Commonwealth v Baume [1905] HCA 11

Commonwealth v Baume [1905] HCA 11

The Supreme Court of New South Wales does not have the jurisdiction under s 102 of the Common Law Procedure Act (N.S.W.) to order discovery by affidavit against the Commonwealth, because the statutory language does not include the Commonwealth and the procedural rights conferred by s 64 of the Judiciary Act 1903 are only as nearly as possible those between subject and subject. The Commonwealth cannot be compelled to make an affidavit of discovery as neither an individual nor a corporation.

Parties
Appellant; Defendant: The Commonwealth; Respondent; Plaintiff: Baume
Jurisdiction
Australia
Judgment Date
10 April 1905
Procedural Posture
Appeal / Final Appellate Decision
Outcome
appeal allowed
Legal Topics
Discovery of Documents, Crown/state/statutory Immunity, Judiciary Act 1903 S 64, Common Law Procedure Act (n.s.w.) S 102
Civil Procedure Administrative Law Discovery of Documents Crown/state/statutory Immunity Judiciary Act 1903 S 64 Common Law Procedure Act (n.s.w.) S 102

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Parties

The Commonwealth

Appellant; Defendant

Baume

Respondent; Plaintiff

Procedural Posture

Appeal / Final Appellate Decision

Legal Issues

  1. 1 Whether the Supreme Court of New South Wales has jurisdiction to order discovery of documents against the Commonwealth in an action brought by an individual under the Judiciary Act 1903
  2. 2 Interpretation of s 102 Common Law Procedure Act (N.S.W.) as it applies to the Commonwealth

Ratio Decidendi

The Supreme Court of New South Wales does not have the jurisdiction under s 102 of the Common Law Procedure Act (N.S.W.) to order discovery by affidavit against the Commonwealth, because the statutory language does not include the Commonwealth and the procedural rights conferred by s 64 of the Judiciary Act 1903 are only as nearly as possible those between subject and subject. The Commonwealth cannot be compelled to make an affidavit of discovery as neither an individual nor a corporation.

Court Disposition

appeal allowed

Orders

  • Order of the Supreme Court of New South Wales set aside
  • Costs awarded to the appellant