Sneddon v State of New South Wales - [2012] NSWCA 351

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sneddon v State of New South Wales [2012] NSWCA 351
Hearing dates: 18 July 2012
Decision date: 01 November 2012
Before: Basten JA at [2]
Macfarlan JA at [118]
Meagher JA at [179]
Decision:
(1) Dismiss the motion of the first respondent (the State of New South Wales) to review the decision of Barrett JA.
(2) Order that the first respondent pay the appellant's costs of the motion to review the decision of Barrett JA.
(3) Dismiss the appellant's application for leave to appeal.
(4) Order that the first respondent pay the appellant's costs of the application for leave to appeal.
(5) With respect to the proceedings against the first respondent:
(a) Allow the appeal in part and set aside order 3 entered on 2 June 2011.
(b) In place of the order referred to in (a), give judgment for the plaintiff against the second defendant (the State of New South Wales) in the sum of $438,613.75, to take effect from 2 June 2011.
(c) Set aside order 2 entered on 3 August 2011.
(d) In place of the order referred to in (c), order that the second defendant pay the plaintiff's costs of the trial.
(e) Order that the first respondent pay 50 per cent of the appellant's costs of the appeal.
(6) With respect to the proceedings against the second respondent (Milton Orkopoulos), dismiss the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
APPEAL - leave to appeal - judgment against one joint tortfeasor for over $100,000 - appeal against dismissal of claim against other joint tortfeasor - first tortfeasor satisfied judgment - whether leave to appeal required - whether matter at issue of the value of $100,000 - whether value of matter determined at time that notice of appeal is filed - Supreme Court Act 1970 (NSW), s 101

CONSTITUTIONAL LAW - Constitution of New South Wales - functions and duties of Member of Legislative Assembly - whether Member of Legislative Assembly is "a person in the service of the Crown" - Constitution Act 1902 (NSW); Law Reform (Vicarious Liability) Act 1983 (NSW), s 8

DAMAGES - assessment of damages - severity of loss as proportion of most extreme case - uncertainty as to the prospects of full recovery - whether necessary to assess likelihood of hypothetical future event occurring - whether error of principle - whether assessment wholly unreasonable - Civil Liability Act 2002 (NSW), s 16

JUDGMENTS AND ORDERS - res judicata and issue estoppel - default judgment - claim brought against third defendant for alternative and inconsistent causes of action - first and second defendants vicariously liable for conduct of third defendant - default judgment entered against third defendant did not distinguish between causes of action - whether res judicata or issue estoppel created in relation to either or both causes of action - relevance of pleadings - whether default judgment can be entered in relation to only one of alternative causes of action - whether default judgment necessarily and precisely determined the cause of action for which the third defendant was liable

TORT - vicarious liability - vicarious liability of the State for conduct of persons in service of the Crown - tortious conduct of Member of Parliament in relation to electorate officer - whether Member of Parliament in the service of the Crown - whether conduct in Member's capacity as a Member of Parliament - Law Reform (Vicarious Liability) Act 1983 (NSW), s 8

TORT - vicarious liability - vicarious liability of the State for conduct of persons in service of the Crown - tortious conduct of Member of Parliament in relation to electorate officer - whether Speaker of Legislative Assembly part of executive government - whether Member agent or delegate of Speaker - Law Reform (Vicarious Liability) Act 1983 (NSW), s 8

WORDS & PHRASES - "involves a matter at issue amounting to or of the value of" - Supreme Court Act 1970 (NSW), s 101
WORDS & PHRASES - "the Crown" - "person in the service of the Crown" - Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
Legislation Cited: Civil Liability Act 2002 ss 3B, 3C, 16, 21
Claims Against the Colonial Government Act 1876 (39 Vict No 38)
Claims Against the Government and Crown Suits Act 1912 (NSW)
Commonwealth of Australia Constitution Act (The Constitution) (Cth) s 75(v)
Constitution Act 1902 (NSW) ss 26-29, 31, 39, 47, Pt 2
Crown Proceedings Act 1947 (UK)
Crown Proceedings Act 1988 (NSW) ss 3, 4, 5
Director of Public Prosecutions Act 1986 (NSW) s 7
District Court Act 1973 (NSW) s 127
Government and Crown Suits Act 1912 (NSW)
Government and Related Employees Appeal Tribunal Act 1980 (NSW) s 4
Interpretation Act 1987 (NSW) s 13A
Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5
Law Reform (Vicarious Liability) Act 1983 (NSW) ss 5, 7, 8, 10
Police Act 1863 (Qld) s 6
Privacy Committee Act 1975 (NSW)
Public Sector Employment and Management Act 2002 (NSW)
Slave Trade Act 1824 (UK) s 43
Supreme Court Act 1970 (NSW) s 101
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987 (NSW), Pt 5, Div 3
Workers Compensation Regulation 2010 (NSW), Sch 7
Cases Cited: Armstrong v Budd (1969) 89 WN (NSW) (Part 2) 241
Attorney-General for NSW v Perpetual Trustee Co (Ltd) [1952] HCA 2; 85 CLR 237
Attorney-General for NSW v Perpetual Trustee Co (Ltd) [1955] AC 457; 92 CLR 113
Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; 177 CLR 106
Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2007] HCA 38; 232 CLR 1
Bank of NSW v The commonwealth [1948] HCA 7; 76 CLR 1
Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334
Blair v Curran [1939] HCA 23; 62 CLR 464
Bradto Pty Ltd v State of Victoria [2006] VSCA 89; 15 VR 65
Bropho v Western Australia [1990] HCA 24; 171 CLR 1
Clifton v Lewis [2012] NSWCA 229
Commonwealth v Western Australia [1999] HCA 5; 196 CLR 392
Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767
Coomber v Justices of Berks (1883) 9 App Cas 61
Damberg v Damberg [2001] NSWCA 87; 52 NSWLR 492
Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; 174 CLR 219
Downs v Williams [1971] HCA 45; 126 CLR 61
Egan v Willis (1996) 40 NSWLR 650
Egan v Willis [1998] HCA 71; 195 CLR 424
Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563
Egerton v Brownlow (1853) 4 HLC 1; 10 ER 359
Enever v The King [1906] HCA 3; 3 CLR 969
Equuscorp Pty Ltd v Haxton [2012] HCA 7; 86 ALJR 296
Farnell v Bowman (1887) 12 App Cas 643
Field v Nott [1939] HCA 41; 62 CLR 660
Foley v Ryder [1906] HCA 61; 4 CLR 422
Gillard v Hunter Wine Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450
Hansen v Slattery Transport (NSW) Pty Ltd [2011] NSWCA 450
Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21
Holly v Director of Public Works (1998) 14 NSWLR 140
Horne v Barber [1920] HCA 33; 27 CLR 494
Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; 119 CLR 334
In re M [1994] 1 AC 377
James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53
Jensen v Ray [2011] NSWCA 247
Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993
Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Mason v Demasi [2012] NSWCA 210
McConnell v Lombard and Ulster Banking Ltd [1982] NI 203
McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; 165 ALR 409
McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55; 221 CLR 646
Mounsey v Findlay (1993) 32 NSWLR 1
Municipal Council of Sydney v Commonwealth [1904] HCA 50; 1 CLR 208
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 472
New Brunswick Railway Co v British & French Trust Corporation Ltd [1939] AC 1
Oertel v Crocker [1947] HCA 40; 75 CLR 261
Pegela Pty Ltd v Oates [2010] NSWCA 186
The King v Boston [1923] HCA 59; 33 CLR 386
The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Fotball League (Inc) [1979] HCA 6; 143 CLR 190
R v Stoddart [1987] CanLll 168; 37 CCC (3d) 351 (Ontario Court of Appeal)
R (Quark Fishing Ltd) v Secretary of State for Foreign and commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529
Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391
Re Webster [1975] HCA 22; 132 CLR 270
Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] 1 AC 453
Rudolf Wolff & Co v Canada [1990] I SCR 695; 69 DLR (4th) 392
Ryder v Foley [1906] HCA 61; 4 CLR 422
Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508
Sneddon v State of New South Wales [2012] NSWCA 7
Sue v Hill [1999] HCA 30; 199 CLR 462
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 226 CLR 161
Sydney City Council v Reid (1994) 34 NSWLR 506
Sydney Harbour Trust Commissioner v Ryan [1911] HCA 64; 13 CLR 358
Sykes v Cleary [1992] HCA 60; 176 CLR 77
Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293
Termijtelen v Van Arkel [1974] 1 NSWLR 525
The Commonwealth v Mewett [1997] HCA 29; 191 CLR 471
The King v Boston [1923] HCA 59; 33 CLR 386
Tobin v The Queen (1864) 16 CB (NS) 310; 143 ER 1148
Town Investments Ltd v Department of the Environment [1978] AC 359
Troughton v McIntosh (1896) 17 LR(NSW) 334
United Australia Ltd v Barclays Bank Ltd [1941] AC 1
Wilkinson v Osborne [1915] HCA 92; 21 CLR 89
Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149
Zavodnyik v Alex Constructions Pty Ltd [2005] NSWCA 438; 67 NSWLR 457
Texts Cited: 4 Coke's Institutes of the Lawes of England, 49
Elliott M, Beatson, Matthews, and Elliott's Administrative Law (4th ed, 2011, OUP) at [16.1.3]
Evatt, HV, The Royal Prerogative, (1987) LBC
Finn, Paul "Claims against the Government Legislation" in Finn (ed) Essays on Law and Government, The Citizen and the State in the Courts (1996) Vol 2, LBC
Professor Finnis "Common Law Constraints: Whose Common Good Counts?" (2008, University of Oxford Faculty of Law Legal Studies Research Paper Series)
at pars 15-18
Law Reform Commission (NSW) 1975 Report on Proceedings By and Against the Crown (LRC 24), 13.2, 13.4, 13.7, 13.34, 13.35
May, Erskine, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 16th ed (1957)
Moore, Harrison, "The Crown as Corporation" (1904) 20 Law Quarterly Review 351
New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 17 March 1983, 4765
Peter W Hogg, Patrick J Monahan and Wade K Wright, Liability of the Crown, 4th ed (2011) Carswell
Sappideen, C and Vines, P (eds) Fleming's Law of Torts, 10th ed (2011) LBC
Spencer, Bower & Handley, Res Judicata, 4th ed (2009) LexisNexis
The New Shorter Oxford English Dictionary (1993)
Twomey A, The Chameleon Crown (Federation Press, 2006) p 263-267
Twomey A, The Constitution of New South Wales (Federation Press, 2004) at 26-30 and 387
Twomey A, "A Responsible Government and the Divisibility of the Crown" [2008] PL 742 at 757
Wade and Forsyth, Administrative Law (10th ed, 2009 OUP) pp 40 (fn 6), 694, 695
Winterton G, Parliament, The Executive and the Governor-General (Melb UP 1983), Ch 4
Category: Principal judgment
Parties: Gillian Margaret Sneddon (Appellant)
State of New South Wales (First Respondent)
Milton Orkopoulos (Second Respondent)
Representation: Counsel:
R J de Meyrick (Appellant)
G C Lindsay SC/G J Sarginson (First Respondent)
Solicitors:
T D Kelly & Co (Appellant)
Crown Solicitor (First Respondent)

File Number(s): CA 2009/297790
Decision under appeal

Citation:

[2011] NSWSC 508; [2011] NSWSC 842

Before:

Price J

File Number(s):

SC 2009/297790

HEADNOTE

[This headnote is not to be read as part of the judgment]

In October 1999, the appellant was appointed to act as an electorate officer in the electorate office of the State Member for Swansea, Mr Milton Orkopolous (the second respondent).

In these proceedings the appellant alleged that, whilst working in the second respondent's office, she was bullied, victimised and harassed by him, causing her to suffer psychiatric harm which rendered her totally incapacitated for work. The primary judge found that the second respondent was liable for damages of $438,613.75 for breach of a duty of care owed to the appellant and that the appellant's employer, The Speaker of the Legislative Assembly, was liable for modified common law damages under the Workers Compensation Act 1987 for breach of his duties as an employer. The primary judge held that the State of NSW (the first respondent) was not liable for the conduct of the second respondent.

