MILIC and AMP CAPITAL INVESTORS LTD, AMP CAPITAL SHOPPING CENTRES, AIRLITE CLEANING PTY LTD, AMP PACIFIC FAIR LTD, KENT STREET PTY LTD, WESTFIELD MANAGEMENT LTD

[2013] QDC 72

[2013] QDC 72

DISTRICT COURT

CIVIL JURISDICTION

JUDGE McGINNESS

No 190 of 2012

NEVENKA MILIC	Plaintiff
and
AMP CAPITAL INVESTORS LTD, AMP CAPITAL SHOPPING CENTRES, AIRLITE CLEANING PTY LTD, AMP PACIFIC FAIR LTD, KENT STREET PTY LTD, WESTFIELD MANAGEMENT LTD	Defendants

SOUTHPORT

..DATE 15/04/2013

JUDGMENT

HER HONOUR: The plaintiff applies to the Court for leave to inspect specific property of the first defendant and second defendant, namely the CCTV security system and two-way radio system of the first defendant and the Elite computer system, the property of the second defendant. The plaintiff submits that an inspection is relevant to the issues in dispute between the plaintiff and the defendants as required under Rule 250 Uniform Civil Procedure Rules which rule allows the Court to make an order for the inspection of property if the property is the subject of a proceeding about which a question may arise in a proceeding, or inspection of the property if necessary for deciding an issue in the proceeding.

By way of background, the plaintiff is a 57-year-old female.  The first defendant operates a shopping centre at Broadbeach, commonly known as Pacific Fair and the second defendant is a company who was contracted to provide cleaning services at Pacific Fair.  The plaintiff alleges she slipped and fell when she stepped on some loose grapes on a floor at Pacific Fair.  The plaintiff alleges she suffered personal injury. 

The plaintiff sues the first defendant for negligence, the particulars of which include failing to implement, undertake or maintain any regular inspection system, failing to regularly clean the premises to remove hazards such as grapes, failing to implement and maintain a regular cleaning system so as to ensure the premises were kept clean and free of hazards such as grapes.

The plaintiff sues the second defendant for negligence on similar bases.  The first defendant denies negligence on the basis it did have an adequate system in place to ensure cleaning and inspections, and reporting work conducted at regular intervals by the second defendant, and also on the basis that when the incident took place the area had been inspected less than 10 minutes prior to the slip on the grapes.

The second defendant denies negligence on a number of bases including that the second defendant implemented and maintained a regular system of cleaning and inspection at regular intervals, and maintained a reasonable and reliable system of recording of inspections and cleaning.  The second defendant alleges that the system in place at the time was an electronic system of recording, whereby its employees could scan sensors located throughout the premises, and two scanners were located in the vicinity of where the plaintiff fell.

On the day of the incident, an employee of the second defendant allegedly scanned a sensor located in the area of the fall at 3.09.28 seconds pm, Australian Eastern Standard Time.  The defendants allege that the second defendant's report states that the plaintiff fell at approximately 3.25 p.m. which was then calculated using a "clock" that was eight minutes faster than Australian Eastern Standard Time, leading to the conclusion that the plaintiff fell at approximately 3.17 p.m. Australian Eastern Standard Time.  Therefore, in essence, the first and second defendants allege that an employee inspected the area where the plaintiff fell less than 10 minutes before the incident.  Whether in fact this occurred is obviously a very relevant issue in the proceedings.

The first defendant has also obtained a loss adjuster's report dated 3 March 2011 based on an inspection of the first defendant's premises.  The report considers the two-way radio system, CCTV system and Elite system.  One of the conclusion is that the Elite system was based on Australian Eastern Standard Time, but was out of sync with the two-way radio system, and the CCTV system because they were both eight minutes out of sync with Australian Eastern Standard Time.

The first defendants have finally provided a statutory declaration which swears they are unable to provide CCTV footage of the incident because the footage has been destroyed.  This was not sent to the plaintiff's solicitors until 11 April 2013 despite numerous requests and correspondence. 

The plaintiff as early as the 30th of May 2012 requested an inspection which eventually took place after a number of delays on the 30th of January 2013. 

