Victorian WorkCover Authority v Roman Catholic Trust Corporation for the Diocese of Melbourne
[2013] VCC 71
•18 February 2013
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-10-02368
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF MELBOURNE | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22, 23 and 24 November 2011 and 14 December 2011 | |
DATE OF JUDGMENT: | 18 February 2013 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Roman Catholic Trust Corporation for the Diocese of Melbourne | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 71 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Whether defendant has a “legal liability to pay damages” – whether the defendant is an “occupier” – whether the application of the Building Act 1993, the Building Regulations 1994 and the Building Code of Australia give rise to a private right of action.
Legislation Cited: Accident Compensation Act 1985, s138; Building Act 1993, s3 (now repealed); Building Regulations 1994, Regulation 1.7, Part 10, and Part 11, including Divisions 1 and 2 (now repealed); Building Code of Australia; Roman Catholic Trusts Act 1907 (Vic); Accident Compensation (WorkCover Insurance) Act 1993, s7, 8 and 9; Roman Catholic Church Property Act 1911 (WA); Roman Catholic Church Trust Property Act 1936 (NSW); Church of England Act 1854; Anglican Church of Australia Act 1985; Anglican Church of Australia Constitution Act 1960; Anglican Trusts Corporation Act 1984; Presbyterian Trusts Act 1979; Uniting Church of Australia Act 1977.
Cases Cited: Victorian WorkCover Authority v Kenman Kandy Pty Ltd & Ors (2002) 6 VR 666; Esso Australia Ltd v Victorian WorkCover Authority & Anor (2000) 1 VR 246; Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520; DSG Pty Ltd v Victorian WorkCover Authority (2008) 20 VR 514; Archbishop of Perth v AA & Ors (1995) 18 ACSR 333; Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis & Anor (2007) 70 NSWLR 565; Trustees of the Roman Catholic Church for the Archdiocese of Sydney v TGP Architects & Planners Pty Ltd [2005] NSWSC 381; Victorian WorkCover Authority (VWA) v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Gardiner v State of Victoria [1999] 2 VR 461; O’Connor v SP Bray Ltd (1937) 56 CLR 464; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; Sutherland Shire Council v Heyman (1985) 157 CLR 424; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Jones v Bartlett (2000) 205 CLR 166; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; Central Goldfields Shire v Haley & Ors (2009) 24 VR 378.
Judgment: Judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Ruskin QC with Ms J M Forbes | Wisewould Mahony |
| For the Defendant | Mr P D Santamaria SC with Mr D Masel | TressCox Lawyers |
HIS HONOUR:
Introduction
1 Pursuant to s138 of the Accident Compensation Act 1985, as amended (“the Compensation Act”), the Victorian WorkCover Authority, which I will refer to as the plaintiff, seeks an indemnity from the Roman Catholic Trust Corporation for the Diocese of Melbourne, which I will refer to as the defendant, in respect of compensation paid to and on behalf of Maureen Lane (“the worker”) pursuant to the provisions of the Compensation Act.
2 There is no dispute that on 25 July 2003, the worker was employed as a primary school teacher at the Sacred Heart Primary School (“the school”) situated at Gipson Street, Diamond Creek.[1] Her employer at that time was The Reverend Father Grant O’Neill (“Father O’Neill”), who was the parish priest of the Parish of the Sacred Heart, Diamond Creek (“the parish”).[2] Other than the school, several buildings are connected to the parish including the residence of the parish priest and the parish hall (“the parish hall”).
[1]The worker had been a teacher at the school since May 2000.
[2]When the worker commenced employment at the Sacred Heart Primary School she was employed by the then Father Fox, who was succeeded by Father O’Neill in early 2003.
3 Again, there is no dispute that on 25 July 2003, the worker suffered personal injury during the course of her employment when the metal cover of a door-closing mechanism on one of the doors of the parish hall fell, striking her on the head when she was standing under the doorway (“the incident”).
4 It is agreed between the parties that the plaintiff has made payments of compensation pursuant to the provisions of the Compensation Act to and on behalf of the worker as a result of the incident, and such payments amount to $250,000.
Section 138 of the Compensation Act
5 When the Compensation Act commenced in 1985,[3] s138 consisted of a single paragraph in similar terms to the earlier s62(b) of the Workers Compensation Act 1958, which Act, in general terms, applies to industrial accidents in Victoria up to 4.00 pm on 31 August 1985.
[3]See Act no 10191 of 1985
6 Section 138 has undergone various amendments and indeed, in 1994, a new s138 was substituted and was deemed to operate from 1 December 1992. The new s138 was in similar (but not the same) terms as the present s138. By Act no 60 of 1996, a new formula was substituted for the previous formula contained in s138(3)(b) of the Compensation Act. Section 138 of the Compensation Act has also been recently amended by Act no 9 of 2010, which came into operation on 5 April 2010. Such amendments are not relevant to any issues to be determined in this proceeding.
7 Given the date of injury suffered by the worker, it is the version of s138 which existed at that time which is applicable. I refer to Victorian WorkCover Authority v Kenman Kandy Pty Ltd & Ors,[4] wherein Batt and Vincent JJA (with whom Ormiston J agreed), stated:
“… Section 138(1) confers an enforceable right, of definite and calculable extent, which arises upon the happening of the death or injury concerned, and determines the position for each of the affected parties. The right is one to be indemnified ‘in accordance with this section’, which prima facie means the section as existing at the time the event happens. That provides the measure. … .”[5]
[4](2002) 6 VR 666
[5](op cit) at paragraph [15]
8 However, s299 of the Compensation Act provides:
“Section 138, as amended by section 8 of the Compensation and Superannuation Legislation Amendment Act 2008, applies in respect of any right of indemnity, regardless of when that right came into existence, unless before the commencement of that section –
(a)the amount of the indemnity has been determined; or
(b)judgment for damages has been given or entered; or
(c)there has been a settlement or compromise of the claim in respect of which the right of indemnity arose.”
9 Section 8 of the Compensation and Superannuation Legislation Amendment Act 2008 states:
“(1)In sections 138(1) and 138(2) of the Accident Compensation Act 1985 for ‘liability in a third party to pay damages” substitute ‘liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria’;
(2)In section 138(3)(b) of the Accident Compensation Act 1985 –
(a)after ‘amount calculated’ insert ‘were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958’;
(b)after ‘injury or death’ omit ‘were it not for the provisions of this Act and the Transport Accident Act 1986’.”
10 It is probable that the exceptions contained in s299 of the Compensation Act do not apply. Accordingly, notwithstanding the date of the injury, the words set out in s8 of the Compensation and Superannuation Legislation Amendment Act 2008 should be inserted. In any event, I consider that for the purposes of this proceeding, nothing turns on whether the added words are part of s138 or not.
11 Accordingly, s138 of the Compensation Act reads (including the added words):
“(1) Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria or that would, but for section 134A, create such a liability in respect of the injury or death, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.
(2) In determining for the purposes of sub-section (1) whether an injury or death was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria in respect of the injury or death, Divisions 8A and 9 of Part IV must not be taken into account.
(3) The amount which a third party is required to pay as indemnity under sub-section (1) is the lesser of—
(a) the amount of compensation paid or payable under this Act in respect of the injury or death; and
(b) the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958, in accordance with the formula—
where—
Xis the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death;
Ais the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death;
Bis the amount recovered or recoverable by the Authority, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement);
Cis the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party.
(4) Judgment against or settlement by a third party in an action by a worker, or dependants of a worker, in respect of an injury or death referred to in subsection (1) does not eliminate or diminish the right of indemnity given by this section, except to the extent provided in this section.
(5) If the Transport Accident Commission is liable to make payment to the Authority under section 137(5A) or to a self-insurer under section 137(5B) in respect of a death or injury and the Authority or self-insurer is entitled under this section to be indemnified by a third party in respect of the liability, the entitlement of the Authority or selfinsurer is subrogated to the Transport Accident Commission by virtue of this sub-section.”
12 The High Court[6] has approved the comments of Winneke P in Esso Australia Ltd v Victorian WorkCover Authority & Anor,[7] when he described the nature of the indemnity under s138 of the Compensation Act in the following way:
“… [T]he statutory right of indemnity conferred by the [Compensation] Act upon the person who has paid the compensation is not to be equated to the cause of action which the worker would, but for the [Compensation] Act, have had against the person liable to pay damages to him. This is so notwithstanding the fact that it is an ingredient of the statutory right, sought to be enforced, that the person from whom the indemnity is sought was liable to pay damages to the worker. The claim to enforce the entitlement to indemnity is not a claim in tort. It is a cause of action created by statute for an indemnity against a person liable to pay damages to another … .”
[6]See Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520 at 527
[7](2000) 1 VR 246 at 257
13 The High Court also accepted the construction of s138 as put forward by Winneke P.[8] Winneke P had observed:
“… Thus, it is said that the words ‘the amount of compensation paid or payable under this Act’, where appearing in subs (3)(a), should be read as meaning ‘accrued and payable’; and that they cannot reasonably contemplate an amount produced by a calculation of all future payments which might be payable to the worker pursuant to the Act. Further, it is said that subs (3)(b) is to be construed as providing a ‘ceiling’ to the indemnity contemplated by the section — a ‘ceiling’ produced, as I have said, by the third party's notional liability at common law for pecuniary and non-pecuniary loss, and then reduced in accordance with the third party's share of responsibility for that loss. … .”[9]
[8]See Victorian WorkCover Authority v Esso Australia Ltd (op cit) at page 530
[9]See Esso Australia Ltd v Victorian WorkCover Authority & Anor (op cit) at page 252
14 Later, Winneke P continued:
“… Construed in this way, it is said, the court can identify, once and for all, an entitlement to indemnity against a negligent third party which will not exceed that party's proportionate responsibility for the worker's notional damages at common law for pecuniary and non-pecuniary loss. If the notional damages at common law, assessed in accordance with subs (3)(b), are less than the amounts of compensation already paid or accrued and payable, then the entitlement to indemnity contemplated by the section remains the amount so assessed. … .”[10]
[10]See Esso Australia Ltd v Victorian WorkCover Authority & Anor (op cit) at page 252
15 There is no issue that the defendant can be a third party as contemplated by s138 of the Compensation Act.[11]
[11]See DSG Pty Ltd v Victorian WorkCover Authority (2008) 20 VR 514, and in particular at paragraphs [87]-[89]
16 The parties agree that Factor A (that is the notional damages) amount to $875,000 and as I have already recorded, the amount of compensation paid to or on behalf of the worker to date, being $250,000. Furthermore, such agreed figures are on the basis that any limitation defences relied on by the defendant were abandoned.
17 It should be noted perhaps, that the worker had issued proceedings in this Court against her employer, Father O’Neill, and the defendant, seeking damages for the injuries that she sustained as a result of the incident. Such proceeding (“the first proceeding”) proceeded as a jury and after some ten days or so of trial, the claim by the worker was settled.[12] It was common ground that the defendant made no contribution to any settlement and accordingly, Factor C in s138 of the Compensation Act would be nil.
[12]It was agreed amongst the parties that the evidence in that proceeding could be used in the subject proceeding.
18 The parties agree that the issue for determination is whether the defendant’s “act, default or negligence caused or contributed to the injury” suffered by the worker and if so, the extent of such contribution. (That is, Factor X as contained in s138(3)(b) of the Compensation Act).
