Commonwealth v Baume [1905] HCA 11

imi Procedure Act (N.S.W.), (No. 21 of 1899), sec. 102*. 1008 (No. 6 of 1903), sec. 64.

Seo, Ot of the Judiciary Act 1903, provides that in suits to which the

Commonwealth is a party the rights of parties shall as nearly as possible crimn oJ. he the same as in a suit between subject and aubject. Gooner ad

See, 102 of the Common Law Procedure Act (N.S.W.), (No. 21 of 1899) Worides that on the application of either party to an action the Court or a 'uige may order that " the party against whom the application is made, or if such party is a body corporate, sume officer to be named of such body 'orporate," shall answer on affidavit as to documents in his possession relating to the matters in dispute.

{*)See.1020f the Common Law Pro- tire Act (N.S.W.), (No, 21 of 1899), faas follow

102 (1) Upon the application of either Baty toany action or other proceeding, Won an afidavit by such party or his Aitomey of his belief that any docu- Beat to the production of which he is tail for the purpose of discovery or thew in the possession of 'the piss Baty, the Court or a Judge lt) the party against whom such

gy {plication is made; or ) ifsuch party is a 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 docu- ments 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 80 upon what grounds.

(2) Upon such affidavit being made the Court or Judge may make such further order thereon as shall be just.

Held, that the Supreme Court of New South Wales has no j am action brought in that Court by an individual against the Gomny to make an order for discovery of documents against the defendant

Apreat from a decision of A. H. Simpson J. in Chambers

The plaintiff brought an action at common law in the Supm Court of New South Wales, under sec. 56 of the Judioiany 1903, against the Commonwealth, to recover compensation f the wrongful detention by the Customs authorities of goods imported by the plaintiff. Before setting down thea for trial, the plaintiff formally requested the defendant to cons to an order for discovery of documents under sec. 102 of th Common Law Procedure Act (N.S.W.) (No. 21 of 1899) defendant's solicitors replied stating that the defendant

plaintiff to have inspection of all documents in the custody of the defendant's officers, which it was fair that the plaintiff should see for the purposes of his action. 'The plaintiff thereupon app to a Judge in Chambers, by summons, for an order for diseo under see. 102 of the Common Law Procedure Act (NSW. (N 21 of 1899). ;

A. H. Simpson J., who heard the summons, made an order th the Comptroller-General of Customs, or some other proper off of the Commonwealth should within twenty-one days answer on affidavit stating what documents the defendant had in its pa session or power relating to the matters in dispute in the action, and what he knew as to the custody they were in, and whe he objected on behalf of the defendant, and, if so, on grounds, following the words of sec. 102, The defendant ordered to pay the costs (1).

Garland tor the appellant. 'The Commonwealth must treated by a Court of law as the Crown, and therefore its rogative cannot be curtailed without its express consent. 56 and 64 of the Judiciary Act 1903 involve a submission

Commonwealth to the jurisdiction of the Supreme Courts H- ©. or A. 'ihe States, but the submission is not absolute; the jurisdiction 189%

the Supreme Courts can only be exercised subject to the 1 coamox: jrigtions existing in each State, by common law and by Statute: "™st"™

Chartered Bank of India, &e. v. Rich (1). In New South Wales Baume.

"therights of suitors against the Crown are regulated by the Claims Against Government Act (No. 30 of 1897). Sec. 4 of that Act torresponds to see. 64 of the Judiciary Act 1903, and is in almost identical words. It has been decided in New South Wales that iseovery on oath cannot be ordered against the Crown under the Common Law Procedure Act: Wilson v. Minister for Works /); Anderson v. Stwart (3) ; Bank of New South Wales v. Dibbs "Wralthough under the Claims Against Government Act provi- ion is made for the appointment of a nominal defendant in actions wgainst the Government. It has been doubted whether any sections "ofthe Common Law Procedwre Act apply to the Crown: Evans v. (Ginnor (5). The case of Ricketson v. Smith (6), decided only "that in a suit in Equity the Judge had power to order discovery

