Dias v Minister for Education
[2006] WADC 5
•30 JANUARY 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DIAS -v- MINISTER FOR EDUCATION [2006] WADC 5
CORAM: HH JACKSON DCJ
HEARD: 28 OCTOBER 2005
DELIVERED : 30 JANUARY 2006
FILE NO/S: CIV 357 of 2004
BETWEEN: RUTH DIAS
Plaintiff
AND
MINISTER FOR EDUCATION
Defendant
Catchwords:
Appeal from Registrar on chamber summons to dismiss action
Legislation:
Education Act 1928
Limitation Act 1935 s 47A
Cemeteries Act 1986
Result:
Appeal dismissed
Representation:
Counsel:
Plaintiff: Mr T H Offer
Defendant: Mr I R Freeman
Solicitors:
Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Phillips Fox
Case(s) referred to in judgment(s):
Australian National Airlines Commission v Newman (1987) 162 CLR 466
Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105
Bradford Corporation v Myers [1916] 1 AC 242
Hudson v Vanderheld (1968) 118 CLR 171
Lokan v Metropolitan Cemeteries Board (1997) 18 SR(WA) 125
Case(s) also cited:
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Matheson v Commissioner of Main Roads (2001) 25 WAR 269
Pilbara Iron Limited v Bonotto (1994) 11 WAR 348
HH JACKSON DCJ: By a writ of summons dated 19 February 2004 the plaintiff claimed by way of general endorsement:
"The Plaintiff's claim against the Defendant is for damages for personal injuries sustained and losses suffered on or about 20 February 1998 caused by the negligence and/or breach of statutory duty and/or breach of contract of employment by or on the part of the Defendant, its servants or agents."
The defendant filed a conditional appearance and took out a chamber summons for orders that the plaintiff's action be dismissed or alternatively that judgment be entered for the defendant pursuant to O 20 r 19(1) of the Rules of the Supreme Court on the basis that:
(a)there is no reasonable cause of action;
(b)the action is frivolous or vexatious;
(c)the action is an abuse of the process of the Court.
The defendant argues that there is no reasonable cause of action because of the operation of s 47A of the Limitation Act. If s 47A applies and the cause of action is statute barred, the claim is frivolous and has no prospect of success. If s 47A does not apply the action was commenced within time. The plaintiff opposed the application. The defendant filed affidavits in support. The matter came before Registrar Kingsley who struck out the action on 11 April 2005.
From that decision the plaintiff appeals. The appeal is heard de novo. Each side filed written submissions. The matter came before me on 28 October 2005 and I reserved my decision after hearing argument.
The defendant's argument is that s 47A of the Limitation Act 1935 applies to the claim and that by reason thereof the plaintiff is now precluded from bringing an application for leave to commence proceedings pursuant to s 47A(3)(a) of the Limitation Act 1935 as it is now in excess of six years since her cause of action is alleged to have accrued.
Section 47A provides as follows:
"(1)Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsections (2) and (3) of this section, no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless –
(a)the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and
(b)the action is commenced before the expiration of one year from the date on which the cause of action accrued,
… ".
The defendant's argument is that the claim is for acts done in pursuance or execution of the Education Act 1928 or of any public duty or authority or in respect of any neglect or default in the execution of the Act, duty or authority.
The Limitation Act then provides:
"(2)A person may consent in writing to the bringing of an action against him at any time before the expiration of six years from the date on which the cause of action accrued whether or not the notice as required by subsection (1) of this section has been given.
(3)(a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) of this section has been given to the prospective defendant.
…
(4)(a) In this section 'person' includes a body corporate, Crown agency or instrumentality of the Crown created by an Act or an official or person nominated under an Act as a defendant on behalf of the Crown.
(b)This section is to be construed so as not to affect the provisions of the Crown Suits Act 1947."
Thus by s 47A(3)(a) with the leave of the court, the limitation period can be extended to six years after the cause of action accrued. However, it is clear from judicial authority that a grant of leave to proceed must be prospective and cannot be made retrospectively to validate an error in commencing an action without leave. The plaintiff never requested the defendant to consent in writing to the bringing of an action before the expiration of six years from the date on which the cause of action accrued pursuant to s 47A(2) of the Limitation Act 1935 or made an application to the court for leave to bring an action pursuant to s 47A(3)(a) of the Limitation Act 1935.
