ACCC v Jayco Corp - Application Dismissed View Permitted

Original Word Document (102.1 KB) Federal Court of Australia

Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2026] FCA 494

| File number: | VID 750 of 2025 |

| Judgment of: | BENNETT J |

| Date of judgment: | 22 April 2026 |

| Catchwords: | PRACTICE AND PROCEDURE – application for advance ruling under s 192A of the Evidence Act 1995 (Cth) – where certain parts of expert evidence objected to on the basis of relevance – where evidence is largely complete – where there is a dispute as to the meaning of certain aspects of the evidence and pleadings – full ventilation of the facts and issues required – advance ruling inappropriate – discretionary exclusion under s 135(c) of the Act inappropriate – application dismissed

PRACTICE AND PROCEDURE – application for a view under r 14.03 of the Federal Court Rules (Cth) – view in the nature of an aid to understand the kinds of features referred to in the evidence – whether evidence should be adduced at the view – view permitted, but no evidence to be received in the course of the view |

| Legislation: | Evidence Act 1995 (Cth) ss 53, 54, 55(1), 56(1), 135(c), 192A

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Federal Court Rules 2011 (Cth) r 14.03 |

| Cases cited: | ACCC v Allphones Retail Pty Ltd (No 3) [2009] FCA 1075; 259 ALR 541

Australian Securities and Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324

Davaria Pty Limited v 7-Eleven Stores Pty Ltd (No 9) [2021] FCA 473

Max Build Pty Ltd v The Owners – Strata Plan No 54026 [2025] NSWSC 533

The Owners – Strata Plan No 90189 v Parkview Constructions Pty Ltd [2022] NSWSC 1382 |

| Division: | General Division |

| Registry: | Victoria |

| National Practice Area: | Commercial and Corporations |

| Sub-area: | Regulator and Consumer Protection |

| Number of paragraphs: | 44 |

| Date of hearing: | 21 April 2026 |

| Counsel for the Applicant: | T Spencer Bruce SC and A Belyea-Tate |

| Solicitor for the Applicant: | Baker McKenzie |

| Counsel for the Respondent: | P Bick KC and C Lum |

| Solicitor for the Respondent: | Rigby Cooke Lawyers |

ORDERS

| VID 750 of 2025 |

| BETWEEN: | AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant | |
| AND: | JAYCO CORPORATION PTY LTD

Respondent | |

| order made by: | BENNETT J |
| DATE OF ORDER: | 22 April 2026 |
THE COURT ORDERS THAT:

1. The interlocutory application dated 18 March 2026 be dismissed.

2. Pursuant to r 14.03 of the Federal Court Rules 2011 (Cth) and/or s 53(1) of the Evidence Act 1995 (Cth) a view is to be held at the trial of the proceeding (View), subject to the following directions:

(a) The View is to take place at the Hellenic Museum Car Park, 280 William Street, Melbourne on or about 11 May 2026, or as otherwise directed in the course of the hearing of this proceeding.

(b) Any statements made in the course of the View will be in the nature of submission only, not evidence.

(c) Any features or aspects of the vehicles to be displayed at the View will be identified to the opposing party prior to the View, by reference to an agreed agenda.

(d) Both parties will have the opportunity to make submissions at the View, subject to the overall management of the matter by the Court.

1. Either party may seek an order as to costs of the interlocutory application dated 18 March 2026 by:

(a) Filing submissions identifying the orders sought and the reasons for them within 7 days of the date of this order, such submissions to be limited to two pages.

(b) If submissions under order 3(a) are filed, responsive submissions may be filed within two days, limited to two pages.

(c) If no submissions are received in accordance with the orders 3(a)-(b) then the costs of the application will be reserved.

1. The determination of any application made in accordance with order 3 will be carried out without a further hearing.

2. The parties are directed to confer with a view to agreeing a timetable for the filing of any responsive evidence by the Applicant in relation to the Suitability Evidence the subject of this application.

3. If agreement cannot be reached in accordance with order 5, the parties are to notify the Chambers of Justice Bennett by 4.00 pm on 1 May 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BENNETT J:

1 On 18 March 2026, the Australian Competition and Consumer Commission (ACCC or the Applicant) applied under s 192A of the Evidence Act 1995 (Cth) (the Act) for an advance ruling that evidence sought to be adduced by Jayco Corporation Pty Ltd (Jayco or the Respondent) is inadmissible or ought to be excluded. The Respondent also seeks orders for a view of certain of its recreational vehicles (RVs). Both applications concern case management principles under s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth).