'guinst the Government, and has no application to the Common Law Procedure Act. 'That case was approved in Morissey v. Young "(ijn which it was held that a bill for discovery in Equity would lieagtinst the Government, in aid of a plaintiff in an action at common law. 'These cases are not authorities on the construction isee, 102, Even where a nominal defendant is appointed, it is only for the purpose of using his name. His position is no worse thin that of the Crown itself. The Claims Against the Govern- tent Act (N.SW.) expressly provides that he shall not be answer- thle either in person or property, and therefore he could not be compelled to make an affidavit of discovery. No Court will take an order which it eannot enforce.

InBngland the rights of suitors against the Crown are regulated ly the Petition of Right Act (23 & 24 Vict. c. 34), sec. 7 of which turesponds with see. 4 of the New South Wales Act. 'The Crown 'nEngland is not bound by rules to which private suitors must inform, eg, rules of pleading: Tobin v. The Queen (8). The

prerogative of the Crown in New South Wales is the sae England except in so far as it has been expressly eut dows Statute: Atlorney-General v. MeLeod (1). Tn Rngland gy Crown has never been ordered to make diseovery on oath: v. Reg. (2); Tomline v. Reg. (8); Attorney-General y, Ne upon-Lyne Corporation (4). Where the Crown is plant Court of Equity can refuse to grant the relief sought 1 the plaintift appoints some officer to make discovery of docum Attorney-General v. Brooksbank (5). Prioleaw v. United Sia of America and Andrew Johnson (6), applies only to in which a foreign Government is a party to proceedings is English Courts, and is consistent with the case last cited, Such Governments are treated as parties, and not as in the position of the Crown, and are not allowed to make use of the procedure of the English Courts unless they comply with the rules to which subjects are amenable: Republic of Liberia v. Imperial Ban (7); Republic of Liberia v. Roye (8). B

The words of sec. 102 of the Common Law Procedure Ad (N.S.W.) 1899 are not applicable to cases in which the Common: wealth is being sued. It is not a party which ean answer on oath, and it is not a corporation.

(Grirritu C.J. referred to Republic of Costa Rica v. Erlanger (9); and Bank of Montreal v. Cameron (10). #

O'Connor J. referred to Sloman v. Government of Nav Zealand (11.)) *

The section cannot be read so as to include this case merely because it ought to have included it. Its meaning cannot b extended to cover the case of the Commonwealth owing to presence of the words "as nearly as possible" in sec. 64 of the Judiciary Act. The Commonwealth, therefore, when sued in the Supreme Court of New South Wales at common law, isin th same position as the State Government when sued under the Claims Against the Government Act, and cannot be ordered t make discovery on oath.

() 4 N.S.W.LR., 121 (7) L.R., 16 Bq., 179. @ LR, 10Q.B., 44. (8) App, Cas. 139, @) 4x. {9) 3 Ch. D., 63.

(4) (1897) 2 Q.B., 384, (10) 2 Q-B.D., 536. @) LY. &J., 4% (Ul) 1C-P.D.

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

1. 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.

The only question therefore is whether there is machinery enforee the right. 'The Court can order some competent prs to make the affidavit. If the action had been brought in the High Court, there would have been no difficulty in making an} enforeing the order. There is no objection on the ground of expediency, because the defendant could claim privilege for an documents which it would be against public interest to produ for inspection. Sec. 102 does not require the affidavit to be male by the defendant. It is sufficient if the answer, by whomsoeyg made, is on the oath of that person: Ranger v. Great We Railway Co. (1); Barnett v. Hooper (2); Kingsford v, Grat Western Ruilway Co. (3).

[Grieiru, C.J. - It is difficult to reconcile the last ease with Bank of Montreal v. Cameron (4).]

