TransAdelaide v Evans - [2005] SASC 175

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
TRANSADELAIDE v EVANS
Judgment of The Honourable Chief Justice Doyle
18 May 2005
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
An appeal against a preliminary finding in the District Court - in the District Court the respondent is claiming damages from the appellant for liability in negligence - the appellant, a statutory authority, claims that s 54(1) of the Workers Rehabilitation and Compensation Act 1986 precludes the common law action - issues for this appeal - consideration of 'employer' for the purposes of the Workers Compensation and Rehabilitation Act 1986 and application to the Crown and its various statutory authorities and instrumentalities - discussion of the concepts of indivisibility and divisibility of the Crown - discussion of the individual corporate status and identity of statutory authorities and Crown instrumentalities - appeal dismissed.
TransAdelaide (Corporate Structure) Act 1998 (SA) ss 4, 5; Public Corporations Act 1993 (SA); Workers Rehabilitation and Compensation Act 1986 (SA) ss 54(1), 51, 52, 58B, 61; Police Act 1998 (SA) ss 21, 4; Police Regulations 1999 (SA); Public Sector Management Act 1995 (SA); Crown Proceedings Act 1992 (SA) s 4(1), referred to.
Sutherland v Federal Airports Corporation (1998) 72 SASR 356; Enever v The King (1906) 3 CLR 969; Attorney-General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237; Attorney-General (NSW) v Perpetual Trustee Co Ltd (1955) 92 CLR 113; Sue v Hill (1999) 199 CLR 462; Bropho v Western Australia (1990) 171 CLR 1; Commonwealth v Western Australia (1999) 196 CLR 392; Re Residential Tenancies Tribunal (NSW) Ex Parte Defence Housing Authority (1997) 190 CLR 410, considered.

TRANSADELAIDE v EVANS
[2005] SASC 175
Civil

DOYLE CJ: This is an appeal by leave against a decision by a Judge of the District Court on a question argued as a preliminary point in an action in the District Court.
Mr Evans claims damages for personal injuries suffered by him while on premises occupied by TransAdelaide. He claims that the injury he suffered is due to the negligence of TransAdelaide in its capacity as occupier of the premises.
TransAdelaide is, by s 4 and s 5 of the TransAdelaide (Corporate Structure) Act 1998 (SA) a body corporate and a statutory corporation to which the provisions of the Public Corporations Act 1993 (SA) apply. Although disputed at an earlier stage, on appeal it was accepted that TransAdelaide was the occupier of the premises in question.
TransAdelaide denied liability. In particular it pleaded that by virtue of s 54(1) of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the WRC Act”) no liability attached to it. That plea is the basis of the preliminary point that the Judge determined.
After hearing submissions the Judge ruled that s 54(1) of the WRC Act did not protect TransAdelaide. The ruling was drawn up as an interlocutory judgment. Although the point was not raised on appeal, I doubt whether it was correct to do so. It is simply a ruling. The Judge was not asked to, and did not, for example, strike out para 6A of the Defence, where the point is pleaded. However, the matter has been fully argued before me, and on the basis that that further step is a mere formality, I am prepared to decide the appeal. As will appear, this is not the only procedural deficiency.
I agree with the Judge’s decision that s 54(1) of the WRC Act does not provide, in the circumstances, that no liability attaches to TransAdelaide. Paragraph 6A of the Defence should be struck out. As will appear, it is neither necessary nor desirable to decide some of the other issues decided by the Judge.
Facts
Certain facts were agreed by the parties for the purposes of the preliminary point. In particular, the parties agreed that Mr Evans is a constable of police appointed by the Commissioner of Police under s 21 of the Police Act 1998 (SA). The parties also agreed that Mr Evans has claimed and has received payments of compensation under the WRC Act in respect of the injury, the subject of the proceedings. The legal basis for the payment was not explained.
The parties agreed that those payments were made by South Australia Police. By s 4 of the Police Act 1998 (SA) South Australia Police is said to consist of the Commissioner, the Deputy Commissioner, the Assistant Commissioners and the other officers and members appointed by the Commissioner. As I understand the Police Act 1998 (SA), South Australia Police is simply a convenient term to refer collectively to those persons who are appointed under the Police Act 1998 (SA) for the purposes specified by s 5 of the Act, and to exercise the powers and functions conferred by that Act and other Acts applying to members of South Australia Police. It may not be correct to say that the payments of workers compensation were made by South Australia Police, but for present purposes nothing turns on that point.