2 The proceeding broadly concerns allegations made by the Applicant that the Respondent engaged in misleading or deceptive conduct in breach of ss 18(1), 29(1)(a), 29(1)(g) and 33 of the Australian Consumer Law (the ACL) by making certain representations in relation to its Outback, Cross Trak and All Terrain model RVs. The Outback RVs are standard model RVs that have been modified with an “Outback upgrade.” The representations that are said to have been misleading or deceptive are the “ Design Representation s ” and the “ All Terrain R epresentation ”.

3 The Applicant alleges that the Design Representations were words, statements and images in promotional material that had the effect of representing that the RVs were designed for use off-road and/or on four-wheel drive (4WD) only tracks. These representations are said to be misleading or deceptive because, as described in the service and warranty terms and conditions (Warranty), the RVs were not designed for use off-road or on 4WD only tracks, including because they were not designed for use on terrain with hard impacts, heavy landings, tight undulating tracks or roads, rutted roads or water crossings at or above body floor level.

4 The All Terrain Representation concerned a particular type of Jayco RV referred to as the “All Terrain” vehicle. The All Terrain Representation is that, by using the word “All Terrain” in advertising to consumers, Jayco represented that the RV was designed for use on all types of terrain, including 4WD only tracks. This is said to be false and misleading because, as described in the Warranty, the All Terrain was not designed for use on terrain with hard impacts or heavy landings, rutted roads, tight undulating tracks or roads or 4WD only tracks and therefore it was not designed for use on all types of terrain.

5 The Applicant alleges that the misrepresentations caused harm by depriving consumers of the opportunity to make purchasing decisions based on the design capabilities of the RVs, which may have resulted in consumers purchasing alternative products, including products suitable for their needs.

6 The Respondent denies that the representations were conveyed, and argues that the promotional material overwhelmingly depicts the relevant [RVs] on terrain consistent with their design capabilities. It asserts that the RVs are designed to be suitable for use in some off-road settings and their use in such settings is covered by Jayco’s Warranty. It asserts that its RVs are robust, Australian-made products capable of withstanding a range of environments. Moreover, it argues that the representations made in the promotional material were accurate, because the use actually represented was consistent with the “design capabilities” of the RVs in question.

7 The Respondent contends in its concise statement in response that the Warranty stated that:

(1) the Outback range of RVs had “added strength and ground clearance for limited unsealed road usage”;

(2) “Jayco’s range of RVs for limited adventuring off-road” (which included the CrossTrak and All Terrain models) “are designed for travel on gravel or graded unsealed roads with minor undulations” but “are not suitable for tight undulating tracks or roads”.

8 The Respondent contends further that the Warranty stated it did not cover damage resulting from use of the RVs “on roads and tracks unsuitable for towing a trailer or RV”, and that the RVs were “not designed for hard impact or heavy landings, rutted roads and tracks or for use on four wheel drive only tracks and should not be towed on these types of roads/tracks”.

9 The proceeding is listed for trial commencing on 11 May 2026 and most of the evidence that the parties propose to rely upon in the proceeding has been filed.

10 The present application for an advance ruling concerns the evidence about the following question addressed in two expert reports filed by the Respondent (of Linda Hitch dated 27 February 2026 (Hitch Report) at [42]-[44] and of Simon Christie dated 27 February 2026 (Christie Report) at [9.1]-[9.14]) (Suitability Evidence):

Based on your training, study and/or experience, and by reference to the dimensions and other specifications of the Relevant Jayco RVs, to what extent is each of the Relevant Jayco RVs suitable or not suitable to be taken “off road” (and in what ways)? Over what types of terrain can they be towed, assuming they are towed by an appropriate vehicle?

11 The basis of the Applicant’s application is that the Suitability Evidence is inadmissible because it is not relevant to a fact in issue. In the alternative, the Applicant submits that the probative value of the Suitability Evidence is outweighed by the danger that the evidence might cause or result in undue waste of time, on the basis of the time and cost of addressing the evidence in an expert conferral, producing a joint report about it, and dealing with it at trial.