The appellant appealed to the Court of Appeal, contending that the State should be held liable for the second respondent's conduct under the Crown Proceedings Act 1988 or the Law Reform (Vicarious Liability) Act 1983 and that the damages payable by the second respondent should have been assessed on the basis that his conduct was intentional rather than negligent, thereby avoiding the limitations on damages imposed by the Civil Liability Act 2002. The appellant also claimed increased damages for non-economic loss and challenged a costs order.

The Court held:

(per Basten and Meagher JJA; Macfarlan JA agreeing save as to the costs order)

(i) The first respondent's motion to review a decision that the appeal was not incompetent should be dismissed with the first respondent to pay the appellant's costs of the notice of motion.

(per Basten, Macfarlan and Meagher JJA)

(ii) The primary judge correctly assessed damages against the second respondent in accordance with the limitations imposed by the Civil Liability Act 2002.

(per Basten and Macfarlan JJA, Meagher JA dissenting)

(iii) The State of NSW is liable for the tortious conduct of the second respondent as it occcured whilst the second respondent was acting "in the service of the Crown" pursuant to s 8(1) of the Law Reform (Vicarious Liability) Act 1983.

(per Basten JA; Macfarlan and Meagher JJA contra)

A Member of Parliament is involved in giving advice or consent on legislation, an essential part of the function of government, and is thereby performing a function incidental to an "activity of the Crown" within the meaning of s 8(1)(b) of the Law Reform (Vicarious Liability) Act 1983. As the tortious conduct of the second respondent was undertaken in his capacity as a Member of Parliament, the first respondent is liable for his misconduct.

(per Macfarlan JA; Basten JA not deciding; Meagher JA contra)

In supervising and controlling the appellant's employment in his electoral office, the second respondent acted as the delegate of the appellant's employer, The Speaker. As The Speaker was acting as part of the Executive Government of the State in employing the appellant, the second respondent, as his delegate, also so acted. The "Crown" at least includes the executive branch of government. Therefore the second respondent was acting in the "service of the Crown" pursuant to s 8(1) of the Law Reform (Vicarious Liability) Act 1983 when acting as The Speaker's delegate.

(per Meagher JA; Macfarlan JA agreeing; Basten JA contra)

A Member of the Legislative Assembly, in discharging his or her legislative and parliamentary duties is not "a person in the service of the Crown" for the purposes of s 8(1) of the Law Reform (Vicarious Liability) Act 1983. The Member cannot be controlled, directed or interfered with by the State in the discharge of those functions.

(per Meagher JA; Basten JA not deciding; Macfarlan JA contra)

In supervising or controlling the appellant, the second respondent was not acting as the agent of The Speaker and thus was not acting "in the service of the Crown".

(per Macfarlan and Meagher JJA, Basten JA dissenting)

(iv) The primary judge's assessment of the severity of the appellant's non-economic loss at 16 per cent of a most extreme case should not be disturbed as the appellant failed to show any error of principle or demonstrate that the primary judge's assessment was wholly unreasonable.

(per Macfarlan JA, Basten and Meagher JJA agreeing)

(v) The primary judge's order limiting the second respondent's liability for costs at first instance to those relating to a half-day hearing should not be disturbed.

Judgment

THE COURT: The separate reasons for judgment give rise to proposed orders which vary as between members of the Court. In these circumstances it is convenient to state the orders which we agree should be made to give effect to the differing reasons for judgment. The orders of the Court are:

(1) Dismiss the motion of the first respondent (the State of New South Wales) to review the decision of Barrett JA.

(2) Order that the first respondent pay the appellant's costs of the motion to review the decision of Barrett JA.

(3) Dismiss the appellant's application for leave to appeal.

(4) Order that the first respondent pay the appellant's costs of the application for leave to appeal.

(5) With respect to the proceedings against the first respondent:

(a) Allow the appeal in part and set aside order 3 entered on 2 June 2011.

(b) In place of the order referred to in (a), give judgment for the plaintiff against the second defendant (the State of New South Wales) in the sum of $438,613.75, to take effect from 2 June 2011.

(d) In place of the order referred to in (c), order that the second defendant pay the plaintiff's costs of the trial.

(e) Order that the first respondent pay 50 per cent of the appellant's costs of the appeal.

(6) With respect to the proceedings against the second respondent (Milton Orkopoulos), dismiss the appeal.

BASTEN JA: The appellant, Ms Gillian Sneddon, brought proceedings in the Supreme Court for psychiatric injury resulting from abusive treatment between October 2005 and September 2006 by the then Member of the New South Wales Legislative Assembly for the seat of Swansea, Mr Milton Orkopoulos. During the relevant period, the appellant was employed as an electorate officer, Grade 2, in the Member's Swansea electorate office. The first defendant to her claim was the Speaker of the Legislative Assembly who had power to appoint "minor servants of the Legislative Assembly", pursuant to s 47 of the Constitution Act 1902 (NSW). The Speaker was agreed to be the appellant's employer. The appellant was successful in her claim against the Speaker and was awarded damages of a little under $430,000, which amount has been paid in full: Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508 (Price J).

The third defendant was the Member of Parliament himself, against whom claims were brought in negligence, for breach of statutory duty and for the intentional tort of assault. He did not defend the claim and a default judgment was entered against him on 17 January 2011, for damages to be assessed. At trial those damages were assessed in an amount a little under $439,000. No amount has been paid by Mr Orkopoulos.

The second defendant in the Court below was the State of New South Wales, which was sued, relevantly for present purposes, as bearing vicarious liability for the tortious conduct of the third defendant, Mr Orkopoulos pursuant to the Crown Proceedings Act 1988 (NSW) and the Law Reform (Vicarious Liability) Act 1983 (NSW) ("the Vicarious Liability Act"). In this claim the appellant was unsuccessful, judgment being given for the State, to which the appellant was ordered to pay the State's costs of the trial.

The present appeal involves no challenge to the judgment against the Speaker, who is not a party to the proceedings in this Court. The focus of the appeal is twofold. First, it challenges the judgment in favour of the State (the first respondent) and, secondly, it seeks a variation in the damages awarded against Mr Orkopoulos (the second respondent), for which the State is said to be liable.

Before turning to the questions raised on the appeal, it is necessary to address a procedural skirmish which remained a live issue at the hearing of the appeal. That involved a claim by the State that the appeal was incompetent because it involved an amount of less than $100,000 and thus could only be brought by leave: Supreme Court Act 1970 (NSW), s 101(2)(r). Although the appellant has filed, defensively, a summons seeking leave to appeal, against the event that leave is required, costs have been incurred by both parties as a result of the procedural steps taken and it is appropriate that the issue in dispute be resolved.

(1) Leave to appeal

The judgment in the Common Law Division was delivered on 2 June 2011 and orders were then entered. The appellant's notice of appeal was filed on 1 September 2011, with an affidavit sworn by the solicitor for the appellant asserting that the amount in issue in respect of the liability of the State was the award of damages as against Mr Orkopoulos, which had been assessed at almost $439,000. The restriction in s 101(2)(r) was thus inapplicable and no leave was required. The affidavit was in conformity with the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 51.22.

A respondent who objects to the competency of an appeal may, within 28 days of service of the notice of appeal, apply for an order dismissing the appeal as incompetent: UCPR, r 51.41(1). The purpose of the strict time limit is to ensure that costs are not unnecessarily incurred in pursuing what turns out to be an incompetent appeal. Failure to object to competency in a timely fashion, where the appeal is later dismissed as incompetent, can have significant adverse consequences in respect of costs for the respondent: r 51.41(2). On 21 December 2011, the State filed a notice of motion objecting to the competency of the appeal, which motion required (and sought) an extension of time within which to raise the objection.

On 3 February 2012, the appellant's solicitor filed a further affidavit noting that in addition to the amount of the judgment against Mr Orkopoulos, which was sought to be ordered against the State, there was a challenge to the assessment of damages. Non-economic loss had been assessed in accordance with s 16 of the Civil Liability Act 2002 (NSW), the trial judge determining that the injury caused was 16% of a most extreme case, which resulted in an award of $7,500. The solicitor submitted that an appropriate assessment would have been 30% of a most extreme case, giving an award on the statutory scale of $115,000. He noted that the appellant also claimed that damages should have been assessed under the common law and not under the Act, on the basis that the Act did not apply to intentional torts and that a further allowance should have been made for exemplary damages. On those further bases he submitted that the amount in issue exceeded $100,000.

The motion was heard by Barrett JA on 6 February 2012, judgment being delivered three days later: Sneddon v State of New South Wales [2012] NSWCA 7. Barrett JA dismissed the motion with costs. On 23 February 2012 the State sought, pursuant to s 46(4) of the Supreme Court Act, to review the decision of Barrett JA. (That application was made within time: UCPR, r 51.58.)

Before Barrett JA, the State had argued, on the assumption that the Speaker had satisfied the judgment against him, that the amount which would be recovered if the appellant succeeded on the appeal was the difference between that award (assessed in accordance with the Workers Compensation Act 1987 (NSW)) and the slightly higher award against Mr Orkopoulos (assessed pursuant to the Civil Liability Act). The difference being a little under $9,500, the requirement for leave was engaged.

Although Barrett JA noted that the State had assumed that the judgment against the Speaker had been satisfied, he held that the competency of the appeal turned on the imposition of legal liability on the State for an amount well in excess of $100,000. At least by way of precaution, on 29 February 2012 the State served on the appellant a notice to admit facts, the relevant fact being that the Speaker had, "prior to 24 February 2012", paid or otherwise satisfied the judgment and the order for costs. On 13 March 2012 the appellant admitted that the judgment had been paid and that the Speaker had paid costs in the amount provided under the Workers Compensation Regulation 2010 (NSW), Sch 7.

The first limb of s 101(2)(r) of the Supreme Court Act precludes an appeal from a final judgment, except by leave of the Court, "other than an appeal ... that involves a matter at issue amounting to or of the value of $100,000 or more": s 101(2)(r)(i). (It may be assumed for present purposes that it is the first limb of the provision which applies in respect of a claim for damages, rather than the second limb which is concerned with appeals involving a claim "respecting any property or civil right" amounting to or of the value prescribed, which is concerned with injunctions, declarations and prerogative relief, being orders not having a monetary value: see Oertel v Crocker [1947] HCA 40; 75 CLR 261 at 265-267 (Latham CJ).)

The State sought to pursue what can basically be described as a practical or pragmatic approach. It submitted that leave was required unless there was a realistic prospect that the appeal could result in an increase in the appellant's wealth by not less than $100,000. That could not be a realistic prospect, it was submitted, where all that was sought was a judgment against the State for $439,000 when another party had already satisfied most of that judgment by payment of a little under $430,000. Success would thus increase the appellant's wealth by less than $10,000.

This argument is untenable, for a number of reasons. First, it avoids use of the statutory test, preferring to adopt a colloquial phrase taken from another judgment and then applied out of context. Nevertheless, the State sought to support that approach by reference to three authorities. The first was Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450 (Priestley JA and Sperling J). The Court identified the critical question, in dealing with an identical provision in s 127 of the District Court Act 1973 (NSW), to be the meaning of "the matter at issue" on an appeal. The proposition rejected was that the phrase referred to the amount "claimed" on appeal, however unrealistic the claim might be: at [11]. Rather, their Honours construed the section as meaning that a party "has an appeal as of right if there is a realistic prospect of changing the result by $100,000 or more": at [12]. That approach has been accepted as correct in subsequent cases.

Before leaving Gillard, there is another point arising from the judgment which is of relevance in the present case. The test involves a temporal element and the conclusion reached by the Court was formulated as to whether there was "any reasonable possibility, at the time when the application was filed, that it might be held, on a hearing of the application, that the amount realistically in issue on appeal was less than $100,000": at [14]. On a purposive approach, it must be correct that the test is to be applied at the point of time when the prospective appellant has to determine whether to lodge a notice of appeal or a summons seeking leave to appeal.