'The word "party " in see. 102 of the Common Law Proodin Act (N.S.W.) is large enough to include the Commonwealth, the Interpretation Act (N.S.W.) 1897, the word is defined a including "body politic." The right to discovery is one of th ordinary rights of litigants in the State, and therefore th Commonwealth, having submitted to the jurisdiction, is liable to have such an order made against it. The words "as nearly possible" in sec. 64 of the Judiciary Act imply that the won of a State procedure Act might not literally apply to the cast the Commonwealth. The section is a direction to the Suprem Courts to give effect to their procedure Acts as far as is possill in dealing with the Commonwealth as a party, in order to pltt

strued. The Crown may lose its prerogative by necessary imp

tion, as well as by express words, in a Statute: Moore v. Smil (5); Théberge v. Laudry (6). The Petition of Right Ad i England was passed for the purpose of facilitating the procedure petitions of right, and expressly stated that it gave the subject new remedy. Before that Act there was no question that diseo 1 could not be ordered against the Crown. 'The only question!

7A. (4) 2Q.B.D., 536. (2) 1 F. & F., 412, 467. (5) 1 EL & EL, 597, (3) IBCBN.S., 761; 33.LJ.,C.P., (6) 2 App. Cas. 102

the eases decided on the construction of that Act was, what was H.C. oF A. ierenedy? 'The whole extent of Royal prerogative was there- hee nto the Crown. Under the Statutes of this State and of ry Goawox- jie Commonvvealth the range of the prerogative is more restricted, #41#H 'he tendeney of legislation being to treat the Governments as Bavivs ites having the same or similar rights and liabilities as private

tom 'The English eases therefore afford no guide in the con- inetion of the Statutes now in question.

" [grrr CJ- - Supposing there were no technical difficulty, 'ficorder should only be for the disclosure of such documents as 'night consistently with the public interest, be disclosed. After "dwoffer that was made by the defendant in this ease would the

"The plaintiff is entitled to a statement upon oath of what "documents are subject to privilege, not to be at the merey of the department, and only allowed to see such documents as it pleases.

Gurland in reply. 'The words "as nearly as possible" are taken from the Queensland Act (29 Vic. No. 28) sec, 5, of which the New South Wales Act (39 Vie. No. 38) sec. 3 (since consolidated as see. 4 of Act No, 30 of 1897), is practically a mseipt. 'The words in the English Act (23 & 24 Vie. c. 34) "so far as the same may be applicable," which are sub-

tially the same, 'The "rights" referred to in sec. 64 of the

fidiciary Act must be such as are capable of being asserted against le Crown, "Party" in sec, 102 of the Common Law Procedure 411809 cannot have the wide meaning given it by the Inter- mation Act, because the section goes on to deal expressly with tase of a corporation. In general " party " does not mean the n: Maxwell on Interpretation of Statutes, 3rd. ed., p. 191. Hereferred also to United States of America v. Wagner (1); ul Curtis v. Mundy (2).

(LR, 20h, 582. (2) (1892) 2 Q.B,, 178, (3) 3S.C.R. (Qa.), 194.

GnurrimH CJ. The question raised in this ease, which iy considerable importance, turns upon the construction of gy of the Judiciary Act 1903. Sec. 78 of the Constitution p that the Parliament may make laws conferring rights to against the Commonwealth or a State in respect of matters the limits of the judicial power. 'The judicial power extends matters in which the Commonwealth is a party (see 15) fy execution of the authority conferred by sec. 78 the Patli enacted, by see. 56 of the Judiciary Act 1903, that any

monwealth in the High Court or in the Supreme Courtof thes in which the claim arises. 'The plaintiffin the present case, advantage of this provision, has brought this action on the eomnmy law side of the Supreme Court of New South Wales, Sec 6

the words "as nearly as possible." It arises in this way. Common Law Procedure Act (N.S.W.), (No. 21 of 1899),pro

other proceeding, upon an affidavit by such party or his atto that any document, to the production of which he is entitled for purpose of discovery or otherwise, is in the possession or power

