Blacktown City Council v Allen Jack + Cottier Architects Pty Ltd

1. [1]

   HER HONOUR: This is an application under r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW) for orders permitting cross-defendant engineer, ACOR Consultants Pty Ltd, to undertake invasive testing on tennis courts owned and operated by the plaintiff, Blacktown City Council. The application is opposed.

2. [2]

   As to the substantive proceedings, the Council is suing its architect and builder for damages in respect of the allegedly defective design and construction of 16 tennis courts. (The proceedings against the builder have been stayed in favour of arbitration.) The quantum of damages is some $7 million.

3. [3]

   The architect had engaged the engineer to design the concrete slabs for the tennis courts. The architect seeks to recover any damages awarded against it from the engineer via a cross-claim. There is a live issue on the cross-claim as to whether the problems with the tennis courts are caused by the engineer’s design or the builder’s failure to implement that design by constructing the tennis courts in accordance with the drawings and using suitable materials and workmanship.

4. [4]

   The Council opposes this application on the basis that the testing should have been done much earlier. Granting the application now is said to imperil the trial. To address the objection, it is necessary to look at the procedural history of the matter.

Procedural history

1. [5]

   These proceedings were commenced in February 2021. The engineer was joined by cross-claim in June 2021, that is, nearly five years ago.

2. [6]

   The engineer requested invasive testing straight away, in October 2021. But the Council would only agree to a non-invasive inspection, given the nascent state of the proceedings. The engineer was not happy but accepted the Council’s decision. On 6 December 2021, the engineer inspected the tennis courts and took photographs. Some of the photographs showed that core samples appeared to have been already taken and the surface made good.

3. [7]

   In March 2022, the pleadings closed. In April 2022, directions were made for the Council to serve its evidence-in-chief as against the architect. In March 2023, the Council served a report by expert engineer Professor Mark Bradford, who identified various design defects in the concrete slabs. In April 2023, orders were made for the architect to put on its evidence.

4. [8]

   In September 2023, presumably as a preparatory step to putting on its evidence in response, the engineer filed a motion seeking discovery from the Council of 38 categories of documents in respect of the design of the tennis courts. But the application was dismissed in October 2023: Blacktown City Council v Allen Jack + Cottier Architects Pty Ltd [2023] NSWSC 1305. Although the documents were said to be necessary to enable an expert report to be prepared, there was no expert report identifying the particular documents which were needed to complete their task. Stevenson J was not satisfied that the engineer had established “exceptional circumstances” under Practice Note SC Eq 11. The engineer’s solicitor said that, after the motion was dismissed, the engineer decided to wait under the parties had served their evidence and the engineer’s expert had prepared their expert evidence, given his Honour’s observations.

5. [9]

   In December 2023, the engineer asked to inspect the tennis courts again. The Council agreed but sought confirmation that the inspection was visual only. The engineer so confirmed. In May 2024, the engineer's expert, Nicholas Joannides, completed a report setting out the limits on how far he had been able to complete the assigned task and the further information that he would need to go further. He could not confirm if the concrete slabs were cast in accordance with the engineer’s drawings. Nor could he confirm the cause of differential movement at the joints without further investigation of the subgrade under the slab. Nor could he confirm if the slab saw joints had been constructed in accordance with the drawings. Nor whether the dowels were correctly positioned. To provide a final opinion, Mr Joannides required further details to confirm the slab construction and ground preparation. The expert also provided his views on an appropriate method of rectification.

6. [10]

   Directions were made for the Council to serve reply evidence. In November 2024, the Council served a second report from Professor Bradford and a report from structural engineer Geoffrey Keighran. Professor Bradford focused on design defects. Mr Keighran addressed rectification. He proposed removing the tennis court concrete slabs and the underlying substructure and doing the job again. In addition, Mr Keighran expressed his opinion on the reasons for the damage. Specifically, the vertical dislocations at some of the joints were considered to be caused by movement of the underlying subgrade/fill, excessive spacing of the joints and a lack of dowels across the joints. The subgrade/fill may not have been adequately compacted and may have been exacerbated by the ingress of water via natural stormwater flow below the slabs or through the opened joints. On this application, the engineer submitted that this evidence on causation was, in truth, evidence in chief.

7. [11]

   Having received these reports, the engineer promptly wrote to the parties, with proposed orders in respect of a regime for discovery in the proceedings. On 5 December 2024, Stevenson J made directions for the parties to exchange categories of discovery. Progress appears to have been slow. In March 2025, Mr Joannides prepared a supplementary expert report setting out in detail the material which he needed. This included ground investigations to determine ground conditions, the compaction of the subgrade and base course materials, concrete core test results and confirmation of the saw cut joints and dowel joint construction using non-destructive ground penetrating radar. Mr Joannides noted that, while on-site, he had observed that there had been concrete cores previously taken through the existing court slabs, and he required all data and test results taken from the concrete cores and the ground under the slabs.

