Minister for Education v Klein
[2005] WASCA 185
•27 SEPTEMBER 2005
MINISTER FOR EDUCATION -v- KLEIN [2005] WASCA 185
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 185 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:114/2004 | 14 JUNE 2005 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 27/09/05 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | MINISTER FOR EDUCATION ALAN DAVID JOHN KLEIN |
Catchwords: | Workers' compensation Whether public authority a "deemed" employer under s 175 Workers' Compensation and Rehabilitation Act 1981 (WA) Meaning and effect of s 6 Workers' Compensation and Rehabilitation Act 1981 (WA) |
Legislation: | Education Act 1928 (WA), s 5, s 6, s 9 Workers' Compensation and Rehabilitation Act 1981 (WA), s 6, s 175 |
Case References: | Ex parte Professional Engineers' Association (1959) 107 CLR 208 Jones v Wesfarmers Ltd [2003] WASCA 225 Frauenfelder v Reid (1963) 109 CLR 42 Hewitt v Benale Pty Ltd (2002) 27 WAR 91 Moir v Schrader (1936) 56 CLR 310 Price v Resolute Resources Ltd (2002) 29 SR (WA) 371 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MINISTER FOR EDUCATION -v- KLEIN [2005] WASCA 185 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
- Appellant
AND
ALAN DAVID JOHN KLEIN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : NISBET DCJ
Citation : KLEIN -v- MINISTER FOR EDUCATION [2004] WADC 153
File No : CIV 2647 of 2000
(Page 2)
Catchwords:
Workers' compensation - Whether public authority a "deemed" employer under s 175 Workers' Compensation and Rehabilitation Act 1981 (WA) - Meaning and effect of s 6 Workers' Compensation and Rehabilitation Act 1981 (WA)
Legislation:
Education Act 1928 (WA), s 5, s 6, s 9
Workers' Compensation and Rehabilitation Act 1981 (WA), s 6, s 175
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr D R Clyne
Respondent : Mr C P Shanahan SC
Solicitors:
Appellant : Blake Dawson Waldron
Respondent : Butcher Paull & Calder
Case(s) referred to in judgment(s):
Ex parte Professional Engineers' Association (1959) 107 CLR 208
Jones v Wesfarmers Ltd [2003] WASCA 225
Case(s) also cited:
Frauenfelder v Reid (1963) 109 CLR 42
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Moir v Schrader (1936) 56 CLR 310
Price v Resolute Resources Ltd (2002) 29 SR (WA) 371
(Page 3)
1 STEYTLER P: I have had the advantage of reading the judgment of Wheeler JA. I agree with it and with her conclusion that the appeal should be allowed.
2 WHEELER JA: The facts in this matter may be shortly stated. At the relevant date, the respondent was a security guard on mobile patrol employed by Falcon Investigations and Security Pty Ltd ("Falcon"). Falcon had contracted with the appellant Minister for the supply of security services for the purpose of protecting the premises and assets of the Minister against, inter alia, theft, vandalism and arson.
3 The respondent responded to a call that there were youths on the premises of Ocean Reef Primary School. Arriving there, he heard the sound of windows smashing and saw a youth in the act of smashing windows. He ran to apprehend the youth and, in tackling him, fell to the ground, striking his knee on a lump of concrete in the school grounds. That caused an injury.
4 The sole question in this appeal is whether, at the time at which that injury was sustained, the appellant was a deemed employer of the respondent for the purposes of s 175 of what was at the time known as the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act"). Only two sections of the Act are in issue, being s 175 and s 6. Section 175 relevantly provided as follows:
(1) Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) 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, deemed to be employers of the worker so employed and are jointly and severally liable to pay any compensation which the contractor if he were the sole employer would be liable to pay under this Act.
…
(3) The principal is not liable under this section unless the work on which the worker is employed at the time of the occurrence of the disability is directly a part or process in the trade or business of the principal."
- Section 6 read as follows:
(Page 4)
- "The exercise and performance of the powers and duties of a local government or other public, or statutory authority shall, for the purposes of this Act, be treated as the trade or business of such local government or other authority."
