Commonwealth v Baume

2 CLR 405
1905 - 0411A - HCA

---

(Judgment by: Griffith CJ)

Commonwealth
v Baume

Court:

Judges:
Griffith CJBarton J
O'Connor J

Subject References:
Year Menu
Constitutional law
Crown
Proceedings by
Privileges and immunities of Crown
Submission to jurisdiction by sovereign power
Effect of Crown
Submission to jurisdiction by sovereign power
Effect of Practice and procedure
High Court of Australia
Proceedings against Commonwealth
Whether within jurisdiction of State court to order discovery against Commonwealth

Legislative References:
Judiciary Act 1903 (Cth) - s 64
Common Law Procedure Act 1899 (NSW) - s 102

Hearing date: 4 April 1905; 5 April 1905; 10 April 1905
Judgment date: 11 April 1905

Sydney

---

Judgment by:
Griffith CJ

GRIFFITH C.J. The question raised in this case, which is one of considerable importance, turns upon the construction of s 64 of the Judiciary Act 1903. Section 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 (s 75). In execution of the authority conferred by s 78 the Parliament enacted, by s 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. Section 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 (s 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 etc 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 s 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 quaestio. 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 s 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 s 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 s 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]] , per Field J..] Such a limitation is indeed suggested by the language of s 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 s 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.