The object of granting particulars is that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, and to guard against " surprise." But a party is not entitled to be told the mode by which the case is to be proved against him.

11 CLR 739

In a civil action for penalties, in the absence of statutory provision to the contrary, the plaintiff is not entitled to an order for discovery of documents against the defendant. This rule applies equally both to actions by the Crown and actions by a common informer.

SUMMONS in Chambers by the defendants for further particulars, COLLIERIES. and by the plaintiff for discovery of documents. The action was brought by the Crown to recover penalties from the defendants under secs. 4 and 6 of the Australian Industries Preservation Act 1906, No. 9, and for an injunction under sec. 10 of that Act, the allegation being that the defendants, who were colliery owners in the Newcastle district of New South Wales, and ship- ping companies trading in the Commonwealth, were members of a combination in relation to trade or commerce with intent to restrain trade or commerce to the detriment of the public. The action was commenced prior to the passing of the Australian Industries Preservation Act 1910. The facts and the arguments are sufficiently referred to in the judgment.

Wise K.C. and Bavin, for the King and the Attorney-General of the Commonwealth.

Knox K.C. and Harry Stephen, for the Associated Northern Colleries.

Campbell K.C. and Ferguson, for J. &A. &John Brown. Mitchell K.C. and Broomfield, for certain shipping companies.

Our. adv. vult.

ISAACS J. read the following judgment :-Some of the matters to be dealt with in the summons for directions raise no difficulty. The most convenient place of trial is Sydney. The mode of trial is settled by Statute, namely, before a Justice without a jury sec. 13 (1) of the Australian Industries Preservation Act 1906, as amended. Defendants' application for fürther particulars and plaintiff's application for discovery of documents have caused considerable controversy, arising principally from the somewhat

11 CLR 740

A. unusual position in which this class of action stands. Sec. 13 1

prescribes that proceedings for the recovery of pecuniary penal- ties for the offences alleged are to be instituted by way of civil action.

Mr. Wise, for the plaintiff, while asserting the freedom of the Crown from any liability to give particulars, stated that there was no desire to stand on strict legal rights, and that the Crown was prepared to give the defendants every possible information necessary to meet the case consistently with the…

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.

Continue reading R v Associated Northern Collieries

Details

AGLC: R v Associated Northern Collieries [1910] HCA 61
Case: [1910] HCA 61
Decision Date: 7 November 1910

CaseChat Overview and Summary

This case involved an action brought by the Crown against Associated Northern Collieries and other defendants, alleging they were part of a combination in restraint of trade and commerce to the detriment of the public, seeking penalties under the Australian Industries Preservation Act 1906 and an injunction. The defendants sought further particulars of the Crown's claim, while the Crown applied for discovery of documents from the defendants.

The central legal issues before the court were whether the Crown, as a party to a civil action, was obliged to provide particulars to the same extent as any other litigant, and whether the Crown was entitled to an order for discovery of documents against the defendants in a civil action for penalties. The court also considered whether the claim for an injunction, separate from the claim for penalties, could justify an order for discovery.

The court held that the Crown, like any other litigant, is bound to provide particulars to ensure the opposite party is fairly apprised of the case to be met, and to guard against surprise. The court found that while the statement of claim and existing particulars went some way, they were not sufficiently detailed, and ordered further particulars to make the Crown's case plain. Regarding discovery, the court determined that in a civil action for penalties, the plaintiff is not entitled to an order for discovery of documents against the defendant, irrespective of whether the plaintiff is the Crown or a common informer. This principle stems from the fact that the very object of such proceedings is to inflict a penalty, and discovery sought in such a context would inherently tend to expose the defendant to that penalty. The court further ruled that discovery could not be ordered even in aid of the injunction claim, as the issues for penalties and injunction were indistinguishable and indivisible, meaning any discovery would necessarily risk exposing the defendants to penalties.

Consequently, the court ordered further particulars to be provided by the Crown and refused the Crown's application for discovery of documents from the defendants.

Orders