RESI Corporation v. Sinclair [2002] NSWCA 123

COUNSEL : F.M. Douglas QC with T.G.R. Parker - claimant D.F. Jackson QC with J.L. Sharpe - opponent SOLICITORS : Church & Grace, Sydney for claimant Turner Freeman, Sydney for opponent CATCHWORDS : CONSTITUTIONAL LAW - The Crown - Crown immunity - State instrumentality - Liability for tort - Whether liable for own conduct - Whether vicariously liable for conduct of employees - Whether it can be sued in the courts. D. Dust Diseases Act 1989 (NSW), ss.10 and 11 Electricity Trust of South Australia Act 1946 (SA), ss.3, 5, 6, 15, 17, 18, 20, 21, 22, 29, 36 and 40 Statutes Amendment (Energy Planning) Act 1985 (SA), s.3 Electricity Trust of South Australia Act Amendment Act 1988 (SA), Pt.IV LEGISLATION CITED : Crown Proceedings Act 1992 (SA), ss.4-15 Public Corporations Act 1993 (SA), ss.6(1), 28 Electricity Corporations Act 1994 (SA), ss.8-11 and 19. Commonwealth Constitution, ss.75 and 78 Judiciary Act 1903 (Cth), ss.58 and 64 Service and Execution of Process Act 1992 (Cth), ss.6, 8(4), 10 and 12, 15, 130 Baume v. The Commonwealth (1906) 4 CLR 97 Commonwealth v. New South Wales (1923) 32 CLR 200 Bradken Consolidated Limited v. Broken Hill Proprietary Limited (1979) 145 CLR 107 Wynyard Investments Pty. Ltd. v. Commissioner of Railways (NSW) (1955) 93 CLR 376 Deputy Commissioner of Taxation v. State Bank of New South Wales ((1992) 174 CLR 219 State Authorities Superannuation Board v. Commissioner of State Taxation (WA) (1996) 189 CLR 253 Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 Marks v. Forests Commission [1936] VR 344 Potter v. Broken Hill Proprietary Co. Ltd. (1906) 3 CLR 479 Flaherty v. Girgis (1987) 162 CLR 574 Ex parte Iskra. Ex parte Mercantile Transport Co. Pty. Ltd. [1963] SR(NSW) 538 Sydney Harbour Trust Commissioners v. Ryan (1911) 13 CLR 358 The Chaff & Hay Acquisition Committee v. J.A. Hemphill & Sons Pty. Ltd. (1947) 74 CLR 375 CASES CITED: Townsville Hospitals Board v. Townsville City Council (1982) 149 CLR 282 Re Residential Tenancies Tribunal NSW (1997) 190 CLR 410 Merwin Pastoral Co. Pty. Ltd. v. McKindlay (1932) 48 CLR 565 Meyer Heine Pty. Ltd. v. China Navigation Co. Ltd. (1966) 115 CLR 10 Commonwealth v. Bogle (1953) 89 CLR 229 Union Steamship Co. of Australia Pty. Ltd. v. King (1988) 166 CLR 1 Port MacDonell Professional Fishermen's Association Inc. v. South Australia (1989) 168 CLR 340 Chief Secretary (NSW) v. Oliver Food Products Pty. Ltd. (1960) 60 SR(NSW) 435 Thomas v. The Queen (1874) LR 10 QB 31 Viscount Canterbury v. The Queen (1843) 12 LJ Ch. 281 The Commonwealth v. Mewett (1997) 191 CLR 471 Mackenzie-Kennedy v. Ayre Council [1927] 2 KB 517 Skinner v. Commissioner of Railways (1937) 37 SR(NSW) 261 James Hardie & Co. Pty. Ltd. v. Barry (2000) 50 NSWLR 237 Broken Hill Proprietary Co. Ltd. v. Zunic [2001] NSWSC 561 DECISION : Leave to appeal granted; Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40452/01 DDT 163/01

The respondent suffered asbestosis as a result of employment at Osborne Power Station in South Australia from 1944 to 1950. At the time the power station was operated by the Electricity Trust of South Australia, a statutory authority. The respondent brought proceedings in the Dust Diseases Tribunal of New South Wales against the appellant, RESI Corporation, a statutory corporation which succeeded to the liabilities of the Electricity Trust of South Australia. Duck J dismissed an application, brought by RESI to set aside proceedings on the basis that the Dust Diseases Tribunal did not have jurisdiction to hear the proceedings. On appeal the appellant submitted it was entitled to the immunities of the South Australian Crown and that the Crown Proceedings Act 1992 (SA) only abrogated that immunity in relation to proceedings in South Australia.

Held: per Hodgson JA (Heydon JA and Ipp AJA agreeing) (1)The Electricity Trust of South Australia was an agent of the Crown, prima facie entitled to Crown immunities. However, section 5 of the Electricity Trust of South Australia Act 1946 indicated a clear intention that the Trust be capable of being sued in the Crown's own courts. The Trust was not entitled to the Crown immunity that it could not be sued in the courts.

(2) The Trust was liable for torts which it committed itself through its constituent members.

(3) Employees of the Trust were not Crown servants. The Trust was vicariously liable for the torts of its employees committed in the course of their employment. Sydney Harbour Trust Commissioners v Ryan (1911) 13 CLR 358, considered. Marks v Forests Commission [1936] VLR 344, distinguished.

(4) The passing of the Crown Proceedings Act 1992, did not affect the liability of the Trust.

(5) The Public Corporations Act 1993 and the Electricity Corporations Act 1994, make it clear that RESI is the same body corporate as the Trust and confirm that it can be sued in the courts.

