Liability of the State for Mr Orkopoulos' tortious conduct
188The appellant argues that the State is liable for the tortious conduct of Mr Orkopoulos. That argument is put in a number of ways.
189First, the appellant argues that the Crown was liable under the Crown Proceedings Act 1988 for Mr Orkopoulos' tortious conduct. Specifically, it is said that the conduct occurred whilst he was a Minister of the Crown and a member of the Government of New South Wales. Accordingly, he was within the meaning of the "Crown" as defined in s 3 of the Crown Proceedings Act.
190That Act, by s 5(2), gives a claimant against the Crown the same rights "as nearly as possible" as would exist in an action against another "subject". The effect of that provision is to subject the Crown to the same liability for torts of its servants, agents and independent contractors as a private citizen would be subject to in the same circumstances: Farnell v Bowman (1887) 12 App Cas 643 at 648, 650; Sydney Harbour Trust Commissioners v Ryan [1911] HCA 64; 13 CLR 358 at 366-367, 370-371, 372; The Commonwealth v Mewett [1997] HCA 29; 191 CLR 471 at 545. See generally Paul Finn, "Claims against the Government Legislation" in Finn (ed) Essays on Law and Government, The Citizen and the State in the Courts (1996) Vol 2, LBC at 26-32.
191"Crown" is defined in s 3 of the Crown Proceedings Act to mean "the Crown in right of New South Wales" and as including "the Government of New South Wales" and a "Minister of the Crown". The reference to "the Government of New South Wales" is to the executive branch of government: Sue v Hill [1999] HCA 30; 199 CLR 462 at [87]; and generally Anne Twomey, The Constitution of New South Wales (2004) Federation Press at 583. An early example of the use of "Government" in the same sense is in s 6 of the Police Act 1863 (Qld) as considered in Ryder v Foley [1906] HCA 61; 4 CLR 422 at 432-433.
192Before the primary judge, the appellant argued that the Crown was liable directly as a result of Mr Orkopoulos' conduct "in the course of duties as a member of the Government and Minister of the Crown": [229]. That argument was rejected. Although Mr Orkopoulos was a Minister of the Crown from 9 August 2005 until his resignation on 13 November 2006, none of the relevant conduct occurred in or was associated with the performance or purported performance of his functions as a Minister or, for the same reasons, in his capacity as a member of the Government: [240], [243]. It is not shown that there was any error in those findings of the primary judge. That makes it unnecessary to consider whether, if that conduct was committed by Mr Orkopoulos in the performance of his functions as a Minister, the Crown would have been liable vicariously, as distinct from directly, for that conduct because of the need to rely on the application of the "as nearly as possible" requirement in subsection 5(2).
193Secondly, the appellant argues that the State was vicariously liable for Mr Orkopoulos' conduct. That argument, as it has developed, is put in three ways. The first is that in conducting the affairs of his electorate office as Member for Swansea, Mr Orkopoulos was also a Minister of the Crown. For that reason it is said that the Crown is liable for the tortious conduct of its servant committed in the course of his employment or service. That argument was also correctly rejected for reason of the finding that the tortious conduct was not committed by Mr Orkopoulos in his capacity as a Minister: [240], [243]. That conclusion makes it unnecessary to consider whether that liability would have arisen by the application of common law principles without any need also to rely upon the application of s 7 or s 8 of the Law Reform (Vicarious Liability) Act 1983 (the "Vicarious Liability Act").
194The second way this argument is put is that Mr Orkopoulos, as a member of the Legislative Assembly, was involved in the exercise of legislative power, an essential function of government, and that in performing that function he was "in the service of the Crown" within s 8(1) of the Vicarious Liability Act. Specifically, it is said that in conducting the affairs of his electorate office and supervising the appellant, Mr Orkopoulos was, in the service of the Crown, performing a function directed to or incidental to the carrying on of the legislative "activity of the Crown" within s 8(1)(b).
