Smith's Weekly Publishing Co Ltd v Sunday Times Newspaper Co Ltd [1923] HCA 9; (1923) 31 CLR 552 (24 April 1923)

HIGH COURT OF AUSTRALIA

Smith's Weekly Publishing Company Limited Defendant, Appellant; and The Sunday Times Newspaper Company Limited Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

24 April 1923

Knox C.J., Isaacs and Rich JJ.

Weston (with him Evatt), for the appellant.

Shand K.C. (with him Curtis), for the respondent.

Weston, in reply.

The following written judgments were subsequently delivered:—

April 24

Knox C.J.

The appellant, the defendant in the action, applied in the Supreme Court for an order allowing inspection of a document mentioned in the affidavit of discovery of respondent's secretary. The document was described in the affidavit as a copy of a report by John Stewart & Co., public accountants. The application was resisted on the ground that the document related solely to and supported the respondent's case and did not support the case of the appellant or contain anything cutting down or impeaching the respondent's case, the affidavit of discovery containing a statement to this effect. The application for production of this document was refused by Ralston A.-J. This decision was affirmed on appeal by the Full Court of the Supreme Court; and the appellant now, by special leave, appeals to this Court against the order of the Supreme Court. The argument before us extended to many topics on which I find it unnecessary to express an opinion. Much of the argument was addressed to the question whether a party applying under sec. 102 of the Common Law Procedure Act, for production of a document for which protection is claimed in the terms used in the affidavit in this case, is in a better position as to the degree of certainty to be attained in establishing that the statement in the affidavit is erroneous than a party making a similar application in the Court of equity.

I express no opinion on this question, being of opinion that even if the Common Law Procedure Act authorizes the Court to order production on proof less convincing than that required by the practice of the Court of equity, the appellant has in this case wholly failed to establish that, on the material before the Court, there is any substantial ground on which to base a conclusion that the statement in the affidavit above referred to was made erroneously or under a misconception of the character of the document. As I understood his argument, Mr. Weston admitted that the statement in the affidavit is to be treated as conclusive unless the Court is satisfied that it was so made. The exact degree of satisfaction to be required is irrelevant in a case such as the present, in which there are really no facts on which the Court could properly arrive at that conclusion.

For these reasons I am of opinion that the appeal should be dismissed.

Isaacs and Rich JJ.

We agree that this appeal should be dismissed. Whether the relevant law, as held by the Supreme Court, requires reasonable certainty that the party making the affidavit has misconceived or misapprehended the character of the document in question, or whether it is sufficient to establish reasonable probability that the document is such as the applicant has a right to see, we are clear that the facts as they appear in this appeal, fall short of the necessary standard. But we conceive, in view of the very full argument on the law, that it is most desirable, in the interests of the general administration of justice in the Supreme Court of New South Wales, that we should not leave in dubio the reasons which guide us to our opinion. Secs. 102 and 103 of the Common Law Procedure Act were intended to be and are extremely valuable and, as we regard them, powerful means given by the Legislature to the Court for the better and more speedy and certain attainment of justice. We therefore think it very important to state their effect as that appears by the light of a body of judicial opinion of unusual weight and authority, short of the supreme tribunal.

