Haines v Tempesta S89/1995 [1996] HCATrans 40 (5 February 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S89 of 1995

B e t w e e n -

TREVOR WILLIAM HAINES

Applicant

and

ANNA TEMPESTA

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 FEBRUARY 1996, AT 2.51 PM

Copyright in the High Court of Australia

MR K. MASON, QC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend MS R. McCOLL, SC, for the applicant. (instructed by I.V. Knight, Crown Solicitor for the State of New South Wales) (Ms McColl did not appear in Court)

MR D.M.J. BENNETT, QC: If the Court pleases, I appear with my learned friend, MR J.O. ANDERSON, for the respondent. (instructed by Steve Masselos & Co)

GAUDRON J: Yes, Mr Solicitor.

MR MASON: Your Honours, this was a common law claim for damages for employer's negligence. It was not a workers' compensation claim.

GUMMOW J: Does that make it more attractive?

MR MASON: It was affected by 1989 amendments to the Workers' Compensation Act 1987 which had restored the right to bring claims at common law but had limited the quantum of that right in certain respects. The form of the legislation passed in 1989 indicated, in my submission, that it was concerned with a matter of substance and a matter of equity as between different classes of employers and employees. The respondent sued the nominal defendant, Mr Haines, on the basis of there being a Crown liability for the negligence of which he complained. The Crown was liable because a Mr Lee was employed by the Crown even though he was located within the Department of Education. Your Honours would know Mrs Tempesta was located in the Department of Administrative Services, although the injury occurred when she was temporarily working at a school building. We would submit, using your Honour Justice McHugh's language in a case referred to in the outline, that it was a matter of the law of agency and public policy that established that the respondent's liability derived from the Crown being the employer of Mr Lee.

Our submission is that the legal concept of service in the Crown has overriding fundamental and recurring significance. It touches special rules for dismissal, rights of promotion, rights of superannuation. It would preserve rights flowing from the abolition or restructuring of a department such that that would not constitute a dismissal of an employee located in that department. It touches the shield of the Crown and constitutional doctrines which affect the Crown and the State. Our submission is that the Court of Appeal judgment in this case treats the notion of service of the Crown as a "curious fiction", that being a reference to page 43 line 39, a description of the President of the way Crown employment as a concept might be seen by the person in the street. The expression "fiction" is also referred to in page 46 line 51.

What the court's judgment does, in our submission, is to treat service of the Crown as a weak and waning presumption which, in the present case, was displaced by two matters. It was displaced by the practice under the former Workers' Compensation Act, the 1926 Act which, under a special rule which was not repeated in the 1987 Act, allowed a department - indeed, it did not survive till the end of the 1926 Act either - to be sued eo nomine. That was a practice, in our submission, which provided a procedural device but did not in any way change the substance any more than in cases such as Inglis v Commonwealth Trading Bank. The substance of the matter was changed by the joinder or nomination of the bank as the defendant rather than the Commonwealth.

The second basis upon which the court displaced the presumption was a construction of the extended definition of the term "government employer". Your Honours will find that at page 35 of the application book.

GAUDRON J: That is your real difficulty, is it not? That construction does allow that a department or, indeed, any person or body exercising executive or administrative functions on behalf of the government is an employer.

MR MASON: That construction which then reads back in a couple of places in the Act; one to deal with insurance arrangements, another in the definition of employer itself at the bottom of page 34 clearly extends and clarifies what is a Crown employer but it does not divide the notion of government employment.

GAUDRON J: But the only question we are concerned with is the meaning of "employer" in terms of the definition to include not the government; a government employer.

MR MASON: Your Honours are concerned with more than that, in my submission, because the critical provision, 151E(1), which is set out on page 35 and sets the scope of the division which limits common law damages awards uses technical language:

negligence or other tort of the worker's employer -

Now, the notion of a tort and the notion of a tort of a particular employer must necessarily, a fortiori in the context of a common law damages claim, import a need to determine who the employer is in point of law. All that the extended definition of "government employer" does is clarifies for present purposes the scope of the notion of employer and makes it plain that bodies that may or may not be, as it were, on the periphery of the Crown are clearly within the scope of the Crown or the government employer and, therefore, within the scope of the Act.

It is a definition taken over from the former Act which dealt with workers' compensation primarily and it is too slender a branch upon which, in our submission, to sever the Crown and to sever the Crown in such a way as to the give the unprincipled loophole through which the respondent has successfully passed in these proceedings so far.

GAUDRON J: They are the words of the statute.

MR MASON: Yes.

GAUDRON J: That does not necessarily mean that there is an unprincipled loophole in a definition particularly. The words have to be given the meaning that they appear to bear.

