Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : KLEIN -v- MINISTER FOR EDUCATION [2004] WADC 153

Workers' compensation - Whether public authority a "deemed" employer under s 175 Workers' Compensation and Rehabilitation Act 1981 (WA) - Meaning and effect of s 6 Workers' Compensation and Rehabilitation Act 1981 (WA)

Education Act 1928 (WA), s 5, s 6, s 9

Workers' Compensation and Rehabilitation Act 1981 (WA), s 6, s 175

Ex parte Professional Engineers' Association [1959] HCA 47; (1959) 107 CLR 208

Jones v Wesfarmers Ltd [2003] WASCA 225

Frauenfelder v Reid [1963] HCA 3; (1963) 109 CLR 42

Hewitt v Benale Pty Ltd [2002] WASCA 163; (2002) 27 WAR 91

Moir v Schrader [1936] HCA 69; (1936) 56 CLR 310

Price v Resolute Resources Ltd (2002) 29 SR (WA) 371

1 STEYTLER P: I have had the advantage of reading the judgment of Wheeler JA. I agree with it and with her conclusion that the appeal should be allowed.

2 WHEELER JA: The facts in this matter may be shortly stated. At the relevant date, the respondent was a security guard on mobile patrol employed by Falcon Investigations and Security Pty Ltd ("Falcon"). Falcon had contracted with the appellant Minister for the supply of security services for the purpose of protecting the premises and assets of the Minister against, inter alia, theft, vandalism and arson.

3 The respondent responded to a call that there were youths on the premises of Ocean Reef Primary School. Arriving there, he heard the sound of windows smashing and saw a youth in the act of smashing windows. He ran to apprehend the youth and, in tackling him, fell to the ground, striking his knee on a lump of concrete in the school grounds. That caused an injury.

4 The sole question in this appeal is whether, at the time at which that injury was sustained, the appellant was a deemed employer of the respondent for the purposes of s 175 of what was at the time known as the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act"). Only two sections of the Act are in issue, being s 175 and s 6. Section 175 relevantly provided as follows:

(1) Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed and are jointly and severally liable to pay any compensation which the contractor if he were the sole employer would be liable to pay under this Act.

...

(3) The principal is not liable under this section unless the work on which the worker is employed at the time of the occurrence of the disability is directly a part or process in the trade or business of the principal."

"The exercise and performance of the powers and duties of a local government or other public, or statutory authority shall, for the purposes of this Act, be treated as the trade or business of such local government or other authority."

5 The sole ground of appeal alleges that the learned trial Judge was wrong in fact and law in finding that s 175 did not apply, and that his Honour should have found that the act of the respondent in chasing and attempting to apprehend an offender on the appellant's premises was work which was "directly a part or process in the trade or business" of the appellant.

6 Counsel for the appellant advised the Court that it was his view that there was "no argument" relating to s 6, and the submissions of the appellant and of the respondent were directed principally to what was meant by "directly a part ... in the trade or business of the principal" for the purposes of s 175(3). It seems to me, however, that the question of principle which arises in this appeal is what is to be understood by s 6.

7 It is convenient first to look at the way the learned trial Judge dealt with this matter because the approach was largely reflected in the submissions made to us. His Honour formed the view, in my respectful opinion correctly, that the appellant Minister was a public or statutory authority within the meaning of s 6. His Honour then observed, at [23], that "[o]n the face of it, this means that the mere exercise of any power conferred by the Education Act 1928 and the mere performance of any duty imposed by that Act are to be treated as the trade or business of the defendant". I would agree with his Honour's observation that that is the apparent meaning and effect of s 6. In my view, it is also the correct understanding of the section.

