S.C. 1902. PLANK บ. McLLVENEY. no sale. There must be a distinct enactment of a penalty: Dickenson v. Fletcher(1). T. M. Macdonald, for the respondent, was not called upon. WILLIAMS, J.: I have come to the conclusion that the decision of the Magistrate is right. No doubt, if section 159 of the Licensing Act of 1881 stood alone, a sale by a steward of a bonâ fide club to a member of that club would not be a sale within the meaning of the Act. But you have not to construe any particular section of the Act by itself, but by a comprehensive view of the whole of the sections forming the Act. That was recognised by Mr. Justice Field in the case of Graff v. Evans(2), who says the section must be construed by looking at the language used and taking, a large view of the object of the Legislature. In the present case, section 159 forms part of a series of enactments on the subject of licensing legislation, and on the subject of the sale of liquor in clubs. We have, in addition to section 159, section 229 of the Act of 1881 (less the first paragraph), sections 27 and 28 of the Act of 1893, and section 14 of the Act of 1895. Section 14 of the Act of 1895 is of practically no value in the case, but section 159 of the Act of 1881 must be read in conjunction with section 229 of the Act as amended, and with section 27 of the Act of 1893. Section 159 prohibits any person from selling liquor. The same Act, in relation to clubs, enacts that no person shall, directly or indirectly, be entitled to, or have or receive, any profit on the sale of liquor by a club to its members or guests, but all such profits shall belong to the club. The sale of liquor to its members or guests in the ordinary way in which liquors are sold in clubs is therefore treated in the Act of 1881 as a sale of liquor, although in the abstract it might not be, strictly speaking, a sale. I apprehend that in the Act of 1893 a charter is equivalent to a licence, and that a sale in a club without a charter, although the club is bonâ fide in every other respect, would be a sale within the meaning of section 159. The transfer of a property in liquor to a single member of a club for a pecuniary consideration is distinctly treated throughout the Acts as a sale of liquor. Any other construction, as the Magistrate points out, would reduce all the provisions of the Act with reference to clubs to an absurdity. I think. therefore, that, although the sale is within the prohibition of section 159, yet, if there was nothing in the Act as to granting charters to clubs and regulating their conduct, section 159, on the authority of Graff v. Evans(1), would not prohibit such a sale. The distinction between the English cases and the present case is that in England the section corresponding to section 159 stands alone, and that there is no reference in the English Act to licensing clubs. Our Act, on the contrary, in addition to section 159, contains provisions for the granting of charters to clubs, which are equivalent to licences, and for regulating the conduct of clubs. Section 159 in our Act must therefore be construed with reference to those provisions. The appeal is dismissed. Solicitors for the appellant: Hall, Stout, & Lillicrap (Invercargill). Solicitors for the respondent: T. M. Macdonald & Sons (Invercargill). S.C. 1902. PLANK v. MCILVENEY. BARRETT v. MINISTER FOR RAILWAYS. S.C. IN CHAMBERS. Practice Discovery by Government Department-Minister for Railways- WELLINGTON. Privilege-"The Government Railways Act, 1900," Section 24. 1902. May 9, 19. Section 24 of "The Government Railways Act, 1900," provides that in respect of passengers carried on any Government railway the Minister for April 22, 30; Railways shall have the same liabilities, obligations, rights, and protection as in the case of common carriers of passengers. Quare, Whether this does not place the Minister for Railways in the same position, as regards discovery of documents, as a private person or company, in an action brought against him claiming damages for injury alleged to have been caused by default, negligence, or wrongful act of the Railway Department, or any person employed therein. But, in any case, the whole of the documents in the Railway Department are not privileged from discovery, and the Minister is bound to make discovery of all such documents as are of mere business and routine, and not confidential. It is for the Minister or head of the Department to state which of the documents in the possession of the Department are not confidential. SUMMONS by the plaintiff for discovery by the defendant, Skerrett in support of the summons. Cur. adv. vult. (1) 8 Q.B.D. 373 STOUT, CJ. 1902. BARRETT V. MINISTER FOR There is no evidence before me that it would be any injury to the State to make a discovery of documents in the Railway Department relevant to the injury that the plaintiff has reRAILWAYS. ceived. If the railways had been managed by a company it is not contended that the discovery could have been resisted. The Minister for Railways is declared by section 24 of "The Government Railways Act, 1900," to be in the position of a common carrier, with all the privileges and liabilities of such, and it may be that, being so, he has no right to resist discovery. Before, however, documents in the possession of a Government Department are refused discovery or production, it must appear they are confidential documents, or some high officer of State must object to their production. Neither of these objections exists in this case. In Hennessy v. Wright (1) certain documents were produced, and others were refused production on the ground that they were confidential despatches between a Governor and the Secretary of State for the Colonies. Wills, J., said(2), “Primá "facie, and if it is what it professes to be, it" [the document not produced]" is called into existence simply