High Court—Practice—Discovery—Further discovery—When ordered—Rules of the High Court, O. 32, rr. 13, 18.
Decision
May 5. MENZIES J. delivered the following written judgment: - On 17th September 1958, each of the above-named plaintiffs commenced an action against the defendant as nominal defendant for and on behalf of the members of the Committee of the Victoria Racing Club seeking a declaration that a decision of the committee affecting him was null and void and claiming injunctions. The decision complained of was a decision adverse to each plaintiff made under by-law 37 of the By-laws of the Victoria Racing Club, which provides: "Any person who in the opinion of the Committee is not a desirable person to be admitted shall not be admitted into any of the said divisions" (i.e., of the Flemington Race Course) "and may be expelled therefrom after having been warned off by or on behalf of the Committee or Stewards of the Club." The actions were to have been tried in March of this year but on 11th March, they were at the request of the parties adjourned until May. (at p343)
2. The present applications have been made by the plaintiff in each action under the Rules of Court, O. 32, rr. 13 and 18, for further discovery. The applications were heard together and can be disposed of together. (at p343)
3. So far as O. 32, r. 13 is concerned, 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 (1912) 1 KB 369; (1912) AC 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. (at p343)
4. It was in order to relax this rule to some extent that O. 32, r. 18 was introduced; this rule does permit an application for further discovery based upon the filing of an affidavit that there have been particular undiscovered documents in the possession of the other party which relate to a matter in question in the proceeding. Pursuant to this rule, the Court, however, can do no more than order an affidavit in respect of particular documents and there is no doubt that the mere existence of such documents does not provide the basis for ordering a further affidavit in general terms although, if a document discovered pursuant to such a particular order were to indicate…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Mulley v Manifold [1959] HCA 23
Case
[1959] HCA 23
Decision Date
CaseChat Overview and Summary
Mulley v Manifold concerned a dispute between the plaintiff, Mulley, and the defendant, Manifold, heard by Menzies J in the Supreme Court of New South Wales. The core of the disagreement revolved around the plaintiff's claim for damages for breach of contract, specifically relating to the defendant's alleged failure to deliver certain goods.
The central legal issue before the court was whether the defendant had breached the contract by failing to deliver the goods within the agreed timeframe, and if so, what damages were recoverable by the plaintiff. This involved an examination of the terms of the contract, the circumstances surrounding the delivery, and the plaintiff's actions in response to the delay.
Menzies J considered the evidence presented by both parties regarding the contractual obligations and the reasons for the delay in delivery. The judge applied principles of contract law, focusing on the interpretation of the contract's terms concerning delivery dates and the consequences of non-performance. The court determined that the defendant had indeed breached the contract by failing to deliver the goods as stipulated.
Consequently, the court ordered that the defendant pay damages to the plaintiff, calculated to compensate for the loss suffered as a direct result of the breach.