19 Bearing in mind that ss(1) of s138 creates the liability in the third party, and ss(3) quantifies such liability, I am of the view that the dispute between the parties, in essence, is whether the plaintiff can discharge its onus in establishing as a matter of probability:
(a)that the injury suffered by the worker “was caused under circumstances creating a liability in … [the defendant] to pay damages …” and, if so:
(b)the extent of such contribution.
The Parties
20 The plaintiff is a body corporate capable of suing in its corporate name pursuant to s18 of the Compensation Act. One of the objectives of the plaintiff is to manage the Accident Compensation Scheme as effectively and efficiently and economically as is possible.[13] One of the functions of the plaintiff is to pay compensation to persons entitled to compensation under the Compensation Act.[14]
[13]See s19(a) of the Compensation Act
[14]See s20 of the Compensation Act
21 Sections 7 and 9 of the Accident Compensation (WorkCover Insurance) Act 1993, which must be read and construed as one with the Compensation Act,[15] makes clear that the Authority is directly liable to any worker to pay compensation pursuant to the provisions of the Compensation Act.
[15]See s5 Accident Compensation (WorkCover Insurance) Act 1993
22 The defendant is a corporation which was effected by s6 of the Roman Catholic Trusts Act 1907 (Vic) (the “Trusts Act”).
23 I refer to the following parts of the Trusts Act:
(a) The opening words and preamble of the Trusts Act read:
“An Act to provide for the Creation of Corporate Bodies of Trustees in which Property belonging to the Roman Catholic Church in Victoria may be vested and for other purposes.
Preamble
WHEREAS the property of the Roman Catholic Church in Victoria is held by many different bodies of trustees:
AND WHEREAS owing to death and other causes the necessity for the appointment of new trustees is continually arising:
AND WHEREAS it is expedient that corporate bodies of trustees should be created for the purpose of holding managing and dealing with the property of the said Church and that for the better management thereof certain properties of the said Church should be vested in such corporate bodies and that the conveyance and transfer of such properties should be facilitated and rendered less expensive.
… .”
(b) Section 3 of the Trusts Act provides:
“3. Powers of council[16] to pass resolution to form body corporate to hold church property
[16]“Council” is defined to mean a Diocesan Council constituted in any diocese according to the rules practices and usages of the Roman Catholic Church – see s2 of the Trusts Act
A council may if it thinks fit pass a resolution expressing its desire—
(a)that there be constituted within the diocese a corporate body of trustees for the purpose of holding managing and dealing with property within such diocese[17] in trust for the benefit of the Church;[18]
[17]“Diocese” is defined to mean the part of Victoria from time to time described in the Denominational Register as the diocese of the person so registered – see s2 Trusts Act
[18]“Church” means the Roman Catholic Church – see s2 Trusts Act
(b)that the persons nominated in the resolution as trustees (who may be members of the council) be the corporate body;
(c)that such trustees be incorporated under the name specified in the resolution.”
(c) Section 6 of the Trusts Act provides:
“6. Incorporation of trustees of Church property
After the registration of any resolution passed under the provisions of section three hereof the Registrar-General shall notify the same in the Government Gazette and thereupon the trustees named in such notice and their successors to be appointed as hereinafter provided shall be a body corporate by the name stated in such notice and shall have perpetual succession and a common seal and may sue and be sued in their corporate name and may acquire take hold manage and deal with any property in trust for the Church within the diocese in which such resolution shall have been passed or for any person holding for the time being any office therein and may receive any moneys which have been or shall be given contributed or bequeathed by any person to be applied to any of the purposes of the Church and may take over any securities for money held by any person on behalf of the Church and may take in the name of such corporate body any securities for money belonging to the Church which shall be lent or advanced on account thereof and shall deal with all such property and securities so as to give effect to the trusts to which they shall be specially subject or when not subject to any express trust in such manner as a council of such diocese may from time to time by resolution direct but so as not to interfere with the jurisdiction of the Supreme Court in the enforcement of trusts.”
(d) Section 13 of the Trusts Act provides:
“13. Property vested in trustees to be held in conformity with any express trust
All property becoming vested in any corporate body constituted under this Act or which shall in any manner be acquired by such corporate body shall so far as the same is subject to any express trust be held managed and dealt with in conformity with such express trust, and so far as the said property is not subject to any express trust shall be held managed and dealt with as a council of the diocese may from time to time by resolution direct.”
(e) Section 15 of the Trusts Act provides:
“15. Corporate body may lease mortgage and sell
Except in so far as it may be shown to be expressly prohibited from so doing by the original trusts to which such property is subject any corporate body constituted under the provisions of this Act may lease for any term charge mortgage encumber give easements over alien exchange partition or sell any property vested in it and generally deal with the same as fully and effectually as if it were the beneficial owner thereof.”
24 I also refer to some of the evidence given during the proceeding in relation to the operation of the defendant. Mr Francis Xavier Moore (“Moore”) gave evidence on behalf of the defendant. He described himself as the business manager of the Archdiocese of Melbourne and also a trustee pursuant to the Trusts Act since December 2007. In particular, he gave the following evidence which was uncontradicted and which I accept:
(a)The Archdiocese of Melbourne is one of four dioceses in the state of Victoria – the others being the Diocese of Sale (which basically covers the Gippsland coast), the Diocese of Sandhurst (which basically covers Bendigo and the north east) and the Diocese of Ballarat (which covers much of the west of the state).
(b)The Archdiocese of Melbourne in an unincorporated association and is headed by the Archbishop, who has two principal advisers, one in relation to matters involving clergy (“the Office of the Vicar-General”) and one in relation to matters involving the management of the resources of the Archdiocese (“the business manager”). Moore occupies that position.
(c)Various people including those involved with property, finance, communication, human resources and buildings and the like report to the business manager. Such people are employed by the Archdiocese of Melbourne.
(d)There are about 219 parishes within the Archdiocese of Melbourne, many of which (although not all) contain primary and/or secondary schools. The number of schools are in the order of 325.
(e)Other than himself, the other trustees appointed pursuant to the provisions of the Trust Act are the Archbishop of Melbourne, Archbishop Denis Hart; the Vicar-General of the Archdiocese of Melbourne, Bishop Les Tomlinson; the Dean of St Patrick’s Cathedral, Dean John Salvano; Mr Adrian Klep, who is employed by the Archdiocese of Melbourne as the human resources manager for the Archdiocese; and Mr Tom Carr, who is also employed by the Archdiocese of Melbourne as the finance and general operations manager for the Archdiocese.
(f)The defendant does not have employees and pays no wages to anyone. Secretarial duties to the defendant are performed by Moore or people in his office.[19]
[19]T933, L2-8
(g)The defendant has no reporting requirements to ASIC or other regulatory bodies.[20]
[20]T933, L9-10
(h)The defendant meets around four times a year, has agendas, and minutes are kept. Meetings take between five and ten minutes. In particular, the following evidence was given:
“Q: Does … [the Trust] … initiate proposals?---
A: It doesn’t, no.
Q:What about where there is a proposal afoot for the construction maintenance or administration of parish buildings, how might that come before the Trust?---
A:The only matters that would come before the Trust are matters relating to the acquisition or disposition of land or the leasing of property.
…
Q:[The meeting] starts with what?---
A:It starts with a prayer.
Q:Then what happens?
A:Then as would normally apply to meetings, the minutes of the last meeting are reviewed and if they’re accepted they’re adopted, the meeting ratifies the sealing of documents that have occurred since the last meeting, if there have been any changes in the composition of the trustee since the last meeting, that would also be dealt with.”[21]
(i)The defendant does not undertake any activities by way of supervision of the affairs of the parish or a parish priest and to his knowledge, the defendant has never issued a direction to a parish or parish priest.[22]
[21]T930, L22 – T930, L6
[22]T934, L18-21
25 Moore gave evidence that other than some buildings which are owned by the Archdiocese of Melbourne in its own right, the defendant owns properties on which the various parishes and schools operate, as well as properties from which the Archdiocese of Melbourne operates. Moore described the function of the defendant is essentially to “own real estate, assets, enter into contracts with those for which it owns property”.[23] It is the party to contract on behalf of either the parish as vendor or purchaser and it executes the transfer of land as the registered proprietor and is the party to the conveyancing transaction.[24]
[23]T923, L23-25
[24]T925, L19-23
26 When queried as to whether the defendant was the “corporate body” of the Catholic Church, Moore denied that this was the case and in particular, stated:
“The church, if we’re talking about the church within the Archdiocese of Melbourne, it is unincorporated association. The Trust gives effect in civil law to the ownership arrangements within the church that operate under canon law.”[25]
[25]T928, L4-8. Moore did state that there are some incorporated agencies within the Church – for example, a specialist provider of aged-care services within the Archdiocese is incorporated as an incorporated association under the Associations Incorporation Act and is called the Catholic Homes for the Elderly.
27 In particular, I refer to the following evidence:
“Q:Does a trust employ the parish priest?---
A:No it doesn’t.
Q:Is a parish priest employed by anybody?---
A:No.
Q:The parish priest we have heard in this case though may employ people?---
A:He may.
Q:The … [worker] ... in this matter was employed as a teacher at the school by Father Fox?---
A:This as I understand it, yes.
…
Q:Does the trust employ anyone to undertake maintenance work on parish properties?---
A:No it doesn’t.
Q:Who does, as far as you are aware - - -?---
A:If the maintenance work is being undertaken on parish properties then the engagement would be by the parish but it might be facilitated through the Archdiocese by either the building office if it relates to maintenance work, or if it relates to dealings in property by the property office.
Q:Does the trustee possess any keys to parish buildings?---
A:No it doesn’t.
Q:Does the trust give any direction as to how the property may be utilised by parishioners?---
A:No it doesn’t.
Q:Or who might attend upon parish properties?---
A:No.”
HIS HONOUR:
“Q:But can it do it if it wanted to?---
A:Your Honour, if I could answer the question this way. The purpose o the Trust as recognised under Canon Law is to give effect under civil law to the arrangements that apply under Canon Law, so if those things can’t be done under Canon Law we can’t use civil law to achieve what we can’t do under Canon Law.
Q:Then if it is not the trust that is concerned with the way in which a property is used, who in the organisation of the church makes those sort of decisions?---
A:The decisions are made locally by the parish which is the owner of the land and from which the parish operates. In some circumstances Canon law may say certain decisions before they can be made at parish level need to be approved at the level of the bishop but those are proposals that are initiated from a parish level to the bishop.
Q:When you say the parish is the owner of the land are you using that term the same way as the trustee is the owner or - - - ?---
A:No I am using it to distinguish between legal ownership and beneficial ownership so that the beneficial owner of the parish land is the parish, so in the parish of Diamond Creek the trust corporation may be the registered proprietor or of the land but it holds that land as trustee for the parish.”[26]
[26]T936, L13 – T938, L6
28 In evidence-in-chief, Moore was shown an Exhibit,[27] and in particular, the following evidence was given:
[27]See Exhibit AA
“Q:Can the witness be shown Exhibit – or if you go to Tab.11 in that folder Mr Moore. That’s a document that’s prepared by the Catholic Archdiocese of Melbourne in December of 2001 that’s before you became involved in the management of the diocese. If you turn over the page it … says: ‘This manual has been prepared by the Catholic Archdiocese of Melbourne to provide guidance and direction to parishes and schools on the maintenance requirements of their buildings.’ And then there’s a statement about the importance of maintenance?---
A:Yes.
