FEDERAL COURT OF AUSTRALIA

Rus v Comcare [2017] FCA 239

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal made on 20 January 2016 in proceeding 2014/4611 to affirm the decision under review is set aside.

2.    The parties are directed to confer with a view to agreeing on the scope of the remittal of the case to the Administrative Appeals Tribunal and as to costs.

3.    If there is agreement, the parties shall, on or before 17 March 2017, file minutes of the orders which they consider should be made.

4.    In the absence of agreement or complete agreement, each party shall, on or before 24 March 2017, file and serve minutes of orders the parties contend should be made on the question of remittal and costs, together with short submissions on those matters which remain not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1    The sole issue which arises in this appeal is whether in determining that it could not make a finding that Francis (Frank) Rus (“Mr Rus”) was an employee of the Australian Wool Board (“AWB”), the Administrative Appeals Tribunal (“Tribunal”) erred in law.

2    By its decision, the Tribunal affirmed the respondent’s (“Comcare”) decision to disallow a claim made by the applicant (“Mrs Rus”). Mrs Rus had made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) as the widow of Mr Rus. In 2013, at the age of 63, Mr Rus died of mesothelioma caused by exposure to asbestos. The basis for Mrs Rus’s claim was that Mr Rus had contracted mesothelioma whilst employed by AWB for a short period around 1965 and 1966.

3    As a dependent of Mr Rus, Mrs Rus’s entitlement to compensation under the SRC Act in respect of an injury resulting in the death of Mr Rus was not in question, so long as the Tribunal was satisfied that Mr Rus had been an “employee” of AWB within the meaning of s 5(1) of the SRC Act. That provision relevantly defines an “employee” to be:

(a)    a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or

…

4    It was not in issue that, at the relevant time, AWB was a “Commonwealth authority” within the meaning of the definition of “employee”.

5    At the relevant time, the AWB was a statutory corporation created and regulated by the Wool Industry Act 1962 (Cth) (“WI Act”). It was not in contest, either before the Tribunal or before me, that s 24 provided AWB with the capacity to engage independent contractors in order to perform its functions and that s 27 permitted AWB to appoint officers and engage employees. So far as is relevant s 27 of the WI Act provided:

(1)    Subject to this Act, the Board may appoint such officers and engage such employees as it thinks necessary for the purposes of this Act.

(2)    The terms and conditions of employment of persons so appointed or engaged are such as are determined by the Board.

…

6    Focusing on the word “employed” in the s 5(1) definition, the Tribunal determined that to meet the requirements of the definition, it needed to be satisfied that Mr Rus was employed by AWB under either a law of the Commonwealth or a contract of service. The Tribunal accepted that Mr Rus had worked at AWB performing maintenance work, including recladding (at [70]). But it was necessary for the Tribunal to consider the capacity in which that work was performed. There were three possibilities. First, that the work was performed by Mr Rus as an employee of AWB. Second, that Mr Rus had been an employee of a contractor engaged by AWB or third, that he performed that work as an independent contractor engaged by AWB. Ultimately, the Tribunal considered that it was not able to determine which of the three possibilities applied to the work performed by Mr Rus (at [70]). The Tribunal therefore determined that it could not make a finding that Mr Rus had been employed by AWB and that consequently it could not make a decision in favour of Mrs Rus (at [72] and [73]).

7    Mrs Rus’s primary contention was that the Tribunal erred by ignoring relevant material critical to the success of her claim. She contended that such an error constituted jurisdictional error and thus an error of law. It was not in contest that this Court’s jurisdiction to deal with an appeal from the Tribunal on a question of law had been enlivened by Mrs Rus’s application: s 44 Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).

8    The evidence said to have been ignored was evidence of statements made by Mr Rus that he had been employed by AWB or that he had worked “for” AWB (“Mr Rus’s statements”). That was not the direct evidence of Mr Rus given to the Tribunal, but it was evidence of what he had told variously his son, daughter-in-law, solicitor and various medical practitioners and also evidence contained in answers to interrogatories sworn by Mr Rus in which he deposed to his employment with AWB including as to the dates he commenced and ceased “working for AWB”. That the evidence was hearsay was not the problem. The Tribunal admitted the evidence and accepted as a fact the making and content of the statements made by Mr Rus. However, although the Tribunal relied on those statements for its finding that Mr Rus worked at AWB, Mrs Rus contended that the Tribunal erroneously regarded those statements as being of no assistance on the question of the capacity in which that work was provided by Mr Rus to AWB. That is, of no assistance in determining whether Mr Rus had been employed by AWB, had been employed by a contractor or was self-employed. Mrs Rus contended that the Tribunal had regarded Mr Rus’s statements as evidence of his own subjective characterisation of the nature of his relationship with AWB and that, as a result, it could not be of any assistance in determining the capacity in which Mr Rus provided work to AWB.

9    Comcare sought to resist Mrs Rus’s characterisation of the approach taken by the Tribunal to Mr Rus’s statements. It contended that the Tribunal did not regard that evidence as irrelevant but instead accorded it little or no weight.

