Some disputes cannot be decided on documents. A defective building, a contaminated river, a machine that failed — these must be looked at. Order 9 Division 4 Subdivision B of the National Court Rules 1983 provides for it.
Order 9 Rule 44
(1) The Court may, for the purpose of enabling the proper determination of any matter in question in any proceedings, make orders, on terms, for —
(a) the inspection of any property; or
(b) the taking of samples of any property; or
(c) the making of any observation of any property; or
(d) the trying of any experiment on or with any property; or
(e) the observation of any process.
(2) An order may authorize any person to enter any land or to do any other thing for the purpose of getting access to the property.
(3) A party applying shall, so far as practicable, serve notice of the motion on each person who would be affected by the order, if made.
(4) “Property” includes any land and any document or other chattel, whether in the ownership, possession, custody or power of a party or not.
Three features worth noting
Sub-rule (4) is explicit: “whether in the ownership, possession, custody or power of a party or not”.
That is a significant extension. Where the land or thing to be inspected belongs to a stranger, the Court may still order inspection — and under sub-rule (2) may authorise entry onto their land.
The protection is sub-rule (3): notice of the motion must be served, so far as practicable, on each person who would be affected. Anyone whose land is to be entered, or whose property sampled, is entitled to be heard first.
Samples — soil, water, concrete, tissue, product. Essential in environmental, construction and product cases.
Observations — measurements, photographs, survey, testing of a condition over time.
Experiments — trying a machine, testing a component, reconstructing an event.
Observation of a process — watching a production line, a manufacturing step, or an operating practice. Nothing need be removed or altered.
The words “on terms” allow the Court to protect the property owner — conditions as to notice, supervision, the number of people attending, confidentiality of what is observed, restoration afterwards, and who pays.
The order must be for the purpose of enabling the proper determination of any matter in question in the proceedings. An inspection sought for curiosity, or to gather material for some other dispute, does not meet it.
And Rule 14 applies across the Division: the Court shall not make an order unless satisfied that the order is necessary at the time when the order is made.
Rule 45
The Court may inspect any place, process or thing with respect to which any question arises in the proceedings.
A view lets the judge see for themselves what photographs and plans convey imperfectly — the slope of a road, the layout of a building, the distance between two points, the condition of land.
Practical points: apply early enough for the view to be arranged, ideally at the directions hearing; ensure all parties or their representatives attend; agree in advance what may be pointed out and by whom, so the view does not become an occasion for untested evidence; and consider whether the site has changed since the events in question, because a view of a place that no longer looks as it did may mislead rather than assist.
Rule 46
(1) Where a party defaults in compliance with an order under the Division, or with Rule 40(2), the Court may make such order as it thinks fit, including — if a plaintiff, that the proceedings be stayed or dismissed as to the whole or part of the relief; or, on a writ, if a defendant, that his defence be struck out and judgement be entered accordingly.
(2) Where a person concerned who is not a party defaults, the Court may order that the proceedings be stayed or dismissed as to any relief claimed for the benefit of that person.
(3) This Rule does not limit the powers of the Court to punish for contempt.
Sub-rules (1) and (2) reach parties, and persons for whose benefit relief is claimed. Neither reaches a genuine third party whose land was the subject of an entry order.
For them, sub-rule (3) preserves the Court’s contempt jurisdiction — disobedience to an order of the Court, by anyone with notice of it, is punishable as contempt under Order 14 Division 6.
Where else property can be dealt with
| Power | Provision |
|---|---|
| Detention, custody or preservation of property pending trial | Order 14 Division 2 — interim preservation |
| Appointment of a receiver | Order 14 |
| Sale of perishable property before trial | Order 14 Division 2 |
| Medical examination of a person | Order 9 Division 4 Subdiv A |
| Production of a document to the Court | Order 9 Rule 12 |
| Requiring a non-party to produce a thing before suit, to identify a defendant | Order 3 Rule 1(e) |
By notice of motion citing Order 9 Rule 44, supported by an affidavit identifying the property, what is to be done to or with it, who will attend, and why it is necessary for the determination of a matter in question. Draft the order with the terms you are prepared to accept — supervision, timing, restoration and costs — and serve it on every affected person, as sub-rule (3) requires.
Sources
- National Court Rules 1983 — O 3 r 1; O 9 rr 12, 14, 40, 44–46; O 14 Divs 2, 6
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.