Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 (10 April 1905)

HIGH COURT OF AUSTRALIA

The Commonwealth Defendant, Appellant; and Baume Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

10 April 1905

Griffith C.J., Barton and O'Connor JJ.

Garland for the appellant.

Want K.C. and J. L. Campbell, for the respondent.

Garland in reply.

April 11th

Griffith C.J.

The question raised in this case. which is one of considerable importance, turns upon the construction of sec. 64 of the Judiciary Act 1903. Sec. 78 of the Constitution provides that the Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power. The judicial power extends to all matters in which the Commonwealth is a party (sec. 75). In execution of the authority conferred by sec. 78 the Parliament enacted, by sec. 56 of the Judiciary Act 1903, that any person making any claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth in the High Court or in the Supreme Court of the State in which the claim arises. The plaintiff in the present case, taking advantage of this provision, has brought this action on the common law side of the Supreme Court of New South Wales. Sec. 64 of the Judiciary Act 1903 provides that, in any suit to which the Commonwealth or a State is a party, the rights of the parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject. The question for determination is the meaning to be given to the words "as nearly as possible." It arises in this way. The Common Law Procedure Act N.S.W., (No. 21 of 1899), provides (sec. 102) that upon the application of either party to any action or other proceeding, upon an affidavit by such party or his attorney that any document, to the production of which he is entitled for the purpose of discovery or otherwise, is in the possession or power of the opposite party, the Court or a Judge may order that (a) the party against whom such application is made, or (b) if such party is a body corporate, some officer to be named of such body corporate, "shall answer on affidavit" as to the documents in his possession &c. Mr. Justice A. H. Simpson, sitting in Chambers, and purporting to act under the authority of this section, made the usual order for discovery against the defendant, who now appeals from the order on the ground, substantially, of want of jurisdiction to make the order.

Some points appear free from doubt. It has always been held that a sovereign power invoking the assistance of a Court of justice as plaintiff submits itself to the jurisdiction of the Court for the purposes of the suit, so that any order that could be made against an ordinary plaintiff may be made against it. Of this rule Prioleau v. United States of America[1] affords a good illustration. On the other hand, a Court of justice has no jurisdiction against a sovereign power which does not subject itself, or is not subjected by Statute, to its jurisdiction. There can be no doubt that sec. 56 of the Judiciary Act 1903 operates as a submission by the Commonwealth to the jurisdiction of the High Court or a State Court in cases falling within the section. But in every case the question must arise, what is the jurisdiction of the particular Court whose aid is invoked. If the Supreme Court of New South Wales has a general discretionary power to order the parties to suits to make discovery by any means which it thinks fit to direct, cadit quæstio. But it is clear that this is not so. Courts of common law never had any such general discretionary power, and such powers as they have were conferred by Statute. The Court of Chancery, on the other hand, had jurisdiction to grant discovery for various purposes, but subject to settled rules of practice. In the present case we are dealing with an action at common law. The plaintiff must therefore show that the Supreme Court has jurisdiction under the Statute of 1899 to order discovery against the Commonwealth. Again, it is not open to doubt that the Commonwealth as mentioned in the Judiciary Act 1903 means the body politic called by that name, which is not a corporation or body corporate in the sense in which those words are used in sec. 102 of the Act No. 21 of 1899, but stands for the Crown as representing the whole community, and that it is entitled to the same privileges and rights as the Crown, except so far as it has surrendered them by virtue of the Act: See Roberts v. Ahern[2].