The second case relied upon was Pegela Pty Ltd v Oates [2010] NSWCA 186. In a passage with which Allsop P and McColl JA agreed, Young JA noted a submission by counsel for the appellants that "if the appeal succeeds it will change the wealth of his client by more than $100,000": at [60]. After referring to Gillard at [11] and [12], Young JA accepted that approach. The language was used in a context in which resolution of the issues in dispute could result in, say, the extinction of the appellant's liability to pay $50,000 and conferral of an entitlement to be paid $50,000. There would thus be a result aptly described as a change of $100,000 in the financial position, favourable to the appellant. As between two parties, that result may obtain, for example, by a combination of relief sought by the appellant on a claim (which was dismissed below) and the setting aside of its opponent's cross-claim (which had been upheld below). That was illustrated by Hansen v Slattery Transport (NSW) Pty Ltd [2011] NSWCA 193 where the appellant sought to set aside a judgment against him of a little under $100,000, but sought to recover an amount of $30,000. The case was a motor vehicle accident in which both vehicles had suffered damage and which turned on the apportionment of liability as between the respective drivers. Leave was held not to be required.

The third case relied upon by the State was Jensen v Ray [2011] NSWCA 247. In dealing with a claim under the Property (Relationships) Act 1984 (NSW) Brereton J stated (with the agreement of Campbell JA and Sackville AJA) that leave was not required "if there was a realistic prospect that the appeal would change the wealth of the appealing party by more than $100,000, it being the realistic worth of the claim that must exceed $100,000, rather than the property the subject of the claim": at [12].

The principal reason why none of these cases assist the State is that each involved an appeal involving two parties. A closer factual circumstance might have arisen in Hansen v Slattery Transport if there had been injury to the drivers of the vehicles (as well as to the vehicles themselves) in circumstances where each vehicle was owned by a corporation and the damage suffered by the corporation was therefore separate from the loss flowing from injury to the driver. There are cases in which appellants with claims arising out of the same events file a single notice of appeal; in principle, however, that practice is misconceived and, for the purposes of considering a question of leave, the "matter at issue" must be separately assessed for each appellant.

The second flaw in the State's reasoning is to identify the point of reference of the phrase "matter at issue" as a financial outcome, rather than a legal liability or entitlement. If the correct assessment of the right to appeal is to inquire what is the realistic financial outcome of success against the State, the answer is an increase of the State's liability from zero to $438,000. That was the approach taken by Barrett JA at [13]-[14]. He concluded that the judgment against Mr Orkopoulos was, in this context, irrelevant, as was the judgment against the Speaker.

The correctness of this reasoning is, in one sense, conceded by the State which seeks to rely, not upon the existence of the other judgments, but on the fact that an amount has been paid pursuant to one of them, namely the judgment against the Speaker. However that must be an irrelevant consideration if, consistently with the reasoning in Gillard, the time at which the assessment must be made is the time of filing the notice of appeal (or application for leave to appeal). There is no evidence that the judgment against the Speaker had been met by 1 September 2011, when the notice of appeal was filed. Whether a later payment will affect the judgment to which the appellant is entitled, if otherwise successful on the appeal, is not presently in issue: the later payment does not render a competent notice of appeal incompetent. To conclude otherwise would be to contradict the temporal element in the requirement for leave, derived from a purposive construction of the statute.

There was a third reason why the challenge to the judgment of Barrett JA must fail. The notice of appeal challenged the calculation of damages as assessed against Mr Orkopoulos. The proposition that the trial judge erred in his assessment by an amount of at least $100,000 was reasonably arguable, if unlikely to succeed. Barrett JA was satisfied that there were grounds for accepting that assessment, a conclusion which was not challenged in the submissions before this Court.

It follows that the State's motion seeking to review the judgment of Barrett JA should be dismissed; the State must pay the costs of the motion.

If this reasoning were erroneous, I would accept, for the reasons given by Macfarlan JA, that there should be a grant of leave to appeal.

(2) Issues on appeal

The present appeal had two purposes. First, although the appellant has been paid the amount of damages awarded against the Speaker, she sought to recover from the State a small additional amount payable by Mr Orkopoulos, but which has not been paid. If successful on that point, she will also reverse an order that she pay the costs of the State of New South Wales. That part of the appeal should be upheld.

Secondly, she challenged the assessment of damages payable by Mr Orkopoulos. That challenge had two limbs. The more advantageous limb asserted that damages should have been assessed under the general law and thus free from the constraints of the Civil Liability Act. The basis for that claim was that she had obtained a default judgment against Mr Orkopoulos for an intentional tort, assessment of damages for which was not governed by the Act. The result would have been a higher award for non-economic loss and, arguably, an award of exemplary damages. That challenge should be rejected. A more limited claim, namely that there had been a separate error in assessing non-economic loss, should be upheld, although the benefit, some $10,000, is marginal.

(3) Liability of State

Pursuant to statutory reforms which commenced in South Australia in 1853 and in New South Wales in 1857, the State is now liable for the tortious conduct of employees, officers, and others in its service, in respect of acts or omissions in those respective capacities. The appellant was herself a "servant of the Crown", to use the 19th century terminology still maintained in the Vicarious Liability Act. Her nominal employer was the Speaker of the Legislative Assembly; the Speaker was an officer of the State, for whose liability, the State probably bore ultimate responsibility, although this question was not raised in this appeal. Further, she contended that a member of the Legislative Assembly, carrying out his functions as such, is also an officer of the Crown, for whose conduct, carried out in that capacity, the State was also responsible. Accordingly, the appellant was entitled to judgment against the State of New South Wales in respect of the liability of Mr Orkopoulos and was entitled to her costs against the State.

(a) legislation

The relevant legislative provisions governing this litigation included s 5 of the Crown Proceedings Act, which states:

"5 Crown may be sued

(1) Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title 'State of New South Wales' in any competent court.

(2) Civil proceedings against the Crown shall be commenced in the same way, and the proceedings and rights of the parties in the case shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side, and shall bear interest, as in an ordinary case between subject and subject."

The language used in this section has a significant history to which it will be necessary to refer briefly. It is convenient first to note the definition of "Crown" in s 3:

"3 Definitions

In this Act:

...

Crown means the Crown in right of New South Wales, and includes:

(a) the Government of New South Wales, and

(b) a Minister of the Crown in right of New South Wales, and

(c) a statutory corporation, or other body, representing the Crown in right of New South Wales."

Three points are presently significant. First, the phrase "the Crown in right of New South Wales" may be understood, sufficiently for present purposes, to refer to the Monarch acting on the advice of her New South Wales representatives, rather than their counterparts in the Commonwealth or the United Kingdom (or for that matter Canada): A Twomey, The Chameleon Crown (Federation Press, 2006), pp 263-267. Secondly, the definition is inclusive and does not, in its terms, purport to be exhaustive. Thirdly, there is a degree of ambiguity in identifying one of the included bodies as "the Government of New South Wales", separately from ministers and statutory corporations or other bodies representing the Crown in right of New South Wales. The most obvious explanation for this drafting was to ensure that it covered all those institutions which might be thought to fall within its intended scope: though see the exclusion of statutory corporations in s 5(1).

Returning to the terms of s 5(2), there is a long line of authority for the general proposition that the effect of this provision (and its predecessors) was to remove any immunity which the Crown might enjoy from proceedings which might otherwise lie against it, as in claims between subject and subject. Accordingly, if the Crown were an employer, it would be vicariously liable for torts committed by its employees in the course of their employment. In this respect, the language echoed that of the Claims Against the Colonial Government Act 1876 (39 Vict No 38) which provided not only a procedural mechanism for making claims against the government, by seeking appointment of a nominal defendant against whom to proceed, but further provided that the "rights of parties therein shall as nearly as possible be the same ... as in an ordinary case between subject and subject". In Farnell v Bowman (1887) 12 App Cas 643 the Privy Council upheld the judgment of the Supreme Court (Faucett and Windeyer JJ, Martin CJ dissenting) permitting an action to lie against the government in tort. Doubts continued to arise in later years as to the effect, if any, of this legislation with respect to the obligations of the government under statute, but its effect with respect to common law actions in tort was not thereby put in doubt: see Downs v Williams [1971] HCA 45; 126 CLR 61.

More importantly for present purposes, the liability of the Crown was treated as always vicarious and not direct (a proposition which will be considered further below), with the result that there was no liability on the part of the government in respect of the acts of independent contractors or officers exercising independent functions conferred by law and not subject to direction by the government. The common example of tortious conduct for which the Crown was not responsible was that of a police constable: see, eg, Enever v The King [1906] HCA 3; 3 CLR 969. Accepting that the constable was personally liable for a wrongful arrest, Griffith CJ noted the acceptance by the appellant that the equivalent legislative provision in Tasmania did not impose any liability upon the government "except in cases where the relationship between the officer and the Government is such that, if a like relationship existed between subject and subject, the maxim respondeat superior would apply": at 975. The Court held that it would not apply in the case of a constable. As explained by Griffith CJ at 977:

"Now, the powers of a constable, quâ peace officer, whether conferred by common or statute law, are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself. ... A constable, therefore, when acting as a peace officer, is not exercising a delegated authority, but an original authority, and the general law of agency has no application."

It is not necessary to pursue further this line of authority; its existence explains two aspects of the Vicarious Liability Act. That Act reflected the proposals persuasively argued by the Law Reform Commission (NSW) in 1975 in its Report on Proceedings By and Against the Crown (LRC 24). The Report recommended the adoption of a form of enterprise liability in respect of all torts committed by employees, agents and officers of the Crown in right of the State. The Report discussed (at par 13.2) the decision of the English Court of Common Pleas in Tobin v The Queen (1864) 16 CB (NS) 310; 143 ER 1148. That case involved an action against the Queen by the owners of a ship seized by a naval commander pursuant to a power conferred by the Slave Trade Act 1824 (5 Geo 4 no 113), s 43, empowering commanders of ships of Her Majesty's Navy to seize slave traders. On the assumption that the seizure was unlawful, the Court nevertheless dismissed the claim. Erle CJ stated at 1163:

"The liability of a master for the act of his servant attaches in the case where the will of the master directs both the act to be done and the agent who is to do it. The act of the servant is then held to be the act of the master .... When the duty to be performed is imposed by law, and not by the will of the party employing the agent, the employer is not liable for the wrong done by the agent in such employment."

Noting that Tobin's case was relied upon in Enever, the Report concluded at paragraph 13.4:

"A fundamental premise of the reasoning of Erle CJ in Tobin's Case is that the Crown does not act by legislation; and that it acts only through the Executive Government. As Erle CJ put it, the duty which the naval commander had to perform was 'a duty imposed upon him by the statute'. It was not a duty 'created by command of the Queen'. But, ... the development of the law relating to the Crown as a litigant is to a large measure an expression of the development of the concept of the State as distinct from the Sovereign. If the expression 'command of the Queen' is understood to mean the 'command of the State' the fallacy of the fundamental premise in the reasoning of the Chief Justice becomes apparent - for the legislation of the State is no less the expression of its will than are the administrative actions of Ministers of the State (be they called by that title or by the title Ministers of the Crown) or of those subject to their directions."

The Report concluded that there was no justification for limiting the liability of the State by such insubstantial arguments and, therefore, there was "no justification for the State escaping responsibility for torts of its officers on the ground that the relevant functions of those officers are conferred or imposed not by the authority of the Executive Government but by the authority of Parliament or by the common law": at par 13.7. "Nor", the Report continued, "should the State escape liability because the common law or the relevant statute law requires an officer of the State to act on his personal judgment".

The Vicarious Liability Act gave effect to the Commission's recommendations in the following sections:

"7 Vicarious liability of masters

Notwithstanding any law to the contrary, a master is vicariously liable in respect of a tort committed by the master's servant in the performance or purported performance by the servant of an independent function where the performance or purported performance of the function:

(a) is in the course of the servant's service for his or her master or is an incident of the servant's service (whether or not it was a term of his or her contract of service that the servant perform the function), or

(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the servant's master.

8 Further vicarious liability of the Crown

(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:

(a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function), or

(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown.

(2) Subsection (1) does not apply to or in respect of a tort committed by a person in the conduct of any business, enterprise, undertaking or activity which is:

(a) carried on by the person on the person's own account, or

(b) carried on by any partnership, of which the person is a member, on account of the partnership."

Further, there were a number of important definitions in s 5:

"5 Definitions

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

court includes a tribunal, and in relation to a claim for damages means any court or tribunal by or before which the claim falls to be determined.