It will conduce to a better appreciation of the matter if we begin with the section later in order—sec. 103. In reality it is the earlier in point of history. It was enacted in substance by the Act 16 Vict. No. 14, sec. 6, an Act to amend the law of evidence. In its consolidated form in the Act of 1899, there is no substantial alteration. But its operative effect must, of course, be determined by its interpretation as it stands in the Act of 1899. Its meaning, we think, is plain on its own language. But we are relieved from placing our own independent interpretation on the section by reason of the fact that the view we would personally take of its language, if it were res integra, is the settled construction of the corresponding English enactment from which it was adopted, namely, the Act 14 & 15 Vict. c. 99, sec. 6, known as Lord Brougham's Act. At that time the power of a Court of law to allow discovery was very limited (see Blogg v. Kent[1]), except where the Court of Exchequer in the exercise of its equitable jurisdiction went further (see per Pollock C.B. in Hunt v. Hewitt[2]). Shortly after the Imperial Act was passed, the case of R. v. Ambergate &c. Railway Co.[3] came before the Court of Queen's Bench. Lord Campbell C.J. said[4]: "The order is made under stat. 14 & 15 Vict. c. 99, sec. 6, which gives what I trust will prove a very beneficial provision for compelling the inspection of documents in civil actions, the only means for obtaining which, before that Act, was the filing a bill of discovery in equity." The words of the learned Lord Chief Justice were, as reported, not quite as wide as the statute, because the section contained words "by filing a bill or by any other proceeding in a Court of equity." But substantially he was right, because it referred the operation of the statute to the equity standard. That case, however, did not construe the enactment. A definite and finally accepted construction was put upon it in 1852. First, it was held in 1851, within three months of its passing, in Galsworthy v. Norman[5], that the section did not enable a party to obtain discovery, but merely to obtain inspection of documents of which he could allege affirmatively the necessary relevance. In Pepper v. Chambers[6], in January 1852, it was held that an affidavit by a party that he was "advised" as to the necessity of documents, without even stating belief, was insufficient. In June of that year Hunt v. Hewitt was decided. This, like Galsworthy's Case, held that not discovery but inspection was the purpose of the enactment. It was also held, and this is the important point now, that the case must be one in which a discovery could be obtained in a Court of equity. The procedure necessary is detailed at p. 243 of the report, and the rules of equity as to the right of inspection were decided to govern the matter[7]. On p. 245 the words "if no answer is given to them by affidavit" are extremely important in applying the section. Hunt v. Hewitt, which followed the Court of Common Pleas, was in 1863 approved by the Court of Queen's Bench in Chartered Bank of India, Australia and China v. Rich[8]; and so in that year every one of the Courts of common law held a clear and definite view that sec. 6 of the Act 14 & 15 Vict. c. 99 (the present sec. 103 of the Common Law Procedure Act 1899) was merely an "inspection" provision—a more summary method of getting at law the precise benefit of "inspection" which after discovery in equity could have been there obtained. This was later confirmed in the latest case on the subject prior to the Judicature Act 1875, namely, Hill v. Campbell[9]. That view was upheld by the majority of the Court, though Brett J. thought that the power of the Court as to discovery had been enlarged by later legislation, and that such larger power could be applied in administering sec. 6 of 14 & 15 Vict. c. 99. The majority, however, held that the original limitation applied; and that is important here. We apply that decision with the others in this way: we follow the rule in Hunt v. Hewitt[10] as to the original scope and effect of sec. 103, and we follow the decision in Hill v. Campbell, that sec. 102 and sec. 103 are to be read separately and, adopting the words of Lord Coleridge C.J.[11], neither attaching to the later procedure the limited consequences of the earlier statute nor enlarging the limited consequences of the earlier statute by the larger ones attached to a later procedure.

It was, of course, early apparent that the beneficial effects of the Act of 1851 were not as great as they were expected to be. It was well known, not only that the strict rule of equity as to discovery and inspection sometimes produced gross injustice (as, for instance, in the glaring case of Clapham v. White[12]), and often hampered the Chancellor in doing what he would have wished to do (as in Sheffield Canal Co. v. Sheffield and Rotheram Railway Co.[13]), but "discovery" as such was wholly unprovided for.

In 1854, by secs. 50 and 51 of the Common Law Procedure Act, a great advance was made. Sec. 50 corresponds to sec. 102 in the New South Wales Act, and the decisions under that first-named section govern the construction of the latter. The earliest form of the local enactment was in 1857 by 20 Vict. No. 31, sec. 23, adopted from the English Act.

