Clough v Leahy [1904] HCA 38

Clough v Leahy [1904] HCA 38 - HCA 1904 case summary — Zoe

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only authority which could give rise to a doubt as to the of the Crown to appoint such a Commission is a statement in 1; Coke, pp. 31-32, as to Commissions of inquiry, that a cettaiy Commission was against the Iaw because it was to inquire only sothat a person might have been charged by perjury and have no remedy. That statement has been much criticised, as not being borne out by an examination of the real purpose and. scope of the Commission in question. Lord Campbell, in his Life of Coke, in Lives of the Chief Justices, vol. I, p. 281 (note) speaks of Coke's Reports as having been originally printed in Norman-French in 1634, and translated in 1656. The translation - may have misrepresented the original. In Attorney-General Bates (1), Coke's 12th Report is referred to as an undigested collection of notes and not of great weight. In Lewis v,_ Walter (2), Holroyd J., says that Campbell CJ., speaks disparagingly of the value of Coke's Reports owing to the intra sion of his own opinions. The validity of Commissions of inquiry was considered in connection with the Oxford University Com mission; Reports of Commissioners (Oxford University) for 1852, vol. 22, p. 30. That was a Commission to inquire into certain matters in connection with the administration of the University, and gave power to call for such persons, books, &ec., as the Commis- sion might think fit. An opinion was given by the officers of the Crown, that Commissions of inquiry were legal. They refer to the passage in Coke's Reports as being only in reference to inquities into offences. But inquiries may be made even into offences, s0 long as the Commission does not usurp the functions of the criminal Courts, and inflict punishment. In 1849 the Dollys Brae Commission, "Hansard," vol. 108, pp. 886-968, was issued by the Lord-lieutenant of Ireland, by warrant directing a magistrate to hold an inquiry in County Down and investigate all matters that took place on the occasion of a certain Orange Procession, and to eause steps to be taken to bring to justice the perscns legally responsible for the outrages committed on that occasion; Accounts and Papers, Ireland (1850), vol. 51, p. 1 In 1867, a Commission was issued to Erle C.J., and others, to

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'hesume principle should be applied to Commissions to inquire {nto matters of private litigation. To take them away from the

(oatts is eontrary to the principles of Magna Charta and " sub- " sesive of the freedom " of the subject. {Gxwrims C.J - This Commission did not take them away "fom the Courts. It did not try them, as a Court would. It ~ wetely inquired.) A body may be a Court although it has not power to determine "the rights of parties : 3 Blackstone's Commentaries (1852 ed.), p. Y, It cannot really affect the rights of individuals ; but it can act ssifit had the power,until restrained. The Commission condemned ly Coke in Rep. 12 was very similar to the present, and his state- nent isentitled to great weight. The limitation upon the Crown's "right to inquire may be stated thus, that a public inquiry, by exeative authority only, into questions of the guilt or innocence
individuals or their civil rights, or into the merits of a dispute
leiwen two individuals, otherwise than with their consent, is contrary to law, not in the sense that it is punishable as an offence, but that a direction to do it cannot be acted upon. By -*miblie" is meant by public authority and in a public manner,
sdistinet from obtaining information by private inquiry. The
tbing of a thing by the Sovereign may be unlawful as terrifying nl oppressive, although the same thing done by a private indi- tual is harmless and lawful, e.g., the soliciting of " benevolences."
(Gurrm C.J. - Can the mere discovery of a crime by the Gonmission be a legal wrong to anybody, particularly to the 'ininal? 'The mere fact that the inquiry may lead to defamation 'uot sufficient to make it an injurious Commission. It is only ial or unjustified defamation that is contrary to the law.] The inquiry into guilt or innocence is a judicial function : 4 ane of England, \st ed. (1867), p.74; Dawkins ort Rokeby (1). 'The case of an arbitration is very different. 'sfomnded on the consent of parties, and the legislature in the () LR. 8 QB, 255.

