UCPR 478: “view”, “demonstration” or “reconstruction”

Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256

 Flanagan J

[1] By application filed 10 October 2014, the plaintiff applies for the following orders:

“1. Pursuant to r. 478 of the Uniform Civil Procedure Rules 1999 (Qld)(the UCPR) at the trial of this proceeding the court shall:

(a)     inspect a Liebherr LTR1100 telescopic crawler crane (the Crane) at the premises of Casa Engineering (Brisbane) Pty Ltd;

(b)     witness a demonstration of the basic manoeuvring capabilities of the Crane;

(c)      inspect a concrete tilt panel of identical specifications as the panel described as ‘panel 30’ in the defence;

(d)     witness a demonstration by James Hitaua of the way in which he was operating the crane (the subject of this proceeding) immediately        before, and at the time when the boom collapsed (the View).

2. Pursuant to r. 478 of the UCPR anything observed or witnessed by the Court during the View shall be received as evidence at the trial of this proceeding.

3. The Plaintiff shall organise and pay any costs and provide any indemnities to Casa concerning the View … ”

 

Discussion

[22] I commence with a consideration of the words of r 478. Rule 478 falls within Chapter 13, Part 3 of the UCPR. Part 3 is entitled “Trial” and only applies to proceedings started by a claim.[18] Division 3 is entitled “View” and only contains rule 478. The heading to rule 478 is “View by court”. Rule 478 does not however speak in terms of a view but rather in terms of inspecting a place, process or thing and witnessing any demonstration. It may be accepted that r 478 deals with views in the common law sense although it calls them “inspections”.[19] The word “demonstration” is not a defined word. The only limitation is that the place, process, thing or demonstration must be “about which a question arises in the proceeding.” The rule does not make any reference to a “reconstruction”, although it may be accepted that in certain circumstances a demonstration may have some element of reconstruction.

[23] The rule is silent as to what factors inform the exercise of discretion. The rule is also silent as to whether the inspection or demonstration constitutes evidence in the trial or is to be merely used to assist the court to better understand the evidence given by witnesses.

[24] In Avis v Mark Bain Constructions Pty Ltd Atkinson J, by reference to rule 478, touched upon the utility of a view:[20]

“Views are permitted by r 478 of the Uniform Civil Procedure Rules (“UCPR”) which provides that the court may inspect a place, process or thing, and witness any demonstration about which a question arises in the proceeding. In relation to the utility of a view, the High Court in Scott v Numurkah Corporation [1954] HCA 14; (1954) 91 CLR 300 at 313 and 315 cited Unsted v Unsted [1947] NSWStRp 44; (1947) 47 SR (NSW) 495 where, at 498, Davidson J observed that:

‘Whilst a view is frequently a valuable adjunct to a hearing to enable the truth to be elicited, there are well-recognised limits within which such a procedure must be kept. … In a general form the rule is that a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence:. London and General Omnibus Co. Ltd. v. Lavell. Yet, sometimes, for example, in cases of passing off, or otherwise when what appears to the eye is the ultimate test, the Judge, looking at the exhibits before him or examined by him as if they were exhibits in the case, and also paying attention to the evidence adduced, can apply his own independent judgment notwithstanding what witnesses have deposed to on the particular point: cf. Bourne v. Swan & Edgar Ltd.; Payton & Co. v. Snelling, Lampard & Co. It is not permissible, however, for the Judge to gather anything in the nature of extraneous evidence and apply it in the determination of the issues unless the facts are openly ventilated and exposed to the criticism of the parties: Way v. Way; Kessowji Issar v. The Great Peninsular Railway Co.’.” (footnotes omitted)

[25] Jackson and Pastellas made the following observations in respect of rule 478:[21]

“This provision is fairly straightforward and imposes no restrictions on the use to be made of such an inspection. However there have been a number of cases that have considered the nature of such an inspection and how it may be used. At this stage it is unknown whether these restrictions will be placed on the use of an inspection under the new rule …

The rule clearly gives the court a discretion of whether or not to grant a view – therefore a party can neither compel the holding of a view nor prevent the holding of the view contrary to the exercise of discretion by the court (Tito Waddell [1975] 3 All ER 997). The qualification on the discretion is that there must be a connection with a question arising in the proceeding.

