Marconi's Wireless Telegraph Company Limited v Commonwealth (No 2) [1913] HCA 19

Marconi's Wireless Telegraph Company Limited v Commonwealth (No 2) [1913] HCA 19 - HCA 1913 case summary — Zoe

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requisite on giving three days' notice to the defendants, to enter into some one or more of the defendants' wireless telegraphic stations at Melbourne, Hobart, Sydney and Brisbane, where the process or mode of working described in the specifications men- tioned in the affidavits of John Graeme Balsillie, sworn 14th October 1912, can be seen at work, and to inspect and examine there the whole of the apparatus used in such working except such marks or indications (if any) as may disclose the wave- lengths used or intended to be used in the transmission of messages relating to naval or military matters (which marks or indications the defendants are to be at liberty to seal up or otherwise conceal from view): And that on such inspection the defendants do, by some duly qualified person or persons, put such apparatus to regular work by transmitting and receiving mes- sages between two of such stations in the mode commonly used by the defendants for transmitting commercial messages in such reasonable manner as may be required by the said Ernest Thomas Fisk: And subject as aforesaid that the plaintiffs or their repre- sentatives be at liberty on such inspection to make all such draw- ings or plans of such apparatus, and to take all such photographs thereof, both while working and while not working, and to con- duct all such experiments, as they may reasonably require: And that simultaneously with the transmission of messages from one of such stations for the purposes of such inspection, two other fit persons, to be appointed by the plaintiffs, subject to the like approval, be at liberty to enter the station to which such messages shall be transmitted, and to make the like examination, drawings, plans and experiments, and take the like photographs. And it is further ordered that if any question shall arise between the parties as to the reasonableness of anything proposed to be done by the plaintiffs or their representatives under this order, the iatter shall be referred to a Justice in Chambers for decision. And the parties are to be at liberty to apply to a Justice in Chambers as they may be advised. And this Court doth further order that the costs of the application for inspection, including those of the reference to the Full Court, be the plaintiffs' costs in the action.

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or of government, and the disclosure of which would be pre- judicial to the public interest. The principle of the rule of exclusion is in both cases concern for public interest and the rule will accordingly be applied no further than the attainment of that object requires. The protection to State Papers afforded by this principle extends, it is almost needless to say, to appli- cations for discovery, and there are many instances of such applications": Hennessy v. Wright (1). In see. 947 he con- tinues: - "On grounds of public policy, too, official transactions between the heads of the departments of Government and their subordinate officers; and communications relating to State matters made by one officer of State to another in the course of his official duty, are treated as secrets of State, and are absolutely privileged . . . Until recently, there existed, however, no instance of a document being held protected from production unless it contained a communication made by one officer of State to another officer of State in the course of official communication between them on a matter of public business. But the Court of Appeal have recently held that a communication which it can see is to be one to a Government department is also protected from production as being a State secret if a Minister, or the head of a department, sees fit to claim such protection for it, and this even though he gives reasons for the claim which are founded on grounds of convenience rather than of State policy." In a note we are told that "In In re Joseph Hargreaves Ltd. (2), the ques- tion arose whether privilege could be claimed for inland revenue returns in the possession of the Board of Inland Revenue. Wright J. at the hearing refused to order production on the ground that the application before him being under sec. 115 of the Companies Act 1862 he had a discretion as to making an order for production. The Court of Appeal refused to interfere with his discretion, but guarded themselves from deciding whether production could or could not be enforced." Reference to the Report shows this to be an accurate description of the case. No doubt, if the Court sees that a document is of the character by reason of which the privilege arises, it will admit the claim to protection, and will allow the Minister or head of the depart-

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unless the nature of the document isclear. In Home y. Bentinck (1), the Court (Abbott C.J.) had at the trial refused to allow the reading of the minutes of a commission appointed by the Com- mander-in-Chief to report on conduct of the plaintiff, who was suing the President of the Commission for libel. The minutes were brought into Court by the military secretary to the Com- mander-in-Chief, the proper custodian. The ruling of Abbott C.J. was sustained on a bill of exceptions. Clearly it was because the Court had ascertained for itself the class to which the docu- ments belonged that it refused to allow the reading. It could not have refused otherwise, seeing that the document was rele- vant to theissue. In Smith v. Hast India Co. (2), the production of communications between the directors of the East India Company and the Board of Control, the State department to which they were responsible, was refused by Lord Lyndhurst L.., who said (3) : - "I think, therefore, that these communica- tions come within that class of official communications which are privileged," &c. In the case of Beatson v. Skene (4), an action by a military officer for slander, the question was as to the minutes of a Court of Inquiry held under the auspices of the War Office, to investigate-charges made by a fellow-officer against the plain- tiff, and also as to some letters written by the plaintiff to the Minister for War. Of course, the nature of the papers was ascer- tained by the Judge at the trial (whose action was upheld) before he held them to be within the privileged class, and declined to compel their production. In this case it was explicitly held that it is for the "responsible servant of the Crown in whose custody the paper is" to determine whether the production of a State Paper would be injurious to the public service. But before that question arises for determination the Court must be able to see that it is a State Paper. I might go on to analyze other cases, such as The Bellerophon (5), Wadeer v. East India Co. (6), and Hughes v. Vargas (7); but it is only necessary to say that in these also it is apparent that it is for the Court first to see whether the document or thing is of the class which is the

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Substitute "apparatus " for "document," and it will be at once seen that the judgment is wholly incompatible with the doctrine urged for the plaintiffs, and leaves no room for the division of documents or other public instruments of executive government for which the executive branch itself claims protection into two natures, the one possibly privileged, and the other necessarily unprivileged, which it is the Court's function in any particular case, notwithstanding the Ministerial assurance, to ascertain by the ordinary process of evidence. Then in Hughes v. Vargas (1), Lord Esher M.R. confirms the Chief Baron's rule and re-states the law in words which evidence his understanding of it ; he says (1):

'TIt is not for the Judge to decide whether the production of a document would be detrimental to the public service, but if the document is a State document, that is belonging to a State office," (that is how I take the Master of the Rolls to define its character in respect of its production being possibly injurious), "and is in the hands of a public department of State, if the head of that department takes the objection that it would be contrary to the public welfare to produce the document in Court, the Judge must act upon that." When the learned Master of the Rolls says "the Judge must act upon that," he means on the whole of that. The learned Master of the Rolls, a little further on, says (2) that the Judge must give effect to the objection " unless he can see clearly that it could not be to the detriment of the public service," evidently meaning the "extreme cases" of Beatson v. Skene (3). Bowen LJ. reaffirms that decision and reserves the "extreme cases" though acknowledging that they throw little light on the matter because heads of departments in these days can be trusted
a truth as firmly fixed in Australia as in England. The cir- cumstances stated by Mr. Starke courteously, but quite unneces- sarily in point of law as I regard the matter, are so probable and in part so obvious from the acquaintance which even a Court may be supposed to have with the subject matter, that they support in detail the conclusion of fact, a conclusion which as I have said the Court is virtually bound to accept on the statement of the Minister.

At a glance

Court

Decision date

Before

Source

Judgment (171 paragraphs)

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