for the service "of the State, and it may be expected to relate not to mere matters of business routine, but to matters of government "and policy, and to be in its nature private and confidential.” The decision in that case followed the prior decision of Anderson-v. Hamilton (3), and Home v. Bentinck(4). In Ford v. Blest (5) the reason why the letter was not ordered to be produced was that it appeared on affidavit that it was an official report, and hence confidential. There are several cases showing that the reports of, for example, a military or naval officer, or of a Royal Commission, will not be ordered to be disclosed. They are all confidential. In Wright & Co. v. Mills(6) the documents sought to be disclosed did not belong to the defendant, an Agent-General of a colony, but to his principal, the Government, which was not a defendant, and the Government objected to their production. In In re Joseph Hargreaves (Limited)(7) the Government was not a party to the suit, and Wright, J., in the exercise of a statutory discretion, refused to order the Income-tax Department to produce income-tax returns which were secret and con 66 66 S.C. 1902. BARRETT V. fidential. The Court of Appeal refused to overrule the discretion of the Judge. Romer, L.J., said, however, "I will only add that, in my opinion; the question now before us is not necessarily the same as that which may possibly arise upon the hearing of the misfeasance summons if the Judge RAILWAYS. "has then to consider the question of a subpoena for the pro"duction of these documents." Three New South Wales cases-Wilson v. The Minister of Public Works and two others, all mentioned in the New South Wales Digest(1)--were referred to, and in them, according to the note in the digest, order for discovery was refused of Government documents. There is no report of these cases in our library, and it may be that it appeared the documents asked for were confidential or secret. If not, the decisions went beyond the dicta of Wills, J., in Hennessy v. Wright (2). In The "Bellerophon "(3) the log-books were ordered to be inspected, but not the confidential reports. In my opinion the order for discovery must go; it will be for the Department to say whether there are any reports confidential in their nature that should not be made public. There must be many documents of mere business and routine that the plaintiff is entitled to discovery of. Costs reserved. Order for discovery, limited as above. An affidavit by the Minister for Railways was thereupon. filed in which he claimed that the whole of the books and papers in the Railway Department were protected and privileged from production. The contents of this affidavit are more fully set out in the further judgment afterwards delivered by Stout, C.J. The plaintiff took out a summons for further dis covery. Gray in support of the summons. STOUT, C.J.: Cur. adv. vult. This is a summons for further discovery. On the 30th of April I ordered that the defendant, or some officer in the Railway Department, make discovery of documents in the Department relevant to this action, reserving to the defendant or some officer of the Department the right to object to any reports that might be of a confidential nature that should not (3) 44 L,J. P.D. & A. 5. (1) 1884-91, p. 330. VOL XXI-33, MINISTER FOR 1 S.C. 1902. BARRETT v. MINISTER FOR be made public. I said, "There must be many documents of mere business and routine that the plaintiff is entitled to discovery of." An affidavit has been filed by the defendant, and it will be seen that it is not denied that there are such RAILWAYS. documents. He stated that the official reports are "mostly of an official character. The second paragraph states, “As "Minister for Railways I have in my possession or power a departmental file of papers and departmental books all be'longing to the Government, containing official reports, mostly of a confidential character, which have been made by officers "of the Railway Department relating to the matters in question in this action." 66 The ground taken up by the defendant is that even papers that are not confidential ought not to be ordered to be disclosed. The third paragraph of the affidavit states, "I object "to produce the said books and file of papers, or any of them, or any portion thereof, upon the ground that to produce "the same or any of them is and would be contrary to State 'policy, and would be prejudicial to public interests, and I "declare that the whole of the said books and papers are pro"tected and privileged from production." This is a claim that, so far as I am aware, has never been hitherto made in any case. As I pointed out in my former judgment in the cases of The "Bellerophon "(1) and in Hennessy v. Wright(2), many documents were produced. It was only the confidential documents that were refused production. Counsel for the defendant now relies, in addition to the cases mentioned in the previous argument, on a passage in Taylor on Evidence (3), and on two English cases-Hughes v. Vargas(4), and Latter v. Goolden decided on the 10th of November, 1894, and not reported, but referred to in Taylor(3). Taylor and these cases do not deal with discovery, nor with cases of production from a party to a suit. They were cases of outside parties desiring the production of State documents. Taylor says, "Until recently there existed, however, no in"stance of a document being held protected from production "unless it contained a communication made by one officer "of State to another officer of State in the course of official "communication between them on a matter of public busiBut the Court of Appeal have recently held (Latter "v. Goolden, 10th November, 1894) that a communication "which it can see is to be one to a Government Department "ness. (1) 44 L.J. P.D. & A. 5. (2) 21 Q.B.D. 509. (3) 9th ed. Vol. i. § 947. |