Mulley v Manifold [1959] HCA 23

High Court of Australia Menzies J. Mulley v Manifold [1959] HCA 23

ORDER Order accordingly.

Cur. adv. vult.

Menzies J delivered the following written judgment:—

May 5 Menzies J

On 17th September 1958, each of the above-named plaintiffs commenced an action against the defendant as nominal defendant for and on behalf of the members of the Committee of the Victoria Racing Club seeking a declaration that a decision of the committee affecting him was null and void and claiming injunctions. The decision complained of was a decision adverse to each plaintiff made under by-law 37 of the By-laws of the Victoria Racing Club, which provides: "Any person who in the opinion of the Committee is not a desirable person to be admitted shall not be admitted into any of the said divisions" (i.e., of the Flemington Race Course) "and may be expelled therefrom after having been warned off by or on behalf of the Committee or Stewards of the Club." The actions were to have been tried in March of this year but on 11th March, they were at the request of the parties adjourned until May.

The present applications have been made by the plaintiff in each action under the Rules of Court, O. 32, rr. 13 and 18, for further discovery. The applications were heard together and can be disposed of together.

So far as O. 32, r. 13 is concerned, it cannot be shown by a contentious affidavit that the discovery made is insufficient. 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 [1] , 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.