12 In this application, the ACCC relies upon the affidavit of Ms Helen Joyce affirmed on 18 March 2026.

13 Separately, the Respondent has applied under r 14.03 of the Federal Court Rules 2011 (Cth) (the Rules) to have the Court conduct a view. In this application, the Respondent relies upon the affidavit of Ms Guerra-Stolfa affirmed on 27 March 2026. Each application is considered separately, below.

Advance ruling

Principles

14 Section 192A of the Act states:

192A Advance rulings and findings

Where a question arises in any proceedings, being a question about:

(a) the admissibility or use of evidence proposed to be adduced; or

(b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or

(c) the giving of leave, permission or direction under section 192;

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

15 Whether to make an advance ruling under s 192A is a matter of discretion, and is generally considered to be appropriate where “a considerable amount of time, effort and money might be saved” (Australian Securities and Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324 (Whitebox) at 22, quoting ACCC v Allphones Retail Pty Ltd (No 3) [2009] FCA 1075; 259 ALR 541 at [12]). It has been recognised that in some circumstances, where a proceeding is in its infancy, an advance ruling might not be appropriate (Whitebox at [24]). Given the proximity of the trial, this is not such a case.

16 The Applicant argues the Suitability Evidence is not relevant within the meaning of s 55(1) of the Act, and is therefore inadmissible under s 56(2). It is argued in the alternative that if the Suitability Evidence is relevant, it is of limited probative value and that its use is outweighed by the undue waste of time involved in responding to it, so that the Court should exercise its discretion under s 135(c) of the Act to exclude the evidence. Section 135 provides:

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.

17 It is said, and I accept, that the application of s 135(c) involves a three-step process:

(1) first, assessing the probative value of the evidence;

(2) second, assessing the danger that the evidence might cause or result in an undue waste of time; and

(3) third, undertaking a balancing exercise to determine whether the probative value of the evidence is substantially outweighed by that danger.

18 The evidence of Ms Joyce is that between $42,500 and $50,500 in expert and legal fees would be expended responding to the Suitability Evidence, and that dealing with the Suitability Evidence at trial will occupy one half day to a full day. These matters are said to be disproportionate to the marginal utility of the evidence to the real issues in the proceeding.

The parties’ submissions

19 It is uncontroversial that the metes and bounds of the facts in issue will be determined by the parties’ pleadings, being, in this case, the amended concise statement and amended concise statement in response. That form of pleading is less detailed and granular than might be the case if the matter proceeded by way of a statement of claim and defence. It follows that it is more difficult to draw fine distinctions.

20 The Applicant asserts that the case concerns whether or not the RVs were designed for use on certain terrain, and that therefore evidence from independent experts as to what the RVs are suitable for cannot rationally affect the assessment of whether the representations alleged are false or misleading. Put another way, it is said that the expert evidence cannot rationally affect an assessment of whether the RVs were designed for certain use. The ACCC asserts that the Warranty describes the permissible use of the RVs in off-road settings and that the universe of circumstances in which it can be used off-road are therefore coextensive with what is said in the Warranty. It asserts that while there will be debate about what is meant by “off-road” that will not be relevant to what the RVs were designed to do.

21 The Applicant asserts that an advance ruling is necessary and appropriate because all the material necessary to determine the application is already before me, and there is no relevant factual uncertainty. It is said to be simply a case of determining whether the Suitability Evidence can rationally affect the probability of the existence of a fact in issue.

22 The Applicant relies upon the existence of an Agreed Statement of Facts, which makes uncontroversial a number of propositions, including that:

(1) Outback model RVs are designed for easier towing over minor unsealed roads and to enable limited use on unsealed roads;

(2) The Cross Trak model is designed for travel on gravel or graded unsealed roads with minor undulations;

(3) The All Terrain model was designed for travel on gravel or graded unsealed roads with minor undulations;

(4) Jayco has offered a Warranty, being a two year manufacturing warranty plus a five year structural warranty on all RVs sold brand new.

