Federal Court of Australia
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 Compan 1913] 3 K.B. 850
Mulley v. Manifold T1959) 103 C.L.R. 341
Hall v. Trumans Hanbury & Co. (1885) 29 Ch. D. 307 Trade Practices
T.N.T. Management Pty. Limited & Ors. v. Commission, unreported, Franki J., 20/6/83
AKMOLINE PTY. LIMITED -V- H.R.C. SERVIT PTY. LIMITED & ORS.
NSW G.81 of 1985
Burchett J. Sydney 25 November 1986
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. G.81 of 1985
eee ws ww
GENERAL DIVISION
BETWEEN:
AKMOLINE PTY. LIMITED
Applicant AND: H.R.C. SERVIT PTY. LIMITED First Respondent AND H.R.C. HOLDINGS PTY. LIMITED Second Respondent AND PETER ANTHONY BARGE Third Respondent AND: JOHN KENNY Fourth Respondent AND: - DENNIS JEFFS Fifth Respondent AND:
H.R.C. SERVIT (N.S.W.) PTY. LIMITED
Sixth Respondent
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 22 May 1986. That affidavit sets out, in 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, Limited
v. London and North Western Railway Company [1913] 3 K.B. 850 at
855, 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."
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