1. Introduction and Legal Basis
A judicial inspection (also referred to as a "view") involves an out-of-court examination by the judicial officer of a location, property, or thing which is relevant to proceedings. In Western Australia, the power to conduct judicial inspections is conferred by Order 34 rule 7(1) of the Rules of the Supreme Court 1971 (WA), which provides:
"The judge before whom any cause or matter is heard or tried may inspect any property, place or thing concerning which a question arises in the cause or matter."
This provision establishes a broad discretionary power enabling judges to personally inspect locations or objects that are material to the determination of issues in a case. Similar provisions exist in other Australian jurisdictions, although the evidentiary status of observations made during inspections may vary.
2. Purpose and Principles
The common law has established that the purpose of a judicial inspection is not to gather evidence but rather to enable the Court "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" (Scott v The President, Councillors and Ratepayers of the Shire of Numurkah (1954) 91 CLR 300, 313, citing London General Omnibus Company Ltd v Lavell [1901] 1 Ch 135, 139).
A judicial inspection serves to complement and contextualise evidence formally adduced in court, rather than to supplant it. As confirmed in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 10] [2022] WASC 472 at [27], the process does not permit the Court to gather anything in the nature of extraneous evidence and apply it to the determination of the issues.
The primary benefits of inspections include:
(a) Enhanced comprehension of complex physical environments or objects; (b) Better understanding of spatial relationships and scale; (c) Contextualisation of diagrams, photographs, and other visual evidence; (d) Clarification of technical evidence relating to physical features; and (e) Improved capacity to assess witness testimony concerning locations or objects.
3. Discretionary Considerations
The decision to conduct a judicial inspection is discretionary and should be driven by whether the inspection will assist the Court in resolving issues of fact or understanding the evidence, and if the inspection will be of forensic utility (Shire of Numurkah (311-313)).
In SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 7] [2025] WASC 103, Lundberg J articulated that the central question is "the degree of utility and assistance the proposed orientation exercise would provide to the Court, in the context of the trial issues" (at [41]).
Factors that may influence the exercise of discretion include:
3.1 Relevance and Utility
(a) Whether the inspection would genuinely assist in understanding issues in dispute; (b) Whether the physical characteristics of the location or object are central to the proceedings; (c) Whether there are particular features that cannot be adequately conveyed through other evidence; (d) The complexity and scale of the subject matter; and (e) Whether the benefits of inspection outweigh any potential disadvantages.
3.2 Case Management Considerations
(a) The timing of the application for inspection relative to trial; (b) The impact on pre-trial preparation and trial schedules; (c) The resources required (including time, costs, and logistical arrangements); (d) The proximity of the location to the Court; (e) The opportunity cost of conducting the inspection; and (f) Whether any prejudice might arise to parties from the inspection process.
4. Procedural Aspects
4.1 Timing of Inspections
An inspection may be ordered at different stages of proceedings:
(a) Pre-trial - To assist the Court in comprehending the issues before formal evidence is led; (b) During trial - After sufficient context has been provided through opening addresses or evidence; or (c) Post-evidence - After evidence has been led, to clarify understanding of particular features.
In SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 7] [2025] WASC 103, Lundberg J preferred to conduct the inspection during trial "once the parties have sufficiently opened their cases to put the physical aspects of the Project into context for the Court" (at [61]).
4.2 Attendance and Conduct
Typically, the following persons attend an inspection:
(a) The presiding judicial officer; (b) Representatives of the parties (usually including at least one legal representative from each side); (c) Court staff (such as the judicial officer's associate); and (d) Any necessary support personnel (such as security or technical staff).
Best practice dictates that:
(a) No evidence should be taken during the inspection; (b) Parties should not make submissions to the Court during the inspection; (c) Any necessary factual explanations should be limited to identifying locations or objects being viewed; (d) All parties should have equal opportunity to contribute to the inspection itinerary; and (e) A record should be kept of the inspection, including locations visited and any questions raised by the Court.
4.3 Practical Arrangements
Careful consideration should be given to:
(a) Transport arrangements and their suitability; (b) Duration of the inspection; (c) Safety and accessibility considerations; (d) Weather conditions for outdoor inspections; (e) The need for specialized equipment or clothing; and (f) Efficient structuring of the itinerary.
In SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 7] [2025] WASC 103, the Court specifically addressed concerns related to the type of aircraft to be used and ensured that representatives of both parties would be present throughout the inspection.
5. Costs
There are two distinct cost considerations:
5.1 Costs of the Inspection
These typically include transport, accommodation (if necessary), and any other logistical expenses. The Court may:
(a) Order one party (typically the applicant) to bear these costs; (b) Order costs to be shared between the parties; or (c) Reserve the question of costs for later determination.
5.2 Costs of the Application
The costs of an application for judicial inspection may be:
(a) Costs in the cause; (b) Costs of the application to the successful party; or (c) Reserved for later determination.
In SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 7] [2025] WASC 103, Lundberg J ordered that "costs should be in the cause... [as] the costs of the application should properly be seen as part of the overall costs of the litigation process" (at [64]).
6. Evidentiary Status
The Western Australian position follows the common law approach that a judicial inspection does not constitute evidence in itself. Rather, it enables the Court to better understand and apply the evidence formally adduced.
Judicial officers should be cautious not to base findings on observations made during an inspection that go beyond the evidence formally presented in court. Any significant observations made during an inspection that might influence findings should be raised with the parties to provide an opportunity for comment or further evidence.
7. Conclusion
Judicial inspections can be valuable tools for enhancing a court's understanding of complex physical environments or objects. However, they should be approached with careful consideration of their utility, practicality, and limitations. The decision to conduct an inspection should be guided by a balanced assessment of the potential benefits against the resource implications and case management considerations.
When properly conducted, inspections serve to complement rather than replace formal evidence, allowing for more informed and accurate adjudication of disputes involving physical locations or objects.