(6) It was unnecessary to decide whether the relevant provision of the Crown Proceedings Act was limited to proceedings in South Australia.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40452/01 DDT 163/01

HEYDON JA HODGSON JA IPP AJA

1 HEYDON JA: I would reserve my opinion in relation to [59] of Hodgson JA's reasons for judgment, would otherwise agree with those reasons and the orders proposed, and would add the following additional reasons for his conclusions. 2 In relation to [44] of his reasons for judgment, it is true that paragraphs 3 and 4 of the Statement of Claim do not allege that the opponent was an employee of The Adelaide Electric Supply Company Limited ("the company"). Whether or not the opponent was in fact ever employed by the company, the company obviously did have employees. It was carrying on a business pursuant to the South Australian Electric Light and Motive Power Company's Act 1897, as amended in 1922 and 1931: see also the Electricity Trust of South Australia Act 1946, s 36. In order to carry on that business it would have been likely to need employees. It in fact had officers (Electricity Trust of South Australia Act 1946 s 30), and those officers would have been likely to have included employees. The liabilities of the company under s 29(1) of the Electricity Trust of South Australia Act 1946 transferred to the trust would have included the obligations of the company as employer to its employees, including obligations in tort. Nothing in the South Australian Electricity Light and Motive Power Company's Act 1897, as amended in 1922 and 1931, suggests that the company was the Crown or an agent of the Crown. In those circumstances a party seeking to demonstrate that the 1946 Act contemplated that the trust had Crown immunity would bear a heavy burden of persuasion. That is because the proposition that a company not able to claim Crown immunity was succeeded, pursuant to the Electricity Trust of South Australia Act 1946, ss 28 and 29, by a trust that was able to claim Crown immunity would require clear statutory language. There is no clear statutory language to that effect in the Electricity Trust of South Australia Act 1946. 3 HODGSON JA: On 29th May 2001, Duck J dismissed an application brought by the claimant RESI Corporation (RESI) against the opponent Murray Sinclair in proceedings in the Dust Diseases Tribunal of New South Wales (the Tribunal), seeking an order that the opponent's Statement of Claim in those proceedings be set aside as against RESI, and a declaration that the Tribunal has no jurisdiction over RESI in respect of the subject matter of the proceedings. 4 RESI seeks leave to appeal from that decision. The application for leave to appeal was argued on the basis that, if the Court decides that leave should be granted, the appeal would be decided on the argument on the leave application.

CIRCUMSTANCES 5 The opponent's Statement of Claim in the Tribunal names RESI as the first defendant and a company Wallaby Grip Limited as the second defendant. It alleges that the opponent contracted asbestosis as a result of exposure to asbestos, supplied by Wallaby Grip Limited, while he was employed at Osborne Power Station in South Australia between 8th February 1944 and 31st December 1950. That power station was then operated by the Electricity Trust of South Australia, a South Australian statutory authority. RESI is a statutory corporation that has succeeded to the liabilities of the Electricity Trust of South Australia. 6 There is evidence that neither the Electricity Trust of South Australia nor RESI has operated in New South Wales. RESI contended before the Tribunal that it was immune from suit in New South Wales unless it chose to waive Crown immunity, and it indicated that it did not waive that immunity; and accordingly, it sought the orders above. 7 The primary judge held in effect that RESI was entitled in general terms to the immunity of the Crown, but that s.5 of the Crown Proceedings Act 1992 (SA) removed that immunity in relation to proceedings brought in New South Wales; and accordingly, he dismissed RESI's application.

LEGISLATION 8 There are a number of statutes in various jurisdictions that have some relevance to these proceedings. 9 So far as New South Wales is concerned, there is the Dust Diseases Tribunal Act 1989, setting up the Tribunal. The relevant provisions are ss.10 and 11, which (so far as material) are as follows: 10(1) The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12. (2) The Tribunal has such other jurisdiction as may be conferred on it by or under any other Act. (3) The Tribunal has, wherever sitting, jurisdiction throughout New South Wales. (4) In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court. (5) Subject to sections 13 (6) and 14, a decision of the Tribunal has the same effect as, and may be enforced in the same way as, a decision of the Supreme Court. … 11(1) If: (a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition; and (b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person; and (c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death, proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal. (2) In subsection (1), a reference to a duty includes a reference to a duty imposed by statute as well as a duty imposed under the common law. (3) If the cause of action giving rise to proceedings to be brought under subsection (1) also gives rise to a claim in respect of some other matter, the claim may be included in those proceedings even though it does not relate to a dust-related condition from which a person is suffering or has suffered. (4) Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) may also be included in those proceedings. (5) In subsection (1) (c), the reference to a person claiming through a person who is or was suffering from a dust-related condition includes a reference to a relative for whose benefit an action may be brought under the Compensation to Relatives Act 1897. 10 There are a number of relevant South Australian statutes. 11 First, the Electricity Trust of South Australia (the Trust) was established under the Electricity Trust of South Australia Act 1946. Relevant provisions are the definition of "the company" in s.3, and ss.5, 6, 15 17, 18, 20, 21, 22, 29, 36 and 40, which are in the following terms: 3. In this Act, unless the context otherwise requires - "the company" means The Adelaide Electric Supply Company Limited referred to in The Adelaide Electric Supply Company's Act, 1922.

5(1) There shall be established a body to be known as "The Electricity Trust of South Australia ". (2) The trust shall be a body corporate with perpetual succession and a common seal and, subject to this Act, shall have power in its corporate name, to take, hold, and dispose of property of every kind and be a party to any legal proceedings. (3) Every court and every person acting judicially shall take judicial notice of the seal of the trust and when the seal appears on any document shall presume that it was properly affixed thereto.

6(1) The trust shall consist of five members, all of whom shall be appointed by the Governor. (2) A person shall not be appointed to the trust if he is - (a) an undischarged bankrupt; (b) over the age of sixty-five years; (c) a member of a House of Parliament of the State or the Commonwealth; (d) an employee of the trust.

15(1) The trust shall hold all its assets for and on account of the Crown. (2) The trust shall administer this Act in such manner as in its discretion it deems to be in the best interests of the general public.

17(1) The trust may appoint such officers and other employees as it requires for the purpose of carrying out its duties and functions. The terms and conditions of every such appointment shall, subject to any law, be such as the trust determines. (2) The trust may delegate to any manager, sub-manager or other responsible officer any of its powers under this section, and may revoke any such delegation. (3) An officer or employee of the trust shall not, by virtue of his office or employment as such, be subject to the Public Service Act, 1936-1945.

18. The trust may- (a) pay such pensions and retiring allowances to its officers and employees as it deems proper; (b) contribute such sums as it thinks fit to any fund established for the purpose of providing pensions, retiring allowances or other benefits for its officers and employees.

20(1) The Treasurer shall out of the general revenue of the State make good any default of the trust in meeting any liability of the trust to any person, other than the Treasurer, under any debenture issued by the trust or on which the trust is liable. (2) The amount of general revenue required for purposes of this section is hereby appropriated. (3) The trust shall, on demand, pay to the Treasurer the amount of any payment made by him pursuant to subsection (1) of this section.