The case for the plaintiff is put in two ways. First it is said that the words "may order that the party shall answer on affidavit" include a power to order a party to answer on the affidavit of some other person than himself. And for this the case of Ranger v. Great Western Railway Co.[3] is cited. In that case it was held that a Statute which provided that the Court might make an order "for the production by any defendant on oath" authorized the Court to order production by a defendant company on the oath of its officer. If this is the meaning of the words "may order that the party shall answer on affidavit," as used in sec. 102, the plaintiff is entitled to succeed. But the section goes on to make specific provision for the case of bodies corporate, which, on the interpretation contended for, was unnecessary. In The King v. Berchet[4] a case decided in 1688, it was said to be a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent. In The Queen v. Bishop of Oxford[5] the Court applied this rule. The Statute under consideration in that case enacted that in certain cases "it shall be lawful" for a bishop on the application of the party complaining, or "if he shall thinkfit," of his own motion, to issue a commission of inquiry against a clerk in holy orders. The question was whether in the first part of the section the words "it shall be lawful" imposed a duty or gave a discretionary power. After referring to the rule in The King v. Berchet[6] (which they quoted from Bacon's Abridgment) the Court added[7]: "But this is not all. The words are significant as indicating the sense in which the words it shall be lawful in the preceding part of the section had been used by the framers of the Act. They would in any point of view have been idle if not introduced to qualify the effect of the words it shall be lawful as imposing a duty." Conceding then that the words "shall answer on affidavit," standing alone, would be open to two constructions—one that the party should answer by his own affidavit, the other that he should answer by the affidavit of himself or some other person under his control—it is clear that on the latter contention the words relating to bodies corporate would be idle. The case of Thomas v. The Queen[8] was decided on the corresponding section of the English Common Law Procedure Act 1854, which is in identical words. It is not very easy to discover the exact grounds of the decision in that case, but if the point now made is a good one, the case should have been decided in favour of the suppliant on that ground, which, however, does not appear to have been put forward. In my opinion we cannot, without treating the words of the second member of the sentence as surplusage, which would be contrary to settled canons of construction, interpret the words "shall answer on affidavit" as having any other meaning when applied to the party himself, than "shall answer by his own affidavit." It appears that in two instances orders were made in Chambers by learned Judges in England allowing discovery by a plaintiff to be made on the affidavit of his agent: Barnett v. Hooper[9]. But, on examination, it appears that these orders were made at the plaintiff's instance, and as a concession to him in order to escape the consequences of the stay of proceedings which was incident to the order for discovery. This principle is explained by Pearson J. in Dyke v. Stephens[10], who seems to have thought that it was applied in Ranger v. Great Western Railway Co.[11]. Again: it was never the practice of the Court of Chancery, which had large powers to order discovery, to order it to be made by the next friend of an infant or lunatic: Dyke v. Stephens[12]. It is clear that the Commonwealth as such cannot make an affidavit. It cannot, therefore, in my opinion "answer on affidavit" within the literal meaning of sec. 102.

The second point made by the plaintiff is on the words "as nearly as possible." These words, it is said, are capable of two constructions—one, the more limited construction, being that they mean so far as the powers of the Court sought to be invoked in the course of a suit can be exercised against a body politic such as the Commonwealth—the other as meaning that the Court should treat the express provisions of any Statute conferring powers on the Court as laying down a general rule or principle, as well as prescribing the manner of its application, and may and ought to adapt or extend the words of the Statute to the particular case, although it does not fall within the meaning of the words used. This second construction is open to the grave objection that the adaptation or extension of the words of a Statute to a case not within its actual provisions is the function of the legislature and not of the Court.

At one time, indeed, the Courts were inclined to assume the function of interpreting according to what they called the equity of the Statute. "Equity," said Lord Coke (1 Inst. 24b), "is a construction made by the Judges, that cases out of the letter of a Statute, yet being within the same mischief, or cause of the making of the same, shall be within the same remedy that the Statute provideth; and the reason hereof is, for that the law-makers could not possibly set down all cases in express terms." But this doctrine is no longer followed.

In Brandling v. Barrington[13], decided in 1827, Lord Tenterden C.J. said: "I think there is always danger in giving effect to what is called the equity of a Statute, and that it is much safer and better to rely on and abide by the plain words, although the legislature might possibly have provided for other cases had their attention been directed to them"; and in Attorney-General v. Sillem[14], decided in 1863, Bramwell B. remarked, with reference to the old doctrine of the equitable construction of Statutes, that "such liberties are not now taken with Statutes." Such adaptations or extensions as are suggested must in any case be hazardous. For it may well be that, if the legislature had applied its mind to the subject, it would have refused to make the suggested adaptation or extension, or would have made it subject to conditions, of which the Court can have no knowledge, and on which it has no right to speculate. If room for speculation were open, I for one should be disposed to think that the right of discovery, if given at all, would probably have been limited to such documents as may be discovered without detriment to the public interest. [See Hennessy v. Wright[15].] Such a limitation is indeed suggested by the language of sec. 102 itself which uses the words "to the production of which he is entitled." I do not think that under that section the Court should make an order for the discovery of documents which it is clear ought not to be produced. It is settled that the Court will not require the production of documents the production of which would, in the opinion of the responsible Minister, be detrimental to the public interest, and will not review the decision of the Minister on the point.

