Plastec Australia Pty Ltd –v- Rubber Auto Supplies Pty Ltd & Maureen Irwin (third party)

Case •

[2016] QMC 3

•

2 March 2016

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Plastec Australia Pty Ltd –v- Rubber Auto Supplies Pty Ltd & Maureen Irwin (third party) [2016] QMC 3

PARTIES:

PLASTEC AUSTRALIA PTY LTD
(Plaintiff)

v

RUBBER AUTO SUPPLIES PTY LTD
(Defendant)
&
MAUREEN IRWIN
(Third Party)

FILE NO/S:

BM12611/2012

DIVISION:

Civil Applications

PROCEEDING:

Application

DELIVERED ON:

2 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2016

A/MAGISTRATE:

R Carmody

ORDER:
1

(a)    The defendant is required to provide written notice to the plaintiff within 7 days of these Orders as to whether it intends to engage an; appropriate certified laboratory to undertake testing on the samples of the defective product (as that term is defined in the Statement of Claim) (“defective product”).

(b)   In the event that the defendant provides written notice pursuant to Order 1 (a) above, the plaintiff is to deliver the samples of the defective product to the appropriately certified laboratory nominated by the defendant in its notice for further testing, within 14 days of the defendant providing the following to the plaintiff:

(i)         The name of the proposed testing facility, including a summary of the facility’s specific testing expertise in relation to such products as the defective products;

(ii)        The proposed tests to be undertaken by the facility on the defective products;

(iii)       The name(s) and qualification(s) of the persons at the facility who will conduct the tests;      

(iv)       The proposed timeframe for the testing of the defective products and for reporting as to the results of the testing;

(v)        An undertaking that that the defendant’s instruction to nominated appropriate certified laboratory will contain a direction to provide its report to both the plaintiff and the defendant simultaneously;

(vi)       Written undertaking(s) from the testing facility and the persons who will conduct the tests that no other party will be provided with access to the samples, other than the persons at the facility who will conduct the tests.

(c)    That the costs of the testing be borne by the defendant;

(d)   That the defendant provide a copy of its letter of instructions to the certified laboratory and all correspondence relating to the preparation of the report pursuant to 1(v) above contemporaneous with the sending of the original correspondence to the tester.

(e)   That the defendant will instruct the laboratory that, within 6 weeks of the date of delivery of the products to the NATA certified laboratory identified in the defendant’s notice, the NATA certified laboratory must provide both a hard copy and soft copy of its report to the plaintiff and defendant.
2

(a)    Further and/or in the alternative to Order 1 above, subject to 2(b) below, the plaintiff is required to make the defective, product available to the defendant for the purposes of an inspection by a representative of the defendant, only on terms that the inspection occurs:

(i)         During ordinary business hours; and

(ii)        At the offices of the plaintiff’s solicitors; and

(iii)       Under the supervision of the plaintiff’s solicitors.

(b)   Notice of such an inspection referred to in Order 1(1) above, must be provided to the plaintiff within 7 days of the date of these Orders.
3

The parties be at liberty to apply to the Court with 3 business days’ notice.

CATCHWORDS:

PRACTICE – Application for directions – Inspection and testing of only remaining sample - proposed regime  - Balance of Convenience and avoidance of prejudice - Trial directions
Uniform Civil Procedure Rules 250, 366, 367, 428(1)
International Warehousing Distribution Pty Ltd-v-Trial [2015] FCCat1608

SOLICITORS:

For PLASBERG: Bennett & Philp Lawyers

For DAVEY: Tuckers Lawyers, town agents for Marsden Law Group

  1. This is the plaintiff’s application under rules 366 and 367 Uniform Civil Procedure Rules 1999 for directions about the testing of samples of an allegedly defective product.

  1. The plaintiff’s action for damages of $64,507.04 (plus interest) for breach of contract was commenced on 6 December 2012.

  1. The plaintiff’s business is the sale of plumbing fittings it sources from suppliers such as the defendant.  It says it ordered, and the defendant supplied pan connectors (components used to connect the plumbing and drainage of toilets) that were either unfit or unmerchantable because they did not remain intact and deteriorated making the pan connectors useless or ineffective for their purpose.

  1. The products are said to have been installed in various residential and/or commercial buildings in Australia where they were said to be observed by third parties to have failed after installation.[1]

    [1] Affidavit of GP Butterfield [19]

  1. The defendant wants to test the only remaining samples of the product in the plaintiff’s possession but the parties have been in dispute for a year about how this should be achieved.

  1. The defendant says that the plaintiff is refusing to provide the product and it has therefore been unable to establish whether or not they were made of ground rubber or natural rubber, have deteriorated, or even manufactured by the defendant at all and if so whether they had been trimmed by the defendant.[2]  This raises the issue of provenance.

    [2] Affidavit of GP Butterfield [20]

  1. The plaintiff says that it has no objection to the defendant accessing the samples but wants a controlled program and protocol that will ensure their integrity and the preservation of the property whilst allowing sufficient access to the materials so that the defendant can inspect and conduct any reasonable test.[3]

    [3] [14] plaintiff’s submissions

  1. There is the issue of provenance.[4]  The plaintiff argues that the appropriate course is for the defendant to first  inspect the product at its (the plaintiff’s) solicitor’s office to see if it is theirs and, for that purpose, the defendant ‘s solicitors engage town agents or skype.  It objects to intrusive procedures to establish provenance without an approved regime including undertakings. 

