HENRY GREER ROBINSON Vs. STATE OF SOUTH AUSTRALIA

JUDGEMENT

(1.) 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.

(2.) 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/s. Smith, [1924] AC 484, 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/s. 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.

(3.) 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/s. Smith, [1924] AC 484 already referred to, and Griffen V/s. 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.