The Guide Dog Owners' and Friends' Association Inc v Guide Dog Association of New South Wales and Act

[1998] FCA 406

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG948 of 1996

BETWEEN:

THE GUIDE DOG OWNERS’ & FRIENDS’ ASSOCIATION INC
(ACN 004 758 641)
APPLICANT

AND:

GUIDE DOG ASSOCIATION OF NEW SOUTH WALES & ACT
(ACN 000 399 744)
FIRST RESPONDENT

ROYAL GUIDE DOGS ASSOCIATIONS OF AUSTRALIA
(ACN 008 427 423)
SECOND RESPONDENT

JUDGE(S):

SACKVILLE J

DATE:

15 APRIL 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Mr Ellicott has sought to re-tender the first sentence of par 4 of the affidavit of Mr Darian-Smith together with the annexure which is, as I have already said, the first page of a letter from the Victorian Government Solicitor dated 6 June 1989.  Mr Ellicott puts this tender on the basis that the first page of the letter is evidence of an agreement between the parties to the litigation then being conducted in the Supreme Court relating to the terms upon which certain documents presently in dispute would be made available to the applicant or its predecessor.

In my view the first page of the letter does not establish any such agreement.  In any event it seems to me unfair to the respondents to admit into evidence one page of a longer letter without any of the earlier correspondence referred to in that letter that might explain the basis of any arrangement that had been reached between the parties.  In his affidavit, Mr Darian-Smith indicates that he obtained the first page of the letter from the solicitors presently acting for the applicant.  There has been no evidence adduced as to whether any other correspondence relating to this matter is available and if not, why not.

It seems to me that the first page of the letter not only does not establish an agreement of the kind that Mr Ellicott suggests it might, but it would be unfair to admit the evidence in the absence of other material that plainly bears upon (a) whether any arrangement was made and (b) the terms of any such arrangement.  I should add that a further obstacle in the path of the admissibility of this single page of the letter is the absence of the balance of the letter.  I reject the tender.

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:            15 April 1998

Counsel for the Applicant:	Mr R J Ellicott QC and Mr D B Studdy
Solicitor for the Applicant:	Eakin McCaffery Cox
Counsel for the Respondent:	Mr R B S MacFarlane QC
Solicitor for the Respondent:	Holman Webb
Date of Hearing:	15 April 1998
Date of Judgment:	15 April 1998