Salt v State of Victoria
[2017] VSC 6
•23 January 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2015 01951
| CAROLYN SALT | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 September 2016 |
DATE OF RULING: | 23 January 2017 |
CASE MAY BE CITED AS: | Salt v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2017] VSC 6 |
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STATUTORY INTERPRETATION – Crown immunity from suit in tort – Whether statutory removal of Crown immunity in tort under the Crown Proceedings Act 1958 (Vic) extends to personal liability, or is limited only to vicarious liability – Relevance of High Court’s construction of the Judiciary Act 1903 (Cth) – Consideration of differing historical and statutory contexts – Crown Proceedings Act 1958 (Vic) ss 23, 25 – Judiciary Act 1903 (Cth) s 64 – Hall v Whatmore [1961] VR 225, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied – Maguire v Simpson (1977) 139 CLR 362, The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254, Commonwealth v Mewett (1997) 191 CLR 471, Blunden v Commonwealth of Australia (2003) 218 CLR 330, Soil Conservation Authority v Read [1979] VR 557 considered.
PRACTICE AND PROCEDURE – Reservation of proceeding or question for the Court of Appeal – Plaintiff’s application for reservation of certain questions – Supreme Court Act 1986 (Vic) s 17B(2) – Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors (2014) 318 ALR 107, Collins v Black [1995] 1 VR 409 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr R Ajzensztat | Maurice Blackburn |
| For the Defendant | Mr S O’Meara QC with Mr S Gladman | Minter Ellison |
HIS HONOUR:
By amended writ filed 31 August 2015, the plaintiff, Ms Salt, makes a claim for damages for injury to her right leg allegedly sustained in the course of her employment with the defendant on approximately 4 August 2010 when she slipped on food on the floor of the defendant’s workplace. Ms Salt alleges negligence by the defendant which was a cause of her injury. The plaintiff pleads that the defendant is sued pursuant to the Crown Proceedings Act 1958 (‘the Act’). The defendant admits that the plaintiff was employed by it, that ‘an incident occurred’ on the day in question, denies negligence and alleges contributory negligence.
By summons filed 6 June 2016, the defendant applies for an order that the plaintiff make, file and serve an amended statement of claim to comply with s 23 of the Act, pursuant to which the Crown is vicariously liable for the torts of any servant, agent or independent contractor. The purpose of the provision is to remove the immunity of the Crown from suit for torts. The operation of s 23 is described in Hall v Whatmore[1] by Herring CJ and Dean J as follows:
We think it is clear from s23 [sic] of the Crown Proceedings Act 1958 that before the Crown can be held liable under the section it must appear that some servant or servants of the Crown is or are liable in tort. Where, as here, the relevant tort is negligence, this means that there has been a breach by a servant or servants of the Crown of a duty owed by that servant or by those servants to the plaintiff.
It is common ground between the parties that the plaintiff has not pleaded her case so as to comply with s 23 of the Act. Counsel for the plaintiff submit that there is no requirement to do so because s 25 of the Act removes the immunity of the Crown for personal, as opposed to vicarious, liability for torts.
[1][1961] VR 225 (‘Hall’), 225.
The issues on this application are as follows:
(a) The construction of ss 23 and 25 of the Act;
(b) Whether Hall determined authoritatively that the immunity of the Crown in tort was only removed by the Act to the extent of vicarious liability.[2] Counsel for the plaintiff submit that Hall and subsequent cases were limited to an analysis of the construction of s 23 of the Act, and that the s 25 argument now raised has not previously been judicially considered;
(c) Counsel for the plaintiff rely on the construction of s 64 of the Judiciary Act 1903 (Cth) by the High Court in The Commonwealth v Evans Deakin Industries Ltd,[3] in which the Court determined that that provision removed the immunity of the Commonwealth from suit in tort.[4] It is submitted that the text of s 64 of the Judiciary Act is indistinguishable from s 25 of the Act, and that s 25 should therefore be construed in the same way. Counsel for the defendant submit that principles of statutory construction do not support the plaintiff’s argument.
(d) Counsel for the plaintiff submit that the defendant’s preferred construction of s 25 of the Act would create injustice, and that this should be avoided.