Q:And then it says: ‘The manual has been compiled with the diocesan business manager’s office?---
A:Yes.
Q:Is that office to be found in the table that you prepared and handed to His Honour?---
A:Well it’s either referring to the – to my predecessor so the business manager’s office, or it’s referring to the building office that reports to the business manager.
Q:Yes, I see. But is there distinction, a relevant distinction between documents such as these which are prepared by the Archdiocese and anything prepared by the Trustee?---
A:Well, typically the Trustee doesn’t prepare documents of this sort. They are prepared within the service offices of the Archdiocese so whether human resources, property, building, finance or the like.
Q:And the documents [that] are of this nature are distributed to parish priests and school principles?---
A:They are, that’s correct.”[28]
[28]T943, L22 – T944, L16
29 I also refer to the following cases which give some assistance in understanding the role of the defendant. First, I refer to the decision of Archbishop of Perth v AA & Ors,[29] wherein the plaintiff alleged that he had been the subject of various acts of sexual and physical abuse perpetrated in the past in Perth by various church members, and in a claim for damages, the plaintiff sued, amongst others, what was described as the “statutory archbishop”, being the body corporate created by the Roman Catholic Church Property Act 1911 (WA). Such Act was in similar terms to the Trusts Act and vested church property in the Catholic Diocese of Perth in the Roman Catholic Bishop for the time being of that diocese and its successors in office. It established the Bishop as a corporate sole for limited purposes. Although the Roman Catholic Church Property Act 1911 (WA) is not in the precise terms of the Trusts Act, it has strong similarities.
[29](1995) 18 ACSR 333
30 Cole JA, with whom Meagher JA agreed, in the New South Wales Court of Appeal, stated:
“It is, in my judgment, clear that the Act is directed only to the holding, acquisition, disposition and management of property. The corporation sole created by s 4 of the 1911 Act may sue or be sued, but only in relation to property transactions. There is nothing in the Act creating the corporation sole which purports to make it liable for actions in tort arising from the conduct of persons, being Catholic clergy, unrelated to property. That is clear from the introductory words of s 4. … .”[30]
[30]See generally Archbishop of Perth v AA & Ors (op cit). See generally pages 350-354
31 Similar circumstances occurred in the later New South Wales Court of Appeal decision of Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis & Anor,[31] wherein the plaintiff commenced proceedings in the Supreme Court for damages alleging that he was sexually assaulted by an assistant priest of the Roman Catholic Church in the Archdiocese of Sydney between 1974 and 1979. The plaintiff sued the current Archbishop of the Archdiocese of Sydney (who was appointed in 2001) and also the Trustees of the Roman Catholic Church for the Archdiocese of Sydney. The Trustees of the Roman Catholic Church for the Archdiocese of Sydney was created pursuant to the Roman Catholic Church Trust Property Act 1936 (NSW) which again is in similar, although not the precise terms of the Trusts Act.
[31](2007) 70 NSWLR 565
32 The plaintiff alleged that the Trustees were liable in damages because they represented the unincorporated association known as the Catholic Archdiocese of Sydney. It was held that the Catholic Archdiocese of Sydney, being an unincorporated association, is not itself liable for the torts or breaches of fiduciary care as alleged.
33 However, the plaintiff in particular, alleged damages against the Trustees simpliciter, basing the allegations that the Trustees were negligent in things that it did or failed to do in relation to the priest who allegedly molested the plaintiff.
34 Mason P (with whom Ipp J and McColl JA agreed), noted that the Church properties at Bass Hill, where the alleged offences took place, were vested in the Trustees, and the funds used to pay the priest’s living expenses were under the legal control of the Trustees. Mason P states:
“However, the pleaded allegations are not based on the ownership or occupation of property or the funding of the priest by the Trustees. Rather, they allege liability stemming from the Trustees’ alleged care, control and management of the parish, their engagement or appointment of Father Duggan and their assumption of responsibility towards the plaintiff arising from the general supervision of the Archdiocese that the Trustees are said to have exercised … .
The Trustees submit, in short, that these allegations are doomed to fail in light of a correct understanding of the limited, property-focussed role of the Trustees under the [Roman Catholic Trust Property Act 1936] and the evidence showing that it was the former Archbishop, in consultation with the Archdiocesan Council, and not the Trustees, who appointed and supervised Father Duggan. I agree.”[32]
[32]See Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis & Anor (op cit) at page 587 – paragraphs [97]-[98]
35 I also refer to the Trustees forf the Roman Catholic Church for the Archdiocese of Sydney v TGP Architects & Planners Pty Ltd,[33] which is also of some assistance. In that matter, the plaintiff, the Trustees of the Roman Catholic Church for the Archdiocese of Sydney, was established as a body corporate under the provisions of s4 of the Roman Catholic Church Trust Property Act 1936 – again, an Act in similar but not the same terms as the Trusts Act.
[33][2005] NSWSC 381
36 The plaintiff was the Registered Proprietor of land on which there were various buildings, one of which was formerly a boys’ school. The defendant was a company by which a professional practice of architects was carried on and had occupied part of the first floor of the old school since 1995 pursuant to various leases entered between it and the plaintiff. Although written documentation established that the plaintiff was the lessor, an invoice for the payment of rent was raised and sent to the defendant on the letterhead of the local parish and payment made to an officer of that parish.
37 The gist of the case involved negotiations being carried on between Father Purcell (being the parish priest) and the defendant, during which time various proposals were put concerning the basis upon which a new lease might be entered into. In the past, when a new lease was entered into between the plaintiff and the defendant, the commercial terms would be worked out between Father Purcell and the defendant. Father Purcell would then instruct the parish’s solicitors, who would draw up the lease, which would be then sent to the defendant for execution, and after execution by the defendant it would be sent then to the plaintiff for execution.
38 In particular, Campbell J noted that the authority of Father Purcell to deal with real property belonging to the Church had to be examined taking into account the provisions of Canon Law on that topic. Campbell J states:
“While Canon Law is a matter of the internal law of the Church, the actual authority of a priest is a matter affected by the internal law of the Church.
Under Canon Law a parish is recognised as having a separate legal personality, as a ‘public juridical person’, to which property can belong. A priest has authority to administer what Canon Law refers to as the ‘temporal goods’ belonging to that parish — which means, in broad terms, what a lawyer in the civil law would call ‘items of property’ including real property. The authority of the parish priest is such that he cannot be dictated to by those in the hierarchy above him about what he should do concerning the temporal goods connected with his parish. Only the parish priest has authority to make such decisions.
An expert in Canon Law, Dr Austin, has explained that the role of the Trustees is to safeguard, in the civil law, property which in Canon Law belongs to each parish, and property of the Archdiocese itself. The role of the Trustees is not to make decisions but to execute in the civil law the decisions already made by the parish priest who, in accordance with the norms of Canon Law has the authority to do so.
However the authority of the parish priest is not unlimited. The parish priest himself is obliged to observe the norms of Canon Law concerning dealing with temporal goods.
… .”[34]
[34]Trustees of the Roman Catholic Church for the Archdiocese of Sydney v TGP Architects & Planners Pty Ltd (op cit) at paragraphs [14], [15], [16] and [17]
39 Later in his judgment, Campbell J states:
“The position in civil law is somewhat different. It does not recognise a parish as having any separate legal personality. Indeed, it does not recognise a church, or parish, as having any separate legal personality. Rather, churches and parishes are voluntary unincorporated associations in the eyes of the civil law. To facilitate the administration of the property held for the purposes of these unincorporated associations, the Parliament has passed statutes, for many of the Christian denominations, establishing trustees to hold real property. The Trust Property Act is one such statute.
Section 3 of the Trust Property Act provides:
‘There shall be for each diocese trustees of Church property, who shall be the Bishop of the Diocese and the Diocesan Consultors of the diocese.’
People come to hold office as Bishop or as Diocesan Consultor, through the internal procedures of the Church. Sections 3 and 4 of the Trust Property Act then confer on them powers and functions for the purpose of the civil law.
Because the plaintiff is the registered proprietor of the land on which … [the old school building is situated] …, it is only the Trustees who have the power to grant a lease valid in law. The present case, however, concerns whether there is an agreement which is binding in equity. Such an agreement would need to be between the Trustees and the defendant.
… .”[35]
[35](op cit) at paragraphs [22], [23] and [24]
40 Consistent with the terms of the Trusts Act, the evidence of Moore, and indeed the interpretation of similar Acts in different States of Australia, I consider that it is clear enough that the purpose of the Trusts Act is to facilitate ownership of Roman Catholic Church property in one entity controlled by trustees of that entity having the benefit of perpetual succession with beneficial ownership enjoyed by any particular parish. As submitted by those acting on behalf of the defendant, the creation of a statutory trustee for this purpose is not unique. The vesting and management of property owned by religious associations has been the subject of various Acts of Parliament.[36]
[36]The legislation in Victoria has created religious trusts for the Anglican Church – see Church of England Act 1854; Anglican Church of Australia Act 1985; Anglican Church of Australia Constitution Act 1960; Anglican Trusts Act 1984; the Presbyterian Church – see Presbyterian Trusts Act 1979; the Uniting Church – see Uniting Church of Australia Act 1977; and, of course, the Roman Catholic Church.
The evidence in relation to Canon Law
41 Father Ian Benjamin Waters (“Father Waters”) gave evidence on behalf of the defendant. He described himself as the parish priest of St Roch’s Parish in Burke Road, Glen Iris. In particular, Father Waters completed specialist studies in Canon Law, primarily in the United States and Canada, and also lectures in Canon Law at the Catholic Theological College in East Melbourne. In order to become a priest, it is a prerequisite for ordination that there be study of Canon Law. A report prepared by Father Waters was tendered.[37]
[37]See Exhibit D – Report of Father I B Waters dated 1 March 2011, together with the Code of Canon Law, a copy of which is at Tab 4 of the Defendant’s Court Book tendered as one exhibit
42 The evidence of Moore and the judgment of Campbell J in the Trustees for the Roman Catholic Church of the Archdiocese of Sydney v TGP Architects & Planners Pty Ltd[38] make reference to various aspects of Canon Law. I also note that Canon Law is formally recognised in at least one Australian State.[39] Furthermore, it was submitted by the defendant that Canon Law is implicitly recognised by s2 of the Trusts Act when it defines “council” to mean a Diocesan Council constituted in any diocese according to the rules, practices and usages of the Roman Catholic Church (my emphasis).
[38]op cit
[39]See s3 and s4 of the Roman Catholic Church (Incorporation of Church Entities) Act 1994 (Qld)
43 The evidence of Father Waters in relation to the various body of rules within the Church making up Canon Law was not challenged. Indeed, there appeared to be no dispute that Canon Law is that body of rules within the Roman Catholic Church which governs the organisation of the Church. In particular, Father Waters gave the following evidence:
“Q:Is there anything about the preparation for ordination to the diaconate or the priesthood that requires a candidate to adopt Canon Law as the precept?---
A:Before being ordained the candidate has to take an oath of fidelity to the teachings of the church and there is a specific clause there that says, ‘he will observe the requirements of Canon Law as regards the pastoral ministry’ and that is the way that any exercise of the governance that he may have in the church which for example being a parish pries[t] or an assistant priest and also anything to with the administration of the worship or the sacraments, the regulations surrounding all of those.
