Griffin v South Australia [1924] HCA 40

'Cons | Foll British vv American

pues

2003) 53 TR 098

200 HIGH COURT

|HIGH COURT OF AUSTRALIA.]

GRIFFIN é 5 . t 3 e rf . Prat'

AGAINST

THE STATE OF SOUTH AUSTRALIA . . Derenpan

H.C. or A. Practice—High Court—Discovery and interrogatories—Action by resident of 1924. 'State against another State—Right to compel State to give discovery and a = interrogatories —The Constitution (63 & 64 Vict. c. 12), secs. 51 (XXX1X.), 75 (1

ADELAIDE, 76, 78—Judiciary Act 1903-1920 (No. 6 of 1903-—No. 38 of 1920), sec. 64.

Sept. 18, 19. Held, that in an action in the High Court by a resident of one State Mxrnovens another State, sec. 64 of the Judiciary Act 1903-1920 gives the plaintiff th ont right to obtain discovery of documents from, and to administer interrogatori — to, the defendant, and that sec. 64, in so far as it gives that right is wi Isaacs A.C.J.. the legislative power of the Commonwealth Parliament.

Gavan Dufly and Starke JJ.

The Commonwealth v. Miller, (1910) 10 C.L.R. 742, and Jamieson v. Dow (1923) A.C. 691, followed.

Question REsERVED.

An action was brought in the High Court by Hurtle Griffin, resident of the State of Victoria, against the State of South Australia by which the plaintiff sought to recover damages for negligence handling, storing and selling wheat which the plaintiff and of persons delivered to the Government of the defendant State p to the Wheat Harvest Acts 1915 and 1916 (S.A.). An appl was made by the plaintiff on summons to a Judge of the Supre Court of South Australia, pursuant to sec. 17 of the Judiciary 4 for an order for discovery of documents and for leave to plaintiff to administer interrogatories. The summons came for hearing before Poole J., who, pursuant to sec. 18 of Judiciary Act, reserved for the consideration of the Full Court

35 O.L.R.] OF AUSTRALIA.

the High Court, the question whether he had, upon the application, power either to order discovery of documents or to give leave to

administer interrogatories. The question reserved now came on for argument.

Piper K.C. (with him Norman), for the plaintiff. Sec. 64 of the Judiciary Act takes away the right of a State, as well as that of the Commonwealth, to resist discovery in actions brought against it in the High Court (Jamieson v. Downie (1) ). [Counsel were stopped. ]

Cleland K.C. (with him McLachlan), for the defendant. In an action in the Supreme Court of South Australia against that State a subject cannot get discovery. That is a substantive right of the State which the Commonwealth Parliament has no power to take away, and, if sec. 64 of the Judiciary Act is to be construed as purporting to take away that right, it is ultra vires the Constitution. 'The power in sec. 78 of the Constitution to make laws conferring tights to proceed against a State was intended to enable the Parliament to give a right to proceed in the High Court directly instead of by petition of right, but not to enable the Parliament to take away substantive or prerogative rights of a State. Sec. 4 of the Claims against the Government and Crown Suits Act 1912 (N.S.W.), which it was held in Jamieson v. Downie (1) took away the right of the Crown to resist discovery, is wider in its terms than sec. 64 of the Judiciary Act, and gave an ordinary right of action against the Crown, The decision in Commonwealth v. Miller (2) was based on the surrender of the Commonwealth by sec. 64 of the Judiciary Act of its immunity from discovery ; the State of South Australia has not surrendered that immunity. In Commonwealth v. Baume (3) this Court held that in a common law action in the Supreme Court of New South Wales against the Commonwealth the Commonwealth could not be compelled to give discovery. The tight of the Crown to resist discovery is more than a matter of procedure : it is a substantive right (La Société des Affréteurs Réunis v. Shipping Controller (4)) and a prerogative of the Crown (Aitorney- General v. Newcastle-upon-Tyne Corporation (5) ). See. 51 (xxxrx.)

(1) (1923) A.C. 691. (4) (1921) 3 K.B. 1.

(2) (1910) 10 C.L.R. . (5) (1897) 2 QB. 384, (8) (1905) 2 C.L.R. 405.

