Aged & Disabled Persons Hostel & Welfare Association v Beenleigh Bowls & Recreation Club Inc & Ors [2022] QSC 71

SUPREME COURT OF QUEENSLAND CITATION: Aged & Disabled Persons Hostel & Welfare Association v Beenleigh Bowls & Recreation Club Inc & Ors [2022] QSC 71 PARTIES: AGED & DISABLED PERSONS HOSTEL & WELFARE ASSOCIATION (ACN 010 124 651) (applicant) v BEENLEIGH BOWLS & RECREATION CLUB INC (ABN 68 030 516 270) (first defendant) COCA-COLA AMATIL AUSTRALIA PTY LTD (ACN 076 594 119) (second defendant) EVOCA AUSTRALIA PTY LTD (ACN 153 582 613) (third defendant) EVOCA S.P.A. (fourth defendant) QUEENSLAND VENDING SYSTEMS PTY LTD (ACN 099 125 103) (fifth defendant) FILE NO/S: BS No 4594 of 2018 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 29 April 2022 DELIVERED AT: Brisbane HEARING DATE: 16 February 2022 JUDGE: Davis J ORDER: 1. The application is dismissed. 2. Any respondent wishing to make submissions on costs shall file and serve written submissions by 4.00 pm on 13 May 2022. 3. The applicant shall file any submissions on costs in response by 4.00 pm on 27 May 2022. 4. Each party has leave to file and serve by 4.00 pm on 10 June 2022 any application for leave to make oral submissions on costs. -- 1 of 12 -- 2 5. In the absence of any application to make oral submissions on costs being filed by 4.00 pm on 10 June 2022, the question of costs will be decided on any written submissions filed and without further oral hearing. CATCHWORDS: PROCEDURE - STATE AND TERRITORY COURTS - DETENTION, INSPECTION AND PRESERVATION OF PROPERTY - where the plaintiff owned real property leased to the first defendant - where a coffee machine was owned by the second defendant - where the coffee machine was manufactured by the fourth defendant and imported into Australia by the third defendant - where the coffee machine was serviced and maintained by the fifth defendant - where the coffee machine suffered an electrical fault - where the electrical fault caused fire - where the fire spread from the coffee machine - where the plaintiff’s property was damaged - where regulations provided that no combustible material ought to have been within the coffee machine near electrical wiring - where a question arose as to whether the coffee machine was manufactured with a fault - whether the fault was introduced during the life of the machine - where the coffee machine was practically destroyed by the fire - where the plaintiff sought an order to conduct destructive testing on another coffee machine owned by the second defendant - whether such an order would promote the just and expeditious resolution of the real issues in the proceedings Electrical Safety Act 2002, s 30, s 31, s 32, s 33, s 36, s 37 Electrical Safety Regulation 2002 Electrical Safety Regulation 2013 Uniform Civil Procedure Rules 1999, r 5, r 250 Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] 2 Qd R 345, followed Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd [1960] Qd R 480, cited COUNSEL: C Heyworth Smith QC and K Horsley for the plaintiff P Nicholls for the first defendant P O’Brien for the second defendant G Beacham QC for the third and fourth defendants TC Savage-Jones for the fifth defendant SOLICITORS: Hall & Wilcox for the plaintiff McInnes Wilson Lawyers for the first defendant Carter Newell Lawyers for the second defendant Barry & Nilsson for the third and fourth defendants HBM Lawyers Pty Ltd for the fifth defendant -- 2 of 12 -- [1] This is an application where the plaintiff seeks access to a coffee machine owned by the second defendant for the purposes of destructive testing.1 Background [2] On 2 June 2016, premises at 71 Hanover Street, Beenleigh (the premises) owned by the plaintiff (the Aged Welfare Association) were damaged by fire. It is that incident which led to the current litigation. [3] The premises were leased to the first defendant (the Bowls Club). It had installed in the premises an automatic coffee dispensing machine (the coffee machine). It is the Aged Welfare Association’s case that the fire started in the coffee machine. Given expert evidence that has been obtained, that is probably not contentious. [4] All the other defendants are linked in one way or another to the coffee machine. The second defendant (Coca-Cola) owned it and supplied it to the Bowls Club. The third defendant (Evoca Australia) imported the coffee machine into Australia. The fourth defendant (Evoca SPA) manufactured it and the fifth defendant (QVS) serviced it. [5] The Aged Welfare Association pleads: “11B Because of the fire damage to the Beverage Machine2 the precise cause of the fire within the Beverage Machine cannot be identified with certainty.” [6] After pleading various product standards, the Aged Welfare Association pleads: “12K Electrical equipment that meets the Requirement for Fire Resistance3 is incapable of: (d) Propagating fire as a result of an electrical fault; (e) Causing a fire such as that which damaged the premises. 13A As at the date of the fire, the Beverage Machine did not have the Requirement for Fire Resistance.” [7] The Aged Welfare Association pleads as against the Bowls Club “a duty to take reasonable care in its use and occupation of the premises to avoid foreseeable risk of damage to the premises”.4 [8] The breach of the duty alleged against the Bowls Club is pleaded as: “15 The first defendant: (a) failed to take any steps to ensure the Beverage Machine was reasonably safe before its installation at the premises; 1 Uniform Civil Procedure Rules 1999, r 250. 