FEATURE ARTICLE -
Advocacy, Issue 102: December 2025
In Thomas v State of Queensland [2025] QSC 242 (29 August 2025), Freeburn J adjudicated an application made pursuant to r 250 of the Uniform Civil Procedure Rules 1999 (Qld) whereby a plaintiff in a person injury action was a nurse who alleged she injured her back while employed at the defendant employer’s hospital in the course of adjusting a Mayo lifting stand. The plaintiff sought inspection of a section of the hospital, where such stands were located, despite being unable to identify the particular stand – which were of various types – or the specific defect. His Honour refused such application:
[19] The maintenance of the [Mayo] stand is said to be at the forefront of the issues.1 However, no particular defect in the stand is alleged and no particular lapse in maintenance is alleged.2
[20] The particular Mayo stand is not identified by Ms Thomas’ pleading or her lawyers. Not even the brand or type of Mayo stand is identified. What seems to be proposed by the inspection is that, if Ms Thomas is shown the various Mayo stands that reside on level four of the RBWH then she will be able to identify the type of Mayo stand that she was using at the time of her injury.3 And then, having identified the type of Mayo stand used, the expert will examine it for its suitability and possible defects or perhaps aspects of that Mayo stand that need maintenance. Ms Thomas’ lawyers will then, it is submitted, obtain the expert’s opinion on “the suitability and ergonomics of such stands” [emphasis added].4 Then, once the expert evidence is obtained, assuming it assists Ms Thomas’ case, “there may be a need to amend the pleadings to reflect the findings of the expert”.5
[21] There is something incredible and surprising about the idea that, even now, Ms Thomas and her lawyers have not identified the type of Mayo stand involved, let alone the unsafe aspect of the Mayo stand or the lapse in maintenance said to be at the core of Ms Thomas’ case. After all, it is now more than five years after the incident, and nearly 18 months after the litigation was commenced and pleaded.
[22] There are at least three dimensions to the problem. The first is that when rule 149(1) of the UCPR specifies that a pleading is to contain all of the material facts on which a party relies, the underlying requirement is that the pleading specify facts, not mere assertions that the party hopes may be later shown to be factual. The second is that one of the hallmarks of the legal profession is that, as officers of the court, lawyers do not make unsubstantiated allegations.6 That ethical rule is reinforced in a number of ways.7 The third is that under rule 5(3) of the UCPR the parties impliedly undertake to proceed in an expeditious way. That purpose can hardly be achieved by filing and serving a pleading which does not reflect the facts but instead represents a rather rudimentary estimation of what that party hopes to prove to be the facts at some time in the future.
[23] In the light of that vague and broad case, which seems to anticipate substantive amendments, it is necessary to consider the court’s power under rule 250 of the UCPR.
Rule 250
[24] Rule 250(1) of the UCPR is as follows:
(1)The court may make an order for the inspection, detention, custody or preservation of property if—
(a) the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or
(b) inspection of the property is necessary for deciding an issue in a proceeding.
[25] As can be seen, rule 250(1) specifies that the discretion to order an inspection arises if either of the two preconditions are fulfilled. Those preconditions are that (1) either the property to be inspected is property about which a question which may arise, or (2) the inspection is necessary for deciding an issue in the proceeding.
[26] The preconditions to the exercise of the discretion are the start of the problems for the plaintiff’s application under rule 250.
Preconditions to the Exercise of the Discretion
[27] Rule 250(1) enables the court to make an order permitting the inspection of ‘property’.8 Ms Thomas does not seek to inspect any specific Mayo stand. Instead, she seeks to enter and inspect the ‘premises’ at level four of the RBWH. She seeks to enter and inspect that level of the RBWH for the purpose of:
(a) inspecting, photographing, and measuring a Mayo stand of the same or similar model to the stand involved in the incident on 26 June 2020; and
(b) observing and documenting the typical method of height adjustment and associated force requirements relevant to the use of the Mayo stand.
[28] No issue in the proceeding makes level four of the RBWH relevant. The features or condition of that floor of the hospital are not raised in the pleadings. The only relevance of level four of the RBWH is that it is assumed that there may be, located somewhere on that floor, a Mayo stand that is the same as, or similar to, the Mayo stand involved in the incident on 26 June 2020.
[29] And so, the oddity is that Ms Thomas seeks an order to inspect level four of the RBWH when that part of the RBWH:
(a) is not the subject of the proceeding; and
(b) is not property about which a question may arise in the proceeding.
[30] The question, then, is whether the proposed inspection of level four is necessary for deciding an issue in this proceeding. It is difficult to see how it can be concluded that such an inspection of level four is necessary. The inspection may or may not identify a Mayo stand that is the same or similar to the stand involved in the incident on 26 June 2020.