[2][1961] VR 225.
[3](1986) 161 CLR 254 (‘Evans Deakin’), 262-3.
[4]Ibid.
The defendant’s summons is supported by an affidavit of Martin Alan Gannoni, solicitor for the defendant, sworn 3 June 2016. In his affidavit, Mr Gannoni simply sets out the history of the proceeding and of communication between the parties in relation to the pleaded statement of claim.
Preliminary issue
At the hearing on 9 September, counsel for the plaintiff made application pursuant to s 17B(2) of the Supreme Court Act 1986 (Vic) to reserve the following questions for consideration by the Court of Appeal:
Does section 25 of the Crown Proceedings Act 1958 (Vic):
(a)remove the immunity of the Crown in right of the State of Victoria from liability in tort;
(b)enable proceedings to be brought against the State of Victoria as a subject; and
(c)obviate the need for compliance with section 23(1)(b) of the Crown Proceedings Act by an employee of the State of Victoria who brings proceedings against his/her employer for damages for personal injury suffered in the course of employment?
Section 17B(2) of the Supreme Court Act 1986 provides:
The Trial Division constituted by a Judge of the Court or constituted by an Associate Judge may, at the request of one of the parties but (unless the contrary is expressly enacted) not otherwise, reserve any proceeding or question in a proceeding for the consideration of the Court of Appeal, or direct any proceeding or question in a proceeding to be argued before the Court of Appeal.
If I were to reserve the questions as requested by counsel for the plaintiff, it would remain for the Court of Appeal to consider whether or not to grant leave to have those questions determined in the Court of Appeal. Alternatively, the Court of Appeal might remit the questions to the Trial Division for determination pursuant to s 17B(3).
Counsel for the plaintiff relied on the principles set out by the Full Court in Collins v Black,[5] adopted by the Court of Appeal in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors.[6] The decisions in those two cases make clear that each application for referral should be determined according to the particular circumstances of the case.[7] Relevant factors may include:
[5][1995] 1 VR 409.
[6](2014) 318 ALR 107, 111 [18] (‘CFMEU’).
[7]Ibid.
(a)the difficulty of the question to be determined;
(b)the importance of the issue to the parties and/or to the public;
(c)whether or not there exists a conflict in authorities;
(d)the inevitability of appeal from whatever decision is made in the first instance, and associated issues of convenience and expedition;
(e)whether the point in issue is in urgent need of determination; and
(f)the advantage to the appellate court of having the benefit of consideration of the issues by a trial judge.[8]
Even if most or all of the features (a) to (e) are present, it may still be that the questions ought not be reserved to the Court of Appeal.[9]
[8]Collins v Black [1995] 1 VR 409, 410 (Brooking J).
[9]Ibid.
I accept that there is some complexity to the questions posed. The answers to the questions may determine the fate of the plaintiff’s claim, if the plaintiff is unable to plead her case so as to comply with s 23 of the Act. The issue is of public importance because the answers to the questions will determine whether the State has a personal, as opposed to vicarious, liability in tort.
I have determined, for reasons which follow, that there is no true conflict in the authorities. The Victorian authorities, commencing with Hall,[10] are consistent. The High Court authorities relied on by the plaintiff relate to the construction of s 64 of the Judiciary Act, which sits in a different statutory and historical context.
[10][1961] VR 225.
The issues to be determined here are not so confined as was the single issue reserved in CFMEU.[11] No urgency is identified in relation to the determination of this application. I accept the likelihood of appeal from any judgment of mine on the questions posed. However, the Court of Appeal may be assisted by my consideration of the issues. In the circumstances of this case, I consider that I should proceed to hear and determine the defendant’s application rather than reserve the questions to the Court of Appeal.
[11](2014) 318 ALR 107.
Legislative provisions
Part II of the Act is entitled ‘Civil proceedings by and against the Crown’. Pursuant to s 20, Part II applies only to causes of action arising after the commencement of the Crown Proceedings Act 1955 (Vic) (‘the 1955 Act’), the predecessor to the current Act. ‘Proceeding’ is defined by s 21 to mean action, suit, or proceeding of a civil nature. Section 23(1) of the Act provides:
23 Liability of the Crown in contract
(1) Subject to this Part—
(a)the Crown shall be liable in respect of any contract made on its behalf in the same manner as a subject is liable in respect of his contracts; and
(b)the Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him.