Apart from these few facts, the preliminary point appears to have been dealt with on the basis of a number of propositions (mainly of law, but perhaps sometimes also of fact) drawn from the provisions of the Police Act 1998 (SA), the Police Regulations 1999 (SA), the TransAdelaide (Corporate Structure) Act 1998 (SA), the Public Corporations Act 1993 (SA) and the Public Sector Management Act 1995 (SA). Because of the approach that I take to the resolution of this matter it is not necessary to go into these matters in detail. However, it seems to me that the preliminary point has proceeded on a slightly uncertain basis because the parties have not clearly identified the basis upon which it is to be decided. However, I am of the view that it is possible to dispose of the matter, despite these difficulties.
The preliminary point
The central provision is s 54(1) of the WRC Act. It provides:
54(1)Subject to subsection (2), no liability attaches to an employer in respect of a compensable disability arising from employment by that employer except –
(a) a liability under this Act;
…
Although it was not agreed, the parties have agreed the case on the basis that Mr Evans claims damages for an injury that is a compensable disability arising from his employment as a police constable.
For convenience here I also set out the relevant provisions of s 61 of the WRC Act, which are as follows:
61The Crown and certain agencies to be exempt employers
(1) Subjection to subsection (2), the Crown and any agency or instrumentality of the Crown shall be deemed to be registered as exempt employers.
(2) The Governor may, by proclamation, declare that an agency or instrumentality of the Crown is not to be regarded as an exempt employer, and in that event the agency or instrumentality shall not be regarded as an exempt employer.
There is no relevant proclamation.
The Judge’s decision
The Judge’s decision can be summarised in terms of the following propositions. Except for the sixth proposition, they reflect in substance the submissions put by TransAdelaide to the Judge and on appeal. They are as follows:
(1) For the purposes of s 54(1), and for the purposes of the WRC Act more generally, Mr Evans is a worker;
(2) For the purposes of s 54(1), the Commissioner of Police is Mr Evans’ employer;
(3) The Commissioner of Police is the Crown, or an agency or an instrumentality of the Crown, for the purposes of s 61(1), and is an exempt employer for the purposes of the WRC Act;
(4)    Accordingly, Mr Evans’ employer is the Crown: [24];
(5)    TransAdelaide is an instrumentality of the Crown;
(6)    Although the Crown is “one and indivisible”, the reasoning of the Full Court of the Supreme Court in Sutherland v Federal Airports Corporation (1998) 72 SASR 356 compelled the conclusion that for the purposes of s 54(1) the Crown is “divisible into separate entities, one of which is employer [the Commissioner] and the other a third party [TransAdelaide]”, and accordingly there was “… not a single ‘employer’ for the purposes of the Act, covering the employment of the plaintiff and the acts or defaults of the defendant”: at [23] and at [27]. In short, TransAdelaide and the Commissioner were not one and the same employer, that employer being the Crown.
Submissions on appeal
On appeal TransAdelaide supported the first five propositions.
It argued that proposition (6) was wrong. TransAdelaide submits that an instrumentality of the Crown is indistinguishable from the Crown. This being so, and the Crown being “one and indivisible”, the Crown is Mr Evans’ employer, and TransAdelaide, being an instrumentality of the Crown, is also the Crown. Accordingly, the action against TransAdelaide is an attempt to impose liability on the Crown in respect of a compensable disability arising from Mr Evans’ employment by the Crown.
On appeal Mr Evans accepts propositions (1), (2), (5) and (6). Mr Evans contests propositions (3) and (4), on the basis that although the Commissioner is his employer, the Commissioner is not the Crown, nor is the Crown his employer.
