1904.

v.

DUN.

informed that three firms at least carrying on business in Sydney MACINTOSH had some or all of the reports issued by the defendants containing the alleged libel, but they refused to allow the plaintiffs to inspect them. The plaintiffs believed that since January 1st, 1903, the defendants had published several reports containing libels on the plaintiffs, and that it was material and necessary for the plaintiffs in order to frame their declaration and to prepare for trial to have all reports and documents published or issued by the defendants since January 1st, 1903, produced to them, and that the plaintiffs would derive material advantage and support from the production of the same. The defendants' affidavit alleged that any reports made by the defendants were made bona fide in the ordinary course of their business as a trade protective society, and solely in answer to specific confidential inquiries made by subscribers to the defendants' agency, and were true, and, as the defendants were advised, not actionable. A number of cases were cited during the argument, to which, however, it is unnecessary to refer as they were not dealt with in the judgment.

September 23, 1904.

Campbell, for the plaintiffs.

Wise, K.C., and Rolin, for defendants.

PRING, J. In this case I am not going to decide anything more than is absolutely necessary. No doubt, the plaintiffs are in a difficulty, but it does not follow that, because they are in a difficulty, I must help them out of it. If a plaintiff in a libel action says I want discovery for the purpose of obtaining material upon which to frame my declaration, he should give the Court some indication of what the nature of the alleged libel is. This is carefully kept in the background by this plaintiff. In the third paragraph of the affidavit made by one of the plaintiffs he says: "This action is brought to recover damages against the defendants for the publication of certain libels upon the plaintiffs contained in certain reports issued by the defendants to certain persons and firms in Sydney." That gives no indication of the nature of the libel. Then the fourth paragraph of the affidavit states: "Early in the month of March last I called at the defendants' office in Sydney, and saw the said Green " (the defendants'

1904.

MACINTOSH

V.

DUN.

BRARY

attorney who carries on their business here), "respecting the said libels, and the said Green produced a certain report dafed about the beginning of December, 1903, which the defendants had issued, and which contained some of the libels complained of by the plaintiffs, and allowed me to read the same, but refused to allow me to make a copy thereof. I then asked the said Green 'to let me see another report issued by the defendants in November, 1903, concerning the plaintiffs, which after much pressure the said Green allowed me to see, but refused to let me see any other reports issued by the defendants concerning the plaintiffs." So that this gentleman, one of the plaintiffs, in March last was shown a copy of one of these alleged libels, and I suppose he could, even in September, have remembered the purport of the libel, and what reflections it cast upon the plaintiffs. But there is not the slightest indication of what the alleged libel is. It is contended by Mr. Campbell that I must take judicial notice of what is the business of a trade protective society, and can infer from this what would be the nature of a libel in their reports. But I do not think I should do anything of the kind. It might allege that the plaintiffs were dishonest traders, or had defrauded their customers, or were insolvent. There are a hundred and one different things which it might allege. This plaintiff saw the report in March last, but he does not give the Court any indication of what is the libel contained in the report which he complains of. Under these circumstances I can only regard this as a fishing application, and upon the plaintiffs' affidavit alone I think this application should be refused with costs.

On October 28th,

Application refused.

The plaintiffs took out another summons for discovery. The declaration had now been filed, and issue joined, and the case was ready for trial.

Wise, K.C., and Blacket, for the defendants, took the preliminary objection that the matter was res judicata. This is a second application, a former application for the same order having failed for want of the proper material: Thompson v. Southern Coal Co. (15 N.S. W. L.R. 166; 10 W.N. 214); Brown v. Proctor (18 W.N. 94); Todd v. Jeffery (7 A. & E. 519).

October 28,

1904.

1904.

Campbell, for the plaintiffs.

upheld the objection, and dismissed the application

MACINTOSH

V.

PRING,

DUN.

with costs.

The plaintiffs appealed.

Application dismissed.

November 18. On Nov. 18th, 1904,

Wise, K.C., and Blacket, for the defendants, took a preliminary objection that no appeal lay. Sect. 102 of the C.L.P. Act gives power to "the Court or a Judge" to grant discovery. Where co-ordinate jurisdiction is thus given, there is no appeal from the decision of the Judge. In such cases the Judge sits as and for the Court. Here the power given is discretionary, and the decision of the Judge is not subject to review: Ex parte Baillie (5 S.C.R. at 22); Ex parte Stevenson ([1892] 1 Q.B. 394); Cross v. Goode (7 N.S. W. L.R. 72; 2 W.N. 70); In re Knight (18 N.S.W. L.R. 315; 14 W.N. 56). If the headnote in the last case is intended to include all cases of procedure, it goes too far.

