Cox v The Commissioner of Water Resources [1992] QLAC 50 (1992) 14 QLCR 304

LAND APPEAL COURT BRISBANE 27 November 1992 Re: Appeal from the decision of the Land Court on an application for an Order for Discovery (A90-85) David Richard Vivian Cox v The Commissioner of Water Resources JUDGMENT The issue This case raises for determination the question whether the Land Court has power on an interlocutory application to order discovery of documents by a party to proceedings before it, before the hearing of the substantive matter. The question comes to the Land Appeal Court on appeal from a decision of a member of the Land Court that the Court has no power to order discovery. Consistently with that decision, the learned member refused an interlocutory application for an order for discovery of certain documents relevant to the matter and claimed to be in the possession of the respondent Commissioner of Water Resources (the "Commissioner"). The Land Appeal Court has held previously that the Land Court does not have the power to order discovery because neither the Land Act nor the Rules of the Land Court or the Land Appeal Court provide any machinery for ordering discovery of documents (Re Mount Abundance (Freeholds) (1926-27) 11 QCLLR 11). That decision has been followed on numerous occasions. The Land Appeal Court on questions of law should, as a general rule, regard itself as bound by its own decisions unless the decision of a superior court or fresh legislation makes them untenable, or perhaps if it could be shown that they were given per incuriam (R v Rigby; Wandoan Lands ((1953) 24 QCLLR 135, at 137 (LAC)). Even if we are not bound by any prior decision of the Land Appeal Court, we ought to follow any such decision unless we think it is clearly wrong (Mellick v Secretary for Public Lands (1954) 25 QCLLR 29, at 35 (LAC); see also Reassessment [1992] QLAC 50 -- 1 of 22 -- 2 of Rents - Perpetual Town Leases, Town of Currumbin (1964) 31 QCLLR 77, at 80 (LC)). The appellant contends in this case that the Land Court has never had the benefit of full argument as to whether it has power to order discovery and so the decisions to date have been given per incuriam. He also submits that, because the Land Act was amended in a significant way subsequent to the decision in Re Mount Abundance (Freeholds), that decision is no longer good authority. In the alternative, he submits that this decision was wrong insofar as it decided the question. Accordingly, we are willing to consider the matter afresh. The appellant's argument The appellant's submission was put by Mr RG Bain. We understand the appellant's case to be that the absence of an express conferral on the Land Court by the Land Act 1962 or the Rules of the Land Court 1912 of a power to make an order for discovery does not mean that the Court lacks that power. It is part of the inherent power of an inferior court (such as the Land Court) to regulate its own procedure. Even if it were not otherwise within the inherent power of the Land Court, the power to order discovery is conferred by section 41(5)(a) of the Land Act 1962 which provides, in part, that the Land Court "shall be governed in its procedure ... by equity, good conscience and the substantial merits of the case". In Mr Bain's submission, that means that, in relation to its procedure, the Land Court is to act in all respects as if it were (or, at least, had the powers of) the old Court of Chancery and that section 41(5)(a) imports the actions of procedural fairness which find expression in the bills of discovery in Chancery. The power is to be distinguished from the operation of section 41(5)(a) in relation to the making of decisions by the Land Court. The appellant's argument is put in this way because originally the common law courts possessed no general powers of enforcing discovery (see The Commonwealth v Baume (1905) 2 CLR 405; The Commonwealth v Miller (1910) 10 CLR 742). It was only through the medium of the Court of Chancery that any general right of discovery could be exercised. Thus, as a rule, a party to an action at common law was obliged to come in chancery if he or she wished to obtain discovery and to file a bill for the sole purpose of getting it. By contrast, discovery was the very essence of the bill in chancery. Every bill for relief in equity was, in reality, a bill for discovery. Since the fusion of the courts of common law and equity the practice of the courts is regulated by statute and, in particular, the power to order discovery is found in rules of court. Although the rules regulate the exercise of the right to discovery, they are not a code, and recourse is had to equity where the rules are silent. The rules prevail, however, where the rules make an express provision. (see Bray Law of Discovery, 1985 reprint; BC Cairns Australian Civil Procedure, 3rd edn, 1992; Halsbury's Laws -- 2 of 22 -- 3 of England, 4th edn, vol 16, paras 1267, 1268) For the appellant's submission to succeed it must, therefore, be established that the Land Court has the same power as the Court of Chancery to order discovery, either by virtue of the Land Court's inherent jurisdiction or because of the conferral of that power by section 41(5)(a). Mr Bain also pointed to sections 41A and 41B of the Land Act 1962 to support his argument. He submitted that, despite the reference in section 41A to "mutual discovery of information", neither section is to do with discovery. Rather, the sections provide for mutual disclosure of information and abrogate legal professional privilege and are similar in effect to the Commercial Causes "A" list practice and the personal injury practice direction in the Supreme Court Order 39 Division 3A. In his submission, the enactment of sections 41A and 41B was not inconsistent with the notion that the Land Court has power to order discovery. Indeed, he argued that sections 41A and 41B presuppose that the Court has that power. They override the privilege which attaches to documents which are discoverable but would not otherwise be produced. On the other hand, it may be noted that when the sections were introduced in 1981, no attempt was made to specifically confer by the Act or Rules the power to order discovery. Mr Bain submitted that there was no need to specifically provide for discovery because the existence of the power was plain beyond doubt. The respondent's case Mr DJ Grealy appeared on behalf of the Commissioner to submit that the Land Court