Mulley v Manifold

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.

It was in order to relax this rule to some extent that O. 32, r. 18 was introduced; this rule does permit an application for further discovery based upon the filing of an affidavit that there have been particular undiscovered documents in the possession of the other party which relate to a matter in question in the proceeding. Pursuant to this rule, the Court, however, can do no more than order an affidavit in respect of particular documents and there is no doubt that the mere existence of such documents does not provide the basis for ordering a further affidavit in general terms although, if a document discovered pursuant to such a particular order were to indicate the existence of other material documents, that would warrant an order under O. 32, r. 13: British Association of Glass Bottle Manufacturers Ltd. v. Nettlefold [1] .

Where, as here, an application is made under both rules, the affidavit filed bears only upon the application under O. 32, r. 18, and it seems to me that where no more appears than that particular documents have not been discovered, the proper course is to make an order under O. 32, r. 18. The affidavit filed here, however, affords no substantial assistance upon what is the only important question, i.e., whether certain documents, of which some do exist and some may or may not exist, do, or if they were to exist, would, relate to any matter in question in the actions. This is clearly something that must be determined from the pleadings, not from an argumentative affidavit.

Before I turn to the pleadings, however, I will deal with four particular matters which can be disposed of shortly. First, it is claimed on behalf of each plaintiff that because it appeared that he had received a letter containing the two sentences: "I have further been directed to inform you that the said Committee has resolved as follows: That in the opinion of this Committee (the plaintiff) "is not a desirable person to be admitted" within the meaning of By-law 37 and that he shall suffer the disabilities referred to therein", and because the resolution of the committee that has been discovered contains these words: "the Committee resolves that in its opinion Mulley, Marney and Honan are not desirable persons to be admitted within the meaning of by-law 37 of the V.R.C. By-laws", it should be inferred from this disparity between what was communicated and what was discovered that there is in existence some resolution additional to that discovered and that, accordingly, further discovery should be ordered under O. 32, r. 13. I am not prepared to draw such a fanciful inference. It seems to me quite clear that the letter from which I have quoted does not set out the resolution verbatim and that the words in quotation marks in the letter are a quotation from r. 37 and not from the resolution at all. Secondly, it was argued that because the Victoria Racing Club received letters dated 1st September 1958 from Messrs. Hall and Wilcox, acting for the plaintiff Marney, and from Messrs. Slater and Gordon, acting for the plaintiff Mulley, asking the committee to permit the appearance of Marney and Mulley respectively and to defer any decision for the time being, and because before considering these letters the committee reached a decision under by-law 37 and then resolved to defer answering the letters and decided that "Mr. Gorman and the secretary, in conjunction with counsel, to draft appropriate letters in reply", it should be inferred, although it is common ground that no answers were sent, that there must have come into existence draft answers that were discoverable and that the omission to discover them of itself warrants an order for further discovery under O. 32, r. 13. Even if it be granted that any draft that came into existence in these circumstances would be discoverable (and I am far from deciding that this would be the case), the contention still fails at the outset because I am not prepared to infer that drafts ever came into existence. It would be going far beyond the practice of the Court to order further discovery on such a flimsy pretext. Thirdly, it was said, because the club received the two letters dated 1st September that I have already mentioned, but in each action only discovered the letter written on behalf of the plaintiff in the case, there was a material omission from the affidavit of discovery and further discovery of a general nature should be ordered. This is not merely clutching at a non-existent straw, but expecting to be carried by it. Fourthly, it was said that the affidavit in each case was demonstrably incomplete because it being alleged that the plaintiff Mulley had ridden in races at Flemington with a licence issued by the Victoria Racing Club, and the plaintiff Marney had operated as a bookmaker at Flemington with licences issued by the Victoria Racing Club, records of the licences issued should have been discovered, particularly as the allegations of riding and of operating as a bookmaker were not admitted. It was stated for the defendant that, in the case of Marney, it was likely that there would be records relating to the licences but it was said that, after search, no copies of any licences issued to Mulley had been found but there would no doubt be some record of his having ridden. In these circumstances, Mr. Eggleston did not oppose an order for further discovery under O. 32, r. 18, for the discovery of any records relating to licences issued to either of the plaintiffs. I will accordingly make such an order but, in my judgment, the omission that has occurred is properly to be dealt with under O. 32, r. 18 and does not warrant a general order for further discovery under O. 32, r. 13.

I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues - not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary.