The plaintiff's solicitor, Mr Lee, and an engineer, Justin O'Sullivan attended.  Mr Lee alleges that access to the CCTV security and Elite computer systems room was denied during the inspection.  The first defendant denies the plaintiff was refused access on the basis of an affidavit from the claims officer to the effect that at no time did she refuse access.  The second defendant alleges it never denied access to the Elite system on this date.
It's probably appropriate to deal with this preliminary factual dispute now.  The plaintiff's solicitor deposes in his affidavit sworn 12 April 2013 that claims processor Ms Lloyd refused to allow access to the CCTV system and Elite system, despite having previously agreed to allow such an inspection to take place.  Ms Lloyd deposes that she does not recall expressly refusing access to the room.  She does depose, however, that she indicated to Mr Lee that she did not believe access to the security control room was necessary.  She recalls stating to Mr Lee that she thought his request to inspect the CCTV and other equipment was nonsensical. 

The claims officer's conduct in my view when one has regard to the whole of the previous correspondence and the nature of this particular proceedings was such that it was reasonable for the plaintiff to form the belief she was being denied access to the security control room and to the related systems by the first defendant.  On the other hand, Ms Byrne, the second defendant’s solicitor, deposes that she was never asked by the plaintiff's solicitor to access any additional aspects of the Elite system during the inspection.

Mr Lee does not depose that he specifically addressed Ms Byrne about further access.  It may well be that he mistakenly thought that the claims assessor was the person who had the authority to refuse access to all systems.  However, the second defendant is not to be criticised for this if such a mistake was made.

On the 13th of January 2013, the plaintiff then sent a letter written pursuant to Rule 444 of the rules, stating it was refused adequate inspection of the relevant systems and seeking an inspection within 14 days.  The plaintiff sent the letter to the first defendant and sent a copy to the second defendant. 

On the 1st of February the first defendant replied consenting to an inspection of the location of the relevant system, but on the basis that any security and/or computer screens will be blank.  "Any security and/or computer systems will be blank for the duration of the inspection."  RAL30 annexed to the affidavit of Ross Andrew Lee, sworn 25 March 2013.  This was clearly a useless offer made by the first defendant.  The first defendant and plaintiff continued to correspond, however, reached no resolution of the matter. 

On the 11th of April last week, the first defendant sent an email to the plaintiff, alleging that the systems are now all in sync.  It is submitted today by the first defendant, therefore there is no need now for the plaintiff to inspect their CCTV and radio systems.  The provision of this information by email I consider to be at this late stage, in an unsatisfactory form.  No affidavit has been provided about this change to the equipment; when it occurred, under whose direction and so forth.  It is information that is not accepted upon the application by the plaintiff, who maintains its request to inspect the systems.

The second defendant on the other hand, was not specifically given an opportunity by the plaintiff to explain or to discuss that it had in fact not denied access to inspect the Elite system.  Again, it may well be from a mistaken belief by the first defendant's solicitor as to who had the authority to give that access.  But nevertheless again, the second defendant cannot be criticised for that.

The second defendant provided the plaintiff with a draft order for consent on the 10th of April 2010.  After oral submissions today the plaintiff now substantially agrees with the second defendant's offer to demonstrate how the Elite system works whilst the system is switched on and running, and the second defendant also agrees to answer any questions it is able to at the inspection to assist in understanding the use of and timing of the Elite computer system, which, it has never been alleged, was not functioning in sync with Australian Eastern Standard Time.

The plaintiff's application to the Court for leave to undertake the site inspection has varied somewhat in what they are seeking, only due to helpful discussion by the plaintiff's counsel and by counsel for the first defendant and the solicitor representing Carter Newell for the second defendant.  The plaintiff still requests the inspection take place when all CCTV and Elite security equipment is operational and switched on.  For the purposes of the application, I have been also assisted by written as well as oral submissions from the parties.
Turning to the substantive issue, the plaintiff submits the inspection is necessary for the following reasons:

First, without an inspection of the CCTV security system and the Elite computer system and two-way radio, the plaintiff is unable to satisfy herself of the existence of a reasonable and adequate cleaning system as alleged by the first and second defendant.

Second, the plaintiff is unable to understand the allegations made by the defendants as to the times recorded and the reliability of the times allegedly recorded by the various systems in light of the defendant's loss adjuster's report, and in light of the matters relied on in the defences.