21 The trust may at the end of any financial year set aside out of its revenue such sums as it thinks proper as payments to reserves or sinking funds and may invest any such reserves or sinking funds or use them in its undertaking.

22(1) The Treasurer may lend money to the trust upon such terms and conditions as are agreed between the Treasurer and the trust. (2) Where any loan made by the Treasurer to the trust is intended to be applied by the trust - (a) for extending or improving supplies of electricity in rural areas; or (b) for granting a subsidy pursuant to section 43 of this Act to any supplier of electricity for the purpose of enabling him to improve or extend supplies of electricity in rural areas, the loan may be on such special terms and conditions as are approved by the Governor. (3) The Treasurer may arrange for the borrowing on behalf of the State, and in accordance with the Financial Agreement, of such sums of money as he requires for the purpose of making loans to the trust under this section.

(4) This section without further appropriation shall be sufficient authority for lending any money so borrowed, to the trust.

29(1) On and after the appointed day all liabilities to which the company was subject immediately before that day or to which it thereafter becomes subject by reason of any transaction, act, matter or thing done or occurring before that day, shall be transferred to the trust and the trust shall be liable upon and shall satisfy all such liabilities.

(2) In this section "liabilities" includes all liabilities, debts, and obligations, certain or contingent, liquidated or unliquidated, accrued or accruing, and includes the liabilities of the company accrued and accruing upon debentures issued by the company.

(3) Nothing in this section shall confer any rights upon any shareholder of the company in respect of his shares other than a right to be paid any dividend declared but not paid before the appointed day.

36. The trust shall until Parliament otherwise provides continue to manage, maintain and operate the undertaking of The Adelaide Electric Supply Company Limited subject to and in accordance with the provisions of The Adelaide Electric Supply Company's Acts, 1897 to 1931:

Provided that sections 32, 33 and 38 of The South Australian Electric Light and Motive Power Company's Act, 1897, shall not apply to the trust.

40. In addition to the powers specified in The Adelaide Electric Supply Company's Acts, 1897 to 1931, the trust shall have the following powers, namely:- (a) To purchase, take leases of or hire power stations, sub-stations, transmission lines and distribution systems; (b) By agreement with any other person who supplies or generates electricity, to interconnect the mains of the trust with those of such other person and interchange electricity or give or receive supplies of electricity in bulk; (c) With the approval of the council of any municipality or district council district, to supply electricity direct to consumers within that municipality or district; (d) To supply electricity direct to consumers not within a municipality or district council district; (e) To do any act or thing and enter into and carry out any transaction which it is necessary or convenient to do, enter into or carry out for the purpose of generating, transmitting and supplying electricity. 12 In 1985, s.3 of the Statutes Amendment (Energy Planning) Act 1985 added s.5(1a) to the 1946 Act, providing as follows: The Trust is subject to control and direction by the Minister.

And in 1988, s.5 of the Electricity Trust of South Australia Act Amendment Act 1988 repealed ss.36-42 of the 1946 Act and inserted a new Part IV, including the following:

36(1) The Trust is empowered - (a) to generate, transmit and supply electricity within and beyond the State; (b) to do anything incidental or ancillary to that purpose including- (i) the purchase, leasing, or hire of power stations, sub-stations, transmission lines and distribution systems; (ii) the interconnection of the Trust's mains with those of other authorities and the receipt, supply or interchange of electricity; (iii) the acquisition of undertakings for the generation, transmission or supply of electricity; (iv) the entering into, and carrying out, of any transaction necessary for, or incidental to, any of the above purposes; (v) the acquisition of land, or any interest in, over or affecting land in accordance with the Land Acquisition Act, 1969; (vi) the exercise of any power under the Adelaide Electric Supply Company's Acts, 1897 to 1931.

42. The Trust incurs no civil liability in consequence of - (a) cutting off the supply of electricity to any region, area or premises in pursuance of this Act; or (b) the failure of an electricity supply. 13 The second relevant South Australian Act is the South Australian Crown Proceedings Act 1992. By s.3, this Act repealed a previous Crown Proceedings Act, passed in 1972. It contains relevant definitions in s.4, which is in the following terms: 4(1) In this Act, unless the contrary intention appears- "corresponding law" means a law of another State relating to proceedings against the Crown declared by the regulations to be a law corresponding to this Act: "Crown" includes- (a) a Minister, instrumentality or agency of the Crown; (b) a body or person declared by the regulations to be an instrumentality or agency of the Crown for the purposes of this Act: "judgment" means any judgment or order of a court: "proceedings" means civil proceedings: "State" includes a Territory of the Commonwealth: "State Crown" means the Crown in right of this State.

(2) This Act extends not only to the Crown in right of the State but also (as far as the legislative power of the State admits) to the Crown in any other capacity but does not extend to the Crown in right of the Commonwealth except where specific provision is made for its application to the Crown in right of the Commonwealth. 14 Part 2 of the Act (ss.5-11) is entitled "Proceedings by and against the Crown generally". Sections 5-11 are in the following terms: 5(1) Subject to this Act and any other Act of the State, the Judiciary Act 1903 of the Commonwealth, and any relevant rules of court- (a) proceedings may be brought and conducted by or against the Crown in the same way as proceedings between subjects; and (b) the same substantive law is to be applied in such proceedings as in the case of proceedings between subjects. (2) Subject to the regulations, proceedings may be brought by or against the Crown- (a) in the case of the State Crown-under the name "The State of South Australia"; (b) in any other case-under the name in which the Crown could sue or be sued in the courts of its own jurisdiction.

6(1) This Act does not affect any immunity from, or limitation on, liability that the Crown enjoys by statute. (2) This Act does not make binding on the Crown any Act or statutory provision that would not, apart from this Act, be binding on the Crown.

7. (1) Subject to subsection (2), injunctive relief may be granted against the Crown. (2) A mandatory injunction cannot be granted against the Crown.

8. This Act does not affect any rule of law under which the Crown or an officer or employee of the Crown may refuse to discover or produce documents, or to answer an interrogatory or other question, on the ground that to do so would be prejudicial to the public interest.