2 Which I have called the coffee machine. 3 One of the requirements of the Standard. 4 Further amended statement of claim, paragraph 14. It also pleads a breach of the lease which need not be considered. -- 3 of 12 -- 4 (b) failed to implement any inspection or servicing regime to ensure that the Beverage Machine remained safe for use at the premises; (c) failed to turn the Beverage Machine off when the premises were unoccupied; (d) failed to install the Beverage Machine in such a way as to minimise the risk of fire as a result of an electrical fault within the machine causing damage to the premises; (e) [deleted] (f) breached the primary duty of care, as set out in section 30(1) of the Electrical Safety Act; (g) breached the duty to ensure that all electrical equipment used in the conduct of its business or undertaking was electrically safe, as required by section 30(2) of the electrical Safety Act; and (h) as a consequence of the matters pleaded, breached the duty of care that was owed to the plaintiff.” [9] The Electrical Safety Act 2002 (the Safety Act) places a duty upon persons conducting a business to conduct it in a way that is electrically safe.5 The Safety Act imposes other obligations upon designers of electrical equipment,6 manufacturers of electrical equipment,7 importers of electrical equipment,8 installers of electrical equipment9 and repairers of electrical equipment.10 These obligations are pleaded against the various defendants. There are also relevant provisions of the Electrical Safety Regulation 2002, the Electrical Safety Regulation 2013 (together, the Regulations) and an Electrical Standard (the Standard) pleaded. It is unnecessary to descend into an examination of the Act, the Regulations or the Standard. [10] As against Coca-Cola, the Aged Welfare Association pleads that a duty of care was owed to it “… to take reasonable care to avoid foreseeable damage to the premises arising from its supply, installation and maintenance of the Beverage Machine at the premises”.11 [11] The breach of Coca-Cola’s duty of care is pleaded as: “19 The second defendant breached the second defendant’s duty of care: (a) [deleted] (b) [deleted[ 5 Electrical Safety Act 2002, s 30. 6 Section 31. 7 Section 32. 8 Section 33. 9 Section 36. 10 Section 37. 11 Further amended statement of claim, paragraph 18. -- 4 of 12 -- 5 (c) [deleted] (d) [deleted] (e) installing a Beverage Machine at the premises that: (i) was unsafe and defective; (ii) was inadequately checked and maintained to ensure its safety; (iii) was inadequately insulated or protected against the propagation and spread of fire from within its internal electrical componentry; (iv) was unfit for the purpose of producing beverages without electrical fault; (v) lacked the Requirement for Fire Resistance. (f) failing to discharge the second defendant’s statutory obligations.” [12] As against Evoca Australia, the Aged Welfare Association pleads that it was owed a duty of care the nature of which is informed by various provisions of the Safety Act and Regulations. It pleads that the duty of care was breached in this way: “20AC The third defendant breached the third defendant’s duty of care which breach caused the plaintiff loss and damage. Particulars (a) importing the Beverage Machine when it did not comply with the requirements of the Electrical Standard and the Product Standard and lacked the Requirement for Fire Resistance. (b) selling the Beverage Machine to the second defendant when it did not comply with the requirements of the Electrical Standard and the Product Standard and lacked the Requirement for Fire Resistance. (c) failing to inspect, or adequately inspect, the Beverage Machine before providing it to the second defendant to ensure its: (i) safety during normal operation; (ii) conformity with the Requirement for Fire Resistance; (iii) providing a Beverage Machine to the second defendant that was capable of catching fire during normal operation.” [13] As against Evoca SPA, the Aged Welfare Association alleges a duty of care in these terms: -- 5 of 12 -- 6 “20BC The fourth defendant’s duty of care included a duty to design and manufacture the Beverage Machine so that: (a) it was safe for use during normal operation; (b) it would not catch fire during normal operation; (c) it conformed to the requirements of: (i) the Product Standard; (ii) the Electrical Standard; (iii) the International Standard; (d) it satisfied the Requirement for Fire Resistance; (e) it satisfied the Primary Duty of Care requirements in section 30 of the Electrical Safety Act; (f) it satisfied the obligations imposed upon the designer of electrical equipment by section 31 of the Electrical Safety Act; (g) it satisfied the obligations imposed upon the manufacturer of electrical equipment imposed by section 32 of the Electrical Safety Act.” [14] It is pleaded that Evoca SPA has breached its duty in this way: “20BD The fourth defendant breached the fourth defendant’s duty