(5) The Warranty includes the following statements:

(a) Jayco RVs are not designed for hard impact or heavy landings, rutted roads and tracks or for use on four-wheel drive only tracks and should not be towed on these types of roads/tracks;

(b) Under no circumstances should any Jayco RV be exposed to water crossings at or above body floor level;

(c) Jayco’s Outback range of RVs have been designed and constructed … for limited use on unsealed roads. An Outback upgrade refers to travels on gravel or graded unsealed roads;

(d) Jayco’s range of RVs for limited adventuring off-road [the Cross Trak and All Terrain] are designed for travel on gravel or graded unsealed roads with minor undulations. These RV models are designed and constructed … for limited off-road use however they are not suitable for tight undulating tracks or roads.

23 The Applicant argues that the best evidence of what the RVs are designed for is what is said in the Warranty. Accordingly, even if the Suitability Evidence is found to be relevant, its probative value is minimal.

24 I make the following observations regarding the matters put in issue by the amended concise response:

(1) Jayco denies that the promotional material upon which the ACCC relies conveys the Design Representations and All Terrain Representation in the terms alleged. It asserts that the promotional material overwhelmingly depicts the relevant recreational vehicles on terrain consistent with their design capabilities. Resolving this issue will involve consideration of what those design capabilities are in operation.

(2) Jayco states that the RVs are designed to be suitable for use in some off-road settings and their use in such settings is covered by the Warranty. Once again, resolving this issue may involve analysis of the way in which the Jayco RVs can be safely used.

(3) Jayco asserts that each of the models specified had “design features” that enabled the RV to be towed on surfaces beyond sealed bitumen roads. Those features were said to include:

(a) higher ground clearance;

(b) enhanced suspension;

(c) protective side checker plates; and

(d) more robust tyres.

It further states that the All Terrain model had features permitting increased “off grid” use, including a larger battery capacity. In this way Jayco has put into issue the way in which the RVs operate as part of its response to the alleged misrepresentations. While those matters may ultimately not be found to be successful, the parameters of the case are informed by the way in which Jayco has framed its amended concise response.

(4) Jayco asserts that the Warranty in place in the relevant period stated that the Outback range of RVs had “added strength and ground clearance for limited unsealed road usage” and that “Jayco’s range of RVs for limited adventuring off-road … are designed for travel on gravel or graded unsealed roads with minor undulations” but “are not suitable for tight undulating tracks or roads”. In this respect, it may be that the way in which the design operates in particular environments could be relevant to issues which Jayco seeks to deploy in its defence. Those matters may, upon full ventilation, end up being only slightly relevant or entirely irrelevant, but it is not yet possible to conclude that is the case.

(5) Jayco argues that it has received few complaints or warranty claims concerning the suitability of the RVs for off-road use. The ACCC argues with some force that this is a matter which goes only to penalty, and cannot be relevant to liability. However, Jayco asserts that it may have some relevance at this stage.

25 Moreover, by its notice of dispute, Jayco disputes the truth of the proposition that:

The matters set out in paragraphs 1, 2 and 3 [of the Notice to Admit] are due to the design and construction limitations on the RVs whereby elevated clearance from the ground, specialist suspension and strengthening of the body of the RV through the use of checker plates are only capable of allowing the Outback model RVs to be used on gravel or graded unsealed roads, and the CrossTrak and All Terrain ranges of RV to be used on gravel or graded unsealed roads with minor undulations.

26 Jayco asserts that it has not agreed, in the pleadings or in the evidence, that the terrains on which the Relevant Jayco RVs were designed to be used are comprehensively described in the provisions of the Warranty. It argues that the challenged evidence is relevant in at least the following respects:

(1) it supports Jayco’s contention that “the relevant RVs are designed to be suitable for use in some off-road settings”;

(2) it meets the ACCC’s contention that Jayco “engaged in conduct that was liable to mislead the public as to the characteristics of the RVs and suitability for their purpose in being used off-road and/or on 4WD only tracks … or used on all types of terrain”;

(3) it independently corroborates and adds detail to Jayco’s lay evidence regarding the terrains for which the RVs were designed, by establishing that the design features of the RVs make them suitable for particular terrains.