The new English provisions first came under judicial consideration in Martin v. Hemming, where Pollock C.B. said[14]: "It is a very important statute, holding out the prospect of a very considerable change in the practice of the Courts, and it is an enactment likely to advance the efficiency of their proceedings." He, however, did not pronounce on the effect of it as that was not, as he said, "fully and fairly before us." In Hill v. Campbell[15] some of the decisions are traced. We shall refer only to some important ones. In 1857, in Thompson v. Robson[16], it was recognized in the argument of counsel that the new statutory provision by allowing "discovery" supplied the defect of the earlier enactment. The Court held, in effect, that the foundational affidavit of the applicant must show sufficient to satisfy the Court that inspection of at least one identifiable document is proper in the interests of justice. (See also per Byles J. in Woolley v. Pole[17] and per Willes J. in the same case[18]). In 1861, in Daniel v. Bond[19], Erle C.J. said of this section: "The statute has given to the Courts extremely wide powers for directing documents to be produced, limited only by what they shall think just." He adds: "I am well aware of the indefinite nature of that limitation, and of the danger of too great laxity in the exercise of this power." Williams J. and Keating J. concurred, the former in a supplemental observation expressly stating his assent to the construction placed by Erle C.J. on the statute. In 1863, in Woolley v. Pole, the Court agreed with Thompson v. Robson. In the same year the Court of Queen's Bench, in Chartered Bank of India, Australia and China v. Rich[20], had to consider not so much the scope of the section from the point of view with which we are now concerned as the application of it to the class of documents before the Court, namely, confidential communications. The Court held against inspection, and on this point one portion of Hunt v. Hewitt[21] was relevant. But in the judgment of Blackburn J. are some observations directly relevant to the present inquiry. The learned Judge says[22]:—"Under the Common Law Procedure Act 1854, 17 & 18 Vict. c. 125, sec. 50, the Court or Judge having before them the answer of the party as to the documents in his possession or power relating to the matters in dispute, and his objection to the production of them, may make such further order thereon as shall be just. I think the Legislature did not mean that we should be bound by the same rules by which a Judge of a Court of equity is bound; but that we should be regulated by what is just as between the parties." This entirely accords with the judgment of Erle C.J. and Williams J. in Daniel v. Bond[23]. And, in addition to the great authority of the opinion of Blackburn J. himself, it will be observed that he testifies to the general practice of the Court and the Judges in Chambers in reference to the matter. In the next year, 1864, in Houghton v. London and County Assurance Co.[24], the coping-stone, so to speak, is placed on the structure. It was held by the whole Court that the limits on the section were that the party applying must show that the documents of which he is asking inspection (1) do really exist and (2) are relevant to his case—that is, they must be relevant, not merely to the case, but to his case. The practice of the Court, as Williams J. observed in arguendo, had narrowed the decision in Thompson v. Robson[25]: "It is not necessary," said the learned Judge[26], "to show that the document would be evidence: it is enough if it may fairly be serviceable to the applicant's case." The whole tenor of the judgment of the Lord Chief Justice is that the applicant is not bound by the strict equity practice as to the evidence upon which the Court will act. The Court, according to that judgment, ascertains the facts as in any other case, subject only to the express conditions of the statute. They held, in the absence of an affidavit in denial, that ordinary business presumptions were sufficient and should be acted upon. Williams J. thought[27] that in the circumstances there was "such an air of probability," which was "not explained away by counter-affidavits," as to support the order for inspection. One has only to contrast this case with the case of Clapham v. White[28] to see how far the legislation had travelled beyond the equity practice. Finally, in 1875, just before the Judicature Act, came Hill v. Campbell[29], where Lord Coleridge C.J. and Brett J. certainly were of opinion (Grove J. expressing no opinion as to this) that sec. 50 of the English Act, that is, sec. 102 of the local Act, was not in any way limited by the practice or procedure of the Courts of equity. But, if not limited by any such practice or procedure and if empowered to "make such order as shall be just," it is plain to us that there can be no such restriction as that imposed by the old chancery practice, which is the admitted foundation of Attorney-General v. Emerson[30], and which required in the first place "reasonable certainty," by which was meant "that amount of certainty that a reasonable man would act on as a certainty"; and which required, in the second place, that that reasonable certainty should be arrived at from a very limited sphere of material. The old chancery practice, as pointed out by Jessel M.R. in Anderson v. Bank of British Columbia[31] and Bustros v. White[32]—that is, the chancery practice settled in 1852 and copied into the Judicature Rules—was by specific provision of Act of Parliament declared to prevail against any contrary practice in Courts of law. That accounts for the decisions in England following in such matters the equity practice. But in New South Wales that position does not exist. The statutory provisions remain in full force and effect, and have not been superseded. Their effect is, in our opinion, that which has been declared by the cases we have quoted.