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'Court of New South Wales making absolute a rule nisi for a hibition against a conviction by which the respondent was tonvited of refusing, without reasonable excuse, to be sworn by Commission. It has been the practice in New South 'Wales, and, I believe, in most, if not in all, parts of the British Dominions, for many years, for the Crown, from time to time, to appoint Commissioners to make inquiry concerning matters as to whieh the Executive Government thinks it desirable that informa- tion should be collected, to be made use of in the administration ofthe affairs of the country, or for the guidance of Parliament. yy years ago the legislature of New South Wales, recognizing the practice, and recognizing also that the Commissioners so sppointed had no coercive power either to require the attendance ~ ofwitnesses, or to require them to be sworn or to answer questions, jussed a Statute which has from time to time been amended, and isnow found in the Act No. 23 of 1901, called The Royal Com-

nissioners Evidence Act. In substance that Act provides that, wherever by letters patent under the Great Seal the Governor- 'in-Comneil appoints a person or persons as a Commission to make ny inquiry, the chairman or sole Commissioner may summon any person whose evidence is, in his judgment, material to the subject-
huntter of the inquiry, And it is provided by the eighth section that any person served with a summons who, without reasonable _txeuse, fails to attend before the Commi 'sior,or toanswer any questions put to him by any Commissioner beating on the subject-matter of the inquiry, shall be liable to a fine not exceeding £20. On 2nd February last the Governor of New South Wales, with the advice of the Executive Council, issued letters patent appoint- ing Commissioners, of whom the chairman was a District Court Tulge, one of the Commissioners being the Minister for Lands, and te other six being members of the Legislative Assembly, and tuthorizing them to make a diligent and full inquiry into the

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ean the Crown enforce the answering of a question by ay individual, unless some law confers the authority to do so. Nor can the Crown justify the publication of defamatory ma merely by its authority. If, in the course of an inquiry made by the Crown, defamatory matter is published, it is actionable, and anay be perhaps punishable criminally, unless it is protected by the general law. If the circumstances of the publication are such as to render it lawful, under what is commonly called here the rule of privilege, then the Crown has not authorized the doing of an unlawful act, but the doing of a lawful act. If defamatory words are spoken under cireumstances which do not come withia the protection of justification or privilege, the person speaking them bas no protection whatever, and is liable to the ordinary consequences of an unlawful act. This doctrine applies to all matters alike, whether the matter is one of public or private interest. The rules for determining whether particular defama- tory matter so published would be privileged may vary according to the cireumstances, but, if the publication is lawful, it is not from the mere fact of the issue of the Commission, but because the circumstances under which the publication was made are such that the law holds the publication lawful. Nor can the Crown interfere with the administration of the course of justice, It is not to be supposed that the Crown would do such a thing but, if persons acting under a Commission from the Crown were to do acts which, if done by private persons, would amount to an unlawful interference with the course of justice, the act would be unlawful, and would be punishable. So that in this respect the powers of the Crown are practically no greater than the powers of a private individual. It is quite unnecessary, indeed, to call in aid what are called the "prerogative" powers of the Crown. That term is generally used as an epithet to describe some special powers, greater than those possessed by individuals, whieh the Crown can exercise by virtue of the Royal authority. 'There are some such powers exercised under the law, but the power of inguiry is not a prerogative right. The power of inquiry, of asking questions, is a power which every individual citizen possesses, and, provided that in asking these questions he does not

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itself. He, however, soys that a difference arises if the inguinyis made publicly. I will refer directly to his argument on that point, and in the meantime it will be convenient to say something on the supposed authorities on the subject. The only thing that can be called an authority is the passage quoted from 12 Coke, 31, in which the Judges are stated to have resolved - under what circumstances we do not know, when we do not know, and for what purposes we do not know, that certain Commissions issued in the time of James I. were unlawful. These Commissions were in form Commissions to inquire into various acts which were, or were supposed to be, misdemeanours. 'The form was stk stantially the same as Commissions of oyer and terminer. Juries of twelve were to be sworn and to make presentments, and the Sheriff was directed to summon them under the ordinary pro- cess of law. They were in fact an attempt to institute new Courts with coercive jurisdiction, which were to hold proceedings in the nature of an inquisition, and the findings of the jurors were to be recorded in the Court of Chancery. What was to be i done with them afterwards does not appear. 'The learned Judges held that such an attempt as that was unlawful, and it is only strange that anyone should have thought it competent for the Crown in that day, in the exereise of its prerogative power, to establish a new Court of that kind and confer upon it coercive jurisdiction. This authority has clearly no bearing on the general question whether a Commission to inquire and collect such information as witnesses voluntarily give it is lawful. Then we were referred to the ease of the Commission to inquire into the affairs of the Oxford University, as to which there was guoted to us the opinion of four extremely learned lawyers to the effect that that Commission was unconstitutional and illegal But, on inquiring what were the questions submitted to these learned lawyers, we find they were whether the Commission was "constitutional and legal, and such as the University, or the members of it are bound or ought to obey." Whether it was constitutional and legal seems to be an abstract question, the meaning of which might be interpreted differently by different Persons. What the persons who took advice wanted to know was whether they were bound to obey the Commission or not, that

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Judgment (130 paragraphs)