In my opinion the words "as nearly as possible" mean as far as the provisions the aid of which is invoked are applicable to such a party as the Commonwealth. And, as the words of sec. 102 of the Common Law Procedure Act, construed as requiring the party himself to make an affidavit, are not applicable to the Commonwealth, I think it is not reasonably possible to give the plaintiff the right which he claims. In other words, the express and limited jurisdiction given by the Statute to the Supreme Court of New South Wales does not extend to this particular case. Another illustration of a case in which it would not be possible to enforce against the Commonwealth as a party provisions applicable as between subject and subject is afforded by the provisions as to process of contempt. It would clearly be impossible to make an order for attachment or commitment, and the suggestion that this Court or any other Court could grant process of sequestration against a sovereign State, i.e., appoint a subordinate officer of government to take possession of all the instruments of government, seems so inconsistent with the notion of a sovereign State that it need only be mentioned to be dismissed as impossible.

It appears that in the present case the defendant has already offered to give the plaintiff all the discovery to which he is entitled, but it objects to the coercive powers of the Court being applied to it. For the reasons which I have given I think that the contention is right, and that the appeal must therefore be allowed. This decision does not in any way affect the question whether the High Court has under its rules jurisdiction to order discovery against the Commonwealth in a suit in this Court to which it is a party, or whether in a proper case the Supreme Court could impose the terms of consenting to give discovery as a condition of granting some application on the part of the Commonwealth.

Barton J.

I am of the same opinion.

O'Connor J.

The Commonwealth Parliament derives its power to legislate with reference to suits by and against the Commonwealth and the States from sec. 78 of the Constitution. The power thus given is "to make laws conferring rights to proceed against the Commonwealth or State in respect of matters within the limit of the judicial power." The power was first exercised in regard to the Commonwealth by a temporary Act, the Claims against the Commonwealth Act 1902. That was superseded by the Judiciary Act 1903, which by sec. 56 confers a right upon any person making a claim against the Commonwealth to sue the Commonwealth in the High Court, or in the Supreme Court of the State in which the claim arises. Thus the Commonwealth representing the Executive power of the community, or the Crown as it is sometimes called, is constituted a juristic person, and bound to answer in Court to claimants' suits. Sec. 64 declares that in such suits "the rights of the parties shall as nearly as possible be the same ... as in a suit between subject and subject." The rights of parties there referred to are of course rights of procedure. There is no power given by the section of the Constitution to affect any right of the Commonwealth outside procedure. What is the Commonwealth? Sec. 3 of the covering clauses of the Constitution declares the "Commonwealth of Australia" to be the name under which the people of the Australian Colonies have become united in a Federal Commonwealth. The Commonwealth is therefore not an individual, nor a partnership, nor a corporation, and in the nature of things there are steps in proceedings, which those parties could take, but which would be impossible to such a body as the Commonwealth. For instance, how could the Commonwealth make an affidavit or answer an interrogatory? Now it was in the power of the legislature to have removed these formal disabilities by enacting, for instance, that some officer should be appointed to make the affidavit or answer the interrogatories, as was done by the New South Wales Common Law Procedure Act 1899 in the case of corporations. Indeed in some instances the Judiciary Act 1903 recognizes the necessity of nominating an officer to represent the Commonwealth for the purposes of certain proceedings. By sec. 61, where the Commonwealth is plaintiff, suits may be brought in the name of the Commonwealth by the Attorney-General, or any person appointed by him in that behalf, and by sec. 63, where the Commonwealth is a party, all process is to be served on the Attorney-General, or upon some person appointed by him to receive service. But in no other cases has any special provision been made. It was open to the legislature to have enacted without qualification that in suits in which the Commonwealth is a party the rights of the parties shall be absolutely the same as in suits between party and party. In that case no doubt the Court would have been justified in adapting and modifying the procedure so as to give effect to that direction. But the legislature has not adopted either of these methods, it has simply declared in regard to this new legal entity, which is neither individual, nor partnership, nor corporation, that when it is a party in a suit the rights as to procedure shall be "as nearly as possible" the same as in a suit between subject and subject. To adopt the plaintiff's contention in this case would be to treat the words "as nearly as possible" as if they were omitted from the section. According to every recognized rule of construction we must give a meaning to them. Having regard to the inherent difference in the matters I have referred to between the Commonwealth and any individual partnership, or corporation, when parties to a suit, I do not see much difficulty in giving a reasonable meaning to the words in question. Taking them in their ordinary grammatical signification, and applying them to the subject matter, they express the qualification that the rights of the parties shall be as nearly as possible the same as between party and party, having regard to the inherent incapacity of such a legal entity as the Commonwealth in respect of certain of the proceedings in a suit.