Q:Is Canon Law a text which can be referred to as a written code or a set of laws?---
A:Yes, the current official text is the Code of Canon Law which was promulgated in 1983, replacing the earlier version which was promulgated in 1917.
Q:Is that a function of the diocese or the Vatican or the Papacy?---
A:The Code of Canon Law is promulgated at the Holy See. In it there is provision for local legislation which can be one of three levels. On the national level an enactments (sic) by the Conference of the Bishops of the whole of Australia. The next level down is the enactments of the Bishops of the Ecclesiastical Provence which are the dioceses within Victoria and Tasmania for us. The lowest level is legislation that’s left to the diocese itself.”[40]
[40]T1003, L30 – T1004, L24
44 Father Waters was questioned in relation to the role of the parish under Canon Law and in particular, the meaning of the parish having “juridical existence”. Father Waters stated:
“That it’s an entity completely separate to the entity of a diocese, and separate to the existence of the universal Church which is the Catholic Church throughout the world. There are about 2,600 divisions of the Church into dioceses of which the Diocese of Melbourne is one, and then within dioceses there are entities called parishes. They are separate juridical existences just as the City of Stonington in which I live is independent of the State of Victoria, which is independent of the Commonwealth of Australia. So there are three different civil law entities that I exist in, and for Catholics where I live, Glen Iris, there would be three separate entities that they live in as a Catholic. They’re a parishioner of Glen Iris, they belong to the Diocese of Melbourne and they belong to the universal Catholic Church, and there are distinct levels of governance by individual people – the Pope, the Bishop and the Parish Priest.”[41]
[41]T1007, L25 – T1008, L11
45 Father Waters described that although the governance of the universal Church is hierarchical insofar as there is recourse from one to the other level, there is no direct governance from the higher levels. When asked what is involved in the concept of the parish priest being “guardians of the right of his parish”, Father Waters stated:
“He is the one who makes the ultimate decisions and has the ultimate responsibility for the governance of the parish and the administration of its goods … .”[42]
[42]T1008, L28-31
46 Of course, and made clear by cross-examination, Father Waters does not have a law degree and does not hold himself out as any type of expert in civil law. Furthermore, Father Waters accepted that there was no reference in Canon Law to “personal injury”, although Father Waters did state:
“A:Except indirectly in the – book 5 of the Code of Canon Law the parish priest is ordered to make sure that he’s – in his administration he fulfils all civil law requirements and all other things and then it lifts off things such as ‘insurance’ and so on and so on alright. In other words, his administration should be responsible according to the time and circumstance of the place and the way we do in Australia would be different to the way they do it in Africa for example.
Q:But in terms of the canon spelling out in detail what aspects of civil law, what rules with respect to ‘protection from concern injury concern, duty of care’, matters of that kind in terms of canon law gives no details?---
A:No detail just a specific direction that civil law must be observed.”[43]
[43]T1016, L21 – T1017, L3
The proceedings
47 On 21 November 2011, the first day of this trial, I granted leave to the plaintiff to file and serve a Third Further Amended Statement of Claim and also granted leave to the defendant to file and deliver an Amended Defence to such Amended Statement of Claim.
48 The plaintiff’s claim for indemnity is based on the following causes of action:
(a)that the defendant breached a common law duty of care owed to the worker;
(b)that the defendant breached a statutory duty owed to the worker as an occupier of the premises, pursuant to PART 11A of the Wrongs Act 1958 (Vic);
(c)that the defendant breached various statutory duties owed by it to the worker, the source of those duties being contained in the Building Code of Australia 1996[44] (“the Code”) and PART 11, Divisions 1 and 2 of the Building Regulations 1994 (Vic) (“the Regulations”).[45]
[44]The specific provisions relied upon are the Building Code of Australia, in particular, 1F1.1, IP1.1 and I1.1. The Building Code is incorporated into the Building Regulations 1994 (Vic) by reason of Regulation 1.7.
[45]Such Regulations are made pursuant to the Building Act 1993.
49 The causes of action described in paragraphs (a) and (b) of the preceding paragraph are similar in nature. Both causes of action are based on the assumption that the defendant is an “occupier” of the parish hall. The plaintiff alleges that the defendant breached its common law duty of care to the worker who was an “entrant” to the parish hall. Alternatively, the plaintiff alleges that the defendant breached a statutory duty of care pursuant to PART 11A of the Wrongs Act 1958.
50 I refer to s14A and s14B(3) and (4) of the Wrongs Act 1958, which state:
“14A Definitions
In this Part—
(a)a reference to the occupier of premises includes a reference to the landlord of premises let under a tenancy (including a statutory tenancy not amounting in law to a tenancy) who—
(i)is under an obligation to the tenant to maintain or repair the premises; or
(ii)is, or could have put himself in, a position to exercise a right to enter on the premises to carry out maintenance or repairs; and
(b)a reference to premises includes a reference to any fixed or moveable structure, including any vessel, vehicle or aircraft.
14B Liability of Occupiers
…
(3)An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
(4)Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to—
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger;
…
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.”
51 Senior Counsel for the plaintiff seemingly accepted that, at least for the purposes of this proceeding, there was no material difference between the causes of action described in (a) and (b). I accept such submission. Furthermore, recent authority would suggest that PART 11A of the Wrongs Act does not create a statutory duty, the breach of which sounds in damages at the suit of an injured person. Rather, that Part redefines the common law duty of care owed by an occupier of premises setting out matters to be taken into account in determining the scope of the duty and whether that duty has been discharged in a particular case.[46]
[46]Victorian WorkCover Authority (VWA) v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412 per Beach J at paragraph [5]
52 To such allegations, the defendant asserts that it is not an “occupier” and, in any event, did not breach any common law duty of care, or indeed statutory duty (if that be relevant), which was a cause of injury to the worker.
53 In relation to the causes of action pertaining to alleged breaches of the Code and the Regulations, I set out the relevant parts of both the Code and the Regulations. The Code is incorporated into the Regulations by reason of Regulation 1.7.
54 The relevant parts of the Code are:
“PART A3 – CLASSIFICATION OF BUILDINGS AND STRUCTURES
A3.1 Principles of classification
The classification of a building or part of a building is determined by the purpose for which it is designed, constructed or adopted to be used.
…
A3.2 Classifications
Buildings are classified as follows:
Class 1:
…
Class 2:
…
Class 3:
…
Class 4:
…
Class 5:
…
Class 6:
…
Class 7:
…
Class 8:
…
Class 9:
a building of a public nature–
(a) Class 9(a) – a health-care building, including those parts of the building set aside as a laboratory; or
(b) Class 9(b) – an assembly building, including a trade workshop, laboratory or the like in a primary or secondary school, but excluding any other parts of the building that are of another Class; ...
Class 10:
…”
(my emphasis).
55 PART A1.1 defines “assembly building” to mean a building where people may assemble for, amongst other things “educational purposes at a school, early childhood centre, preschool or the like … ”. (my emphasis).
56 PART I1 of the Code is headed “MAINTENANCE”, under which is the heading “Equipment and Safety Installations”. The Code then states:
“IO1 The Objective of this Part is to ensure that people are protected from illness, injury and losses of amenity throughout the life of the building.
FUNCTIONAL STATEMENT
IF.1.1A building is to be adequately maintained to safeguard people from illness or injury and to prevent the loss of amenity.
PERFORMANCE REQUIREMENT
IP.1.1Equipment, installations and components essential to the safety of the people must be adequately maintained in such condition that will enable their proper performance.
PART 1.L EQUIPMENT ANS SAFETY INSTALLATIONS
I1.0 Deemed-to-Satisfy Provisions
Performance requirement IP.1.1 is satisfied by complying with I1.1 and I1.2.
I1.1 Safety Installations
Safety installations in buildings must be adequately maintained.”
(my emphasis).
57 There is no dispute that the defendant is the Registered Proprietor of the land on which the parish hall is situated, and an owner for the purposes of the Building Act and the Regulations. Furthermore, there is no dispute that the parish hall is a Class 9(b) building.[47]
[47]T835, L2-30
58 PART 10 of the Regulations is headed “PLACES OF PUBLIC ENTERTAINMENT”. I set out the contents of such Regulation:
“PART 10—PLACES OF PUBLIC ENTERTAINMENT
10.1 Application
This Part applies to any place of public entertainment.
10.2 Prescribed classes
For the purposes of the definition of ‘place of public entertainment’ in section 3 of the Act—
(a)Class 9b buildings having an area greater than 500m2 and prescribed temporary structures are prescribed classes of buildings; and
(b)places having an area greater than 500m2 are a prescribed class of places.
10.3 Prescribed places of public entertainment
The prescribed places of public entertainment for the purposes of sections 26 and 53 of the Act are the sportsgrounds and spectator stands known as—
Kardinia Park, Geelong;
Melbourne Cricket Ground, East Melbourne;
Carlton Cricket Ground, Princes Park, Carlton North;
10.4 …
10.5 Conditions of use
Without limiting the conditions that are required under these regulations or which can be included on an occupancy permit, an occupancy permit for a place of public entertainment may be issued subject to conditions relating to—
(a) …
(b) …
(c) the responsibilities of the safety officer which include—
(i)the operation of fire safety elements, equipment and systems;
(ii) the establishment and operation of evacuation procedures;
(iii) the safety of barriers and exits;
(iv)the control of the use of naked flame in theatrical productions;
(d) …
(e) …
(f) …
(g) …
(h) …
10.6 Structural design
Prescribed temporary structures must be designed in accordance with engineering principles to provide for their structural safety and the safety of the public and other persons using them.”
59 PART 11 of the Regulations is headed “MAINTENANCE” and is broken into Division 1 – “Maintenance of essential services” and Division 2 – “Maintenance generally”. I set out the contents of such Regulation:
“Part 11 – MAINTENANCE
Division 1 – Maintenance of essential services
11.1 Application and Interpretation
(1)Subject to sub-regulation (2), this Division applies to Class 1(b), 2, 3, 5, 6, 7, 8 and 9 buildings.
(2)This Division does not apply to a smoke alarm installed in a sole-occupancy unit in a Class 1(b), Class 2 or Class 3 building or Class 4 part of a building.
11.2Essential Services
In this Division ‘essential service’ means–
(a)any item listed in Table 11.2 required by these Regulations to be provided in relation to a building or place of public entertainment; or
(b)any other item which is required by or under these Regulations or the Act to be provided in relation to a building or place of public entertainment for the safety of the people in the event of fire and which is designated by the relevant building surveyor as an essential service.
Table 11.2 – LIST OF ESSENTIAL SERVICES
…
Exit doors
…
11.3…
11.4…
11.4A…
11.5Owner’s responsibility
An owner of a building or place of public entertainment in respect of which an occupancy permit which lists an essential service has been issued or a determination made under regulation 11.4 is applicable must ensure that–
(a)a manual essential service report in accordance with regulation 11.6 is prepared before each anniversary of the date of the occupancy permit or determination under regulation 11.4; and
(b)all annual essential services reports and records of maintenance, checks, service and repair work are kept on the premises for inspection by the municipal building surveyor or chief officer at a time on request.
11.6…
11.7…
Division 2–Maintenance generally
11.8Application of Division
This division applies to all Class 1(b), 2, 3, 5, 6, 7, 8 and 9 buildings and places of public entertainment constructed before 1 July 1994.