Crown means the Crown in right of New South Wales.

independent function, in relation to a servant or a person in the service of the Crown, means a function conferred or imposed upon the servant or person, whether or not as the holder of an office, by the common law or statute independently of the will of the servant's master or the Crown, as the case may require.

legal proceedings means proceedings in a court.

office includes the office of special constable within the meaning of Part 4 of the Police Offences Act 1901.

originating process means any statement of claim, summons, application or other process by means of which legal proceedings are commenced.

person in the service of the Crown does not include a servant of the Crown.

police tort claim-see section 9B (1).

(2) In this Act, a reference to:

(a) a function includes a reference to a power, authority and duty, and

(b) the performance of a function includes a reference to the exercise of the function and the failure to perform or exercise the function."

The definition of "independent function" reflects the intention of the Law Reform Commission Report to remove the underlying basis of the immunity of persons in the service of the Crown, as identified in Enever and Tobin. Section 10 of the Vicarious Liability Act, as originally enacted, confirmed that the Act did not derogate from any statutory protective provision which excluded or limited the liability of any servant or person in the service of the Crown. That provision was replaced in 1989 by an entirely new provision in the following terms:

"10 Effect of statutory exemptions

(1) In this section:

person includes the Crown.

statutory exemption means a provision made by or under an Act which excludes or limits the liability of a person.

(2) For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded.

(3) Except as provided by this section, nothing in this Act affects a statutory exemption conferred on a person."

The significant effect of this provision is to transfer to the State liability for the conduct of the officer, even if the officer enjoys statutory immunity from suit, without affecting that immunity.

(b) meaning of "Crown"

The relationship of governments in Australia with "the Crown" has been explored in a number of constitutional and public law contexts. In Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [224] in exploring the concept of "allegiance" between an individual and a sovereign power, Gummow and Hayne JJ noted that in 1886, before Australian federation, Lord Coleridge CJ had explained that allegiance was due from subjects to the Crown in the "politic" not the "personal" capacity of the Sovereign. They referred to the discussion in Sue v Hill [1999] HCA 30; 199 CLR 462.

The importance of identifying the Crown as a "body politic" is in part a reflection of the need to allow for changed constitutional circumstances: Sue v Hill at [56]. The practical importance of this analysis may be seen in the debates as to which minister's advice the representative of the Crown is to act upon. At least since the Australia Acts of 1986, it may be apt to describe the Crown, relevantly for present purposes, as the "Queen" or "Crown" of New South Wales: A Twomey, The Constitution of New South Wales, (Federation Press, 2004), p 387; R (on the application of Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529 at [9] (Lord Bingham of Cornhill); cf A Twomey, "Responsible Government and the Divisibility of the Crown" [2008] PL 742 at 757. (Similar criticisms of the reasoning in Quark Fishing were made by John Finnis in "Common Law Constraints: Whose Common Good Counts?" (2008, Univ of Oxford, Faculty of Law, Leg Studies Res Paper Series) at paragraphs 15-18, an analysis accepted in part at least by the House of Lords in Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453 at [39]-[40] (Lord Hoffmann, Lord Mance agreeing at [142]); [98]-[101] (Lord Rodger of Earlsferry, Lord Carswell agreeing at [126]). Indeed, the proposition that the Crown involved multiple juristic persons was accepted well before the Australia Acts: see Municipal Council of Sydney v Commonwealth [1904] HCA 50; 1 CLR 208 at 231 (Griffith CJ, Barton and O'Connor JJ agreeing). Sue v Hill was concerned with the meaning of "the Queen" in various provisions of the Constitution, which did not use the term "the Crown". Nevertheless at [83]-[94] Gleeson CJ, Gummow and Hayne JJ provide a valuable analysis of the expression in constitutional theory. Commencing at [84] the joint reasons explained:

"The first use of the expression 'the Crown' was to identify the body politic. Writing in 1903, Professor Pitt Cobbett identified this as involving a 'defective conception' which was 'the outcome of an attempt on the part of English law to dispense with the recognition of the State as a juristic person, and to make the Crown do service in its stead'. The Constitution, in identifying the new body politic which it established, did not use the term 'the Crown' in this way. After considering earlier usages of the term in England and in the former American colonies, Maitland rejoiced in the return of the term 'the Commonwealth' to the statute book."

Having identified three further usages, including a reference to the government meaning "the executive as distinct from legislative branch of government" (at [87]), their Honours continued at [90]:

"The expression 'the Crown in right of...' the government in question was used to identify these newly created and evolving political units. With the formation of federations in Canada and Australia it became more difficult to continue to press 'the Crown' into service to describe complex political structures. Harrison Moore identified 'the doctrine of unity and indivisibility of the Crown' as something 'not persisted in to the extent of ignoring that the several parts of the Empire are distinct entities'. He pointed to the 'inconvenience and mischief' which would follow from rigid adherence to any such doctrine where there were federal structures...."

It may be accepted that the expression "the Crown" can in some circumstances be understood to refer to the executive arm of government, although even this usage may require closer identification of which activities of the executive government are to be identified. That issue was considered in Bropho v Western Australia [1990] HCA 24; 171 CLR 1, dealing with the presumption that a statute does not "bind the Crown" in the absence of an indication to the contrary. As noted by Gummow J in Commonwealth v Western Australia [1999] HCA 5; 196 CLR 392, "'The Crown' may identify not a body politic or the executive government thereof but those rights, privileges or immunities identified with the royal prerogative": at [106].

Even in reference to executive functions the expression "the Crown" has different flavours in different contexts, as is apparent from the role of the Crown as prosecutor in criminal cases. Thus, the Director of Public Prosecutions is empowered to institute and conduct prosecutions for indictable offences "on behalf of the Crown": Director of Public Prosecutions Act 1986 (NSW), s 7(1). The Director undertakes that function in "courts" exercising the judicial power of the government. As explained by Tarnopolsky JA in R v Stoddart [1987] CanLII 168; 37 CCC (3d) 351 (Ontario Court of Appeal) at 363, in a passage cited with approval by the Supreme Court of Canada in Rudolf Wolff & Co Ltd v Canada [1990] 1 SCR 695 at 701; 69 DLR (4th) 392:

"... the Crown Attorney does not participate in a criminal trial as an 'individual'. He participates as a representative of the Crown, which in turn represents the state, ie organized society."

Even within the Constitution Act the "Crown" is referred to in different capacities. Thus, reference to "revenues of the Crown" in s 39, dealing with the Consolidated Fund, refers to the public revenues of the State of New South Wales, not the personal revenues of the Monarch. By contrast, in dealing with the "demise of the Crown" and its effect on the holders of offices under the Crown, the reference is clearly to the Monarch as an individual: s 49A.

Accepting that the Crown acts through agents, who will not themselves enjoy the immunity of the Crown, s 13A of the Interpretation Act 1987 (NSW) provides:

"13A NSW Government agencies and statutory bodies representing the Crown

(1) If an Act provides that a body is:

(a) a NSW Government agency, or

(b) a statutory body representing the Crown,

the body has the status, privileges and immunities of the Crown.

...

(5) In this section, the Crown includes the State and the Government of the State."

As noted above, the Law Reform Commission adopted the concept of the State, as opposed to the Crown, as a means of avoiding the confusion caused by reliance on language reflecting feudal concepts of the monarchy. However, that reasoning resulted in only a titular change, in relation to the manner in which civil proceedings may be brought. In the Crown Proceedings Act, the critical terms of s 5 refer to proceedings "against the Crown"; in the Vicarious Liability Act, the critical language refers to vicarious liability of "the Crown" in respect of a tort committed by a person "in the service of the Crown", such a person being distinguished from "a servant of the Crown". It remains necessary to identify what is meant by "the Crown" in this statutory context. The statutory definitions provide little assistance in this regard, except that they do not purport to limit the concept of the Crown, nor is there any reason to give a different meaning to that concept in each statute. Each refers to the Crown as the Crown in right of New South Wales, which is, in effect, a constitutional limitation, but not one of present significance. The examples of what is meant by that phrase in the Crown Proceedings Act are precisely that: they are neither expansive nor restrictive, but illustrative.

Difficulties with the language still adopted in these provisions was remarked on more than 30 years ago by the House of Lords in Town Investments Ltd v Department of the Environment [1978] AC 359. The case was concerned with the application of legislative rent restriction on tenancies occupied by the tenant for the purpose of its business. A lease was taken by the Minister of Works to house civil servants working for other government departments. The question was whether the rent restrictions applied. In holding that they did, the House of Lords broadly accepted that the lease having been signed "for and on behalf of Her Majesty" the relevant business was the exercise of the functions of government in the United Kingdom. Various members of the House of Lords commented on the inappropriateness of identifying whether the tenant was the Minister of a particular department or "the Crown" and the meaning of the words "for and on behalf of Her Majesty" in which capacity the Minister purported to act. Lord Diplock stated at 380-381:

"My Lords, the fallacy in this argument is that it is not private law but public law that governs the relationships between Her Majesty acting in her political capacity, the government departments among which the work of Her Majesty's government is distributed, the ministers of the Crown in charge of the various departments and civil servants of all grades who are employed in those departments. These relationships have in the course of centuries been transformed with the continuous evolution of the constitution of this country from that of personal rule by a feudal landowning monarch to the constitutional monarchy of today; but the vocabulary used by lawyers in the field of public law has not kept pace with this evolution and remains more apt to the constitutional realities of the Tudor or even the Norman monarchy than to the constitutional realities of the 20th century. To use as a metaphor the symbol of royalty, 'the Crown', was no doubt a convenient way of denoting and distinguishing the monarch when doing acts of government in his political capacity from the monarch when doing private acts in his personal capacity, at a period when legislative and executive powers were exercised by him in accordance with his own will. But to continue nowadays to speak of 'the Crown' as doing legislative or executive acts of government, which, in reality as distinct from legal fiction, are decided on and done by human beings other than the Queen herself, involves the risk of confusion."

There was no equivocation as to the scope of the roles attributed to the Crown: they included both legislative and executive functions. Lord Simon of Glaisdale stated, in respect of the questions 'who was the tenant of the demised premises' and 'were the premises occupied by the tenant', at 397:

"Nor can the first two questions be answered without also bearing in mind that your Lordships are concerned with symbolic language which cannot be understood without regard to constitutional history. The crown as an object is a piece of jewelled headgear under guard at the Tower of London. But it symbolises the powers of government which were formerly wielded by the wearer of the crown; so that by the 13th Century crimes were committed not only against the king's peace but also against 'his crown and dignity': Pollock and Maitland, History of English Law, 2nd ed (1898), v I, p 525. The term 'the Crown' is therefore used in constitutional law to denote the collection of such of those powers as remain extant (the royal prerogative), together with such other powers as have been expressly conferred by statute on 'the Crown'.

So too 'The Queen' indicates the person who by right of succession is entitled to wear the crown. But 'Her Majesty' is evidently a symbolic phrase, betokening the power, the 'mana,' which is embodied in the person entitled to wear the crown .... 'Her Majesty' in constitutional legal usage thus generally personifies the powers of 'the Crown' - powers the nucleus of which legally and historically are those of The Queen, but which by constitutional convention (ie, in political reality) are exercised in the name of the Queen by those who are nominally and legally her servants or agents."

Town Investments is seen in some quarters as a demonstration of the very confusion it sought to resolve. Thus, Wade and Forsyth describe the attempt to identify ministerial executive acts with acts done by the Crown and to treat the whole government as a form of corporate entity as "radically misconceived and [to] ignore constitutional principles": Administrative Law (10th ed, OUP, 2009) p 40, fn 6. The fact that agents and officers of the Crown had not traditionally enjoyed the immunity from suit that the Crown itself enjoyed was inconsistent with the notion of a single legal entity: pp 694-695; see also M Elliott, Beatson, Matthews, and Elliott's Administrative Law (4th ed, 2011, OUP) at [16.1.3].