5 The sole ground of appeal alleges that the learned trial Judge was wrong in fact and law in finding that s 175 did not apply, and that his Honour should have found that the act of the respondent in chasing and attempting to apprehend an offender on the appellant's premises was work which was "directly a part or process in the trade or business" of the appellant.
6 Counsel for the appellant advised the Court that it was his view that there was "no argument" relating to s 6, and the submissions of the appellant and of the respondent were directed principally to what was meant by "directly a part … in the trade or business of the principal" for the purposes of s 175(3). It seems to me, however, that the question of principle which arises in this appeal is what is to be understood by s 6.
7 It is convenient first to look at the way the learned trial Judge dealt with this matter because the approach was largely reflected in the submissions made to us. His Honour formed the view, in my respectful opinion correctly, that the appellant Minister was a public or statutory authority within the meaning of s 6. His Honour then observed, at [23], that "[o]n the face of it, this means that the mere exercise of any power conferred by the Education Act 1928 and the mere performance of any duty imposed by that Act are to be treated as the trade or business of the defendant". I would agree with his Honour's observation that that is the apparent meaning and effect of s 6. In my view, it is also the correct understanding of the section.
8 However, his Honour did not apply that understanding of s 6 to the facts before him. Rather, he embarked on what one might call a characterisation exercise, attempting to characterise some of the functions and powers of the appellant as core or essential functions, and others as ancillary. In the course of that exercise, his Honour noted that the Education Act 1928 (WA) (now replaced by the School Education Act 1999 (WA)) did not contain provisions setting out particular lists of powers and duties of the appellant. The long title of the Act was: "An Act to consolidate and amend the law relating to public education and for incidental and other purposes". The Act constituted the Minister as a body corporate and, by s 5, referred to the Minister as "doing and suffering all such other acts and things as may be necessary or expedient
(Page 5)
- for carrying out the purposes of [the] Act". Other specific powers were granted to the Minister, including the power to grant licences for the use of land and other school property by persons generally, a power to "establish and maintain and carry on … Government schools, … as he deems necessary or convenient for public education" (s 9), powers to lend and borrow money, and so on. Having reviewed those provisions, his Honour concluded that a close examination of the Education Act 1928 revealed that its purpose was to provide public education and that, for the purpose of providing public education, the appellant was empowered to establish and maintain public schools. This was, in my view, a step his Honour was not required to take.
9 In [27] of his reasons, his Honour concluded that it must therefore be the case that, being possessed of an "incidental" power to engage security services for the protection of assets, the exercise of that power "immediately becomes the trade or business of the [Minister] by reason of s 6 … ". With the reservation that it is not clear why the adjective "incidental" should be applied, I would respectfully agree with that part of his Honour's reasons.
10 His Honour then turned his attention to the question of whether the respondent, being employed as a security guard on the Minister's premises, and chasing an offender in the course of that occupation, was engaged in work which was "directly a part or process in the trade or business" of the Minister. His Honour considered authority in this Court relating to s 175 of the Act and concluded at [33] that he would have "difficulty in seeing how the engagement of a security patrolman to patrol the [Minister's] capital assets is in any way a part or process in the trade or business of the principal, namely the [Minister], in providing public education".
11 That conclusion appears to have flowed from his Honour's earlier characterisation of the purpose of the Education Act 1928 as the provision of education. However, s 6 directs attention, not to the purpose of the statute under which the relevant authority is created, but to the powers vested in the authority. In some cases, it will be necessary to ascertain the purpose of the statute in order to ascertain the content of the power; that will be so where, for example, as in s 5 of the Education Act 1928 the relevant powers are those which are "necessary … for … the purposes of [the] Act". The ultimate question in relation to s 6, however, is what are the statutory powers and duties. Once they are ascertained, the exercise of those powers is deemed to be the trade or business of the principal.
(Page 6)
12 It is likely that his Honour reasoned as he did because of submissions which were made to him by counsel, and which were repeated before us, in which both the appellant and the respondent appeared to take the view that one could divide the functions of the appellant into "core business" and "incidental" or other business for the purposes of s 6. That view may well have been formed as a result of an attempt to apply other authority in this Court which relates, not to bodies such as the appellant, but to private businesses.