    [4] Affidavit of LJ Thorburn filed 14 December 2015 – Ex “LJT-4”

  1. The testing regime it proposes is outlined in its draft order and would require:

(a)        7 days written notice of the name of the appropriately certified laboratory to undertake the testing;

(b)        thereafter the defendant give details of that laboratory’s testing expertise, the proposed tests, the names and qualifications of the testers,  the time frame, an undertaking by the defendant that the report would be available to both parties, and that the samples will be quarantined from access by others;[5]

[5] In line with the undertaking in International Warehousing Distribution Pty Ltd & Anor v Trial [2015] FCCA 1608 per Judge Burchardt at [25]

(c)        costs of testing be paid by the defendant;

(d)        the defendant to cc to the plaintiff all its correspondence with the laboratory about its report;

(e)        the laboratory to give its report to both parties within 6 weeks.

  1. Further and /or alternatively the plaintiff proposes that it would make the sample available for inspection by the defendant’s representative with 7 days’ notice and at the plaintiff’s solicitor’s office.

  1. Finally if the defendant does not avail itself of the orders the plaintiff is proposing that it should be precluded from giving expert evidence at trial. The plaintiff seeks indemnity costs.

  1. The defendant disputes the need for undertakings, distinguishing International Warehousing Distribution because the sample would be in the care and control of its solicitors who, unlike the regime in that case, are officers of the court.

  1. There is a plaintiff’s document entitled “Test Report” prepared by Akron Rubber Development Laboratory Inc. for a “Mr Daniel Sprod, Gulf Rubber Australia”[6] dated 5 November 2014. The parties agree that this is not an Expert Report for the purposes of the UCPR.

    [6]Cf r428(1) UCPR – an expert’s report must be addressed to the court.

  1. Rule 250 UCPR provides for a discretionary power to order inspection of property if it is the subject matter of the proceeding or inspection of it is necessary for deciding an issue.

  1. The only remaining samples of the disputed property are in the plaintiff’s possession.  Inspection by the defendant is necessary to determine the issues of provenance and defectiveness.

  1. An order for inspection should be made subject to the balance of convenience and avoidance of prejudice to either party consistent with the prima facie property rights of the plaintiff and the need to preserve the sample.

  1. Save for order 2(c) those proposed by the plaintiff strike the proper balance between reasonable access and preservation.

  1. There is also an application by the defendant (dated 18 February 2016 and filed by leave) for procedural trial directions and seeking to exclude evidence in chief (subject to the trial magistrate) which is not fairly disclosed by the filed material.[7] The plaintiff suggests that this application be adjourned so the parties can come together to provide a time frame.  The plaintiff is not opposed to the making of general pre-trial directions. I agree with that approach.

    [7] Defendant’s draft order [9]

  1. In my view the exclusion or inclusion of evidence is a matter for rulings by the trial magistrate not for pre-trial directions in anticipation of a potential future even that may never transpire.

  1. The plaintiff has not demonstrated that it is entitled to costs on an indemnity basis.  I will allow the plaintiff its costs of the application on the appropriate Magistrates Court scale to be its costs in the cause.

  1. I therefore order:

1

(a)    The defendant is required to provide written notice to the plaintiff within 7 days of these Orders as to whether it intends to engage an; appropriate certified laboratory to undertake testing on the samples of the defective product (as that term is defined in the Statement of Claim) (“defective product”).

(b)    In the event that the defendant provides written notice pursuant to Order 1 (a) above, the plaintiff is to deliver the samples of the defective product to the appropriately certified laboratory nominated by the defendant in its notice for further testing, within 14 days of the defendant providing the following to the plaintiff:

(i)   The name of the proposed testing facility, including a summary of the facility’s specific testing expertise in relation to such products as the defective products;

(ii)   The proposed tests to be undertaken by the facility on the defective products;

(iii)    The name(s) and qualification(s) of the persons at the facility who will conduct the tests;            

(iv)    The proposed timeframe for the testing of the defective products and for reporting as to the results of the testing;

(v)     An undertaking that that the defendant’s instruction to nominated appropriate certified laboratory will contain a direction to provide its report to both the plaintiff and the defendant simultaneously;

(vi)    Written undertaking(s) from the testing facility and the persons who will conduct the tests that no other party will be provided with access to the samples, other than the persons at the facility who will conduct the tests.

(c)    That the costs of the testing be borne by the defendant;

(d)    That the defendant provide a copy of its letter of instructions to the certified laboratory and all correspondence relating to the preparation of the report pursuant to 1(v) above contemporaneous with the sending of the original correspondence to the tester.

(e)    That the defendant will instruct the laboratory that, within 6 weeks of the date of delivery of the products to the NATA certified laboratory identified in the defendant’s notice, the NATA certified laboratory must provide both a hard copy and soft copy of its report to the plaintiff and defendant.
2

(a)    Further and/or in the alternative to Order 1 above, subject to 2(b) and 2(c) below, the plaintiff is required to make the defective, product available to the defendant for the purposes of an inspection by a representative of the defendant, only on terms that the inspection occurs:

(i)   During ordinary business hours; and

(ii)   At the offices of the plaintiff’s solicitors; and

(iii)    Under the supervision of the plaintiff’s solicitors.

(b)    Notice of such an inspection referred to in Order 1(1) above, must be provided to the plaintiff within 7 days of the date of these Orders.
3 The parties be at liberty to apply to the Court with three business days’ notice.

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