Jobling J:

On a Summons for directions in this matter the Plaintiff applied for an Order under O. 30 r. 11 of the Rules of the Supreme Court for discovery of documents against the Defendant and on the Defendant objecting the matter was adjourned to Open Court for argument.

Mr Wylie for the Defendant submitted that the application could not be granted as it was for an order for discovery against the Crown and it had already been decided by the Court of Appeal, Singapore in Khoo Sian Tean v. Attorney General (Crown Suit No. 8 of 1907 - unreported) that such an order could not be made.The decisions in Thomas v. The Queen [1874] 10 QBLR 44 and La Societe des Affreteurs Reunis [1921] 3 KB 1, were referred to in support of this submission.

Mr TE Conaghan for the Plaintiff and Mr. Pooley for the Third Party submitted that the judgment of the Judicial Committee of the Privy Council in Jamieson v. Downie [1923] AC 691 overruled the Singapore decision and was ample authority for their contention that the general words of ss. 23 and 56 of the Crown Suits Ordinance (Cap. 43) gave a right of discovery against the Crown by necessary implication.

In considering the cases referred to in order to arrive at the principles which govern the point in issue I can get no assistance from Khoo Sian Tean v. Attorney General as the judgment has not been reported and the record cannot now be traced in Singapore.

This case is however given as authority for the following note in Mallal's ss. Practice at p. 178, namely:

Notwithstanding the general words of ss. 23 and 56 of the Crown Suits Ordinance (Cap. 43) the plaintiff in a petition of right cannot obtain discovery of documents against the Crown.

The Sections referred to in this note read as follows:

23. All the subsequent proceedings in the matter of such petition down to and including the trial shall be conducted in the same manner, and subject to the same rules of practice and procedure as are in force in respect of suits for a similar purpose between subject and subject.

56. Subject to the several provisions of this Ordinance the law of practice and procedure in force in the High Court for the time being in proceedings between subject and subject shall be applicable to all proceedings of a similar kind under this Ordinance.

I accept the report as far as it goes but in the absence of the judgment I can only regard the decision as a bare refusal to make the order and look for the principles governing the matter elsewhere.

In England until the passing of the Crown Proceedings Act, 1947 which specifically authorised such orders no order for discovery could be made against the Crown.This was decided in Thomas v. The Queen [1874] 10 QBLR 44 supra in 1874 and referred to with approval in 1921 in La Societe des Affreteurs Reunis v. The Shipping Controller [1921] 3 KB 1 supra and despite the Privy Council decision in 1923 in the New South Wales case of Jamieson v. Downie [1923] AC 691 supra its authority never appears to have been questioned.

In Thomas v. The Queen [1874] 10 QBLR 44 the Court had before it s. 50 of the Common Law Procedure Act, 1854 which are set out hereunder:

Section 7. So far as the same may be applicable, and except in so far as may be inconsistent with this Act, the laws and statutes in force as to pleading, evidence, hearing, and trial, security for costs, amendment, arbitration, special cases, the means of procuring and taking evidence, self-off, appeal, and proceedings in error in suits in equity and personal actions between subject and subject, and the practice and course of procedure of the said Courts of law and equity respectively for the time being in reference to such suits and personal actions, shall, unless the Court in which the petition is presented shall otherwise order, be applicable and apply and extend to such petition of right: Provided always, that nothing in

this Act shall be construed to give to the subject any remedy against the Crown in any case in which h