Akmoline Pty Ltd v H.R.C Servit Pty Ltd

[1986] FCA 551

RESTRICTED DISTRIBUTION

CATCHWORDS

DISCOVERY - Supplementary affidavit - Rule against

cross-examination upon affidavit of discovery.

Birmingham and Midland Motor Omnibus Company, Limited v. London

and North Western Railway Company C19131 3 K.B. 850

Mllllev v. Manifold (1959) 103 C.L.R. 341

T.N.T. Management Pty. Limited h Ors. v. Trade Practices

Commission, unreported, Franki J., 20/6/83

AKMOLINE PTY. LIMITED -v- H.R.c.

SERVIT PTY. LIMITED h ORS.

NSW G . 8 1 of 1985

Burchett J.

Sydney

25 November 1986

IN THE FEDERAL COURT	OF AUSTRALIA	1
)

NEW	SOUTH	WALES	DISTRICT	REGISTRY	)	NO. G.81 Of 1985
)

DIVISION	GENERAL	1
BETWEEN:

AKMOLINE PTY. LIMITED

Appllcant

- AND :

H.R.C. SERVIT PTY.

LIMITED

Flrst Respondent

- AND :

H.R.C. HOLDINGS PTY.

LIMITED

Second Respondent

- AND :

PETER ANTHONY BARGE

Thlrd Respondent

- AND :

JOHN KENNY

Fourth Respondent

- AND :

DENNIS JEFFS

Fifth Respondent

- AND :

H.R.C. SERVIT

(N.S.W.) PTY. LIMITED

Slxth Respondent

2 .

~ AND :

JOHN GRAY

Seventh Respondent

REASONS FOR JUDGMENT

BURCHETT J.

This is a motion brought by the applicant for further

and better discovery.

A preliminary issue has been raised as to whether the

applicant is entitled to cross-examine Wayne Stubing Burrows on

his affidavit of 2 2 May 1986. That affidavit sets out, ln

detail, the respondents' explanations in answer to the

applicant's claim that certain documents should have been

discovered. In my opinion it is clearly of the nature of a

supplementary affidavit of discovery.

In Birmingham and Midland Motor Omnibus Company, Llmlted

v. London and North Western Railway Company C19131 3 K.B. 850 at

8 5 5 , Buckley L.J. (as Lord Wrenbury then was) said:

"An affidavit of documents is sworn testimony which stands in a position which is in certain respects unique. The opposite party cannot cross-examine upon it and cannot read

a contentious affidavit to contradict it."

In Mulley	V. Manifold (1959) 103	C.L.R.	341 at 343 Menzies	J.
said:

c

3.

"It cannot be shown by a contentious affidavit

that the discovery made is Insufficient.

Before 1912, it was thought that the

insufficiency had to appear from the pleadings, the affidavit of documents itself or the documents therein referred to.

However, in British Association of Glass

Bottle Manufacturers Ltd. v. Nettlefold

C19121 1 K.B. 369: C19121 A.C. 709, it was

established that the insufficiency might

appear not only from the documents but also from any other source that constituted an admission of the existence of a discoverable

document. Furthermore, it is not necessary

to infer the existence of a particular

document: it is sufficient if it appears that

a party has excluded documents under a

misconception of the case. Beyond this, the

affidavit of discovery is conclusive."

The principle stated in these cases has been applied to

disallow interrogatories by which it was sought to challenge a party's affidavit as to documents: Hall v. Trumans Hanbury h Co. (1885) 29 Ch. D. 307 at 320-1.

In T.N.T. Management Pty. Limlted h Ors. v. Trade

Practices Commission (unreported, Franki J., 20/6/83), an

affidavit was made by a Mr. Roberts to explain action taken by the Commission with a view to preparation of a supplementary affidavit of discovery, and to explain the omission of certain documents which, he said, had been regarded as irrelevant or had been put to one side as already discovered. Franki J. held that this affidavit (together with another affidavit) "could fairly be

described as further affidavits of discovery", and said:

"It was for this reason that I refused to

allow cross-examination of Mr. Roberts."

. 4 .

At the request of the parties, I stood the matter over

to allow an opportunity for the making of written submissions,

which I have received. But the applicant has not been able to

displace or distinguish the authorities I have referred to, on

which the respondents rely. I rule that the filing of M r .

Burrows's affidavit does not give the applicant the right to

- demand that he be called for cross-examination upon it. I shall

re-list the motion at a convenient time to hear any further

argument arising out	of it and to deal with the question of
costs.

I certify that this and the

preceding three (3) pages are

a true copy of the Reasons for Judgment herein of his Honour

Mr. Justice Burchett.

pi&?? &A Associate

Dated: 25 November, 1986. U