Each statement of claim alleged (1) the receipt of notice of a resolution under by-law 37, (2) the absence of any notice that the committee intended to consider the application of by-law 37 to the plaintiff or of the grounds upon which the committee intended to proceed, (3) the absence, after the committee's decision, of notice of the grounds upon which it reached its decision, and (4) the absence of any opportunity to be heard by the committee. The pleading then contained the submissions that either the by-laws of the club required the committee to give the plaintiff a hearing or else they were void for not doing so. Then, in par. 11 the plaintiff charged that the decision of the committee was void because it was arrived at "in breach of natural justice and in denial of the rights of the plaintiff". This pleading, to my mind, means one thing and one thing only, i.e., that because the committee reached its decision without any, or any proper, notice to the plaintiff and without hearing the plaintiff, that decision was in breach of natural justice and was therefore void.

The defence in each case (1) admitted that the plaintiff had received notice of the committee's decision, (2) alleged expressly what was clearly implicit in the statement of claim, i.e., that the committee had resolved that the plaintiff was an undesirable person to be admitted to Flemington, and added that this resolution had been "duly" resolved, (3) did not admit the allegations in pars. 5 to 8 of the statement of claim that the plaintiff had not been given notice or had not been given the opportunity to be heard, (4) submitted that the club by-laws were valid and did not require the committee to afford the plaintiff a hearing, (5) denied that the decision was in breach of natural justice or in denial of the plaintiff's right or was void, and (6) asserted the right of the committee to exclude the plaintiff from Flemington.

It was contended for each plaintiff that in this state of the pleadings, the following documents were discoverable, in addition to the documents discovered, and that, accordingly, there should be an order for further discovery: (1) Any documents relating to notification from the club to the plaintiff of the intention of the committee to consider, under by-law 37, the question of his desirability. (2) Any documents relating to the calling of the meeting of the committee to consider this question. (3) Minutes of any meeting at which the question of his desirability was considered, showing (a) the attendance at the meeting, (b) the item of the agenda referring to the question, (c) any report concerning him that it considered, (d) any other material that the committee took into account in its deliberations, (e) all discussion that took place.

As to the first of these contentions, it is part of the case of each plaintiff that he received no notice at all; it is nevertheless argued that because this was not admitted by the defendant and there was, therefore, an issue about it, there should be an order for further discovery because, so it is said, the defendant, although he has, in a general way, sworn that there were no such documents, has nevertheless not given his mind to the question whether such documents should be discovered, so that the affidavit was based upon a misconception of the case. In the course of proceedings, Mr. Eggleston applied to amend the defence in each case to admit pars. 5 to 8 inclusive, but such amendments are not, in my opinion, necessary for the rejection of the argument that is based upon the defences as they were delivered. That argument, in my opinion, rests upon the misconception that the defendant, by his defence, asserted that such notices were given, and cannot therefore be taken by his affidavit to be denying the existence of any documentary notices. It is quite apparent that all the defendant was doing was putting the plaintiff to proof and was not asserting the existence of such notices and I am not prepared to find that, on this ground, the affidavit was made under any misconception of the case. Nevertheless, I think the applications to amend should be granted to simplify the cases when they come to trial and that, when this is done, the matter now in controversy is put beyond all argument.

What is covered by the second and third of these matters can be dealt with at the same time. The first thing to do is to determine the construction that should be put on the relevant part of each statement of claim. It is my reading that what is alleged is that, if by-law 37 was valid, the committee's decision thereunder was invalid and void because the plaintiff was not given an opportunity to be heard and for that reason only. The paragraphs do not allege that the meeting of the committee was not called in accordance with the by-laws, nor do they allege that the meeting was not conducted in accordance with the by-laws, nor do they allege that the committee did not honestly form the opinion which the resolution records. Various suggestions were made as to what, apart from failing to hear the plaintiffs, might amount to a "breach of natural justice and denial of the rights of the plaintiff", but anything that was suggested, such as non-observance of the by-laws relating to notices to committee members or to the conduct of meetings, or acting mala fide or arbitrarily and capriciously, is clearly something which, if it is to be relied upon, must have been pleaded specifically and with particularity. As I have said, there is nothing of this sort in the pleadings. Reading the pleadings in the way indicated, I regard par. 11 as doing no more than gathering up what precedes it and asserting that the decision of the committee was void because it was arrived at "in breach of natural justice and in denial of the rights of the plaintiff". As each statement of claim stands and notwithstanding the allegations in each of the defences that "the Committee of the said Club did duly resolve" I am satisfied that the plaintiffs are not entitled to the further discovery that is sought, because the documents described earlier have no bearing whatever upon the plaintiffs' or the defendant's cases as pleaded. I do not read the reply as putting in issue what is implicit in the statement of claim and explicit in the defence, that the committee had resolved adversely to the plaintiff.

