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Thursday, 25 June 1903


Mr DEAKIN (Ballarat) (AttorneyGeneral) . - The honorable and learned members who advised the honorable member for Macquarie were technically right, but every other honorable member will see that in a question of this kind, technicalities count for nothing. The case is sub judice in every sense of the term, except the narrowest. The complainant has intimated his intention to challenge the action of the Government in the Law Courts, and has asked them to provide him with the means of doing so by appointing a nominal defendant. That request has been complied with. As I told the House on a previous occasion, I heard of this matter for the first time from the honorable member for Macquarie, who mentioned it in the House. On the same day I received an application for the appointment of a nominal defendant to represent the Commonwealth Government. My minute was drawn up and signed on that day, and submitted to the Executive Council on the 16th instant. An intimation was sent to Mr. Goldring, I presume in Sydney, the letter being posted on the 22nd.


Mr Thomson - That is a week after it had been passed by the Executive Council.


Mr DEAKIN - Six days after. The memorandum sent to me does not state why the letter was delayed, but the fact that a nominal defendant hadbeen appointed was conveyed to Mr. Goldring, as he mentions in his petition, by the statement to that effect made by me in the House. The letter conveying the formal intimation that his request had been complied with was posted to Mr. Goldring on the 22nd instant and on the next day he would receive it.


Mr Thomson - He would not receive it until the 24th.


Mr DEAKIN - However that may be, this case is now sub judice once more. Mr. Goldring brought a case against the Government of the Commonwealth in the Courts of New South Wales. He, or his adviser, is responsible for the form which that case assumed. When that case was disposed of to hisdisad vantage, heasked authorityfrom us to commence another case, and he obtained that permission practically without a moment's delay - although it appears that a few- days elapsed before he received the letter conveying a formal intimation that a nominal defendant had been appointed. The effect of the proceedings to-day is to put before the public an ex parte statement by Mr. Goldring. It may be true in every particular, or it may be false in every particular - I am not sufficiently informed to know. But the public have his case put before them. Itake it that this gives Mr. Goldring one very improper advantage. There is a second and decidedly more improper advantage which he is seeking to gain,namely, a statement by the Minister who acts as defendant for the Commonwealth in this action. He will, however, fail in this, because I have advised my honorable colleague not to make any such statement in regard to the case.


Mr SYDNEY SMITH (MACQUARIE, NEW SOUTH WALES) - That is a nice way of evading the question.


Mr Isaacs - It is the proper course to take.


Mr DEAKIN - Mr. Goldringis, with our consent, suing the Commonwealth in the New South Wales Courts for the recovery of damages.


Mr Thomson - He has not issued a writ.


Mr DEAKIN - We have done all we can to give him an opportunity of suing us, and we can do no more. If he has not issued a writ, that is not our fault. We have submitted to the State Court ; but now an endeavour is being made on behalf of Mr. Goldring to obtain a statement which may assist him in prosecuting his case against the Commonwealth. That is a most improper proceeding. Any matter connected with this case which may be deserving of parliamentary scrutiny will, I hope, receive it, and no action on the part of the Government will for a moment prevent that scrutiny when it can be permitted without injury to the public interests. At present, however, Mr. Goldring has chosen to put us at arm's length. He does not appear before this House with a statement that he does not propose to seek his legal remedy, and that he comes to this, the highest court of the Commonwealth, to appeal for justice ; but he comes before us at a time when he is applying to the State Courts, and is seeking to hold us pecuniarily responsible for the detention of the books and papers' which he claims.


Mr Poynton - When he signed that petition he was not sufficiently informed upon the matter.


Mr DEAKIN - He had received a statement-


Mr SYDNEY SMITH (MACQUARIE, NEW SOUTH WALES) - A statement from the Department presided over by the Attorney- General .


Mr DEAKIN - He had received no statement from my Department. Having placed ourselves in this position before the court ; having come forward to defend any action which he may institute against us, it is clearly most improper to ask Ministers to make any statement which will assist a. litigant, who, if he has causeof complaint, will receive every justice. This suit is to be heard by a tribunal for which honorable members opposite entertain a decided preference - a State Supreme Court. Mr. Goldring has presented a formal petition to the GovernorGeneral in Council informing him of his desire to proceed against the Commonwealth, and asking that a nominal defendant be appointed. That nominal defendant was appointed without a day's delay. Mr. Goldring has, therefore, obtained all he has asked, and he has given us formal notice of his intention to sue us for the recovery of damages.