H. C. or A. 1924.

GrRirrin v. Sourn AUSTRALIA.

H.C. or A 1924.

GRIFFIN v. Sour AUSTRALIA.

Oct. 14.

HIGH COURT (9

of the Constitution does not authorize the Commonwealth Parliame to deprive a State of its power to resist discovery: the word " matters incidental to the execution of any power vested by i Constitution . . . in the Federal Judicature" are not wide enough for that purpose. The words "as nearly as possible" sec. 64 of the Judiciary Act were introduced in order to prese substantive rights such as the immunity of the Crown from discovery,

Piper K.C., in reply, referred to Hare on Discovery, Ist ed.,, p. 283; Calvert on Parties, 2nd ed., p. 386.

Cur. adv, walt,

The following written judgments were delivered :—

Isaacs A.C.J. In an action—and, therefore, within the mean of the Judiciary Act, sec. 64, in a " suit '—instituted in this Cour the plaintiff, Hurtle Griffin, a resident of Victoria, sued the State of South Australia, claiming, in respect of wheat delivered to th Government of the State under the Wheat Harvest (1915-1916) 4 1915, a declaration that he is entitled to compensation or recoupmen for negligence, and consequential judgment, accounts and inquirie The Government in its defence (inter alia) denies negligence, an denies all obligations except as founded on the Act. On thé defence the plaintiff joins issue. On 9th August 1924 a summons was taken out on behalf of the plaintiff returnable in Judges' Chambers, Supreme Court House, Adelaide, calling upon defendant to attend on an application for discovery of document on oath by the affidavit of George John Smith, a State officer, for leave to deliver interrogatories to be answered by the same offie The summons came on to be heard by Poole J., exercising as a J of the Supreme Court of South Australia the Federal jurisdiction conferred by sec. 17 of the Judiciary Act 1903-1920. After argumen Poole J., acting under sec. 18 of the Act, stated a case for th consideration of the Full High Court.

A few words from the statement of the case will indicate question of law that arises. Poole J. says :—" The defendant conte that no order for discovery can be made against the State of So ai

| 36 C.L.R.) OF AUSTRALIA.

Australia in a suit brought in the High Court of Australia by a | resident of another State. It is not contended by the defendant State that the language of sec. 64 of the Judiciary Act is not wide ' enough to enable an order for discovery to be made against the - Commonwealth in a suit instituted against it. That could not well » be argued in the face of Commonwealth v. Miller (1) and Jamieson v. ' Downie(2). Butit is argued that, giving the section its full meaning, it is ultra vires the Commonwealth Parliament."

The question therefore is: Has the Commonwealth Parliament power to enact that a State as litigant in Federal jurisdiction shall be liable to give discovery of documents and to answer interrogatories ? It was contended before us on behalf of the State that to refuse discovery and to decline to answer interrogatories was a prerogative of the Crown, and that the Commonwealth Parliament has no power

» to affect the King's prerogative in relation to a State. This, being , obviously a question of limits inter se, needs the most careful consideration. But after bestowing that care, it seems impossible , to doubt the conclusion.

' The defendant's argument rests ultimately on the position that the prerogative referred to is a "right" of the State and that the Federal judicial power, which is the subject of the Commonwealth . legislative power with respect to sec. 64 of the Judiciary Act, does | not include the alteration of rights. Miller's Case (1) was cited. It was there held that a subject plaintiff, suing the Commonwealth in the Victorian Supreme Court in Federal jurisdiction, had a right to discovery of documents by the Commonwealth. Precisely the same point was decided by the Judicial Committee, in Jamieson v. Downie (3), in relation to the State of New South Wales under a State Act. The Law Journal report is the fuller ; and from that it appears that Miller's Case was cited. In view of those two decisions, which are in accord, there appears to be no room for doubt

that sec. 64, so far as construction is concerned, affects the prerogative right referred to. But those cases decide, not that _ every right a suitor has is subject to the section dealt with, but only s that discovery is one of the rights that are so subject. In neither

(1) (1910) 10 CLLR. 742. (3) (1923) A.C, 691; 92 LJ. P.C. (2) (1923) A.C. 691. 185.

