Gardiner v State of Victoria [1999] VSCA 100

[1999] VSCA 100

Court of Appeal (Vic)|1999-07-02|Before: WINNEKE, P., PHILLIPS and CALLAWAY, JJ.A

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

1999-07-02

Before

WINNEKE, P., PHILLIPS and CALLAWAY, JJ.A

Source

Original judgment source is linked above.

Judgment (37 paragraphs)

[1]

For the reasons I have given, I think that there is no basis for supposing that, if an employer fails to perform the duty laid upon it by s.122 it not only is liable to the penalty fixed for non-compliance (subject of course to subs.(2)), but is also liable to the worker in civil proceedings for breach of statutory duty. That must be the end of the appellant's claim for damages, quite apart from any other difficulties arising because the relief is sought against the Crown. According to the appellant's pleading as it stands, as an alternative to damages he seeks an order compelling his employer to provide employment according to s.122(1) (under paragraph (a) or alternatively under paragraph (b) of subs.(1)) and again there are difficulties in seeking such relief. When this was pointed out in argument the appellant indicated a willingness to amend his pleading, if permitted, to seek only a declaration of right, as is sometimes done to circumvent difficulties inherent in suing the Crown. But two things may be said of that. First, I very much doubt that declaratory relief would be granted here as matter of discretion (even if there were jurisdiction to do so, as to which I say nothing). If, as I think, there is no civil liability in an employer (any employer) for default under s.122(1) it is difficult to see why the Court should grant a declaration of "right" on the prayer of a worker who in an ordinary case could not establish any cause of action for damages for breach of statutory duty. If it be said that that the declaration might go in lieu, not of damages, but of mandatory relief, why should mandatory relief be considered at all, given that s.122 was not intended, on my analysis, to create a private right in the individual worker but only to make it an offence for the employer not to comply? As I see it, the breach of statutory duty of which the appellant complains "gives rise to no cause of action in private law", to use the words of Lord Hoffman in O'Rourke v. Camden London Borough Council [1997] UKHL 24; at 197, and that in itself denies the appellant any of the relief he claims in this proceeding.

Parties

Applicant/Plaintiff:

# Gardiner

Respondent/Defendant:

State of Victoria \[1999\] VSCA 100

Legislation Cited (2)

Compensation Act 1985

Cases Cited (5)

[1999] VSCA 100

The usual starting point in a case like this is the judgment of Dixon, J. in O'Connor v. S.P. Bray Ltd. [1937] HCA 18; (1937) 56 C.L.R. 464 at 477-8, where his Honour said:-

As Dixon, J. said, the search for legislative intention seems sometimes to have been resolved "without either the authority of any general rule of law or the application of any definite rule of construction" and no doubt it was such opinions that led Kitto, J. in Sovar v. Henry Lane Pty. Ltd. [1967] HCA 31; (1967) 116 C.L.R. 397 at 405 to reiterate that the search was none the less for legislative intention. His Honour said:-

Much of this was quoted with approval by Brennan, J. in Sutherland Shire Council v. Heyman [1985] HCA 41; (1985) 157 C.L.R. 424 at 482 and by McHugh and Gummow, JJ. in Byrne v. Australian Airlines Ltd. [1995] HCA 24; (1995) 185 C.L.R. 410 at 460-1. In Byrne, McHugh and Gummow, JJ. were critical of the search for legislative intention saying (at 459) that "to plumb the intent of the particular body which enacted the law in question may be an illusory quest". Professor Davis (at 72) latches on to this criticism, but as I read their Honours' judgment, they were speaking here of the actual intention of the legislators. If on the other hand the quest is for the intention of the Parliament as disclosed by the words used in the legislation, the search may be difficult but it should not be illusory.

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: Balkin & Davis, Law of Torts (2nd ed., 1996) 506. On that footing, legislation providing for the general regulation of prisons has been held to give no private right of action for breach, though such legislation doubtless operated, at least in part, to protect the inmates: R. v. Deputy Governor of Parkhurst Prison ex parte Hague [1992] 1 A.C. 58. So too, social welfare legislation, setting out the duties of authorities relating to the protection of children against abuse, has been held to create no private right of action: X v. Bedfordshire County Council [1995] UKHL 9; [1995] 2 A.C. 633.