care, which breach caused the plaintiff loss and damage. Particulars (a) manufacturing or designing a Beverage Machine that lacked the Requirement of Fire Resistance; (b) manufacturing or designing a Beverage Machine that was capable of catching fire during normal usage; (c) manufacturing or designing a Beverage Machine that, by being capable of catching fire during normal usage, did not comply with: (i) the Electrical Standard; (ii) the Product Standard; (iii) the International Standard; (iv) the Electrical Safety Act.” [15] As against QVS, the Aged Welfare Association alleges that it was owed a duty of care: “(ea) as a person who installed the Beverage Machine, was required, by section 36 of the Electrical Safety Act, to test and examine the Beverage Machine to ensure that it was electrically safe; -- 6 of 12 -- 7 (eb) as a repairer of the Beverage Machine, was required, by section 37 of the Electrical Safety Act, to ensure that the Beverage Machine was electrically safe subsequent to the repair; (f) as a consequence of the matters pleaded, owed the plaintiff a duty to take reasonable care when performing work on the Beverage Machine.” [16] It alleges that the duty of care was breached in this way: “20F Immediately before the fire, the Beverage Machine incorporated a defect that made it prone to catching fire during normal operation. This defect: (a) was a manufacturing defect, which: (i) was present in the Beverage Machine during the refurbishment undertaken by the fifth defendant in October 2015, the installation of the Beverage Machine in November 2015, and the certification in January 2016; (ii) should have been evident to a competent repairer undertaking a refurbishment, installation, or service of the coffee machine; and (iii) was not identified and rectified by the fifth defendant during the refurbishment, the installation, or the certification; (b) alternatively, was created by the fifth defendant during the refurbishment in October 2015, the installation in November 2015, or alternatively, during its inspection of the Beverage Machine in January 2016 (the maintenance defect); (c) alternatively, was a combination of a manufacturing defect and the maintenance defect; (d) by creating the maintenance defect, or alternatively, by failing to identify and rectify the manufacturing defect, the fifth defendant breached the duty of care that it owed the plaintiff.” [17] As against all defendants, the Aged Welfare Association claims almost $1 million in damages. [18] The coffee machine was destroyed in the fire but there were sufficient remains to enable some examination by experts. The Aged Welfare Association and the Bowls Club retained Mr Martin Denham. He is the Principal Fire Investigator and Electrical Safety Consultant at Queensland Electrical and Compliance Services Pty Ltd. He has an electrical trade qualification obtained in 1987 and has since specialised in electrical safety. His expertise to give opinion evidence in relation to the cause of the fire was not challenged before me. -- 7 of 12 -- 8 [19] Mr Denham’s examination of the coffee machine was hampered by the extent of the damage it had sustained in the fire. Mr Denham saw, in the electrical compartment of the coffee machine, what he identified as “electrical arc melting of internal wiring conductors”. He therefore opined that the fire was caused by electrical failure within the electrical compartment of the coffee machine. The fire spread from the electrical compartment and caused the damage the subject of the proceedings. [20] In his first report, Mr Denham observed: “4.2 Considering the location of the fire inception, electrical failure constitutes the only likely cause of the fire. Insufficient physical evidence is available to determine the mode of ignition and the root cause of the failure.” [21] In his second report, Mr Denham identified a short circuit fault or an overheated connection as possible causes of the fire. He opined that both such causes may indicate a fault in the design or construction of the coffee machine. [22] Coca-Cola owns another coffee machine of the same type as the coffee machine which was destroyed in the fire (the second coffee machine). Photographs of the second coffee machine were sent to Mr Denham who prepared a third report. In that report, he referred to an Australian Standard which required that “parts of non- metallic material shall be resistant to ignition and spread of fire”. That is the “Requirement for Fire Resistance” which is pleaded as appears in paragraph [6] of these reasons. The point of the Standard is that if an electrical fault occurs, the material around it will not ignite and therefore no fire will spread to other parts of the machine and beyond. [23] Mr Denham said in his report that compliance testing for this particular Standard is done in this way: “Compliance is tested by applying ‘glow wire tests’ and ‘needle flame tests’ to combustible materials within the appliance. By, way of basic explanation, the glow wire test determines the propensity of the material to ignite from an ‘overheated connection’. Compliance with the test demonstrates that the material surrounding a connection is unlikely to ignite. The needle flame test is applied on