and be dealt with on the evidence of what actually has occurred.
The defendant’s counsel relied upon 6R 117(1) which provides:
(1)The Court may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice.
He submitted that in conjunction with 6R 147(1) this enabled the Court to direct that an inspection of land be carried out in a manner which was not unfair to the inspecting party and did not give the other party a forensic advantage. Insofar as the submission relies on unfairness there is no evidence of any particular prejudice to the defendant’s experts in carrying out their tasks. While there are possibilities of prejudice which could be imagined there are none which would be likely merely from the plaintiffs’ agents observing the process of inspection.
The plaintiffs’ counsel submitted that any rule which allowed a direction to be given about an inspection that deprived the possessors of the land of their possessory rights without them breaching s 38(2) would be beyond power. In view of my other conclusions in this matter I do not need to enter into that question.
In paragraph 10 of the affidavit of the first plaintiff filed on 12 March 2010 he said:
10My purpose in wishing to have a representative present when the defendant’s experts inspect the vineyard is to take detailed notes (and perhaps to video tape or photograph) of the precise vines they inspect, and to note how they inspect those vines. ….. the defendant seeks to make an issue as to the break-up of the vines in the vineyard between particular clones. I thus anticipate that their expert’s report may express an opinion as to the clonal make-up of the vineyard vines. Should this occur, I would wish to be able to check that opinion against detailed notes or visual record of the inspection so as to form an opinion as to whether the inspection was sufficiently comprehensive or representative (particularly in terms of the number and the distribution of the vines inspected and the nature of adjacent vines not inspected) to enable such a conclusion to be drawn. If my view was that the inspection was not sufficiently extensive or representative to support the conclusions expressed in the report, I would wish to give consideration to engaging a statistician to prepare a report to show that the sample relied upon by the defendant’s expert in forming this opinion was not statistically significant.
In its generality I do not consider what the first plaintiff proposes is an obstruction of the inspection under s 38(2), although there may be an obstruction involved depending on precisely what was done in a particular situation. What experts did in preparing themselves to give their evidence can be made the subject of evidence at the trial. Admissible evidence of what the experts so did is not confined to that of the experts themselves. It would apparently be open to another party to adduce evidence from another witness on such matters, although the Court would have a discretion to exclude it if it had been unlawfully or improperly obtained. Here observations made by the plaintiffs’ agents while they were lawfully on the plaintiffs’ land of what they had observed the defendant’s experts to do would apparently be admissible at the trial if there was some issue to be determined about what the experts had done in the course of their inspection. There is no basis to conclude that this would be either unfair or give the plaintiffs an improper forensic advantage. The defendant’s counsel contended that the defendant had not had the same opportunity in relation to Dr Davidson’s report. That may well go to the weight which would be given to Dr Davidson’s evidence, but it is not in itself a basis to exclude any evidence about what the plaintiffs’ agents observed of the defendant’s inspection. Even if it is open for the Court to do so, it would not be proper under 6R 117(1) to impose any condition on the inspection of the vineyard by the defendant’s experts that the inspection not be observed by the plaintiffs.
On the adjourned hearing the parties should bring in minutes of order to deal with the various paragraphs of FDN 31.