Third, the three systems need to be inspected in full operation in order to test and establish the alleged times and time discrepancies and calculations made by the first defendant's expert report, and that the inspection will be worthless if it takes place when all the systems are not operational.

The first defendant's submissions, when one looks at what the central issue in this application really is, did not address the plaintiff's main submission.  The first defendant is right, of course, in saying that the Elite system is operated and maintained by the second defendant, and therefore the inspection of that system is not a matter between them.  However, when the first defendant submits that there is no relevance in relation to issues alive on the pleadings, it misses the issue that stands out in this case, which I have already referred to and which the plaintiff relies on, that such an inspection is necessary to test and understand and establish the timings of the various systems, and whether they indeed reflect what the defence allegation is.

The second defendant submits as I've indicated earlier, that they weren't properly notified that the plaintiff wished a further inspection and would otherwise bring this application.  The second defendant submits that if the plaintiff had undertaken proper correspondence directly with them, they have always been willing to allow a further inspection of the Elite system, and the application brought against them would not have been necessary.  Of course, one of the plaintiff's argument is that the three systems' timing and operation requires a comparison with each of those systems.

The second defendant's written submissions also failed to address the plaintiff's submission that the inspection of the equipment was necessary to answer the defendant's defence, or to understand the timings of the systems, and it was only during oral argument today that it became clear as to why the plaintiff wished to inspect the system, and ask some questions. 
I accept that one of the main reasons that this was not cleared up until today is because of the lack of correspondence by the plaintiff with the second defendant over the past few weeks. 

Without quoting it in the judgment today, the plaintiff's submissions at paragraph 2 to 2.5 of the outline of submissions clearly outlines what is one of the central issues of its case, the fact that it takes issue with the allegation that the radio system and the CCTV system somehow run contrary to the Australian Eastern Standard Time, and that the recorded times on the Elite system need to be adjusted to reflect the time system used by the two-way radio and the CCTV system, and that it is simply not known what time basis that the CCTV security system and two-way radio system were operating on, and how that compared to the Elite computer system, and that without an inspection of the two-way radio system, the CCTV security system and the Elite computer system in operation, that central issue cannot be decided as required to afford justice to the parties.

I accept the plaintiff's submission that they are entitled to inspect both systems to establish if they reflect what is alleged by the defendants concerning the central issue, namely that the first and second defendants maintain a proper system was in place and that the site was inspected less than 10 minutes before the slip and fall. 

The plaintiff has satisfied me, according to the cases to which I have been referred, that an inspection and analysis of these systems is necessary to decide an issue in the proceedings that the plaintiff, without such an inspection, would be prevented from understanding and answering the allegation that the system recorded an inspection taking place less than 10 minutes before the incident, and that given the evidence of the loss adjuster's report concerning the out-of-sync timings of the systems, further expert material may also assist the Court in understanding the operation of the systems.

The parties have now provided a draft order which indicates that leave will be granted by the Court for a site inspection with various conditions relating to how the inspection is to be carried out, where and when, and I intend to make that order as per draft.

Turning to costs, the only remaining issues is what orders I should make as to costs.  In relation to the plaintiff and the first defendant, up until today I consider the first defendant has failed to satisfactorily address why any inspection of the CCTV system and radio system while they are operational and switched on, is not relevant to an issue in the proceedings. 

I'm satisfied that initial access to undertake such an inspection was denied on the 30th of January 2013, and that this fact has been supported by the first defendant's continued refusal to allow such an inspection other than of blank screens.

In the circumstances, the plaintiff has been successful to a substantial degree in its application against the first defendant.  I therefore order the first defendant pay the plaintiff's costs of and incidental to the application.

In relation to the second defendant, I consider that the plaintiff has not shown the second defendant refused access to the Elite system at the first inspection.  I consider that the second defendant made bona fide efforts to resolve this issue prior to the application.

The orders now made relating to inspection of the Elite system are essentially what the second defendant had offered by way of correspondence, albeit there have been some additions to what they originally offered, but that has been as a result of discussions here today, rather than any efforts to discuss those matters prior to the application being heard before me today.  Having regard to all of those matters, I order the plaintiff pay the second defendant's costs of and incidental to the application. 

Those costs orders are to be assessed on a standard basis, unless agreed by the parties, and I'd be appreciative if the costs orders could be added into the draft.

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