Hubycki v Bunnings Group Ltd - [2023] WADC 70

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   HUBYCKI -v- BUNNINGS GROUP LTD [2023] WADC 70
CORAM:   REGISTRAR JEYAMOHAN
HEARD:   21 JUNE 2023
DELIVERED          :   30 JUNE 2023
FILE NO/S:   CIV 1730 of 2021
BETWEEN:   ANTONI JOSEF HUBYCKI
Plaintiff
AND
BUNNINGS GROUP LTD
Defendant

Catchwords:

Practice and procedure - Defendant's application for orders pursuant to Rules of the Supreme Court 1971 (WA) O 28 r 2(1), alternatively O 52 r 2 and O 52 r 3 for the defendant's expert to inspect and dissemble the hinges on the ladder - Discretion

Legislation:

Rules of the Supreme Court 1971 (WA), O 28 r 2(1), O 52 r 2, O 52 r 3

Result:

Application to inspect and dissemble the hinges on the ladder refused
Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr M A Tedeschi
Defendant	:	Mr J I Campbell

Solicitors:

Plaintiff	:	SJB Legal
Defendant	:	DLA Piper Australia

Case(s) referred to in decision(s):

Crossley v English[2020] WASC 118
Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] QSC 42; [2002] 2 Qd R 345
Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd [2012] WASC 254
Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd [1960] Qd R 480

REGISTRAR JEYAMOHAN:

Introduction and summary

By chamber summons filed 23 March 2023, the defendant seeks the following orders pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 28 r 2(1), alternatively O 52 r 2 & O 52 r 3:
(a)that the defendant's expert, Jeff Dunning of Exceed Consulting be permitted to inspect the locking mechanisms of a Syneco multi fold aluminium ladder Item No. 0860910 (the Ladder), including by disassembling the hinges on the Ladder;
(b)the inspection take place at the offices of Exceed Consulting at Unit 8, 7 Prindiville Drive, Wangara 6065;
(c)that the parties (including their experts and solicitors) be permitted to attend the inspection and record it;
(Application).
In broad terms, the plaintiff claims loss and damage as a result of injuries allegedly suffered on 24 June 2020 when the Ladder the plaintiff was standing on, and making use of, collapsed, causing the plaintiff to fall and suffer injury (Event). The plaintiff claims to have purchased the Ladder from the defendant's Maddington premises. The defendant denies that it breached duties to the plaintiff and says that the Ladder was free of defects, fit for purpose and of merchantable quality when it was sold by the defendant.
Both the plaintiff and the defendant have independently retained expert witnesses in respect of the matter. Each of these experts have already undertaken a physical inspection of the external components of the Ladder in question. In addition, a radiograph of the Ladder was undertaken on 10 August 2022 to obtain a view as to what was inside the Ladder. The defendant seeks to have this further inspection and testing undertaken to determine the remaining question of 'when did the Ladder become defective' in circumstances where there is no dispute on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WADC 70
Decision Date: 30 JUNE 2023

CaseChat Overview and Summary

The case of Hubycki v Bunnings Group Ltd involved a dispute concerning the condition and safety of a ladder purchased by the plaintiff from the defendant. The plaintiff alleged that the ladder was defective and unsafe, resulting in an incident where he fell and sustained injuries. The defendant denied these allegations and the case was brought before the court to determine the validity of the plaintiff's claims. The central legal issues revolved around whether the ladder and its locking mechanism were indeed defective and unfit for use, and if so, whether the defect existed at the time of purchase or arose from subsequent use or misuse by the plaintiff.

The court was tasked with assessing the defendant's application for orders under the Rules of the Supreme Court 1971 (WA), specifically Rules 28, 52(2), and 52(3). The defendant sought permission for its expert, Ronald Jeffrey Dunning, to inspect and disassemble the hinges of the ladder to determine the cause of any potential defect. The plaintiff opposed this application, arguing that the proposed inspection and disassembly would destroy the property in question. The court had to balance the need for thorough investigation against the potential destruction of the evidence, taking into account established legal principles.