8 However, his Honour did not apply that understanding of s 6 to the facts before him. Rather, he embarked on what one might call a characterisation exercise, attempting to characterise some of the functions and powers of the appellant as core or essential functions, and others as ancillary. In the course of that exercise, his Honour noted that the Education Act 1928 (WA) (now replaced by the School Education Act 1999 (WA)) did not contain provisions setting out particular lists of powers and duties of the appellant. The long title of the Act was: "An Act to consolidate and amend the law relating to public education and for incidental and other purposes". The Act constituted the Minister as a body corporate and, by s 5, referred to the Minister as "doing and suffering all such other acts and things as may be necessary or expedient

for carrying out the purposes of [the] Act". Other specific powers were granted to the Minister, including the power to grant licences for the use of land and other school property by persons generally, a power to "establish and maintain and carry on ... Government schools, ... as he deems necessary or convenient for public education" (s 9), powers to lend and borrow money, and so on. Having reviewed those provisions, his Honour concluded that a close examination of the Education Act 1928 revealed that its purpose was to provide public education and that, for the purpose of providing public education, the appellant was empowered to establish and maintain public schools. This was, in my view, a step his Honour was not required to take.

9 In [27] of his reasons, his Honour concluded that it must therefore be the case that, being possessed of an "incidental" power to engage security services for the protection of assets, the exercise of that power "immediately becomes the trade or business of the [Minister] by reason of s 6 ... ". With the reservation that it is not clear why the adjective "incidental" should be applied, I would respectfully agree with that part of his Honour's reasons.

10 His Honour then turned his attention to the question of whether the respondent, being employed as a security guard on the Minister's premises, and chasing an offender in the course of that occupation, was engaged in work which was "directly a part or process in the trade or business" of the Minister. His Honour considered authority in this Court relating to s 175 of the Act and concluded at [33] that he would have "difficulty in seeing how the engagement of a security patrolman to patrol the [Minister's] capital assets is in any way a part or process in the trade or business of the principal, namely the [Minister], in providing public education".

11 That conclusion appears to have flowed from his Honour's earlier characterisation of the purpose of the Education Act 1928 as the provision of education. However, s 6 directs attention, not to the purpose of the statute under which the relevant authority is created, but to the powers vested in the authority. In some cases, it will be necessary to ascertain the purpose of the statute in order to ascertain the content of the power; that will be so where, for example, as in s 5 of the Education Act 1928 the relevant powers are those which are "necessary ... for ... the purposes of [the] Act". The ultimate question in relation to s 6, however, is what are the statutory powers and duties. Once they are ascertained, the exercise of those powers is deemed to be the trade or business of the principal.

12 It is likely that his Honour reasoned as he did because of submissions which were made to him by counsel, and which were repeated before us, in which both the appellant and the respondent appeared to take the view that one could divide the functions of the appellant into "core business" and "incidental" or other business for the purposes of s 6. That view may well have been formed as a result of an attempt to apply other authority in this Court which relates, not to bodies such as the appellant, but to private businesses.

13 So far as private enterprises are concerned, the trade or business of that enterprise is that trade or business in which it predominantly or usually engages, rather than trade or business in which it might at some other time choose to engage. So, in the case of a large enterprise such as Wesfarmers, which carried on a number of diverse businesses, and for the purpose of those businesses maintained a fleet of vehicles, it was possible to characterise the maintenance of the vehicles as part of that trade or business (see Jones v Wesfarmers Ltd [2003] WASCA 225). Many other enterprises, however, may have but one, much more specialised, trade or business. An example discussed during the course of argument was that of a barrister, who by definition is engaged only in the business of providing legal services of a rather specialised kind. Some barristers may use vehicles during the course of that business, for example, to visit persons in prison, and it is, of course, necessary for those vehicles to be roadworthy. However, the business remains only the business of providing legal services, and not the business of maintaining the vehicle. Work of that kind, whether the barrister normally carried it out himself or engaged others to do it for him, would not be part of the barrister's trade or business either directly or indirectly.

