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." In Mulley v. Manifold (1959) 103 C.L.R. 341 at 343 Menzies J. said: "It cannot be shown by a contentious affidavit that the discovery made is ansufficient. 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 K.B. 369; [1912] A.c. 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." The principle stated in these cases has been applied to disallow interrogatories by which it was sought to challenge a party's affidavit as to documents: Hall v. Trumans Hanbury & Co. (1885) 29 Ch. D. 307 at 320-1. In T.N.T. Management Pty. Limited & Ors. v. Trade Practices Commission (unreported, Franki J., 20/6/83), an affidavit was made by a Mr. Roberts to explain action taken by the Commission with a view to preparation of a supplementary affidavit of discovery, and to explain the omission of certain documents which, he said, had been regarded as irrelevant or had been put to one side as already discovered. Franki J. held that this affidavit (together with another affidavit) "could fairly be described as further affidavits of discovery", and said: "It was for this reason that I refused to allow cross-examination of Mr. Roberts." At the request of the parties, I stood the matter over to allow an opportunity for the making of written submissions, which I have received. But the applicant has not been able to displace or distinguish the authorities I have referred to, on which the respondents rely. I rule that the filing of Mr. Burrows's affidavit does not give the applicant the right to demand that he be called for cross-examination upon it. I shall re-list the motion at a convenient time to hear any further argument arising out of it and to deal with the question of costs. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Chior Oke Associate Dated: 25 November, 1986.