Section 25 of the Act provides:
25 Rights of parties
In any proceeding under this Part in which the State of Victoria is a party the rights of parties shall as nearly as possible be the same and judgment may be given and costs awarded on either side and every judgment order or decree shall be subject to the same rights of re-hearing appeal and review, as in a proceeding between subject and subject.
Construction of ss 23 and 25 of the Act
Defendant’s submissions
Counsel for the defendant rely on Federal Commissioner of Taxation v Consolidated Media Holdings Ltd,[12] most particularly the following statement of principle in relation to statutory construction by French CJ, Hayne, Crennan, Bell and Gageler JJ:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
Reliance is also placed on the well-known statements of principle in Project Blue Sky Inc v Australian Broadcasting Authority.[13]
[12](2012) 250 CLR 503, 519 [39] (citation omitted).
[13](1998) 194 CLR 355, 381-2 [69]–[71] (McHugh, Gummow, Kirby and Hayne JJ) (‘Project Blue Sky’).
Counsel for the defendant submit that the text of the Act makes clear that s 23 deals with the underlying issue of liability of the Crown for torts, whereas s 25 deals with rights in a ‘proceeding’. These are separate issues. Section 25 does not use the terms ‘liable’ or ‘liability’, but identifies specific rights such as ‘judgment’, ‘cost’, and ‘rehearing appeal and review’.
It is submitted that s 23 is expressed in mandatory terms (‘shall be liable’), and is the provision which removes the immunity of the Crown in tort to a limited degree. The later s 25 deals with the more limited issue of rights of the parties within a proceeding. Such a hierarchy is consistent with the order of the provisions. The construction of s 25 for which counsel for the plaintiff contends would, it is submitted, leave no work for s 23(1) of the Act, and such a result should be avoided.
Counsel for the defendant submit that historical context and associated extraneous material strongly support the construction of ss 23 and 25 for which the defendant contends. The argument advanced can be summarised as follows:
(a) Historically the Crown enjoyed a range of immunities, including immunity from liability in tort, and immunities within proceedings. Absent statutory abrogation such immunities continue.
(b) The immunity of the Crown for torts was first overcome in Victoria by s 4(1)(b) of the 1955 Act. The second reading speech to the 1955 Act reveals an intention to reduce the scope of an earlier Bill, and to restrict the removal of immunity of the Crown to vicarious liability for torts of its servants or agents.
(c) In 1957, a further report of the Victorian Statute Law Revision Committee examined anomalies arising from the 1955 Act. The evidence received by the Committee and the report of the Committee confirmed that the 1955 Act imposed liability for tort only to the extent of vicarious liability, and not for the personal or original liability of the Crown. However, the Committee did not recommend any amendment to the Act, and the current Act was re-enacted in the same form as the 1955 Act.
The plaintiff’s submissions
Counsel for the plaintiff submit that ‘the rights of parties’ which are the subject of s 25 are not limited to the matters expressly detailed in that section, being ‘judgment’, ‘costs’, and ‘rights of re-hearing appeal and review’. The phrase is sufficiently broad to include the right of a party to sue the Crown for liability in tort, and thus removes the Crown’s immunity from personal liability in tort. It is submitted that s 23(1)(b) of the Act goes to the different subject matter of vicarious liability of the Crown for the torts of servants or agents. The heading to s 23 — ‘Liability of the Crown in contract’ — supports, it is said, a construction that the subject matter with which s 23 deals has as its basis a contractual relationship, that is a relationship between the Crown and its servant, agent or independent contractor, which might give rise to vicarious liability of the Crown for the negligence of that servant, agent or independent contractor.
Counsel for the plaintiff rely on extracts from the second reading speech for the 1955 Act in support of a construction for which they contend.