Town Investments was also considered by the House of Lords in In re M [1994] 1 AC 377. Lord Woolf (with whom all other members of the House of Lords agreed) referred to the comments of Lord Diplock and Lord Simon in Town Investments as potentially having the effect of treating a duty placed upon a minister as a duty of the government as a whole. He said that it was "not appropriate to apply that approach to actions in tort, including actions for breach of statutory duty, since this would mean that the [Crown Proceedings Act 1947 (UK)] had the surprising effect of treating the wrongful act of a named minister as being that of the Crown so that the minister could no longer be sued personally in tort or for injunctive relief": at 415C. Lord Woolf held that a finding of contempt could be made against a government minister in his or her official capacity, but not against the Crown directly: at 424E-F. He accepted, however, that the Crown could "be appropriately described as a corporation sole or a corporation aggregate" for the purpose of holding property and entering into contracts: at 424F. However, it is not that aspect of the approach in Town Investments which is significant for present purposes, but rather the identification of "the Crown" as a legal concept as embracing the legislative, executive and judicial arms of government. Thus, Lord Diplock noted at 381A:

"We very sensibly speak today of legislation being made by Act of Parliament - though the preamble to every statute still maintains the fiction that the maker was Her Majesty and that the participation of the members of the two Houses of Parliament had been restricted to advice and acquiescence."

Lord Morris of Borth-y-Gest noted, to similar effect, that "laws are enacted by Her Majesty in Parliament": 393C.

(c) liability of State for torts of member of Legislature

The issue raised in the present case was whether Mr Orkopoulos, as a Member of Parliament, was an officer, agent or servant of the Crown. The question may be phrased in this way because the conduct complained of occurred in the course of the appellant's employment in the Swansea Electorate Office. Although the pleading was somewhat opaque in this respect, it appears to have been accepted in the course of the trial that his tortious actions were undertaken in his capacity as a Member of the Legislative Assembly and not as a Minister. The appellant's position was one of a staff member assisting a Member of Parliament to deal with his or her electoral duties, and not his ministerial responsibilities. The State, however, denied liability for torts committed by members of Parliament towards their electoral staff, despite the fact that the staff are "Crown employees". The underlying assumption appears to have been that the Crown Proceedings Act and the Vicarious Liability Act impose liability on the State only in respect of the torts committed by members of the executive arm of the government, and not its legislative arm.

It goes without saying that the Constitution, providing for the government of the State, includes the Legislature (Constitution Act, Pt 2) and provides for membership of the Legislative Assembly. Members of the Legislative Assembly thus participate in the exercise of the legislative power of government, in conventional terms, giving "advice and consent" and "authority" to legislation enacted by the assent of the Monarch, acting through the Governor of the State.

The language of enactment was the same in this State until 1987. Thus, the Claims against theGovernment and Crown Suits Act 1912 (NSW) commenced:

"BE it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:-".

The contention of the State was, in effect, that officers of the Crown were persons appointed by the executive and did not include members of the legislature elected by the people.

It is an essential element of a democratic constitution that members of the legislature are elected by those qualified and entitled to vote. It would have been possible to limit the liability of the State of New South Wales to the torts committed by officers and agents "appointed by" the Crown (which would no doubt include ministers of the Crown: Constitution Act, s 35E) thus excluding from the concept of the Crown those members of the legislature who were not ministers, but that course was not taken. In that respect, the Law Reform Commission recommendation, adopted in legislation, rejected the test applied in the Crown Proceedings Act 1947 (UK) of persons "directly or indirectly appointed by the Crown" as "too uncertain": par 13.34. The preferred course, adopted in the legislation with a change in nomenclature, was to refer to persons "in the service of the State": par 13.35.

Section 8 of the Vicarious Liability Act requires that the tort must be committed either "in the course of" the person's service with the Crown or as "an incident" of the person's service: s 8(1)(a). In the alternative, the tort must be committed by the person in the performance of a function "directed to" or "incidental to" the carrying on of "any ... activity of the Crown": s 8(1)(b).

Taking only the last description, the following conclusions follow from the ordinary meaning of the language:

(a) a member of Parliament is involved in giving advice and consent to legislation;

(b) legislation is an essential part of the function of government;

(c) a member of the legislature is therefore a person performing an independent function, directed to or incidental to an activity of government;

(d) whatever the scope of the phrase "activity of the Crown", it is apt to include the exercise of a legislative power, and

(e) those engaged in the performance of that function are involved in the service of the Crown.

It would follow from the analysis so far that a tortious act of a member of the legislature in the course of carrying out parliamentary functions, as a result of which a member of his or her staff was injured, would give rise to liability on the part of the State. It would also follow that a judicial officer, exercising the judicial power of government, would be carrying on a governmental function or activity of the Crown and that the State would be liable for his or her tortious conduct towards staff: cf Troughton v McIntosh (1896) 17 NSWR(L) 334 at 338 (Stephen J); see also McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; 165 ALR 409 at [209], where Weinberg J noted that judges hold "office under the Crown". That conclusion is consistent with the understanding that federal judges are officers of the Commonwealth for the purposes of s 75(v) of the Constitution: see The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League (Inc) [1979] HCA 6; 143 CLR 190. The question is not whether or not the judicial officer is immune, but whether the State is liable for his or her tortious conduct.

It is also an appropriate, if not essential, part of the function of an elected representative of the people to communicate with his or her electorate. That follows from the constitutional requirement that the member represent the people of an identified electoral district: Constitution Act, ss 26-29. That function is reflected in the appointment by the Speaker of the Legislative Assembly of officers to work in the electoral offices of members of the Legislative Assembly, such officers being remunerated by moneys appropriated from the Consolidated Fund.

The conclusion that members of the legislature are servants, agents or officers of the Crown is supported by Australian authority. The King v Boston [1923] HCA 59; 33 CLR 386 involved a demurrer to an indictment charging that a number of people conspired with Boston "in his official capacity ... then being a public officer to wit a member of the Legislative Assembly of New South Wales" to accept corruptly payments of sums of money as an inducement to him "in his said official capacity ... in violation of his official duty to do or omit to do certain acts to wit to use his position as such member to secure the inspection of, acquisition and the payment in cash for certain estates by the Government of the State of New South Wales": at 387. Isaacs and Rich JJ stated at 399-400:

"In the theory of our government the Sovereign is the source of all authority, legislative, executive and judicial. The British Constitution requires that practically in all cases the Sovereign's authority shall be exercised in the prescribed manner, with the prescribed advice and consent, and by the prescribed agents. Broadly speaking, the Sovereign in historical times acted in each branch of sovereignty with the aid of Councils which in various forms survive to-day. For the purposes of legislation his Council has become the body now represented by Parliament, whose advice and consent are essential ..., with increased practical powers, but with theoretic relations to the Crown unchanged. The fundamental obligation of a member in relation to the Parliament of which he is a constituent unit still subsists as essentially as at any period of our history. That fundamental obligation, which is the key to this case, is the duty to serve and, in serving, to act with fidelity and with a single-mindedness for the welfare of the community." (Emphasis in original.)

Quoting Coke's Institutes, the joint judgment continued at 400:

"The King cannot grant a charter of exemption to any man to be freed from election of knight, citizen, or burgess of the Parliament ... because the election of them ought to be free, and his attendance is for the service of the whole realm and for the benefit of the King and his people, and the whole commonwealth hath an interest therein."

Following the high tone of Coke, the joint judgment continued at 401-402:

"It is thus clear to demonstration that every member of the Assembly elected fills a position created in which he is to 'serve' as member in the sense in which that expression has always been understood and to which the duties of service are inseparably attached. Those duties are of a transcendent nature and involve the greatest responsibility, for they include the supreme power of moulding the laws to meet the necessities of the people, and the function of vigilantly controlling and faithfully guarding the public finances. ...

...

A member of Parliament is, therefore, in the highest sense, a servant of the State; his duties are those appertaining to the position he fills, a position of no transient or temporary existence, a position forming a recognized place in the constitutional machinery of government. Why, then, does he not hold an 'office'? In R v White [(1875) 13 SCR (NSW) (L) 322] it was held, as a matter of course, that he does. That decision is sound. ... Clearly a member of Parliament is a 'public officer' in a very real sense, for he has, in the words of Williams J in Faulkner v Upper Boddington Overseers [(1857) 3 CB (NS) 412 at 420], 'duties to perform which would constitute in law an office.'"

It is not necessary for the purposes of this case to identify the precise limits of the functions of a member of the legislature. The limits, relevantly, are set by s 8(2) of the Vicarious Liability Act which excludes liability for a tort committed by a person in the conduct of any business or activity carried on by that person on his or her own account. The tortious conduct occurred in the course of Mr Orkopoulos interacting with the appellant in her capacity as electoral officer. That interaction was the performance of a function in the course of Mr Orkopoulos' service with the Crown, or was at least incidental to that service. It was not contended that the breaches of the duty of care owed by Mr Orkopoulos to the appellant were concerned with some personal relationship between the two, or the undertaking by Mr Orkopoulos of some private business or activity outside his parliamentary functions.

One consequentialist argument against the attribution of liability to the State for tortious conduct of members of the legislature invoked the apparent absurdity of making the State liable for, say, defamatory statements made by a member of the opposition in the course of electioneering, where the object of ridicule was a State minister. Such an example would raise a number of questions, including the possibility that activities of candidates for election would not themselves fall within the scope of the legislative functions imposed on members of Parliament and a separate possibility that statements made outside the legislature for the purposes of promoting the party political objectives of one party or another would also fall outside the functions of a legislator. However, the possibility of such questions arising is not a basis for reading down the language of the Vicarious Liability Act so as to exclude legislators from the category of persons performing functions in the service of the Crown.

The "absurdity" argument raised above was also put in more nuanced constitutional terms by the State, both in its written and oral submissions. In its written submissions, the proposition was succinctly stated in the following terms, albeit as a matter militating against a grant of leave to appeal, if that were required (paragraph 3(e)):

"Imposition of any liability on the first respondent for the tortious acts of the second respondent may have a tendency to operate so as to interfere with the independence of Members of Parliament in the conduct of their Electorate Offices independently of Executive Government; the supervision of staff allocated to Members of Parliament by the House of which they are Members; the internal workings of Parliament; the privileges of Parliament; and the political processes associated with the conduct of business by Parliament."

This aggregation of somewhat disparate concepts was refined in oral submissions in the following way (Tcpt, 18/07/12, pp 39 (35)-40 (5)):

"If the State has liability for what goes on in the electoral office of all members of Parliament, what does that mean in practice? Does it mean that the head of the Executive government or the political head of the Executive government, the premier of the day, has some oversight into the electoral office of the various members of Parliament who compromise [comprise?] the Opposition? I submit the way it all fits together is that the Executive government informs [which forms?] the State, really has no part to play, can have no part to play in the conduct of the individual member of Parliament's electoral office. That is something which is we submit within the control of the Parliament using the Speaker on a day-to-day basis as its representative, and that's the way we submit the employment arrangements tie together. The Speaker appoints the electoral officers, the Speaker issues the various workplace policies, the Speaker supervises the staff. If there's a complaint, members of staff go to the Speaker's office or people working directly under the Speaker, and we submit that approach to it leaves everything within the control of the Parliament without there being any suggestion that the premier of the day could make enquiries of the leader of the Opposition or anybody else. It we submit leaves the Parliament master of its own destiny and we submit that's the way it should all fit together."

The thrust of these submissions depended upon two basal constitutional propositions, which should be accepted. The first is that the State Constitution, like the Australian Constitution, reflects the principle of responsible government under the Crown. Thus, the Crown's representative is to act only on the advice of her ministers and the ministers must retain the confidence of the Parliament: G Winterton, Parliament, The Executive and the Governor-General (Melb UP, 1983), Ch 4; A Twomey, The Constitution of New South Wales at 26-30; Egan v Willis (1996) 40 NSWLR 650 at 660 (Gleeson CJ); Egan v Willis [1998] HCA 71; 195 CLR 424 at [46] (Gaudron, Gummow and Hayne JJ); Egan v Chadwick (1999) 46 NSWLR 563 at [34]-[40] (Spigelman CJ). Thus, the executive is ultimately subject to control by the parliament and the legislature is not under the control of the executive.

The second proposition is a practical matter: the parliament, like any other department of state, can only function with financial and administrative resources. Although it may determine budgets, it is ultimately dependent on the executive arm of government to provide such resources. However, the mechanism by which that is done, relevantly in the present case through the office of the Speaker, is designed to minimise inconsistency with the principle that the executive is subservient to the parliament, rather than the other way around. (Similar issues will arise with respect to the administration of the judicial branch of government, including in relation to the staff in judges' chambers.) The proposition is, accordingly, that to impose responsibility on the Crown for the tortious conduct of members of parliament in relation to their functions as such is to upset the constitutional balance.