a body corporate, some officer to be named of such body corpo "shall answer on affidavit" as to the documents in his po &e. Mr. Justice A. H. Simpson, sitting in Chambers, and purpott ing to act under the authority of this section, made the usual onde for discovery against the defendant, who now appeals from th order on the ground, substantially, of want of jurisdiction tomas the order. ye Some points appear free from doubt. It has always held that a sovereign power invoking the assistance of « Cout of justice as plaintiff submits itself to the jurisdietion ofthe

for the purposes of the suit, so that any order that could H.C. or A. nade against an ordinary plaintiff may be made against it, 15 this rule Prioleaw v. United States of America (1) affords a tye commox- gol illustration. On the other hand, a Court of justice has no oe jeatition against a sovereign power which does not subject Bae. jill or is not subjected by Statute, to its jurisdiction. 'There Gummo penodoubt that sec. 56 of the Judiciary Act 1903 operates asa submission by the Commonwealth to the jurisdiction of the High Court or a State Court in cases falling within the section. But in every case the question must arise, what is the jurisdiction "of the particular Court whose aid is invoked. If the Supreme (iutt of New South Wales has a general discretionary power to "wiet the parties to suits to make discovery by any means hich it thinks fit to direct, cadit questio. But it is clear at this is not so. Courts of common law never had any "sith general discretionary power, and such powers as they have vere conferred by Statute. The Court of Chancery, on the "other hand, had jurisdiction to grant di _pmposes, but subject to settled rules of practice, In the present fa we aredealing with an action at common law. 'The plaintiff must therefore show that the Supreme Court has jurisdiction under _ theStatute of 1899 to order discovery against the Commonwealth.

• Again, itis not open to doubt that the Commonwealth as men- tied in the Judiciary Act 1903 means the body politic called by _thatname, which is not a corporation or body corporate in the sense inwhich those words are used in sec. 102 of the Act No. 21 of 1899, 'ut stands for the Crown as representing the whole community, aud that it is entitled to the same privileges and rights as the Grown, exeept so far as it has surrendered them by virtue of the +See Roberts v. Ahern (2)

The ease for the plaintiff is put in two ways. Firs that the words "may order that the party shall answer on affi- thvit" include a power to order a party to answer on the affidavit, ofsome other: person than himself. And for this the ease of Ranger V.Great Western Railway Co. (3) is cited. In that ease it was that a Statute which provided that the Court might make an

WLR. 2 Eq, 659, (2) 16.L.R., 406. (3) 4 DeG. &J., 74:28 L.J.Ch., 741.

order "for the production by any defendant on oath" a the Court to order production by a defendant company on th of its officer. If this is the meaning of the words « may o} the party shall answer on affidavit," as used in see. 102, th

provision for the case of bodies corporate, which, on the pretation contended for, was unnecessary. In Zhe Kingy,

interpretation of Statutes that such a sense is to be made uponth whole as that no clause, sentence, or word shall prove supetfins void, or insignificant, if by any other construction they may be made useful and pertinent. In The Queen v. Bishop of Ono (2) the Court applied this rule. The Statute under considerat in that case enacted that in certain cases " it shall be lawful" a bishop on the application of the party complaining, or "ithe sh thinktit,"of his own motion, to issue acommission of inquiry aclerk in holy orders. 'The question was whether in the firs ar of the section the words "it shall be lawful" imposed a duty a gave a discretionary power. After referring to the rule in The Ki v. Berehet (1) (which they quoted from Bacon's Abridgment) Court added (3): " But this is not all. 'The words are signifi as indicating the sense in which the words 'it shall be lawful the preceding part of the section had been used by the frames the Act. They would in any point of view have been idle if

the other that he should answer by the affidavit of himself m some other person under his control - it is clear that on the latte contention the words relating to bodies corporate would be i The case of Thomas y. The Queen (4) was decided on the & ponding section of the English Common Law Procedure Act which is in identical words. It is not very easy to discover!

exact grounds of the decision in that case, but if the point

(1) 1 Show., 106, (3) 4 Q.B.D., 245, at p- 261. (2) 4Q.B.D,, 245. (4) LR. 10Q.B, 44

'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

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-

(1) 6B. &C., $67, at p. 475, (2) 2H. & 0, 491; BL, Boo ® (3) 21. Q.B.D., 509, per Field J.

a party as the Commonwealth. And, as the words of see.