11.9 Safety equipment, fittings and other safety measures
The owner of a building or place of public entertainment to which this Division applies must ensure that any safety equipment, safety fitting or safety measure required in relation to that building or place under the Act or these Regulations or any corresponding previous Act or regulations–
(a)is maintained in a state which enables the safety equipment, safety fitting or safety measure to fulfil its purpose; and
(b)is not removed from its approved location except–
(i)for the purpose of maintenance; or
(ii) in accordance with these Regulations.
Penalty:10 penalty units.
11.10Maintenance of Exits
The owner of a building or place of public entertainment to which this Division applies must ensure that all exits and paths of travel to exits are maintained in an efficient condition and kept readily accessible, functional and clear of obstruction so that egress from the building or place is maintained.
Penalty:10 penalty units.”
(my emphasis).
60 The plaintiff alleges that the incident was caused:
(a) By the defendant breaching its statutory duties pursuant to Regulations 11.9 and 11.10 contained in PART 11, Division 2 of the Regulations;
(b) Further or alternatively, by the defendant breaching its statutory duty pursuant to PART 11, Division 1 of the Regulations to maintain the door of the parish hall and in particular, the cover and the door-closing mechanism thereof;
(c) Further or alternatively, by the defendant breaching its statutory duties pursuant to PART Ii and in particular, IF1.1, IP1.1 and I1.1 of the Code, in that the door-closing mechanism and the cover of the door-closing mechanism were safety installations referred to in PART I1 of the Code.
(d) Furthermore, the plaintiff includes, as particulars of negligence in the causes of action based on occupation, failing to comply with its duties pursuant to Regulations 11.9 and 11.10 of the Regulations; failing to comply with its duty pursuant to PART 11, Division 1 of the Regulations to maintain the door and in particular, the cover of the door-closing mechanism thereof and failing to comply with I1 and in particular, IF1.1, IP1.1 and I1.1 of the Code by failing to adequately maintain safety installations in the parish hall, being the cover and the door-closing mechanism of the door.
61 The defendant, as noted already in this judgment, does not dispute that the parish hall is a Class 9(b) building within the meaning of the Code and Regulations. To that end it submits, correctly in my view, nothing turns on whether it is also a “place of public entertainment” which would also make the parish hall a Class 9(b) building within the meaning of the Code and the Regulations.
62 Both parties highlight what was referred to as a “threshold” issue as to which of the two Divisions of PART 11 of the Regulations was applicable. Division 1 consists of Regulations 11.1 to 11.7 and Division 2 consists of Regulations 11.8 to 11.10. In particular, Division 2 is said to apply only to Class 9 buildings constructed before 1 July 1994.
63 Division 1 does not state that it applies to buildings constructed before 1 July 1994.
64 The defendant submits that consistent with the ordinary rules of construction as to the application of statutes and statutory instruments so as to avoid retrospective effect unless expressly provided, the provisions of Division 1 apply only to building work performed after the commencement of the operation of the Regulations, that is to say, on or after 1 July 1994.[48]
[48]See Regulation 1.3 of the Regulations
65 The plaintiff submits that it is necessary to give the words of the statute their plain meaning also and to ensure that the construction given to Division 1 and Division 2 is harmonious.[49]
[49]See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71]
66 This “threshold” issue has arisen because of the factual circumstances surrounding the “construction” of the parish hall. There is no dispute between the parties that the parish hall was initially built prior to 1994, probably in the 1960s. It is also not in dispute that building work was performed on the parish hall in or about 1999. Such work was authorised by a building permit[50] which permitted alteration to an existing Class 9 building – the parish hall – by the construction of a canopy (estimated value of building work $3,500) which work included the removal and placement of doors to the parish hall. In such circumstances, the issue arises whether or not such doors were constructed before or after 1 July 1994.
[50]See Exhibit 7
67 On a practical level, the evidence would strongly suggest that there was no material difference to the doors other than them being taken off and reinstated at the time of the building of the canopy. I refer to the evidence of Laurence Francis Pittle (“Pittle”) who gave evidence on behalf of the plaintiff. Pittle described himself as a retired electrical mechanic, A Grade Special, who has been associated with the Diamond Valley Parish for about fifty years. Since his retirement approximately twelve years ago, he has helped out performing “odd jobs” around the parish school and generally around the parish.[51]
[51]I will return to his evidence later in this judgment
68 In particular, Pittle gave the following evidence in relation to the parish hall:
Q:“Mr Pittle, over the years, as I understand it, you have been going to the parish for many many years, 50 years?---
A:Yes.
Q:And for a lot of that time the church was in the hall we are talking about, is that correct?---
A:Yes.
Q:And of course it’s not now, you have got your own separate church?
A:Yes.
Q:When you were going to the hall as a church, was the door set up the same, as you recall it, with the type of mechanism you have been shown?
A:The original doors, the original inner doors. There were two sets of doors, one into the foyer and then into the body of the hall.
Q:And the same set up is like the metal cover which I think you have been shown this morning.
A:Yes.
Q:That was the same setup even in times when the hall was the church?---
A:That’s original. That’s original.
Q:Yes, thank you?---
A:That goes back, oh, God, oh, God, (indistinct) the hall. I am the one who put the – who did the doors, look, 20 years or more. It’s hard to remember.”[52]
[52]T742, L3-18
69 Evidence was also given by Mr Bradley Ronald Burton (“Burton”) on behalf of the defendant. Mr Burton described himself as a building surveyor by occupation, and he had prepared a report dated 11 November 2010 which was tendered in evidence.[53] In particular, Burton was asked questions in relation to Division 1 and Division 2 of PART 11 of the Regulations. In particular, the following evidence was given:
[53]See Exhibit B
Q:If you were asked to undertake an assessment of the parish hall, this particular parish hall, in particular the doors from the point of view of essential services, could you perhaps describe the process which you would undertake?---
A:Sure. Sure. Obviously we carry out an inspection of the building first of all. The most important thing or one of the things that we need to ascertain is the age of the building so that we can ascertain the legislation that we’re likely to apply to it from maintenance.
Q:Why is that important?---
A:Because the requirements are different from Division 1 to Division 2, in terms---.
Q:Can you summarise what they are?---
A:Yes. So for buildings built prior to July 1 1994 there are no specific stipulations, it’s very vague as to the requirements, it just uses terms like ‘safety fittings’, et cetera, as what our business does, I can tell you what we do, I can say that the industry does it but you know, I can only tell you what we do as a business, regardless of the age of your building we’re more likely to do – if you looked at your building and it was built in 1980 we would apply today’s rules more than likely but there are circumstances where it’s impossible for you to comply because of maybe the location of the fittings for instance, like a hose reel or a hydrant is a totally requirement now, so that in that instance we would not go into the detail of being in the right location but so far as the maintenance goes, we would then apply today’s rules for maintenance.”[54]
[54]T877, L31 – T878, L27
70 In particular, Burton gave his opinion that he considered that because the building permit referred to the reinstatement of the doors of the parish hall, the relevant Division was Division 1 of PART 11 of the Regulations rather than Division 2 of such Regulations which applies to buildings constructed before 1 July 1994.
71 When it was put to Burton that in practical terms, the doors of the parish hall had been merely taken off and put back up with the same closing mechanism at the time of the building of the canopy and that it would be artificial to say that the doors were not part of the building pre 1994, Burton stated:
“You could say that but the reality is, as a building surveyor, all I can do is judge it based in what I’ve been supplied and I was supplied a copy of that building permit and yes, they’ve got the canopy and there is the mention of a reinstatement of doors, those particular doors that we’re talking about. It doesn’t go into any more detail about whether they’re new doors, and to me it’s irrelevant, it forms part of this permit that was issued in whatever date that was, 1999, I think it was, so therefore those doors fall under that permit. But regardless of that, even I said that they didn’t, we would apply Division 2, I would still come up with the same answers.”[55]
[55]T906, L20 – T907, L1
72 Later in his cross-examination, Burton gave the following evidence:
Q:“The fact is that the building permit was of course, necessary to enable the canopy to [be] put there wasn’t it?---
A: Yeah, I’m certain it was, yes. Yeah.
Q:All that happened, as His Honour said, was that the doors come off to enable that to happen and they go back on again.
A:So in reality they didn’t even need to put the detail about them, if they were just going to remove the doors and put them on, in theory they didn’t even need to stay there.
Q:That’s right. In those circumstances it would be reasonable to suggest that the doors in those circumstances were covered by Division 2?---
A:That would be correct, yes.
Q:I want to just point out the difference to you between Division 1 and Division 2, if you look at them, and look at the words, they each come under maintenance, yes?---
A:Yes.
Q:And Division 1 is maintenance of essential services?---
A:Yes.
Q:And Division 2 is maintenance generally.
A:Yes.”[56]
[56]T908, L29 – T909, L15
73 As I understand the submissions of both parties, the Court was urged that a proper construction of the Regulations consistent with the facts of this matter would suggest that Division 2 of PART 11 of the Regulations is applicable. I conclude that a proper construction of PART 11 of the Regulations is that Division 1 applies to buildings constructed on or after 1 July 1994 whereas Division 2 is concerned with buildings constructed before 1 July 1994.
74 After a consideration of all of the evidence, I am satisfied that the parish hall (including the doors) was constructed before 1 July 1994. I should add that I am reinforced in such view when one considers that the 1999 building permit makes reference to doors rather than door-closing mechanisms or metal covers covering such door-closing mechanisms.
75 Accordingly, I find that Division 1 of PART 11 of the Regulations has no application to these proceedings, and leaving aside any other argument, cannot give rise to any claim for indemnity on the part of the plaintiff.
76 In relation to the other causes of action relied on by the plaintiff, based on the Regulations and Code, the defendant asserts by way of its defence that:
(a) The Regulations and the Code (which is incorporated into the Regulations) do not give rise to a private right of action for breach of statutory duty;
(b) If the Regulations and Code do give rise to a private right of action for breach of statutory duty, the plaintiff has not established a breach by the defendant;
(c) Even if the plaintiff has established a breach, the breach will only found a private right of action where the damage that is suffered is damage of a kind which the statutory duty was intended to prevent (here, injury by reason of an inability to exit the building in an emergency) which is not here the case:
(d) In any event, the breach (if established) is of a duty to comply with the Regulations to avoid injury in circumstances where exit in the case of an emergency is inhibited, and so the breach, if any, is not causative of the worker’s injury.[57]
[57]See paragraphs 11A, 11B, 11BB, 12A, 12B and 12C of the Defence
77 Before determining these issues between the parties, it is appropriate to set out the evidence which each party relies on to support their respective cases. I will refer to evidence not only in this proceeding but to some of the evidence in the first proceeding.