14 The Act might have taken a similar approach in the case of public authorities by, for example, defining the trade or business of the public authority as being the principal function or functions for which the authority was set up, or the activity in which the authority ordinarily engaged, or something of that kind. Section 6, however, does not take that course. Rather, as his Honour noted, it provides that the exercise of powers and duties of the authority are to be treated as the trade or business of the authority, without distinguishing between powers and duties which are core or significant or important, and those which are merely ancillary. Public authorities, of course, vary greatly in their type. Some are limited by statute to only a few clearly defined functions or duties. The Board of the Art Gallery of Western Australia, for example, has its powers defined, in a relatively limited way, in s 18 of the Art Gallery Act 1959 (WA); the Environmental Protection Authority has wide powers conferred by s 17 of the Environmental Protection Act 1986 (WA), but only for carrying out the functions described in s 16; and the Western Australian Museum has its powers very generally defined in s 7 of the Museum Act 1969 (WA), but they can only be exercisable, as a matter of construction, for carrying out the functions of that body (principally as listed in s 9). Others are capable of carrying out a very wide range of functions. Local governments are perhaps a good example of the latter type (see, eg, ss 3.1 and 3.18 of the Local Government Act 1995 (WA)).

15 The legislative policy seems to be that anything which a public authority lawfully does is to be regarded as its trade or business. One can understand readily why this might be so. Public authorities evolve over time: some are amalgamated; some are abolished and part or all of their functions given to different authorities; the services which they deliver and the way in which they deliver them will change according to budgetary requirements and public views as to what is considered appropriate for governmental activity. As has been noted in a very different context, the concept of what are core or essential governmental functions is one which is elusive and liable to change over time (see Ex parte Professional Engineers' Association [1959] HCA 47; (1959) 107 CLR 208 at 274 - 5 per Windeyer J).

16 It may well be that, once the operation of s 6 is correctly understood, there is little for the word "directly" to do in s 175(3), so far as public authorities are concerned. That is, it would normally be the case that work was either part of the trade or business of a public authority within the meaning of s 6, or it was not. It may be that there are some activities, which are so peripheral to the exercise of the authority's statutory powers that, although they are necessarily to be implied as arising from the conferral of legal personality upon an authority, they would not be regarded as powers "of" the authority, as opposed to powers which necessarily belong to any legal person. However, in my view, issues of that kind do not arise in the present case.

17 In the present case, the powers of the appellant specifically include the power to, inter alia, maintain government schools as deemed necessary for the purposes of the Act. That power necessarily involves, it seems to me, a complex set of actions, and would encompass the power to cause schools to be constructed, to be cleaned, to be repaired, and to be secured as necessary. Those powers are therefore powers which, for the purposes of the Act, are to be treated as the trade or business of the appellant; that is, the power to build, repair, clean and maintain schools is to be treated as the trade or business of the appellant. The work in which

the respondent was engaged was directly a part, therefore, of that trade or business. It is not necessary for the Court to engage in the task of determining for itself the question of what are to be regarded as part of the core or essential features of a system of provision of public education at the present time. It is enough for the Court to know that the Minister is empowered to carry out the functions set out in the Act and that he has determined that it is appropriate to do so by engaging security services.

19 PULLIN JA: I have read the draft reasons prepared by Wheeler JA. I agree with those reasons and have nothing to add.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MINISTER FOR EDUCATION -v- KLEIN [2005] WASCA 185 (S)

Practice and procedure - Application to reopen appeal - Where no submissions made by respondent on crucial issue - Where supplementary submissions on issue considered

Workers' Compensation and Injury Management Act 1981 (WA), s 6, s 175, s 175(1), s 175(3)

Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300

Clay v Clay [2001] HCA 9; (2001) 202 CLR 410

Commissioner of Taxation v Comber (1986) 10 FCR 88

De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207

In re Harrison's Share Under a Settlement [1955] Ch 260

McAdam v Robertson [1999] SASC 169; (1999) 73 SASR 360

Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Smith v New South Wales Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256