9(1) The Attorney-General may represent the Crown in any action, proceeding or matter (whether civil or criminal) in which the Crown is a party. (2) The Attorney-General may intervene, on behalf of the Crown, in any proceedings- (a) in which the interpretation or validity of a law of the State or Commonwealth is in question; (b) in which- (i) legislative or executive powers of the State or Commonwealth, or of an instrumentality or agency of the State or Commonwealth are in question; or (ii) judicial powers of a court or tribunal established under the law of the State or Commonwealth are in question; or (c) in which the Court grants leave to intervene on the ground that the proceedings raise issues of public importance, for the purpose of submitting argument on issues of public importance. (3) The Attorney-General has the same right of appeal in proceedings in which he or she intervenes under subsection (2) as a party to those proceedings. (4) Where the Attorney-General intervenes in proceedings under this section, and there are in the opinion of the court special reasons for making an order under this subsection, the court may make an order for costs against the Crown to reimburse the parties to the proceedings for costs occasioned by the intervention. (5) In this section references to the Attorney-General extend not only to the Attorney-General for this State but also to the Attorney-General for any other State or the Commonwealth and references to the Crown have a correspondingly extended meaning.

10(1) No writ, warrant or similar process may be issued out of any court to enforce a judgment against the Crown. (2) Where a final judgment is given against the Crown in right of this State or any other State, the court must transmit a copy of the judgment to the Governor of the relevant State. (3) Where the Governor of this State receives a final judgment from a court of this or any other State, the Governor will give directions as to the manner in which the judgment is to be satisfied. (4) Any Minister, agency or instrumentality of the State Crown to which a direction is given under subsection (3) is authorized and required to carry out the direction. (5) A direction under this section is sufficient authority for the appropriation of money from the General Revenue of the State or from the funds of any agency or instrumentality of the Crown. (6) In this section- "Governor" includes- (a) in relation to the Australian Capital Territory-the Chief Minister; (b) in relation to the Northern Territory-the Administrator.

11. Subject to this Act, and any relevant rules of court, a judgment recovered by the Crown may be enforced in the same manner as a judgment in proceedings between subjects, and not in any other way. 15 Part 3 of the Act (ss.12-18) is entitled "Provisions of Special Application to the State Crown". Sections 12-15 are in the following terms: 12. The State Crown is, in relation to its activities in another State, bound by a corresponding law of that other State to the same extent as the Crown in right of that other State.

13(1) Where any proceedings are brought against the State Crown, a statement must be endorsed on, or annexed to, the process by which the proceedings are commenced, containing the prescribed information. (2) A failure to comply with subsection (1) does not render proceedings void unless the court is of the opinion that the State Crown has been prejudiced by that failure. (3) Service on the State Crown of any process or document relating to proceedings must be effected by service on the Crown Solicitor except in the following cases: (a) if special provision relevant to service of the process or document is made by or under this Act, service must be effected in accordance with that special provision; (b) if the party by whom or on whose behalf the process or document is to be served has notice that some solicitor other than the Crown Solicitor is acting for the Crown in relation to the proceedings, service must be effected on that other solicitor.

14(1) No subpoena or other process may be issued by a court, tribunal or other authority requiring a Minister of the Crown to appear, in the Minister's official capacity, to give evidence, or to produce documents, without the leave of the court, tribunal or other authority. (2) Leave may be granted only after the Crown Solicitor has been given reasonable notice in writing of the application for the subpoena or other process and a reasonable opportunity to be heard on the application. (3) A court, tribunal or other authority that grants leave must, at the same time, give directions as to the manner in which the Minister is to be served.

15(1) The State Crown is not required to pay any fee or charge for commencing, or taking any step in, proceedings or for obtaining a transcript of any proceedings or evidence in any proceedings to which it is a party. (2) Any costs to which the State Crown is entitled will be calculated as if the State Crown were liable to pay, and had in fact paid, fees and charges from which it is exempt under subsection (1). 16 The next South Australian Act in point of time is the Public Corporations Act 1993, providing for the control of public corporations. Section 6(1) is relevant to these proceedings, and is in the following terms: 6(1) A public corporation- (a) is an instrumentality of the Crown and holds its property on behalf of the Crown; and (b) is subject to control and direction by its Minister.

The Act contemplates that public corporations will operate as an independent entity in respect of financial matters, except as contemplated by s.28, which is in the following terms: 28.(1) The liabilities of a public corporation are guaranteed by the Treasurer.

(2) A liability of the Treasurer arising by virtue of a guarantee under subsection (1) will be satisfied out of the Consolidated Account which is appropriated by this section to the necessary extent.

(3) The Treasurer may, from time to time, after consultation with the board of a public corporation, fix charges to be paid by the corporation in respect of the guarantee provided under this section and determine the times and manner of their payment. 17 The final relevant South Australian statute is the Electricity Corporations Act 1994. This Act in its original form established a corporation "ETSA Corporation", declared in Schedule 2 of the Act to be the same body corporate as the Electricity Trust of South Australia. ETSA Corporation was continued under the name RESI by a 1999 amendment. The provisions relevant to this case are ss.8-11 and 19 as they became following the 1999 amendment. These sections are in the following terms: 8(1) ETSA Corporation continues in existence as RESI Corporation (2) RESI- (a) is a body corporate; and (b) has perpetual succession and a common seal; and (c) is capable of suing and being sued in its corporate name; and (d) has the functions and powers assigned or conferred by or under this or any other Act.

9 RESI is a statutory corporation to which the provisions of the Public Corporations Act 1993 apply.

10(1) RESI has- (a) electricity distribution functions; and … (c) subject to Part 4, electricity transmission and system control functions. (2) RESI may perform its functions within and outside the State.

11(1) RESI has all the powers of a natural person together with powers conferred on it under this or any other Act. (2) RESI may exercise its powers within and outside the State.

19(1) The chief executive officer of RESI will be appointed by the board with the approval of the Minister. (2) RESI may appoint such other employees as it thinks necessary or desirable. (3) An employee's appointment will be on terms and conditions fixed by RESI. 18 There are also some Commonwealth statutes relevant to this case. I include in this category the Commonwealth Constitution, although of course that is not itself a Commonwealth statute. The provisions of the Constitution having some relevance to alleged Crown immunity of the States of Australia are ss.75 and 78 of the Constitution, which are as follows: 75. In all matters: (i) arising under any treaty; (ii) affecting consuls or other representatives of other countries; (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of another State; (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction.