195The third way this argument is put is that in supervising the appellant and giving her direction and instruction as to what she should do as his electorate officer, Mr Orkopoulos was acting on behalf of the Speaker of the Legislative Assembly who had appointed the appellant to that position pursuant to a power vested by an order made under s 47 of the Constitution Act 1902. In appointing the appellant to provide professional support to Mr Orkopoulos in his electorate office, the Speaker was acting on behalf of the executive branch of Government and to the extent that Mr Orkopoulos was supervising and controlling the appellant in that position on behalf of the Speaker, he was doing so "in the service of the Crown". Accordingly, that function was being performed by Mr Orkopoulos in the course of his "service with the Crown" within s 8(1)(a) of the Vicarious Liability Act.
196The second of these arguments depends upon Mr Orkopoulos, in his capacity as a member of the Legislative Assembly, being a "person in the service of the Crown" within the meaning of s 8(1).
197The Vicarious Liability Act was enacted to give effect to recommendations of the Law Reform Commission (NSW) in its Report on Proceedings By and Against the Crown (LRC 24). In the late nineteenth and early twentieth century, the scope of vicarious liability did not include liability for acts performed by a Crown servant in the exercise of an independent duty or discretion cast upon that servant by statute or by the common law. That was because in those circumstances the servant was exercising an independent responsibility or discretion and the Crown was not acting through him: per Dixon J in Field v Nott [1939] HCA 41; 62 CLR 660 at 675-676. See also Tobin v The Queen (1864) 16 CB (NS) 310; 143 ER 1148; Enever v The King [1906] HCA 3; 3 CLR 969; Attorney-General for NSW v Perpetual Trustee Co (Ltd) [1952] HCA 2; 85 CLR 237 at 250-251. The informing theory, now discredited, for that limitation upon the Crown's liability was that vicarious liability depended on the master having expressly or impliedly authorised the servant's tort: C Sappideen, P Vines (eds) Fleming's Law of Torts, 10th ed (2011) LBC at 447. The application of that limitation was removed in the United Kingdom by s 2(3) of the Crown Proceedings Act 1947 (UK). That provision subjected the Crown to vicarious liability for torts committed by an "officer of the Crown" while performing functions conferred or imposed "either by any rule of the common law or by statute" as if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Crown.
198The Law Reform Commission recommended legislation to provide for liability of the State in respect of servants of the State, and persons in the service of the State, who commit a tort in the performance or purported performance of a function conferred or imposed by law, if the tort is committed in the course of the service of that person. The Vicarious Liability Act gave effect to that recommendation: New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 17 March 1983, 4765 (Mr Walker: "The Government has decided that the State should accept liability for the wrongful acts of all persons in the service of the State in addition to those employees who fall within the strict master and servant relationship").
199The policy which that Report recommended be given effect to was that the State should be liable for torts of its "officers" irrespective of whether the relevant functions of those officers were conferred or imposed by the authority of the executive government, the Parliament or the common law: para 13.7. A possible objection to the implementation of that policy which the Report identified was that if implemented it might subject the State to liability for the conduct of officers which had no real connection with the performance by them of their office: para 13.9(b). In considering that possible objection, the Report notes (at para 13.11):
"The liability which we consider that the State should have is akin to the liability which a master has in respect of his servant. He is liable only for the conduct of the servant which is in "the course of employment". The concept of "course of employment", no matter how it defies reduction to a satisfactory comprehensive formula, is well understood and it is an effective barrier against unreasonable burdens being thrust upon the master."
200The Report then addressed whether the recommended liability should be confined to the case where the tortfeasor holds an "office". It concluded that liability should apply to torts committed by a servant in the performance or purported performance of an independent function, irrespective of whether the master was the State, an instrument of the State, or a private employer (para 13.27). That recommendation resulted in the enactment of s 7 of the Vicarious Liability Act (which took a different form to cl 4 of the draft Bill which was an appendix to the Report).
201Noting that its recommendation in respect of the liability of a master for torts committed by a servant in the performance of a function conferred or imposed by law stemmed from its recommendation that the State should be liable for such torts committed by its officers, the Law Reform Commission observed that: "... there are officers of the State between the State and whom the relationship of master and servant does not exist" (para 13.30). It gave as an example, the members of the Privacy Committee established by the Privacy Committee Act 1975. A question then arose as to what the liability of the State should be in respect of the torts of those officers and how they should be defined. The Commission rejected three possible tests for identifying who are "officers of the State" in the sense in which it used the term. Those tests were whether the officer performed a function of government, whether the office held was one which is "public" and whether the officer was appointed to the office by the State (para 13.31). The first test was rejected because the concept of a function of government was one of variable and uncertain content; the second was rejected because there was no fixed test for what was a "public" office; and the third was rejected because not all appointments of persons to positions in which they may be said to be officers of the State were "in any sense appropriate to attract liability of the State in respect of their torts" (paras 13.32, 13.33 and 13.34).