The flaw in the reasoning is twofold. First, the strength or weakness of the argument is one for the parliament: if parliament has legislated to impose liability on the State in such circumstances, there is no diminution in the sovereignty of parliament by giving effect to that law. However, that proposition would probably not be disputed by the State: rather, the focus of the submission is that because of the consequences for the constitutional balance, it should be assumed that parliament did not have the intention of disturbing that balance.

It is at this second level that the substance of the argument must be addressed. It is unapologetically consequentialist in form: that is, to impose liability is to invite control and interference in advance, in order to limit potential future liability. However, to state the argument in that way is to expose the flaw. The express intention of s 8 of the Vicarious Liability Act is to require the State to accept responsibility for the tortious conduct of its officers even when beyond its control, in the exercise of independent functions. There can be no suggestion that the Vicarious Liability Act brought with it some greater power to control the exercise of independent functions, whether by police, the Director of Public Prosecutions or any other officer in the service of the Crown. If there is a resultant incentive to limit the potential for such liability, it may be assumed that the executive has adequate and appropriate means to do so, for example by the provision of training and the promulgation of appropriate standards, through the existing structures of executive control. Accordingly, the constitutional argument should be rejected as providing no basis for reading down terms of legislation which are patently beneficial, both in the interests of citizens injured as a result of the activity of officers of the Crown and in formalising that which had previously been common practice, namely ensuring that any judgment is borne by the State, rather than (or, in the absence of statutory immunity, in addition to) the individuals responsible for the tortious conduct.

(4) Effect of default judgment

(a) nature of issue

On the basis that the State is liable for any tort committed by Mr Orkopoulos in the exercise of his function as a Member of Parliament, including in his dealings with the appellant as a member of his staff in his electorate office, the next question requires assessment of the damages for which the State is liable. In this regard, it should be noted that s 8 of the Vicarious Liability Act does not state that the Crown will be liable for the damages awarded against the person in the service of the Crown, but establishes vicarious liability in respect of the tort committed by that person. However, it was assumed that the vicarious liability of the State would be limited in the same manner as the liability of Mr Orkopoulos, pursuant to the Civil Liability Act, s 3C.

The appellant contended that, while the State did not admit the intentional tort, as between the appellant and Mr Orkopoulos, it was admitted. Accordingly, the appellant was entitled to have damages assessed on that basis. The State did not claim any right to take over Mr Orkopoulos' defence. The Vicarious Liability Act says it is liable "in respect of the tort committed" by Mr Orkopoulos: s 8(1). Once Mr Orkopoulos conceded an intentional tort, by admitting the bullying allegations, the State was not entitled to put the appellant to proof of that cause of action. Although damages needed to be assessed, the absence of a defence conceded both the injury particularized and causation. Accordingly, what needed to be "assessed" was the value of the injury, in accordance with the general law.

The claims brought by the appellant against the Speaker, the State and Mr Orkopoulos were complicated by the different statutory regimes for the assessment of damages. Thus, damages against the Speaker were to be assessed under the Workers Compensation Act, Pt 5, Div 3. Those damages were, in substance, restricted to economic loss. As against Mr Orkopoulos, the trial judge found that, on the evidence, Mr Orkopoulos was liable in negligence and that damages were to be assessed under the Civil Liability Act, Pt 2. It is that latter finding which is challenged in the appeal.

The second way this argument is put is that Mr Orkopoulos, as a member of the Legislative Assembly, was involved in the exercise of legislative power, an essential function of government, and that in performing that function he was "in the service of the Crown" within s 8(1) of the Vicarious Liability Act. Specifically, it is said that in conducting the affairs of his electorate office and supervising the appellant, Mr Orkopoulos was, in the service of the Crown, performing a function directed to or incidental to the carrying on of the legislative "activity of the Crown" within s 8(1)(b).

The third way this argument is put is that in supervising the appellant and giving her direction and instruction as to what she should do as his electorate officer, Mr Orkopoulos was acting on behalf of the Speaker of the Legislative Assembly who had appointed the appellant to that position pursuant to a power vested by an order made under s 47 of the Constitution Act 1902. In appointing the appellant to provide professional support to Mr Orkopoulos in his electorate office, the Speaker was acting on behalf of the executive branch of Government and to the extent that Mr Orkopoulos was supervising and controlling the appellant in that position on behalf of the Speaker, he was doing so "in the service of the Crown". Accordingly, that function was being performed by Mr Orkopoulos in the course of his "service with the Crown" within s 8(1)(a) of the Vicarious Liability Act.

The second of these arguments depends upon Mr Orkopoulos, in his capacity as a member of the Legislative Assembly, being a "person in the service of the Crown" within the meaning of s 8(1).

The Vicarious Liability Act was enacted to give effect to recommendations of the Law Reform Commission (NSW) in its Report on Proceedings By and Against the Crown (LRC 24). In the late nineteenth and early twentieth century, the scope of vicarious liability did not include liability for acts performed by a Crown servant in the exercise of an independent duty or discretion cast upon that servant by statute or by the common law. That was because in those circumstances the servant was exercising an independent responsibility or discretion and the Crown was not acting through him: per Dixon J in Field v Nott [1939] HCA 41; 62 CLR 660 at 675-676. See also Tobin v The Queen (1864) 16 CB (NS) 310; 143 ER 1148; Enever v The King [1906] HCA 3; 3 CLR 969; Attorney-General for NSW v Perpetual Trustee Co (Ltd) [1952] HCA 2; 85 CLR 237 at 250-251. The informing theory, now discredited, for that limitation upon the Crown's liability was that vicarious liability depended on the master having expressly or impliedly authorised the servant's tort: C Sappideen, P Vines (eds) Fleming's Law of Torts, 10th ed (2011) LBC at 447. The application of that limitation was removed in the United Kingdom by s 2(3) of the Crown Proceedings Act 1947 (UK). That provision subjected the Crown to vicarious liability for torts committed by an "officer of the Crown" while performing functions conferred or imposed "either by any rule of the common law or by statute" as if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Crown.

The Law Reform Commission recommended legislation to provide for liability of the State in respect of servants of the State, and persons in the service of the State, who commit a tort in the performance or purported performance of a function conferred or imposed by law, if the tort is committed in the course of the service of that person. The Vicarious Liability Act gave effect to that recommendation: New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 17 March 1983, 4765 (Mr Walker: "The Government has decided that the State should accept liability for the wrongful acts of all persons in the service of the State in addition to those employees who fall within the strict master and servant relationship").

The policy which that Report recommended be given effect to was that the State should be liable for torts of its "officers" irrespective of whether the relevant functions of those officers were conferred or imposed by the authority of the executive government, the Parliament or the common law: para 13.7. A possible objection to the implementation of that policy which the Report identified was that if implemented it might subject the State to liability for the conduct of officers which had no real connection with the performance by them of their office: para 13.9(b). In considering that possible objection, the Report notes (at para 13.11):

"The liability which we consider that the State should have is akin to the liability which a master has in respect of his servant. He is liable only for the conduct of the servant which is in "the course of employment". The concept of "course of employment", no matter how it defies reduction to a satisfactory comprehensive formula, is well understood and it is an effective barrier against unreasonable burdens being thrust upon the master."

The Report then addressed whether the recommended liability should be confined to the case where the tortfeasor holds an "office". It concluded that liability should apply to torts committed by a servant in the performance or purported performance of an independent function, irrespective of whether the master was the State, an instrument of the State, or a private employer (para 13.27). That recommendation resulted in the enactment of s 7 of the Vicarious Liability Act (which took a different form to cl 4 of the draft Bill which was an appendix to the Report).

Noting that its recommendation in respect of the liability of a master for torts committed by a servant in the performance of a function conferred or imposed by law stemmed from its recommendation that the State should be liable for such torts committed by its officers, the Law Reform Commission observed that: "... there are officers of the State between the State and whom the relationship of master and servant does not exist" (para 13.30). It gave as an example, the members of the Privacy Committee established by the Privacy Committee Act 1975. A question then arose as to what the liability of the State should be in respect of the torts of those officers and how they should be defined. The Commission rejected three possible tests for identifying who are "officers of the State" in the sense in which it used the term. Those tests were whether the officer performed a function of government, whether the office held was one which is "public" and whether the officer was appointed to the office by the State (para 13.31). The first test was rejected because the concept of a function of government was one of variable and uncertain content; the second was rejected because there was no fixed test for what was a "public" office; and the third was rejected because not all appointments of persons to positions in which they may be said to be officers of the State were "in any sense appropriate to attract liability of the State in respect of their torts" (paras 13.32, 13.33 and 13.34).

The Commission concluded (at para 13.35):

"We consider that the most satisfactory description of an officer of the State, where that person is not a servant of the State, is that notwithstanding that the relationship between him and the State is not that of servant and master, he is "in the service" of the State. For example, the connotation, if any, in which a member of the police force is a servant of the State, may be far from being clear: but there is no doubt that he is "in the service" of the State. Again, there are holders of many statutory officer [sic] who clearly are "in the service" of the State - albeit that they have only statutory duties to perform and, during their term of office, enjoy statutory independence." (emphasis added)

It is necessary, then, to consider the terms of s 8(1) of the Vicarious Liability Act. "Crown" is defined in s 5(1) as the "Crown in right of New South Wales". In constitutional theory, that expression is used in different senses and it is necessary to consider the sense in which it is used in s 8(1). It sometimes describes a body politic, in this case New South Wales: Sue v Hill at [84], [90]; Bank of NSW v The Commonwealth [1948] HCA 7; 76 CLR 1 at 363; Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; 174 CLR 219 at 229; Harrison Moore, "The Crown as Corporation" (1904) 20 Law Quarterly Review 351, 358-359, 362. It may also refer to the "executive as distinct from the legislative branch of government, represented by the Ministry and the administrative bureaucracy which attends to its business": Sue v Hill at [87]; McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55; 221 CLR 646 at [22]; Bradto Pty Ltd v State of Victoria [2006] VSCA 89; 15 VR 65 at [58]-[59]; H V Evatt, The Royal Prerogative, (1987) LBC at 63.

The expression "person in the service of the Crown" is not defined other than negatively as not including "a servant of the Crown". The ordinary meanings of "service" include the performance of the duties of a servant; work undertaken according to the instructions of an individual or organisation; a duty undertaken for a superior; and employment by the Crown or State in an official capacity: The New Shorter Oxford English Dictionary (1993).

The expressions "person in the service of the Crown" and "a servant of the Crown" are not used in the Vicarious Liability Act to identify members of the executive government as persons or entities not to be bound by a statute regulating the conduct or rights of individuals. If that were the position, it would provide a basis for construing the references to the Crown as being to the executive branch of government: The Commonwealth of Australia v The State of Western Australia [1999] HCA 5; 196 CLR 392 at [33]; Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [18]; McNamara v Consumer Trader and Tenancy Tribunal at [22].

Public servants (now appointed pursuant to the Public Sector Employment and Management Act 2002) are servants of the State. They are also members of the executive branch of government. Whilst they are able to be described as servants in the executive branch of government and also as being in the service of the executive, they are more correctly described as servants of the body politic, being the State. That "Crown" is used in that sense in s 8(1) reflects the sense in which it is used in LRC 24 (see para 13.4).

Nonetheless, it remains the position that persons and entities within the executive branch of government will answer one or other of those descriptions. Whether they fall within the former, will depend on whether they satisfy the common law rules used to identify those in a master and servant relationship: see Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 226 CLR 161.

The meaning of the expression "in the service of the Crown" in the Vicarious Liability Act has not been the subject of consideration by this Court. However, the expression "employed in the service of the Crown" in s 4(1)(e) of the Government and Related Employees Appeal Tribunal Act 1980 (the GREAT Act) has been considered by this Court. In that expression the word "employed" is used in the sense 'engaged in' the service of the Crown, and is used to describe the range of persons answering that description irrespective of the particular relationship which exists between them and the Crown: Holly v Director of Public Works (1988) 14 NSWLR 140 at 147 per Mahoney JA (Kirby P and Samuels JA agreeing).