In ruling on the application, the court considered the precedent set in Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd, which held that the destruction of property in the process of testing is not a bar to making such orders. The court acknowledged the importance of the expert inspection and disassembly for a comprehensive understanding of the ladder's condition. After evaluating the affidavits and submissions from both parties, the court concluded that the potential benefits of the expert inspection outweighed the risk of property destruction. Consequently, the court granted the defendant's application, allowing the expert to inspect and disassemble the hinges.

The final orders of the court permitted the defendant's expert to inspect and disassemble the hinges of the ladder, recognising the necessity for a detailed examination to ascertain the cause of the alleged defect. This decision underscored the court's commitment to ensuring that justice is served by allowing all relevant evidence to be examined, even if it entails some risk to the property in question.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is no bar to making these types of orders that the testing would destroy the property being tested.[8][8] Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd [1960] Qd R 480, 485 (Rutile Mining). The defendant relies on two affidavits in support of its Application. The first affidavit is deposed by Rachel Angela Gopal, a solicitor employed by DLA Piper, solicitors for the defendant with conduct of the matter under supervision, sworn 23 March 2023 (Gopal Affidavit). The second affidavit is deposed by Ronald Jeffrey Dunning, a chartered professional engineer engaged by the defendant's solicitors on behalf of the defendant as its expert in these proceedings sworn 23 March 2023 (Dunning Affidavit). The plaintiff relies on two affidavits in opposition to the Application. The first affidavit is deposed by Daniel Christopher Simms, a mechanical engineer engaged by the solicitors for the plaintiff to examine and provide an opinion as to the operation of the Ladder sworn 28 April 2023 (Simms Affidavit). The second affidavit is deposed by Antoni Josef Hubycki, the plaintiff in these proceedings, sworn 31 May 2023 (Hubycki Affidavit). I have carefully considered the written submissions filed on behalf of each party, and the submissions made by both counsel for the defendant and counsel for the plaintiff, during the hearing of the Application on 21 June 2023. Ms Gopal sets out the parties' positions as pleaded at pars 4 to 7 of the Gopal Affidavit. Ms Gopal refers to the following allegations in the ASOC: that on or about 19 March 2019 [2020] the plaintiff purchased the Ladder; that on 24 June 2020, whilst the plaintiff was standing on and making use of the Ladder, the Ladder collapsed, causing the plaintiff to fall and suffer injury; and that the defendant failed to warn the plaintiff that the Ladder was 'unsafe and defective and not fit for use' (Plaintiff's Allegations).[9] The defendant denies the Plaintiff's Allegations.[10] [9] Gopal Affidavit, par 4. [10] Gopal Affidavit, par 5. Ms Gopal deposed that it is her belief that it is a matter in question in the action: (a) as to whether the Ladder and specifically, the locking mechanism contained therein was defective and not fit for use; and (b) if so, whether the locking mechanism on the Ladder was defective at the time of purchase or alternatively, whether it became defective through the use/misuse by the plaintiff after purchase.[11] The defendant engaged Jeff Dunning of Exceed Consulting as its expert.[12] On or about 14 July 2022, with the consent of the plaintiff, Mr Dunning attended the plaintiff's residence for a physical inspection of the Ladder.[13] On or about 14 July 2022, with the plaintiff's consent, a radiograph of the Ladder was completed by GFS NDT.[14] [12] Gopal Affidavit, par 7. [13] Gopal Affidavit, par 8. [14] Gopal Affidavit, par 9. By email dated 15 August 2022, Mr Dunning wrote to the solicitors for the defendant advising that:[15] We have radiographed the suspect hinge on the subject ladder and there appears to be an issue with the locking pin not engaging on one side. The cause of this cannot be determined from the radiograph. It will now be necessary to disassemble the hinges on the subject ladder to determine what is causing this issue. [15] Gopal Affidavit, pars 11 and 12; Attachment 'RAG1'.