Gordon v Cadbury Schweppes Pty Ltd

[1989] TASSC 105

Serial No. B27/1989
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Gordon v Cadbury Schweppes Pty Ltd [1989] TASSC 105; B27/1989

PARTIES:  GORDON
  v

CADBURY SCHWEPPES PTY LTD

FLETCHER-JONES
  v

CADBURY SCHWEPPES PTY LTD

KNOX
  v
  CADBURY SCHWEPPES PTY LTD

FILE NO:  MA 54/1988
DELIVERED ON:  7 July 1989
JUDGMENT OF:  Nettlefold J

Judgment Number:  B27/1989
Number of paragraphs:  10

Serial No B27/1989
File No MA 54/1988

GORDON v CADBURY SCHWEPPES PTY LTD
FLETCHER-JONES v CADBURY SCHWEPPES PTY LTD
KNOX v CADBURY SCHWEPPES PTY LTD

REASONS FOR JUDGMENT  NETTLEFOLD J

7 July 1989

1. The facts are not a matter of dispute. They are set out in the reasons for judgment of the Master dated 11 May 1988.

1. The court's power to order inspection is wide. O56, r4 is widely worded and should be liberally construed (see Vowell v  Shire of Hastings [1970] VR 764 at p767). And the inherent jurisdiction of the court is also a source of wide power. In Smith v Peters [1875] 20 LR Eq at 511 at p513 Jessel MR said:–

"I have no hesitation in saying that there is no limit to the practice of the Court with regard to interlocutory applications so far as they are necessary and reasonable applications ancillary to the due performance of its functions, namely, the administration of justice at the hearing of the cause. I know of no other limit. Whether they are or are not to be granted must of course depend upon the special circumstances of the case. But if authority were wanting for my guidance in this matter – and I think the principle is so clear that authority is not wanting – I might refer to the case which has been mentioned by the Plaintiff's counsel, of Kynaston v East India Company 3 Sw 248."

(See also Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd [1960] Qd R. 480).

1. In these cases the pleadings are closed. I think that the circumstance that in one or both cases the plaintiff needs an order for an extension of time to bring the proceedings to be made either at the hearing or before the hearing should not prevent the granting of the relief sought in these applications.

1. I propose to grant the orders sought in the application, in the terms set out in paragraph 1 of the application with the exception that the words "and the plaintiff's witness Mrs Yvonne Sweeney" are not to be part of the orders.

1. I am satisfied that the following issues are important in this litigation:–

(1)An alleged over taxation or unreasonable taxation of the plaintiff's physical strength while carrying out work which the defendant required her to do.

(2)The extent to which the defendant's machinery and conveyor belts ought to have been modified or adapted to reduce the taxation of the plaintiff's physical strength.

(3)The extent to which the defendant followed recognised industry guidelines with a view to reducing the risk of injury to the plaintiff from an over taxation of her physical strength.

1. I am satisfied that evidence relevant to those issues can be obtained by the inspection to be granted and that it would be unjust and contrary to sound practice to deny the plaintiff access to that evidence. Some of the evidence which can be obtained is the following:–

(a)      the pace of the machinery in normal operation;

(b)      the flow of the product in normal operation;

(c)      the necessary position of the worker in relation to the machinery in normal operation when performing various necessary tasks;

(d)      the positions where the product was to be collected and stacked;

(e)      the factory lay–out;

(f)      miscellaneous factors bearing upon issue (1) above.

1. The plaintiff's ergonomic expert should be put in a position to prepare a brief of her evidence from direct inspection rather than from a description given by someone else which is hardly likely to be as detailed or comprehensive as the expert would like. A proof based on direct inspection is likely to be of greater assistance to the tribunal of fact.

1. Having carefully considered the rule and the cases cited by counsel I am satisfied that the court has ample power to grant the order sought.

1. The orders which are to be made are orders for the inspection of property within O56, r4. Property which takes the form of machinery does not cease to be property because it is to be working when the inspection is held. The machinery, conveyor belts, equipment and the rest to be seen on the inspection are property as to which a question may arise at the hearing. The following words of the rule confer a wide power "and for all or any of the purposes aforesaid may authorise ... any observations to be made ... which may be necessary or expedient for the purpose of obtaining full information on evidence". Those words in combination with the other words of the rule confer ample power to include in the orders the words "when these premises are being operated at their normal capacity and in their normal manner".

1. The orders which are to be made here do not go beyond what has been allowed in the past. For example in EMI v Pandit [1975] 1 WLR 302 an order was made, inter alia, for inspecting, photographing and testing typewriters. The orders are not as wide as that made in Flower v Lloyd [1876] WN 169, nor as intrusive as that made in Lumb v Beaumont (1884) 27 Ch D 356. The orders which are to be made are not, in essence, directed to the discovery of a manufacturing process but to the inspection of machinery in normal operation.