State Rail Authority of NSW v Codelfa Construction Pty Ltd (No 2) [1982] HCA 51; (1982) 150 CLR 29

Wentworth v Woollahra Municipal Council (No 2) [1982] HCA 41; (1982) 149 CLR 672

Hewitt v Benale Pty Ltd [2002] WASCA 163; (2002) 27 WAR 91

Muller v Dalgety & Co Ltd [1909] HCA 67; (1909) 9 CLR 693

Stambulich v Ekamper [2002] WASCA 212

1 STEYTLER P: I have had the advantage of reading the judgment of Wheeler JA. It seems to me, in the end, that the orders made by this Court on 27 September 2005 should stand. However, I respectfully differ from Wheeler JA on the question whether the applicant (the respondent in the appeal) should have leave to reopen the issue upon which the judgment turned and in respect of which he says that he has not been heard.

2 The appeal turned on the question whether, the appellant having contracted with a company for the provision of security services at a school, an employee of the company who was sent to the school for that purpose (and who was injured in the course of providing the security services) was deemed to be employed, also, by the appellant. The answer to that question depended upon the construction of s 175 and s 6 of the Workers' Compensation and Injury Management Act 1981 (WA) ("the Act").

3 Section 175(1) provides that when a person ("the principal") contracts with another ("the contractor") for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of the Act, deemed to be employers of that worker. However, s 175(3) provides that the principal is not liable under s 175 unless the work on which the worker is employed at the material time is directly a part or process in the trade or business of the principal.

4 Section 6 of the Act provides that the exercise and performance of the powers and duties of a public or statutory authority (which the appellant is), shall, for the purposes of the Act, be treated as the trade or business of the authority.

5 In its judgment, the Court concluded that, on the proper construction of s 6, anything which a public authority lawfully does is to be regarded as its trade or business. Consequently, because the appellant was specifically given the power, inter alia, to maintain government schools, encompassing the power to cause them to be kept secure, the exercise and performance of that power was, for the purposes of the Act, to be treated as the trade or business of the appellant, and the work upon which the respondent was engaged was directly a part of that trade or business. However, counsel for the respondent contends that he was not heard on this last issue and that, given the course which the hearing of the appeal took, there was no need for him to make submissions which bore upon it.

6 It is true, as Wheeler JA has pointed out, that the issue of the construction of s 6 was raised at an early stage of the appeal. However, counsel for the appellant made it plain that, as he saw the position, there was "no argument" relating to s 6 and that the real question was whether or not the work on which the injured worker had been engaged was "directly" a part or process in the trade or business of the appellant, it being implicit in that submission that s 6 did not itself answer that question. Moreover, I think it fair to say that the Court (myself in particular) debated this question with counsel for the appellant, upon a basis which assumed that it was not decided by the construction of s 6. In those circumstances, it is not surprising that counsel for the respondent did not directly address the question of construction upon which the case ultimately turned.

7 As the High Court has reaffirmed in De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 at 215, there is no doubt that that Court may reopen unperfected judgments or orders if it is convinced that it has proceeded "on a misapprehension as to the facts or the law" (Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 302) or where "there is some matter calling for review" (Smith v New South Wales Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256 at 265) or where "the interests of justice so require" (Autodesk at 322, per Gaudron J). The power is one which, the High Court has said, must be exercised with great caution (State Rail Authority of NSW v Codelfa Construction Pty Ltd (No 2) [1982] HCA 51; (1982) 150 CLR 29 at 38; Wentworth v Woollahra Municipal Council (No 2) [1982] HCA 41; (1982) 149 CLR 672 at 684 and Autodesk at 302) and the circumstances that will justify a rehearing, must be "quite exceptional": State Rail at 38 per Mason and Wilson JJ. That is so because of the obvious public interest in the finality of litigation: De L at 215; Autodesk at 302; State Rail at 38; and Wentworth at 684. However, the judgments of the High Court reveal a preparedness by that Court to reopen an unperfected judgment or order where an applicant can show that "by accident without fault on his part he has not been heard": Wentworth at 684, per Mason ACJ, Wilson and Brennan JJ; and Autodesk at 302, per Mason CJ, 308, per Brennan J, and 312, per Deane J. That is because a court should not pronounce a judgment against a person on a ground which that person has not had an opportunity to argue: Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 and Autodesk, at 308, per Brennan J.