H.C. or A. 1924.

Grirrix v. Sovra AUSTRALIA

Isaacs A.C.J

H.C. or A. 1924, ~~

GRIFFIN v Sours AUSTRALIA.

Isaacs A.C.J.

HIGH COURT {19

case was it suggested that any right came within the scope of

section, if it were a substantive right—that is, a right arising entirely independent of the status of " litigant." Obviously the only rights pointed to by sec. 64 of the Judiciary Act are rights sometimes ca adjective rights, but more properly procedural rights. They rights which the parties have in the character of litigants, having for their sole purpose and end the allegation or denial, the ascertainment, establishment, refutation or enforcement of substantive rights of the suitors as these existed the instant p to litigation.

Jamieson's Case (1) does not directly afford us any assistance to determine how far the Commonwealth Constitution enables

the State in an action in Federal jurisdiction. The State Constitution is general. But the case is a reminder that the prerogative ri ' referred to is that of the King exercising executive power and n of the King in Parliament exercising legislative power. So the question is narrowed down to a conflict between Commonwealth legislative power and the executive power of a State.

Miller's Case (2) did not raise the question of legislative powe it went on a point of construction of sec. 56 and sec. 64 of Judiciary Act—that is, whether "rights" in sec. 64 include discovery and whether the order appealed from went beyond th : words "as nearly as possible."

Reliance for the defendant was, in this case, placed on 1 judgment of Barton J. (3) referring to urged that the case was supported on the voluntary submission the Commonwealth, through its Legislature, to the "rights referred to, and not on the ordinary compulsive force of # enactment as part of the law of Australia. Not only does that contention overlook that passage in the judgment (4) wher

'submission " ; and it w

compulsory subjection by statute is referred to, but it is a contenti which on the explicit terms of the Constitution is al inadmissible. The authority to enact sec. 64 of the Judiciary 4 rests entirely on the Commonwealth power of legislation granted i

(1) (1923) A.C. (2) (1910) 10

(3) (1910) 10 C.L.R. (4) (1910) 10 C.

, at p. 747. ., at p. 748 (LI)

35 C.L.R.} OF AUSTRALIA.

sec. 51 (xxxrx.) and chap. IIL, operating in respect of the judicial power conferred by the Constitution. Par, xxxrx. of sec. 51 is an express power quite as much as any other enumerated power, the Constitution not having left the existence or extent of so important a matter to the doubt of implication (see Ruppert v. Caffey (1) )- 'The "power vested by this Constitution . . . in the Federal Judicature" (par, xxx1x. of sec. 51) includes ex facie whatever original jurisdiction the Federal Judicature possesses either directly under see. 75 of the Constitution or indirectly by Commonwealth legislation under sec. 76 to sec. 80. Sec. 75 expressly refers to States as litigants. Sec. 76 in par. 1. necessarily includes States as possible litigants, and par. u., when read with some of the paragraphs of sec. 5l1—as, for instance, XXxxI., XXXII., xxx. and XXxiv.—cannot be read so as to exclude States as possible litigants in Federal original jurisdiction. It inevitably follows, when the well-known doctrine of Hodge v. The Queen (2) is applied, that the Commonwealth Parliament has the power of regulating the course of procedure in Federal jurisdiction from its initiation to its end, and the only question—subject to any express restrictions found in the Constitution itself—is how far it has assumed to regulate the subject matter. An Act of the Commonwealth Parliament authorized by the Imperial statute represents the legislative will of the Australian people as a whole, including the people of any State concerned in litigation, and every such Act, by sec. V. of the covering clauses of the Constitution, binds the people of every State. The common law, even that portion of it known as the prerogative, must, if the statute so require, yield to the will of the King in Parliament. In the American case of Virginia v. West Virginia (3) White C.J., for a unanimous Court, said: " That judicial power essentially involves the right to enforce the results of its exertion is elementary. . . . And that this applies to the exertion of such power in controversies between States as the result of the exercise of original jurisdiction conferred upon this Court by the Constitution is therefore certain." And see the judgment passim.

