REASONS FOR JUDGMENT

An objection has been taken by Mr MacFarlane QC, who appears on behalf of the respondents, to pars 4 and 5 of an affidavit that has been sought to be read by Mr Ellicott QC, who appears with Mr Studdy on behalf of the applicant in the proceedings.  The deponent of the affidavit is Mr Darian-Smith, who is a solicitor and partner of the firm Mallesons Stephen Jaques in Brisbane.

Mr Ellicott has sought to read Mr Darian-Smith’s affidavit in connection with an application by the respondents seeking inspection of certain documents included in the applicant’s Further Supplementary List of Documents.  The respondents resist the application, inter alia, on the ground that an order for inspection of the documents would place them in breach of orders of the Supreme Court Victoria made in 1989.  Mr Ellicott wishes to rely on Mr Darian-Smith’s affidavit to establish the terms of the relevant orders.

Mr Darian-Smith deposes in the affidavit that in December 1987 he was instructed by the Guide Dog Owners’ and Friends’ Association (“GDOFA”) and a company known as Northern Thanet Pty Limited (“Thanet”) in relation to a certain investigation that was conducted in Victoria by Mr L Flanagan QC and Mr Omizzolo (par 2).  Mr Flanagan QC and Mr Omizzolo are referred to in Mr Darian-Smith’s affidavit as the investigators.

Mr Darian-Smith says that he had the care and conduct of proceedings commenced against GDOFA and Thanet by the Attorney-General for Victoria in the Supreme Court of Victoria, being nos 4789 and 4790 of 1988, respectively.  Mr Darian-Smith annexes to his affidavit the first page of a letter from the Victorian Government Solicitor dated 6 June 1989 (par 4).  That page of the letter was provided to Mr Darian-Smith by the present solicitors for GDOFA.

The last paragraph of the first page of the letter confirms an agreement, apparently between the Victorian Government Solicitor and Mallesons Stephen Jaques (the then solicitors for GDOFA), that

“clause 10 of the orders should read as follows:

The defendants and their employees and agents use of the transcript of the proceedings before the Inspectors obtained on discovery shall be limited for the purposes of these proceedings or until further order.”

Mr Darian-Smith states that to the best of his knowledge and recollection the Supreme Court of Victoria made an order “in accordance with the last paragraph of the first page of the letter” (par 5).

Mr Darian-Smith records his belief on information provided by Mr Vernier, the present solicitor for GDOFA, that GDOFA has in its records only a copy of the first page of the letter.  Mr Darian-Smith deposes that he does not have a copy of the complete letter.  He also says that his firm’s records relating to the investigation and to the proceedings in the Supreme Court of Victoria are voluminous and, to the best of his recollection, constitute over 50 security boxes stored in a warehouse at Port Melbourne, Victoria.  Mr Darian-Smith further states that he has not had an opportunity to search through those records.  He estimates that it could take a clerk several days to locate a complete copy of the letter and the orders of the Court referred to in the letter.

Mr MacFarlane submits that the only source of authority to admit par 4 of Mr Damian-Smith’s affidavit is s 48(4) of the Evidence Act 1995 (Cth) (“Evidence Act”) and that the requirements of s 48(4) are not satisfied in the circumstances of the present case.  Section 48(4) provides as follows:

(4)       A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by:

            (a)        tendering a document that is a copy of, or an extract from or summary of, the document in question; or

            (b)        adducing oral evidence of the contents of the document in question.”

Paragraph 5 of Part 2 of the Dictionary to the Evidence Act provides, insofar as material, as follows:

“5.       For the purposes of this Act, a document or thing is taken not to be available to a party if and only if:

            (a)        it cannot be found after reasonable inquiry and search by the party; or

            (b)        it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person; or

            (c)        it would be impractical to produce the document or thing during the course of the proceeding;

            ... ”

Mr MacFarlane’s submission is that the orders of the Supreme Court of Victoria cannot be said to be “not available to” the applicant, within the meaning of s 48(4) of the Evidence Act, having regard to par 5 of Part 2 of the Dictionary.  He contends that there is no evidence that the applicant has undertaken a reasonable inquiry and search for the orders or a copy thereof.  Nor has it been established that it would be impractical to produce the document in the course of the proceeding.