78. The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power. 19 A Commonwealth statute having relevance to the Crown immunity of the States of Australia is the Judiciary Act 1903, and in particular ss.58 and 64 of that Act. Those sections are in the following terms: 58. Any person making any claim against a State, whether in contract or in tort, in respect of a matter in which the High Court has original jurisdiction or can have original jurisdiction conferred on it, may in respect of the claim bring a suit against the State in the Supreme Court of the State, or (if the High Court has original jurisdiction in the matter) in the High Court.

64. In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject. 20 I note that the opponent is apparently a resident of South Australia, and it is not suggested that ss.58 and 64 apply to these proceedings. However, these provisions are part of the whole picture concerning Crown immunity in Australia. It is accepted that these sections in effect do away with the immunity of the Crown in right of the States in matters of Federal jurisdiction: see Baume v. The Commonwealth (1906) 4 CLR 97, Commonwealth v. New South Wales (1923) 32 CLR 200. 21 Finally, there is the Commonwealth Service and Execution of Process Act 1992, providing for the service and execution throughout the Commonwealth of the process of various courts and tribunals. 22 Part 1 of that Act, entitled "Preliminary", includes ss.6, 8(4), 10 and 12. Those provisions are as follows: 6. This Act binds the Crown in all its capacities.

8(4) Subject to this Act, this Act applies to the exclusion of a law of a State (the relevant State ) with respect to: (a) the service or execution in another State of process of the relevant State that is process to which this Act applies; or (b) the service or execution in the relevant State of process of another State that is process to which this Act applies; or (c) the service or execution in another State of judgments of a court of the relevant State that are judgments to which this Act applies; or (d) the service or execution in the relevant State of judgments of a court of another State that are judgments to which this Act applies; or (e) the service or execution in another State of judgments to which this Act applies that are orders of a tribunal of the relevant State; or (f) the service or execution in the relevant State of judgments to which this Act applies that are orders of a tribunal of another State.

10. Service on other bodies corporate (1) Service of a process, order or document under this Act may be served on a body corporate that is not a company or a registered body in accordance with this section. (2) If a law of the State in which service is to be effected provides that service may be effected on the body corporate at a particular place, service may be effected by: (a) leaving the process, order or document at that place; or (b) sending the process, order or document to that place by post. (3) If a law of the State in which service is to be effected does not provide that service may be effected on the body corporate at a particular place, service may be effected by: (a) leaving the process, order or document at the head office, a registered office or the principal place of business of the body corporate; or (b) by sending the process, order or document to that office or that place of business by post. (4) Without limiting the operation of this section, if the process, order or document is not an initiating process or subpoena, service may be effected at the address for service of the body corporate in the proceedings concerned in accordance with any applicable rules of court.

12. Effect of service Subject to this Act, service of a process under this Act: (a) has the same effect; and (b) may give rise to the same proceedings; as if the process had been served in the place of issue. 23 Part 2 Division 1 of that Act, entitled "Initiating Process in Civil Proceedings", includes s.15, which is as follows: 15(1) An initiating process issued in a State may be served in another State. (2) Service on an individual must be effected in the same way as service of such an initiating process in the place of issue. (3) Service on a company or a registered body must be effected in accordance with section 9. (4) Service on any other body corporate must be effected in accordance with section 10. (5) Service on a body politic (for example, the Commonwealth or a State) must be effected in the same way in which process of the Supreme Court of the State in which service is to be effected may be served on the body politic. 24 Part 8 of that Act, entitled "Miscellaneous", includes s.130, which is in the following terms: 130. The jurisdiction that a court or tribunal has because of service of process under this Act is not affected by any limitation arising under a law of a State concerning the locality in which the process may be served.

DRAFT NOTICE OF APPEAL 25 The Draft Notice of Appeal provided on the application for leave contained one ground of appeal, which is as follows: His Honour erred in holding that, on its true construction, section 5 of the Crown Proceedings Act 1992 permitted the proceedings against the Appellant to be brought and maintained in the Dust Diseases Tribunal.