Analysis
I will deal first with historical context. The relevant parts of the 1955 Act are ss 4 and 6, which are reproduced as follows:
4. (1) Subject to this Act –
(a) the Crown shall be liable in respect of any contract made on its behalf in the same manner as a subject is liable in respect of his contracts;[14] and
(b) the Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him.[15]
…
6. In any proceeding under this Act in which the State of Victoria is a party the rights of parties shall as nearly as possible be the same and judgment may be given and costs awarded on either side and every judgment order or decree shall be subject to the same rights of rehearing appeal and review, as in a proceeding between subject and subject.[16]
[14]In the original legislation, the margin note to sub-s 4(1)(a) reads ‘Liability of the Crown: In contract’.
[15]In the original legislation, the margin note to sub-s 4(1)(b) reads ‘For the torts of servants, &c’.
[16]In the original legislation, the margin note to s 6 reads ‘Rights of parties’.
The second reading speech to the 1955 Act includes the following:[17]
Sub-clause (1) of clause 4 deals with the substantive imposition of liability upon the Crown in contract and in tort…Paragraph (b) deals with the question of the liability of the Crown in tort, which is the most important of the matters dealt with in the Bill. The paragraph does not make the Crown personally liable in tort but makes the Crown liable for the torts of its servants, agents and independent contractors in the same manner as the subject is liable for the torts of his servants, agents and contractors.
It is felt that the real need at the present time is to impose liability on the Crown where some Crown servant causes injury or damage to some other person, as where a Government employee in the course of his employment causes injury or damage to some other person.
[17]Victoria, Parliamentary Debates, Legislative Assembly, 6 September 1955, 253 (Mr Rylah, Attorney-General), 255.
Commenting on the potential liability of the Crown in relation to damage associated with un-alienated Crown lands, Mr Rylah said:
The Government may have been somewhat cautious in its consideration of this problem, but it feels that in submitting its proposal that the Crown should accept liability for the ordinary torts or wrongdoings of its servants it is going a long way toward remedying a very obvious defect in the law, which for years has worked to the detriment of the ordinary individual. At the same time, the Government accepts the responsibility of not going all the way.[18]
Referring to clause 5, which became s 6 of the 1955 Act, Mr Rylah said:
Clause 5 ensures that the Crown will not have any privileges or immunities in relation to proceedings in which it is a party and which are not enjoyed by subjects, and that in all such cases rights of rehearing, appeal and review shall be the same as in a case between subject and subject. That again follows the principle of putting the Crown in the position of an ordinary subject.[19]
[18]Ibid 256.
[19]Ibid 258.
It is important to keep in mind that the immunity of the Crown had a number of facets, namely substantive liability, jurisdiction, and rights in a proceeding. The purpose of the 1955 Act and the current Act was, in part, to remove those historical immunities. In the second reading speech to the 1955 Act, Mr Rylah (the Attorney-General), in relation to the removal by that Act of the immunity of the Crown in contract, said:
In order to achieve this end, the Bill attacks the matter from the three aspects upon which the old immunity rested, namely, the jurisdiction of the courts, the procedure of the courts, and the substantive law of liability. The manner in which and the extent to which the old immunity is removed will best be understood by a consideration of the clauses of the Bill in turn.[20]
[20]Victoria, Parliamentary Debates, Legislative Assembly, 6 September 1955, 253 (Mr Rylah, Attorney-General), 255.
The 1956-7 Statute Law Revision Committee’s examination of anomalies in the statute law relating to civil proceedings by and against the Crown received evidence from Mr H A Winneke QC, then Solicitor-General, and from Professor Zelman Cowan, then Dean of the Faculty of Law of the University of Melbourne, each of whom noted the 1955 Act made the Crown liable in tort only to the extent of vicarious liability for the acts of its servants, agents, or independent contractors, and not for original liability of the Crown. The report of the Committee, dated 28 March 1957, confirms this position as follows:
…it appears to this committee that the intention of that Act was to impose on the Crown a vicarious but not an original liability in tort.[21]
Despite an acknowledgement of the limits of the removal of Crown immunity in the 1955 Act, there was no relevant change to the corresponding provisions of the current Act.
[21]Statute Law Reform Committee, Anomalies in the Statute Law Relating to Civil Proceedings By and Against the Crown, (1956-7), 4 (emphasis in original).