The present proceedings were commenced without leave within the six year period but leave was not sought either prior to the commencement of the proceedings or before the expiration of the six year period. Accordingly, if s 47A Limitation Act applies, the proceedings must be struck out. The real inquiry is whether or not the s 47A Limitation Act applies.
The passage of the Limitation Act 2005 is not relevant as s 4 of that Act and s 4(2) of the Limitation Legislation Amendment and Repeal Act 2005 make plain.
I accept that on one approach the question before me is whether the plaintiff has an arguable case because proceedings should not be struck out under O 20 r 19(1) if there is such a case. On the other hand to permit the action to proceed if that is not so is to permit the waste of costs on pointless litigation. That raises the question whether, at this stage of the proceedings, there being no detailed statement of claim or defence the issue can be resolved in those terms. In my view it can and should.
If I am wrong about that or about the final question, no doubt leave to the Court of Appeal will be granted.
No evidence was put before me by the plaintiff as to the nature of her claim other than that in the general endorsement to the writ. Nor does the plaintiff dispute that her claim arises out of the matters raised in the workers compensation claim form referred to below. The events there tersely described might of course give rise to claims in contract, tort or breach of statutory duty as claimed in the writ, but in my view none of that will change that essential point here raised.
It is not in dispute that the plaintiff was employed as a school teacher by the defendant and that she lodged a workers compensation claim on or about 18 March 1998. The claim relates to work related stress suffered by the plaintiff in her capacity as a teacher in a primary school. In an accompanying statement the plaintiff wrote:
"Statement: Cause of Stress
Due to the decline of number of students, Goollelal Primary School has introduced a forced transfer system based on points. It has been very depressing and frustrating that certain teachers were protected from forced transfers by allocating certain coordinators positions, which carry points, arbitrarily by the Principal.
I applied for two coordinators positions and both were unsuccessful without giving me a proper feedback and the selection process was not convincing. The discussion I had with the Principal … on Friday 20th 1998, caused an unprecedented trauma and stress because the decision was unfair and the assessment was subjective."
The insurers declined liability by letter dated 24 April 1998.
The long title of the Education Act 1928 was:
"An Act to consolidate and amend the law relating to Public Education."
Administration of the Act was vested in the Minister. By s 7(2) it was provided that:
"The Minister may, in relation to either the Education Department or the Department of Training, appoint teachers and employees, other than public service officers, of that Department."
By s 7(3):
"The Minister, or, where the Minister delegates to him the power conferred on the Minister by this subsection, the chief executive officer, may, subject to the regulation transfer or promote any teacher or employee, other than a public service officer of the department to which the teacher or employee was appointed."
The plaintiff argues that the proper course is to examine the claim in terms of the pleading in the endorsed claim to see whether the matters complained of could be said to be central to the purposes of the Education Act. In doing so the court she argues must have regard to the particular "act … neglect or default", not "the general functional power pursuant to which the [Commission] engages in the undertaking in the course of which the injury occurs" (Australian National Airlines Commission v Newman (1987) 162 CLR 466 at 471).
The plaintiff argues that the "engagement, transfer and promotion of teachers" is the "general functional power" not the "act … neglect or default". The plaintiff argues that the central purpose of the Education Act is public education and that the "engagement, transfer and promotions of teachers" is an incidental, subsidiary or auxiliary function. The issue cannot, she argues, be characterised in terms of the engagement, transfer and promotion of teachers.
The plaintiff argues that s 47A has no application since the defendant needed no statutory authority to employ the plaintiff under the Education Act, and nor was the conduct complained of neglect or default in the execution of the Education Act.
In the absence of a statement of claim setting out what those acts, neglects and/or defaults are, the breaching of a statutory duty or of a contract of employment could not be said to be central to the purposes of the Education Act.