SUBMISSIONS 26 Mr. Douglas QC for RESI submitted that the exclusion of Crown immunity effected by s.5 of the South Australian Crown Proceedings Act 1992 was limited to proceedings in South Australia. Provisions of South Australian legislation regulating court proceedings would not be interpreted as regulating proceedings in other States. Mr. Douglas submitted that this was confirmed by the provisions of ss.5(2), 9, 10(2), 11 and 13-15 of the Act, which could not reasonably be construed as applying to proceedings outside South Australia. So far as s.10(3) was concerned, this was explicable by reason of the expectation of "corresponding laws", manifested by the definition of "corresponding law" and the terms of s.12. 27 Next, Mr. Douglas submitted that RESI, as a statutory public corporation, has the benefit of the immunity of the Crown: see Electricity Corporations Act 1994 s.9, Public Corporations Act 1993 s.6(1). Mr. Douglas submitted that the provision that RESI was capable of being sued merely related to one aspect of its corporate existence, and did not remove its immunity as a Crown instrumentality: Bradken Consolidated Limited v. Broken Hill Proprietary Limited (1979) 145 CLR 107 at 114-5. In relation to this matter, Mr. Douglas also referred to Wynyard Investments Pty. Limited v. Commissioner for Railways (NSW) (1955) 93 CLR 376 at 384-5; Deputy Commissioner of Taxation v. State Bank of New South Wales (1992) 174 CLR 219 at 230-1; State Authorities Superannuation Board v. Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 283-4; Re Residential Tenancies Tribunal (NSW); Ex Parte Defence Housing Authority (1997) 190 CLR 410 at 470-1; and Marks v. Forests Commission [1936] VR 344 at 348-50. Mr. Douglas further submitted that the immunity of the Crown in right of South Australia can be asserted in New South Wales: Potter v. Broken Hill Proprietary Co. Limited (1906) 3 CLR 479 at 494-5. 28 Mr. Douglas submitted that the Service and Execution of Process Act does not remove Crown immunity, but only gives State courts the same jurisdiction as if the defendant had been served within the particular State; and if an instrumentality of the State of South Australia, having Crown immunity, had been served within New South Wales, that of itself would not affect that immunity: cf. Flaherty v. Girgis (1987) 162 CLR 574 at 587-96; Ex Parte Iskra. Ex Parte Mercantile Transport Co. Pty. Limited [1963] SR(NSW) 538. 29 Mr. Jackson QC for the opponent submitted that, although RESI is a public corporation, under the direction of the relevant Minister, it does not have the immunity of the Crown. The Electricity Corporations Act manifests an intention that RESI operate commercially, both inside and outside South Australia: see ss.10 and 11. This was an indication that it should not have Crown immunity: Sydney Harbour Trust Commissioners v. Ryan (1911) 13 CLR 358 at 362, 366-7; The Chaff & Hay Acquisition Committee v. J.A. Hemphill & Sons Pty. Limited (1947) 74 CLR 375 at 384-9 and 395-9; Townsville Hospitals Board v. Townsville City Council (1982) 149 CLR 282 at 291-2; Re Residential Tenancies Tribunal NSW (1997) 190 CLR 410 at 470-1. The setting up of this corporation, without Crown immunity, was effective in New South Wales: see Merwin Pastoral Co. Pty. Limited v. McKindlay (1932) 48 CLR 565 at 577, 587-8; Meyer Heine Pty. Limited v. China Navigation Co. Limited (1966) 115 CLR 10 at 30-1. Mr. Jackson submitted that Marks v. Forests Commission was wrongly decided: see Commonwealth v. Bogle (1953) 89 CLR 229 at 267. 30 Mr. Jackson made the formal submission that if the High Court cases relied on by RESI did establish that RESI had Crown immunity, those cases were wrongly decided. 31 Turning to the Crown Proceedings Act, Mr. Jackson accepted that RESI fell within the definition of the Crown in s.4. He accepted that Pt.3 was properly to be interpreted, or read down, as dealing with South Australian courts. However, he submitted that Pt.2 was not so limited, as shown by s.10(3). Although this was unnecessary for the opponent to succeed in this case, he submitted that s.5(1) did apply to proceedings in New South Wales. It was well within the legislative power of a State to say in what circumstances the State would be liable anywhere in Australia: cf. Union Steamship Co. of Australia Pty. Limited v. King (1988) 166 CLR 1 at 14; Port MacDonell Professional Fishermen's Association Inc. v. South Australia (1989) 168 CLR 340 at 373-4; State Authorities Superannuation Board v. Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 271, 285-7. 32 Turning to the Service and Execution of Process Act, Mr. Jackson submitted that this Act bound the Crown in all its manifestations in Australia: s.6. He submitted that ss.12 and 130 showed that the New South Wales courts had the same jurisdiction as if RESI had been served in New South Wales. 33 I note that that last submission gave rise during argument to a question whether, in cases such as the present, Crown immunity went to the jurisdiction of the Court, or rather gave rise to a defence to the effect that there was no cause of action against the Crown instrumentality. It was common ground between the parties that this Court should if necessary deal with both aspects; and if the conclusion was that Crown immunity gave rise to a defence that should be pleaded, this Court should rule on what the position would be in the event that such defence was pleaded.

MEMORANDUM TO COUNSEL 34 The application was argued on 21st March 2002. On 27th March 2002, the Court sent a memorandum to Mr. Jackson and Mr. Douglas in the following terms: We understand Jackson QC to have argued that, quite apart from the effect of the Crown Proceedings Act, RESI, although an instrumentality of the Crown, does not have the immunities of the Crown; and he supported this by reference to provisions of the Electricity Corporations Act 1994 (SA). However, RESI was constituted in 1999 as a continuation of ETSA, which in turn was constituted in 1994 and declared by clause 3 of Schedule 2 of the Electricity Corporations Act to be "the same body corporate as" the Electricity Trust of South Australia established under the Electricity Trust of South Australia Act 1946 (SA).

One approach could be to consider whether the Trust established under the 1946 Act had the immunities of the Crown, and to consider whether the 1994 legislation or the 1999 amendment affected this. We do not think this was addressed in argument, so we invite written submissions on two questions: 1. Whether this is an appropriate approach. 2. Whether the provisions of the 1946 Act are such as to give the Trust the immunities of the Crown.

We will take into account written submissions on these questions received by 5 April 2002. 35 In response, Mr. Douglas provided the following submissions: The Claimant submits that the appropriate course is to determine whether RESI has the immunities of the Crown by reference to the Electricity Corporations Act 1994 (and the Public Corporations Act 1993) rather than by reference to the Electricity Trust of South Australia Act 1946. It is only by virtue of the 1994 Act that RESI exists and could be sued. RESI's legal status, including its immunity, should therefore be determined by reference to that Act.

If, contrary to this submission, it is appropriate to look at the 1946 Act, the result is the same. In Electricity Trust of South Australia v Linterns Limite d [1950] SASR 133 it was held that ETSA, the body constituted by the 1946 Act, was an instrumentality of the Crown. That decision was approved by the Full Court in Commercial Oil Refiners Pty Ltd v State of South Australia (1974) 9 SASR 88 at 96-97. 36 Mr. Jackson submitted that the negligence claimed by the opponent related to his employment commencing on 8th February 1944, which, until the commencement of the Electricity Trust of South Australia Act 1946, was presumably by The Adelaide Electric Supply Company Limited. That company had no Crown immunity, and its liabilities were taken over by the Trust: ss.29 and 36 of the 1946 Act. The 1946 Act made it clear that the Trust could be sued in tort. He then submitted that the enactment of the Crown Proceedings Act 1972 and the amendment to the Electricity Trust of South Australia Act 1946 by Statutes Amendment (Energy Planning) Act 1985 did not alter this position. 37 There were also submissions from both sides referring to South Australian legislation concerning claims against the Crown which pre-dated the Crown Proceedings Act 1992. I need not set them out, as I do not consider that this legislation bears one way or the other on the issues that I see as determinative of this appeal.

