Noye v Robbins

[2003] WASC 27

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   NOYE & ANOR -v- ROBBINS [2003] WASC 27

CORAM:   MASTER SANDERSON

HEARD:   5 FEBRUARY 2003

DELIVERED          :   11 FEBRUARY 2003

PUBLISHED           :  26 FEBRUARY 2003

FILE NO/S:   CIV 2231 of 1999

BETWEEN:   JEFFREY HOWARD NOYE

First Plaintiff

LINDSAY GORDON RODDAN
Second Plaintiff

AND

STEPHEN JOHN ROBBINS
Defendant

Catchwords:

Practice and procedure - Application for further and better discovery - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

First Plaintiff                :     In person

Second Plaintiff            :     In person

Defendant:     Mr M T KcKenna

Solicitors:

First Plaintiff                :     In person

Second Plaintiff            :     In person

Defendant:     Hunt & Humphry

Case(s) referred to in judgment(s):

Mulley v Manifold (1959) 103 CLR 341

Case(s) also cited:

John Allan Ltd v Keegan [1968] WAR 125

Jones v Monte Video Gas Company (1880) 5 QBD 556

PDM Australia Pty Ltd v Kelloggs Overseas Corporation, unreported; SCt of WA (Olney J); Library No 6646; 26 March 1987

The Compagnie Financiere et Commerciale Du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55

1. MASTER SANDERSON:  This is the plaintiffs' application for particular discovery.  I heard the application on 5 February 2003 and reserved my decision until 11 February 2003.  On that date, I indicated that I would dismiss the application and I would publish my reasons at a later date.  These are those reasons.

2. By their application, the plaintiffs seek an order that certain audiotapes said to be in the possession of the defendant be discovered.  The application is supported by an affidavit of the first plaintiff sworn 16 January 2003.  Based upon that affidavit, the background to the application can be summarised in this way.  In 1995 and 1996, the Commissioner of Police for Western Australia and the Australian Federal Police conducted a joint investigation into various matters relating to charges laid by the defendant against the plaintiffs.  A consultancy organisation known as "Forensic Behavioural Investigative Services International Pty Ltd" (FBIS) was also involved in assisting the Western Australian Police Service in this investigation.  The joint involvement of the Western Australian Police Service, the Australian Federal Police and FBIS was termed "WAPOLINV".  The plaintiffs say that, in the course of the defendant's inquiries, a number of interviews with the plaintiffs were conducted.  Four interviews were allegedly conducted between 7 July 1995 and 11 April 1996.  The plaintiffs know that tape‑recordings of these interviews exist, or did exist, because during the course of a prosecution against them brought by the Director of Public Prosecutions, they were provided with edited transcripts of these interviews.

3. During the course of these proceedings, the defendant has provided discovery.  His list of documents was verified by affidavit dated 19 June 2001.  In the Second Schedule, there appear the following two items:

   "7.Audio tapes and/or transcripts of statement(s) made to the investigators employed by FBIS International Pty Ltd.

   8.Audio tapes and/or transcripts of statement(s) made to the investigating officers in WAPOLINV."

4. In relation to these two items, the defendant says, in par 4(f) of his list of documents:

   "documents referred to in nos 7 and 8 of the Second Schedule were not retained by the Defendant and have been lost or destroyed although the Defendant infers that originals of those documents may have been retained by FBIS International Pty Ltd or by the Federal Police as appropriate."

5. The plaintiffs say that the affidavit of discovery is inadequate.  The first plaintiff says, in par 11 of his affidavit, that he and the second plaintiff "have been unable to obtain unedited copies of these documents".  He offers no other reason why the defendant's affidavit of discovery is inadequate.

6. It can be seen immediately that this application must fail.  An affidavit of discovery is, prima facie, conclusive.  It is well settled that the adequacy of an affidavit cannot be challenged by a contentious affidavit.  In support of that proposition, I need do no more than refer to the oft cited case of Mulley v Manifold (1959) 103 CLR 341. There is nothing in this case which would justify the making of an order as sought by the plaintiffs.

7. For these reasons, the plaintiffs' application will be dismissed.  The plaintiffs should pay the defendant's costs in any event.