For the purpose of disposing of the appeal, I am prepared to assume that propositions (1) - (3), and (5) are correct. However, it should be noted that propositions (1) and (2) raise some significant issues. Decisions of the High Court in Enever v The King (1906) 3 CLR 969 and in Attorney-General (NSW) v Perpetual Trustee Co Limited (1952) 85 CLR 237, and the decision of the Privy Council in Attorney-General (NSW) v Perpetual Trustee Co Limited (1955) 92 CLR 113 have been understood to decide that a police constable is a public officer who is not an employee of the Crown. It may be, as some have argued, that those decisions are authority for narrower propositions related to the vicarious liability of the Crown for the acts of police constables, and the ability of the Crown to claim damages for the loss of the services of a police constable caused by the negligent act of another. It also may be that statutory and other changes have undermined the basis of those decisions. However, these are matters for consideration by the High Court, not by me. It might also be that there are indications in the WRC Act that a police constable is a worker for the purposes of the Act, but, once again, whether that conclusion is open having regard to the decisions referred to might be doubted. It is for those reasons in brief that I simply assume, for present purposes, that somehow or other propositions (1) and (2) can be made good. It is not necessary to do any more than that.
Conclusion
Even if propositions (1) – (3), and (5) are correct, s 54(1) does not apply to TransAdelaide so as to give it a defence.
A consideration of the WRC Act as a whole indicates that the reference to an “employer” in s 54(1) is to the person or entity with whom the worker has a contract of service, and at whose direction (ultimately) the worker performs work under the contract of service. To give a meaning to “employer” that would embrace the Crown (a term of uncertain scope) in all its forms or emanations would render certain key provisions of the WRC Act unworkable.
Section 51(1) is a central provision of the WRC Act. It requires a worker who suffers a compensable disability and who is employed to give notice of the disability to the employer: s 51(1)(a). The notice is deemed to have been given to an employer if given to the employer “at any place of business of the employer”, if “served by post on the employer” or if given to certain specified persons: s 51(4). If the submission by TransAdelaide is correct, it would follow that Mr Evans could have given notice of his claim to any agency or instrumentality of the Crown in right of the State of South Australia, or to any emanation of that Crown.
Section 52(4) requires a claim for compensation to be given to “the employer”. The same comment applies.
Section 58B imposes a duty on an employer to provide “suitable employment” for a worker who has been incapacitated but is able to return to work. On the basis of the argument advanced by TransAdelaide, were Mr Evans to invoke that section the onus would fall on the Crown (presumably) to demonstrate that there is no suitable employment available for Mr Evans at any emanation of the State Crown, not just in South Australia Police.
There may be other provisions that would not be workable if the submission for TransAdelaide were to be accepted. Whether that is so or not, a reference to these provisions satisfies me that when the WRC Act refers to an employer it refers, as I have already said, to the person or entity with whom the worker has a contract of service, and perhaps as well a person at whose direction (ultimately) the worker performs work.
On the Judge’s approach that person or entity is not the Crown. If Mr Evans is a worker, that person is either the Commissioner of Police or (perhaps) South Australia Police.
In my opinion this is the short answer to the submissions by TransAdelaide.
Applying the same reasoning, it follows that TransAdelaide is not, for the purposes of s 54(1) of the WRC Act, an employer in relation to Mr Evans. Even if Mr Evans is a worker for the purposes of the WRC Act, and even if it is the Crown who is his employer, and not the Commissioner or South Australia Police (a conclusion that would assist TransAdelaide’s argument), it remains the case that TransAdelaide is not Mr Evans’ employer for the purposes of s 54(1), and so is not protected by s 54(1). There is no contract between Mr Evans and TransAdelaide. That is another short answer to the submissions by TransAdelaide.
There is another answer.
To describe or to characterise TransAdelaide as the Crown is to do no more than indicate an answer to a question about TransAdelaide. The purpose of the question will depend upon the circumstances in which one asks whether it is the Crown. The purpose might be to decide whether TransAdelaide is, in more common terms, a component of the Government: see Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 at [87]; it might be to decide whether TransAdelaide is not bound by a particular statute because the statute “… is inapplicable to the activities to any of the employees of the myriad of governmental commercial and industrial instrumentalities covered by the shield of the Crown”: Bropho v Western Australia (1990) 171 CLR 1 at 19; it might be to decide whether TransAdelaide is entitled to those “rights, privileges or immunities identified with the royal prerogative” and with the Crown: see Commonwealth v Western Australia [1999] HCA 5; (1999) 196 CLR 392 at [106] Gummow J; it might be to decide whether TransAdelaide is an instrumentality or agency of the Crown for the purposes of the definition of “Crown” in s 4(1) of the Crown Proceedings Act 1992 (SA), and so able to be sued under the name “The State of South Australia” and in accordance with that Act; it might be to decide whether the activities of TransAdelaide render the Crown or the State liable in tort, or bind the Crown or State by contract: see Hogg and Monahan, Liability of the Crown (3^rd ed, 2000, Carswell).