[31] The evidence is that, as at June 2020, there would have been in excess of 20 Mayo stands available for use on level four. There were three main types of Mayo stands. They are regularly moved throughout the operating suites. Some surgeries require multiple Mayo stands. Some require none.
[32] There are currently 26 different ‘manual’ Mayo stands in use with, now, four different models.9
[33] One could understand the application under rule 250(1) if Ms Thomas sought access to level four of the RBWH in order to inspect the particular Mayo stand involved in the incident in June 2020.10 Similarly, one could understand the application for access to level four so that Ms Thomas and the expert could inspect the particular type or model of Mayo stand involved in the incident.
[34] However, what is proposed here is entry and inspection of level four of the hospital in order to inspect, photograph, measure and test the height adjustment of some as yet unidentified Mayo stand, or stands, that will presumably be identified by Ms Thomas as the same Mayo stand or a similar Mayo stand.
[35] Rule 250 cannot be used by a plaintiff to, in effect, fish for a case.11
[36] The discretion under rule 250 has been described as a wide discretion.12 However, for that wide discretion to be engaged, the court must be able to conclude that this inspection is necessary for deciding an issue in the proceeding. That is impossible when:
(a) the claim made by the plaintiff is clouded in so much vague and broad language; and
(b) the proposed inspection is unduly wide and lacking in any focus.13
[37] I am not satisfied that the preconditions to the exercise of the discretion have been made out.
The Discretionary Factors
[38] Even assuming the preconditions to the discretion were satisfied, there are a number of reasons why the discretion ought not be exercised here.
[39] First, what is proposed is an inspection of the whole floor of an operating hospital virtually without limitation. The inspection proposed would permit Ms Thomas and her expert to inspect anywhere on the floor, even surgical theatres, whether operating at the time or not. Logically one can assume some tailoring of the proposed order, but none appears to be proposed by Ms Thomas, beyond that a time for the inspection is to be agreed.
[40] Second, even agreeing the time for the inspection may be problematic. Surgeries are undertaken day and night during the week, and after hours for emergencies.
[41] Third, there is no limit on the proposed physical limits or the duration of the inspection. The inspection seems to be sought without regard to the fact that this is an operating hospital attending to the care of patients. At the least, such an inspection would need to be supervised by a Nurse Unit Manager or equivalent and that person would need to have power to direct the inspection. Nothing of that kind has been proposed.
[42] Fourth, there is no evidence that Ms Thomas and her lawyers have investigated alternatives to an inspection of an operating hospital. There is no suggestion that the manufacturers or suppliers of Mayo stands have been approached. Nor is there evidence of considering inspection of other hospital facilities without emergency surgeries.
[43] Fifth, this application for an inspection comes at a very late stage in the proceeding — and even after the defendant sought orders dispending with the request for trial. The defendant made its position clear regarding the proposed inspection by the end of March 2025. No application was made until the defendant forced Ms Thomas’ hand by bringing its own application at the end of July 2025.
[44] Sixth, there is the potential for even more delays. The claim has been pleaded seemingly without any evidence establishing the type and model of Mayo stand said to be unsafe or the proper detail of the negligence alleged. Ms Thomas’ proposal is that she inspect, obtain a report, and then amend. It is too late for such an excursion.
The Utility of the Proposed Inspection
[45] Seventh, there is the issue of whether there is some utility in the proposed expert report in that it will promote the efficient and economical conduct of the litigation.14 In Evans Deakin Pty Ltd v Orekinetics Pty Ltd Chesterman J said this:
[19]…The discretion conferred by the rule is a wide one. It should not be limited by the superimposition of conditions not found in the rule itself. The order should not be made unless, on the material before the court, it is proper to do so. It must be remembered that the rule exists to promote the efficient and economical conduct of litigation. If the result of an inspection would tend to bring about such a result the discretion should, I apprehend, ordinarily be exercised in favour of inspection subject to there being some counter-vailing circumstance. To say that there must be formidable grounds for alleging an infringement before inspection will be ordered is to say only that there must be sufficient grounds for making the order. I do not think there is any benefit in using any more particular or pejorative adjective. It is no doubt true that an order for inspection of property will not be made unless there is some evidence that the plaintiff’s rights are being infringed and that an inspection will facilitate proof of the claim. This, I expect, is all that is meant by saying there must be a substantial and genuine dispute. There are, of course, degrees of suspicion as well as of proof. It is pointless to resort to semantic differences and refuse inspection where there is ‘mere suspicion’ of an infringement, but allow it where there is ‘strong suspicion’ or ‘proof’ of it, even if the proof be weak. The discretion conferred by UCPR 250 should be addressed by considering whether in all the circumstances of a particular case the plaintiff has shown sufficient grounds for intruding on the defendant’s property.15 [emphasis added]
[46] The defendant submits that any report which is the product of the proposed inspection of level four of the RBWH would be inadmissible. I am not sure that can be stated with any certainty. On the present state of the pleadings, it is impossible for the court to be satisfied that any report produced would be relevant or not. The allegations are so broad and vague as to make it impossible to tell whether such a report would be relevant or not.