8. [12]

   In April 2025, the engineer filed its second motion seeking discovery from the Council. The engineer’s solicitor made an affidavit in support, noting that notwithstanding Mr Joannides’ report of May 2024, the Council had objected to 37 of the 38 categories proposed. In light of Mr Joannides’ supplementary expert report, the engineer no longer pressed eight categories but continued to press for the balance of its categories of discovery.

9. [13]

   The discovery application was resolved by orders made by Peden J on 16 May 2025. There were delays – frankly conceded by the Council's counsel here today – in giving discovery. The correspondence indicates that there were substantive disputes about production and non-compliance with the discovery orders. Extensions of time were given.

10. [14]

    Amongst the inter-partes correspondence in relation to discovery, in June 2025, the Council’s solicitors advised that the core samples taken by Professor Bradford were in their offices and could be inspected there. The engineer proposed directions which would permit the parties to arrange inspection and/or further testing of the core samples taken by Professor Bradford. In July 2025, the engineer sought confirmation as to whether any tests had been carried out on the core samples, either by Professor Bradford at the time or otherwise. On 6 August 2025, the Council confirmed that there had been no testing undertaken on the core samples taken by Professor Bradford. This appears to have made plain to the engineer that there were no earlier tests from which it could gain information.

11. [15]

    On this application, the Council submitted that the engineer should have been more interested in taking steps to conduct invasive testing itself, rather than seeking discovery of testing undertaken by the Council. It is certainly true that a party can commission its own testing and pay no regard to any other testing earlier done. But it is also true that a party may seek to have the benefit of what other earlier tests have revealed. Existing test results may suit one’s purpose or, at least, assist in completing the investigative task in a more cost-effective manner.

12. [16]

    In August 2025, Peden J made orders listing the matter for hearing on 31 August 2026. The engineer resisted a hearing date being allocated in circumstances where there was an unresolved issue in respect of testing core samples.

13. [17]

    In October 2025, the engineer queried whether the Council had provided proper discovery, including where no documents had been produced recording core hole testing and the results of that testing conducted by or on behalf of the Council in respect of the ground condition and concrete mix from the slabs of the tennis courts. The Council replied that this was unsurprising, given their earlier advice that no tests had been carried out on the core samples by Professor Bradford. The Council also advised that core samples had also been taken in about January 2021 by façade engineer Bill Moisidis, but no testing had been conducted on these samples. Further, those core samples had been destroyed by Mr Moisidis in 2024.

14. [18]

    In November 2025, the engineer sought Council’s consent to undertake further testing and investigations. Consent was not forthcoming. This motion was filed on 5 December 2025.

15. [19]

    In support of the motion, the engineer’s solicitor said that inspection and invasive testing is necessary to enable the proper determination of the paramount matter in question in these proceedings, being the cause of the damage to the tennis courts. In the event that testing was completed and any supplementary report was provided by Mr Joannides by March 2026, the proposed testing was not likely to prejudice the hearing listed to commence in August 2026 as the parties would have sufficient time to prepare expert evidence in reply. In the event that the orders sought were made, the engineer undertook to do no unnecessary damage during its inspection and testing and to reinstate the concrete slab after investigations were concluded as quickly as possible and at its own expense.

16. [20]

    The council’s solicitor said that it was more likely that the engineer would serve any supplementary report in May 2026, to which the council would wish to reply with further expert evidence – which may include both additional liability and quantum reports. That may jeopardise the hearing.

Rule 23.8, UCPR

1. [21]

   Looking first at the circumstances in which the Court may make the orders sought by the engineer, r 23.8 of the UCPR provides: (emphasis added)

2. [22]

   In deciding whether an order should be made under r 23.8 of the UCPR, it is necessary to first be satisfied that the testing which is sought to be undertaken cannot be adequately effected by an order under s 169 of the Evidence Act 1995 (NSW): UCPR, r 23.8(4). The provision is to be found in Div 1 of Pt 4.6 – Ancillary Provisions of the Evidence Act. Section 169(1) of the Evidence Act provides: (emphasis added)

3. [23]

   “Request” is defined in s 166 as follows:

4. [24]

   Further, s 167 of the Evidence Act provides:

5. [25]

   As Basten JA (Spigelman CJ and Ipp JA agreeing) explained in Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 at [22]:

6. [26]

   As Hall J also explained at first instance, “… Div 1 affords a measure of protection against documents or other records being accorded the evidential significance that they may otherwise carry on their face where the circumstances … indicate a reason to question or dispute what the records would otherwise establish or tend to establish”: Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324 at [50].

7. [27]

   As to whether sufficient relief is available under s 169 of the Evidence Act, the Court may make an order directing the Council to comply with a request to permit the engineer “adequately and in an appropriate way, to examine, test or copy the whole or part of a specified document or thing”: Evidence Act, ss 166(b), 169(1)(a). I suppose the tennis court concrete slabs and the underlying material may be regarded as “a specified document or thing”, but such an order would go beyond the legislative purpose of the provisions. That purpose is to permit a party, against whom evidence is sought to be tendered, to challenge that evidence. The purpose is not to obtain further evidence of a different kind than that sought to be tendered against it. As such, I consider that the order sought by the engineer goes beyond the relief available under s 169 of the Evidence Act.