There may be many reasons to enquire whether a person or entity or statutory corporation is the Crown. The question often arises. That is because in Australia there is a long history of statutory corporations being created to carry out governmental and commercial functions. When such a body is created, the question will often arise as to whether the law applies to it in the same manner as it does to the Crown. As Gummow J said in Re Residential Tenancies Tribunal (NSW) Ex Parte Defence Housing Authority (1997) 190 CLR 410 at 471-472:
Such corporations may bear statutory obligations akin to those of the Executive Government with respect to such matters as financial accountability to and dependence upon the legislature. This is manifested in the present case by the application of the provisions of the Audit Act to which I have referred. However, this financial accountability of the Authority does not mean that the Parliament in creating such a body necessarily imparted to it the preferences, immunities and exceptions, including that zone of immunity conferred by the Cigamatic doctrine, which are enjoyed by the Executive Government and denied to citizens and corporations in their dealings inter se. The contrary is the case (footnote omitted).
When the question is asked whether a statutory corporation is the Crown, the reason for asking the question needs to be borne in mind.
In the present case TransAdelaide asserts that it is the Crown, in the sense of being an agency of the Crown, or part of the Government. TransAdelaide wishes to argue that if that assertion is correct, it becomes the employer of Mr Evans, because Mr Evans is employed by the Crown. That argument involves, in my respectful opinion, a misconception about the significance of concluding that TransAdelaide is the Crown.
I am content to assume that TransAdelaide is part of the Government, that it is the Crown for the purposes of the Crown Proceedings Act 1992 (SA), that a whole range of legal rules or principles that apply to the Crown apply to TransAdelaide. But it remains the fact that TransAdelaide is a statutory corporation with its own separate identity. It may be the Crown, and can be described as the Crown, for a range of purposes. But to call it the Crown does not, as it were, dissolve its corporate status and identity. To do so does not, in some mystical way, cause TransAdelaide to merge into another entity called the Crown. As I said, it retains its separate identity as a statutory corporation.
The only persons that TransAdelaide employs are those with whom it has a contract of employment. Each such person is employed by TransAdelaide. Those persons also might be said to be employed by the Crown for the purposes of certain legal rules, and to be entitled to certain rights, benefits, privileges or immunities of the Crown, but that does not change the fact that their contract of employment is with TransAdelaide, and not with the Crown.
Putting TransAdelaide’s case at its highest, and assuming that Mr Evans is an employee of the Crown (and not of the Police Commissioner), TransAdelaide is not Mr Evans’ employer. There is no contractual relationship between TransAdelaide and Mr Evans. To designate TransAdelaide as the Crown, or to so characterise it, makes no difference. A statement that Mr Evans is employed by the Crown means no more than that his employer, whoever that may be, can for the purposes of certain legal propositions be designated or characterised as the Crown. It does not mean that every such entity that can be designated as the Crown becomes, by virtue of that designation, Mr Evans’ employer.
And so another answer to the submission by TransAdelaide is that although it may be the Crown, it is not in law the employer of Mr Evans, even if Mr Evans is an employee of the Crown. In Seddon N, “The Crown” (2000) 28 FLR 245 the author begins with the following proposition:
The ambiguity surrounding the concept of the Crown stems from the very many functions that it has been required to perform. One tends to forget that it is merely a type of hat, as Maitland and Lord Simon have observed, so bound up in the symbolism of that head gear has the word become.
In my opinion the submission advanced by TransAdelaide relies on the ambiguity surrounding the legal concept of the Crown.
The argument put in support of the appeal should be rejected on these two grounds.