8 While there is a difference between an ultimate Court of Appeal, such as the High Court, and an intermediate appellate court, such as this, in that error on the part of this Court is not irremediable (as to which see State Rail at 38; De L at 215; and McAdam v Robertson [1999] SASC 169; (1999) 73 SASR 360 at 367, per Doyle CJ), it seems to me that, when a party has not been given an adequate opportunity to present submissions in relation to a finding of critical importance to the court's ultimate decision (cf Autodesk, at 312, per Deane J), this Court, too, should be willing to reopen an unperfected judgment or order. Even in a clear case, the aggrieved party will otherwise have no means other than the considerable expense and inconvenience of an appeal to the High Court in order to put the matter right: see In re Harrison's Share Under a Settlement [1955] Ch 260 at 283 and Autodesk, at 308 (fn 25), per Brennan J.

9 Of course, the jurisdiction will not be exercised for the purpose of enabling counsel to reargue a point merely because it has not been argued as well as it might have been: Autodesk at 303 and 307, per Mason CJ. As Doyle CJ said in McAdam at 367:

"Our system of adversary litigation, with the obligation that it imposes upon the parties to present their whole case and to present their best case, would begin to collapse if courts too readily entertained applications to reopen decisions given after a full hearing. The power can be exercised if some important principle of law has been overlooked, or if there is an apparent misapprehension as to a significant fact, but this is to be distinguished from enabling a party to attempt to persuade a court that it should change its view of the matter that it has considered and decided."

Nor does the mere fact that the court formulates a ground upon which its judgment turns in terms which do not precisely mirror a submission made by counsel necessarily mean that no adequate opportunity has been afforded to make submissions in respect of that ground, if the ground is one which has fairly arisen in the course of the proceedings. As Brennan J pointed out in Autodesk, at 308:

"... a sufficient opportunity to argue a ground is given when the ground is logically involved in a proposition that has been raised in the course of argument before the court or is to be considered by the court as an unconceded step in determining the validity of a conclusion for which one of the parties contends."

10 However, it seems to me that this is a case in which there has been a failure of natural justice. While it is true, as Wheeler JA has pointed out, that the issue of the construction of s 6 of the Act was always an indispensable step in the disposition of the appeal, counsel for the

respondent was encouraged by the submissions from the appellant, and by the subsequent debate with the Court, into believing that it was unnecessary for him to direct submissions to the critical issue upon which the Court's decision ultimately turned. It consequently seems to me, with the benefit of hindsight, that the respondent, through no fault of his own or of his counsel, was not given an adequate opportunity to direct submissions to that issue and that the Court's judgment should consequently be reopened for that purpose.

11 There remains the question whether the orders made should be set aside. When the Court heard the application to vacate those orders, it afforded to counsel for the respondent the opportunity, which was taken by him, to put, in full, the submissions which he would have advanced had he been given an adequate opportunity to do so at the hearing of the appeal. Having heard and considered those submissions, I am not persuaded that the conclusion arrived at by the Court on the prior occasion was in error. Rather, it seems to me, for the reasons given by Wheeler JA in that respect, that nothing in those submissions should cause us to change our previous judgment. For that reason only, it seems to me that the orders previously made by this Court should stand.

12 WHEELER JA: This is an application to vacate orders made by this Court on 27 September 2005, to recall the judgment in this matter and to hear further submissions on the ground that the applicant (the respondent to the appeal) was not heard in respect of the issue upon which judgment turned. The orders have not been perfected. The application has been made promptly, being first flagged by letter from the applicant's solicitors on the afternoon of the day upon which judgment was delivered.

