The Commonwealth v Miller

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The plaintiffs, Robert and Mrs. Miller, had brought an action against the Commonwealth of Australia seeking damages for injuries allegedly caused by the negligence of Commonwealth servants. The Supreme Court of Victoria, per à Beckett J., had ordered the Commonwealth to answer interrogatories and make discovery of documents. The Commonwealth appealed this order, arguing that the Supreme Court lacked jurisdiction to compel it to do so.

The central legal issue before the High Court was whether the Supreme Court of Victoria had the jurisdiction, under the combined operation of the Judiciary Act 1903, the Supreme Court Act 1890 (Vict.), and the Rules of the Supreme Court 1906 (Vict.), to order the Commonwealth to provide discovery of documents and answer interrogatories in an action brought against it. The Commonwealth contended that, as the successor to the Crown, it retained certain immunities, including immunity from discovery, and that the relevant legislation did not expressly grant such a power.

The High Court unanimously dismissed the appeal, holding that the Commonwealth was indeed subject to orders for discovery and interrogatories. The Court interpreted section 64 of the Judiciary Act 1903, which stipulates that "the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject," as conferring upon litigants suing the Commonwealth the same procedural rights as they would have against another subject. The Court reasoned that the right to discovery was a fundamental procedural right between subjects, and that section 64 effectively waived any Crown immunity in this regard. While acknowledging that the specific wording of Rule 5 of Order XXXI of the Victorian Supreme Court Rules might not directly apply to the Commonwealth, the Court found that Rules 1 and 12, combined with the broad effect of section 64, provided ample jurisdiction for the Supreme Court to make the order. The Court distinguished the present case from *The Commonwealth v. Baume*, which had concerned the more limited statutory powers of discovery available in New South Wales at the time.