does not have power to order discovery. He argued that unless the jurisdiction is conferred by statute, a court (other than a court of equity) has no such power. The Land Court is a statutory court and its jurisdiction and powers are conferred by statute. Other than in the circumstances referred to in sections 41A and 41B of the Land Act 1962, there is no statutory conferral upon the Court of a power to make an order in the nature of discovery in appeals instituted under section 4.26 of the Water Resources Act 1989. The provisions of section 41(5)(a) of the Land Act 1962 do not have the effect of constituting the Court as a court of equity. The provisions should be read only as having the effect of regulating the Court's procedure and decisions in the exercise of a jurisdiction or a power that is conferred on the Court by statute. The statutory provisions The resolution of the issue before this Court turns on the meaning to be given to the phrase "it shall be governed in its procedure ... by equity" in section 41(5)(a) of the Land Act 1962. It is necessary to view those words in the context of the relevant subsections of section 41. -- 3 of 22 -- 4 "41. Powers of Court (1910, s. 32). (1) For the purposes of any inquiry or appeal held by or made to the Court, or any other matter within its jurisdiction under this or any other Act, the Court shall have power to summon any person as a witness and to require and compel him to bring and produce in evidence all documents and writings in his possession or power, and to examine him, and to punish him for not attending in pursuance of the summons, or for refusing to give evidence, or for neglecting or refusing to bring and produce any such documents or writings, and for such purposes a member of the Court shall have the like powers as a Judge of the Supreme Court. (2) The Court may, if it thinks fit, take evidence of its own motion. (3) (Repealed). (4) The Court may take evidence on oath, affirmation, affidavit or declaration, and shall take notes of the evidence. (5) Court to be guided by equity and good conscience. Notwithstanding anything in this Act or in any other Act, or in any rule, process or practice of law - (a)the Court in the exercise of any jurisdiction, duty, power or function conferred or imposed upon it shall be governed in its procedure and in its decisions by equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms of the practice of the other courts; (b)the Court in the exercise of any such jurisdiction, duty, power or function shall not be bound by any rule or practice as to evidence, but may inform its mind on any matter in such manner as the Court deems just; (c)the Court may accept, admit and call for such evidence as in equity and good conscience it thinks fit, whether strictly legal evidence or not. This subsection does not apply to proceedings in respect of offences against this Act. ..." In our view, the matter is resolved in the following way. First, paragraph (a) of subsection 41(5) is to be read in light of the opening words "Notwithstanding anything in this Act or in any other Act, or in any rule, process or practice of law". Those words provide that paragraph (a) is to operate and to be construed unrestricted by other legislative provisions or other rules, processes or practices of law which might otherwise limit the operation of that paragraph (or paragraphs (b) and (c)). The words of paragraph (a) fall to be determined in their own terms but consistently with the -- 4 of 22 -- 5 applicable rules of statutory interpretation (see Price v JF Thompson (Qld) Pty Ltd [1990] 1 QdR 278). Second, the opening of paragraph (a) refers to the exercise of any "jurisdiction, duty, power or function conferred or imposed upon" the Land Court. Any power which the Court has must be conferred by a statute. It is only when a power is conferred that the phrase in issue in this case can operate. In other words, it is only in the exercise of a power conferred on the Court that the Court "shall be governed in its procedure and in its decisions by equity, good conscience, and the substantial merits of the case". The words just quoted are not a source of power (or jurisdiction). They offer guidance as to the exercise of a power already conferred. In this respect we note with approval the recent decision of the learned President of the Land Court in HID Stevenson v The Commissioner of Water Resources ((1990-1991) 13 QLCR 29, at 30; see also CG Mellish v The Valuer-General (1960-61) 28 QCLLR 102, at 104; Niall Preferential Pastoral Holding, North Kennedy District (1974) 1 QLCR 180 (LAC)). Third, the word "equity" must be read as part of the expression "equity, good conscience, and the substantial merits of the case". As Lord Halsbury stated "It certainly is not a satisfactory mode of arriving at the meaning of a compound phrase to sever it into its several parts and to construe it by the separate meaning of each of such parts when severed" (Mersey Docks and Harbour Board v Henderson Bros (1888) 13 App Cas 595, at 599-600, quoted by Barton J in Lorimer v Smail (1911) 12 CLR 504, at 510). In the context of section 41(5)(a) the word "equity" is to be construed not as a technical term but with its ordinary English sense of "fairness; recourse to principles of justice supplementing or prevailing over common and statute law" (The Australian Concise Oxford Dictionary) and "1. the quality of being fair or impartial; fairness; impartiality. 2. that which is fair and just" (The Macquarie Dictionary). That was the view taken by the Full Court of the Supreme Court of Queensland when it held that the word "equity" in the context of "equity, good conscience and the substantial merits of the case" must mean "substantial justice" or "fairness" (Melwood Units Pty Limited v The Commissioner of Main Roads (1976) 3 QLCR 209, at 227). Fourth, paragraph (a) provides, in effect, that the Court shall act in its procedure "without regard to technicalities or legal forms of the practice of the other courts" including, presumably, the bills of discovery in Chancery. On that analysis, the words of paragraph (a) do not support the interpretation for which the appellant contends. -- 5 of 22 -- 6 In light of the way in which this matter was argued, however, it is appropriate to consider whether that additional meaning can be gleaned from other provisions concerning the establishment and powers of the Land Court, the legislative history of section 