13 The circumstances in which a judgment may be recalled by an intermediate appellate court, where it remains unperfected, were discussed in terms which I would respectfully adopt in McAdam v Robertson [1999] SASC 169; (1999) 73 SASR 360.

14 The applicant contends that, not only was the applicant not heard on the point on which judgment turned, but that there was a concession by the respondent in relation to that matter, which concession, it is said, is recorded at [6] of the Court's reasons for decision. It concerned the application of s 6 of the Workers' Compensation and Injury Management Act 1981 (WA) ("the Act"). I set out more fully the relevant exchange which occurred during the course of argument between Steytler P and counsel for the appellant in the appeal:

"STEYTLER P: Is it a fair comment to say that your argument really depends upon the construction of section 6 of the Workers' Compensation Act?

CLYNE, MR: There's no argument on section 6. It's conceded on this appeal that this is part of the trade or business of the minister for education [in context, Mr Clyne is asserting that the concession is one made by the present applicant].

STEYTLER P: I must say that I don't understand that to be so. What was part of the trade or business of the minister for education was contracting with people to provide security. It wasn't part of its trade or business to actually provide security.

CLYNE, MR: We say section 6 enables us to fall within the definition of 'trade or business' and that trade or business is the provision in this case of public education.

STEYTLER P: Precisely, and not the provision of security.

CLYNE, MR: Certainly."

15 That exchange, in my view, reveals that Steytler P, at least, was concerned with the question of whether the provision of security could be regarded as part of the trade or business of the Minister for the purpose of s 6. His Honour was flagging the proposition that the construction of s 6 was one of relevance to the disposition of the appeal.

16 The construction of s 6 must, on any view, have been an indispensable step in the disposition of the appeal. The phrase with which the Court was concerned was, "directly a part or process in the trade or business" in s 175(3) of the Act. It is, of course, necessary for that purpose to understand what is the trade or business, and what is to be considered a part of it. Only then is it possible to consider what, if anything, the word "directly" has to do.

17 It seems that the acceptance by Mr Clyne that the trade or business of the Minister was to be characterised as the provision of public education, and not the provision of security, may have been understood by counsel for the applicant as a concession that the provision of security, while related to the trade or business of the Minister, was not necessarily to be regarded as "part of it" for the purposes of s 6. Certainly, following on from the exchange quoted above, counsel for the appellant in the appeal sought to argue by analogy with other decided cases concerned with the meaning of the word "directly" in s 175, and gave no further attention to s 6.

18 However, while I can see how some confusion may have arisen, through no fault of the applicant's counsel, I am by no means convinced that that exchange should be regarded as a concession on the part of the appellant's counsel; it is not clear what view of the construction of s 6 Mr Clyne was there advancing. In the light of the clear flagging of the issue by Steytler P, and having regard to the extreme caution which the Court should exercise in recalling its decision, I would be inclined on balance to the view that this is not an appropriate case in which to permit the reopening of that issue.

19 In any event, it is my view that there would be no purpose served by reopening that decision. At the hearing of the applicant's application to reopen, we heard submissions from the applicant as to what contentions would be advanced in relation to the construction and relevance of s 6, were the applicant permitted to reopen that decision, and we heard from the respondent in reply.

20 At the heart of the submissions which the applicant would seek to advance is the proposition that s 6 is a deeming provision and that, consistently with authority, it should be "construed strictly and only for the purpose for which [it is] resorted to" (Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96 per Fisher J). That proposition may be accepted. However, as the applicant's counsel conceded, despite what seemed to have been careful research on his part, the purpose of s 6 as a matter of legislative history is "somewhat obscure".

21 He submits that it should be understood as having the purpose only of bringing employees of the authorities described in s 6 within the scope of the Act. However, one can imagine many other ways in which that could have been done, without resorting to the apparently exhaustive definition of "trade or business" of such authorities which is to be found in s 6. In my view, s 6 is clear in its terms and there is therefore no need to read it either narrowly or broadly, or to have resort to considerations of legislative purpose.

