Frost v The Speaker of the Legislative Assembly of NSW & 2 Ors

Frost v The Speaker of the Legislative Assembly of NSW & 2 Ors - [2001] NSWSC 639 - NSWSC 2001 case summary — Zoe

[5]

Mr I McLachlan (Plaintiff) COUNSEL : Mr D Baran (Third Defendant) Etheringtons (Plaintiff) SOLICITORS : Barclay Benson Lawyers (Third Defendant) CATCHWORDS : Summary judgment - third defendant only Supreme Court Rules Crown Proceedings Act 1988 (NSW) Law Reform (Vicarious Liability) Act 1983 LEGISLATION CITED : Crown Redress Act 1981 Police Act 1863 (Qld) Workers Compensation Act 1987 Construction Safety Act Industrial Relations Act 1996 Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Webster & Anor v Lampard (1993) 177 CLR 598 Enever v the King (1906) 3 CLR 969; 12 ALR 592 (HC) Ryder v Foley [1906] 4 CLR 422 Holly v Director of Public Works (1988) 14 NSWLR 140 Prior v State of New South Wales [1998] NSWSC 633 Deaton v Flew (194) 79 CLR 370 Kondis v State Transport Authority (1984) 154 CLR 672 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 CASES CITED : Scott v Davis [2000] 175 ALR 217, [2000] HCA 52 Lepore v State of New South Wales & Anor [2001] NSWCA 112 Elliott v Bickerstaff (1999) 48 NSWLR 214 Ward v Central West Group Apprentices Pty Limited & Anor (unreported, Ireland J, 12 December 1995) Bega Co-operative Society Limited v The Milk Authority of Australian Capital Territory (unreported 12 May 1992, Federal Court) Bruce v Odhams Press Ltd (1936) 1 KB 697 Pinson v Lloyds and National Provincial Foreign Bank Ltd (1941) s KB 72 Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd ( Federal Court of Australia, French J, 3 September 1991, unreported) Ratcliffe v Evans (1892) 2 QB 524 Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 McHenry v Lewis [1882] AC 397 Maple v David Smyth & Co Limited [1974] 1 NSWLR 290 DECISION : (1) The statement of claim is struck out; (2) The plaintiff is to file and serve an amended statement of claim within two months; (3) Costs are costs in the cause.

[15]

The statement of claim 9 Paragraph 1 of the statement of claim is common ground between the plaintiff and third defendant. It states that between 1988 and 1997 the plaintiff was employed by the first defendant as an electorate secretary for the third defendant, the Member of the New South Wales Legislative Assembly for the seat of Auburn. Hence, the plaintiff was employed by the first defendant. 10 The plaintiff pleaded that the second named defendant the State of New South Wales was liable for the acts and omissions of the third defendant, as a Member of the Legislative Assembly of New South Wales for the seat of Auburn in the manner, control, direction, management, supervision of staff employed within his office and owed the same duty to such employees as is owed by the first defendant as employed. 11 Additionally, it is pleaded that the third defendant had the care, duty, responsible management and direction of the plaintiff in the course of her employment to ensure that proper and safe work practices were carried out (para 3). As the plaintiff's case is to be taken at its highest, the plaintiff seeks to amend paragraph 3 of the statement of claim to plead that the third named defendant had the care, duty, responsible management and direction of the plaintiff in the course of her employment and was personally liable to the plaintiff to ensure that proper and safe work practices were carried out. The plaintiff had notified the defendant of this proposed amendment and it will be taken into consideration. 12 Paragraph 5 of the statement of claim pleads that all defendants breached their duty owed to the plaintiff and that they failed to take reasonable care for her safety; failed to provide a safe place of work; failed to provided proper and reasonable workings conditions and working hours; failed to properly supervise the plaintiff; failed to provide a proper and safe system of conducting her work; subjected the plaintiff to unreasonable demands; failed to provide a proper and safe working environment for her to carry out her duties; required the plaintiff to carry out her duties in a manner that rendered the system of work unsafe; and subjected her to drunken yelling and demands that were often irrational. It is pleaded that as a result of these acts and omissions the plaintiff suffered injuries, both physical and mental, and these injuries were occasioned by the negligence and breaches of duty on behalf of the defendants, their servants and agents. 13 It appears that in 1998 the working relationship between the plaintiff and third defendant soured. The ensuing litigation which is not confined to this court has become most unpleasant and with some very serious allegations being made. 14 The third defendant submitted that there were two fatal flaws in the plaintiff's claim firstly, the provisions of the Crown Proceedings Act 1988 and the Law Reform (Vicarious Liability) Act, act as a bar to the plaintiff suing the third defendant; and secondly, the plaintiff in making a claim against the third defendant ignores the principle that an employer, the first defendant, owed a non-delegatable duty of care to the plaintiff. I shall deal with each of these in turn.