I agree with the submissions of counsel for the defendant that the historical context strongly supports the constructions of ss 23 and 25 of the Act for which the defendant contends. Further, I agree with the submissions of counsel for the defendant as to the proper construction of the language of ss 23 and 25, as outlined at [13] and [14] above.
Understood against the background of the historical context, the text of s 23(1)(b) demonstrates that the section is directed to substantive liability of the Crown for torts. That section removes the immunity of the Crown for the negligence of its servants, agents and independent contractors. The immunity of the Crown from personal liability in tort is not removed by s 23. Section 25 follows s 23 and deals with the different subject matter of the rights of parties in any proceeding. The text of s 25 establishes that the purpose of this provision is to deal with the historical immunity of the Crown in a proceeding, rather than substantive liability in tort.
Counsel for the plaintiff called in aid the decision of Gobbo J in Soil Conservation Authority v Read,[22] in which his Honour considered whether, on the extension of an interim injunction, the plaintiff should provide the usual undertaking as to damages. His Honour determined that issue on the basis that the Authority was not equivalent to the Crown and entitled to Crown immunities, and that it should give the undertaking. His Honour added that this was
[A] result that accords with the spirit of s 25 of the Crown Proceedings Act 1958 which refers to the rights of parties involving the State of Victoria [sic] as a party being as nearly as possible the same as in a proceeding between subject and subject.[23]
The right of a respondent to the benefit of an undertaking as to damages on the grant of an interlocutory injunction is a right in a proceeding. In Soil Conservation, Gobbo J was considering the removal of the immunity of the Crown in respect of rights and liabilities in a proceeding, not the substantive liability of the Crown for any damages claim consequent upon the grant of the injunction. In my view, his Honour’s comments do not advance the plaintiff’s argument.
[22][1979] VR 557 (‘Soil Conservation’).
[23]Ibid 563.
If, as is contended for the plaintiff, s 25 operates to remove the immunity of the Crown for liability including in tort, then there is nothing in the section which would limit the removal of immunity to personal liability. The removal of immunity would extend to vicarious liability, thereby leaving no work for the s 23(1)(b) Act. I agree with the submissions of counsel for the defendant that such a result is unlikely to have been the intention of Parliament, and is to be avoided.
For the above reasons, I conclude that an analysis of the text of ss 23 and 25, when considered in the context of the legislative history and extrinsic materials, leads to the conclusion that it is s 23 which acts to remove the immunity of the Crown for torts, but only for vicarious and not personal liability, whereas s 25 removes the historical immunities of the Crown in proceedings.
Is Hall v Whatmore binding authority?
Counsel for the defendant submit that Hall authoritatively determined that the only liability of the Crown in tort is vicarious liability for the tort of any servant, agent or independent contractor, and that I am bound by the line of authority commencing with Hall.[24] As an alternative argument, counsel for the defendant submit that Hall and subsequent cases at least establish a well-settled construction that s 23(1) is the only provision of the Act which establishes liability of the Crown in tort, that only vicarious and not personal liability is established by that section, and that I should be very slow to depart from that settled construction.
[24][1961] VR 225.
Counsel for the plaintiff submit that Hall and the cases which follow deal only with tortious liability imposed by s 23(1), and that I am unrestrained by those decisions in relation to the s 25 argument now raised. As an alternative, counsel for the plaintiff argue that if the decision in Hall and in subsequent cases cannot be distinguished then they should no longer be followed.
Mr Hall was a Pentridge prisoner. He suffered injury when his left arm was caught in the moving parts of a machine in the gaol’s wire netting machine shop. Subsequently he brought an action against the first defendant, Mr Whatmore, who was inspector-general of penal establishments, and against the State of Victoria as the second defendant. By its defence, the State of Victoria denied that it was liable to the plaintiff in tort, and pleaded that the statement of claim disclosed no cause of action against it. The plaintiff delivered a reply, in which it was alleged that the State of Victoria was bound in performing duties under the Gaols Act 1958 (Vic) and regulations thereunder to exercise reasonable care not to expose the plaintiff to risk of injury. Against that background, the first of a number of questions posed for answer by the Full Court was:
1.Whether it was the duty of the defendant, the State of Victoria, to take reasonable care for the safety of the plaintiff whilst he was or remained a prisoner at Her Majesty’s Gaol, Pentridge, as alleged in paragraph 5 of the statement of claim.