Courts will be generally willing to grant a view, unless it is clear that holding the view would achieve nothing, but would waste time and money. In Tito Waddell [1975] 3 All ER 997 the court was willing to order a view of Ocean Island, the subject of the proceedings, even where it would take a trip of 11 days to achieve only a 2-day view of the island.”

[26] In Evans v The Queen the High Court considered ss 53 and 54 of the Evidence Act 1995 (NSW). These sections provide:

53 Views

(1) A judge may, on application, order that a demonstration, experiment or inspection be held.

(2) A judge is not to make an order unless he or she is satisfied that:

(a) the parties will be given a reasonable opportunity to be present, and

(b) the judge and, if there is a jury, the jury will be present.

(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:

(a) whether the parties will be present,

(b) whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence,

(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time,

(d) in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated,

(e) in the case of an inspection—the extent to which the place or thing to be inspected has materially altered.

(4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations.

(5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.

54 Views to be evidence

The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.”

[27] Unlike rule 478, s 53(3)(a) to (e) of the Evidence Act 1995 (NSW) identifies matters that the judge may take into account in deciding whether to make an order for a view or a demonstration. Whilst these matters are identified in a discrete statutory context they may, in my opinion, inform the exercise of discretion under rule 478. This is because the matters listed in s 53(3)(a) to (e) are generally reflective of the common law. As Heydon J observed: “[t]he starting point in construing s 53 must be the common law.”[22] There was common ground between the plaintiff and the defendant as to the correctness of this proposition.

[28] The consideration in s 53(3)(d), namely that in the case of a demonstration “the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated”, was a consideration identified by Dixon CJ, Webb, Kitto and Taylor JJ in Scott v Numurkah Corporation.[23] That case concerned a nuisance caused by noise. The trial judge attended the town hall for a view over the objection of one of the parties where the alleged noise nuisance was in effect demonstrated. The plurality stated at 309-310:

“In the first place it is quite wrong to speak of what took place at the town hall as a view. It was considerably more than that. In addition to having a view of the premises his Honour saw and heard a demonstration of the nature already described and this, for all practical purposes amounted to the taking of evidence in the suit. In the circumstances of this case, it seems to us, such a course could only have been undertaken with the full consent and concurrence of both parties and, unhappily, on this point there is some degree of conflict between the parties which cannot wholly be resolved by recourse to the written transcript. Senior counsel for the appellant maintains that he objected that the proposed demonstration would not, and, he says, indeed could not, reproduce the conditions complained of and he did not himself attend the demonstration, though it is not suggested that his absence was intended as a refusal to take part in the demonstration. Junior counsel for the appellant, however, did attend and it is clear that both counsel and their client were aware of the time proposed for the demonstration and had a full opportunity of being present and seeing and hearing what took place. It is, however, equally clear that the demonstration was not, in one sense, the product of the joint action of the parties though the appellant must have collaborated to the extent of exhibiting a motion picture that evening. But at no time before the demonstration took place did a consultation, as suggested by the learned judge, take place and no evidence was thereafter given to establish that the conditions which were then produced were comparable with those complained of.”

[29] The importance of the parties agreeing to a demonstration is that it may be assumed in those circumstances that the demonstration will be sufficiently equivalent to the event in issue. As stated in Lunn’s Civil Procedure SA:[24]

“Demonstrations or experiments conducted by suitably qualified experts which would tend to enlighten the court may be conducted in its presence in circumstances reasonably or substantially similar, but not necessarily identical, to those prevailing at the time of the occurrence in question. Where a reconstruction is performed to test the feasibility of a particular manoeuvre it should be carried out by witnesses who can be cross-examined about it, and not by the judge personally. A reconstruction which is not substantially equivalent to the events in issue will not be allowed as a demonstration. Where the parties agree to a demonstration it will be assumed to be sufficiently equivalent to the event in issue and the court should not initiate a demonstration.” (citations omitted)

[30] In Titto v Waddell[25] Megarry J considered RSC, Ord 35, r 8(1) which is in not dissimilar terms to rule 478:

“The judge by whom any cause or matter is tried may inspect any place or thing with respect to which any question arises in the cause or matter.”

[31] Megarry J observed:[26]

“This language could scarcely be more simple or more general: but there seems to be little in the reported cases which affords much guidance on the principles to be applied in exercising this jurisdiction.”