[16]

(1) Crown Proceedings Act 1988 15 Section 5(1) of this Act provides: "(1) Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title "State of New South Wales" in any competent court." 16 The third defendant submitted that the correct defendant is the State of New South Wales and not him. However if this means that if the third defendant, being an elected Member of State Parliament, does not fall within the definition of "Crown" he may be sued as a defendant. 17 It is common ground that these proceedings fall within the definitions of "civil proceedings" contained in s 3 of the Crown Proceedings Act 1988. The plaintiff and third defendant are at odds as to whether the third defendant is included in the definition of "Crown". Section 3 of the this Act says: "'Crown' means the Crown in right of New South Wales, and includes: (a) the Government of New South Wales; and (b) a Minister of the Crown in right of New South Wales; and (c) a statutory corporation, or other body, representing the Crown in right of New South Wales." 18 The third defendant does not fall within 3(b) as he is not a Minister of the Crown. Nor is he a statutory corporation referred to in s 3(c). 19 According to the third defendant, a Member of Parliament is part of the Government of New South Wales and to hold otherwise would be contrary to common sense and the word "includes" ought to be interpreted as meaning the Crown in its wider sense incorporating all functions of Government and include the majority of sitting Members of Parliament forming a Government in the Legislative Assembly of New South Wales. The plaintiff submitted that the third defendant may not fall within the definition of "Crown" as it covers members of the Executive Government only. 20 The second reading speech is of little assistance upon this issue. On 18 October 1988 Mr Dowd the Attorney General in the second reading speech stated that the Crown Proceedings Bill was a simple but important bill. It provided a new procedure whereby litigation by and against the Crown is brought under the title, State of New South Wales. 21 The Attorney General stated that clause 3 contained definitions of terms used in the proposed Act. Crown is defined as being the Crown in right of New South Wales and includes the Government, a Minister, and a statutory corporation or other body representing the Crown; that is, any body which may claim the shield of the Crown. The shield of the Crown refers to the benefit of prerogative rights and privileges of the Crown, including that of not being bound by legislation which does not bind the Crown expressly or by necessary implication. Whether a statutory corporation or other body can be said to represent the Crown depends upon whether the relevant legislation makes express provision for it so to do, or, if not, whether it is to be inferred from the particular relationship which the legislation creates between the corporation or body and the Crown. By including statutory corporations within the definition of Crown, it makes it clear that they are subject in civil proceedings to the formula proposed in s 5 ss 2. Hence it does not appear that the term "other body" was intended to include a Member of Parliament. Rather, the term "other body" appears to be directed at other Government departments or organisations which represent the Crown. 22 I have been unable to locate any case law in the New South Wales Law Reports, unreported judgments, Australian Digest and Laws of Australia which discuss the meaning of "the Government" in the Crown Proceedings Act 1988 (NSW). However there are two High court cases which discuss the meaning of the word "Government" in different State legislation. 23 In Enever v the King (1906) 3 CLR 969; 12 ALR 592 (HC), the plaintiff took action against a constable for unlawful arrest. The court held that the word "Government" in s 4 of the Crown Redress Act 1981 means the Crown in its capacity of the Executive Government only, and not its legislative or judicial or other capacities.

[17]