27 Jayco argues that the ACCC has filed a reply expert report responding to questions about suitability of various non-Jayco RVs for towing on particular types of terrain, and discussing the design features of other brands’ vehicles. Jayco also relies in addition on a joint report filed by the experts, which is said to relate to issues similar to the issues objected to by the Applicant. It is apparent that the questions answered in the joint expert report do not overlap with the question to which the Suitability Evidence relates. However, it appears that some of the expert evidence not objected to by the ACCC travels into areas concerning whether RVs in general are suitable for particular terrain. So far as I presently understand it, that evidence is not confined to non-Jayco RVs.

28 Jayco argues that ruling on the relevance of the Suitability Evidence in isolation ahead of trial would involve a real danger of error, because relevance is “a concept that relates to the interrelationship of all the material that is before the Court” (Davaria Pty Limited v 7-Eleven Stores Pty Ltd (No 9) [2021] FCA 473 at 5) and the probative value of the Suitability Evidence will depend in part on the other evidence to be adduced at trial. Accordingly, it submits that it is premature and inappropriate for the Court to make an advance ruling under s 192A of the Act.

Consideration

29 The difficulties in determining the relevance of evidence prior to trial have been recognised in other cases. This difficulty is exacerbated when the relevance is dependent on the way in which other factual matters before the Court ought to be understood. So much was explained by Rees J in The Owners – Strata Plan No 90189 v Parkview Constructions Pty Ltd [2022] NSWSC 1382 (Strata Plan No 90189) at [43] as follows:

Particular difficulties may be encountered where the objection to the admissibility of the evidence is on the grounds of relevance. As Kenny J observed in Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 …, the Court may refuse to make such a ruling where the Court cannot, in advance of trial, determine whether the evidence is inadmissible as irrelevant as the position may be nuanced and an advanced ruling may result in an error and consequent unfairness; “Much will depend on the way the case unfolds at trial”: at [23]-[29], [41].

30 In Max Build Pty Ltd v The Owners – Strata Plan No 54026 [2025] NSWSC 533 (Rees J) it was said (at [4], citing Strata Plan No 90189 at [42]) that an advance ruling may be appropriate where:

(1) it is apparent that there is a problem with the admissibility of the evidence in question;

(2) it is inevitable that a ruling will need to be made in respect of that evidence, such that the Court’s time will not be wasted in doing so;

(3) the material necessary to make a ruling has been or can then be ascertained; and

(4) such a ruling will assist with the efficient conduct of the final hearing, including by giving the party whose evidence is the subject of an adverse advance ruling the opportunity to marshal evidence in proper form, avoiding the need to call witnesses or to require other witnesses for cross-examination, or where there is an objection to the trial judge considering the evidentiary material.

31 I accept that there is force in the argument by the Applicant, and it may ultimately be successful in its submissions as to the proper construction of the pleadings, and the way that the evidence is to be understood. However, I have decided to refuse to make the advance ruling that has been sought in light of the way that the matter has been put to date. The principal reasons for that conclusion are that:

(1) The Applicant urges the Court to make the advance ruling based on its analysis of the pleadings, the Statement of Agreed Facts (including, most pertinently, the terms of the Warranty), and the key evidence to be adduced by the parties. The evidence is not yet read, ventilated or tested. It clearly will need to be read together, and there are nuances which may not have been fully ventilated at this stage. It is difficult to reach conclusions of any kind about the effect of evidence before it has been fully read and explored. That difficulty must tell against the advance exclusion of evidence which one party sees as important to its defence of serious allegations of contravention.

(2) There may be a relationship between design and suitability. While it may be that in this case that relationship is arid, or irrelevant, when the evidence is fully explored, it is not appropriate to foreclose the possibility of that relationship being relevant to the overall analysis.

(3) It appears that some of the expert evidence which the ACCC either relies upon, or does not object to, is concerned with the suitability of some RVs to different off-road environments. While not specifically directed to the Jayco RVs in issue, it may, upon full examination, encompass the Jayco RVs in a manner which overlaps with the Suitability Evidence.