22 The applicant also submits that the effect of understanding s 6 in the way described in the decision which we earlier delivered, would be to catch a "multitude" of workers who had not previously been understood to fall within its scope. He submits that that cannot be consistent with the legislative purpose. However, in the absence of any clear understanding

of what the legislative purpose may have been, I would see no reason to read s 6 other than in accordance with its terms, in the way described in the decision delivered on 27 September 2005.

24 PULLIN JA: Courts often hear counsel for a party say that a "concession" has been made. By this counsel may mean that he or she is admitting a fact or agreeing with a point of law and that the admission or agreement will affect the future conduct of the case. I will call this a "formal concession". Sometimes however, counsel may say that a "concession" is made, meaning merely that counsel acknowledges the validity of a proposition or point without the acknowledgement having any effect on the way the case is conducted.

25 If there is any uncertainty about what is intended by the use of the word "concession" then the parties or the Court may proceed on a misunderstanding or there may be unnecessary disputation about what was intended. Counsel should not contend that a formal concession has been made by counsel on the other side when there is no foundation for such a contention.

(a) Counsel should use the word "concession" with care;

(b) If counsel intends to make a formal concession, then it should be formulated with precision.

(c) The effect it will have on the future the conduct of the case should be agreed upon by the parties and the agreement stated in open court. If the parties cannot agree on the effect it will have, then the party proffering the formal concession might choose to withdraw it, if free to do so. Alternatively the parties may ask the court to rule on the effect the formal concession will have;

(d) If there is any room for doubt about whether or not a formal concession has been made, or doubt about the effect it will have, then counsel for the other party or parties should seek clarification to remove the doubt;

(e) If the court is uncertain about whether or not a formal concession has been made or is uncertain about the effect it will have, then the court should raise the subject with a view to removing the uncertainty;

(f) Counsel should not contend that a formal concession has been made by opposing counsel when there are insufficient grounds for such a contention. Such a contention may lead to unnecessary disputation. See for example Clay v Clay [2001] HCA 9; (2001) 202 CLR 410 at [28] and [29].

(g) Finally, I note that a concession (formal or otherwise) about a proposition of law cannot bind the court to agree with that proposition. Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 at 473. However, the court may have to inform the parties that it considers that it may not accept the agreed meaning. It will usually be a denial of procedural fairness to refuse to act on a formal concession settling the parties' view about the meaning of legislation without inviting further submissions (Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 [78]).

27 In this case the application which has been made by the respondent to the appeal seeking an order to vacate the orders made by the Court and to hear further submissions is based upon his contention that a formal concession had been made by counsel for the appellant which had the effect that counsel for the respondent was not obliged to make any submissions in relation to s 6 of the Act. (I note that there is room for doubt about this because Wheeler JA considers that Mr Clyne was asserting that the concession was made not by him but by the respondent. I will proceed on the assumption that the situation was as the respondent contends it to be.) The relevant section of the transcript which is set out in Wheeler JA's reasons, reveals that counsel for the appellant did use the word "conceded". However, immediately after the word had been used the President expressed his doubt about the concession. The President had also expressed a provisional view that the appellant's argument depended on the construction of s 6 immediately before the word "conceded" was used.

28 Counsel for the respondent contends that he thought a formal concession had been made by the appellant about the meaning and application of s 6. He contends that he thought the consequence was that he did not have to make submissions about the section and its application in this case. Counsel for the respondent has now had that opportunity. Thus even if there were a breach of procedural fairness leading counsel for the respondent not to make submissions about s 6 during the hearing of the appeal, that breach has been remedied because the respondent has now said all that he wished to say during the application for leave to reopen. There is no point in vacating the orders and granting leave to reopen argument in those circumstances.

29 Apart from those comments, I agree with Wheeler JA.