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

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

Paragraphs 4 and 5 of Mr Darian-Smith's affidavit were inadmissible because the applicant had not established that the Supreme Court of Victoria orders were unavailable within the meaning of the Evidence Act 1995 (Cth): no inquiry had been made of the Supreme Court of Victoria, no reasonable inquiry and search had been shown, and impracticality of production was not demonstrated. The incomplete first page of the Victorian Government Solicitor's letter also should not be admitted without further evidence.

Jurisdiction
Australia
Judgment Date
15 April 1998
Procedural Posture
Federal Court Civil Proceeding Concerning Inspection of Documents / Interlocutory Evidentiary Objection to Paragraphs 4 and 5 of an Affidavit on an Application for Inspection of Documents
Outcome
Respondents' objection upheld; paragraphs 4 and 5 of Mr Darian-Smith's affidavit rejected.
Legal Topics
['proof of Contents of Documents' 'unavailable Documents' 'inspection of Documents' 'affidavit Evidence' 'secondary Evidence']
['evidence' 'civil Procedure'] ['proof of Contents of Documents' 'unavailable Documents' 'inspection of Documents' 'affidavit Evidence' 'secondary Evidence']

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Procedural Posture

Federal Court Civil Proceeding Concerning Inspection of Documents / Interlocutory Evidentiary Objection to Paragraphs 4 and 5 of an Affidavit on an Application for Inspection of Documents

Legal Issues

  1. 1 ["Whether paragraph 4 of Mr Darian-Smith's affidavit, annexing the first page of an incomplete letter as evidence of the terms of Supreme Court of Victoria orders, was admissible under s 48(4) of the Evidence Act 1995 (Cth)." 'Whether the applicant established that the Supreme Court of Victoria orders were not available because they could not be found after reasonable inquiry and search, or because it would be impractical to produce them during the proceeding.' "Whether paragraph 5 of Mr Darian-Smith's affidavit, stating his recollection that orders were made in accordance with the incomplete letter, was admissible."]

Ratio Decidendi

Paragraphs 4 and 5 of Mr Darian-Smith's affidavit were inadmissible because the applicant had not established that the Supreme Court of Victoria orders were unavailable within the meaning of the Evidence Act 1995 (Cth): no inquiry had been made of the Supreme Court of Victoria, no reasonable inquiry and search had been shown, and impracticality of production was not demonstrated. The incomplete first page of the Victorian Government Solicitor's letter also should not be admitted without further evidence.

Court Disposition

Respondents' objection upheld; paragraphs 4 and 5 of Mr Darian-Smith's affidavit rejected.

Orders

  • ["Paragraph 4 of Mr Darian-Smith's affidavit is not admissible." 'The first page of the letter from the Victorian Government Solicitor ought not to be admitted, at least not without further evidence.' "Paragraph 5 of Mr Darian-Smith's affidavit is rejected."]