The issue in Holly v Director of Public Works concerned the meaning to be given to the word "employed" as used in two definitions in the GREAT Act. The outcome of that issue determined whether in the circumstances there was a right of appeal to the Tribunal. Relevantly for present purposes, in addressing that question it was necessary for the Court to consider the ways in which persons might act "in the service of the Crown in New South Wales" (at 144). Mahoney JA identified three broad categories of persons who would answer that description (at 146-147). They were persons acting in the service of the Crown, directly; persons acting in the service of the Crown by acting for bodies which, though separate entities, "represent the Crown" in the sense in which that term is used in constitutional law (see eg Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; 119 CLR 334); and persons acting in the service of the Crown in the sense that they perform functions of government, but do so as employees of corporations which do not represent the Crown.

A person may act in the service of the Crown directly because he or she is in a master and servant relationship to the Crown or because he or she has been appointed to an office in which they act in that way. A commonly cited example of the latter is a member of the police force: Holly v Director of Public Works at 147; LRC 24 at para 13.16; who, whether or not in a relationship of master and servant, is required to discharge important functions of government, namely the administration of justice, the preservation of order and the prevention of crime: Coomber v Justices of Berks (1883) 9 App Cas 61 at 67; Attorney-General for NSW v Perpetual Trustee Co (Ltd) (1955) 92 CLR 113 at 120-121; Sydney City Council v Reid (1994) 34 NSWLR 506 at 514.

In Mounsey v Findlay (1993) 32 NSWLR 1, Clarke JA (Priestley and Cripps JJA agreeing), held that employees of the Illawarra Health Service were "in the service of the Crown" within the meaning of s 4(1)(e) of the GREAT Act. That Health Service did not "represent the Crown" (at 6). Nonetheless, it remained necessary to consider whether an employee of that Service was "in the service of the Crown". The factors said to be relevant when answering that question included whether the employees or the Service, as their employer, were directly or indirectly subject to ministerial control; the nature of the functions which the employees were engaged in and whether they were functions, or involved the provision of services, of the kind traditionally undertaken by government; and whether their conditions of employment were regulated or determined by a servant or agent of the Crown (at 7-9).

In Sydney City Council v Reid, this Court held that an employee of a local government authority was not "in the service of the Crown". The employee, relying on the decision in Mounsey, stressed the presence of ministerial control over the functions of local government authorities and that those functions were close to the central or traditional functions of government. Kirby P (Meagher and Powell JJA agreeing) distinguished that decision for considerations which included: local government authorities are and should be independent of the executive government (a position reflected in s 51 of the Constitution Act); the nature and extent of ministerial control over local government employees; and that local government authorities were largely independent corporations accountable not to the Crown but to the people who elected them (at 519-520). See also per Meagher JA (at 521) stressing that the councillors were elected, not appointed by the Crown and subject to minimal interference in their activities. Kirby P considered it more appropriate to characterise those employees as being "in the service of local government authorities" and not "in the service of the Crown" (at 520).

It is necessary then to consider the position of a member of the Legislative Assembly in relation to the Crown, understood as referring to the body politic which is the State of New South Wales.

New South Wales has a responsible and representative system of government with a legislature comprising three parts. They are the Queen, the Legislative Assembly and the Legislative Council: s 3 of the Constitution Act. Collectively those parts form the Legislature, making laws for the peace, welfare and good government of the State: s 5 of the Constitution Act. However, they remain distinct organs within the Constitution with their own functions, powers and privileges: Egan v Willis [1998] HCA 71; 195 CLR 424 at [31]-[33]; Egan v Willis and Cahill (1996) 40 NSWLR 650 at 664-665: and, in relation to the constituent parts of the Parliament of the United Kingdom, Erskine May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 16th ed (1957) 8. In addition to its legislative functions, each House has a parliamentary function of reviewing the conduct of the executive government which ultimately is responsible to the Parliament. That function has been described as including "to question and criticise government on behalf of the people" and "to secure accountability of government activity": Egan v Willis at [42], [45]; Egan v Willis and Cahill at 665, 677, 692-693; Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563 at [2], [137]. The powers of each of the Houses include those that are reasonably necessary for performance of these functions.

Members of each House are popularly elected, although the methods of election and terms of office for each House are different. A member of the Legislative Assembly is elected by and to represent an electoral district within the State: s 26 of the Constitution Act; whereas members of the Legislative Council are elected by and to represent the State: s 22A and the Sixth Schedule to the Constitution Act. Those elected representatives, as members of parliament, and some also as ministers of State, exercise legislative and executive powers as representatives of the people. In the exercise of those powers they are accountable to the people for what they do and have a responsibility to take account of the view of the people on whose behalf they act: Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; 177 CLR 106 at 137-138; Egan v Chadwick at [131]-[133].

The Constitution Act contains provisions which disqualify persons from being elected or from sitting or voting in either House. Those disqualification grounds include holding a contract for or on account of the public service (s 13) and holding an office of profit under the Crown (s 13B). The principal purpose of these provisions is to eliminate or reduce the influence of executive government over the Parliament so as to secure its independence from the executive: see, in relation to s 44(iv) of the Commonwealth Constitution, Re Webster [1975] HCA 22; 132 CLR 270 at 278-279; and Sykes v Cleary [1992] HCA 60; 176 CLR 77 at 95-97.

The Crown does not have power to remove a member of either House. Section 33 of the Constitution Act permits a member of the Legislative Assembly to resign. A member may also become disqualified from sitting and voting and his or her seat become vacant, for reasons which include a failure to attend for a 'session' of Parliament (s 13A). This Court in Armstrong v Budd (1969) 89 WN (NSW) (Part 2) 241 held that under the common law, each House also has the power to expel a member for reasonable cause.

The general duty of a member of the Legislative Assembly has been described as being "to serve and, in serving, to act with fidelity and with a single-mindedness for the welfare of the community": per Isaacs and Rich JJ in The King v Boston [1923] HCA 59; 33 CLR 386 at 400. That service involves a duty to attend and vote and includes participation in the constitutional and parliamentary functions described above. From the member's perspective those functions were described by Isaacs and Rich JJ in The King v Boston (at 401) as "moulding the laws to meet the necessities of the people, and the function of vigilantly controlling and faithfully guarding the public finances"; and by Isaacs J in Horne v Barber [1920] HCA 33; 27 CLR 494 at 500 as "watching on behalf of the general community the conduct of the Executive, of criticising it, and, if necessary, of calling it to account in the constitutional way by censure from his place in parliament". Each of those functions is required to be performed by a judgment and conscience "uninfluenced, as far as possible, by other considerations, and least of all by those of a pecuniary nature": per Lord Lyndhurst in Egerton v Brownlow (1853) 4 HLC 1 at 161; 10 ER 359 at 423 cited in Wilkinson v Osborne [1915] HCA 92; 21 CLR 89 at 94, 98; and in Horne v Barber at 499.

The significance of the duty of holding the executive government to account was emphasised by Isaacs J in Horne v Barber at 500 (in a passage repeated by Isaacs and Rich JJ in The King v Boston at 401-402):

"That is the whole essence of responsible government, which is the keystone of our political system, and is the main constitutional safeguard the community possesses. The effective discharge of that duty is necessarily left to the member's conscience and the judgment of his electors, but the law will not sanction or support the creation of any position of a member of Parliament where his own personal interest may lead him to act prejudicially to the public interest by weakening ... his sense of obligation of due watchfulness, criticism, and censure of the Administration."

These duties were described in Horne v Barber (at 500) as "inseparable from the position" of a member of Parliament and, in The King v Boston (at 401), as "inseparably attached" to the position to which the member is elected.

Having referred to the members as "representatives of the people", Isaacs and Rich JJ continued (The King v Boston at 402):

"A member of Parliament is, therefore, in the highest sense, a servant of the State; his duties are those appertaining to the position he fills, a position of no transient or temporary existence, a position forming a recognised place in the constitutional machinery of government. Why, then, does he not hold an 'office'?" (Italics in original)

Their Honours concluded that a member of the Legislative Assembly, having functions and duties to be discharged in the interests of the public, and as a representative of the people, was a "public officer". In that sense, described by their Honours as the "highest" sense, a member of Parliament is a "servant of the State". The passage extracted above also makes clear that the duties of the member "appertain" to the elected position as member of the Legislative Assembly, which in turn is a distinct organ within the constitutional machinery of government.

Notwithstanding that general description of the member's position as holding an office requiring the discharge of functions and duties in the public interest, it is not suggested that a member of the Legislative Assembly is a servant of the Crown in the sense that there exists a relationship of master and servant. The issue is whether the member is "a person in the service of the Crown" as that expression is used in s 8(1). In my view, for the following reasons, which emerge from the discussion above, a member of the Legislative Assembly in discharging his or her legislative and parliamentary duties is not "a person in the service of the Crown".

A member of the Legislative Assembly is not appointed to a position or office by or at the direction of the State acting either by the executive or by legislation. The member is elected by the people and ultimately is accountable to the people who the member represents. The office to which the member is elected is that of member of the Legislative Assembly. That is properly described as a "public office". The member's duties are "inseparably attached" to that office. The member cannot be removed from that office by the State acting by the executive. Nor is the member accountable to the State acting by the executive in the discharge of any legislative or parliamentary function. Nor can he or she be controlled, directed or interfered with by the State in the discharge of those functions. Indeed the principle of responsible government requires that the member be and remain, as far as possible, independent of improper influence of the executive government so as to be able to watch and call it to account if necessary. That this should be so was described by Isaacs and Rich JJ as being "the keystone of our political system".

The functions which the member performs are functions attaching to the office to which he or she is elected and are not functions, and do not involve the provision of services, which could be undertaken by the State acting by the executive. The functions which a member of the Legislative Assembly performs in voting and watching the conduct of the executive are functions of the Legislative Assembly as distinct from the legislature of which it forms a part. Although legislation, when enacted, may be described as legislation of the State, the functions of the constituent parts which collectively form the legislature remain distinct and separate and are not functions of the body politic or undertaken in any sense on its behalf: see, in relation to the position of the Commonwealth, Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2007] HCA 38; 232 CLR 1 at [99].

Addressing the question more broadly, the member in no sense acts as an agent or instrument of the State in discharging his legislative and parliamentary functions. Nor has he been appointed to an office in any sense by or at the request of the State. His position in that office is quite unlike that of a member of the police force or of a statutory Committee. None of the three tests considered and rejected by the Law Reform Commission would identify a member of the Parliament as an "officer of the State" for whose torts the State should be liable. Nor do any of the considerations addressed in Holly, Mounsey, or Sydney City Council v Reid suggest that such a member is "in the service of the Crown".

It follows from this conclusion that the second way in which the appellant argues that the State is liable for Mr Orkopoulos' conduct was correctly rejected by the primary judge.

The third way that argument is put characterizes Mr Orkopoulos' conduct in supervising or controlling the appellant as undertaken on behalf of the Speaker of the Legislative Assembly, so that in doing so the member was acting "in the service of the Crown".

That is said to follow from the primary judge's findings and conclusions at [204], [224], [226] and [240]. The findings relevantly are that the appellant in her role as an electorate officer worked under Mr Orkopoulos' "direct supervision and management" [204], [224]. The primary judge also concluded that by the arrangements made between the Speaker and Mr Orkopoulos, the appellant's services were provided on the basis that the member would act with reasonable care to provide her with a safe place of work. That being the position, the primary judge described the Speaker as having "delegated" that duty to Mr Orkopoulos and the latter as acting as the Speaker's "representative" in that respect: [224], [226], [240].

It does not follow that in supervising or controlling the appellant, Mr Orkopoulos was doing so as agent for or on behalf of the Speaker. The clerk of the Legislative Assembly is responsible to the Speaker for the provision of appropriate professional support for the effective functioning of the Legislative Assembly and its individual members: [211]. The stated objective of the appellant's role as an electorate officer was to support the member to fulfil his parliamentary and constituency responsibilities. Her key "accountabilities" included providing administrative support to the member.

In the appellant performing that role and in Mr Orkopoulos receiving that support it was necessary for there to be communication, instruction, supervision and, within the framework of the role undertaken, control of the activities performed. However, to the extent that the member was engaged in these functions he was not acting on behalf of the appellant's employer in any respect. He was receiving services made available to him by the Speaker (acting on behalf of the executive government) on a basis which required that he give instruction and undertake some supervision. He was not thereby acting in the service of the Crown. The primary judge was correct to conclude that the appellant had not established, by reason of these activities, that Mr Orkopoulos' misconduct was committed by a person "in the service of the Crown": [257].