CROWN IMMUNITY 38 Historically, the immunity of the Crown had three main aspects: (1) The sovereign could not be sued in its own courts: see Hogg & Monahan, Liability of the Crown 3rd Ed., p.4. Associated with this aspect was the immunity of the sovereign from execution of judgments. (2) There was a maxim applied by the Courts that "the sovereign can do no wrong": Hogg & Monahan, p.6. (3) There was a rule of construction of statutes that the Crown is not bound by statute (including limitation statutes: Chief Secretary (NSW) v. Oliver Food Products Pty. Ltd. (1960) 60 SR(NSW) 435 at 444), except by express words or necessary implication: Hogg & Monahan, p.275. 39 In Australian constitutional law, there is a fourth aspect also, concerning the extent to which statutes of one of the elements of a federation can affect the Crown in right of another element of the federation. 40 The first aspect was dealt with originally by the procedure of petition of right. This procedure was later largely made unnecessary by statutes in various jurisdictions permitting the Crown to be sued in the ordinary courts. In the 19th century it was held that the procedure of petition of right had the effect of making the Crown liable in contract (Hogg & Monahan, p.6, Thomas v. The Queen (1874) LR 10 QB 31); but, by reason of the second aspect of Crown immunity, not in tort (Hogg & Monagan, p.6, Viscount Canterbury v. The Queen (1843) 12 LJ Ch. 281). However, in The Commonwealth v. Mewett (1997) 191 CLR 471, a majority of the High Court (Gummow and Kirby JJ, with whom Brennan CJ and Gaudron J agreed) held that at common law the sovereign had liability for tort but had an immunity from that liability: it is not clear to me whether or not this meant that the position was the same in tort as in contract (and see also Selway 'The source and nature of the liability of tort in Australian governments' Tort Law Review March 2002, 13-35). 41 In any event, the maxim that "the sovereign can do no wrong" did not apply to individual Crown servants, who were liable for torts committed in the course of their employment by the Crown (Hogg & Monahan, p.187, cf. Mewett at 543), though not for acts done with legal authority or at the "planning" level of government (Hogg & Monahan, p.188). As regards government departments, they possessed and still possess the attributes of the Crown; and a public corporation may also be entitled to the Crown's immunity if it is an agent of the Crown (Hogg & Monahan, p.332). 42 However, if such a public corporation can be sued in its own name and itself commits a tort, then it is in a similar position to an individual Crown servant, and can be liable in tort in circumstances where a Crown servant would be liable (Hogg & Monahan, p.341). But an agent of the Crown will not be vicariously liable for the torts of its personnel in the course of their employment if those persons are properly regarded as servants of the Crown rather than servants or employees of the agent of the Crown (Hogg & Monahan, p.343). The general rule is that a Crown agent is not the employer of its personnel and is therefore not vicariously liable for their torts; but this general rule may be displaced, for example by statutory provisions authorising the Crown agent to employ employees on its own behalf, and declaring such employees not to be servants of the Crown (Hogg & Monahan, p.344). 43 The third aspect of the immunity of the Crown, the rule of statutory construction, appears to have little relevance to this case. The first aspect, if it applied, would I believe go to the jurisdiction of the court in which proceedings were brought against the Crown, in this case the Dust Diseases Tribunal. The second aspect, if applicable, would be a defence to proceedings, which would need to be pleaded. Although as noted earlier a question was raised during argument as to whether the Crown immunity involved in this case went to jurisdiction or defence, no submissions were offered going directly to which aspect of Crown immunity was under consideration.

