RESI Corporation v. Sinclair [2002] NSWCA 123

RESI Corporation v. Sinclair [2002] NSWCA 123 - NSWCA 2002 case summary — Zoe

[4]

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

[15]

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.

[17]

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.

[59]

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.

[64]

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.

[65]

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.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (69 paragraphs)

Legislation Cited (10)

Cases Cited (22)

Cited By (2)