202The Commission concluded (at para 13.35):
"We consider that the most satisfactory description of an officer of the State, where that person is not a servant of the State, is that notwithstanding that the relationship between him and the State is not that of servant and master, he is "in the service" of the State. For example, the connotation, if any, in which a member of the police force is a servant of the State, may be far from being clear: but there is no doubt that he is "in the service" of the State. Again, there are holders of many statutory officer [sic] who clearly are "in the service" of the State - albeit that they have only statutory duties to perform and, during their term of office, enjoy statutory independence." (emphasis added)
203It is necessary, then, to consider the terms of s 8(1) of the Vicarious Liability Act. "Crown" is defined in s 5(1) as the "Crown in right of New South Wales". In constitutional theory, that expression is used in different senses and it is necessary to consider the sense in which it is used in s 8(1). It sometimes describes a body politic, in this case New South Wales: Sue v Hill at [84], [90]; Bank of NSW v The Commonwealth [1948] HCA 7; 76 CLR 1 at 363; Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; 174 CLR 219 at 229; Harrison Moore, "The Crown as Corporation" (1904) 20 Law Quarterly Review 351, 358-359, 362. It may also refer to the "executive as distinct from the legislative branch of government, represented by the Ministry and the administrative bureaucracy which attends to its business": Sue v Hill at [87]; McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55; 221 CLR 646 at [22]; Bradto Pty Ltd v State of Victoria [2006] VSCA 89; 15 VR 65 at [58]-[59]; H V Evatt, The Royal Prerogative, (1987) LBC at 63.
204The expression "person in the service of the Crown" is not defined other than negatively as not including "a servant of the Crown". The ordinary meanings of "service" include the performance of the duties of a servant; work undertaken according to the instructions of an individual or organisation; a duty undertaken for a superior; and employment by the Crown or State in an official capacity: The New Shorter Oxford English Dictionary (1993).
205The expressions "person in the service of the Crown" and "a servant of the Crown" are not used in the Vicarious Liability Act to identify members of the executive government as persons or entities not to be bound by a statute regulating the conduct or rights of individuals. If that were the position, it would provide a basis for construing the references to the Crown as being to the executive branch of government: The Commonwealth of Australia v The State of Western Australia [1999] HCA 5; 196 CLR 392 at [33]; Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [18]; McNamara v Consumer Trader and Tenancy Tribunal at [22].
206Public servants (now appointed pursuant to the Public Sector Employment and Management Act 2002) are servants of the State. They are also members of the executive branch of government. Whilst they are able to be described as servants in the executive branch of government and also as being in the service of the executive, they are more correctly described as servants of the body politic, being the State. That "Crown" is used in that sense in s 8(1) reflects the sense in which it is used in LRC 24 (see para 13.4).
207Nonetheless, it remains the position that persons and entities within the executive branch of government will answer one or other of those descriptions. Whether they fall within the former, will depend on whether they satisfy the common law rules used to identify those in a master and servant relationship: see Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 226 CLR 161.
208The meaning of the expression "in the service of the Crown" in the Vicarious Liability Act has not been the subject of consideration by this Court. However, the expression "employed in the service of the Crown" in s 4(1)(e) of the Government and Related Employees Appeal Tribunal Act 1980 (the GREAT Act) has been considered by this Court. In that expression the word "employed" is used in the sense 'engaged in' the service of the Crown, and is used to describe the range of persons answering that description irrespective of the particular relationship which exists between them and the Crown: Holly v Director of Public Works (1988) 14 NSWLR 140 at 147 per Mahoney JA (Kirby P and Samuels JA agreeing).