41 of the Land Act 1962, or the interpretation by various courts of the expression "equity, good conscience, and the substantial merits of the case" or comparable expressions. Legislative history The Land Court was created by the Land Act, 1897 61 Vic. No. 25 from its predecessor body established by the Crown Land Act of 1884. The 1897 Act was repealed by section 5 of the Land Act of 1910. Section 20(1) of that Act provided for the constitution of the Land Court and section 20(2) provided that the Land Court constituted under the 1897 Act "shall be and remain the Land Court for all the purposes of this Act". The Land Act of 1910 was repealed by section 4 of The Land Act of 1962. Section 30(1) of the latter Act provides that the Land Court is "preserved, continued in existence, and constituted under this Act". The Land Act 1962 as amended provides in general terms that the Land Court "shall hear and determine all matters which by this Act or any other Act are required to be heard and determined by the Court" (section 37). In addition to the specific matters referred to in the Land Act 1962, jurisdiction is conferred on the Court by some 24 other Acts (see Court Forms, Precedents and Pleadings, Queensland, vol 2, paras 42,005 - 42,083). For present purposes it is not necessary to go further back than the Land Act 1910 to trace the history of the powers of the Court conferred by successive Land Acts. Section 32 of the Land Act of 1910 provided, in part: "32. Powers of Court. 1897, s. 30. - (1.) For the purposes of any inquiry or appeal held by or made to the Court, or any other matter within its jurisdiction as a tribunal under this or any other Act, the Court shall have power to summon any person as a witness and to require and compel him to bring and produce for the purposes of evidence all documents and writings in his possession or power, and to examine him, and to punish him for not attending in pursuance of the summons, or for refusing to give evidence, or for neglecting or refusing to bring and produce any such documents or writings, and for such purposes shall have the powers of a Judge of the Supreme Court. The Court may take evidence of its own motion if it thinks fit. -- 6 of 22 -- 7 ... (2.) The Court may take evidence on oath, affirmation, affidavit, or declaration, and shall take notes of the evidence. ..." The decision of the Land Appeal Court in Re Mount Abundance (Freeholds) (1926-27) 11 QCLLR 11 was made when the powers of the Court were so expressed. In the absence of some other provision, it might be thought that the express power as to production of documents conferred by section 32(1) was inconsistent with a general power to order discovery. Three observations should be made about the decision in that case. First, the case concerned whether a document known to exist should be produced. The issue was whether the document was protected by privilege and so should not be produced to a party to the proceedings. The Land Appeal Court held that the report was relevant, could be tendered as evidence and was not protected by privilege. The Court concluded: "We do not think that the Act, or the Rules of the Land Court or the Land Appeal Court, provide any machinery for ordering discovery of documents. We think, however, that under section 32 of the Land Acts we can order the attendance of any witness having the custody of documents which we think should be procured. We assume that having expressed our view no order will be necessary, and that the report of Mr Carr will be produced." ((1926-27) 11 QCLLR 11, at 16) Clearly the Court was there referring to the absence of any express machinery (and, by implication, any power) to direct one party to produce to another party a document requested by that other party. The Court could have ordered, in effect, that the first party produce the document to the Court. Second, the decision was made before the insertion in the Land Act 1910 of section 32(2A), which was, in substance, the same as section 41(5) of the Land Act 1962 and, of course, before the insertion of sections 41A and 41B of the Land Act 1962. Accordingly, the decision cannot stand for the proposition that the Court lacks power to order discovery if that power was conferred on it subsequently by statute. -- 7 of 22 -- 8 Third, if the statement was that neither the Act nor the Rules provide power to order discovery then that statement was obiter dictum. Mr Bain submitted that the decision was per incuriam because the Land Appeal Court was not referred to cases concerning an inferior court's power to control its own processes, which processes he submits, include the procedure of ordering discovery at an interlocutory stage. As the decision was obiter on the discovery point it is not necessary to decide whether it was decided per incuriam. For present purposes it is sufficient to state that we are willing to reconsider, in light of the arguments put by counsel in the present case and the materials which our own researches had disclosed, whether the Land Court has power to order discovery. We note that the decision in Re Mount Abundance (Freeholds) was not the first decision of the Land Appeal Court on this matter. In Re Jimbour ((1906-1908) 3 QCLLR 120) a differently constituted Court was asked to rule on an application for the Crown to produce certain reports and valuations made to the Crown prior to the institution of the proceedings under the Closer Settlement Act 1906. Blair AG objected on the basis that, among other things, the documents were privileged and the Land Appeal Court had no power to order discovery of the documents. He cited section 30 of the Land Act 1897 (which was subsequently replicated as section 32 of the Land Act of 1910). The report of the case contains the following summary of the argument and the Court's ruling: "MILLER D.C.J.: The power of the Court is apparently limited to compelling the attendance of witnesses. Blair A.G. cited Attorney-General v Newcastle on Tyne Corporation, 1897, 2 Q.B. 384, 395; Hughes v Vargas, 9 Times L.R. 551; Hennessy v Wright, L.R. 21 Q.B.D. 509, 514; McElveney v Connellan, 17 Irish L.R. 6A; Baume v Bourne, 2 C.L.R. 405. Feez: The documents, even if confidential were not privileged. The Crown should give the Court all the assistance in their power, and not keep back information, whether it makes for or against them. Brown v Commissioner for Railways, 15 A.C. 240, 251. THE COURT held that they had no