The Guide Dog Owners' & Friends' Association Inc v Guide Dog Association of New South Wales & ACT [1998] FCA 405

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; ... "