Costs at first instance

I agree with Macfarlan JA that the primary judge's order limiting Mr Orkopoulos' liability for costs to those relating to a half-day hearing did not, as an exercise of discretion, involve error.

Proposed orders

The orders which I would propose be made are as follows:

(1) The first respondent's (State's) motion to review the decision of Barrett JA be dismissed.

(2) The appellant's application for leave to appeal be dismissed.

(3) The first respondent pay the appellant's costs of that motion and of the appellant's application for leave to appeal.

(4) Appeal against the second respondent (Mr Orkopoulos) be dismissed.

(5) Appeal against the first respondent (the State) be dismissed.

(6) The appellant pay the first respondent's costs of the appeal.

**********

Amendments

02 November 2012 - Inadvertent omission of minor changes

Amended paragraphs: [184], [190], [193], [195], [203] [205] and [221]

Decision last updated: 02 November 2012

Medium Neutral Citation:	Sneddon v State of New South Wales [2012] NSWCA 351
Hearing dates:	18 July 2012
Decision date:	01 November 2012
Before:	Basten JA at [2] Macfarlan JA at [118] Meagher JA at [179]
Decision:	(1) Dismiss the motion of the first respondent (the State of New South Wales) to review the decision of Barrett JA. (2) Order that the first respondent pay the appellant's costs of the motion to review the decision of Barrett JA. (3) Dismiss the appellant's application for leave to appeal. (4) Order that the first respondent pay the appellant's costs of the application for leave to appeal. (5) With respect to the proceedings against the first respondent: (a) Allow the appeal in part and set aside order 3 entered on 2 June 2011. (b) In place of the order referred to in (a), give judgment for the plaintiff against the second defendant (the State of New South Wales) in the sum of $438,613.75, to take effect from 2 June 2011. (c) Set aside order 2 entered on 3 August 2011. (d) In place of the order referred to in (c), order that the second defendant pay the plaintiff's costs of the trial. (e) Order that the first respondent pay 50 per cent of the appellant's costs of the appeal. (6) With respect to the proceedings against the second respondent (Milton Orkopoulos), dismiss the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - leave to appeal - judgment against one joint tortfeasor for over $100,000 - appeal against dismissal of claim against other joint tortfeasor - first tortfeasor satisfied judgment - whether leave to appeal required - whether matter at issue of the value of $100,000 - whether value of matter determined at time that notice of appeal is filed - Supreme Court Act 1970 (NSW), s 101 CONSTITUTIONAL LAW - Constitution of New South Wales - functions and duties of Member of Legislative Assembly - whether Member of Legislative Assembly is "a person in the service of the Crown" - Constitution Act 1902 (NSW); Law Reform (Vicarious Liability) Act 1983 (NSW), s 8 DAMAGES - assessment of damages - severity of loss as proportion of most extreme case - uncertainty as to the prospects of full recovery - whether necessary to assess likelihood of hypothetical future event occurring - whether error of principle - whether assessment wholly unreasonable - Civil Liability Act 2002 (NSW), s 16 JUDGMENTS AND ORDERS - res judicata and issue estoppel - default judgment - claim brought against third defendant for alternative and inconsistent causes of action - first and second defendants vicariously liable for conduct of third defendant - default judgment entered against third defendant did not distinguish between causes of action - whether res judicata or issue estoppel created in relation to either or both causes of action - relevance of pleadings - whether default judgment can be entered in relation to only one of alternative causes of action - whether default judgment necessarily and precisely determined the cause of action for which the third defendant was liable TORT - vicarious liability - vicarious liability of the State for conduct of persons in service of the Crown - tortious conduct of Member of Parliament in relation to electorate officer - whether Member of Parliament in the service of the Crown - whether conduct in Member's capacity as a Member of Parliament - Law Reform (Vicarious Liability) Act 1983 (NSW), s 8 TORT - vicarious liability - vicarious liability of the State for conduct of persons in service of the Crown - tortious conduct of Member of Parliament in relation to electorate officer - whether Speaker of Legislative Assembly part of executive government - whether Member agent or delegate of Speaker - Law Reform (Vicarious Liability) Act 1983 (NSW), s 8 WORDS & PHRASES - "involves a matter at issue amounting to or of the value of" - Supreme Court Act 1970 (NSW), s 101 WORDS & PHRASES - "the Crown" - "person in the service of the Crown" - Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
Legislation Cited:	Civil Liability Act 2002 ss 3B, 3C, 16, 21 Claims Against the Colonial Government Act 1876 (39 Vict No 38) Claims Against the Government and Crown Suits Act 1912 (NSW) Commonwealth of Australia Constitution Act (The Constitution) (Cth) s 75(v) Constitution Act 1902 (NSW) ss 26-29, 31, 39, 47, Pt 2 Crown Proceedings Act 1947 (UK) Crown Proceedings Act 1988 (NSW) ss 3, 4, 5 Director of Public Prosecutions Act 1986 (NSW) s 7 District Court Act 1973 (NSW) s 127 Government and Crown Suits Act 1912 (NSW) Government and Related Employees Appeal Tribunal Act 1980 (NSW) s 4 Interpretation Act 1987 (NSW) s 13A Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5 Law Reform (Vicarious Liability) Act 1983 (NSW) ss 5, 7, 8, 10 Police Act 1863 (Qld) s 6 Privacy Committee Act 1975 (NSW) Public Sector Employment and Management Act 2002 (NSW) Slave Trade Act 1824 (UK) s 43 Supreme Court Act 1970 (NSW) s 101 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 (NSW), Pt 5, Div 3 Workers Compensation Regulation 2010 (NSW), Sch 7
Cases Cited:	Armstrong v Budd (1969) 89 WN (NSW) (Part 2) 241 Attorney-General for NSW v Perpetual Trustee Co (Ltd) [1952] HCA 2; 85 CLR 237 Attorney-General for NSW v Perpetual Trustee Co (Ltd) [1955] AC 457; 92 CLR 113 Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; 177 CLR 106 Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2007] HCA 38; 232 CLR 1 Bank of NSW v The commonwealth [1948] HCA 7; 76 CLR 1 Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 Blair v Curran [1939] HCA 23; 62 CLR 464 Bradto Pty Ltd v State of Victoria [2006] VSCA 89; 15 VR 65 Bropho v Western Australia [1990] HCA 24; 171 CLR 1 Clifton v Lewis [2012] NSWCA 229 Commonwealth v Western Australia [1999] HCA 5; 196 CLR 392 Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767 Coomber v Justices of Berks (1883) 9 App Cas 61 Damberg v Damberg [2001] NSWCA 87; 52 NSWLR 492 Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; 174 CLR 219 Downs v Williams [1971] HCA 45; 126 CLR 61 Egan v Willis (1996) 40 NSWLR 650 Egan v Willis [1998] HCA 71; 195 CLR 424 Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563 Egerton v Brownlow (1853) 4 HLC 1; 10 ER 359 Enever v The King [1906] HCA 3; 3 CLR 969 Equuscorp Pty Ltd v Haxton [2012] HCA 7; 86 ALJR 296 Farnell v Bowman (1887) 12 App Cas 643 Field v Nott [1939] HCA 41; 62 CLR 660 Foley v Ryder [1906] HCA 61; 4 CLR 422 Gillard v Hunter Wine Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450 Hansen v Slattery Transport (NSW) Pty Ltd [2011] NSWCA 450 Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 Holly v Director of Public Works (1998) 14 NSWLR 140 Horne v Barber [1920] HCA 33; 27 CLR 494 Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; 119 CLR 334 In re M [1994] 1 AC 377 James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53 Jensen v Ray [2011] NSWCA 247 Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Mason v Demasi [2012] NSWCA 210 McConnell v Lombard and Ulster Banking Ltd [1982] NI 203 McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; 165 ALR 409 McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55; 221 CLR 646 Mounsey v Findlay (1993) 32 NSWLR 1 Municipal Council of Sydney v Commonwealth [1904] HCA 50; 1 CLR 208 Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 472 New Brunswick Railway Co v British & French Trust Corporation Ltd [1939] AC 1 Oertel v Crocker [1947] HCA 40; 75 CLR 261 Pegela Pty Ltd v Oates [2010] NSWCA 186 The King v Boston [1923] HCA 59; 33 CLR 386 The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Fotball League (Inc) [1979] HCA 6; 143 CLR 190 R v Stoddart [1987] CanLll 168; 37 CCC (3d) 351 (Ontario Court of Appeal) R (Quark Fishing Ltd) v Secretary of State for Foreign and commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529 Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 Re Webster [1975] HCA 22; 132 CLR 270 Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] 1 AC 453 Rudolf Wolff & Co v Canada [1990] I SCR 695; 69 DLR (4th) 392 Ryder v Foley [1906] HCA 61; 4 CLR 422 Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508 Sneddon v State of New South Wales [2012] NSWCA 7 Sue v Hill [1999] HCA 30; 199 CLR 462 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 226 CLR 161 Sydney City Council v Reid (1994) 34 NSWLR 506 Sydney Harbour Trust Commissioner v Ryan [1911] HCA 64; 13 CLR 358 Sykes v Cleary [1992] HCA 60; 176 CLR 77 Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 Termijtelen v Van Arkel [1974] 1 NSWLR 525 The Commonwealth v Mewett [1997] HCA 29; 191 CLR 471 The King v Boston [1923] HCA 59; 33 CLR 386 Tobin v The Queen (1864) 16 CB (NS) 310; 143 ER 1148 Town Investments Ltd v Department of the Environment [1978] AC 359 Troughton v McIntosh (1896) 17 LR(NSW) 334 United Australia Ltd v Barclays Bank Ltd [1941] AC 1 Wilkinson v Osborne [1915] HCA 92; 21 CLR 89 Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149 Zavodnyik v Alex Constructions Pty Ltd [2005] NSWCA 438; 67 NSWLR 457
Texts Cited:	4 Coke's Institutes of the Lawes of England, 49 Elliott M, Beatson, Matthews, and Elliott's Administrative Law (4th ed, 2011, OUP) at [16.1.3] Evatt, HV, The Royal Prerogative, (1987) LBC Finn, Paul "Claims against the Government Legislation" in Finn (ed) Essays on Law and Government, The Citizen and the State in the Courts (1996) Vol 2, LBC Professor Finnis "Common Law Constraints: Whose Common Good Counts?" (2008, University of Oxford Faculty of Law Legal Studies Research Paper Series) at pars 15-18 Law Reform Commission (NSW) 1975 Report on Proceedings By and Against the Crown (LRC 24), 13.2, 13.4, 13.7, 13.34, 13.35 May, Erskine, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 16th ed (1957) Moore, Harrison, "The Crown as Corporation" (1904) 20 Law Quarterly Review 351 New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 17 March 1983, 4765 Peter W Hogg, Patrick J Monahan and Wade K Wright, Liability of the Crown, 4th ed (2011) Carswell Sappideen, C and Vines, P (eds) Fleming's Law of Torts, 10th ed (2011) LBC Spencer, Bower & Handley, Res Judicata, 4th ed (2009) LexisNexis The New Shorter Oxford English Dictionary (1993) Twomey A, The Chameleon Crown (Federation Press, 2006) p 263-267 Twomey A, The Constitution of New South Wales (Federation Press, 2004) at 26-30 and 387 Twomey A, "A Responsible Government and the Divisibility of the Crown" [2008] PL 742 at 757 Wade and Forsyth, Administrative Law (10th ed, 2009 OUP) pp 40 (fn 6), 694, 695 Winterton G, Parliament, The Executive and the Governor-General (Melb UP 1983), Ch 4
Category:	Principal judgment
Parties:	Gillian Margaret Sneddon (Appellant) State of New South Wales (First Respondent) Milton Orkopoulos (Second Respondent)
Representation:	Counsel: R J de Meyrick (Appellant) G C Lindsay SC/G J Sarginson (First Respondent) Solicitors: T D Kelly & Co (Appellant) Crown Solicitor (First Respondent)
File Number(s):	CA 2009/297790
Decision under appeal	Citation: [2011] NSWSC 508; [2011] NSWSC 842 Before: Price J File Number(s): SC 2009/297790