power to order the production of the documents." ((1906-1908) 3 QCLLR 120, at 125) Section 32 of The Land Act 1910 was amended by The Land Acts and Other Acts -- 8 of 22 -- 9 Amendment Act of 1937. Subsection (2A) in the following terms was inserted: "(2A.) Notwithstanding anything in this Act or any other law or any practice to the contrary - (a)The Court in the exercise of any jurisdiction, duty, power, or function conferred or imposed upon it shall be governed in its procedure and in its decisions by equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms or the practice of the other courts; and (b)The Court in the exercise of any such jurisdiction, duty, power, or function shall not be bound by any rule or practice as to evidence, but may inform its mind on any matter in such manner as is deemed just; (c)The Court may accept, admit, and call for such evidence as in equity and good conscience it thinks fit, whether strictly legal evidence or not. This subsection does not apply to proceedings in respect of offences against this Act." By the same amending Act, section 35(9A) was inserted. That subsection made provision for the Land Appeal Court in terms which were, in all material respects, identical to those in section 32(2A). We note, for the purpose of completeness only, that the "equity and good conscience" provisions as applying to the Land Court and the Land Appeal Court were repealed in 1943 and were reinserted in respect of the Land Court by section 4 of the Land Acts and other Acts Amendment Act of 1958. The current section 44(15) applying the "equity and good conscience" provisions to the Land Appeal Court appeared in its present form in the Land Act 1962. When interpreting these words, either in section 32(2A) of the 1910 legislation or in section 41(5) of the present Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation, whether or not the purpose is expressly stated in the Act (Acts Interpretation Act 1954, s 14A). What was the purpose of those subsections? As a general rule this Court may give consideration to extrinsic material capable of assisting -- 9 of 22 -- 10 in the interpretation if the provision of an Act is ambiguous or obscure, or to confirm the interpretation conveyed by the ordinary meaning of the provision. The range of extrinsic material which can be considered includes the speech made to the Legislative Assembly by the member in moving a motion that the Bill be read a second time, and material in any official record of debates in the Legislative Assembly (Acts Interpretation Act 1954, s 14B). We have had regard to extracts from the record of debates in the Legislative Assembly concerning the Land Acts and Other Acts Amendment Bill 1937 and have found no direct guidance as to whether the insertion of subsection 32(2A) was intended to confer on the Land Court the powers of the Court of Chancery, including the power to order discovery. The relevant speeches have, however, provided a sense of what the Parliament meant to achieve and have pointed to another line of inquiry. In his speech initiating the Bill in Committee, the Secretary for Public Lands (Hon. P Pease) stated: "We also intend to simplify the procedure before the Land Court by allowing it to operate more in conformity with the principles observed in the Industrial Court. All appeals relating to rent, compensation, resumption and like matters are to be free from legal formalities and restrictions. That is to say, instead of adopting the procedure of employing a number of legal representatives, which is a costly matter, particularly to the man on the land, matters will be heard freely by the court on the basis of common sense. Of course, the hearing of proceedings for offences against the Lands Acts, or in the working of the laws of the State, will remain as at present. Hon. members will understand the amendments when they read the Bill. I am making this explanation at this stage in order that they will understand what is in the mind of the Government in relation to the Land Court." (Legislative Assembly, Debates, 2 November 1937, 1113) Later, in the course of his second reading speech, the Secretary for Public Lands referred to the "simplification of proceedings in both the Land Court and the Land Appeal Court". He continued: "It is vitally important to have the proceedings in the court as simple as possible. We are cutting away all the legal procedure in the Land Court so that the persons who come before the court will not have to spend much money in legal fees and other costs. We are making the procedure there such that it can be easily understood, -- 10 of 22 -- 11 and on the lines of that of the Industrial Court". (Legislative Assembly, Debates, 4 November 1937, 1185) There is nothing in those speeches which directly supports the appellant's contention that the new subsection 32(2A) was intended to expand the powers of the Land Court. The speeches do assist by pointing to the procedure of the Industrial Court as the model for the Land Court. The legislation governing the Industrial Court at that time was the Industrial Conciliation and Arbitration Act of 1932, section 67 of which was almost identical to section 32(2A)(a) and (b) of the Land Act of 1910. The Public Acts of Queensland (Reprint) (volume 4, at 1073) includes the following annotation of section 67 of the Industrial Conciliation and Arbitration Act of 1932: "This section only applies where the Court is acting in exercise of its jurisdiction, and not for the purpose of determining the question whether such jurisdiction exists in a particular case (In re Wool Store Employees, [1917] QWN 41). Cf. Federated Engine-drivers and Firemen's Association v Broken Hill Pty. Co. Ltd. (1911), 12 C.L.R. 398. ... As to the effect of this section, see also Colliery Employees' Federation v Northern Colliery Proprietors' Assoc., [1904] N.S.W.A.R. 182 ("equity and good conscience")". In Colliery Employees' Federation v Northern Colliery Proprietors' Association, the New South Wales Court of Arbitration considered a dispute about altering an agreement concerning working conditions. The President of the Court (Justice Cohen) referred to the power given to the Court to determine matters according to "equity and good conscience". He stated: "In my opinion ... to set aside the resolution which is now questioned would be very unfair indeed, and against "equity and good conscience" - which, to my mind, has a much larger meaning than