The result arrived at by the Legislature in sec. 64 of the Judiciary

(1) (1919-20) 251 U,S. 264, at p. 301.

) (1883) 9 App. Cas. 117, at p. 132. (3) (1917-18) 246

565, at p. 591.

H.C. or A. 1924.

Grirrin v. Sourn AUSTRALIA.

Isaacs A.C.3

H. C. or A. 1924.

GRIFFIN . Sourn AUSTRALIA.

Isaacs A.C.J.

HIGH COURT (192.

Act is not at all violent or surprising. Mr. Cleland urged that to determine this question against him would cause an anomaly, said it would give a greater right against the State to a non-reside of the State than to a resident. The two instances are not parallel, — Whether one, and if so which, has a greater right depends on the appropriate law. The State law may say what it pleases with respect to State jurisdiction and the functions of State Courts. Commonwealth law, an entirely different standard, as different as it were British or New Zealand law, may adopt for its jurisdiction and its Courts other regulations. So that the difference, if there be one, is not between residents and non-residents but between different codes of law. Further, the provision of sec. 64 is merely the legislative declaration of general application of a principle to some extent recognized by the common law, but largely obstructed by technicalities. a

Prerogative to-day, as Lord Macnaghten for the Privy Couneil said in New South Wales Taxation Commissioners vy. Palmer (1), "means that the interests of individuals are to be postponed to the interests of the community." Rigby L.J. said practically the same thing in Attorney-General v. Newcastle-wpon-Tyne Corporation (2). In Esquimalt and Nanaimo Railway Co. v. Wilson (3) Lord Buckmaster, speaking for the Privy Council, refers with approval to the broad basis on which, in an early case, Athyns B. founded his judgment. That basis was that " the party ought . . to be relieved against the King, because the King was the fountai and head of justice and equity, and it was not to be presumed that he would be defective in either, and it would derogate from

King's honour to imagine that what is equity against a con person, should not be equity against him "—'a ground of decision," adds Lord Buckmaster, " which has no relation whatever to statute of 33 Hen. VIII., but is based on general principles." With respect to discovery in an action—which, as Hare says his treatise on Discovery, at p. 2, is "'a branch of procedure" general practice has been as Rigby L.J. stated in Attorney-Gi

-— x = -

v. Newcastle-wpon-Tyne Corporation (4): '* There has always be

(1) (1907) A.C. 179, at p. 182. (3) (1920) A.C, 358, at p. 366. (2) (1897) 2 Q.B., at p. 395, (4) (1897) 2 Q.B., at p. 395.

$5 C.L.R.) OF AUSTRALIA.

the utmost care to give to a defendant that discovery which H- ©. oF A.

the Crown would have heen compelled to give if in the position of a subject, unless there be some plain overruling principle of public ~ interest concerned which cannot be disregarded." This principle and this practice the Commonwealth Parliament, following the example o} some of the States, has transmuted into a law for the purposes o! its judicial power. The defendant's contention would reduce this legislation to futility and make the relevant provisions of the Constitution one-sid The case of La Société des Affréteurs Réunis v. Shipping Controller (1), cited for the defendant, depends on the continuance in England of the doctrine of Thomas v. The Queen (2). That case, when referred to, shows that the matter of discovery of documents is one of procedure, The question raised by the case stated ought to be answered in

ed and unjust.

the affirmative both as to discovery of documents and as to interrogatories.

Gavan Durry anv Starke JJ. This is an action brought in this Court by the plaintiff, who is a resident of the State of Victoria, against the State of South Australia, seeking to render that State "Tiable for loss caused by the negligence of its servants and agents in the execution of the duties of the Government under the Wheat Harvest Acts 1915 to 1917 of South Australia." The claim is based upon allegations substantially the same as those dealt with by the Judicial Committee in Welden v. Smith (3). The matter raises a question of mixed law and fact determinable by reference to legal considerations only, and therefore justiciable in this Court by force of sec. 75 (tv.) of the Constitution (South Australia v. Victoria (4); Commonwealth v. New South Wales (5) ).