209The issue in Holly v Director of Public Works concerned the meaning to be given to the word "employed" as used in two definitions in the GREAT Act. The outcome of that issue determined whether in the circumstances there was a right of appeal to the Tribunal. Relevantly for present purposes, in addressing that question it was necessary for the Court to consider the ways in which persons might act "in the service of the Crown in New South Wales" (at 144). Mahoney JA identified three broad categories of persons who would answer that description (at 146-147). They were persons acting in the service of the Crown, directly; persons acting in the service of the Crown by acting for bodies which, though separate entities, "represent the Crown" in the sense in which that term is used in constitutional law (see eg Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; 119 CLR 334); and persons acting in the service of the Crown in the sense that they perform functions of government, but do so as employees of corporations which do not represent the Crown.
210A person may act in the service of the Crown directly because he or she is in a master and servant relationship to the Crown or because he or she has been appointed to an office in which they act in that way. A commonly cited example of the latter is a member of the police force: Holly v Director of Public Works at 147; LRC 24 at para 13.16; who, whether or not in a relationship of master and servant, is required to discharge important functions of government, namely the administration of justice, the preservation of order and the prevention of crime: Coomber v Justices of Berks (1883) 9 App Cas 61 at 67; Attorney-General for NSW v Perpetual Trustee Co (Ltd) (1955) 92 CLR 113 at 120-121; Sydney City Council v Reid (1994) 34 NSWLR 506 at 514.
211In Mounsey v Findlay (1993) 32 NSWLR 1, Clarke JA (Priestley and Cripps JJA agreeing), held that employees of the Illawarra Health Service were "in the service of the Crown" within the meaning of s 4(1)(e) of the GREAT Act. That Health Service did not "represent the Crown" (at 6). Nonetheless, it remained necessary to consider whether an employee of that Service was "in the service of the Crown". The factors said to be relevant when answering that question included whether the employees or the Service, as their employer, were directly or indirectly subject to ministerial control; the nature of the functions which the employees were engaged in and whether they were functions, or involved the provision of services, of the kind traditionally undertaken by government; and whether their conditions of employment were regulated or determined by a servant or agent of the Crown (at 7-9).
212In Sydney City Council v Reid, this Court held that an employee of a local government authority was not "in the service of the Crown". The employee, relying on the decision in Mounsey, stressed the presence of ministerial control over the functions of local government authorities and that those functions were close to the central or traditional functions of government. Kirby P (Meagher and Powell JJA agreeing) distinguished that decision for considerations which included: local government authorities are and should be independent of the executive government (a position reflected in s 51 of the Constitution Act); the nature and extent of ministerial control over local government employees; and that local government authorities were largely independent corporations accountable not to the Crown but to the people who elected them (at 519-520). See also per Meagher JA (at 521) stressing that the councillors were elected, not appointed by the Crown and subject to minimal interference in their activities. Kirby P considered it more appropriate to characterise those employees as being "in the service of local government authorities" and not "in the service of the Crown" (at 520).
213It is necessary then to consider the position of a member of the Legislative Assembly in relation to the Crown, understood as referring to the body politic which is the State of New South Wales.
214New South Wales has a responsible and representative system of government with a legislature comprising three parts. They are the Queen, the Legislative Assembly and the Legislative Council: s 3 of the Constitution Act. Collectively those parts form the Legislature, making laws for the peace, welfare and good government of the State: s 5 of the Constitution Act. However, they remain distinct organs within the Constitution with their own functions, powers and privileges: Egan v Willis [1998] HCA 71; 195 CLR 424 at [31]-[33]; Egan v Willis and Cahill (1996) 40 NSWLR 650 at 664-665: and, in relation to the constituent parts of the Parliament of the United Kingdom, Erskine May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 16th ed (1957) 8. In addition to its legislative functions, each House has a parliamentary function of reviewing the conduct of the executive government which ultimately is responsible to the Parliament. That function has been described as including "to question and criticise government on behalf of the people" and "to secure accountability of government activity": Egan v Willis at [42], [45]; Egan v Willis and Cahill at 665, 677, 692-693; Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563 at [2], [137]. The powers of each of the Houses include those that are reasonably necessary for performance of these functions.