We must now look at the proceedings for obtaining a discovery order under the New South Wales Common Law Procedure Act of 1899, in order to ascertain whether the Commonwealth can have in respect of them the same capacity as an ordinary party. In considering sec. 102 of that Act, under which it is claimed that the plaintiff had the right to an order of discovery as against the Commonwealth, it must be borne in mind that we are not dealing with any general power to grant discovery such as Equity Courts possess. The common law Courts have no such general power. Their power is limited to that conferred by the Statute, and it is stated in these words

... upon affidavit ... the Court or a Judge may order that—

(a)

the party against whom such application is made; or

(b)

if such party is a body corporate, some officer to be named of such body corporate,

shall answer on affidavit stating what documents he or they has or have in his or their possession or power relating to the matters in dispute, or what he knows as to the custody such documents or any of them are in, and whether he or they objects or object to the production of such as are in his or their possession or power, and if so on what grounds.

The object of the section is to obtain the oath of the party as to his knowledge of the documents or their whereabouts. Where, as in the case of a corporation, the Act is dealing with a party which from its nature cannot make an oath, special provision is made for obtaining the oath of a person who, as representing the corporation, is taken to have the knowledge of the corporation. It is not correct to say that the section entitles every litigant to an order for discovery against the opposite party. The effect of it may be more correctly stated to be that the Judge is authorized to make an order for the affidavit of discovery in two classes of cases only—one, the specially provided case of a corporation, the other where a party against whom the order is sought is capable of making a statement on oath. It is clear that the Commonwealth is not included in either of these classes. Probably the greater portion of the New South Wales Common Law Procedure Act can be applied to the Commonwealth in the same way as to any other party, This is one of the few cases in which it becomes necessary to apply the qualification of "as nearly as possible." Whether the omission in the Judiciary Act 1903 of some special provision in regard to the Commonwealth, similar to that adopted in the Common Law Procedure Act in the case of corporations, was or was not deliberately made, it is not perhaps material to inquire. But the express provisions for the representation of the Commonwealth by the Attorney-General in sections 61 and 63, to which I have already referred, are significant in this connection. Having regard to the protection which on grounds of public policy the law has always thrown round public documents, the production of which might be prejudicial to the public interest, it may well be that the legislature thought it best to give no new facilities for the disclosure of such documents by Commonwealth officers. In my opinion, therefore, sec. 102 gives no power to a Judge to order an affidavit of discovery to be made by the Commonwealth. It follows that there can be no power to order an affidavit to be made by an officer on behalf of the Commonwealth. The case of Ranger v. Great Western Railway Co.[16] cannot, under these circumstances, be an authority to justify the order which has been made. I therefore agree that the order of Mr. Justice A. H. Simpson must be set aside, and the appeal upheld.

Appeal allowed.

Solicitors for appellant, McNamara & Smith, for the Crown Solicitor of the Commonwealth.

Solicitor for respondent, Mark Mitchell.

[1] L.R. 2 Eq., 659.

[2] [1904] HCA 17; 1 C.L.R., 406.

[3] [1859] EngR 500; 4 DeG. & J., 74; 28 L.J. Ch., 741.

[4] 1 Show., 106.

[5] 4 Q.B.D., 245.

[6] 1 Show., 106.

[7] 4 Q.B.D., 245, at p. 261.

[8] L.R. 10 Q.B., 44.

[9] 1 F. & F., 412, 467.

[10] 30 Ch. D., 189.

[11] [1859] EngR 500; 4 DeG. & J., 74; 28 L.J. Ch., 741.

[12] 30 Ch. D., 189.

[13] [1827] EngR 426; 6 B. & C., 467, at p. 475.

[14] [1863] EngR 989; 2 H. & C., 431; 33 L.J. Ex., 92.

[15] 21 Q.B.D., 509, per Field J.

[16] [1859] EngR 500; 4 De G. & J., 74; 28 L. J. Ch., 741.