Klein v Minister for Education [2007] HCA 2 1 February 2007 P31/2006
ORDER
Special leave to appeal is revoked.
On appeal from the Supreme Court of Western Australia
Representation
C P Shanahan SC with N J Mullany for the appellant (instructed by Butcher Paull & Calder)
B W Walker QC with D J Osborn for the respondent (instructed by Blake Dawson Waldron)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Klein v Minister for Education
Statutes – Interpretation – Meaning and effect of s 175 of Workers' Compensation and Injury Management Act 1981 (WA) – Application to public authority – Section 175(1) deemed a principal who contracts with a contractor to be the employer of a worker employed by the contractor, and made principal jointly and severally liable to pay compensation for which contractor was liable to the worker – Section 175(3) provided that a principal was not liable unless work on which worker was employed at the time of disability was "directly a part or process in the trade or business of the principal" – Pt IV Div 2 contained provisions constraining awards of common law damages in actions for damages against a worker's employer brought independently of the Act – Minister contracted with company to provide security at schools – Appellant was employed as security guard by company – Appellant was injured while pursuing intruder at school – Appellant sued Minister as occupier of premises at which appellant injured – Whether s 175(1) deemed the Minister to be the appellant's employer – Whether work on which appellant was employed at time of injury was "directly a part or process in the trade or business" of Minister – Whether effect of deeming provision was to apply constraints on damages in Pt IV Div 2 to appellant's claim.
Practice and procedure – Grant of special leave to appeal – Whether matters of statutory interpretation arose without reconsideration of the law as stated in Hewitt v Benale Pty Ltd (2002) 27 WAR 91 – Whether special leave should be revoked – Relevance of common ground between the parties – Relevance of refusal by High Court to permit enlargement of grounds of appeal – Relevance of supervening amendment of the legislation – Relevance of duty to quell the controversy brought to the Court by the parties.
Words and phrases – "deemed employer", "directly", "directly a part or process in the trade or business of", "employee", "principal".
GLEESON CJ. The facts and issues, and the course of proceedings in this Court, appear from the reasons of Kirby…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Klein v Minister for Education [2007] HCA 2
Case
[2007] HCA 2
Decision Date
CaseChat Overview and Summary
The case of *Klein v Minister for Education* involved an appeal to the High Court of Australia concerning the interpretation of the *Workers' Compensation and Injury Management Act 1981* (WA). The appellant, a security guard employed by a private company, was injured while on duty at a public school. He sued the Minister for Education, not as his employer, but as the occupier of the premises where the injury occurred. The Minister contended that under section 175 of the Act, he was deemed to be the appellant's employer and that this status, combined with other provisions of the Act, barred the appellant's claim for damages.
The central legal issues before the High Court were whether the Minister was a "deemed employer" of the appellant under section 175(1) of the *Workers' Compensation and Injury Management Act 1981* (WA), and if so, whether the work the appellant was performing at the time of his injury was "directly a part or process in the trade or business" of the Minister, as required by section 175(3). A further issue was whether the deeming provision would, if applicable, subject the appellant's claim to the constraints on common law damages awards found in Part IV, Division 2 of the Act. The Court also considered whether special leave to appeal should be revoked, given the circumstances and the nature of the statutory interpretation questions.
The High Court, in a majority decision, revoked the special leave to appeal. The reasoning focused on the interpretation of section 175(3), which requires the work to be "directly a part or process in the trade or business of the principal." The Court of Appeal had found that the Minister's "trade or business" for the purposes of the Act included the exercise and performance of his powers and duties under the *Education Act 1928* (WA). This broad interpretation encompassed the provision of public education and all necessary or expedient acts for carrying out its purposes, which the Court of Appeal considered to include the provision of security. The High Court agreed that the appeal did not raise a matter requiring reconsideration of established law and that the controversy could be quelled by revoking special leave.