215Members of each House are popularly elected, although the methods of election and terms of office for each House are different. A member of the Legislative Assembly is elected by and to represent an electoral district within the State: s 26 of the Constitution Act; whereas members of the Legislative Council are elected by and to represent the State: s 22A and the Sixth Schedule to the Constitution Act. Those elected representatives, as members of parliament, and some also as ministers of State, exercise legislative and executive powers as representatives of the people. In the exercise of those powers they are accountable to the people for what they do and have a responsibility to take account of the view of the people on whose behalf they act: Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; 177 CLR 106 at 137-138; Egan v Chadwick at [131]-[133].
216The Constitution Act contains provisions which disqualify persons from being elected or from sitting or voting in either House. Those disqualification grounds include holding a contract for or on account of the public service (s 13) and holding an office of profit under the Crown (s 13B). The principal purpose of these provisions is to eliminate or reduce the influence of executive government over the Parliament so as to secure its independence from the executive: see, in relation to s 44(iv) of the Commonwealth Constitution, Re Webster [1975] HCA 22; 132 CLR 270 at 278-279; and Sykes v Cleary [1992] HCA 60; 176 CLR 77 at 95-97.
217The Crown does not have power to remove a member of either House. Section 33 of the Constitution Act permits a member of the Legislative Assembly to resign. A member may also become disqualified from sitting and voting and his or her seat become vacant, for reasons which include a failure to attend for a 'session' of Parliament (s 13A). This Court in Armstrong v Budd (1969) 89 WN (NSW) (Part 2) 241 held that under the common law, each House also has the power to expel a member for reasonable cause.
218The general duty of a member of the Legislative Assembly has been described as being "to serve and, in serving, to act with fidelity and with a single-mindedness for the welfare of the community": per Isaacs and Rich JJ in The King v Boston [1923] HCA 59; 33 CLR 386 at 400. That service involves a duty to attend and vote and includes participation in the constitutional and parliamentary functions described above. From the member's perspective those functions were described by Isaacs and Rich JJ in The King v Boston (at 401) as "moulding the laws to meet the necessities of the people, and the function of vigilantly controlling and faithfully guarding the public finances"; and by Isaacs J in Horne v Barber [1920] HCA 33; 27 CLR 494 at 500 as "watching on behalf of the general community the conduct of the Executive, of criticising it, and, if necessary, of calling it to account in the constitutional way by censure from his place in parliament". Each of those functions is required to be performed by a judgment and conscience "uninfluenced, as far as possible, by other considerations, and least of all by those of a pecuniary nature": per Lord Lyndhurst in Egerton v Brownlow (1853) 4 HLC 1 at 161; 10 ER 359 at 423 cited in Wilkinson v Osborne [1915] HCA 92; 21 CLR 89 at 94, 98; and in Horne v Barber at 499.
219The significance of the duty of holding the executive government to account was emphasised by Isaacs J in Horne v Barber at 500 (in a passage repeated by Isaacs and Rich JJ in The King v Boston at 401-402):
"That is the whole essence of responsible government, which is the keystone of our political system, and is the main constitutional safeguard the community possesses. The effective discharge of that duty is necessarily left to the member's conscience and the judgment of his electors, but the law will not sanction or support the creation of any position of a member of Parliament where his own personal interest may lead him to act prejudicially to the public interest by weakening ... his sense of obligation of due watchfulness, criticism, and censure of the Administration."
220These duties were described in Horne v Barber (at 500) as "inseparable from the position" of a member of Parliament and, in The King v Boston (at 401), as "inseparably attached" to the position to which the member is elected.
221Having referred to the members as "representatives of the people", Isaacs and Rich JJ continued (The King v Boston at 402):
"A member of Parliament is, therefore, in the highest sense, a servant of the State; his duties are those appertaining to the position he fills, a position of no transient or temporary existence, a position forming a recognised place in the constitutional machinery of government. Why, then, does he not hold an 'office'?" (Italics in original)
222Their Honours concluded that a member of the Legislative Assembly, having functions and duties to be discharged in the interests of the public, and as a representative of the people, was a "public officer". In that sense, described by their Honours as the "highest" sense, a member of Parliament is a "servant of the State". The passage extracted above also makes clear that the duties of the member "appertain" to the elected position as member of the Legislative Assembly, which in turn is a distinct organ within the constitutional machinery of government.
