James v Cowan [1929] HCA 46; (1929) 42 CLR 305 (20 August 1929)

HIGH COURT OF AUSTRALIA

H C of A

On appeal from the High Court (Starke J.).

19 June 1929

Starke J.

Cleland K.C. and K. L. Ward, for the plaintiff.

F. Villeneuve Smith K.C., Robert Menzies K.C. and A. J. Hannan, for the defendants and for Botten.

Starke J. delivered the following judgment:—

I regret that it is necessary to assert what I believe to be the proper authority of this Court against a gentleman who is only obeying what I take liberty to say is an improper action on the part of the Minister of Agriculture of South Australia. The witness has been served with a subpœna to produce certain minute books. The minute books are the property of the Dried Fruits Board of South Australia. The books are in his possession. The Chairman was called on his subpœna and said that the proper custodian of the books was the Secretary. The witness has stated that he has not been directed by the Board not to produce the books, and that he has no express instructions by it to produce them, but he is the person in whose custody they are lawfully residing, and he is the person who can produce them or not, as he thinks right, so far as the statements go. The witness admits that the books are in Melbourne, and in his possession, and that he refuses to bring them into Court. The only reason for refusing to act on his subpœna and bring the books in his possession into Court is that the Minister of South Australia—the Minister of Agriculture I think it is of South Australia—refuses to allow him to do so, and he has produced a document which is not sworn to, not verified in any way, purporting to be signed by the Minister, which I take to be the Minister's signature, asserting that "The said minute books are State documents and are communications relating to a department of the Government of the State of South Australia passing between the officers of the said department relating to the affairs of such department of State and made by officers of State to other officers of State in the course of their official duty. I direct you that the disclosure of the said minute books is contrary to public policy and that the interests of the State and of the public service and the public interest will be prejudiced by the production of the said minute books, and I direct you not to produce or disclose the said minute books to any person or persons. The above direction is not based in any way upon the pecuniary or commercial interests of the said department or of the State of South Australia or of the plaintiff, or upon any desire to defeat the plaintiff's claim in the action, but solely upon and in the interests of the public welfare and the public service." Whether the claim to privilege is good or bad is a matter which I suppose I should have to determine when the books are brought into Court pursuant to the subpœna. Yesterday I referred to a case of R. v. Greenaway[1] which I think rather shows that, if the witness has the lawful custody of the books, it is his duty to obey the subpœna, and then any question of privilege arising on the documents so brought into Court pursuant to the subpœna will be determined by the Court, but the question I have to determine is whether the witness is right in refusing to produce them, to bring into Court and produce documents according to his subpœna. I think that is simply a defiance of the law in saying that he will not do it upon the authority of somebody who claims to be, as I venture to think, above the law. If the books are produced, I am in a position, I think, to determine the question of privilege, but I am in no position to determine it when a witness says he will do nothing; who will neither obey his subpœna nor act upon the decision of the Court nor indeed take the slightest notice of what the Court thinks proper or right. There is only one result, I am sorry to say, but I must commit the witness to prison for his contempt of Court, and I do not know that I can tell him at what time he will be released until he purges his contempt. I regret the fact, because it seems to me that I am impelled, forced into a position which I think is unfortunate for the witness. He is doing a grievous wrong to the plaintiff. Witness, I regret, but I must commit you to prison for your contempt of Court.

From this order Botten now appealed to the Full Court of the High Court.

Appeal dismissed with costs.

Solicitor for the appellant, A. J. Hannan, Crown Solicitor for South Australia, by J. V. Tillett, Crown Solicitor for New South Wales.

Solicitors for the plaintiff, Edmunds, Jessop & Ward, Adelaide, by Dawson, Waldron, Edwards & Nicholls.

H C of A

On appeal from the High Court (Starke J.).

20 August 1929

Knox C.J., Gavan Duffy, Rich and Dixon JJ.

Cleland K.C. and K. L. Ward, for the plaintiff.

F. Villeneuve Smith K.C., Robert Menzies K.C. and A. J. Hannan, for the defendants and for Botten.

Starke J. delivered the following judgment:—

I regret that it is necessary to assert what I believe to be the proper authority of this Court against a gentleman who is only obeying what I take liberty to say is an improper action on the part of the Minister of Agriculture of South Australia. The witness has been served with a subpœna to produce certain minute books. The minute books are the property of the Dried Fruits Board of South Australia. The books are in his possession. The Chairman was called on his subpœna and said that the proper custodian of the books was the Secretary. The witness has stated that he has not been directed by the Board not to produce the books, and that he has no express instructions by it to produce them, but he is the person in whose custody they are lawfully residing, and he is the person who can produce them or not, as he thinks right, so far as the statements go. The witness admits that the books are in Melbourne, and in his possession, and that he refuses to bring them into Court. The only reason for refusing to act on his subpœna and bring the books in his possession into Court is that the Minister of South Australia—the Minister of Agriculture I think it is of South Australia—refuses to allow him to do so, and he has produced a document which is not sworn to, not verified in any way, purporting to be signed by the Minister, which I take to be the Minister's signature, asserting that "The said minute books are State documents and are communications relating to a department of the Government of the State of South Australia passing between the officers of the said department relating to the affairs of such department of State and made by officers of State to other officers of State in the course of their official duty. I direct you that the disclosure of the said minute books is contrary to public policy and that the interests of the State and of the public service and the public interest will be prejudiced by the production of the said minute books, and I direct you not to produce or disclose the said minute books to any person or persons. The above direction is not based in any way upon the pecuniary or commercial interests of the said department or of the State of South Australia or of the plaintiff, or upon any desire to defeat the plaintiff's claim in the action, but solely upon and in the interests of the public welfare and the public service." Whether the claim to privilege is good or bad is a matter which I suppose I should have to determine when the books are brought into Court pursuant to the subpœna. Yesterday I referred to a case of R. v. Greenaway[2] which I think rather shows that, if the witness has the lawful custody of the books, it is his duty to obey the subpœna, and then any question of privilege arising on the documents so brought into Court pursuant to the subpœna will be determined by the Court, but the question I have to determine is whether the witness is right in refusing to produce them, to bring into Court and produce documents according to his subpœna. I think that is simply a defiance of the law in saying that he will not do it upon the authority of somebody who claims to be, as I venture to think, above the law. If the books are produced, I am in a position, I think, to determine the question of privilege, but I am in no position to determine it when a witness says he will do nothing; who will neither obey his subpœna nor act upon the decision of the Court nor indeed take the slightest notice of what the Court thinks proper or right. There is only one result, I am sorry to say, but I must commit the witness to prison for his contempt of Court, and I do not know that I can tell him at what time he will be released until he purges his contempt. I regret the fact, because it seems to me that I am impelled, forced into a position which I think is unfortunate for the witness. He is doing a grievous wrong to the plaintiff. Witness, I regret, but I must commit you to prison for your contempt of Court.

From this order Botten now appealed to the Full Court of the High Court.

Appeal dismissed with costs.

Solicitor for the appellant, A. J. Hannan, Crown Solicitor for South Australia, by J. V. Tillett, Crown Solicitor for New South Wales.

Solicitors for the plaintiff, Edmunds, Jessop & Ward, Adelaide, by Dawson, Waldron, Edwards & Nicholls.

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1. (1845) 7 Q.B. 126.

2. (1845) 7 Q.B. 126.