32 Finally, there is the issue of the relief sought by the ACCC. The Applicant seeks a declaration that Jayco has breached s 33 of the ACL by making the Design Representation and the All Terrain Representation. Section 33 relevantly states that: “ A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the … suitability for their purpose…of any goods ”. Jayco seeks to meet that claim by adducing evidence of the suitability of the Jayco RVs to perform in a manner consistent with the representations as it says they should be understood. The ACCC argues that its construction of “suitability” in this case is narrower than appears on the face of the amended concise statement, and is limited to design. However, the allegations made against Jayco are serious and, if proven, will have serious consequences. It ought to be permitted to meet the case that is raised on the pleading, and not be prevented from doing so based on submissions from the bar table about the way in which the case will be confined. Moreover, as noted above, the ACCC has elected to proceed by way of the less granular concise statement method, and is fixed with the consequences of that decision. One consequence is that the parameters of the proceeding are outlined with less clarity than might be the case with a statement of claim. It is more difficult in that context to draw the kind of bright line which the Applicant seeks.

33 Overall the Applicant submits that its case is a narrow and confined one, and that the evidence which it challenges is irrelevant. As noted above, that submission may ultimately be vindicated, but the combination of factors identified above make it inappropriate to reach such a concluded position ahead of trial. Accordingly, it is not appropriate to make an advance ruling under s 192A of the Act on the basis of relevance.

34 For the same reason, it is not appropriate to exclude the evidence on the basis that it involves an undue waste of time to grapple with it. The conclusions I have reached about the evidence are that it may be relevant, depending upon the way in which the other evidence and submissions are ultimately understood. While I applaud the Applicant’s concern for public resources and Court time, those factors are not sufficient to trigger the exclusion of the evidence. In particular:

(1) The maximum cost estimate of $50,500 is not likely to be significant in the overall costs of this proceeding (or indeed, of this application) and will largely be recovered if the ACCC are successful.

(2) I do not accept that one half day to a full day of Court time will be saved by the exclusion of the evidence. In any event, the inclusion of the evidence is countenanced within the current trial plan, and that involves a trial that is confined within the allocated time period.

35 It is therefore not appropriate to make an advance ruling to exclude the evidence under s 135(c) of the Act.

Conclusion

36 I accept the Respondent’s submission that it is inappropriate to make an advance ruling at this time. It follows that the application will be dismissed.

37 I pause to note that while the Respondent was critical of the Applicant for making the present application, I do not accept that the application was inappropriate. In many cases it will save the parties time and money to ventilate issues of this kind prior to trial, and the application has served to ventilate many issues ahead of the trial. However, for the reasons I have explained, I have decided, in the exercise of my discretion, not to make the ruling sought.

38 It will be necessary for the Applicant to take steps to file and serve any additional evidence responding to the Suitability Evidence filed by the Respondent. It is appropriate that the parties confer to identify an appropriate timetable for those steps to be completed in advance of the commencement of the trial.

should there be a View?

39 The Respondent applies under r 14.03 of the Rules for the Court to conduct a view. Rule 14.03 is governed by s 53 of the Act, which states:

5 3 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.

40 The view proposed is detailed in the affidavit of Elizabeth Guerra-Stolfa dated 27 March 2026. In summary, it is proposed that Jayco will arrange for four RVs to be parked in the car park of the former Royal Mint (current Hellenic Museum) building opposite the Federal Court building in Melbourne, to permit the Court to inspect the RVs during the afternoon of the first day of the trial. It is expected that the view should take no more than one hour. I am satisfied that the view is logistically feasible, having regard to Ms Guerra-Stolfa’s evidence of the enquiries she has made of Jayco and the Hellenic Museum.

41 The Applicant opposes the Respondent’s proposal for a view.

42 In the course of oral submissions it became clear that the issue is relatively finely balanced. There is little prejudice to either party if there is or is not a view. Given the draft trial plan permits a view within the current allocation, I will permit a view on the basis that:

(1) The parties will not adduce any oral evidence at the view, any statements made at the view will be in the nature of submissions, in the context of the vehicles being used as a physical aid to understanding the issues in the case.

(2) No Jayco employee will speak at the view. Only submissions will be made by counsel, and the matters to be addressed or highlighted will be discussed between counsel prior to the view, with an agenda being agreed between them.

(3) Both parties will have the opportunity to make submissions at the view.

43 At the commencement of the hearing, I will receive any further submissions from the parties as to appropriate directions around the view (in addition to those already identified above). I will hear the parties as to the costs of the interlocutory application of 18 March 2026.

44 I will hear the parties as to the costs of this application.

| I certify that the preceding forty-four (44) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Bennett. |
Associate:

Dated: 22 April 2026