Sir William McMillan - Did he not repeatedly offer to sign any bond necessary to enable him to obtain delivery of his goods?


Mr DEAKIN - I do not know. I have no knowledge of the particulars. I have not previously heard that statement made, and do not know whether it is correct. This case never came before me personally, except as to a formal intimation of the progress of the suit which Goldring was instituting in New South Wales, until the request was made by him for the appointment of a nominal defendant.


Sir William McMillan - But he is not dealing with the honorable gentleman.


Mr DEAKIN - Unfortunately he has chosen to deal with me. He has not asked Parliament to try his cause - he has not submitted himself with confidence to our decision. On the contrary, he has preferred that his cause shall be tried where he can be heard as soon as the judicial arrangements permit of that course being adopted, and where he can obtain the compensation which he seeks. He asks for damages. If he has been injured in any way he will obtain damages. He can either obtain the monetary damages which he is asking from the court, or he can appeal to this House to grant him that relief to which he thinks he is entitled. He has chosen to take the former course. We have consented to the case being tried, in order that the court may determine whether he is entitled to damages on account of the detention of his goods, books, and papers. There has been no delay upon our part in this matter. He is now called upon to prove his case, and if he is entitled to compensation he will obtain it.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The AttorneyGeneral knows very well that he cannot obtain it.


Mr DEAKIN - He has informed me that he is petitioning for the return of his books and papers, and for the recovery of damages for their detention, as well as for injury to his business. No doubt he.has been advised that this is the proper course to take.


Sir Malcolm McEacharn - If there is nothing in the case why force him to law at all?


Mr DEAKIN - We do not force him to law. Mr. Goldring might have appeared before Parliament, or he might have appealed to the Government.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - After the lapse of eight months.


Mr DEAKIN - But I would point out to the honorable member that Mr. Goldring has been prosecuting his case in the New South Wales Courts for some time. It was sub judice there for several months.


Mr PAGE (MARANOA, QUEENSLAND) - Why does not the Minister for Trade and Customs prosecute him if he has been guilty of fraud ?


Mr DEAKIN - I have not been instructed to prosecute him, and have no desire to prosecute any one. He has chosen a certain method of making his complaint for the detention of his goods.

An Honorable Member. - He cannot do anything else.


Mr DEAKIN - But we can do something else.


Sir Malcolm McEacharn - The AttorneyGeneral knows whether or not he has been guilty of fraud. If he has not, why compel him to go to law?


Mr DEAKIN - I do not know whether he has been guilty of fraud. This case originated in Sydney.


Mr SYDNEY SMITH (MACQUARIE, NEW SOUTH WALES) - No, in Melbourne.


Mr DEAKIN - It occurred in Sydney, and , has been dealt with by the Crown

Solicitor's office there. The first application received by me in Melbourne in connexion with the present case was that to which I have previously referred, and that was dealt with at once. I repeat that Mr. Goldring has chosen his own line. If, after his case has been judicially disposed of, honorable members are not satisfied with the manner in which he has been treated - apart from the particular matter which is decided by the court - that will be the time to bring it before Parliament. But it is clearly not the time to bring it forward when Goldring, of his own choice, is appealing to a court of law in connexion with the very incidents which are now being challenged in this House. Honorable members represent not only the people as a whole, but the Commonwealth, which is being sued, and it is not for us, because we are Members of Parliament, to assist a litigant who is attacking the Commonwealth, by endeavouring to draw from the Minister for Trade and Customs a statement of his defence which is shortly to be put before the law courts That would be a. most unfair and improper position to take up. Mr. Goldring has already gained the advantage of getting an ex parte statement of his case placed before the public. Strictly speaking, that was not within the bounds of propriety. But, irrespective of whether or not it was proper, I hold that it would be decidedly improper to ask the Minister for Trade and Customs to disclose upon the floor of this House information which might be used against the Commonwealth in the suit that is now pending. I have no hesitation, therefore, in Saying that any statement as to the details regarding the manner in which Goldring has been treated by the Customs Department in connexion with the detention of his books or goods would be highly objectionable at the present time. In court the plaintiff will be able to elicit the defence of the Government, but this House is certainly not the place in which to put forward the defence relied upon in the suit now pending.







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