' putty himself to make an affidavit, are not applicable to the Commonwealth, I think it is not reasonably possible to give the "phintif the right which he claims. In other words, the express

limited jurisdiction given by the Statute to the Supreme Court of New South Wales does not extend to this particular "ease. Another illustration of a case in which it would not be "sible to enforce against the Commonwealth as a party pro- risios applicable as between subject and subject is afforded by

provisions as to process of contempt. It would clearly be impossible to make an order for attachment or commitment, and the suggestion that this Court or any other Court could grant process of sequestration against a sovereign State, i.c., appoint asihordinate officer of government to take possession of all the instruments of government, seems so inconsistent with the notion ofasovereign State that it need only be mentioned to be dis- ise as impossible,

Teappears that in the present case the defendant has already se to give the plaintiff all the discovery to which he is 'atitled, but it objects to the coercive powers of the Court being applied to it. For the reasons which I have given I think that the 'wntention isright, and that the appeal must therefore be allowed. Thisdecision does not in any way affect the question whether the 'High Court has under its rules jurisdiction to order discovery 'giinst the Commonwealth in a suit in this Court to which it is fatty, or whether in a proper case the Supreme Court could the terms of consenting to give discovery as a condition Stanting some application on the part of the Commonwealth.

OCoxxor J. The Commonwealth Parliament derives its mer to legislate with reference to suits by and against the

to the public interest, and will not review the decision H.C. or A.

Inmy opinion the words "as nearly as possible" mean as far ys Gomwoxe the provisions the aid of which is invoked are applicable to W#A¥tH

W2 of the Common Law Procedure Act, construed as requiring Grimm ou.

Commonwealth and the States from see. 78 of the Constitn The power thus given is "to make laws conferring right proceed against the Commonwealth or State in respect of matte within the limit of the judicial power." The power sas s exercised in regard to the Commonwealth by a temporary the Claims against the Commonwealth Act 1902. That superseded by the Judiciary Act 1903, which by see. 56 confers right upon any person making a claim against the Commonve to sue the Commonwealth in the High Court, or in the Supren Court of the State in which the claim ari wealth representing the Executive power of the eommuniy the Crown as it is sometimes called, is constituted a jurstic

person, and bound to answer in Court to claimants' suits.

64 declares that in such suits nearly as possible be the same . . . . asin a suit betwi subject and subject." 'The rights of parties there referred to m of course rights of procedure. There is no power given by th section of the Constitution to affect any right of the Comnm wealth outside procedure. What is the Commonwealth? Se) of the covering clauses of the Constitution declares the monwealth of Australia" to be the name under which the p

monwealth. The Commonwealth is therefore not an indi nor a partnership, nor a corporation, and in the nature of there are steps in proceedings, which those parties could but which would be impossible to such a body as the Commo wealth. For instanee, how could the Commonwealth make affidavit or answer an interrogatory? Now it was in the pore

enacting, for instance, that some officer should be appointelt® make the affidavit or answer the interrogatories, as was done l the New South Wales Common Law Procedwre Act 1809 inthe case of corporations. Indeed in some instances the Judiciary 4¢ 1903 recognizes the necessity of nominating an officer to rep the Commonwealth for the purposes of certain proceedings. BY see. 61, where the Commonwealth is plaintiff, suits may be broug

in the name of the Commonwealth by the Attorney any person appointed by him in that behalf, and by see. 63, ™

the Commonwealth is a party, all process is to be served on the H.C. or A.

