Commonwealth v Baume [1905] HCA 11

Commonwealth v Baume [1905] HCA 11 - HCA 1905 case summary — Zoe

[33]

Want KC. and J. Campbell, for the respondent. The inten- of the legislature in passing sec. 64 of the Judiciary Act 3 was to place the Commonwealth in the same position as a sabject in suits to which the Commonwealth was a party, whether intiff or defendant. Under the section it is as much amen- the to the jurisdiction of the Supreme Courts when defendant sifit had invoked the jurisdiction itself. The Petition of Right 4ot (23 & 24 Viet. c. 34) dealt only with claims against the Crown, ind therefore the cases involving the rights of suitors under it do tot apply here. 'The difficulty of enforcing an order is not a atter for this Court to consider. The Court which makes the rier will find means to enforce it practically, as by declining to assist the defendant until the order is complied with. The eet of the words " as nearly as possible" is to give the Supreme Court power to vary the construction of the procedure Statute in 'och a way as to give analogous relief, unless the difficulties in way of enforcement of its order are insuperable. A similar difiealty in ordering discovery against an infant suing by next friend was surmounted by the English Courts in Higginson v. Hill (1). (Grirrira C.J. - Pearson J. declined to follow that case in Dyke

Stephens (2).] The right to sue is valueless without incidental rights necessary togive effect to it. It had been decided in Ricketson v. Smith (3), that in New South Wales discovery could be ordered against the Grown, and therefore the word "rights" in sec. 64 of the Judiciary 4c 1903 must be taken to mean rights as heretofore declared. 'That section is a permanent submission by the Commonwealth 'othe jurisdiction of the Supreme Courts. (Geer C.J. - It is a submission to whatever jurisdiction the 4 te Court possesses. If the State Court has original and 'therent jurisdiction to order discovery, then there is a sub- uisson to that; but if that Court has only a limited statutory imstiction to make such orders, you must show that the right falls within the provisions of the Statute.] See 102 of the Common Law Procedure Act covers the case.

[62]

'gale isa good one, the ease should have been decided in favour H.©. or A. 'gfthe suppliant on that ground, which, however, does not appear 1905. tohave been put forward. In my opinion we cannot, without treat- ra» Comox {nthe words of the second member of the sentence as surplusage, WH which would be contrary to settled canons of construction, interpret Baur. the words "shall answer on affidavit" as having any other Grimm o mening when applied to the party himself, than "shall answer by fis own affidavit." It appears that in two instances orders were "ule in Chambers by learned Judges in England allowing dis- covery by a plaintiff to be made on the affidavit of his agent: Barnett v. Hooper (1). But, on examination, it appears that these orders were made at the plaintiff's instance, and asa concession to him in order to eseape the consequences of the stay of proceedings which was incident to the order for discovery. This principle is exphined by Pearson J. in Dyke v. Stephens (2), who seems to fave thought that it was applied in Ranger v. Great Western Railwony Co. (3). Again: it was never the practice of the Court af Chancery, which had large powers to order discovery, to order itto be made by the next friend of an infant or Innatie: Dyke v. Stephens (2). Tt is clear that the Commonwealth as such cannot make an affidavit. It cannot, therefore, in my opinion "answer " maffidavit" within the literal meaning of see. 102. The second point made by the plaintiff is on the words "as ~ neatly as possible." 'These words, it is said, are capable of two constructions - one, the more limited construction, being that they tuean so far as the powers of the Conrt sought to be invoked in the course of a suit can be exercised against a body politic such 4 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, 'swell as prescribing the manner of its application, and may and ought to adapt or extend the words of the Statute to the par- ticular case, although it does not fall within the meaning of the Words used. This second construction is open to the grave Ahjection that the adaptation or extension of the words of a

[63]

H.C. or A. Statute to a case not within its actual provisions is the 1905. of the legislature and not of the Court. : uncouwos. At one time, indeed, the Courts were inclined to assume th westtH function of interpreting according to what they called the epi of the Statute, "Equity," said Lord Coke (1 Inst. 24b), "isa con. struction made by the Judges, that cases out of the letter of Statute, yet being within the same mischief, or cause of the walk of the same, shall be within the same remedy that the Statute provideth ; and the reason hereof is, for that the lawankes could not possibly set down all eases in express terms." But ih doctrine is no longer followed. é In Brundling v. Barrington (1), decided in 1827, Lol Dene terden C.J. said : "think there is always danger in giving effectto 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 legislature might possibly have provided for other cases had their attention been directed to them"; and in Attorney-General y, Sillem (2), decided in 1863, Bramwell B. remarked, with referente 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 shoul 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 Hennesy | y. Wright (3).] Such a limitation is indeed suggested by the language of see. 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 produetiou of which would, in the opinion of the responsible Minister, be detri-

At a glance

Court

Decision date

Before

Source

Judgment (106 paragraphs)

diction of Supreme Court (o order discovery against Commonwealth - Common 1905.