Marconi's Wireless Telegraph Company Limited v Commonwealth (No 2) [1913] HCA 19

es THE MARCONTS WIRELESS TELEGRAPH

HIGH COURT [1913.

[HIGH COURT OF AUSTRALIA.) } PLAINTIFFS ;

COMPANY LIMITED

AND

THE COMMONWEALTH f F ' . DEFENDANTS.

[No. 2]

H. ©. or A. Practice —Inspection—Document or thing in possession of the Crown—State secret

1913. — MELpourne,

March 7, 10, 11, 20.

Griffith C.J., Barton and Isaacs JJ.

—Claim of privilege—Opinion of Minister that inspection would be detrimental to public welfure—Duty of Court to inquire into facts as to possibility of detri- ment—Patenta Act 1903-1909 (No. 21 of 1903—No. 17 of 1909), secs. 92, 95— Judiciary Act 1903 (No. 6 of 1903), secs. 56, 64—Rules of the High Court 1911, Part I., Order YLUL., r. 1.

Where a claim is made by the Crown that inspection of a thing should not be granted on the ground that, in the opinion of a Minister of the Crown, such inspection would be detrimental to the public welfare, it is not the Court's duty to concede the claim without any inquiry, but it ought first to ascertain what is the nature of the alleged State secret, and whether facts discoverable on inspection of the thing can, in any intelligible sense, prejudice the public welfare: By Grifith C.J. and Barton J., Isaacs J. dissenting.

In an action against the Commonwealth for infringement of patent it was alleged that an apparatus used by the Commonwealth for wireless telegraphy was an infringement of the plaintiffs' patents. An application by the plaintiffs for inspection of the apparatus was opposed on the ground that the Post- master-General was of opinion that such inspection would be prejudicial to the public interest and welfare of the Commonwealth.

Held, by Grifith C.J. and Barton J., Isaacs J. dissenting, that there was nothing to warrant even a conjecture that the inspection could disclose any- thing that could reasonably be called a secret in any sense of the word, and, therefore, a primd facie case of infringement being made out, that inspection should be allowed.