POSITION OF RESI APART FROM EFFECT OF CROWN PROCEEDINGS ACT 44 In my opinion, it is appropriate first to consider the position of RESI apart from the effect of the Crown Proceedings Act, and to do so historically, as suggested in the Court's memorandum of 27th March 2002; that is, to start with a consideration of the position of the Trust under the Electricity Trust of South Australia Act 1946. There may be force in Mr. Jackson's submissions concerning the employment of the opponent prior to the commencement of that Act, but that matter is outside the pleadings as they stand at present. 45 In my opinion, ss.6 and 15 of that Act sufficiently indicate an intention that the Trust be an agent of the Crown, and as such it is prima facie entitled to Crown immunities, so far as they are applicable. However, s.5 manifests a clear intention that the Trust be capable of being sued, as well as suing, in the Crown's own courts, thereby in my opinion displacing any application of the first aspect of Crown immunity, the notion that the Crown cannot be sued in its own courts. It is not necessary to consider whether or not it displaced the Crown's immunity from execution: even if it did not, that would not in my opinion preclude a litigant proceeding to obtain judgment. 46 As regards the second aspect of Crown immunity, in my opinion there is nothing to prevent the Trust being liable for torts committed directly by the Trust itself, through its five members. In that respect, as noted above, the Trust is in no different situation from any other servant of the Crown. However, there is a real question as to whether it would be vicariously liable for torts committed in the course of their employment by its officers and employees engaged under s.17 of the Act. 47 Apart from the case of Marks v. Forests Commission [1936] VLR 344, the cases relied on by Mr. Douglas have little to say on this matter. 48 Bradken (145 CLR 107) dealt with a statute which constituted the Commissioner for Railways of the State of Queensland as a corporation sole capable of suing and being sued and having "all the powers, privileges, rights and remedies of the Crown". I accept that this case, especially the judgment of Gibbs ACJ at 114-5, shows that the provision that the Commissioner could be sued, although capable of displacing the first aspect of Crown immunity if it otherwise applied, did not displace other aspects of Crown immunity; and in particular in that case, did not displace the presumption that the Crown was not bound by statutes except by express words or necessary implication. That case concerned a question whether the Commissioner was or was not bound by a statute, and involved no consideration of the Commissioner's liability in tort. 49 Similarly, Wynyard Investments (93 CLR 376) dealt only with the question whether the Commissioner for Railways (NSW) had the benefit of the rule of statutory construction. Deputy Commissioner of Taxation v. State Bank of New South Wales (174 CLR 219) dealt with a question of construction of s.114 of the Constitution, this involving the third and fourth aspects of Crown immunity, but not the second. State Authorities Superannuation Board (189 CLR 253) dealt with the rule of statutory construction. Re Residential Tenancies Tribunal (NSW) (190 CLR 410) concerned the fourth aspect. 50 Similarly, apart possibly from Sydney Harbour Trust Commissioners v. Ryan (1911) 13 CLR 358, the cases referred to by Mr. Jackson did not directly address the second aspect of Crown immunity. Chaff & Hay (74 CLR 375) dealt with the question whether an entity set up in South Australia had corporate status enabling it to be sued in New South Wales in respect of liability in contract; and Townsville Hospital Boards (149 CLR 282) concerned the rule of statutory construction. 51 Turning to the cases having some bearing on the second aspect of Crown immunity, Sydney Harbour Trust Commissioners concerned an action brought by an employee of the Sydney Harbour Trust Commissioners claiming compensation pursuant to the Employers Liability Act 1897 (NSW) for injuries received during his employment. It was argued for the Commissioners that the relation of employer and workman did not exist between the Commissioners and workmen employed under them; and that the appellants as representing the Crown were not bound by the provisions of the Employers Liability Act. The High Court held that the Commissioners were the employers of the plaintiff within the meaning of the Employers Liability Act, and on the way expressed the view that the Commissioners were in a general law sense the employers of the plaintiff. The factors relied on by the High Court (see for example per Barton J at 368-9) would all apply to the employees of the Trust. On the question whether the Employers Liability Act applied to the Commissioners, the High Court appeared to accept that they constituted an agent of the Crown, but nevertheless held, as a matter of construction, that the Employers Liability Act applied to them. 52 In Marks v. Forests Commission, the decision went the other way. However, Lowe J in the Supreme Court of Victoria seemed to approach the matter simply by asking whether the Forests Commission was an agent of the Crown within the meaning of the rule conferring immunity, without considering the principle that even an agent of the Crown is liable for its own torts and escapes vicarious liability for the torts of its personnel only where those personnel are properly considered servants of the Crown rather than employees of the agent. Lowe J relied on express provisions in the relevant statute making the Forests Commission liable in the case of contracts into which it had entered, and applied the expressio unius maxim to infer that liability for tort was excluded. He did at 353 distinguish the view expressed by Atkin LJ in Mackenzie-Kennedy v. Ayre Council [1927] 2 KB 517 at 533 that a corporation that is an agent of the Crown is liable for torts actually committed by it, on the ground that in the case before him the liability alleged was one to be imputed to the Commission for the negligence of a servant. However, as I have noted, he did not go on to consider the rationale for the exclusion of vicarious liability, namely the notion that personnel of agents of the Crown are often considered to be servants of the Crown and not employees of the agent. 53 There is a useful review of authorities on Crown immunity in Skinner v. Commissioner for Railways (1937) 37 SR(NSW) 261. At 270, Jordan CJ makes the point that, whether a body is found to represent or not to represent the Crown, the extent of its liabilities or immunities may depend to some extent upon particular provisions contained in the Statute by which its functions are regulated. 54 Returning to the 1946 Act that created the Trust, I note that there appears to be no provision in the original Act for direct control of the Trust by a Minister. It is plainly contemplated that the Trust should have separate finances from the general finances of the State. It is plainly contemplated that it should have its own separate employees, under its own control and direction, and not subject to the Public Service Act. In my opinion, the Sydney Harbour Trust case strongly supports the view that the employees of the Trust are not Crown servants, but are employees for whose torts committed in the course of employment the Trust would be vicariously liable. This is sufficient to distinguish Marks, assuming it was correctly decided. The 1985 amendment, introducing control by the Minister, did not in my opinion affect this position; and, in any event, could not discharge a liability that had already arisen. The 1988 amendment likewise did not affect this position. 55 Thus, in my opinion, the Trust would be vicariously liable for the torts of its employees committed in the course of their employment. In any event, it seems clear that the Trust would be liable for its own torts, committed by its constituent members acting as the Trust. The allegations in the Statement of Claim in this case seem to be directed to liability arising from the actions and inactions of the Trust itself in relation to the provision of a safe working place, rather than vicarious liability through torts of the Trust's employees committed in the course of their employment. It may well be that the Trust would have had the immunity of the Crown in relation to the rule of statutory construction, but for the reasons I have given, I do not think it had the immunity of the Crown in relation to the commission of torts. 56 The passing of the Crown Proceedings Act in 1992 in my opinion had no effect on this position. The Trust is within the definition of "the Crown" within s.4 of that Act; but the Act does not purport to give to the Crown or any instrumentality of the Crown any immunities which it did not otherwise have. 57 The combined effect of the Public Corporations Act 1993 and the Electricity Corporations Act 1994 was to make it clear that ETSA, being the same body corporate as the Trust, was subject to control and direction by its Minister. After 1999, this comment applied also to RESI. However, the body in question continued to operate independently in a financial sense, and had its own staff, appointed on terms fixed by the body corporate (RESI after 1999). These Acts also confirmed that the body corporate could be sued in the courts. 58 The provision for direct control by the Minister confirmed that the body corporate was an instrumentality of the Crown and prima facie entitled to immunities of the Crown, notably that concerning statutory construction. However, there was express provision that the body corporate could be sued in the courts, confirming that the first aspect of Crown immunity did not apply. As regards the relevant aspect of Crown immunity, the one I have considered second, these provisions in my opinion made no difference. Accordingly, RESI would be liable for its own torts and vicariously liable for torts committed by its employees in the course of their employment, and it would also retain such liability as the Trust had in respect of the Trust's torts and torts for which the Trust was vicariously liable.

CROWN PROCEEDINGS ACT 59 In view of the above, it is not necessary to decide whether s.5(1) of the Crown Proceedings Act is limited to proceedings in South Australia. However, I am of the view that, substantially for the reasons advanced by Mr. Douglas, that it is limited to proceedings in South Australia. This is confirmed by dicta in the Chaff & Hay case, for example at 383.

SERVICE AND EXECUTION OF PROCESS ACT 60 It is also unnecessary to decide whether this Act has any bearing. However, in my view, it clearly does not. The relevant problem of Crown immunity is one as to tort liability, not jurisdiction. In any event, the Service and Execution of Process Act only gives jurisdiction to the extent that there would be jurisdiction if the relevant defendant had been served within the State in which the proceedings had been brought. In my opinion, it would make no difference one way or the other in this case if service on RESI had been effected within New South Wales.

CONCLUSION 61 For the reasons I have given, it is clear in my opinion that RESI cannot claim Crown immunity on the basis that the Crown cannot be sued in its own courts. In my opinion also, RESI cannot rely on immunity in tort. Certainly it cannot do so in relation to its (or the Trust's) own conduct, and the Statement of Claim appears to allege liability through the Trust's own conduct. For the reasons I have given, I do not think RESI has Crown immunity in relation to vicarious liability arising from torts committed by its (or the Trust's) servants in the course of employment. 62 For those reasons, in my opinion, leave to appeal should be granted, but the appeal should be dismissed with costs. 63 Of course, this decision does not mean that the case will necessarily be heard in New South Wales. Application can be made to the Supreme Court to transfer the proceedings, and the question would then be whether considerations of justice require such a transfer: see James Hardie & Co. Pty. Limited v. Barry (2000) 50 NSWLR 237; Broken Hill Proprietary Co. Limited v. Zunic [2001] NSWSC 561. 64 IPP AJA: I agree with Hodgson JA. **********

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