surrounding parts which are impinged upon by flame given off by components that ignite during the glow wire test. The needle flame test evaluates the likelihood of the surrounding parts to propagate combustion.” [24] Mr Denham viewed documents evidencing testing of the coffee machine in Europe where it was manufactured. He expressed doubts as to the appropriateness of that testing. [25] The Aged Welfare Association wishes to have “glow wire tests” and “needle flame tests” applied to the second coffee machine. This will determine whether the second coffee machine complies with the Standard and, it is submitted by the Aged Welfare Association, the result of those tests will be probative on the issue of whether the coffee machine which was destroyed in the fire complied with the Standard. [26] Coca-Cola, Evoca Australia and Evoca SPA all resist the application. They say, in summary, that as both machines have been in service and have been the subject of -- 8 of 12 -- 9 maintenance, the current state of compliance or otherwise of the second coffee machine to the Standard is not evidence which either goes to proving or disproving compliance with the Standard by the coffee machine which was destroyed in the fire. [27] The Bowls Club and QVS neither oppose nor support the application. The relevant Rule [28] Rule 250 of the Uniform Civil Procedure Rules 1999 provides, relevantly: “250 Inspection, detention, custody and preservation of property (1) The court may make an order for the inspection, detention, custody or preservation of property if— (a) the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or (b) inspection of the property is necessary for deciding an issue in a proceeding … (3) The order may authorise a person to do any of the following— (a) … (c) make observations and take photographs of the property; (d) conduct an experiment on or with the property; …” [29] The tests proposed to be undertaken by the Aged Welfare Association will result in the destruction of the second coffee machine. All parties accept that the Rule authorises destructive testing.12 While the second coffee machine is not “the subject of a proceeding”, all parties accept that it is “property about which a question may arise in [the] proceeding”. [30] All parties accept that the court has power to make the orders sought by the Aged Welfare Association and that the real issue is as to how the discretion ought to be exercised. [31] In that respect, all parties relied upon the helpful statements by Chesterman J in Evans Deakin Pty Ltd v Orekinetics Pty Ltd13 where his Honour observed: “[19] …The discretion conferred by the rule is a wide one. It should not be limited by the superimposition of conditions not found in the rule itself. The order should not be made unless, on the material before the court, it is proper to do so. It must be remembered that the rule exists to promote the efficient and economical conduct of litigation. If the result of an inspection would tend to bring about such a result the discretion should, I apprehend, ordinarily be exercised in favour of inspection subject to there being some counter-vailing 12 Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd [1960] Qd R 480 at 484-485. 13 [2002] 2 Qd R 345. -- 9 of 12 -- 10 circumstance. To say that there must be formidable grounds for alleging an infringement before inspection will be ordered is to say only that there must be sufficient grounds for making the order. I do not think there is any benefit in using any more particular or pejorative adjective. It is no doubt true that an order for inspection of property will not be made unless there is some evidence that the plaintiff’s rights are being infringed and that an inspection will facilitate proof of the claim. This, I expect, is all that is meant by saying there must be a substantial and genuine dispute. There are, of course, degrees of suspicion as well as of proof. It is pointless to resort to semantic differences and refuse inspection where there is ‘mere suspicion’ of an infringement, but allow it where there is ‘strong suspicion’ or ‘proof’ of it, even if the proof be weak. The discretion conferred by UCPR 250 should be addressed by considering whether in all the circumstances of a particular case the plaintiff has shown sufficient grounds for intruding on the defendant’s property.” (emphasis added) Considerations [32] The Australian Standard provides that these coffee machines should be in a state such that if an electrical fault occurs the components will not combust so that any fire will not spread. [33] All the experts retained in the case agreed: 1. the fire which damaged the premises commenced in the coffee machine; 2. the cause of the ignition was likely an electrical fault. [34] Three of the four experts agreed that the fire ignited in the electrical section of the coffee machine with one saying “there was too much damage to determine” that issue. However, given that the fault was “likely electrical”, it may be easy to draw an inference that the ignition occurred in the electrical section of the coffee machine. [35] Therefore, the weight of the expert evidence is that: 1. the fault occurred in the electrical section of the coffee machine; and 2. the fire spread. [36] The fire could not spread if the material around the fault was not combustible. In other words, the fire would not have spread had the coffee machine complied with the Australian Standard at the time the fault occurred. [37] A central question in the case then is “how did it come about that combustible material was in the electrical compartment of the coffee machine?”