the somewhat narrow construction which Mr Campbell invites the Court to place upon these words, so as to limit the Court to purely "equitable" doctrines, as administered in the Equity Court; but the words "equity and good conscience" leave this Court, in my opinion, in the position that, whilst not infringing any positive law of the country, it may do that which it believes to be right and fair and honest between man and man." ((1904) AR (NSW) 182, at 185) -- 11 of 22 -- 12 Nor does the Industrial Conciliation and Arbitration Act of 1932 advance the appellant's case because that Act expressly conferred on the Industrial Court power to order discovery. The terms used in that legislation will be considered later in these reasons. The decision in Colliery Employees' Federation v Northern Colliery Proprietors' Association provides no assistance to the appellant. We have considered other cases dealing with procedures in other industrial tribunals as well as decisions of other courts to determine whether there is any judicial support for the appellant's submission. The cases can be broadly categorised as: (a)cases from industrial law and other areas concerning procedures to be followed in accordance with the principle; and (b)cases from industrial law and other areas concerning decisions to be made in accordance with the principle. Decisions falling within the second category are, strictly speaking, not directly relevant to the resolution of the issue in the present case. However, because section 41(5) of the Land Act 1962 provides that the Land Court "shall be governed in its procedure and in its decisions" by equity, good conscience, and the substantial merits of the case, such other decisions may assist in resolving the application of the phrase in issue to "its procedure". Procedures to be governed by equity and good conscience A most helpful review of decided cases is found in the judgment of Mr Justice Olsson in HG Collett Pty Ltd v Alsop and Alsop ((1982) 49 SAIR 309). In that case, the Industrial Court of South Australia had to interpret section 18 of the Industrial Conciliation and Arbitration Act 1972 which provided, in part: "(2)In the exercise of the jurisdiction to which this section applies the Court - .... (c)shall be governed in its procedure, judgment, orders and decisions by equity, good conscience and the substantial merits of the case without regard to the technicalities, legal forms or the practice of other courts and shall not be bound by any rules or practice as to evidence and may inform its mind on any matter in such manner as it thinks just." His Honour reiterated his findings in Walkley v Dairyvale Co-Operative Limited -- 12 of 22 -- 13 (Preliminary Issues) ((1972) 39 SAIR Part 1 327) on the import and effect of section 51 of the Industrial Code 1967. The section stipulated that: "51Notwithstanding anything in this Act or in any other law or any practice to the contrary - (a)the commission in the exercise of any jurisdiction, duty, power, or function conferred or imposed by or under this Act, shall be governed in its procedure and in its judgments, awards, orders, and decisions by equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms or the practice of other courts; (b)the commission in the exercise of any such jurisdiction, duty, power, or function, shall not be bound by any rules or practice as to evidence, but may inform its mind on any matter in such manner as it thinks just." Most of his Honour's decision concerned the effect of that provision on the decision making of the tribunal. Concerning procedure he wrote: "The wide discretionary power conferred is in a sense, self limiting in terms of procedure. Whilst informal procedures and evidence may usually be adopted, nevertheless, everything done (or omitted) must stand the test of the established principles of natural justice. Examples of this aspect have been recited above and do not require repetition. But note Irwin v South Brisbane Gas and Light Company Limited (1947) Q.J.P. 143 as to onus of proof in relation to money claims." (Quoted in HG Collett Pty Ltd v Alsop & Alsop (1982) 49 SAIR 309, at 323 - 4) Despite some difference in wording between section 18(2) of that Act and section 51 of the Code (particularly the opening words) his Honour saw no reason to resile from the concepts which he espoused in Walkey's case as continuing to be relevant to cases to which section 18 applied (49 SAIR, at 328). That decision and the authorities reviewed in the judgment provide no basis for finding that a court such as the Land Court has had conferred on it the power of the Court of Chancery to order discovery. Further support for a finding that the Land Court lacks that power is found in a decision of Lamond J, a member of the Workers' Compensation Commission of New South Wales, in Irwin v Bunce ([1942] WCR 12). An interlocutory application for an order of discovery of documents was -- 13 of 22 -- 14 refused on the basis that the power to order discovery must be conferred by statute and no such power was conferred on the Commission by the Workers' Compensation Act 1926. Lamond J cited The Commonwealth v Baume ((1905) 2 CLR 405, at 413 (Griffith C) and 419 (O'Connor J)) for the proposition that a power to order discovery of documents must be conferred by statute. He was unable to find anything in the Workers' Compensation Act 1926 which provided that power. He referred to comparable 1925 English legislation under which a County Court Judge sitting as an arbitrator was given the same power to order discovery by interrogatories or otherwise as the Judge had in ordinary County Court actions. Lamond J noted, however, that, prior to the 1925 enactment, it was held in Sutton v Great Northern Railway, [1909] 2 K.B. 791, following Mountain v Parr, [1899] I Q.B. 805, that while the powers of an arbitrator extended to the procuring of attendance of witnesses and the production of documents "as if the proceedings were an action in the County Court," nevertheless, this did not include power to order discovery of documents. It was argued for the applicant in Irwin v Bunce that the matter could be dealt with under Workers' Compensation Rules Division I, Rule 56, which provided "where any matter or thing is not specially provided for under these Rules, application may be made to the Commission for directions appropriate to the case." Lamond J held, however, that ample authority is available to show that Rules