Principles relating to striking out: Savings Investment Bank [1984] 1 AER 296; Re Juson Pty Ltd 8 WAR 13

Mode of objections – admissibility Avery v Worldwide Testing Services 2 ACSR 834

Following from article by JW Shaw [1985] Australian Current Law page 36055: Where a respondent files affidavits with the Court but does not read or tender them or does not otherwise go into evidence in a proceeding, can the affidavits be read, tendered or otherwise relied upon by the applicant?  Similarly, can a respondent make use of affidavits filed by an applicant?

  1. Yes, if affidavits are filed, the other party may use them in the proceedings: Price v Hayman (1838) 4 M&W 8; 150 ER 1321.
  2. A client who uses an affidavit for a particular purpose, makes an admission as to the statements in the affidavit which are pertinent to the purpose for which the affidavit is prepared; but if there are statements in the affidavit which are irrelevant to that purpose for which it was prepared (at least in the case of a solicitor’s affidavit) the client is not bound by those statements; thus, statements in an affidavit which were wholly irrelevant to the matter then before the Court could not be used as an admission against the party filing the affidavit: Prangley v Evans (1896) 17 NSWR 416 at 418.
  3. An affidavit filed by the respondent can be read by the applicant.  If the applicant fails to make out its case on the affidavits, then the opponent need not file any affidavit at all; but where an affidavit is filed by the respondent, then it seems that the applicant is entitled to read that affidavit as part of his own case: In re Margetson and Jones [1897] 2 Ch 314 at 319, 320.
  4. But if the affidavit filed by a respondent is not “opened” to the Court and made part of the proceedings, then it is apparently not usable; an affidavit which has been placed on the file does not become part of the proceedings until it is open to the Court: Manson v Ponninghaus [1911] VLR 239 at 241, that is to say, tendered or “read”.
  5. Where an applicant wishes to tender only portions of the respondent’s affidavit (as admissions) the applicant is not required to tender the affidavit as a whole (including paragraphs prejudicial to the applicant) and is not bound by such paragraphs; however, the document goes in as a whole (without the applicant to be taken as putting in parts upon which the applicant does not rely) and it is open to the respondent’s counsel to refer the Court to any passage in the affidavit affecting or qualifying the admissions, without the respondent thereby being treated as calling evidence: Wimpole v McIlwraith [19231 VLR 553 at 554, 555.
  6. A party who files an affidavit is not obliged to read it.  Where an affidavit filed by a party is made by a “disinterested person” (as distinct from a party) and where the party filing the affidavit has not read such affidavit in its case then that affidavit by the disinterested person cannot be tendered against the party who filed the affidavit; on the other and, a party can read an affidavit filed by the opposite party but not read by that party in its own case; if such an affidavit is read, then counsel for the other side is entitled to cross-examine the deponent (even though that counsel appears for the party which filed the affidavit): Leaders Shoes (Aust) Pty Ltd v National Insurance Co of NZ Limited [1968] 1 NSWR 344 at 346; Leaders Shoes (Aust) Pty Ltd v Liverpool & London & Globe Insurance Co Ltd [1968] 1 NSWR 279 at 280.
  7. A number of these propositions are drawn together and affirmed in Barristers’ Board of Western Australia v Tranter Corporation Pty Ltd [19761 WAR 65 at 67.

See also following from Brooking Js judgment in Muirfield Properties v Erik Kolle & Ass [1988] VR 167 at 170ff:

One must first distinguish cases dealing with the use of affidavits as such from those which are concerned with the use of affidavits as containing admissions.  To the latter category belong Johnston v. Matthews (1893) 19 V.L.R. 638; Prangley v. Evans (1896) 17 L.R.(N.S.W.) 416; Wimpole v. McIlwraith (1923)L.R. 553; Trade Practices Commission v. T.N. T. ManagementPty.  Ltd. (1984) 56 A.L.R. 647, at pp. 664-5; Re Vassis; Ex parte Leunig (1986) 64 A.L.R. 407.  We are concerned with the use of affidavits as such.  The authorities here show that one party may use an affidavit which the other party has filed for the purposes of the application but chooses not to use himself: Price v. Hayman (1838) 4 M. & @. 8; 150 E.R. 1321; Re Margetson and Jones [18971 2 Ch. 314; Leaders Shoes (Aust.) Pty.  Ltd. v. National Insurance Co. of New Zealand Ltd. (1967) 86 W.N. (Pt. 1) (N.S.W.) 388, where the distinction is drawn between tendering an affidavit as a document containing an admission and use of the affidavit as testimony; Barristers’ Board of Western Australia v. Tranter Corp. Pty.  Ltd. [19761 W.A.R. 65.  See also Trade Practices Commission v. T.N.T. Management Pty.  Ltd., at p. 665, where, however, the judgment might be thought not to make entirely clear the distinction between what might be called the testimonial use of an affidavit and its reception as containing admissions.  The case of Manson v. Ponninghaus [19111 V.L.R. 239 is not satisfactory authority to the contrary: although an observation of Madden C.J., at p. 241, may suggest that one party may not use an affidavit filed by another, the true basis of the decision is that there was no sufficient affidavit at the time of the order nisi.