The plaintiff relied on the reasoning in Lokan v Metropolitan Cemeteries Board (1997) 18 SR(WA) 125. In that case Lokam claimed to have been injured in two accidents while working for the defendant. He was employed by the Board as a gravedigger. He brought an application for leave to bring an action for damages under the Workers Compensation and Rehabilitation Act 1981 (WA) s 93D(4).
The long title of the Cemeteries Act 1986 was:
"An Act to provide for the declaration and management of cemeteries, the establishment, constitution and functions of cemetery boards, the licensing of funeral directors, the regulation of burials, the repeal of the Cemeteries Act 1987 and for connected purposes."
Section 10 of the Act provided:
"A Board may appoint such employees, either full time or part time, as it considers necessary to enable it to carry out its functions."
The defendant argued that the Limitation Act 1935 (WA), s 47A applied to it. O'Sullivan DCJ held that the defendant needed no statutory authority to employ the plaintiff, the conduct alleged against the defendant cannot be described as "any neglect or default in the execution of the Act", and that the employment of the plaintiff and any alleged negligence in that employment was conduct relating to the exercise of an auxiliary power.
O'Sullivan DCJ referred inter alia to the reasons of Lord Buckmaster in Bradford Corporation v Myers [1916] 1 AC 242 where his Lordship said at page 247:
"In other words it is not because the act out of which the accident arises is within their power that a public authority enjoyed the benefit of the statute. It is because the act is one which is either an act in the direct execution of a statute or in the discharge of a public duty or the exercise of a public authority. I regard those latter words as meaning a duty owed to all the public alike or an authority exercised impartially with regard to all of the public. It assumes that there are duties and authorities which are not public and in the exercise or discharge of such duties or authorities this protection does not apply."
The defendant seeks to distinguish the decision in Lokan. The defendant argues that the role of teachers is integral and key in the provision of public education in a system essentially compulsory for most children. Unlike the position in Lokan, the defendant argues that under the Education Act there is an express power and authority on the defendant to engage staff and thus to deal with issues of transfers and promotions of teachers. Thus the engagement, transfer and promotions of teachers is a matter central to, and not ancillary to, the purpose of the Act, namely the delivery of education. In those circumstances, it is a core function under the Education Act. It is distinct from, for example, the provisions of a safe system of work for teachers. "The complaint by the plaintiff is as to her treatment in relation to that core function – ie, the consideration by the defendant of her for promotion and forced transfer."
The current case it argues is therefore unlike Lokan in that in Lokan the plaintiff was employed by the defendant as a grave digger and claimed to have been injured in the course of his employment. The issue was whether or not the mere fact of the employment of the plaintiff in circumstances where he was injured was sufficient to define it as an act done in pursuance of, or execution of the statute or any public duty or authority in respect of any neglect or default in the execution of the act, duty or authority by the defendant.
As four members of the High Court of Australia commented in Australian National Airlines Commission v Newman :
"A limitation provision, because it derogates from the ordinary rights of individuals, should be strictly construed."
In my view however, both the decision in Lokan and that in Australian Airlines Commission v Newman can be distinguished from the present case on the facts. The High Court in the latter case argued from the same principles that had been set out in Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 and Hudson v Vanderheld (1968) 118 CLR 171, commenting:
"The Court in each of the two cases, for the purpose of determining whether the statutory provision applied, directed its attention to the particular act that caused the injury, the negligent driving of a vehicle on a public street, instead of looking to the general statutory function – operating as a fire brigade or as a local authority – in the course of which the particular act was done. Both Ardouin and Hudson are inconsistent with the notion that, for the purpose of deciding whether s. 63(1) applies, we should look to the carrying on of the business or operation of a flight services kitchen, rather than to the Commission's negligent failure to provide a safe means of access to a place of work or to maintain the floor in good order and condition or to maintain it properly. And, by parity of reasoning with the approach adopted by Kitto J. in Ardouin, we should not regard the act complained of by the respondent as something authorised … and, accordingly, as something done 'under' the Act."
In Lokan the same reasoning was applied.
In my view the facts in the present case, the particular facts said to have caused injury, do arise directly out of something done "under" the Act.
The appeal is dismissed.
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