ON APPEAL FROM THE SUPREME COURT OF Practice--Discovery of documents-Action by subject against Commonwealth-Juris-
diction of Supreme Court to order discovery against Commonealth-Common Law Procedure Act (N.S.W.), (No. 21 of 1899), sec. 102*-Judiciary Act, 1903 (No. 6 of 1903), sec. 64.
Sec. 64 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 be the same as in a suit between subject and subject.
Sec. 102 of the Common Law Procedure Act (N.S.W.), (No. 21 of 1899) provides that on the application of either party to an action the Court or a Judge may order that " the party against whom the application is made, or if such party is a body corporate, some officer to be named of such body corporate," shall answer on affidavit as to documents in his possession relating to the matters in dispute. (*) Sec. 102 of the Common Law Pro-
some officer to be named of such tedhire Act (N.S.W.), (No. 21 of 1899),
body corporate, is as follows :-
shall answer on affidavit stating what 102 (1) Upon the application of either
documents he or they has or have in party to any action or other proceeding,
his or their possession or power relating upon an affidavit by such party or his
to the matters in dispute, or what he attorney of bis belief that any docu-
knows as to the custody such docu- ment to the production of which he is
ments or any of them are in, and entitled for the purpose of discovery or
whether he or they objects or object to otherwise is in the possession of the
the production of such as are in his or opposite party, the Court or a Judge
their possession or power, and if so may order that
upon what grounds. (a) the party against whom such
(2) Upon such affidavit being made application is made; or
the Court or Judge may make such (b) if such party is a body corporate,
Held, that the Supreme Court of New South Wales has no jurisdiction, an action brought in that Court by an individual against the Commonwealth 10 to make an order for discovery of documents against the defendant.
Decision of A. H. Simpson J. (22 N.S. W. W.N., 5) reversed.
APPEAL from a decision of A. H. Simpson J. in Chambers 1.
The plaintiff brought an action at common law in the Supreme Court of New South Wales, under sec. 56 of the Judiciary Act 1903, against the Commonwealth, to recover compensation for the wrongful detention by the Customs authorities of certain goods imported by the plaintiff. Before setting down the case for trial, the plaintiff formally requested the defendant to consent to an order for discovery of documents under sec. 102 of the Common Law Procedure Act (N.S.W.)…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Commonwealth v Baume [1905] HCA 11
Case
[1905] HCA 11
Decision Date
CaseChat Overview and Summary
The Commonwealth of Australia appealed to the High Court of Australia against an order for discovery of documents made by the Supreme Court of New South Wales. The action had been brought by the respondent, Baume, against the Commonwealth.
The central legal issue before the High Court was whether the Supreme Court of New South Wales had the jurisdiction to order the discovery of documents against the Commonwealth, notwithstanding the provisions of the Judiciary Act 1903 (Cth).
The High Court considered the effect of section 64 of the Judiciary Act, which provides that in any suit to which the Commonwealth is a party, the rights of the parties shall be as nearly as possible the same as in a suit between subject and subject. The Court held that this section incorporated the procedural rights available to a subject in a suit against another subject, including the right to discovery, into suits against the Commonwealth. Therefore, the Supreme Court had the power to order discovery against the Commonwealth.