made under an Act cannot enlarge the powers given by the Act itself. (See Sutton v Great Northern Railway; Ira, L. & A.C. Berk Ltd. v Commonwealth of Australia, [1930] 47 W.N. 16, and Craies on Statute Law, pages 264-266.) Accordingly, he refused the application for discovery. In the present case, Mr Bain relied on the action taken by the Land Appeal Court in JMC Braitling v The Crown ((1973) 40 QCLLR 109) to argue, by analogy, that the Land Court has power to order discovery. That case concerned a claim for compensation for land resumed by the Crown for road purposes. After the closing of evidence, the Court, on its own motion, required the Crown to ascertain the attitude of the Commissioner of Main Roads to enter into an agreement with the appellants for a pipeline under the road to convey water from the existing bore to the larger severed area. The Court stated: "Our action in obtaining the information we sought, in our opinion, was within the wider 'equity and good conscience' powers granted to the Court pursuant to subsection 15 of section 44 of the Land Act". ((1973) 40 QCLLR 109, at 116) In our view, the Court's action in that case was within the scope of what section 44(15) of the Land Act 1962 permits. The Court was clearly seeking information to assist it in making a fair -- 14 of 22 -- 15 decision and the Court devised a procedure to enable that information to be obtained. The Court invited the parties to make submissions upon all the documents lodged with the Court (see 40 CLLR, at 116-117). That procedure was adopted by the Court for its benefit during the course of a hearing, after the parties had prepared and presented their cases. It was the Court performing its functions at the relevant stage of the proceedings. That exercise of power by the Court is different from the Court making an order inter partes before the commencement of the hearing. Decisions to be governed by equity and good conscience Whatever flexibility section 41(5)(a) of the Land Act 1962 gives to the Land Court in making its decisions, it is clear that the paragraph does not give the Court power to deal with matters according to some arbitrary concept which is unknown to or unascertainable by the parties. The provisions of the relevant statutes must be observed. The Court cannot ignore or act contrary to statutory requirements or basic principles of natural justice. In that sense, at least, section 41(5)(a) does not empower the Court to depart from established principles of law nor does it give it power to dispense justice otherwise than according to law. (Ex parte Herman; Re Mathieson and Ors (1961) 78 WN (NSW) 6, at 8, 9 (Kinsella J)). The Land Court is not like a tribunal which is to be "guided by equity and good conscience only" and not to be "bound by the strict rules of law or equity in any case", that is, a tribunal which is "exonerated from all rules of law and equity, and all legal forms". (Moses alias Moss v Parker and Others [1896] AC 245 (PC). See also British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422, at 438-9: HG Collett Pty Ltd v Alsop and Alsop (1982) 49 SAIR 309. Cf Walter Reid & Co Ltd v Murphy [1924] St R Qd 1). So, for example, when construing a statute, the Land Court must apply the same rules of construction as a court. A section such as section 41(5)(a) "relaxes the rules of evidence which would otherwise govern the Tribunal in the exercise of its function, but it does not enable the Tribunal to give a statute any meaning other than that which a court of law would place upon it" (Commissioner for Prices and Consumer Affairs (SA) v C Moore (Aust) Ltd (1977) 51 ALJR 715, at 723 (Gibbs J), see also 718 (Barwick CJ), 729 (Mason J)). The degree of flexibility in its decision making is to be determined by reference to the statute under which the matter in issue is to be resolved. The test to be applied, was set out by Olsson J in HG Collett Pty Ltd v Alsop and Alsop ((1982) 49 SAIR 309, at 328) and adopted by Lee J in Taylor v Walter Fashions Pty Ltd (1987) 23 IR 108, at 112) in the following terms: "That test is best applied by first asking what is the strict legal situation and secondly posing the subsequent question as to whether, on the totality of the evidence, an application of the concepts of equity, good conscience and the substantial merits of the case demands some variation of or departure from an application of strict legal -- 15 of 22 -- 16 principles. In some cases equity will demand an adherence to the strict legal position established by the evidence. In other instances equity, good conscience and the substantial merits of the case will compel the Court to a different final conclusion." In Barlow v Orde ([1870] LR 3 PC 164) and Skinner v Naunihal Singh ((1913) 40 Ind App 105), the Privy Council heard appeals from India involving the interpretation of a will. The will was to be construed pursuant to Regulations made by the East India Company for defining the jurisdiction of the Courts of the Province in which the testator was domiciled and which were in force at the time of his decease. The substance of the Regulations was that, if no specific rule could be ascertained to be applicable to the case, the Judges administering justice in the Province were to act according to justice, equity, and good conscience. In each case, their Lordships construed the expression to mean in accordance with the principles of natural justice (see (1870) LR 3 PC 164, at 186, 187). In Skinner v Naunihal Singh they wrote: "From the case of Barlow v Orde it is plain that English rules of interpretation - in so far at least as these are artificial rules of construction which have arisen in the administration of English Courts of Equity - must not be allowed to govern the interpretation of Thomas Skinner's will. Questions affecting the construction of such a settlement as the present, or the regulation of a succession under it, must be determined by the principles of natural justice, or, to use the familiar language, according to "justice, equity and good conscience." ((1913) 40 Ind App 105, at 114) Nothing in those decisions suggest that "equity" as used in the expression "equity, good conscience and the substantial merits of the case" means anything other that substantial justice or fairness. Power to regulate the procedure of the Land Court Finally we turn to the argument that the Land Court has power to regulate its procedure and so may order discovery in