13 So far as private enterprises are concerned, the trade or business of that enterprise is that trade or business in which it predominantly or usually engages, rather than trade or business in which it might at some other time choose to engage. So, in the case of a large enterprise such as Wesfarmers, which carried on a number of diverse businesses, and for the purpose of those businesses maintained a fleet of vehicles, it was possible to characterise the maintenance of the vehicles as part of that trade or business (see Jones v Wesfarmers Ltd [2003] WASCA 225). Many other enterprises, however, may have but one, much more specialised, trade or business. An example discussed during the course of argument was that of a barrister, who by definition is engaged only in the business of providing legal services of a rather specialised kind. Some barristers may use vehicles during the course of that business, for example, to visit persons in prison, and it is, of course, necessary for those vehicles to be roadworthy. However, the business remains only the business of providing legal services, and not the business of maintaining the vehicle. Work of that kind, whether the barrister normally carried it out himself or engaged others to do it for him, would not be part of the barrister's trade or business either directly or indirectly.
14 The Act might have taken a similar approach in the case of public authorities by, for example, defining the trade or business of the public authority as being the principal function or functions for which the authority was set up, or the activity in which the authority ordinarily engaged, or something of that kind. Section 6, however, does not take that course. Rather, as his Honour noted, it provides that the exercise of powers and duties of the authority are to be treated as the trade or business of the authority, without distinguishing between powers and duties which are core or significant or important, and those which are merely ancillary. Public authorities, of course, vary greatly in their type. Some are limited by statute to only a few clearly defined functions or duties. The Board of the Art Gallery of Western Australia, for example, has its powers defined, in a relatively limited way, in s 18 of the Art Gallery Act 1959 (WA); the Environmental Protection Authority has wide powers conferred by s 17 of
(Page 7)
- the Environmental Protection Act 1986 (WA), but only for carrying out the functions described in s 16; and the Western Australian Museum has its powers very generally defined in s 7 of the Museum Act 1969 (WA), but they can only be exercisable, as a matter of construction, for carrying out the functions of that body (principally as listed in s 9). Others are capable of carrying out a very wide range of functions. Local governments are perhaps a good example of the latter type (see, eg, ss 3.1 and 3.18 of the Local Government Act 1995 (WA)).
15 The legislative policy seems to be that anything which a public authority lawfully does is to be regarded as its trade or business. One can understand readily why this might be so. Public authorities evolve over time: some are amalgamated; some are abolished and part or all of their functions given to different authorities; the services which they deliver and the way in which they deliver them will change according to budgetary requirements and public views as to what is considered appropriate for governmental activity. As has been noted in a very different context, the concept of what are core or essential governmental functions is one which is elusive and liable to change over time (see Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 274 - 5 per Windeyer J).
16 It may well be that, once the operation of s 6 is correctly understood, there is little for the word "directly" to do in s 175(3), so far as public authorities are concerned. That is, it would normally be the case that work was either part of the trade or business of a public authority within the meaning of s 6, or it was not. It may be that there are some activities, which are so peripheral to the exercise of the authority's statutory powers that, although they are necessarily to be implied as arising from the conferral of legal personality upon an authority, they would not be regarded as powers "of" the authority, as opposed to powers which necessarily belong to any legal person. However, in my view, issues of that kind do not arise in the present case.
17 In the present case, the powers of the appellant specifically include the power to, inter alia, maintain government schools as deemed necessary for the purposes of the Act. That power necessarily involves, it seems to me, a complex set of actions, and would encompass the power to cause schools to be constructed, to be cleaned, to be repaired, and to be secured as necessary. Those powers are therefore powers which, for the purposes of the Act, are to be treated as the trade or business of the appellant; that is, the power to build, repair, clean and maintain schools is to be treated as the trade or business of the appellant. The work in which
(Page 8)
- the respondent was engaged was directly a part, therefore, of that trade or business. It is not necessary for the Court to engage in the task of determining for itself the question of what are to be regarded as part of the core or essential features of a system of provision of public education at the present time. It is enough for the Court to know that the Minister is empowered to carry out the functions set out in the Act and that he has determined that it is appropriate to do so by engaging security services.
18 I would therefore allow the appeal.
19 PULLIN JA: I have read the draft reasons prepared by Wheeler JA. I agree with those reasons and have nothing to add.
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