Marconi's Wireless Telegraph Company Limited v Commonwealth (No 2)

In an action brought before the High Court of Australia, Marconi's Wireless Telegraph Company Limited (the plaintiffs) sought an order for the inspection of wireless telegraphy apparatus used by the Commonwealth (the defendant). The plaintiffs alleged that this apparatus infringed their patents. The Commonwealth opposed the application, asserting that the Postmaster-General was of the opinion that such inspection would be detrimental to the public interest and welfare, specifically concerning the naval and military defence of the Commonwealth.

The central legal issue before the Full Court was whether the Court was bound to accept the Minister's assertion of privilege without further inquiry, or if it had a duty to investigate the nature of the alleged State secret and whether its disclosure could genuinely prejudice public welfare. A secondary issue was whether the plaintiffs had established a prima facie case of infringement, which would otherwise justify the inspection.

The majority of the Court, comprising Griffith C.J. and Barton J., held that the claim of privilege was not absolute and required judicial scrutiny. They reasoned that while the principle of Crown privilege against disclosure of State secrets is well-established, it does not permit a Minister's ipse dixit to automatically shield any matter from inspection. The Court must ascertain the nature of the alleged secret and determine if facts discoverable through inspection could, in any intelligible sense, prejudice public welfare. Applying this to the present case, the Court found that the information sought by the plaintiffs regarding the operation of the wireless telegraphy apparatus, particularly concerning commercial transmissions, did not present a credible risk of prejudicing public welfare or national defence. They concluded that the published specifications of the apparatus already disclosed much of the relevant information, and the specific operational details sought by the plaintiffs were unlikely to constitute a "State secret."

Consequently, the Court ordered that the plaintiffs be granted inspection of the apparatus, subject to certain conditions to protect any specific markings or indications related to naval or military wave-lengths. The Court also found that the plaintiffs had made out a prima facie case of infringement, thereby justifying the order for inspection. The costs of the application were awarded to the plaintiffs.