Mr Ellicott does not dispute that the only source of authority to admit par 4 of Mr Damian-Smith’s affidavit is s 48(4) of the Evidence Act.  He contends, however, that, having regard to the short time the current application had been on foot, the applicant has established that the orders of the Supreme Court of Victoria cannot be found after reasonable inquiry and search.  He also submits that the applicant had established that it would be impractical to produce the relevant documents.

The sequence of events is not in dispute.  On 2 April 1998, the solicitors for the applicant sent a letter to the respondents’ solicitors which stated that the documents, access to which is currently in dispute, were confidential and that a claim for privilege was made.  The letter stated on behalf of the applicant that the documents were not available for inspection.  The letter did not refer to the orders made by the Supreme Court of Victoria in proceedings ultimately resolved in 1989.

On 3 April 1998, the respondents applied to relist the matter.  On 7 April 1998, the respondents filed an affidavit sworn by Mr Johnson.  That affidavit made no reference to the orders of the Supreme Court.  Rather, it set out the sequence of events that led to the filing of the application on behalf of the respondents.

On 9 April  1998, the affidavit sworn by Mr Darian-Smith was filed on behalf of the applicant in connection with the present application.  Of course, 10 April 1998 was Good Friday and today is the first day after the Easter break on which the Court has resumed regular sittings.

In my view, par 4 of Mr Damian-Smith’s affidavit is not admissible.  The applicant has adduced no evidence that any inquiry has been made of the Supreme Court of Victoria to ascertain what orders were made in the 1989 proceedings.  In the absence of authenticated copies of the orders, an inquiry of the Supreme Court is the obvious step to have taken to determine whether orders of the kind referred to in the incomplete letter of 6 June 1989 were ultimately made.  I do not mean to say that in every case in which a party seeks to rely on orders made by another court it is necessary to make an inquiry of the registry of the court concerned.  But in this case the only evidence of the critical orders is an incomplete letter, apparently written before any orders could have been made by the Supreme Court.  The one inquiry that would have clarified the position, given that the solicitors’ file could not be located,  was simply not made.

It is perfectly true, as Mr Ellicott says, that there has only been a short time since the filing of Mr Johnson’s affidavit.  However, it was apparent to the applicant at least from 3 April 1998 that the respondents intended to relist the matter in order to obtain orders for access to the documents that were in dispute.  There has been no explanation as to why it was not feasible on or very soon after 3 April 1998 to undertake inquiries of the Supreme Court of Victoria, in order to determine whether access to the orders in the relevant proceedings could readily be obtained.  Indeed there is no evidence as to any such inquiry having been made, even as late as today.

In these circumstances it seems to me impossible to say that the requirements of par 5 of Part 2 of the Dictionary to the Evidence Act have been complied with.  In other words, it has not been established that a reasonable inquiry and search has been undertaken by or on behalf of the applicant for the orders of the Supreme Court; nor has it been demonstrated that it would be impractical to produce the orders of the Supreme Court in the course of the present proceedings.  The only reason it is not practical to produce such orders as the Supreme Court of Victoria may have made is that the applicant has not undertaken a reasonable enquiry and search in respect of those orders.

Mr MacFarlane’s objection on behalf of the respondents also extended to the tender of the first page of the letter from the Victorian Government Solicitor.  That letter, because of the absence of the subsequent page or pages, is of course incomplete.  It seems to me that the single page of that letter ought not to be admitted, at least not without further evidence.  Its relevance appears to be to lay the foundation for a conclusion that orders were made by the Supreme Court of Victoria in the terms suggested in the letter.  Having regard to the reasons that I have already given I do not think that the tender of the first page of that letter advances the position of the applicant materially.  In any event, it does not seem to me to be appropriate to admit into evidence an incomplete copy of a letter having regard to the possibility that the balance of the letter might well affect what is said on the first page.

The conclusion that I have expressed carries with it the consequence that par 5 of the affidavit of Mr Darian-Smith should also be rejected.  In that paragraph Mr Darian-Smith expresses his recollection that the Supreme Court of Victoria made an order in accordance with the last paragraph of the first page of the letter to which I have already referred.  That secondary evidence does not seem to me to be admissible having regard to the failure of the applicant to satisfy the requirements of par 5 of Part 2 of the Dictionary to the Evidence Act.  Accordingly I reject pars 4 and 5 of the affidavit of Mr Darian-Smith.

Associate:

Dated:              15 April 1998