Griffin v South Australia

In this matter, Hurtle Griffin, a resident of Victoria, brought an action in the High Court against the State of South Australia, seeking damages for alleged negligence in the handling, storage, and sale of wheat. The plaintiff applied to a judge of the Supreme Court of South Australia for an order for discovery of documents and leave to administer interrogatories to the defendant. The judge, pursuant to the Judiciary Act, reserved for the consideration of the Full Court of the High Court the question of his power to grant these orders.

The central legal issue before the High Court was whether section 64 of the Judiciary Act 1903-1920, which stipulates that in suits involving the Commonwealth or a State, the rights of the parties shall be as nearly as possible the same as in suits between subjects, empowered the plaintiff to compel the defendant State to provide discovery and answer interrogatories. This also involved determining whether the Commonwealth Parliament had the legislative authority to enact such a provision, particularly in light of the State's argument that the Crown's immunity from discovery was a substantive right that could not be abrogated by Commonwealth legislation.

The High Court, following the principles established in *Commonwealth v. Miller* and *Jamieson v. Downie*, held that section 64 of the Judiciary Act grants a plaintiff the right to obtain discovery of documents from, and administer interrogatories to, a defendant State in an action brought in the High Court. The Court reasoned that the power to legislate with respect to matters incidental to the execution of the powers vested in the Federal Judicature, as provided by section 51(xxxix) of the Constitution, was sufficient to authorise the Commonwealth Parliament to regulate the procedure in federal jurisdiction. This included equipping federal tribunals with the authority to order discovery, thereby ensuring that the procedural rights of litigants were consistent, regardless of whether the opposing party was a subject, the Commonwealth, or a State. The Court found that the right to discovery was a procedural right, not a substantive one, and that the Commonwealth Parliament had validly exercised its legislative power to abrogate the State's immunity from such discovery in federal proceedings.

The High Court answered the question reserved in the affirmative, confirming that the plaintiff had the right to seek discovery of documents and to administer interrogatories to the defendant State. The case was remitted to the Supreme Court of South Australia for further proceedings, with the costs of the special case to be costs in the application.