8. [28]

   Turning to r 23.8 of the UCPR, the Court has a discretionary power to order an inspection of property, the exercise of which is informed by the overriding purpose contained in s 56 of the Civil Procedure Act: Ross v Lane [2021] NSWLEC 61 at [26] (Pepper J). Such orders have been made, for example, in Lumb v Beaumont (1884) 27 Ch D 356, permitting the plaintiff to open up part of the street that belonged to the defendants in order to ascertain whether the defendants had installed a pipe to drain sewerage to the plaintiff’s drain. See also Byron Shire Council v Wookey [2024] NSWLEC 132, where orders were made for the council to examine, inspect and make tests of unlawful buildings to ascertain whether the buildings were being used for unapproved short-term tourist use.

Conclusion

1. [29]

   The engineer sought that orders be made under s 169 of the Evidence Act, or alternatively, under r 23.8 of the UCPR. The Council submitted that s 169 of the Evidence Act did not apply. I agree. Section 169 of the Evidence Act is directed to a different problem. The Council is not seeking to rely on test results, which the engineer wants to question before they are admitted into evidence. The Council does not have test results at all. The engineer simply wants to undertake invasive testing to provide an evidentiary basis for its defence of the cross-claim. The provisions in Pt 4.6, Div 1 of the Evidence Act are not apposite. The power to order such testing is amply conferred by r 23.8.

2. [30]

   Orders for inspection of property under r 23.8 are to be made “[f]or the purpose of enabling the proper determination of any matter in question in any proceedings”: UCPR, r 23.8(1). An issue in dispute is whether the tennis courts were properly built in accordance with the engineer’s design. The inspection that the engineer proposes to undertake will assist in determining that issue. The Council did not suggest that the proposed testing would be unduly inconvenient or destructive of the tennis courts, which the Council contends will need to be completely replaced in any event. I am satisfied that the engineer’s inability to undertake this testing will cause it significant prejudice.

3. [31]

   I do not accept that the engineer has made a “forensic decision” to delay the request for testing until now. The procedural history indicates that the engineer has taken a keen interest in the subject from the outset. The engineer has sought, by various means, to advance its investigations on this front. The engineer may not have gone about this in precisely the manner which the Council now says that it should have. But the engineer’s solicitor has explained why he took the course he did, and I accept his unchallenged evidence.

4. [32]

   How the Council has dealt with the engineer’s requests in this regard does not appear to have achieved perfection either. The Council may have advanced, in its reply evidence, topics which should have been put on in evidence-in-chief. The Council may have delayed in giving proper discovery such that the fact that the Council did not have any test results itself did not become clear until fairly recently. Where the Council pressed for a hearing date before the issue of testing core samples was resolved, I think that it was incumbent on the Council to cooperate with the engineer to ensure that this issue was dealt with in a timely manner, else the trial date allocated on the Council’s insistence may need to be re-visited.

5. [33]

   I am not being asked to grant leave to rely on any expert report produced following the testing. Nor am I being asked to vacate the trial as a consequence of any insurmountable difficulties created by permitting the engineer to rely on that report. I cannot say whether permitting invasive testing will necessarily have the effect that the hearing will be vacated. That is a decision that will need to be made further down the road, once testing has been done and a report based on those tests is to hand. It is only then that the Court will have before it all the information it needs, to know whether leave should be granted to rely on the resulting expert reports given the impending trial date But I am satisfied for the purpose of this application that the orders sought are appropriate and should be made “[f]or the purpose of enabling the proper determination of any matter in question in any proceedings”: UCPR, r 23.8(1).

6. [34]

   In addition, given the strenuous opposition to these orders, I order that the applicant have their costs of the motion: Chahwan v Euphoric Pty Ltd t/as Clay & Michel [2009] NSWSC 805 at [43] (Brereton J, as his Honour then was); Marzol v Killen [2018] NSWSC 845 at [6] (Harrison J).

Orders

1. [35]

   For these reasons, I make the following orders:

   1. (1)

      Pursuant to rule 23.8 of the Uniform Civil Procedure Rules 2005 (NSW), the Cross-Defendant and its servants, agents, testing contractors, legal representatives and the expert witnesses it has retained in the proceedings are authorised to enter the property at Blacktown Leisure Centre at Stanhope Parkway and Sentry Drive in Stanhope Gardens (Property) and inspect the concrete slab and subgrade of the 16 tennis courts at the Property (Tennis Courts) in order to determine the present ground conditions and properties of the concrete on condition that:

   2. (2)

      The time for the mediation in accordance with the referral made by Order 12 of the orders made on 22 August 2025 be extended to 24 April 2026.

   3. (3)

      Leave be granted for the Cross-Defendant to rely upon the supplementary expert report of Mr Nicholas Joannides dated 14 March 2025 and served on 4 April 2025.

   4. (4)

      Order that the applicant have their costs of the motion.

   5. (5)

      List the matter for further directions on 13 March 2026 before the Technology and Construction List Judge.