Askari v AWX Pty Ltd & Anor [2015] QDC 127

DISTRICT COURT OF QUEENSLAND CITATION: Askari v AWX Pty Ltd & Anor [2015] QDC 127 PARTIES: MOHAMMAD ALI ASKARI (applicant/plaintiff) v AWX PTY LTD ACN 095 222 263 (first respondent/defendant) AND TEYS AUSTRALIA MEAT GROUP PTY LTD ACN 065 093 709 (second respondent/defendant) FILE NO/S: 4974/14 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 12 May 2015 ex tempore DELIVERED AT: Brisbane HEARING DATE: 12 May 2015 JUDGE: Samios DCJ ORDER: 1. Pursuant to rule 250 of the Uniform Civil Procedure Rules 1999, the plaintiff together with representatives from Turner Freeman Lawyers, Roger Kahler (Principal Engineering Consultant) of Intersafe (“the plaintiff’s engineer”) and an accredited interpreter be permitted to attend the Second Defendant’s premises at Rockhampton, for the purposes of an inspection of that part or such parts of the Second Defendant’s property upon which the plaintiff alleges he was working and to observe those processes set forth in paragraphs 4(d), 5 and 6 of the statement of claim. 2. The plaintiff’s engineer be permitted to take measurements and photographs including filming of the relevant part or such parts of the respondent’s property and of those processes set forth in paragraphs 4(d), 5 and 6 of the statement of claim. -- 1 of 10 -- 2 3. The conditions of the inspection are as per EXHIBIT 1. 4. Order the second defendant to pay the plaintiff’s costs of the application on the standard basis. 5. As between the plaintiff and the first defendant there be no order as to costs. CATCHWORDS: PRACTICE – DISCOVERY AND INSPECTION – where the applicant/plaintiff was an employee of the first respondent/defendant working at the premises of the second respondent/defendant – where the applicant/plaintiff allegedly sustained an injury during the course of employment at the second respondent/defendant’s premises – where the applicant/plaintiff commenced personal injury proceedings against the second respondent/defendant – where the applicant/plaintiff seeks to enter the second respondent/defendant’s premises for a site inspection for the purposes of the applicant/plaintiff’s personal injury proceedings – whether the applicant/plaintiff is entitled to perform the site inspection Legislation Uniform Civil Procedure Rules 1999 (Qld) r 250 Cases Hartley v Australia Meat Holdings Pty Ltd (Unreported, District Court of Queensland, McGill SC DCJ, 13 December 1996) COUNSEL: Mr C Newton for the applicant/plaintiff Mr J Fraccaro (solicitor) for the first respondent/defendant Mr R Morton for the second respondent/defendant SOLICITORS: Turner Freeman Lawyers for the applicant/plaintiff Kaden Boriss for the first respondent/defendant Bruce Thomas Lawyers for the second respondent/defendant [1] HIS HONOUR: This is an application pursuant to rule 250 of the Uniform Civil Procedure Rules for an order that the plaintiff, together with representatives from his solicitors and Roger Kahler, a principal engineering consultant of Intersafe, and an accredited interpreter be permitted to attend the second defendant’s premises at Rockhampton for the purposes of an inspection of that part or such parts of the second -- 2 of 10 -- 3 defendant’s property upon which the plaintiff alleges he was working and to observe those processes set forth in paragraphs 4, subparagraph (d), 5 and 6 of the statement of claim. An order is also sought that the plaintiff’s engineer be permitted to take measurements and photographs, including filming of the relevant part of such parts of the respondent’s property and of those processes set forth in paragraphs 4, subparagraph (d), 5 and 6 of the statement of claim. [2] Subrule (1) of rule 250 of the UCPR provides that the court may make an order for the inspection of property if the property is the subject of a proceeding or is property about which a question may arise in the proceeding or inspection of the property is necessary for deciding an issue in a proceeding. Subrule (3) of rule 250 provides for a number of matters that the court may authorise a person to do if an inspection order is made. [3] The plaintiff’s claim is for damages for loss and damage he suffered as a result of suffering personal injuries in the course of his employment with the first defendant at the second defendant’s premises. The second defendant’s premises is a meatworks. The plaintiff is a refugee from Afghanistan. The allegation is that he was taught his job at the workplace by a Filipino employed by the second defendant who could not speak his language and had to do so by demonstration. [4] Further, his job involves cattle heads on a hook on a moving chain in respect of which the plaintiff, if the heads were suitable to proceed down the chain, had to do a specific cut on each side of the head to free up the meat and – or, intermittently, would also have to cut meat from underneath the chin and throw the offcut down a chute 1.5 -- 3 of 10 -- 4 metres to his right rear. And branded reject heads had to be removed