24 In Ryder v Foley [1906] 4 CLR 422, a case involving wrongful dismissal of a police officer, the court held (Griffiths CJ, Barton and O'Connor JJ) that the word "Government" under s 6 Police Act 1863 (Qld) meant the Executive Government acting through the Minister responsible for the carrying out of the provisions of the Act, and that the expression "submission to the approval of the Government" meant submission to the approval of the Crown acting through the proper responsible Minister, whoever he or she may be. 25 In PH Lane's Introduction of Australian Constitutions (6th Edition, 1994) the author examines the institutions of Government under the headings, 'The Governor', 'The Executive Council', 'Premier, Ministry, Cabinet, Responsible Government' and the 'Judiciary'. The author writes at 214 "Each State has its own Government with its Ministry or Cabinet. The Premier convenes Cabinet, arranges the agenda and is the Chairman of the Cabinet meeting. In a State all Ministers are Cabinet members." The author makes no mention of Members of Parliament not included in the Ministry. 26 In Holly v Director of Public Works (1988) 14 NSWLR 140, the court indicated that the responsibility generally lies with the Minister acting on behalf of the Crown. "Under the general law, the Crown acted through those whom it chose to appoint to act for it. In practice, under the system of responsible government adopted in New South Wales, the acts of the Crown were performed for it by its responsible Ministers, in the manner referred to by Griffith CJ in the much cited case of Ryder v Foley (1906) 4 CLR 422 at 432-433. It followed from this that, under the general law, the responsible Minister might appoint persons to act in the service of the Crown." 27 It is my view that the Executive is generally considered to be the Government. However, it cannot be said that the plaintiff's claims are hopeless on the grounds that the case against the third defendant is barred by virtue of the Crown Proceedings Act.

[21]

Further vicarious liability of the Crown (1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function: (a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function); or (b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown. (2) Subsection (1) does not apply to or in respect of a tort committed by a person in the conduct of any business, enterprise, undertaking or activity which is: (a) carried on by the person on the person's own account; or (b) carried on by any partnership, of which the person is a member, on account of the partnership." 30 The Crown is different to that defined in the Crown Proceedings Act. The definition in the Law Reform (Vicarious Liability) Act does not include reference to the Government. Section 5 defines that a person in the service of the Crown does not include a servant of the Crown. For the reasons given earlier, the plaintiff's claim that a Member of Parliament is not part of the "Crown" is arguable and the claim against the third defendant should not be dismissed. 31 In relation to s 8(1) the plaintiff referred to Prior v State of New South Wales [1998] NSWSC 633. In Prior the appellant sued the respondent for damages arising from an assault upon him and his false imprisonment by a uniformed police officer on 20 February 1994. The appellant claimed that pursuant to s 8(1) of the Law Reform (Vicarious Liability) Act 1983 that the respondent was vicariously liable for the torts of employees. Judgment by direction for the defendant was entered. The Court of Appeal held that a judgment by direction for the defendant should not have been given because a distinction can be drawn between the act of arresting someone as an incident of a police officer's function but doing so in an improper manner from assaulting someone out of personal spite (per Sheller and Handley JJA). Whether the policeman's actions fell within s 8(1) was a matter which should have been left for the jury to decide. 32 Prior distinguished Deaton v Flew (1949) 79 CLR 370. In Flew a barmaid threw a glass of beer at a customer out of spite. The employer in these circumstances was not held to be vicariously responsible for the barmaid's actions 33 The plaintiff has alleged that the third defendant carried on his business as a barrister at the premises of his electoral office and that he required the plaintiff to undertake secretarial duties in relation to his legal practice such as typing advices and the like. It is arguable that the third defendant in carrying on this activity on his own account falls within s 8(2) and therefore s 8(1) does not apply.

[22]

(3) Vicarious liability 34 The third defendant submitted that because the plaintiff admits that she was employed by the first defendant, there is a non-delegable duty of care in the context of a master and servant relationship and the third defendant should not be joined as a defendant. 35 The concept of a non-delegable duty of care has been discussed in a number of High Court decisions (see Kondis v State Transport Authority (1984) 154 CLR 672, Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 and Scott v Davis [2000] 175 ALR 217, [2000] HCA 52 at [245]-[249]; [307]-[308]; [353]). Employers, hospitals and school authorities are the clearest categories of relationships giving rise to such a duty. 36 In a recent Court of Appeal case, Lepore v State of New South Wales & Anor [2001] NSWCA 112 Mason P stated that the expression "non-delegable duty" is somewhat misleading. It implies that a person cannot delegate a duty, but the truth is that the person cannot avoid liability by relying on the delegation, even to a competent delegate. A non-delegable duty is said to be personal or direct, rather than vicarious, but even this difference is more semantic than substantial. 37 Mason P quoted remarks made by Giles JA (Handley JA and Stein JA agreeing) in Elliott v Bickerstaff (1999) 48 NSWLR 214 at 236-8. Giles JA said at 238: "Where the person owing the duty of care must ensure that the third party exercise reasonable care, and is liable if the third party does not do so, it can be seen why the non-delegable duty of care has been described as a disguised form of vicarious liability (J G Fleming, The Law of Torts, 9th ed (1998) Sydney, LBC at 434) and even as a logical fraud (G Williams, "Liability for Independent Contractors" (1956) Cam LJ 180 at 193). The person who owes the non-delegable duty of care may be liable without fault, whether personal or of a servant or agent. Although conceptually the breach of duty will be a breach of that person's duty of care, the so-called duty of care in truth is not a duty to take care but a mechanism for responsibility for someone else's failure to take care. The concept of non-delegable duty of care has nonetheless been recognised for over a century (see Pickard v Smith (1861) 10 CB (NS) 470; 142 ER 535; Dalton v Henry Angus & Co (1881) 6 App Cas 740), and is thoroughly established in the law including in the decisions of the High Court. Indeed, it extends to liability for the failure to take care of third parties who are not independent contractors, in the traditional sense: eg Commonwealth v Introvigne (1982) 150 CLR 258. 38 In Burnie Port Authority the High Court affirmed that the master and servant relationship forms part of the closed list of categories of non-delegable duties that exist at law (see Mason CJ, Deane, Dawson, Toohey, Gaudron JJ at 550).