the exercise of that power. Mr Bain submitted that discovery is part of the procedural machinery for the exercise of the Land Court's jurisdiction because the Court may govern what evidence is to be available to it. The Court has the jurisdiction to hear an appeal and has the power to inform itself as it wishes. That power, he submitted, was found in section 32 of the Land Act of 1910 (before the insertion of subsection (2A)) and is found in section 41 of the -- 16 of 22 -- 17 Land Act 1962. Mr Bain sought to rely on the following passage from the judgment of Jordan CJ for the Full Supreme Court of New South Wales in Browne v Commissioner for Railways: "So far as Courts are concerned, it has been held that if jurisdiction is conferred upon a Court, it may and should exercise that jurisdiction; and if no procedural machinery has been provided, it is for the Court to provide such machinery as best it can : Regina v Justices of the Central Bailiwick; Ex McEroy (7 VLR Law 90 at pp. 93-4); In the Will of Todd (13 VLR 185 at p. 189); A-G for Ontario v Daly ([1924] AC 1011 at p. 1015). If it is provided by Statute that an application may be made to a Court within the time and in the manner and on the conditions directed by rules of Court, this is regarded as creating a right in the applicant to make, and a duty in the Court to hear, the application, irrespectively of whether any rules have been made. In such a case, there is a power in the Court to prescribe conditions by rules, but until it does so, the Court must deal with applications as justice and common sense demand : Inland Revenue Commissioners v Joicey ([1913] 1 KB 445 at 451, 454-6); HMS Archer ([1919] P 1 at p. 5); White Transit Co Ltd v Metropolitan Transport Trust (Cor. Harvey J. 5-6-31)". ((1935) 36 SR (NSW) 21, at 28-9) Undoubtedly an inferior court has power to regulate its own procedure, even though that power is not as extensive as is held by a superior court (see, for example R v Rawson; ex parte Moore [1976] QdR 138, at 143 (Hoare J) and 146 (Andrews J)). But when the jurisdiction of a court is limited by statute its procedures have to be found within the statute or rules made under a rule-making power created by the statute. In other words, such an inferior court does not have the power to create its own procedures. The power of the Land Court is prescribed by the Land Act 1962 in terms which are such as to enable the boundaries of that power to be ascertained (for present purposes, at least) without the need to look at what inherent powers (if any) are held by the Court. Section 41 expressly confers on the Land Court the power to summon "any person" as a witness and to "require and compel him to bring and produce in evidence all documents and writings in his possession or power, and to examine him". The Court also has power to punish a person for not attending or for refusing or neglecting to bring and produce such documents and writings. The Court may also take evidence of its own motion. Section 41(1) is a specific -- 17 of 22 -- 18 provision dealing with the production to the Court of "all documents and writings in his possession or power". But the section says nothing expressly about a power to order discovery inter partes. Mr Bain argued that the absence of an express power to order general discovery does not mean that that power does not exist. If anything, it presupposes that the regular interlocutory powers exist between an appellant and a respondent so that recourse need not be made to the issue of a subpoena. The difficulty with that submission is that, although a Court may provide procedural machinery where none exists, procedural machinery has been provided to the Land Court by the Land Act 1962 and by the Rules of the Land Court of 1912. Whatever the inadequacies of the procedures provided, they exist and for the most part operate well enough. As the learned authors of Halsbury's Laws of England have put it: "A court exercising judicial functions has an inherent power to regulate its own procedure, save insofar as its procedure has been laid down by the enacted law, and it cannot adopt a practice or procedure contrary to or inconsistent with rules laid down by statute or adopted by ancient usage. The procedure of the Supreme Court, county courts and most courts of record are now substantially regulated by statutory rules." (4th edn, vol 10, para 703) Section 383 of the Land Act 1962 makes distinct but complementary provisions for the making of Rules of Court. First, section 383(1) provides that the Governor in Council "may make all such Rules of Court as are considered necessary or convenient for regulating the procedure and practice of the Court ... and for the purpose of giving full effect to this Act and any other Act that confers jurisdiction, power or authority on the Court ...". The Rules of the Land Court do not confer on the Court the power to make an order for discovery. Section 383(3) provides: "Where Rules of Court made under subsection (1) do not extend to a particular case, the Court hearing that case may give such directions as it thinks fit and those directions shall, according to their tenor, have the same force and effect as Rules of Court made under that subsection." That subsection appears to apply only when a hearing has commenced and so gives the Court a practical means of dealing with matters which arise in the course of a substantive hearing and for which there is no provision in the Rules. It does not give the Court power to take action by way of interlocutory orders made before the hearing commences and appears to be directed at moulding rules to apply to a particular case where that is necessary at the hearing. It does not -- 18 of 22 -- 19 appear to contemplate the making of a specific order as to discovery where that power does not otherwise exist. cf Irwin v Bunce (supra). The issue then becomes whether the power to make an order for discovery can be found in the Act so that, in the absence of Rules, the Court may direct that discovery be given. For the reasons given earlier, we have decided that no such power can be found. There is no need to consider at length the provisions of sections 41A and 41B. It is sufficient to note that the fact of their insertion suggests that without them the Land Court lacked the power to order the exchange of documents and other information between parties prior to the hearing of a case. The Court's power had been limited to the