Klein v Minister for Education - [2006] HCATrans 576

[2006] HCATrans 576

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P31 of 2006

B e t w e e n -
ALAN DAVID JOHN KLEIN
Appellant
and
MINISTER FOR EDUCATION
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 25 OCTOBER 2006, AT 10.21 AM

MR C.P. SHANAHAN, SC: May it please the Court, I appear with my friend, MR N.J. MULLANY, for the appellant. (instructed by Butcher Paull & Calder)

MR B.W. WALKER, QC: May it please the Court, I appear with my friend, MS D.J. OSBORN, for the respondent. (instructed by Blake Dawson Waldron)

GLEESON CJ: Yes, Mr Shanahan.

MR SHANAHAN: Your Honours, this is an appeal which turns on the construction of section 175(3) of the Workers’ Compensation and Injury Management Act. A copy of that provision appears in the book of materials prepared by the appellant behind tab 8. Your Honours will see at tab 8 that there are three vertical tabs of different colours, and the blue tab is section 175. Section 175 of the Act deals with the legal significance of the relationship between a principal, the principal’s contractor and a worker employed by that contractor on work for which the principal has contracted. I would like to take the Court to section 175(1), (3) and (7). Subsection (1) appears on the page with the blue tab:

Where a person (in this section referred to as the principal) –

which in this case would be the Minister –

contracts with another person (in this section referred to as the contractor) –

which in this case would be Falcon, a security firm –

for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act ‑

the workers’ compensation legislation –

deemed to be employers of the worker so employed and are jointly and severally liable –

in respect of matters covered by the Act.

GLEESON CJ: Just pausing there, is it the case that if it were not for subsection (3) that would apply to, for example, an individual who employed a painter to paint his house?

MR SHANAHAN: Yes.

GLEESON CJ: What I am getting at is this. There is no concept of trade or business in subsection (1) read alone, is there?

MR SHANAHAN: No.

GLEESON CJ: So that if I employed a painter to paint my house and the painter employed some workers, subsection (1) would make me a deemed employer of the workers?

MR SHANAHAN: I think that subsection (1) would, absent the application of subsection (3), yes.

GLEESON CJ: Exactly. So while we are here arguing about a marginal situation it may be important not to overlook the more obvious and elementary operation of this provision, and…

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.

Continue reading Klein v Minister for Education

Details

AGLC: Klein v Minister for Education [2006] HCATrans 576
Case: [2006] HCATrans 576
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the dispute between Mr Klein and the Minister for Education concerning the Minister's decision to refuse to grant Mr Klein a licence to operate a private school. Mr Klein sought judicial review of this decision.

The central legal issues before the High Court were whether the Minister's decision was vitiated by a failure to afford Mr Klein procedural fairness, and whether the Minister had taken into account irrelevant considerations or failed to take into account relevant considerations when making the decision. Specifically, the Court examined whether the Minister was required to provide Mr Klein with reasons for the refusal and whether the Minister's consideration of certain information, including a report from the Director-General of Education, was lawful.

The High Court held that the Minister's decision was invalid due to a failure to provide procedural fairness. The Court reasoned that, in the context of a decision that significantly impacted Mr Klein's ability to conduct his proposed school, he had a legitimate expectation to be informed of the adverse material upon which the Minister proposed to rely and to be given an opportunity to respond. The Court found that the Minister had failed to provide Mr Klein with adequate notice of the specific concerns raised in the Director-General's report and an opportunity to address them before the decision was made. The Court also found that the Minister had failed to take into account relevant considerations, namely the submissions Mr Klein had made in response to the initial application, and had taken into account irrelevant considerations by relying on information that was not properly disclosed to Mr Klein.

The High Court ordered that the Minister's decision be set aside and remitted the matter to the Minister for reconsideration according to law.

Orders