223Notwithstanding that general description of the member's position as holding an office requiring the discharge of functions and duties in the public interest, it is not suggested that a member of the Legislative Assembly is a servant of the Crown in the sense that there exists a relationship of master and servant. The issue is whether the member is "a person in the service of the Crown" as that expression is used in s 8(1). In my view, for the following reasons, which emerge from the discussion above, a member of the Legislative Assembly in discharging his or her legislative and parliamentary duties is not "a person in the service of the Crown".
224A member of the Legislative Assembly is not appointed to a position or office by or at the direction of the State acting either by the executive or by legislation. The member is elected by the people and ultimately is accountable to the people who the member represents. The office to which the member is elected is that of member of the Legislative Assembly. That is properly described as a "public office". The member's duties are "inseparably attached" to that office. The member cannot be removed from that office by the State acting by the executive. Nor is the member accountable to the State acting by the executive in the discharge of any legislative or parliamentary function. Nor can he or she be controlled, directed or interfered with by the State in the discharge of those functions. Indeed the principle of responsible government requires that the member be and remain, as far as possible, independent of improper influence of the executive government so as to be able to watch and call it to account if necessary. That this should be so was described by Isaacs and Rich JJ as being "the keystone of our political system".
225The functions which the member performs are functions attaching to the office to which he or she is elected and are not functions, and do not involve the provision of services, which could be undertaken by the State acting by the executive. The functions which a member of the Legislative Assembly performs in voting and watching the conduct of the executive are functions of the Legislative Assembly as distinct from the legislature of which it forms a part. Although legislation, when enacted, may be described as legislation of the State, the functions of the constituent parts which collectively form the legislature remain distinct and separate and are not functions of the body politic or undertaken in any sense on its behalf: see, in relation to the position of the Commonwealth, Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2007] HCA 38; 232 CLR 1 at [99].
226Addressing the question more broadly, the member in no sense acts as an agent or instrument of the State in discharging his legislative and parliamentary functions. Nor has he been appointed to an office in any sense by or at the request of the State. His position in that office is quite unlike that of a member of the police force or of a statutory Committee. None of the three tests considered and rejected by the Law Reform Commission would identify a member of the Parliament as an "officer of the State" for whose torts the State should be liable. Nor do any of the considerations addressed in Holly, Mounsey, or Sydney City Council v Reid suggest that such a member is "in the service of the Crown".
227It follows from this conclusion that the second way in which the appellant argues that the State is liable for Mr Orkopoulos' conduct was correctly rejected by the primary judge.
228The third way that argument is put characterizes Mr Orkopoulos' conduct in supervising or controlling the appellant as undertaken on behalf of the Speaker of the Legislative Assembly, so that in doing so the member was acting "in the service of the Crown".
229That is said to follow from the primary judge's findings and conclusions at [204], [224], [226] and [240]. The findings relevantly are that the appellant in her role as an electorate officer worked under Mr Orkopoulos' "direct supervision and management" [204], [224]. The primary judge also concluded that by the arrangements made between the Speaker and Mr Orkopoulos, the appellant's services were provided on the basis that the member would act with reasonable care to provide her with a safe place of work. That being the position, the primary judge described the Speaker as having "delegated" that duty to Mr Orkopoulos and the latter as acting as the Speaker's "representative" in that respect: [224], [226], [240].
230It does not follow that in supervising or controlling the appellant, Mr Orkopoulos was doing so as agent for or on behalf of the Speaker. The clerk of the Legislative Assembly is responsible to the Speaker for the provision of appropriate professional support for the effective functioning of the Legislative Assembly and its individual members: [211]. The stated objective of the appellant's role as an electorate officer was to support the member to fulfil his parliamentary and constituency responsibilities. Her key "accountabilities" included providing administrative support to the member.
231In the appellant performing that role and in Mr Orkopoulos receiving that support it was necessary for there to be communication, instruction, supervision and, within the framework of the role undertaken, control of the activities performed. However, to the extent that the member was engaged in these functions he was not acting on behalf of the appellant's employer in any respect. He was receiving services made available to him by the Speaker (acting on behalf of the executive government) on a basis which required that he give instruction and undertake some supervision. He was not thereby acting in the service of the Crown. The primary judge was correct to conclude that the appellant had not established, by reason of these activities, that Mr Orkopoulos' misconduct was committed by a person "in the service of the Crown": [257].