power to summon persons to come to Court and to give evidence and, if appropriate, to produce documents. It was to remedy the lack of a power to order a pre-trial exchange that the sections were inserted in 1981. That much is able to be inferred from those sections in their legislative context and, if further support is necessary, from the Second Reading Speech of the Minister for Lands and Forestry, Hon W.H. Glasson, on the amending legislation (Legislative Assembly, Debates, 28 April 1981, 758). In the face of long standing decisions of the Land Appeal Court and of the Land Court that there is no power to order discovery it is significant to note that, when sections 41A and 41B were enacted in 1981, a specific power as to discovery was not inserted. The provisions of the Land Act 1962 can be contrasted with the provisions of the Industrial Conciliation and Arbitration Act of 1932, to which reference was made earlier in these reasons, and to its successors, the Industrial Conciliation and Arbitration Act of 1961 and the Industrial Relations Act 1990. Section 7 of the 1932 Act conferred on the Industrial Court "all the powers and jurisdiction of the Supreme Court in addition to the powers and jurisdiction conferred by this Act" and section 27 provided that the provisions set forth in the Schedule to the Act "shall be applicable in all matters with respect to which the Court has jurisdiction, whether original or by way of appeal, and shall be observed." Section 6 of the Schedule expressly empowered the President or a member of the Court or the registrar or assistant registrar to make any order which he thought just as to: "(a)Any interlocutory proceedings to be taken before the hearing ... discovery, interrogatories, inspection of documents or of real or personal property ...; and -- 19 of 22 -- 20 (b)Any matter which, by Rule of Court, a President, member, or registrar or assistant registrar, as the case may be, is empowered to hear or deal with when sitting in chambers." Order 3 rule 13 of the Rules of that Court conferred powers on the Registrar to "make any order he thinks just as to any interlocutory proceedings to be taken before the hearing, ... inspection of documents", but made no express reference to discovery. The Industrial Conciliation and Arbitration Act of 1961 (which repealed the 1932 legislation, as amended) provided in section 80: "(4)For the purposes of this Part - (a)the procedure of the Commission is, subject to this Act and the Rules of Court and regulations, within the discretion of the Commission; (b)the Commission is not bound to act in a formal manner and is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks just; and (c)the Commission shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms." Section 43 provided that the provisions set forth in the First Schedule to the Act "shall be applicable in all matters with respect to which the Court and the Commission have jurisdiction, whether original or by way of appeal and shall be observed". The First Schedule provided in section 5 that the President or a Commissioner or the registrar or assistant registrar may make an order which he thought just as to : "(a)any interlocutory proceedings to be taken before the hearing, the costs thereof, the issues to be submitted to the Court or the Commission, the naming and joinder of parties, the persons to be served with notice of proceedings, particulars of the claims of the parties, admissions, discovery, interrogatories, inspection of documents or of real or personal property, examination of witnesses, and the place, time, and mode of hearing; and (b)any matter which, by Rule of Court, the President, a Commissioner, or the registrar or -- 20 of 22 -- 21 assistant registrar, as the case may be, is empowered to hear or deal with when sitting in chambers." (emphasis added) Section 16 of the First Schedule provided for the making of Rules. Order 3 rule 12 of the Rules of Court made under that Act provided that the powers conferred on the Registrar in relation to any matter referred to him included power: "(e)To make any order he thinks just as to any interlocutory proceedings to be taken before the hearing, the costs thereof, the issues to be submitted to the Court or Commission, the naming and joinder of parties, the persons to be served with notice of proceedings, particulars of the claims of parties, admissions, discovery, interrogatories, inspection of documents, examination of witnesses, and the place, time, and mode of hearing." (emphasis added) The Industrial Relations Act 1990 (which repealed the 1961 Act, as amended) expressly empowers the President, an Industrial Commissioner or the Industrial Registrar to make orders "considered just and necessary in relation to ... any interlocutory proceedings to be taken before the hearing of the cause, including with respect to ... discovery" (section 8.2(2)(a)). Our reasons for tracing and setting out those provisions of industrial relations legislation in this State are twofold. First, they demonstrate (if such is necessary) that the power to order discovery was not conferred on the Industrial Court or other industrial tribunal by "equity and good conscience" provisions, but in specific statutory terms. Second, although there was apparently meant to be some similarity between the type of procedure followed in the Land Court and that of the Industrial Commission, we note that a wider range of specific procedural powers, including the power to order discovery, had been conferred on the Industrial Commission before 1937. The present case has demonstrated again that the Rules of the Land Court, which have been revised little since 1912, are inadequate and should be comprehensively reviewed with the purpose of effecting adequate change or their replacement. Conclusion For the reasons set out above we have decided that the words "governed in its procedure ... by equity, good conscience and the substantial merits of the case" in section 41(5)(a) of the Land Act 1962 when considered in terms of their ordinary meaning and their legislative history, and in -- 21 of 22 -- 22 light of the interpretation of comparable provisions in other legislation, do not give the Land Court power to order discovery. The appeal is dismissed and the decision of the Land Court is upheld. (signed Lee J) Judge of the Supreme Court (signed JJ Trickett) Member of the Land Court (signed GJ Neate) Member of the Land Court -- 22 of 22 --