Expert Inspection of Property

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Wednesday, November 22, 2023

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The question of whether the inspection of the property falls within the subject matter of a cause or matter has been construed fairly broadly in WA Courts.  For example, Newnes M made the following comment in The Minister for Health v Brambles Australia Ltd [2006] WASC 86 regarding O 52 r 2:

Accordingly, in my view, if the defendant has in its power, custody or control the bin that was involved in the action, that bin should be produced for inspection.  If the defendant does not have, or cannot identify, the particular bin, I consider it is in the interest of justice that it produce any bin in its power, custody or control which fits the description pleaded in par 8 of the statement of claim so that the plaintiff (including its advisers and necessary witnesses) has access to it for the purposes of inspecting it and, subject to such further orders as may be appropriate, conducting any reasonable testing.

Sanderson M went so far as to say that there is a prima facie right for the applicant party to inspect the property in question in Jackson McDonald Services Pty Ltd & Anor v Who Hup (Australia) Pty Ltd [2002] WASC 77:

It is common ground between the parties that the condition of the building is central to the dispute.  Clearly, both parties will rely upon expert evidence to support their respective positions and, so far as the plaintiffs are concerned, that will necessitate an inspection of the building by an expert.  Prima facie, then, the plaintiffs are entitled to the orders they seek.

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