Evidence of the worker
78 The worker gave evidence in the first proceeding that she had been a teacher at the school since May, 2000, and from February, 2002, had been employed as the Religious Education Co-ordinator. On the day that she suffered injury, she and another teacher were intending to take children into the parish hall to prepare for a forthcoming concert. The other teacher had the key to the parish hall and when she could not open the door she asked the worker to come and help. The worker opened the door and when standing in the doorway telling children to be quiet outside the parish hall, she became aware that something struck her on the head.[58] Prior to the incident, the worker had used the parish hall and gone through this doorway “frequently”.[59] Furthermore, she had gone through the doorway “many times” and had never had a problem of anything falling down.[60]
[58]See T52, L27 – T53, L22
[59]T219, L21-22
[60]T219, L22-26
The evidence of Ann Marie Shepherdson
79 In the first proceeding, Ann Marie Shepherdson (“Shepherdson”) gave evidence on behalf of the worker. She described herself as a retired principal and in particular, she had been the principal of the school for about six years and was the school principal at the time of the incident. Furthermore, she had been the principal for about three or four years prior to the incident.[61]
[61]T549, L30 – T550, L2
80 Shepherdson gave evidence that prior to the incident, she had been in and out of the parish hall many times and that the hall was used regularly by staff and students. Over that period of time, she had never noticed the metal cover over the door-closing mechanism to be loose and indeed gave evidence that she had never noticed the cover at all before the incident. To her knowledge there had never been a prior incident of the metal cover falling off or being reported loose or anything of that nature.[62]
[62]T551, L18-29
81 Under cross-examination, Shepherdson identified the manual referred to by Moore sent out to various schools by the Building Office of the Archdiocese of Melbourne.[63] She accepted that she would have looked at it and familiarised herself, at least in general terms, with the contents of the document. In particular, there was no issue that on page 5 of the document it was stated:
“A major responsibility of the parish priest or school principal, is therefore to establish a program of preventative maintenance, which, in the long run, will lessen the need for major repairs in parish and school buildings. It is suggested that all parishes (and schools) establish a ‘Building and Grounds Committee’ which will call upon professional and trades people within the parish, to meet on a regular basis, as a committee, to inspect and advise on the maintenance of buildings, under the care of the parish or school.”
[63]See Exhibit AA
82 Shepherdson also described how Pittle effectively did odd jobs around the school and the parish and there were various working bees by parents of children at the school to perform maintenance and the like or construction activities at the school. She gave evidence that to the “best of my ability” she inspected and looked at the school to make sure that there was nothing evident that required attention in advance of any problem.[64]
[64]See generally T570-571
83 In particular, she described Pittle as a “part-time … maintenance man” who did things of “a general nature, a smaller nature that handymen do”.[65]
[65]See generally T552-553
The evidence of Pittle
84 Pittle gave evidence that he performed odd jobs around the parish area which encompasses both the school and grounds. In particular, notes were written in an exercise book by various people at the parish for things to be attended to.[66] His position is probably best described by the following evidence:
“Q:All right. Do you remember whether you started the maintenance work in the sense that you’ve described it, before or after the end of 2001?---
A:Can I make a point here please. I wasn’t there to do maintenance work. I was there as a hands and feet fiddling, suiting myself. Maintenance work was carried out basically on the requirement of trades. So if there was a little fiddly job that I saw I might do it but other work, maintenance work well it [is] done by whatever. I was fiddler. I wasn’t the maintenance man.”[67]
[66]See Exhibit 2
[67]T734, L7-15
85 Pittle made it quite clear that from his experience, reactive maintenance – that is reacting to a particular situation or problem – was preferable to what he referred to as “proactive maintenance” which, from his experience, only caused a waste of money. He accepted in cross-examination that he brought such philosophy with him when he performed work around the parish.
The evidence of Father O’Neill
86 Father O’Neill was the parish priest at Diamond Creek from February, 2003 until about May, 2011. He described how Pittle did odd jobs around the school and the parish – such jobs might involve checking why a toilet was not flushing or replacing light bulbs. He also gave evidence that a maintenance committee existed consisting largely of parents who would respond to the needs of the primary school and perform such activities as maintenance and construction of playgrounds, planting trees and whatever was within their capacity.
87 In particular, Father O’Neill gave the following evidence:
“Q:And so what I’m really asking you about is whether a school in your time had some sort of system in place which anticipated problems which might never occur?---
A:I would suggest to you that what you’re suggesting is pretty impossible because how do we know the structural strength of bolts that may be rusting or whatever. Talk to the bloke who runs the chairlift off Arthur’s ---. It’s impossible to look forward and say, ‘We’ve got everything covered. All the bases are covered.’ And I think that would always be the situation no matter what sort of circumstances we’re looking at. The question becomes, are we culpable because we don’t know the strength of these bolts.
Q:Putting aside the issues of culpability, just again attempting to prevent bad things happening, what sort of system did the school have in place by means of preventing matters?---
A:If something was noticed that needed to be attended to it would be written into a book which somebody like Laurie Pittle would respond to. And if in fact there was something more significant, for instance that I get a phone call in the middle of the night that bricks had gone through half a dozen windows, that I’m responsible to make contact with Eltham Glass to get the process in train.”[68]
[68]T798, L25 – T799, L16
The evidence of Mr Richard Lightfoot
88 Mr Richard Lightfoot (“Lightfoot”) gave evidence on behalf of the plaintiff. He described himself as a consulting engineer, and his various qualifications and expertise were set out in a report dated 31 October 2011.[69]
[69]See Exhibit 3
89 Later, under cross-examination, Lightfoot gave evidence that he has qualifications across a range of engineering sciences, including civil engineering, electrical engineering and mechanical engineering, with special emphasis in large scale engineering applications. Furthermore, he has a sub-speciality in the mining, petroleum and geological industries, together with particular expertise in occupational health and safety type inquiries and investigations. Lightfoot accepted that he did not profess to be a registered building surveyor and that he had no expertise to undertake an audit of a building to determine whether it complied with essential services regulations.[70]
[70]See generally T867, L17 – T868, L2.
90 In his evidence-in-chief, Lightfoot was taken to the evidence of various witnesses in the first proceeding in relation to the circumstances of the incident and the use of the door in the parish hall, after which the following evidence was given:
“…required in relation to that building or place under the Act or these Regulations or any corresponding previous Act or regulations … .”
The plaintiff does not plead or point to any legislative provision which gives rise to such requirement that would make the metal cover “safety equipment”, “safety fitting” or “safety measure”;
(b) The words “safety equipment”, “safety fitting” or “safety measure” properly construed should be construed relative to the function of an exit door but without particular regard to how it closes or to any closing mechanism. In this sense, I adopt the position of Burton and reject the evidence of Lightfoot on this issue.
99 In relation to Regulation 11.10, the plaintiff essentially asserts that it is not “tenable” to assert that an exit door is accessible and functional with respect to access if it constitutes a danger by reason of a falling metal cover. Again, such submission must be rejected for at least two reasons:
(a) The thrust of the Regulation is that egress from the parish hall is maintained. The owner of the building must “ensure” that the exits and paths of travel to the exits are maintained in an efficient condition and kept readily accessible, functional and clear of obstruction so that egress from the building can be maintained. In the circumstances of this matter, I do not consider that it can be asserted that egress from the building was not maintained as a result of the exit or paths of travel to the exits being readily accessible, functional and clear of obstruction;
(b) As submitted by those acting for the defendant, it cannot sensibly be suggested that the failure of the screw holding the metal cover over the door-closing mechanism obstructed egress from the building. The facts establish that the worker was not leaving the building at the time of the incident but rather was standing in the doorway of the parish hall.
100 In relation to the alleged breaches of various parts of the Code, it must be remembered that the plaintiff pleads that the door-closing mechanism and its cover were “safety installations referred to in PART 1l of the Building Code of Australia 1996” and that the incident was caused by a breach by the defendant of its statutory duties under clause 1F1.1, 1P1.1 and 1I1.1 of that Code.
101 I accept the submissions of the defendant that it is clear that the term “safety installations” as used in the Code is a reference to equipment, installation and components that are “essential to the safety of the people”, being people who use the building throughout its life in the context of the references in the Code to matters such as fire doors, smoke doors, fire shutters, fire windows, fire fighting equipment, smoke hazard management and latch operation of an exit door. The metal cover of the door-closing mechanism is not a required “element” for the door to perform its function as a door, and it is not essential to the safety of the people. I find that the metal cover was not a “safety installation” within the meaning of the Code. In this respect, I also accept the evidence of Burton on this issue and reject the evidence of Lightfoot.
102 In any event, I am not satisfied that any purported breach of the Regulations which include the Code give rise to a private right of action for breach of statutory duty. The defendant refers to ‘Halsbury’s Laws of Australia’[88] which sets out the various factors the plaintiff would have to have proved to succeed in an action for breach of statutory duty. Such factors include:
[88]415-1310
(a) a statutory duty imposed on the defendant;
(b) a legislative intention that the statute imposing the statutory duty confers on an individual private civil cause of action in respect of a breach of that duty;
(c) the statutory duty is owed to the worker, in that the worker was a person or a member of a class of persons for whose benefit the statutory duty was imposed;
(d) a breach of the statutory duty; and
(e) damage of a kind which the statutory duty was designed to prevent, and that damage was caused by the breach of the statutory duty.
103 For reasons which have already been advanced in this judgment, I accept that various parts of the Code relied on by the plaintiff and Regulations 11.9 and 11.10 of the Regulations do impose a statutory duty on the defendant. Furthermore, as I have already found, I do not consider that the defendant has breached any of the aforesaid statutory duties. If I be wrong about that, I consider any such a breach or breaches do not give rise to a private right of action for breach of statutory duty.
104 The question of an individual’s right to sue for breach of some statutory duty imposed generally upon another has been referred to as “troublesome”.[89] As noted by Phillips JA in that case, the usual starting point is the judgment of Dixon J in O’Connor v SP Bray Ltd,[90] where his Honour said:
“… The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct, and does no more than penalise a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction. The difficulty is that in such a case the legislation has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy.
As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the Legislature as a result of presumption, or by reference to matters governing the policy of the provisions, rather than the meaning of the instrument. Sometimes it almost appears that a complexion is given to the statute upon very general considerations, without either the authority of any general rule of law or the application of any definite rule of construction. … .”
[89]See Gardiner v State of Victoria [1999] 2 VR 461 at paragraph [21] per Phillips JA
[90](1937) 56 CLR 464 at 477-478
105 The comments of Dixon J in O’Connor are reinforced by Kitto J in Sovar v Henry Lane Pty Ltd,[91] where his Honour said:
“… But at the outset of every inquiry in this field it is important, in my opinion, to recognize, notwithstanding the views expressed by some writers … that the question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then ‘imputed’ to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation. … It is not a question of the actual intention of the legislators, but of the proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances. … .”
[91](1967) 116 CLR 397 at 405
106 Much of what was quoted in Sovar was approved by Brennan J in Sutherland Shire Council v Heyman,[92] and by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd.[93]
[92](1985) 157 CLR 424 at 482
[93](1995) 185 CLR 410 at 460-1
107 In Gardiner,[94] Phillips JA sets out various “factors” which are relevant in determining whether the statute evinces an intention that the individual should have a right of action for a breach of the statutory duty. These factors include:
[94]op cit
(a) Phillips JA refers to the judgment of Brennan CJ, Dawson and Toohey JJ in Byrne,[95] where they state:
[95](op cit) at page 24
“A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage … .”
