Roads Corporation v Love

[2007] VSC 346

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

VALUATION, COMPENSATION AND PLANNING DIVISION

No. 6693 of 2004

ROADS CORPORATION	Plaintiff
v
LOVE	Defendant

---

JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 SEPTEMBER 2007
DATE OF RULING:	12 SEPTEMBER 2007
CASE MAY BE CITED AS:	ROADS CORPORATION v LOVE
MEDIUM NEUTRAL CITATION:	[2007] VSC 346

---

Supreme Court Rules r.37 – application for an order permitting testing which will substantially destroy subject drill core samples – Jones v Dunkel and British American Tobacco v Cowell distinguished – where purpose of further testing is to obtain best evidence; notice of crushing of samples given; crushing pursuant to an agreed process between experts retained on behalf of both parties; matter sampled capable of further testing – Application refused - Proposed view of core samples refused

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Delany SC with Mr P. Chiappi	Garland Hawthorn Brahe
For the Defendant	Mr A. Southall QC with Mr D. O’Brien	McCluskys

HIS HONOUR:

1. In my view the application for an order pursuant to Rule 37 permitting testing which substantially destroy drill core samples should be refused.

1. Firstly, it is apparent that in the circumstances of the case it is not necessary to authorise any interference with the property rights of the defendant for the purposes of evidentiary enquiry.  That circumstance alone takes the case out of the usual order of applications pursuant to Order 37.

1. Secondly, although VicRoads initially sought preservation of core samples pending the trial of the action, it subsequently clarified its position and made it clear that it did not object to physical testing of the samples for the purposes of further evaluation of the evidence. 

1. Thirdly, the definition of what testing is appropriate has been the subject of ongoing discussion, and it appears working agreement, between the experts.   In particular, it is not proposed to totally destroy the samples but to implement core interval testing which will preserve remnants of each sample.  In my view the nature of the destruction and the nature of the preservation of the samples is a matter that should be worked out between the experts and unless it were plain, that they could not agree as to an appropriate methodology, any order of this Court made would not only be unnecessary, but would have the capacity to distort the process of their joint investigations.

1. Fourthly, it also seems to me that the crushing of samples could not give rise either to a Jones v Dunkel[1] inference as the defendant postulates, nor could be otherwise regarded as somehow improper if it were carried out for the express purpose of obtaining the best evidence as to a matter in issue in the case, on notice, and  pursuant to an agreed process between experts retained on behalf of both sides to the dispute.  Fifthly it is to be noted that the matter sampled remains substantially in place and capable of further drilling and testing if the testing should somehow fundamentally miscarry.

   [1](1959) 101 CLR 298.

1. I should also add that in my view the situation is in no way analogous to document destruction in the circumstances such as those of the British American Tobacco case.[2]  It is to be distinguished both by reason of its fundamental purpose, which is to create further and better evidence, and also by reason of the circumstances in which it is proposed.

   [2]British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524.

1. I turn then to the question of a view of the core samples.  The defendant has in its possession core samples obtained by drilling Mr Love's land first in 1995 and then again in 2007.  There has been correspondence between the parties as to whether the Court should undertake a view of the core samples before they are further processed and in effect substantially destroyed, to use the defendant's phrase.

1. The plaintiff has hitherto objected to a view coupled with some form of preliminary evidentiary enquiry.  When a proposal for a view in the traditional sense was advanced before me this afternoon, the plaintiff indicated that this was not opposed if the Court was of the view it would be of utility.  Doubts were, however, expressed as to the utility of a view, and in particular reference was made to Mr Natoli's initial report which has been prepared on behalf of the defendant.

1. It seems to me that it is not apparent that an understanding of the visual appearance of the core samples will go to any material issue in the case.  As I understand it, the whole purpose of physical investigation of the samples is to materially supplement and essentially supplant views reached on the basis of visual appraisal.

1. It may be that questions of visual appraisal will still remain relevant but such evidence will be of an expert visual appraisal as distinct from any impression that I might form.  Moreover as I understand it, such evidence will be, no more than a check or aid to understanding the results of the physical testing.

1. Further, it is proposed that the existing still photographs of the core samples will be supplemented by a video. Lastly, there is no evidence from Mr Natoli or any other expert to the effect that a view would be a desirable adjunct to the Court's understanding of the matter.

1. Added to these fundamental problems is the fact that I commence a circuit at Warrnambool on Monday, a fact of which the defendant's legal advisers were appraised some weeks ago.  Unfortunately a view can not be readily accommodated by me in the balance of this week.  Accordingly, in my opinion, I should decline to undertake a view of the core samples firstly because I am not persuaded it will be of utility and secondly because it cannot be conveniently done without materially delaying testing and I so rule.

1. In my view the authority should get the costs of this application.  The respondent, Mr Love, has failed as to the substance of the application entirely.  I have given detailed reasons as to why in my view that should be the result.  And those reasons carry with them the necessary corollary that the application was misconceived.

1. I am further not satisfied, as Mr Southall has submitted to me, that the history of the correspondence in the matter is such as to make it fair that the costs, despite the ultimate outcome of the application, be reserved.

1. In my view a fair reading of the correspondence does not support that view and it was unnecessary to bring this matter on before me effectively as a matter of urgency this week.

---