from the hook on the chain and placed into the chute, and the plaintiff would have to remove hundreds of heads in a usual working day, and he had to keep up with the chain. [5] More specifically, he alleges that on or about the 2nd of August 2011, he was working at the workplace performing his duties referred to earlier. He was removing a reject head which did not easily come off the hook, and the hook came off the chain and he had to extract it from the head and throw the head down the chute, and as he twisted and turned to throw the head down the chute, he suffered low back pain. He alleges this was caused by the negligence of the defendants. Mostly, the allegations made of negligence relate to failure to be properly instructed and in particular about the risks involved in the work, in addition, failing to be given proper training. However, subparagraph (f) of paragraph 6 of the statement of claim alleges: Failing to locate the chute in a position so the plaintiff was not required to lift and twist on a repetitive basis. [6] Further and better particulars have been provided with respect to this paragraph 6, subparagraph (f) of the statement of claim. The plaintiff alleges a repetitive nature of the work in terms of placing heads down the chute – well, he states in subparagraph (a) of paragraph 5 of the further and better particulars of the statement of claim filed 4 March 2015 that the plaintiff would estimate about 183 heads per hour came through the chain. He also alleges the ideal place to place the chute so as not to require workers to lift and twist would have been to place it beside them and below their working height. In addition, he alleges he was unable to place the head in the chute without lifting and twisting, because the chute was behind him to his right, and, while a fairly narrow entry was, in fact, at chest height. -- 4 of 10 -- 5 [7] Further, even making the entry larger so that one did not have to do so precise – and/or lower – so one did not have to apply any lift to the action would have improved the task. Finally, he alleges in terms of repetition removing the green stamped heads was only an add-on to what was the primary task, which was otherwise to cut each side of the head to free up the meat near the horns and, intermittently, to cut meat from underneath the chin and throw the offshoot down the chute, which he had to do to every head that was not green stamped on the chain. [8] The second defendant opposes the application. Specifically, the second defendant says that the application is merely a fishing expedition. In Hartley v Australia Meat Holdings Proprietary Limited, his Honour Judge McGill in number 133 of 1995, 13 December 1996 said of the previous rule that is to the same effect that where the rule allows for orders that may be necessary, it is, to say, necessary for the purpose of doing justice between the parties to the action. His Honour said that such an order should not be made merely because it might be thought to be appropriate. He went on to say: The applicant for such an order should be able to show that the inspection sought is necessary in the sense that there is good reason to think that the applicant will be prevented from obtaining a just resolution of the cause or matter unless such an order is made. It follows that the inspection ordered should be no more extensive than such as is necessary in this sense. An order should not be made for an inspection which is really no more than an attempt by a plaintiff to fish for a case.1 [9] The solicitors for the plaintiff have written to the solicitors for the second defendant indicating that Mr Kahler, the proposed expert for the plaintiff, would need to do a number of matters set out in the correspondence. The second defendant submits that none of these matters are justified on the state of the pleadings and particulars. For 1 Hartley v Australia Meat Holdings Pty Ltd (Unreported, District Court of Queensland, McGill SC DCJ, 13 December 1996) 5. -- 5 of 10 -- 6 example, it is said that Mr Kahler would need to examine the way in which the tongue hook is retained to the chain. The response by Mr Morton of counsel who appears for the second defendant is that there is no allegation on the pleading which makes it relevant in any way the way the tongue hook is retained to the chain. Other needs are outlined by the solicitors for the plaintiff in the correspondence, that is, needs for what Mr Kahler would need to do on an inspection. A similar response is made to these matters by Mr Morton. [10] Mr Newton of counsel who appears for the plaintiff, though, says that the allegation made in the pleadings is one that should be seen in the context of the work being done, that is, that the allegation involves the timing of when the object came to the plaintiff and what time he may have had to remove the hook, bearing in mind there was a moving chain coming towards the plaintiff. That is, that this is not just about him twisting and turning as alleged in the statement of