The unanimous answer of the court to that question was no. In a joint judgment, Herring CJ and Dean J answered the question as follows:
We think it is clear from s 23 of the Crown Proceedings Act 1958 that before the Crown can be held liable under the section it must appear that some servant or servants of the Crown is or are liable in tort. Where, as here, the relevant tort is negligence, this means that there has been a breach by a servant or servants of the Crown of a duty owed by that servant or by those servants to the plaintiff.
…
Paragraph 5 of the statement of claim alleges that it was the duty of the defendants and each of them to take reasonable care for the safety of the prisoner while he was and remained a prisoner at Her Majesty’s Gaol, Pentridge. So far as a duty is alleged to rest upon the Crown, this allegation is irrelevant to any cause of action. [25]
[25]Ibid 225-6.
In a separate judgment, Hudson J answered as follows:
In my view this question should be interpreted as referring to a ‘duty’ the breach of which would impose on the State a legal liability and confer on the plaintiff a correlative legal right for breach thereof. Otherwise it would be irrelevant and immaterial. So interpreting the question it should, in my opinion, be answered ‘no’. The liability, if any is to be imposed, must be a liability in tort and the State of Victoria is not liable in tort save to the extent set out in s 23(1)(b) of the Crown Proceedings Act 1958 …
…
In order to succeed in his claim against the State of Victoria therefore the plaintiff must establish a breach in the course of his employment by one of the servants of the Crown of a duty owed by that servant to the plaintiff. It will not avail the plaintiff to establish some act or omission on the part of the Crown which in the case of a subject would constitute a breach by the latter of some duty resting upon him arising out of the ownership or occupation of premises or chattels alleged to be dangerous.[26]
[26]Ibid 228-9.
The question posed to the Court was not limited to an evaluation of liability of the Crown pursuant to s 23(1)(b). The Court determined that the only basis upon which liability in tort could be established against the Crown was vicarious liability pursuant to s 23(1)(b). That construction of the Act has subsequently been followed by the Full Court in Richards v State of Victoria[27] and Lyver v State of Victoria,[28] and by single judges of the court in Clayton v State of Victoria,[29] Stockwell v State of Victoria,[30] and Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 2).[31] I consider that I am bound by Hall to conclude that the common law immunity of the Crown for torts is removed by the Act to the extent provided in s 23(1)(b) by establishing vicarious liability of the Crown for breaches of servants, agents or subcontractors, and that the Act does not remove the immunity of the Crown from personal liability.[32] On that basis I conclude, in conformity with the decision of the Court in Hall, that the common law immunity of the Crown for torts is unaffected by s 25 of the Act.
Section 64 of the Judiciary Act
[27][1969] VR 136, 138.
[28][1983] 2 VR 475, 478 (Young CJ), 482 (Anderson J).
[29][1968] VR 562, 564.
[30][2001] VSC 497, [16]–[31].
[31](2011) 34 VR 584, [32].
[32][1961] VR 225.
Section 64 of the Judiciary Act provides:
64 Rights of parties
In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.
Plaintiff’s submissions
Counsel for the plaintiff submit that the text of s 64 of the Judiciary Act is not relevantly different to the text of s 25 of the Act. Commencing with the decision in Maguire v Simpson,[33] the High Court has determined that s 64 deals with both substantive and procedural rights, and places the Crown in as nearly as possible the position of an individual in relation to claims for torts. It is submitted that consistency requires that the same approach be taken to the construction of s 25 of the Act. Further, there were many circumstances in which the State of Victoria is a defendant in a proceeding in a court which is exercising federal jurisdiction. In those circumstances s 64 of the Judiciary Act would apply to remove the immunity of the State for torts. Taking the approach to the construction of s 25 contended for by the plaintiff would therefore result in the Crown’s immunity from liability in tort being removed in equal measure in the state and federal jurisdictions.