MR MASON: Yes, the words have to be construed and the Court would favour a construction that would avoid creating a difference between the government on the one hand and BHP on the other which would have several divisions.

GAUDRON J: And perhaps several companies, all of whom are employers. It may, in fact, be equating them more nearly to the position with BHP.

MR MASON: That is a possibility but not the primary one, in my submission. It is also unprincipled in that it draws a distinction between one category of government employee and another without any basis in principle for doing so. If it is a lucky distinction, no doubt the respondent will say that the - - -

GAUDRON J: It equates them with the people who work in private enterprise.

MR MASON: Who work in private enterprise who can point to the negligence of a third party.

GAUDRON J: For example, a person employed by A to do work on the premises of company B.

MR MASON: Yes.

GAUDRON J: Same situation.

MR MASON: If A and B are different persons in law, they have that benefit. The question is whether the definition of government employer in the context, and that is the only relevant context, of the extended definition of "employer" operates to do more than embrace but operates to sever the notion of government employer. To call upon it to do that in the context of a provision like 151E(1) which has the purpose I have referred to and which uses the technical language I have referred to is, in my submission, calling upon it for a task it was not designed to achieve.

Your Honours, Mr Lee's carelessness was attributable to his employer, the Crown. There is no suggestion, nor could there be, that the Department of Education committed a tort. Indeed, had the Department of Education been treated as a separate employer then one wonders the basis upon which Mr Haines was appointed nominal defendant and the basis upon which the Crown through Mr Haines was sued in these proceedings. So, your Honours, there is, in my submission, an interpretation which uses - - -

GUMMOW J: There seems to be an assumption there that the claims against the Crown Act - which is the relevant Act, is it not, in New South Wales?

MR MASON: At the relevant time.

GUMMOW J: Yes, at the relevant time. It has changed now, but at the relevant time that that, as it were, picked up, treated as a claim against the Crown a claim against a department being a government employer under this Act. Is that right?

MR MASON: Well, it picked up claims against the Crown in whatever guise they were if in substance they were claims against the Crown.

GUMMOW J: Yes.

MR MASON: So, an Act which deals, as I submit this one does, with a point of substance, "any person having or deeming himself to have a just claim or demand.....against the government may", et cetera. That provision was available because this was a common law claim and yet, in my submission, the substance of the notion of Crown employment which was invoked in choosing the defendant was ignored in seeking to avoid the limitation upon damages that it was - - -

GAUDRON J: Well, there is a logical explanation for that.

MR MASON: The logical explanation was this bad - - -

GAUDRON J: That is to say there is a limitation in the Workers' Compensation Act which is of general application which has to be construed in the light of the provisions of that Act.

MR MASON: The limitation in part was a carry-over of a provision which did not change the substance of employment. To be able to sue the Department of Education for workers' compensation did not mean, in my submission, that the Department of Education became the employer in point of law. It was a practical procedural mechanism available in the context of the old Workers' Compensation Act. There was no basis for continuing it over and there was no basis particularly for applying it to a matter addressing employment generally and liability for negligence for employment injury in particular simply because it had been placed into this statute.

Your Honours, the reason why the case would attract a grant of special leave, in my submission, is that it proceeded as a test case - that is referred to in pages 12 and 30 - and there are a number of other similarly placed cases in the wings. Secondly, the Court of Appeal by its construction defeated the purpose of the legislative scheme and created an unprincipled and discriminatory loophole that has no justification in point of principle nor, we would contend, in point of language. Thirdly, the reasoning of the Court of Appeal treats a recurring matter of fundamental importance to the law of agency and public law as a weak and waning presumption.

Fourthly, in answer to the suggestion by my learned friend that the Crown can easily fix it up and therefore that should be a basis for refusing special leave, that cannot nor, in my submission respectfully, should it be a universal basis for refusing special leave where there is a demonstrated injustice. In any event, as a general proposition it elides the separate functions of the Crown on the one hand and the Parliament in a bicameral legislature in another. For those reasons, in our submission, there should be a grant of special leave.

GAUDRON J: Thank you, Mr Solicitor. We need not trouble you, Mr Bennett.

MR BENNETT: If the Court pleases.

GAUDRON J: This application raises a question as to the meaning and application of section 151E of the Workers' Compensation Act in the light of definitions contained in that Act. The application neither raises a question of public importance nor enjoys sufficient prospects of success to warrant the grant of special leave. In the circumstances, the order will be that the application for extension of time within which to seek special leave to appeal is refused.

MR BENNETT: May it please the Court, I seek costs of the application for extension of time and the application for special leave.

GAUDRON J: Do you oppose that?

MR MASON: No, your Honour.

GAUDRON J: There will be an order for costs.

AT 3.07 PM THE MATTER WAS ADJOURNED