[32] In that case the parties disagreed about whether or not a view should be held of Ocean Island. His Honour stated:[27]

“… where, as in the present case, the parties disagree about whether or not a view should be held, the judge should weigh the advantages of holding a view against the disadvantages. The balance may often be hard to strike, for it will usually be difficult to express the opposing considerations in terms of each other. Considerations of time and money will often point against holding a view, whereas considerations of assistance in reaching a proper decision will often point in favour of holding a view: yet the degree of assistance in reaching a proper decision cannot readily be measured in units of time and money.”

[33] His Honour was dealing there with a view rather than a demonstration.

[34] The orders sought in paragraphs 1(a) and 1(c) of the application are clearly in the nature of a common law view. The inspection of the crane and the concrete panel are of items too large to be taken into court and tendered as exhibits. As explained by Heydon J in Evans v The Queen:[28]

The purpose of a view was to assist the trier of fact, by enabling an examination of the dimensions, appearance and relative positions of the features of the things viewed, ‘to understand and weigh the oral evidence’.”

[35] The inspections contemplated by the orders sought in paragraphs 1(a) and 1(c) should not however be treated as evidence but rather as an aid to understanding the evidence presented in court. In Evans v The Queen, Heydon J at [200] identified this distinction:[29]

“There was a restrictive common law rule adopted in some but not other English cases, and in this Court, preventing an out of court view being used as evidence in its own right, as distinct from being an aid to understanding evidence given in court. That rule is abolished by s 54, but it was a rule which applied only to out of court activities. (footnote omitted)

[36] Neither rule 478 itself, the UCPR or the Evidence Act 1977 (Qld) contains any equivalent to s 54 of the Evidence Act 1995 (NSW). The common law position therefore applies and the view of the crane and the concrete panel should not be treated as evidence. The extract from Cross on Evidence quoted above would suggest that in the absence of agreement between the parties a view is not part of the evidence but merely something which enables the court to better understand the evidence given by the witnesses. It follows that I would not grant the order sought in paragraph 2 of the application in respect to the view of the crane or the panel.

[37] As to the order sought in paragraph 1(b) of the application this falls within the common law concept of “demonstration” in that it is a demonstration of the basic manoeuvring capabilities of the crane. As Mr Cooper submitted, correctly in my opinion, there is a mine of authority which establishes that a “demonstration” may include the operation of a machine that is directly concerned with the subject of the litigation. One example of such a demonstration is found in Buckingham v Daily News Ltd.[30] In that case, with the consent of both sides and having been invited to do so, the trial judge, accompanied by counsel and by the plaintiff, observed the operation of the relevant machine. On this occasion however, the demonstration went further in that the plaintiff showed the judge on the machine what he was doing with the tucking blades on the day on which the accident occurred. Birkett LJ stated:[31]

“…. when a judge goes to see machinery, and sees it in operation when the parties are present and everything is done regularly and in order, it is just the same as though the machine were brought into court and the demonstration made in the well of the court, so that the judge or judges may see it.”

[38] The demonstration of the basic manoeuvring capabilities of the crane goes beyond a mere view and constitutes evidence in the case from which the court may draw inferences. The demonstration should therefore be videoed and the video tendered so that there is a record of the demonstration should the matter proceed to appeal.

[39] The demonstration contemplated by the order sought in paragraph 1(d) however goes well beyond the demonstration in 1(b). Even though Mr Cooper submitted that what is contemplated is not a reconstruction, the order sought in paragraph 1(d) does have something of the nature of a reconstruction in that it seeks to “recreate the incident (whether in full of part) with a witness and testimony.”[32] The difficulty with a demonstration in circumstances where the parties do not agree to the demonstration is that there is no agreement that the demonstration to be undertaken is a true demonstration of a past event. This is particularly so in the present application where the event occurred, on the defendant’s case, in an area where the ground was not suitable for the crane to operate. The defendant’s case is that the crane was not operating on level ground and there is an issue as to how the crane and the load were being moved at the time of the collapse. In those circumstances and in the absence of the agreement of both parties, I am not satisfied that the demonstration proposed in order 1(d) of the application would assist the court in resolving questions or issues arising in the proceeding.

Conclusion

[40] I make orders in terms of paragraph 1(a), (b) and (c) of the application.

[41] I direct that the demonstration contemplated by paragraph 1(b) of the application be videoed and that the video be tendered as evidence in the proceedings.

[42] I order in terms of paragraph 3 of the application.

[43] I otherwise dismiss the application and will hear the parties as to costs.

 

David Cormack – Brisbane Barrister & Mediator

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