[33](1977) 139 CLR 362 (‘Maguire’).
Defendant’s submissions
Counsel for the defendant submit that the construction of s 64 by the High Court is not as clear as is submitted by the plaintiff. In more recent cases,[34] reliance has been placed by the High Court on s 64 or s 56 of the Judiciary Act, and on s 75(iii) of the Constitution and the common law, as being the source of removal of the Commonwealth’s immunity from suit. Further, the approach of the plaintiff in seeking to rely upon the construction of a provision found within the different statutory and historical contexts offends statutory construction principles. In that regard counsel for the defendant referred to Project Blue Sky,[35] in which McHugh, Gummow, Kirby and Hayne JJ stated:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”.
In reliance upon the principle enunciated in Project Blue Sky, the defendant argues that s 64 ‘plainly turns upon its own specific terms and constitutional context’.
[34]See Commonwealth v Mewett (1997) 191 CLR 471, Blunden v Commonwealth of Australia (2003) 218 CLR 330, and British American Tobacco Australia v State of Western Australia (2003) 217 CLR 30.
[35](1998) 194 CLR 355.
Analysis
The first in the line of authorities relied upon by counsel for the plaintiff in relation to this submission is Maguire.[36] The statutory construction point made by counsel for the defendant, relying on Project Blue Sky,[37] is clearly demonstrated by consideration of the judgment of Barwick CJ in Maguire. In discussing the text of s 64 his Honour said:
[36](1977) 139 CLR 362.
[37](1998) 194 CLR 355, 381 [69] (citations omitted).
If the Court's task in this case were merely to construe s. 64 without regard to historical considerations peculiar to the relationship of the Crown and the citizen in Australia, I should feel the greatest difficulty in concluding that the words in which s. 64 is expressed were apt to do more than specify matters of procedure in the conduct and manner of carrying on a suit to which the Commonwealth or a State was a party…s. 64 might well be considered as doing no more than regulate the conduct of such a suit, dealing with the procedural rights of the litigants throughout the suit and the form in which the result of the suit might be expressed.[38]
His Honour went on to consider historical context, and ultimately concluded:
Because of that background, I have reached the conclusion that it is proper to regard s. 64 as expressing the intention of the Parliament to subject the Crown in right of the Commonwealth as nearly as possible to the same liability as would obtain in the like circumstances as between subject and subject.[39]
[38]Maguire (1977) 139 CLR 362, 369-70.
[39]Ibid 373.
In Evans Deakin,[40] the majority considered the Court’s decision in Maguire and said:
[40](1986) 161 CLR 254 (citations omitted).
The majority of the Court in that case considered that their conclusion was supported by the natural meaning of the words of the section, by the fact that in Farnell v. Bowman the Judicial Committee had given a similar wide meaning to the words of a New South Wales statute in much the same language and by the balance of earlier authority in this Court. It is unnecessary to discuss these reasons in detail because Maguire v. Simpson has finally settled the question. That case establishes that in every suit to which the Commonwealth is a party s. 64 requires the rights of the parties to be ascertained, as nearly as possible, by the same rules of law, substantive and procedural, statutory and otherwise, as would apply if the Commonwealth were a subject instead of being the Crown. That result seems entirely just; the Commonwealth acquires no special privilege except where it is not possible to give it the same rights and subject it to the same liabilities as an ordinary subject. The section is ambulatory, and is therefore capable of applying rights resulting from changes made to State legislation after s. 64 was enacted...[41]
The decisions in Maguire and Evans Deakin establish that s 64 of the Judiciary Act deals not just with matters of procedure, but extends to substantive rights. However, it is not so clear that the decisions stand for the proposition, as is asserted by counsel for the plaintiff, that s 64 acts to remove the immunity of the Crown for torts. That such a proposition is at least uncertain was confirmed by the decisions of Commonwealth v Mewett[42] and Blunden v Commonwealth of Australia.[43]In the former case, three distinctly different approaches were taken in relation to this point. Dawson J considered the preferable view to be that s 64 removed Crown immunity from suit in tort.[44] On the other hand, Toohey J considered, without deciding the matter, that it was s 56 of the Judiciary Act which removed Crown immunity.[45] Gummow and Kirby JJ concluded, relying on the decision of Dixon J in Werrin v The Commonwealth,[46] in which his Honour considers the joint judgment The Commonwealth v New South Wales,[47] that the liability of the Crown for torts is created by the common law, and that s 75 of the Constitution exposes the Crown to remedy for common law tortious liability.[48] Their Honours appeared to limit the operation of s 64 to affecting the rights of parties in a proceeding. Finally, in Blunden,[49] Gleeson CJ and Gummow, Hayne and Heydon JJ stated:
It is established by The Commonwealth v Mewett that the liability of the Commonwealth in tort is created by the common law and that s 75(iii) of the Constitution denies any operation to doctrines of Crown or Executive immunity which otherwise might be pleaded in an action to recover damages in respect of a common law cause of action.