In the course of replying, counsel for the plaintiff Mulley (but not counsel for the plaintiff Marney) applied to amend the statement of claim and the reply in his action, as follows: -

Statement of claim: To substitute the following for par. 11: "The plaintiff charges it to be and it is the fact that the decision of the said Committee with respect to the plaintiff mentioned in the said letter was arrived at in breach of natural justice or arbitrarily or capriciously or otherwise invalidly and in denial of the rights of the plaintiff and the plaintiff submits that the same is void and of no effect."

(1) The Committee did not have adequate material before it to determine the question of whether the plaintiff was a desirable person to be admitted. (2) The Committee deprived itself of the opportunity to have further material in order to decide that question. (3) The Committee further deprived itself of the opportunity to have submissions made to it by or on behalf of the plaintiff as to the effect of any material which it had before it, the submissions being as to matters of fact and as to matters of law. (4) The Committee acted capriciously in failing to deal with the request of the plaintiff to be given the opportunity to be heard in dealing with the question of whether or not the plaintiff was a desirable person to be admitted. (5) The Committee acted arbitrarily or capriciously in not deferring the matter of whether the plaintiff was a desirable person to be admitted until after the request of the plaintiff to be heard had been dealt with and the plaintiff notified of the decision in respect of that.

Reply: By adding the following words: "The plaintiff does not admit that portion of paragraph 4 of the statement of defence which alleges that the resolution referred to was duly resolved; in particular, the plaintiff does not admit that the meeting was validly summoned or validly constituted in respect of the passing of the resolution referred to."

This application to amend was opposed on behalf of the defendant, and I am not prepared to allow the amendments sought.

The action as it stood, without amendment of the statement of claim, was an action to determine whether the plaintiff was entitled to notice and a hearing before a decision adverse to him could be made under by-law 37, and whether the Victoria Racing Club or the committee is under any obligation to admit the plaintiff to the Flemington Race Course. The amendment, if granted, would extend the action to cover claims that the committee acted outside the by-laws of the club and that it acted arbitrarily or capriciously. Mr. Murphy, in making the application, said that it was to do no more than to make explicit what was always implicit in the statement of claim, but the amendment would, if it means anything, change the character of the action entirely. The action as it stands assumes a decision by the committee and asserts its invalidity by reason of a denial of natural justice, i.e., in not giving the plaintiff notice and a hearing; the amendment presumably seeks to raise as issues the questions whether the by-laws of the club were complied with and whether the committee reached what is properly to be described as a decision. Furthermore, although it is sought to introduce these further allegations, the particulars given show that the basis of complaint is really the same as before - i.e., that the plaintiff was not given a hearing - making it clear that the amendments sought are really directed to meeting the difficulty of obtaining discovery of documents that the plaintiff may wish to see but which are not material to the case. In this sense, I do not regard the application to amend as a genuine application. Finally, before allowing the amendments sought I would have to be satisfied that the statement of claim contains the allegations of fact necessary to support the argumentative contentions that the amendments raise. The statement of claim as it is, contains no such allegations; nor do I think the amendments seek to introduce any. To take, for instance, the contention that the resolution of the committee is void because it was arrived at arbitrarily; from what does it appear that to act arbitrarily is outside the power of the committee? The amendments do not contain allegations of fact, as pleadings should primarily; they make submissions without providing any proper factual basis. To amend the pleadings in the manner sought would, I think, embarrass the proper trial of the action.

It only remains to add that the application for further discovery also related to the documents mentioned in pars. 19 to 22 inclusive of each statement of claim, but it appears that the documents referred to are covered by the discovery already given.

I have already referred to Mr. Eggleston's application to amend each defence to admit pars. 5 to 8 inclusive of each statement of claim. I should add that he also applied to amend the defence to admit the allegations in par. 17 of the statement of claim. This too is an application that was not opposed and which I think should be granted for the purpose of simplifying the trial of the action.

The order I will make is (1) to grant the applications of the defendant to amend each defence by admitting pars. 5 to 8 and 17 of each statement of claim; (2) to refuse the application of the plaintiff Mulley to amend his statements of claim and reply; (3) to order in each action that the defendant within seven days state by affidavit whether any licence or any record of any licence granted of the kind referred to in par. 18 of the statement of claim is, or has at any time been, in his possession, custody or power; and if any such licence or record is not now in his possession, custody or power, whether and when he parted with it, and what became of it; (4) save as aforesaid, to refuse the applications for further discovery.

So far as costs are concerned, because the trifling success of each application was upon a matter of no real importance in the action and because on every aspect of importance the plaintiffs have failed, I consider the defendant is entitled to the costs of opposing the applications. The costs should be taxed and I certify for counsel in each case.