A summons was issued by the plaintiff returnable before the Supreme Court of South Australia, pursuant to sec. 17 of the Judiciary Aci 1903, seeking an order for the discovery of documents by the defendant, and also for leave to exhibit interrogatories to the defendant. This summons came before Poole J., who reserved for

(1) (1921) 3 KB. 1. (4) (1911) 12 C.L.R. 667.

(2) (1874) LR. 10 Q.B. 44. (5) (1923) 32 C.L.R. 200. (8) (1924) A.C. 484; 34 CLLR. 29,

1924. —~

GRIFFIN

v. Sourn

f AUSTRALIA.

f Isaacs ACJ

208 HIGH COURT (192

H.C. or A. the consideration of this Court the question whether he had poy 1924.

Grirrry interrogatories. It was argued that the Crown cannot be compel

sovura to give discovery to a subject (Thomas v. The Queen (1); Ato

AUSTRALIA.

either to order discovery of documents or to give leave to deliy

General v. Newcastle-upon-Tyne Corporation (2)). But the Judicia Gavan Dutty J. Act, sec. 64, provides that " in any suit to which the Commonwealth

or a State is a party, the rights of 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." Discovery can be ordered by this Court in suits between subject and subject (see Rules of the High Court, Order XXIX.), and is one of the rig of the parties in the conduct of their litigation. Jamieson v. Downie

(3) is, then, a conclusive authority that the provisions of sec. 64, valid, take away the right of the Commonwealth and the State to resist discovery in suits brought against them. Adapting the words used in that case, the Constitution has permitted actions against the Commonwealth and the States which were not theretofore allowed, and, as auxiliary and ancillary thereto, the Judiciary Act, sec. 64, has permitted a procedure theretofore inapplicable. But we must still consider the contention that sec. 64 is beyond the competence of the Parliament. It was said that the Stat were immune from discovery, and that the Constitution conferred no power upon the Parliament to take away or impinge upon that right or privilege. The argument is untenable in the face of Constitution, which enables the Parliament to make laws for the peace, order and good government of the Commonwealth with respect to' matters incidental to the execution of any power vested by the Constitution in the Federal Judicature (sec. 51, pl. xxxIx.). power is amply sufficient to warrant a law equipping tribuna which have been given jurisdiction to hear and determine suits to which the Commonwealth or a State is a party, " with any and ever authority the exercise of which may in any way assist" those tribunals in performing their function (cf. Willoughby's Constitutional Law of the United States, vol. 1., p. 58).

(1) (1874) LR. 10 Q.B. 44. (2) (1897) 2 Q.B. 384. (3) (1923) A.C. 691.

) C.L.R.] OF AUSTRALIA. 209

_ What we have said makes it unnecessary to determine whether H- ©. oF A. sec. 64 is not also within the legislative power conferred by sec. 78 iad of the Constitution ; and we express no opinion on that point. Grirris The provisions of sec. 64 do not, therefore, transcend the power — govrmu of the Parliament, and the question reserved must be answered in AUSTRALIA.

the affirmative.

Question answered in the affirmative both as to discovery of documents and interrogatories. Case remitted to the Supreme Court of South Australia. Costs of the special case to be costs in the application.

Solicitors for the plaintiff, Wadey, Norman & Waterhouse. Solicitors for the defendant, Baker, Glynn, McEwin & Ligertwood.

Bets (HIGH COURT OF AUSTRALIA.) THE UNION STEAMSHIP COMPANY OF les. NEW ZEALAND LIMITED ae aNp THE FEDERAL COMMISSIONER OF TAXATION ; ; | Responvenr. Income Tax—Assessment—Foreign shipping company—Taxable income—Deductions H.C. oF A. —Income Tax Assessment Act 1915-1918 (No. 34 of 1915—No. 18 of 1918) sees. 1924. 3, 16 (1), 22—Income Tax Act 1918 (No. 41 of 1918), secs. 2, 4 (5), Fourth C= Schedule. Sypney, Nov. 12, 28&

In the assessment of the income of a shipping company, of which the principal place of busines is out of Australia and which earries passengers, &c., shipped Kor C2. in Australia, from the sum which represents 10 per cent of the amount payable Bate 4°

to it in respect of the carriage of passengers, &c., and upon which sec. 22 (2)