Sita Qld Pty Ltd v State of Queensland

[2000] FCA 1077

FEDERAL COURT OF AUSTRALIA

Sita Qld Pty Ltd v State of Queensland [2000] FCA 1077

PUBLIC SERVICE – employees and servants of the Crown – no liability for breach of warranty of authority – whether a Minister of the Crown is a servant of the Crown for the purposes of the rule

Australian William E Simon Graduate School of Business Administration Incorporated v Minister Administering the National Parks and Wildlife Act (1974) (NSW) 51 FCR 243

Dunn v MacDonald [1897] 1 QB 555

Minister for Youth and Community Services v Health and Research Employees Association of Australia New South Wales Branch (1987) 10 NSWLR 543

SITA QLD PTY LTD AND HARLINGDALE PTY LTD v STATE OF QUEENSLAND, THE MINISTER FOR TRANSPORT AND MAIN ROADS FOR THE STATE OF QUEENSLAND, THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT (QUEENSLAND), SURFSIDE BUSLINES PTY LTD AND RAYMOND GRAHAM CLARK AND YVONNE HAZEL CLARK TRADING AS CLARK’S LOGAN CITY BUS SERVICE

QG 98 OF 1998

DOWSETT J
14 JUNE 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 95 OF 1998

BETWEEN:

SITA QLD PTY LTD
FIRST APPLICANT

HARLINGDALE PTY LTD
SECOND APPLICANT

AND:

STATE OF QUEENSLAND
FIRST RESPONDENT

THE MINISTER FOR TRANSPORT AND MAIN ROADS FOR THE STATE OF QUEENSLAND
THIRD RESPONDENT

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT (QUEENSLAND)
FOURTH RESPONDENT

SURFSIDE BUSLINES PTY LTD
FIFTH RESPONDENT

RAYMOND GRAHAM CLARK AND YVONNE HAZEL CLARK TRADING AS CLARK'S LOGAN CITY BUS SERVICE
SIXTH RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

14 JUNE 2000

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application to join Mr Johnson as a respondent to the proceedings be refused.

2.        The applicants pay Mr Johnson’s costs of the proceedings.

3.        Mr Johnson be at liberty to tax those costs forthwith.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 95 OF 1998

BETWEEN:

SITA QLD PTY LTD
FIRST APPLICANT

HARLINGDALE PTY LTD
SECOND APPLICANT

AND:

STATE OF QUEENSLAND
FIRST RESPONDENT

THE MINISTER FOR TRANSPORT AND MAIN ROADS FOR THE STATE OF QUEENSLAND
THIRD RESPONDENT

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT (QUEENSLAND)
FOURTH RESPONDENT

SURFSIDE BUSLINES PTY LTD
FIFTH RESPONDENT

RAYMOND GRAHAM CLARK AND YVONNE HAZEL CLARK TRADING AS CLARK'S LOGAN CITY BUS SERVICE
SIXTH RESPONDENT

JUDGE:	DOWSETT J
DATE:	14 JUNE 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. I have previously said a little about the history of this matter.  It is not necessary that I canvass it again.  This matter has been set down for three weeks commencing yesterday.  On Saturday a solicitor for Mr Johnson, a former Minister of the Crown, and a person whose conduct is in issue in these proceedings, was given notice that the applicants intended to apply to join him as a party.  The matter is a very substantial one, and although Mr Johnson's solicitor suggested yesterday that he might be able to start at some time in the next three weeks, it seems clear to me - and I understand that it is now also his position - that he could give no guarantee in that respect.  The application at this late stage, if granted, would lead to a very substantial part (in my view, probably the whole) of the time set aside for the trial being thrown away.  Given the lateness of the application, it is inappropriate that it should be entertained in any event.