In making such order as is "just," it is hardly necessary to say the tribunal is not left at large. The discretion is judicial, and not arbitrary. "Just" means, in such a case, "just according to law" (see Brown v. Dean[33]). While the tribunal is emancipated from the procedural and evidential fetters that had grown up historically in equity practice, it is still bound to observe the substantial rules of justice established in such cases as between litigants. Such, for instance, are the protection of legal professional confidence, of admissions tending to criminate or penalize, questions of public policy and so on. Those and kindred questions are matters which affect the justice of any order sought, and are as potent under sec. 102 as under sec. 103. None of those circumstances are suggested in the present case, but reference to them is made in order to prevent misapprehension.

Applying the law so ascertained to the facts before us, we cannot find any evidence of probability, and therefore there is nothing whatever to satisfy us that the report of which the appellant seeks inspection contains anything which could aid his case. There is the distinct oath of the plaintiff to the contrary. Treating that oath as evidence only, and open to contrary evidence, we find nothing to countervail it. True, there is the suggestion of learned counsel that if it had been favourable to the plaintiff it would have been attached to the prospectus; but that is mere suggestion. It may or may not turn out that the document in question does bear out that suggestion. But our duty is to act on the evidentiary material now before us; and, so acting, we think the appeal should be dismissed.

Appeal dismissed with costs.

Solicitors for the appellant, Heydon & Heydon.

Solicitors for the respondent, Houston & Co.

[1] (1830) 6 Bing., 614.

[2] (1852) 7 Ex., at p. 243.

[3] [1852] EngR 193; (1852) 17 Q.B., 957.

[4] (1852) 17 Q.B., at p. 966.

[5] (1851) 21 L.J. Q.B., 70.

[6] (1852) 7 Ex., 226.

[7] (1852) 7 Ex., at pp. 243-244.

[8] [1863] EngR 501; (1863) 4 B. & S., 73.

[9] (1875) L.R. 10 C.P., 222.

[10] [1852] EngR 91; (1852) 7 Ex., 236.

[11] (1875) L.R. 10 C.P., at p. 246.

[12] [1802] EngR 396; (1802) 8 Ves. Jun., 35.

[13] (1844) 1 Ph., 484.

[14] [1854] EngR 900; (1854) 10 Ex., 478, at pp. 486-487.

[15] (1875) L.R. 10 C.P., 222.

[16] [1857] EngR 595; (1857) 2 H. & N., 412.

[17] [1863] EngR 691; (1863) 14 C.B. (N.S.), 538, at p. 542.

[18] (1863) 14 C.B. (N.S.), at p. 546.

[19] [1861] EngR 172; (1861) 9 C.B. (N.S.), 716, at p. 723.

[20] [1863] EngR 501; (1863) 4 B. & S., 73.

[21] [1852] EngR 91; (1852) 7 Ex., 236.

[22] (1863) 4 B. & S., at p. 82.

[23] [1861] EngR 172; (1861) 9 C.B. (N.S.), 716.

[24] [1864] EngR 541; (1864) 17 C.B. (N.S.), 80.

[25] [1857] EngR 595; (1857) 2 H. & N., 412.

[26] (1864) 17 C.B. (N.S.), at p. 82.

[27] (1864) 17 C.B. (N.S.), at p. 83.

[28] [1802] EngR 396; (1802) 8 Ves. Jun., 35.

[29] (1875) L.R. 10 C.P., 222.

[30] (1882) 10 Q.B.D., 191.

[31] (1876) 2 Ch. D., at p. 654.

[32] (1876) 1 Q.B.D., at pp. 425-426.

[33] (1910) A.C., 373.