Commonwealth v Baume

2 CLR 405
1905 - 0411A - HCA

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(Decision by: O'Connor J)

Commonwealth
v Baume

Court:

Judges: Griffith CJ
Barton 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

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Decision by:
O'Connor J

O'CONNOR J. The Commonwealth Parliament derives its power to legislate with reference to suits by and against the Commonwealth and the States from s 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 That was superseded by the Judiciary Act 1903, which by s 56 confers a right upon any person making a claim against the Commonwealth to sue the Commonwealth in the High Court, or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. Section 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 s 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 s 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 s 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, s 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.