J. L. Campbell, for the plaintiffs. An appeal always lies in cases of practice and procedure, because the Court will keep control of its own practice and process: Warner v. Fischer (13 S.C.R. 346); Ex parte Chales (13 W.N. 107).

THE CHIEF JUSTICE. An application was made to Mr. Justice Pring in Chambers for discovery under s. 102 of the Common Law Procedure Act, and his Honour refused to make an order. A subsequent application was made on further material, and that application was dismissed on the ground that the matter had already been dealt with. This is an appeal from the latter decision, and a preliminary point is taken that since under s. 102 co-ordinate jurisdiction is given to "the Court or a Judge," no appeal lies to the Full Court.

I am of opinion upon a long line of authorities in this Court that where jurisdiction is given to the Court or a Judge, and the party goes to the Judge, if the matter is one of practice or procedure an appeal lies to the Court. That appeal, no doubt, takes the shape of a re-hearing, but it is none the less in fact an appeal. There is a long line of authority to this effect, dating

v.

DUN.

The C.J.

back to Warner v. Fischer (13 S.C.R. 346), where Sir James 1904. Martin, the most accurate of Judges, said: "The power to order MACINTOSH the execution to issue is given by the Act to a 'Judge of the Supreme Court, or the said Court,' and where original jurisdiction is thus conferred upon the Court as well as upon a Judge, the Court can entertain an appeal from the Judge's decision. Moreover, the order made for the issuing of the execution has the effect of making the judgment mentioned in it a record of this Court, and it would require express words to deprive the Court of authority to deal with its own process." Again in Ex parte Chales (13 W.N. 107), Mr. Justice Manning, who was well acquainted with the practice of the Court, said, though his remark was, strictly speaking, obiter, "There is always an appeal to the Full Court where the matter is under an Act regulating the Supreme Court procedure, e.g., the C.L.P. Act." The principle was again affirmed in In re Knight (18 N.S.W. L.R. 315; 14 W.N. 56). That was a case where the Judge in Chambers had made an order removing a caveat under the Real Property Act. Dr. Sly cited a great number of cases in support of his right to appeal, amongst them Warner v. Fischer and Ex parte Chales, but it was pointed out that all those cases were cases of procedure, and therefore inapplicable to the case then before the Court. We have, therefore, a consistent chain of authorities, dating from 1875, in which the same law is recognised. In England the practice under the Judicature Acts followed the old practice under the Common Law Procedure Acts, and in the Judicature Act of 1894 an express provision was inserted recognising this right of appeal in matters of practice and procedure. For these reasons I am of opinion that we must overrule the preliminary objection, and entertain this motion.

OWEN and G. B. SIMPSON, JJ., concurred.

On March 2nd, 1905,

Objection overruled,

J. L. Campbell, for the appellants. The principle of Thompson v. Southern Coal Co. does not apply to interlocutory matters, nor to cases where the relief sought is discretionary, nor unless the first application has been heard and determined on its merits.

March 2,

1905.

1905. This case has never been decided on its merits. The first appliMACINTOSH cation was refused, because our affidavit did not sufficiently indicate the nature of the alleged libel : see O'Sullivan v. Aarons (5 S.C.R. 336); Re Butler & Masters (13 Q.B. 341); Pike v. Davis (8 Dowl. 387).

V.

DUN.

THE CHIEF JUSTICE referred to R. v. Harland (8 Dowl. 323).

Campbell. Further, these two applications are entirely different. Their object is quite different. One was before declaration, the second was after issue joined for the purpose of evidence at the trial.

We were clearly entitled to discovery even before declaration : Webb v. East (5 Ex. D. 108); Hill v. Campbell (L.R. 10 C.P. 222).

Pilcher, K.C., and Rolin, for the defendants. Unless the Court overrule Thompson v. Southern Coal Co., the second application was properly dismissed. The two applications were precisely the same, and founded on exactly the same material except that the first was for the purpose of enabling the plaintiffs to concoct a declaration, and the second was made after they had done so. The plaintiffs' motive does not affect the nature of the

application.

A plaintiff is not absolutely entitled to discovery, and the Court is not disposed to grant it in libel cases merely for the asking: Freehill v. Crowley (11 W.N. 146); Clarke v. Lees (12 W.N. 137). The plaintiffs have not brought themselves within the section. They have not shown one material document to be in our possession, to the production of which they are entitled. All they have done is to say, "We strongly suspect that we have been libelled, therefore we are entitled to discovery." So far there is absolutely no evidence of publication, and to get that evidence is evidently the plaintiffs' object.

THE CHIEF JUSTICE. The first point we have to consider is whether this case is governed by Thompson v. Southern Coal Co. There the Court held that the two applications were identical, and, following R. v. Leeds and Manchester Railway Co. (8 A. & E. 413), held that the same application could not be made a second time upon fresh material. fresh material. I am of opinion in this case that the