[41]Ibid 262.
[42](1997) 191 CLR 471.
[43](2003) 218 CLR 330 (‘Blunden’).
[44]Commonwealth v Mewett (1997) 191 CLR 471, 502.
[45]Ibid 513.
[46](1938) 59 CLR 150.
[47](1923) 32 CLR 200.
[48]Commonwealth v Mewett (1997) 191 CLR 471, 496-7.
[49](2003) 218 CLR 330, 336 [9] (citations omitted).
I agree with the argument of counsel for the defendant that it remains uncertain whether the statutory provision which removes the immunity of the Crown for torts is s 64 of the Judiciary Act. In any event, the judgments in the series of cases from Maguire to Blunden make good the submissions of counsel for the defendant that the construction of s 64 depends on the specific statutory and historical context within which it sits. To the extent that the construction of s 64 of the Judiciary Act differs from the construction of s 25 of the Act, that difference is adequately explained by that different context. I agree with the submission of counsel for the defendant that the task of construction of s 25 of the Act is not assisted by consideration of the construction of s 64 of the Judiciary Act by the High Court in the series of cases from Maguire to Blunden.[50]
[50]Maguire (1977) 139 CLR 362; Blunden (2003) 218 CLR 330.
Injustice to the plaintiff
Counsel for the plaintiff submit, for two reasons, that the construction of ss 23 and 25 of the Act for which the defendant contends would create injustice to an injured plaintiff who was unable to identify a negligent Crown servant or agent. First, such failure would be fatal to a proceeding which relies on s 23(1)(b) of the Act. Second, an injured employee of the Crown limited to a claim based on vicarious liability is deprived of the benefit of reliance upon the employer’s personal and non-delegable duty of care. I agree with the submission of counsel for the plaintiff, so far as it goes. Counsel for the plaintiff did not proceed from this point to explain how it was that the potential for injustice should be taken into account when performing the task of construction of ss 23 and 25 of the Act.
The purpose of the 1955 Act and the current Act was to respond to the injustice to citizens caused by the immunity of the Crown. There is nothing in the language of the Act, the 1955 Act, or the extrinsic materials which establishes that it was the intention or purpose of the 1955 Act and/or the Act to remove the Crown’s immunity for torts completely. There is no ambiguity in the text of ss 23 and 25 which might provide a basis for an argument that a beneficial construction of those sections is appropriate. The extrinsic materials, such as the second reading speech to the 1955 Act and the Report of the Statute Law Reform Committee of 1957, clarify that the purpose of the two Acts was to effect a limited removal of the Crown’s immunity from liability for torts. In the circumstances, the identification of instances of injustice resulting from the limited rather than the full removal of the Crown’s immunity for torts does not assist with the task of construction of ss 23 and 25 of the Act.
I note that it is possible that the potential injustice identified by counsel for the plaintiff might be avoided or ameliorated, at least in the employment context, by the claim for damages for injury being based on breach of contract pursuant to s 23(1)(a) of the Act. Of course, this would depend on the plaintiff being able to establish the terms of the contract of employment, the breach of which gave rise to a claim for damages for injury sustained in the course of employment.
Conclusion
I will grant the application of the defendant in the summons filed 6 June 2016. I will hear from the parties as to the appropriate form of orders, and as to costs.
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