Phillips J goes on to state:
“Thus it is often asked whether, upon a proper consideration of the scope and purpose of the statute as a whole, it can be said that the Act which contains the particular obligation at issue was passed primarily for the general good; for if the statute as a whole can fairly be characterised as passed primarily for the general good rather than for the benefit or protection of some only within the wider community, that is nowadays regarded as pointing strongly against a Parliamentary intention that an individual should be able to sue for non-compliance with some particular provision. … .”[96]
[96]See Gardiner (op cit) at page 469, paragraph [24]
(b) Phillips JA also states that a penal sanction will be commonly found attached to the legislative instrument, and “prima face that excludes the implication of additional civil liability”.[97] However, Phillips JA notes, where there is no penalty or other remedy for breach of the statutory duty, or if the penalty which is fixed is considered inadequate, that can point towards the individual’s right to sue for breach;
[97]Gardiner (op cit) at paragraph [25]
(c) Phillips JA notes that in Australia since the decision of O’Connor,[98] it has been accepted that in the area of health and safety in employment, a statutory duty imposed on the employer is imposed for the protection of those whose personal safety is put at risk by non-compliance, and in them is recognised a right to sue for damages for breach, notwithstanding that non-compliance is also penalised as an offence. In particular, I refer again to Kitto J in Sovar:[99]
[98]op cit
[99](op cit) at pages 405
“In the case of an enactment such as s 27(1), prescribing conduct to be observed by described persons in the interests of others who, whether described or not, are indicated by the nature of a peril against which the prescribed conduct is calculated to protect them, the prima facie inference is generally considered to be that every person whose individual interests are thus protected is intended to have a personal right to the due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention. … At least this is so where the peril provided against is one of personal injury and the relationship existing between the person enjoined and the person protected is one which is recognized by the common law as giving rise to a duty on the part of the former to take precautions for the safety of the latter. … .”
As noted by Phillips JA, the recognition of the employee’s right to sue for breach of such a statutory duty owed something to the employer’s duty to take reasonable care for the safety of his employees. Again, he refers to Dixon J in O’Connor,[100] where Dixon J stated:
“In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognised by the general principles of the common law. … .”
[100](op cit) at page 478
108 Counsel for the defendant referred to ‘Halsbury’s Laws of Australia’[101] which set out what are said to be relevant factors in determining whether breach of a statutory duty gives rise to a private cause of action. Such factors include, beyond those matters referred to by Phillips JA:
[101]415-1345
(a) the convenience or inconvenience which will result from the existence or non-existence of a right of action;
(b) sufficiently identifies specific precautions or measures or whether it merely specifies ends not means.
109 I consider that the Regulations (which include the Code), properly construed, do not evince an intention that an individual should have a right of action for breach of the statutory duties contained therein. I have reached such conclusion for the following reasons:
(a) Penal provisions are attached to Regulations 11.9 and 11.10 and prima face that excludes the implication of additional civil liability;[102]
[102]Neither counsel could refer me to any decision supporting the view that the Regulations gives rise to an individual having a right of action for breach of the statutory duties contained therein.
(b) The pre-existing law tells strongly against an intention to founder a private right of action. As submitted by the defendant, an owner, qua owner, without more, does not owe a duty to a person on land it owns. The situation is different from cases involving a breach of a statutory obligation cast upon an employer or a person who owes a duty of care analogous to that of an employer. Such a person owes a duty of care independent of the Regulations;
(c) The regulations contained in Division 2, PART 11 of the Regulations fail to sufficiently identify specific precautions or measures but rather refer to ends, not specific means.
110 The plaintiff submits that an inference can be drawn on the basis that a proper consideration of the scope and purpose of such Regulations as a whole would suggest that such Regulations were passed for the benefit of only some in the wider community rather than being passed for the general good. On balance, I reject such assertion, as the classification of buildings within the Regulations (and Code) extend to all types of buildings for which there are all types of entrants. It is difficult, in my view, to assert that the legislation was passed for the benefit of protection of some only within the wider community.
111 Accordingly, for at least the reasons I have advanced in this judgment, the plaintiff fails in relation to the causes of action based on alleged breaches of the Regulations.
112 I now turn to the other cause(s) of action relied on by the plaintiff. Such cause of action is based on the premise that the defendant was an “occupier” of the parish hall and owed a duty of care (statutory or otherwise) to the worker who was an entrant to the hall.
113 The critical issue arises as to whether the plaintiff can discharge its onus in establishing that the defendant was “an occupier” of the parish hall at the time of the incident.
114 Save as provided in s14A(a) of the Wrongs Act 1958 (set out earlier in this judgment), that Act neither provides who an “occupier” will be, nor gives any statutory guidance determining who, if anyone, will be regarded as an occupier of land or buildings for the purposes of that Act. Section 14A(a) provides, inter alia, that a reference to an occupier of premises includes a reference to the landlord of premises let under a tenancy.
115 Of course, it is common ground that the defendant was the Registered Proprietor of land on which the parish hall was situated at the time of the incident. Again, it is common ground that there was no tenancy agreement between the defendant and Father O’Neill, or for that matter anyone associated with the parish. There would appear to be no dispute that ownership of land without control is insufficient to make the owner an “occupier”.[103]
[103]Jones v Bartlett (2000) 205 CLR 166 at [45], [80] and [173]
116 The parties submit, and I accept, that the foundation of “occupation” is occupational control. I refer to the following comments:
(a) Brennan CJ, in Northern Sandblasting Pty Ltd v Harris,[104] stated:
[104](1997) 188 CLR 313 at 335-336
“…In the first place, occupation is not in itself the foundation of a duty of care owed to entrants upon the occupied premises. The true bases of the occupier's duty of care are the power of control which an occupier has to consent to another's entry and the power to safeguard the entrant against injury or loss from defects in the occupied premises. … .”
(b) Gummow and Hayne JJ stated, in Jones v Bartlett:[105]
[105](op cit) at pages 209, paragraph [150]
“…The decisions upon the UK Act, in particular that of the House of Lords in Wheat v E Lacon & Co Ltd …, indicate that the identification of a person as an occupier within the meaning of the statute depends on the particular facts, the nature and the extent of the occupation and the control exercised by that person over the premises in question. The definition uses the phrase ‘person occupying or having control’. In Wheat, Lord Pearson observed of the references in the UK Act to occupation and control that:
‘[t]he foundation of occupier's liability is occupational control, ie, control associated with and arising from presence in and use of or activity in the premises.’”
(my emphasis).
117 Finally, I refer to the recent Court of Appeal decision of Central Goldfields Shire v Haley & Ors,[106] wherein Redlich J stated:
“Even if the council were discharging functions affecting the highway in a number of capacities, it does not necessarily follow that the council must be an occupier. No sufficient attention was given at trial or on appeal to the nature and extent of the control that must be exercised over the relevant premises to establish occupation.[107] In Jones v Bartlett, the right to enter premises for the purpose of carrying out or inspecting necessary repairs to or maintenance of the premises did not demonstrate that the respondents had control of the premises. A particular application of the control test is seen in cases where a person has a right to immediate supervision and control and the power of permitting or prohibiting the entry of other persons. It will be a question of fact in each case whether there is a sufficient degree of control to make the person an occupier.”[108]
[106](2009) 24 VR 378
[107]Redlich JA refers to Jones v Bartlett (op cit) at pages 209, 210 at paragraph [150]
[108]Central Goldfields Shire v Haley & Ors (op cit) at page 398 at paragraph [73]
118 It is for the plaintiff to establish that the defendant had occupational control of the parish hall at the relevant time. Such a finding will depend on the particular facts, the nature and the extent of the occupation and the control exercised by the defendant over the parish hall.
119 The essential contention of the plaintiff was that the defendant was an “occupier” because “the defendant possessed and exercised relevant control by the way in which it imposed upon the parish priest its chosen form of maintenance of the premises”.
120 It is submitted by the plaintiff that such a course of conduct is demonstrated by a consideration of various documents and certain aspects of the evidence given by Moore and Father O’Neill.
121 The first issue pertains to the insurances held by the defendant. Moore gave the following evidence:
(a) Catholic Church Insurances Limited is an insurance company established under the Corporations Act and regulated by APRA. Although having shareholder dioceses and congregations, it operates as an independent insurer;[109]
[109]T939, L1-5
(b) The defendant, at the time of the incident, had entered into a composite property insurance policy in which the schedule names the insured to be the Trust for the Diocese of Melbourne, Sacred Heart School, Diamond Creek;[110]
[110]See Tab 12 of Exhibit 7
(c) The premium under that policy in respect to the school is made out on Catholic Church Insurances Limited letterhead to the principal of the school.[111] In particular, Moore gave this evidence:
[111]T939, L24-27
“Q:Are you able to tell His Honour why it is that the school is being invoiced?‑‑‑
A:Because if you go back a couple of pages you will see that there are particulars of a property which relate to the school within the operation of Catholic Church Insurances. They separate the activities of the parish from the school, identify those within a separate insurance schedule and invoice the school in relation to the school.”[112]
[112]T939, L28 – T940, L3
(d) In relation to public liability insurance, Moore gave evidence that the defendant takes out a master policy. In particular, Moore states:
“A:Your Honour, the trust takes out a - facilitates the arrangement of a master policy. Sitting under that master policy there are then policies that apply across each of the parishes and parish schools within the Archdiocese. Then my understanding is that CCI then invoice the parish and the parish school in relation to the cost to them of the insurance that has been arranged.
Q:So the trust at day’s end doesn’t pay anything of the premium?‑‑‑
A:The trust - no, the trust doesn’t pay the premium. The premium for example for assets that belong to the Archdiocese would be paid by the Archdiocese of Melbourne.
Q:Yes, but in terms of, in particular the Diamond Creek parish involving the school and the church and the various other buildings on that area, one way or another whatever the risks which are covered by that master policy the premiums for those risks are paid for by the parish rather than the Trust?‑‑‑
A:Yes, Your Honour.”[113]
[113]T940, L4-24
(e) Moore was then taken to the master policy for public liability for schools[114] and in a similar way an invoice is sent to the principal of the school for payment;
[114]Tab 13, Exhibit 7
(f) When queried as to why the Trust obtains insurance, Moore stated:
“A:The Trust is obtaining insurance because it's the registered proprietor of the properties upon which the parishes and schools and activities are conducted and it has the capacity to enter into contracts.”[115]
[115]T942, L22-25
(g) Under cross-examination, Moore accepted that the insurance policies entered into by the defendant were policies of the utmost good faith in accordance with normal insurance law;
(h) Moore was taken to Clause 7 of the Public Liability Policy, which reads, in part:
“…The insured … [the defendant] … shall exercise reasonable care to take reasonable measures to maintain all premises, fittings and plant in sound condition, and take all reasonable precautions to prevent personal injury.”[116]
[116]T986, L14-19
(i) Moore was asked whether that Clause sits “happily with all your evidence about how the Trust really relies entirely on the priest to be responsible for preventative maintenance and so forth”. Moore responded:
“The policy – the master policy – which the RTCT has is supported by policies that also sit under the master policy, and which name the Trust on behalf of the parish or the parish school as the beneficiary or as the insured. So in once sense it’s a cascading arrangement of policies to ensure that at the local level those obligations are reflected locally, and if an issue arises then the local parish is also insured.”[117]
[117]T987, L2-9
122 The plaintiff seemingly contends that, in part, occupational control is demonstrated by Clause 7 of the Public Liability Policy. In my view, a clause contained within an insurance policy between the defendant and a private insurer cannot form any basis for a finding that the defendant had occupational control of the parish hall. If Clause 7 of the Public Liability Policy is not complied with, the insurer may have a remedy against the defendant. The defendant contends, in any event, that various officers of the Archdiocese of Melbourne (in distinction to the defendant) satisfy such requirement by disseminating material for the maintenance of schools and the like.[118] The contents of Clause 7, in my view, cannot mean however that the defendant necessarily becomes an occupier. If the defendant breaches its warranty to the insurer, the insurer may well have a remedy.