. There are at least two possibilities: 1. the coffee machine was manufactured that way; or 2. post-manufacture, non-compliant parts were introduced presumably during maintenance. -- 10 of 12 -- 11 [38] In its statement of claim, the Aged Welfare Association accepts, as a possibility, that the combustible material may have been introduced during maintenance. That possibility forms the basis of at least part of its claim against QVS. [39] The four experts, after their conference, addressed this question: “Whether the most likely primary cause of the fire was a defect in the coffee machine which was introduced when it was manufactured?” [40] Mr Denham answered that question in this way: “Regardless of what electrical fault led to the fire, the machine was not compliant with the Standard because the fire spread out of it.” [41] Another expert said: “Yes. The servicing and refurbishment documents do not indicate that any work undertaken on the machine post manufacture could have caused the fire.” [42] Another expert said: “I cannot discount the possibility of a defective component or defective work being introduced to the machine after manufacture during servicing or refurbishment.” [43] The fourth expert indicated that he would defer to the expertise of the others on that question. [44] The experts also addressed this question: “Whether the most likely primary cause of the fire was a defect in the coffee machine which was introduced when it was repaired and/or refurbished?” [45] Mr Denham answered: “On the basis of there being no evidence of significant electrical work during servicing and refurbishment, in my view we can discount actions during servicing and refurbishment leading to the fire.” [46] Another expert answered: “I believe that the defect was more likely to have been introduced after manufacture.” [47] Another expert answered: ‘No’. [48] Again, the fourth expert indicated that he would defer to the expertise of the others. [49] The question here is not whether the coffee machine which was destroyed in the fire complied with the Standard at the time of the fire. It did not. If it did, the fire would not have spread. The issue is whether the coffee machine destroyed in the fire was manufactured in a non-compliant way or whether it was made non-compliant during its lifetime. -- 11 of 12 -- 12 [50] Had a coffee machine of the same model been available for testing which was in the state it was immediately after its manufacture, then its failure of compliance tests conducted now would tend to prove that the coffee machine destroyed in the fire was non-compliant when manufactured. If it passed the compliance tests, that would tend to prove that the coffee machine destroyed in the fire was compliant at the point of manufacture. [51] The second coffee machine, like the coffee machine destroyed in the fire, has undergone maintenance and, it seems, alteration. The second coffee machine may or may not now comply with the Standard. If the second coffee machine does not now comply with the Standard, that raises, in respect of the second coffee machine, exactly the same enquiries as are necessary in relation to the coffee machine destroyed in the fire, namely, what maintenance was done and were genuine parts used. [52] Conversely, the second coffee machine may now comply with the Standard. A question will then arise as to whether the maintenance, repair and alteration caused a non-compliant coffee machine to comply. [53] The testing of the second coffee machine will raise a new controversy, namely the maintenance history of that machine and whether that machine is practically in its immediate post-manufacture state. [54] Therefore, the making of the order sought is likely to widen the dispute between the parties and lead to further expense in circumstances where it cannot be said to be likely that probative evidence relevant to the case will be obtained. The destructive testing of the second coffee machine does not promote the just and expeditious resolution of the issues in the case.14 [55] I therefore decline to make the order. The parties are content for the question of costs to be determined on written submissions. I will give directions to facilitate that. Orders 1. The application is dismissed. 2. Any respondent wishing to make submissions on costs shall file and serve written submissions by 4.00 pm on 13 May 2022. 3. The applicant shall file any submissions on costs in response by 4.00 pm on 27 May 2022. 4. Each party has leave to file and serve by 4.00 pm on 10 June 2022 any application for leave to make oral submissions on costs. 5. In the absence of any application to make oral submissions on costs being filed by 4.00 pm on 10 June 2022, the question of costs will be decided on any written submissions filed and without further oral hearing. 14 Uniform Civil Procedure Rules 1999, r 5. -- 12 of 12 --