2. The applicants have previously sought to abandon these trial dates.  On that occasion, the State of Queensland pointed out that it had a vested interested in the speedy resolution of these proceedings because of the difficulties being posed by them in the administration of the relevant legislation and because renewal of relevant licences was almost due.  Quite apart from this matter, it cannot be said that the respondents have no interest in such speedy resolution.  The question of the readiness of the applicants for trial was ventilated on that occasion.  I refused the application for adjournment on the basis that no attempt had been made to explain why they were not in a position to proceed.  They contented themselves with saying that new solicitors had been brought into the matter and that they did not think it was ready for trial.  They made no attempt to explain why the previous solicitors had not prepared the matter.  At the very latest, the question of the joinder of Mr Johnson ought to have been addressed then.  I made it clear at that time that the trial was to proceed. 

3. I consider that the present application, implying as it inevitably does a dislocation of the trial, ought not be allowed at this stage.  If the applicants wish to proceed against Mr Johnson, they may do so in other proceedings.  They are not, as I understand it, statute-barred.

4. There is, however, a further reason for refusing the application.  The proposed cause of action against Mr Johnson is for damages for breach of warranty of authority.  It is to be submitted that he entered into a contract with the first applicant to compromise disputes between the applicants and the State.  The State has pleaded that if Mr Johnson entered into such a contract, he had no authority to do so.  It is this plea which has led the applicants to seek to sue Mr Johnson for damages for breach of warranty of authority.

5. Unfortunately for the applicants, the law appears to be that a servant of the Crown cannot be held liable in this way.  That conclusion flows from the decision of Burchett J in Australian William E Simon Graduate School of Business Administration Incorporated v Minister Administering the National Parks and Wildlife Act(1974) (NSW) (1994) 51 FCR 243, referring in particular to a decision of the Court of Appeal in England in Dunn v MacDonald [1897] 1 QB 555. The applicants submit that notwithstanding this Australian endorsement of what appears to be a long-established rule, I should allow the cause of action to be ventilated because, with the exception of the decision of Burchett J, there is no authority for the proposition that a Minister of the Crown is a servant of the Crown for the purposes of the rule. I can see no basis for distinguishing between a Minister of the Crown and any other servant of the Crown for relevant purposes. In any event, the status of a Minister in entering into contracts on behalf of the Crown appears to have been addressed by McHugh JA, as his Honour then was, in Minister for Youth and Community Services v Health and Research Employees Association of Australia New South Wales Branch (1987) 10 NSWLR 543 at 556-7. His Honour's treatment of the matter suggests that there is no justification for distinguishing between a Minister and other servants of the Crown insofar as concerns their capacity to contract and their liability in respect of such contracts. The cause of action cannot succeed on the present state of the law.

6. In those circumstances I refuse the application to join Mr Johnson as a respondent in these proceedings.  I should say, however, that should the applicants be successful in any further application for an adjournment of the trial, then the question of Mr Johnson's joinder can be revisited in the light of those circumstances.  Mr Johnson and his solicitor have been here for most of yesterday and today whilst we have dealt with matters which are of little or no interest to them.  In those circumstances, it seemed inappropriate to keep them waiting any longer. For that reason I have disposed of the application to join Mr Johnson at this time.

7. I order that the applicants pay Mr Johnson's costs of these proceedings.  I do not propose to make the order for taxation on an indemnity basis.  Given the nature of the proceedings, there should be no significant difference between party and party costs and indemnity costs.  The overwhelming aspect of the costs will be Mr Searles' costs of appearing today and yesterday.  I see no reason at all why Mr Johnson ought not have those costs and any other costs associated with preparation, but I do not consider it appropriate to make any special order.  I do, however, consider that Mr Johnson should be at liberty to tax those costs forthwith, and I will order according.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             18 August 2000

Counsel for the Applicants:	Mr N Lucarelli QC Mr M Conrick
Solicitor for the Applicants:	Freehills
Counsel for the First, Third and Fourth Respondents:	Mr R V Hanson QC Mr P Flanagan
Solicitor for the First, Third and Fourth Respondents:	Crown Law
Solicitor for Mr Johnson	McCullough Robertson
Date of Hearing:	14 June 2000
Date of Judgment:	14 June 2000