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1931 Supreme(SC) 53
Privy Council At South Australia
Lord Russell of Killowen, Thankerton , Atkin, Warrington of Clyffe, Justice Lords Blanesburgh, JJ.
Henry Greer Robinson -Appellant
Versus
State of South Australia -Resopndent
Privy Council Appeal No. 47 of 1930
Decided On : 19-05-1931
Ommanney , Sulton, Solicitors , Hartley , Hartley , Blyth, Dutton
State privilege is a narrow exception to discovery, based on public interest rather than confidentiality. In commercial transactions, it rarely applies, and the court may inspect documents to determine if the privilege is justified, as prejudice to the State's own case is not a valid ground.
Headnote:(A) Statutes governing wheat marketing - Discovery of documents - State privilege - Claim of privilege based on public policy and interests of the State - Privilege is a narrow one, to be exercised sparingly, and is based on the principle that information cannot be disclosed without injury to public interests, rather than the mere fact that documents are confidential or official.
(B) State activities in trading, commerce, and contractual spheres - Documents relating to such activities are generally not protected by state privilege unless a plain overruling principle of public interest exists - The fact that production of documents might prejudice the State's own case or assist the other side is not a sufficient ground to justify a claim of privilege.
(C) Power of the Court to inspect documents - The Court has the power to inquire into the nature of the document for which protection is sought and to inspect it to determine the validity of the claim of privilege, provided the exercise is guarded to prevent the mischief the privilege is designed to avoid.
(D) Manner of claiming privilege - In cases where the State is a party litigant and bound to give discovery, privilege should normally be claimed under the sanction of an oath by a responsible Minister of State.
Facts of the case:
An assignee of rights of wheat growers sued the State for loss of wheat due to negligence of agents during the execution of a marketing scheme. The State refused to produce certain documents, claiming state privilege on the grounds that disclosure would be contrary to public policy and the interests of the State. The claim was based on a minute from a Minister stating that disclosure would prejudice the public service and public welfare.
Findings of Court:
The claim of privilege was found to be entirely inadequate as it was made in vague terms and did not specify the particular danger or detriment to the State. The documents were primarily commercial in nature, and the Minister's statement did not sufficiently demonstrate a public interest that overrode the need for discovery.
Issues: Whether the claim of state privilege was justifiable in the context of commercial operations and whether the Court had the power to inspect the documents to determine the validity of the claim.
Ratio Decidendi: State privilege is a narrow exception and cannot be used to shield the State from liability in mercantile transactions. The Court possesses the power to inspect documents to verify if the claim of privilege is justified, especially when the documents relate to commercial activities and the relevant government department has been disbanded.
Result: Order discharged and case remitted to the lower court for inspection of the documents.
Legal Category Hierarchy
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practice and procedure
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discovery
- state privilege
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discovery
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tort
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negligence
- state liability
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negligence
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administrative law
- state commercial activities
Lord Blanesburgh.—
There is now in Australia a concourse of claimants seeking to establish against the State of South Australia a liability to them individually for the alleged negligence of its servants and agents in the execution of the duties of Government under the Wheat Harvest Acts, 1915-17.
Under these Acts a Wheat Marketing Scheme was established, the substance of which was that all growers in South Australia had to deliver their wheat to the Government, which assumed the duty of accepting and marketing it and distributing the net proceeds among the growers or their assigns in proportion to the quantities of wheat delivered. In the case of Welden v. Smith , [1924] AC 484=98 LJ PC 194=181 LT 37=68 SJ 339=40 TLR 256, it was contended by the State that the Wheat Harvest Acts involved on behalf of Government political rather than trading operations and responsibilities. But that contention was not accepted by this Board, which adopted the view that the State was, under these Acts, in effect, carrying on the business of marketing and selling the wheat of those who supplied it, and that Government at the suit of wheat growers who delivered wheat under the scheme could be held liable for proved negligence in the performance of the duties so assume by it. It has also been determined by this Board, on the hearing of a preliminary point of law in the present action, Robinson v. State of South Australia , [1929] AC 469, that that liability extends to a claimant with 'a derivative title only; that is to say, to one like the present plaintiff-appellant, who is merely an assignee of the rights of divers wheat growers under the scheme. In this action the appellant's claim in that character is to establish the liability of the respondent State for loss of wheat of the 1916-17 harvest by exposure to water and to the ravages of mice while in its custody, or that of its agents for the purposes of the Wheat Marketing Scheme, all on the footing that such loss was attributable to negligence on the part of such agents. The preliminary question having been decided in his favour it remains for the appellant to quantify his loss and to establish, if he can, as a matter of fact, that such loss was due to negligence for which the respondent State is responsible.
The action is one of a large number now pending, claiming similar relief against the State, all being alike dependent for success upon the establishment of the same facts. In no action however has any attempt yet been made to establish these facts. The two earlier actions, Welden v. Smith , [1924] AC 484=98 LJ PC 194=181 LT 37=68 SJ 339=40 TLR 256 already referred to, and Griffen v. State of South Australia, 36 CLR 378 have both been discontinued. The present appellant gives the reason. The facts are mainly in possession of the respondent State actually responsible for the working of the scheme. Without the assistance, unobtained in either action, of complete discovery from the respondent the establishment of the necessary facts by either plaintiff was not practicable.
The appellant, indeed, as the result of this experience, now avows that no action brought to establish the liability of the State in this matter stands any real chance of success unless, like any other litigant under alleged liability in respect of trading operations, the State can be required to make full discovery of all documents in its possession or power relative to the matters in controversy. Full discovery by the respondent has, in other words, now become the immediately vital issue between the parties. The recognition by both sides of its importance is a more than sufficient explanation of the persistent attempts on the part of the different plaintiffs to obtain such discovery and for the equally determined resolve on the part of the State to withhold it.
In relation to this question of discovery some account of the two earlier actions will not here be out of place. In weldon v. Smith, [1924] AC 484=98 LJ PC 194=181 LT