'iomey-General, or upon some person appointed by him to 1%" ye vervice, But in no other cases has any special provision tweGosmo-

jen made, It was open to the legislature to have enacted *4™™#

rithout qualification that in suits in which the Commonwealth is Batwe

spaty the rights of the parties shall be absolutely the same as ocamor a

insuits between party and party. In that case no doubt the

"Count would have been justified in adapting and modifying the pro-

wlure so as to give effect to that direction. But the legislature

has not adopted either of these methods, it shas simply declared

jnregard to this new legal entity, which is neither individual,

or partnership, nor corporation, that when it is a party in

suit the rights as to procedure shall be "as nearly as possible" thesame as in a suit -between subject and subject. To adopt the plaintiff's contention in this case would be to treat the "yrds "as nearly as possible" as if they were omitted from the section. According to every recognized rule of construc- tion 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 "ofthe parties shall be as nearly as possible the same as between party and party, having regard to the inherent incapacity of such legal entity as the Commonwealth in respect of certain of the proceedings in a suit. t

We must now look at the proceedings for obtaining a discovery order under the New South Wales Common Law Procedwre Act of 1809, in order to ascertain whether the Commonwealth ean have in respect of them the same capacity as an ordinary party. In Considering sec. 102 of that Act, under which it is claimed that the Vaintiff had the right to an order of discovery as against the Com- 'monwealth, it must be borne in mind that we are not dealing with my general power to grant discovery such as Equity Courts fsess, The common law Courts have no such general power. Theit power is limited to that conferred by the Statute, and it is

stated in these words". . upon affidavit Court or a Jude may order that -

""(q) the party against whom such application is made; g

"(b) if such party is a body corporate, some officer to b

"shall answer on affidavit stating what documents he or the

or have in his or their possession or power relating to them

in dispute, or what he know i or any of them are in, and whether he or they objects or objet to the production of such as are in his or their possession power, and if so on what grounds." 'The object of the seetioni to obtain the oath of the party as to his knowledge of the doet ments or their whereabouts. Where, as in the case of a corport- tion, 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 hay the knowledge of the corporation. It is not correct to say that the section entitles every litigant to an order for discovery the opposite party. 'The effect of it may be more correetly stat to be that the Judge is authorized to make an order for affidavit of discovery in two classes of cases only - one, the specially provided case of a corporation, the other where a pan against whom the order is sought is capable of making a state ment on oath. Jt is clear that the Commonwealth is not ineuded in either of these classes. Probably the greater portion of 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 ini 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, wis or was not deliberately made, it is not perhaps material to ing But the express provisions for the representation of the Common wealth by the Attorney-General in sections 61 and 63, to whieh I have already referred, are significant in this connection.

"suction of which might be prejudicial to the publie interest, H.C. or A. well be that the legislature thoughtit best to give no new 1905. ities for the disclosure of such documents by Commonwealth yGounos- Geers Inmy opinion, therefore, see. 102 gives no power to ¥#Aun sJudge to order an affidavit of discovery to be made by the Baume,

Commonwealth. It follows that there can be no power to order ovomors. snaffidayit to be made by an officer on behalf of the Common- yealth, 'The ease of Ranger v. Great Western Railway Co. (1) 'annot, 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

Solicitors for appellant, McNamara & Smith, for the Crown Solicitor of the Commonwealth.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. Fe H.C. oF A. tidenee - Pleadting - Principal and agent - Authority - Action against principal on 4995, contract made with agent - Plea of non-assumpsit - Fraud of Agent - Knowledge = - - f Contructee - -Reguive Generates, Dec. 1902 (N.S. W.), 77. 64, 67. Sypyey,

Ivis not within the scope of an agent's authority to bind his principals by oe

"contract which, although made ostensibly on their behalf, is, to the know- ledge of the other party, really made for his own benefit, even though the Griith C.J,

5 Barton and Contract is of a kind which he has a general authority to make; and there: QConnor J.