[118]See Exhibit AA
123 Furthermore, the plaintiff also relies on the following documents:
(a) A draft agreement between the Catholic Archdiocese of Melbourne and Programmed Maintenance Services (“PMS”) to extend over the period from 11 December 2000 to 10 December 2003;[119]
[119]Exhibit 7, Tab 5
(b) Letter from the solicitors, Minter Ellison, to the Catholic Archdiocese of Melbourne;[120]
[120]Exhibit 7, Tab 6
(c) Maintenance proposal from PMS to the Catholic Archdiocese of Melbourne;[121]
[121]Exhibit 7, Tab 8
(d) An extract summary sheet – PMS inspections – including Diamond Creek School;[122]
[122]Exhibit 7, Tab 10
(e) Manual of the Catholic Archdiocese of Melbourne Maintenance of Parish School Buildings;[123]
[123]Exhibit 7, Tab 11
(f) Letter from PMS to the Catholic Archdiocese of Melbourne (Mr Klep);[124]
[124]Exhibit 17, Tab 14
(g) Agreement between the defendant and PMS for three years services, maintenance and management, dated 17 February 2004;[125]
[125]Exhibit 7, Tab 20
(h) Catholic Archdiocese of Melbourne Circular 9 – 2005;[126]
[126]Exhibit 7, Tab 22
(i) Letter of protest from Father O’Neill to Mr Exell dated 5 September 2005;[127]
[127]Exhibit 7, Tab 24
(j) Further letter of protest from Father O’Neill to the Archdiocese of Melbourne dated 12 January 2006;[128]
[128]Exhibit 7, Tab 28
(k) Adjustment note to Father O’Neill by the Catholic Archdiocese of Melbourne;[129]
(l) Catholic Archdiocese of Melbourne letter to Father O’Neill dated 20 February 2006.
[129]Exhibit 7, Tab 29
124 Moore gave evidence that as a result of the process of discovery, only a “draft” agreement could be located between the defendant and PMS over the period from 11 December 2000 and ending on 10 December 2003.
125 Moore gave evidence that a thorough search of the records of both the defendant and the Archdiocese of Melbourne failed to locate a completed agreement and furthermore, enquiries with PMS failed to locate such an agreement.
126 There is no issue that such an agreement existed between the defendant and PMS from 17 February 2004 and thereafter.[130]
[130]Exhibit 7, Tab 20
127 Moore accepted that there would have been an agreement entered into by the defendant with PMS for the period from 2001 to 2004. As pointed out by Moore,[131] the Catholic Archdiocese of Melbourne wrote to various parishes on 23 February 2001 in the following terms:
“The Archdiocese of Melbourne has engaged Programmed Maintenance Services to provide essential service compliance management to properties under the jurisdiction of the Roman Catholic Trust Corporation. Programmed Maintenance Services’ role is to ensure relevant properties are inspected and provided with certification documentation outlined in the Diocesan Building Advisory Service publication ‘Essential Service Maintenance Inspection Reports’ October 1999.”[132]
[131]T972, L14-20
[132]See Exhibit 7, Tab 22
128 Moore accepted that there would be no material difference between the agreement entered into on 17 February 2004 and the agreement entered into by the defendant for the previous three years. I do find as a matter of probability that the defendant entered into an agreement with PMS for the period from 2001 to 2004 whereby PMS agreed to perform an audit of the essential services as required by the Regulations.
129 In particular, Moore gave the following evidence:
(a) He accepted that there was no reference in any agreement between the defendant and PMS that any particular parish priest is a party to such agreement or that there has been consultation with any particular parish priest about the agreement.[133] Further, he accepted that no parish priest was a signatory to any such agreement.[134] In particular, the following evidence was given:
[133]T971, L18-23
[134]T975, L2
“Q:“He … [the parish priest] was not part of a discussion with the PMS before the agreement was drawn up as to what PMS would do?---
A:No.
Q:The services of PMS required them to attend upon the school – take this actual case, the Diamond Valley School?---
A:Yes.
Q:To do work?----
A:Yes.
Q:The bill would be paid by the parish?---
A:Yes.
Q:Whether or not the priest liked PMS, or whether or not the priest didn’t like PMS, he was expected to permit PMS to go in and do its work?---
A:Well, I think that – we would hope that that would be the case. But it would be within the authority, as I would understand it of a parish priest, if he didn’t like PMS or if he had a local person who could undertake the service – to prefer the service of the local person.
Q:Yes. You mean he would have the ability by reason of Canon Law?---
A:By reason of his office as parish priest, yes.”
HIS HONOUR:
“Q:Has that ever happened to your knowledge?---
A:No that I am aware of, your Honour, no.”
MR RUSKIN:
“Q:Indeed, the real understanding is that he would be expected to comply with PMS and that if he was dissatisfied with any aspect he could of course raise it with the Trust or whoever?---
A:Yes he could.
Q:Isn’t that the reality?---
A:Yes he could, yes.”[135]
[135]T975, L3-25
(b) Moore was taken to various excerpts of the transcript where Father O’Neill gave evidence about his dissatisfaction with certain aspects of the work undertaken by PMS.[136] He was also referred to letters of protest by Father O’Neill dated 5 September 2005 (to Mr Exell, the then business manager of the Archdiocese of Melbourne)[137] and one dated 12 January 2006 to the Archdiocese of Melbourne;[138]
[136]See generally T756-T757
[137]Exhibit 7, Tab 24
[138]Exhibit 7, Tab 28
(c) The attitude of Father O’Neill is perhaps best expressed by this evidence:
“Q:What I think counsel is pushing is this. Ultimately, even though the Archdiocese may well have arranged for PMS initially to do an audit and then put the book there and come every quarter, or how often they came, is it the case that for whatever reason, dissatisfaction with them or for whatever reason, can you in your role as the parish priest, just say, ‘Don't come any more.’ Or is it the Archdiocese has the control over that?‑‑‑
A:Your question says - asks the question ‘Can’. My suspicion is that if you look at Canon Law which is in another world, it probably says that I can. But in the world in which I live there's no way I believe that I could.”[139]
[139]T788, L23 – T789, L5
(d) When put to Moore that what Father O’Neill was describing was the “practical reality” as to his role in preventing PMS entering the parish premises, Moore stated:
“A: Well, I would say I have to rely upon Father O'Neill's evidence that he wasn’t consulted so I accept that.
Q: Right?‑‑‑
A: The - in terms of PMS being engaged, yes, they were engaged by the Trust to undertake a service.
Q: Yes?‑‑‑
A: A service that was required to be undertaken because of the regulations which relate to essential services.
Q: Yes, and if it hadn’t been interpreted that way by the Trust, if the Trust said, no, we've got a different view here, we think that we will actually maintain in a preventative way by assisting the priest, we’re going to get out people in there to do a preventative maintenance, the Trust could have done that?‑‑‑
A: The Trust, Mr Ruskin, doesn’t have the resources to do that, the physical resources, to do that itself, no.
Q: But it could have said, just as it did with PMS it could have said the arrangement with PMS not consulting the priest is not just essential services but we want to do preventative maintenance and you can pay for it. That's exactly what the Trust could do within its power?‑‑‑
A: I’m not sure that I would say that it could that within its power. I mean if the Trust was wanting to provide a service in an area in which it hadn’t sought the engagement generally of the clergy of the Archdiocese then either the business manager at the time or the Archbishop of the time would be approached about that matter. My assessment would be the parish priest would understand that this is important work. It needs to be undertaken in a sense for the protection of all those who come into the parish or the parish school and it's as much for their protection as for anybody.
Q: In your evidence earlier you said in answer to Mr Santamaria's question you said, the Trust doesn’t decide - I might have this roughly right so please interrupt me if I can it wrong. I suggest you might have said in answer to this question. Does the Trust have any say in who comes onto the property or the school and you said, no?‑‑‑
A: I said, no. Yes.
Q: Wrong, Mr Moore because the Trust does as illustrated by the fact that it makes the decision to send onto the property PMS doesn’t it?‑‑‑
A: I understood the question to be to mean, when it was asked of me, does the Trust have the capacity to say to the parish priest who can't come onto the property. Now, I think within the operation of a parish in that sense it’s the authority of the parish priest to determine who can and can't come onto the property.
Q: Well let’s talk about the positive rather than the negative?‑‑‑
A: Yes.
Q: If the question had been asked, does the Trust - can the Trust has (sic) the power to make a decision about who can come onto the property the answer would be yes?‑‑‑
A: Well, I thin[k] in this particular case the Trust engaged PMS. The Trust wrote to the parishes to say that PMS had been engaged.
Q: Yes?‑‑‑
A: And that PMS would be making contact about making a visit to the parish.
Q: Yes?‑‑‑
A: So it’s not as if the Trust is asking people to go onto the parish without notice to the parish concerned.”
HIS HONOUR:
Q: By the same token it's not the situation is it where, you know, if you're interested in this service sign this box or tick this box, if you're not interested no one will come out?‑‑‑
A: No, it didn't happen in this ‑ ‑ ‑
Q: No, it was put on the basis this is happening?‑‑‑
A: Yes.
Q: And there may be a bit of argy bargy about someone might ring up, we might come out next Tuesday and someone says for one reason or another, no, we're having a concert that day, that’s inconvenient. Might be Thursday. But the fact of the attendance by program maintenance was - that's what the Trust wanted to comply with their statutory obligations?‑‑‑
A: Yes.”[140]
[140]T977, L30 – T980, L5
130 After a consideration of all of the evidence, I am not persuaded that the defendant was an occupier of the parish hall at the time of the incident or indeed, at any time. I consider that on the evidence before me, the nature and extent of any purported occupation by the defendant and purported control exercised by the defendant over the premises does not constitute occupational control as earlier defined. I have come to such conclusion for the following reasons:
(a) When the plaintiff contends that the defendant imposed upon the parish priest “its chosen form of maintenance of the premises”, such reference can only be in relation to the essential services requirements undertaken by PMS. In this sense, it is to be stressed that the defendant as the owner of the relevant property was required to have such essential services audits undertaken by way of legislation;
(b) It is also important, in my view, to keep steadily in mind the distinction between the defendant and the Archdiocese of Melbourne which had the various business units which clearly frequently communicated with various parishes within the Archdiocese;
(c) It is also important, in my view, to view the role of the defendant in the context of the evidence given by Moore, who described the role and activities of the defendant;
(d) There is no doubt that the evidence of Father O’Neill indicated that PMS was essentially imposed on him, although I gained the impression that his essential complaint was that for the money paid, PMS did very little. In any event, as submitted by the defendant, I consider that the defendant made no relevant choice for imposing a maintenance regime. When the defendant engaged PMS it was discharging a statutory obligation as an owner and it does not reflect a decision made by the defendant to exert control or influence over the condition of parish property. Furthermore, although not conclusive, I am also conscious of the principles of Canon Law which are applicable to the internal workings of the Roman Catholic Church.
131 Every owner of property in Victoria must comply with the essential services legislation as set out in the Regulations. In particular, on the contention of the Plaintiff, a landlord/owner performing its obligations under the Regulations becomes an occupier of leased premises with no more than compliance with the Regulations.
132 Accordingly, I am not satisfied that the defendant is an occupier and the cause of action based on occupation fails.
Conclusion
133 As the plaintiff has failed in establishing that the injury suffered by the worker “was caused under circumstances creating a liability in … [the defendant] to pay damages …”, the application must be dismissed. There will be judgment for the defendant.
134 I will hear the parties in relation to the issue of costs.
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