[23]

39 The plaintiff referred to a decision of Ward v Central West Group Apprentices Pty Limited & Anor (unreported, Ireland J, 12 December 1995). In Ward the plaintiff was an indentured apprentice plumber. There were two defendants and the issue was whom was characterised as the plaintiff's employer at common law or whether the provision of Schedule 1 clause 1 of the Workers Compensation Act 1987 applied making the plaintiff a deemed employee. The plaintiff was working as an apprentice at OP Industries. The scheme through which the scheme was run was operated by Central West Group Apprentices (CWGA). It arranged for the host employer, OP Industries to provide on the job training. OP Industries had direct control of the plaintiff's work place and provision of safety measures but CWGA had a responsibility to ensure that apprentices were not employed in dangerous working conditions. CWGA abdicated its responsibility to ensure safety in the work place to the host employer. Ireland J held that both entities were liable for breaches of statutory duties under the Construction Safety Act and both owed the plaintiff a duty of care and were guilty of negligence. His honour also held that CWGA was a deemed employer and OP Industries was a joint tortfeasor and liable to damages to be assessed independently of the Act. Hence according to Ward it is possible that more than one employer can be held to be liable in negligence where they both have obligations to ensure the safety in the workplace. Hence relying on the decision espoused in Ward the plaintiff intends to plead that the third defendant had the care, duty and responsible management and direction of the plaintiff during the course of her employment and he was liable to ensure that proper and safe work practices were carried out. 40 There was a contract of employment between the plaintiff and the first defendant. There was no written contract of employment between the plaintiff and third defendant, nor is it pleaded that the plaintiff was paid remuneration by third defendant for the work she carried out for the third defendant, whether it related to his work as a politician, or as alleged for his legal practice. In Ward there was an issue as to who was the plaintiff's employer. Even accepting that the Crown Proceedings Act 1988 and the Law Reform (Vicarious Liability) Act 1983 may not apply, the current statement of claim admits that the Speaker of the Legislative Assembly was the plaintiff's employer. Thus, the Speaker is vicariously liable as employer as the claim as currently pleaded by the plaintiff against the third defendant is unsustainable.

[25]

(4) Pleading deficiencies 42 In Bega Co-operative Society Limited v The Milk Authority of the Australian Capital Territory (unreported 12 May 1992, Federal Court) Justices Neaves set out the requirements of pleading. It is very helpful so I shall summarise it. 43 A pleading is to contain, and contain only, a statement in a summary form of the material facts on which the applicant relies. If it discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay, the whole or part of it may be struck out. The material facts are all those facts necessary for the purpose of formulating a complete cause of action - see Bruce v Odhams Press Ltd (1936) 1 KB 697 at p 712; Pinson v Lloyds and National Provincial Foreign Bank Ltd (1941) 2 KB 72 at 75. It is not sufficient that the statement of claim simply express a conclusion drawn from facts which are not stated - see Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114; though in some circumstances to plead a conclusion may be to plead a material fact - see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (Federal Court of Australia, French J 3 September 1991, unreported). Not only must all material facts be pleaded but they must be pleaded with a sufficient degree of specificity, having regard to the general subject-matter, to convey to the opposite party the case that party has to meet - see Ratcliffe v Evans (1892) 2 QB 524 at 532; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 at 417. It must be apparent on the facts of the document that the facts pleaded, if proved, would establish the cause of action relied upon - see H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246. It is not a function of particulars to take the place of the necessary averments in the statement of claim. Trade Practices Commission v David Jones (Australia) Pty Ltd at 114. Further a pleading must state the facts that if not specifically pleaded might take the other party by surprise. 44 The third defendant submitted that there are a number of deficiencies in the statement of claim. The plaintiff has not pleaded material facts so as to justify an independent duty of care owed by the third defendant to the plaintiff. 45 In the exercise of my discretion, it is my view that the plaintiff should be given an opportunity to replead her claim against the third defendant.