Orders
Orders of the court
Special leave to appeal is revoked (Majority decision)
Background
Background to the litigation
It follows that there are now two issues for decision in this appeal. The first is whether special leave should be revoked. If this issue is decided in the negative, a second issue arises, namely, whether the Court of Appeal erred in a material way in the decision challenged in the appeal. Both of those issues should be answered in the negative.The facts The appellant was employed as a security guard in Western Australia by Falcon Investigations and Security Pty Ltd ("Falcon"). In February 1999, Falcon contracted with the Minister to provide security to designated public schools in the State. The appellant's work was carried out as part of Falcon's contract with the Minister. During the night of 1 November 1999, at a primary school in Perth, responsibility for which fell within Falcon's contract, the appellant chased a youth whom he had seen smashing windows in the school. The intruder fled into knee-high grass within the school grounds. Whilst pursuing him, the appellant fell, occasioning injury. However, he restrained the intruder who, like himself, was injured as a consequence of running into a mound of concrete that had been deposited in the grass on the school grounds, but which was obscured by the height of the grass and a lack of lighting. The appellant's injuries were found to include a fractured patella. He was unable to return to his employment with Falcon. The appellant sued the Minister in the District Court of Western Australia. His amended statement of claim made no reference to any duty on the part of the Minister arising from the Minister's status as his employer. It did not include any claim against Falcon, as his employer. The claim was pleaded against the Minister solely as occupier of the school premises in which the appellant had been injured. Relevantly, it relied on a claim based on s 5 of the Occupiers Liability Act 1985 (WA), concerned with the duty of an occupier of land to protect an entrant upon the land "in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible"[22].[22]Occupiers Liability Act 1985 (WA), s 5(1). By s 4(1) the provisions of s 5(1) apply "in place of the rules of the common law". It was on this footing that the primary judge found that the Minister was liable in law to pay damages to the appellant. He rejected a defence of contributory negligence[23]. He awarded damages in an amount just over $100,000. None of these issues is now in contest.[23](2004) 37 SR (WA) 328 at 333-334 [16]. The sole defence that remained alive, until this case reached this Court, was that propounded by the Minister at trial, namely that he had contracted with Falcon for the execution of security work; that this extended to the security of the premises in question; and that the work on which the appellant was employed when he suffered his disability was "directly a part or process" in the Minister's "business of the provision of educational services". On this basis, the Minister said that he was "the deemed employer" of the appellant pursuant to s 175 of the Act and, in consequence, that the appellant had no entitlement to an award of damages against him as "the deemed employer". The Minister claimed that the appellant's action had failed to comply with s 93E(3) of the Act, which limited the award of damages in such cases to those involving a serious "degree of disability[24]". It was common ground that the appellant's disability was not of the specified degree of seriousness. [24]The Act, s 93E(3), was later amended.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
GUMMOW, HAYNE AND HEYDON JJ
(dissent)
KIRBY J
(dissent)
As has been said, the appellant's reply to this defence, virtually to the end of the proceedings, was not that a potentially "deemed employer", such as the Minister, was not the "employer" for the purposes of Pt IV, Div 2 of the Act, including s 93E(3). It was that those provisions did not apply on the particular facts because the Minister was not liable as a "deemed employer" by reason of the fact that the "work on which the worker [was] employed at the time of the occurrence of the disability" was not "directly a part or process in the trade or business of the [Minister]".The decisional history In the District Court: The primary judge, after a review of authority[25] in Western Australia[26], concluded in terms that adopted a meaning of the word "directly" that the appellant urged on this Court:"… I have difficulty in seeing how the engagement of a security patrolman to patrol the defendant's capital assets is in any way a part or process in the trade or business of the principal: namely the defendant, in providing public education. True it is that a serious enough break-in with theft of equipment or an arson would disrupt the defendant's operations, but it is no more part of the defendant's trade or business than the provision of security by way of night patrols by security patrolmen in a used car yard could be said to be part or process in the trade or business of selling second-hand cars, and certainly, in my opinion, it cannot be said that a security patrolman is performing work which is directly a part or process in the trade or business of this defendant."[25](2004) 37 SR (WA) 328 at 337 [33].[26](2004) 37 SR (WA) 328 at 336-337 [29]-[31]. It was on this basis that the appellant succeeded at trial. However, the Minister appealed to the Court of Appeal. In the Court of Appeal: Wheeler JA saw the resolution of the issue in the appeal as depending upon particular provisions appearing in s 6 of the Act by which the "trade or business" of a public authority, such as the Minister, is defined:"The exercise and performance of the powers and duties of a … public, or statutory authority shall, for the purposes of this Act, be treated as the trade or business of such … [an] authority". Both the primary judge[27], and Wheeler JA in the Court of Appeal[28], noted that, whilst the Education Act 1928 (WA) ("the Education Act") did not contain provisions in the nature of a list of powers and duties of the Minister, it did include a number of relevant provisions indicating what those powers and duties included. Thus the long title of the Education Act was "[a]n Act to consolidate and amend the law relating to public education and for incidental and other purposes" (emphasis added). Section 5 of that Act constituted the Minister as a body corporate capable (relevantly) of "acquiring, holding [and] leasing … real … property" and "doing and suffering all such other acts and things as may be necessary or expedient for carrying out the purposes of this Act".[27](2004) 37 SR (WA) 328 at 336 [24].[28][2005] WASCA 185 at [8].