Sierakowski v Wright

[2005] WADC 108

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   SIERAKOWSKI & ANOR -v- WRIGHT & ORS [2005] WADC 108

CORAM:   COMMISSIONER SCHOOMBEE

HEARD:   4 MAY 2005

DELIVERED          :  Delivered Extemporaneously on 4 MAY 2005 typed from tape and edited by the Commissioner

FILE NO/S:   CIV 1832 of 2004

BETWEEN:   BRIAN COSMOS SIERAKOWSKI

McHENRY HOLDINGS PTY LTD
Plaintiffs

AND

EDWARD FREDERICK WRIGHT
GLENYS SYLVIA WRIGHT
PETER EDWARD WRIGHT
Defendants

Catchwords:

Order for inspection of property - Vineyard - Order 52 r 2(1) of the Rules of the Supreme Court (WA) - No prejudice - Only inconvenience - Application shortly prior to trial

Legislation:

Nil

Result:

Application to further inspect a vineyard, the subject matter of a forthcoming trial, to allow the defendant's counsel to properly prepare for trial granted

Representation:

Counsel:

Plaintiffs:     Mr B G Bradley

Defendants:     Ms K M Joyce

Solicitors:

Plaintiffs:     Bradley & Bayly

Defendants:     Phillips Fox

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

Nil

Case(s) also cited:

Nil

1. COMMISSIONER SCHOOMBEE:  I have come to the conclusion that the defendant should have the orders as per pars 1 and 2 of the chamber summons, and I briefly provide reasons for this decision.

2. The plaintiffs in this matter own or lease a vineyard in which they grow grapes, and the defendants own what is alleged to be an adjoining property on which they conduct the business of cattle farming.

3. Pursuant to the statement of claim it is alleged that on 11 October 2003, the cattle on the defendants' property escaped and trespassed onto the plaintiffs' land.  It is further alleged that the cattle caused severe damage to some of the vines on the property of the plaintiffs.

4. Both parties have exchanged expert reports which deal in detail with the various sections of the plaintiffs' vineyard and what damage has been inflicted to each of these sections.  The expert reports also deal with the issue of how the future growth of the grapes has been affected and what additional measures will have to be taken in order to try and mitigate that loss.

5. It appears from the defendants' expert report by Mr Barry Thompson, that he has inspected the plaintiffs' property on more than one occasion because he refers, in par 2 of his report, to his second visit to the vineyard on 18 November 2003.

6. I have been told from the Bar Table that the defendants' loss adjuster also attended the plaintiffs' property for an inspection immediately after the alleged incident of the cattle eating the grapevines.

7. There is before me an application by the defendants for their counsel for trial and solicitor, as well as Mr Barry Thompson, the expert, to again inspect the plaintiffs' property.  The property is described in the statement of claim as Sussex location 1023 situated at Calgardup Road, Margaret River.

8. The defendants have stated that the reason for the inspection is for counsel to familiarise herself with the layout of the vineyard in order to better understand the description in the expert reports of the various sections of the vineyard and the particular damage caused to the vines.

9. I have been advised from the Bar Table by Mr Bradley appearing for the plaintiffs, that he has been told by defendants' counsel for trial, Ms Bettina Mangan, that the purpose of the inspection is not to obtain further evidence for a further expert report.  Be that as it may, it would obviously be for the Trial Judge or another Judge before whom an application for the filing of a further expert report might be brought, to decide whether such a report should or should not be admitted at this late stage.

10. Mr Bradley's objections to this application are that the application has been made at this late stage, the trial having been listed for 16 to 18 May, and that there would be inconvenience to the plaintiffs, as the viticulturist would have to be present to show around the counsel, solicitor and expert for the defendants.  However, when I put to Mr Bradley that it may not be necessary for the viticulturist to attend the inspection and that it could be any representative of the plaintiffs, because all that he or she would have to do is give the representatives of the defendants access and make sure they were shown the right portions of the vineyard, Mr Bradley agreed that this could be a possibility.

11. Ms Joyce, counsel for the defendants at the hearing of this application, has submitted that her application is based on O 52 r 2(1) of the Rules of the Supreme Court (WA) which provides:

    "A Court may on the application of any party to a cause or matter make an order for the detention, custody, preservation or inspection of any property which is the subject matter of a cause or matter or as to which any question may arise therein."

12. In my view, the property in question, namely the vineyard which the plaintiffs own or lease, is certainly the subject matter of this action, and questions arise with regard to the layout of this property and the looks, shape of and damage to the vines growing on this property.

13. I have sympathy for Mr Bradley's argument that this application has been made at a very late stage.  However, I cannot see that there is any prejudice to the plaintiffs in allowing this further inspection other than minimal inconvenience.  Ms Joyce has indicated that the inspection is likely to take about an hour, which would clearly not be any great inconvenience to any representative of the plaintiffs.

14. In light of the absence of any prejudice, and the existence of only minor inconvenience, I am of the view that the court should allow a further inspection by the defendants' counsel, solicitor and expert, in order to enable the defendants to prepare properly for the trial and to better understand and be able to deal with the expert evidence.

15. Accordingly, I grant orders 1 and 2 as per the defendants' application by chamber summons dated 3 May 2005.