[26]

(5) Concurrent proceedings 46 The defendant submitted that the plaintiff cannot have concurrent proceedings on foot. There are two other sets of proceedings on foot, one in the Industrial Court and the other in the District Court. 47 In the Industrial Relations Commission the plaintiff is Kristine Frost and the defendant is The Speaker of the Legislative Assembly of New South Wales. Ms Frost brought an action under s 106 of the Industrial Relations Act 1996 in respect of a contract of employment with the Speaker of the Legislative Assembly whereby she performed work in the electorate office of the Hon Peter Nagle MLA as the Member for Auburn in the Legislative Assembly of the State. As such, and even though the applicant was an employee of the respondent, the work was performed for Mr Nagle and was subject to his authority and direction. Mr Nagle the defendant in proceedings in this court is not a party to the proceedings in the Industrial Court. Last week in the Industrial Court the plaintiff withdrew her claims for compensation for stress and suffering in the course of her employment and compensation for impairment of employment prospects in quality of life - see further amended summons for relief. The plaintiff seeks orders that her contract of employment be declared void whole or in part and that she be paid moneys upon the termination of her employment. She alleges that her contract of employment was harsh and unconscionable. The Industrial Court proceedings are set down for hearing for five weeks commencing 26 July 2001. 48 In the District Court proceedings (6487/99) Mr Nagle is the plaintiff. The defendants are Kristine Frost as first defendant, David Patch as second defendant and Chris Ford as third defendant. The second defendant is a barrister and the third defendant is a solicitor. The plaintiff pleads causes of actions of conspiracy, abuse of process and collateral purpose. He alleges that as a result he has suffered anxiety and depression. He has claimed economic loss, legal costs and future medical treatment. Additionally, he claims aggravated and exemplary damages. In the District Court proceedings, Mr Nagle is the plaintiff and he has alleged different causes of action. In the Industrial Court proceedings Mr Nagle is not a party. In those proceedings Ms Frost is not claiming for psychiatric or psychological injury but for payment of overtime and wages. It is my view that these proceedings are separate. The proceedings in this court are not vexatious or an abuse of process. 49 McHenry v Lewis [1882] AC 397 deals with a plaintiff who sues a defendant for the same matter in two courts in England. Jessel MR says at 400 says: "In this country, where the two actions are by the same man in Court governed by the same procedure, and where the judgments are followed by the same remedies, it is prima facie vexatious to bring two actions where one will do. And, indeed, this has been recognised, I believe, for ages by the practice of the old Court of Chancery, which always put a Plaintiff to his election by an order of course if he was suing for the same cause of action both at Law and in Equity…" 50 In Maple v David Smythe & Co Limited [1974] 1 NSWLR 290, (a decision of a Master of this court) the plaintiff brought concurrent defamation proceedings in New South Wales and Victoria. Master Cantor (as he then was) held that the action in New South Wales should be stayed as being vexatious and an abuse of process of the court. In argument before Master Cantor reference was made to McHenry. Master Cantor concluded that in light of the undoubted hardship to which the defendant would be subjected by having to defend himself in two courts it seemed to be proper to stay the proceedings in New South Wales. 51 It is my view that these Industrial Court proceedings are different proceedings because the third defendant is not a party to those proceedings although I acknowledge they trammel the same subject matter. The plaintiff in the proceedings in the Industrial Court and this court is seeking different remedies. They are not governed by the same procedure. In the District Court it is Mr Nagle who is seeking a remedy not the plaintiff Ms Frost. For these reasons it cannot be said that the concurrent proceedings are vexatious. The statement of claim should not be struck out on this basis. 52 Costs are discretionary. The appropriate order is that costs be costs in the cause. 53 The orders I make are:

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (29 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (19)

Cited By (1)