Similarly it has been held in Canada that an applicant may rely on an affidavit in opposition filed by the respondent even though the respondent has not sought to make use of it: ex rel.  Onishenko v. Nesdoly (1938) 3 D.L.R. 185, at pp. 188 and 194.  As the decision just cited recognizes, the practice is different in bankruptcy, where the applicant may not rely on an affidavit filed on behalf of the respondent in order to establish a case to answer: Ex parte Child (1882) 20 Ch.  D. 126; Re Cohen [19241 2 Ch. 515.  The second decision accepts that the position is otherwise in the Chancery Division.  It may also be noted that in Re Cohen the judgments, both at first instance and onappeal, do not keep distinct the notion of using an affidavit as sworn evidence and using it as a written admission.

These are cases where the affidavit had been filed by the opposite party and for the purposes of the application in question. (The only exception is the Trade Practices Commission Case and there the affidavit seems not to have been used testimonially.) The cases cited are thus capable of being distinguished on the ground that they show no more than that if one party to an application files an affidavit for the purposes of that application he makes it available to the other party as part of the evidence for that purpose.  But I think that the cases rest, not on a notion that a party can prevent the use of evidence which he has in some sense put forward for the purposes of the hearing, but on the more general notion that an affidavit filed in an action or other proceeding is an affidavit available for use in it.  So in ex. rel.  Onishenko v. Nesdoly, Gordon J.A. said, at p. 194: “It seems to me that when an affidavit is filed it becomes a matter of record before the Court and could be used by any party.” Similarly in Chambers v. Bryant (1843) 12 L.J.Q.B. 139, to which I shall in a moment refer again, Williams J., in allowing a party to rely on an affidavit which he had earlier filed for a different but related purpose, observed: “The affidavit is on the files of the Court, and may, therefore, be used.”

I have looked at a number of old decisions which are concerned, not with the use of an affidavit filed by the other party for the purposes of the application in question, but with the use of an affidavit filed or sworn for some other purpose.  I refer to Hilman v. Chitty (1846) 7 L.T.O.S. 138; Chambers v. Bryant (1843) 12 L.J.Q.B. 139; Jones v. Turnbull (1853) 22 L.J. Ch. 1055.  Of these it may at least be said that they contain nothing to suggest that an affidvavit filed for the purposes of one application may not nowadays be used for the purposes of another application in the same proceeding.

See also Malcolm CJ’s decision in R v Pearce (1992) 7 WAR 395 at 419 as follows:

In Barristers’ Board (WA) v Tranter Corporation Pty Ltd [1976] 1 WAR, 65 at 67 Brinsden J held that the reading of an affidavit filed by an alleged contemnor as part of the Crown case against him was permissible.  This does not involve any infringement of the principle embodied in s 8(1)(a) of the Evidence Act.  It did not intrude upon the right to silence of an accused person in criminal proceedings, properly so called. What was contained in the affidavit was received because, on the face of the affidavit, it was a voluntary out of court statement, made on oath by the deponent on matters which were relevant to the proceedings.  These proceedings are governed by the Rules of the Supreme Court. As Brinsden J said in Tranter Corporation (supra) (at 67)

See also Re Vassis: Ex Parte Leung 64 ALR 407 at 409; British Thomson-Houston Co Ltd v British Insulated and Helsby Cables Ltd [1924] 2 Ch 160 at 164ff; Gillies The Law of Evidence in Australia 1st ed page 461; Dickie’s article in 70 ALR 184