claim. That is, the allegation made by the plaintiff must be looked at in the broader context with the whole operation in mind. He submits that it would be placing too narrow a view of it to simply say that the engineer should examine simply the allegation by the plaintiff in paragraph 5, subparagraph (d) of the statement of claim that he twisted and turned to throw the head down the chute. [11] I have come to the view that Mr Newton’s submission is the correct view to adopt regarding this case. That is, there is a broader context which the plaintiff should be permitted to examine via his expert and that will require what is proposed by the solicitors for the plaintiff. I do not accept this is a fishing expedition. In my view, the inspection that is sought is necessary. I think there is good reason to think the -- 6 of 10 -- 7 applicant would otherwise be prevented from obtaining a just resolution of the cause or matter unless the order was made. [12] However, there is another objection taken to the order being made that has been sought by the plaintiff in the application. That is, objection is taken to Mr Kahler being the engineer. I do not accept that on this application, Mr Kahler should be disqualified from being the expert retained by the plaintiff. I do not accept that merely on the affidavit of Mr Murphy I should conclude he should be disqualified. In my view, it would take more than these observations when they’re not placed in the context of what Mr Kahler may have to say about them. I do not accept that there should be, though, a side issue litigated about what Mr Kahler may or may not have done on some other occasion when he was inspecting that property, even if it were one controlled by the second defendant. [13] For these reasons, I have come to the view that an order should be made providing for the inspection sought by the plaintiff. There is a question about the conditions of the inspection. While there has been some agreement, I’ve come to the view that the conditions of inspection handed to me by Mr Newton are appropriate in all the circumstances, and I will make an order for inspection which will be subject to those conditions. These conditions I’ll have marked as exhibit 1 for the file (EXHIBIT #1 ADMITTED AND MARKED). [14] HIS HONOUR: And I am including in those conditions those that Mr Newton has highlighted as being those that will be made the subject of this – upon which this inspection will take place. Do you have a draft order, Mr Newton, or - - - -- 7 of 10 -- 8 [15] MR NEWTON: No. I’m afraid I don’t, your Honour. There were too many ifs, but I’ll prepare one, your Honour. [16] HIS HONOUR: Well, if you want to, I could simply make an order in terms of paragraphs 1 and 2 of the application. [17] MR NEWTON: Thank you, your Honour. [18] HIS HONOUR: Yes. Order as per paragraphs 1 and 2 of the application filed 30 April 2015. The conditions of the inspection are as per exhibit 1. Yes. What do you say about the question of costs, Mr Newton? [19] MR NEWTON: I’d say they should follow the event, your Honour, and the applicant has been successful. [20] HIS HONOUR: Yes. What do you say, Mr Morton? [21] MR MORTON: We submit that your Honour should reserve them until we see whether or not, at the end of the day, this inspection actually does any good. It may be that it may be a complete – an exercise which is completely wasted, if there’s no amendment to the pleadings and until we see what comes out of the report. [22] MR NEWTON: Which doesn’t address the reason we’re here, your Honour. That might be true in any event and it may be there’ll be all sorts of things happening down -- 8 of 10 -- 9 the track, but the fact is we’re here because, with respect, a certain view was taken by the defendant and they’ve been unsuccessful. [23] HIS HONOUR: Yes. I take the view that costs should follow the event. I order the second defendant to pay the plaintiff’s costs of the application on the standard basis. Mr Fraccaro, I haven’t ordered you to pay any costs. What should I do about that, Mr Newton? I was - - - [24] MR NEWTON: I wouldn’t suggest Mr Fraccaro should be paying my costs, your Honour. [25] HIS HONOUR: No. All right. So - - - [26] MR NEWTON: No. We naturally served him as a party to the proceedings. [27] HIS HONOUR: Yes. What do you say, Mr Fraccaro, about your costs, though? Are you seeking any costs from anyone? [28] MR FRACCARO: I know we’re not, your Honour. [29] HIS HONOUR: You’re not? [30] MR FRACCARO: No. -- 9 of 10 -- 10 [31] HIS HONOUR: No. All right. So that’s – the order I make is the second defendant to pay the plaintiff’s costs of the application on the standard basis and as between the plaintiff and the second defendant, no order – sorry. As between the plaintiff and the first defendant, there be no order as to costs. Yes. No need to wait. I’ve got another matter I have to take care of. Thank you. [32] MR MORTON: Thank you, your Honour. [33] MR NEWTON: Thank you, your Honour. [34] HIS HONOUR: Thank you. -- 10 of 10 --