[47] A case which bears some similarities with this case is Aged & Disabled Persons Hostel & Welfare Association v Beenleigh Bowls & Recreation Club Inc.16 In that case the allegation of the plaintiff, the owner of the premises, was that a coffee machine installed in a bowls club had caused a fire which damaged the bowls club. There were a number of reports from four experts. A central question in the case was “how did it come about that combustible material was in the electrical compartment of the coffee machine?”. There were at least two possibilities: the coffee machine was manufactured that way; or post-manufacture, non-compliant parts were introduced presumably during maintenance so that the machine did not comply with the relevant safety standards. In that context, the plaintiff sought to inspect and carry out destructive testing of a second coffee machine of the same type as the coffee machine installed in the bowls club.
[48] The parties accepted that the second coffee machine is not “the subject of a proceeding”, but that it was “property about which a question may arise in [the] proceeding”. And so, the preconditions to the exercise of the discretion under rule 250 were satisfied.
[49] However, in exercising his discretion under rule 250, Davis J pointed out the lack of utility in the proposed tests. His Honour pointed out that, even though the second coffee machine was the same type as the coffee machine at destroyed in the fire, the second coffee machine, like the coffee machine destroyed in the fire, had undergone maintenance and alteration. That raised, in respect of the second coffee machine, exactly the same enquiries as were necessary in relation to the coffee machine destroyed in the fire, namely: what maintenance was done and were genuine parts used? Thus, his Honour concluded:
[53] The testing of the second coffee machine will raise a new controversy, namely the maintenance history of that machine and whether that machine is practically in its immediate post-manufacture state.
[54] Therefore, the making of the order sought is likely to widen the dispute between the parties and lead to further expense in circumstances where it cannot be said to be likely that probative evidence relevant to the case will be obtained. The destructive testing of the second coffee machine does not promote the just and expeditious resolution of the issues in the case.
[50] Here, though, the problem is slightly different and perhaps more acute. The proposal is to inspect level four of the RBWH in order to assess whether there are Mayo stands that are of the same type as the one involved in the incident located there. And then the expert is to make an assessment of that stand. That is all in the context of vague and rather general allegations of negligence.
[51] There is no demonstrated utility in the inspection. The best that can be said is that, if the inspection goes well Ms Thomas may find some evidence that assists her case. To allow the inspection would be to assist a fishing expedition.
[52] For those reasons, even if there were no difficulty with the preconditions to the exercise of the discretion, I would refuse the application on the basis of those discretionary factors.
A link to the full case is here.
1 Plaintiff’s submissions at [22].
2 The assumption is that maintenance was required. That may or may not be the case.
3 Plaintiff’s submissions at [10].
4 Plaintiff’s submissions at [8].
5 Plaintiff’s submissions at [8]. This submission illustrates that the plaintiff’s case has an element of fishing for a case rather than a properly pleaded case needing some detail.
6 See, for example, the discussion by Dal Pont, Lawyer Discipline (2020) LexisNexis at [14.34]. Note that I am not suggesting that a party must have evidence that supports each pleaded obligation. However, the requirement that allegations be substantiated does require evidence or some instructions that mean that there is a proper basis for the allegation.
7 See, for example, r 63 of the Barristers’ Conduct Rules 2018.
8 Property is defined by sch 1 of the Acts Interpretation Act 1954.
9 In June 2020 there were three types of Mayo stands in use on level four.
10 Of course, both parties appreciate that the identification of the stand is near impossible after all this time.
11 Marconi’s Wireless Telegraph Co Ltd v Commonwealth [No 1] (1912) 15 CLR 685.
12 Civil Procedure Queensland at [r 250.10]; see also Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] 2 Qd R 345 at [19].
13 The application seeks an inspection of level four for the purposes of inspecting, observing and documenting.
14 The words of rule 5(3) of the UCPR could also be used here — that is, promote the “expeditious” resolution of the litigation.
15 [2002] 2 Qd R 345 at [19]. This passage was quoted with approval by Davis J in Aged & Disabled Persons Hostel & Welfare Association v Beenleigh Bowls & Recreation Club Inc [2022] QSC 71 at [31] — discussed below.
16 [2022] QSC 71.