10    I consider that a fair reading of the Tribunal’s reasons makes it plain that the Tribunal did not regard Mr Rus’s statements as relevant on the question of the capacity in which he provided work to AWB. As the reasons of the Tribunal acknowledge, Comcare had contended “that Mr Rus’s own belief in his status as an employee is not relevant” (at [45]). Although the Tribunal did not expressly rule on that submission, its reasons reveal that the Tribunal implicitly accepted it. Of significance are the reasons at [50], [63] and [70]. The Tribunal expressed its view that it regarded Mr Rus’s statements as reflecting his understanding of the situation and as not establishing the capacity in which Mr Rus worked or as not assisting in establishing that capacity (at [50] and [63]). Importantly, the Tribunal concluded that there was no evidence before it relevant to whether Mr Rus had been employed by AWB (at [70]). The better view is that the Tribunal regarded Mr Rus’s statements as no more than his own characterisation of his status and of no relevance to determining whether he had been employed by AWB. Whether that evidence was treated as irrelevant or simply given no weight, in my view, Mrs Rus was correct to contend that the evidence was ignored in the sense that it was considered not to have any probative value.

11    To my mind, the Tribunal erred in taking that approach to its statutory task and in particular its task under s 5 of the SRC Act of determining whether Mr Rus had been an “employee” of AWB.

12    The question for the AAT was whether Mr Rus had been an “employee” of AWB. That question was to be answered by reference to the balance of probabilities. In circumstances where the AAT accepted that Mr Rus had worked at AWB, it was necessary for the AAT to determine what best explained that fact. There were 3 possible explanations:

(1)    Mr Rus was directly engaged as an employee under s 27 of the WI Act;

(2)    Mr Rus was employed by an independent contractor engaged under s 24 of the WI Act; or

(3)    Mr Rus was engaged directly under s 24 of the WI Act as an independent contractor.

13    As between the first two possibilities, both of which are founded upon an acceptance that Mr Rus was an employee, Mr Rus’s statements were clearly relevant. As Finn J said at [20] of Re C & T Grinter Transport Services Pty Ltd (In Liquidation) & Grinter Transport Pty Ltd; Ex parte Fitzgerald [2004] FCA 1148 (emphasis added):

[20]     The principles to be applied in the identification of the employer of an employee where there are two or more possible employers, are reasonably well settled. For present purposes I would note the following:

(1)    ...

(2)    The totality of the circumstances surrounding the relationships of the various parties including conduct subsequent to the creation of an alleged employment relationship is relevant to the assessment to be made: Romero v Auty (2001) 19 AGLC 206 at [10] and [42]-[44].

(3)    ...

(4)    Conversations and conduct at the time of the alleged engagement of the employee is of considerable significance: Romero, at [9]. The beliefs of the employees as to the identity of their employer is admissible and is entitled to weight: Pitcher v Langford.

(5)    …

14    Those principles were adopted by Edmonds J in Gothard, Re AFG Pty Ltd (Receivers and Managers appointed) (in liq) v Davey [2010] FCA 1163 at [54] and most recently by Katzmann J in Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034 at [132], where her Honour stated that the principles were settled.

15    Although the fourth principle identified by Finn J is expressed by reference to the belief of employees, its source, Pitcher v Langford (1991) 23 NSWLR 142, actually considered the relevance and admissibility of a statement made by a putative employer about his understanding of his relationship with a worker. The understanding of the putative employer was that he was not “the true employer”. That was regarded as both relevant and admissible.

16    Pitcher was an early adopter of the multi-factorial, reality-based approach to the determination of the nature of the legal relationship between a worker and the entity to whom that person’s work was provided. That approach, confirmed in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 and applied in cases such as On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) (2011) 214 FCR 82 and Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346 focuses upon the substance and reality of the relationship by examining the totality of that relationship through a range of relevant indicia. One such indicia is the characterisation given to the relationship by the parties themselves: On Call at [218]; Quest South Perth Holdings at [148]. Whilst that characterisation is not determinative, it is nevertheless relevant. The approach was perhaps best expressed by the Privy Council in AMP Society v Chaplin (1978) 18 ALR 385, where (at 389) it was observed that the characterisation made by the parties of their relationship cannot receive effect if it contradicts the effect of the agreement as a whole but, where there is ambiguity, the label provided by the parties may provide clarity.

17    That line of authority is principally concerned with contractual statements that characterised the nature of the relationship between a worker and the entity that received that worker’s work. Mr Rus’s statements are more correctly characterised as post-contractual conduct rather than evidence of a contractual statement. Nevertheless, it is well established that post-contractual conduct may be relevant to a question such as whether Mr Rus was an employee of AWB (the first possible explanation) or, alternatively, an independent contractor engaged by AWB (the third possible explanation).

18    An appropriate place to commence a consideration of the relevant authorities is Carmichael v National Power PLC [1999] 1 WLR 2042. In that case, the question before the House of Lords was whether work had been performed under a contract of employment. The Employment Appeal Tribunal had rejected the existence of an employment relationship and had done so taking into account the subsequent conduct of the parties, including the evidence of the parties as to what they had understood their respective obligations to be. Lord Hoffman saw no error in that approach and preferred it to that of the Court of Appeal who had held that reliance on post-contractual conduct was inconsistent with the objective approach to construing the terms of a contract and that consequently the subjective belief of the parties was irrelevant. In doing so, Lord Hoffman said this at 2050–2051 (emphasis added):

This austere rule would be orthodox doctrine in a case in which the terms of the contract had been reduced to writing. But I do not think that it applies to a case like the present. In a case in which the terms of the contract are based upon conduct and conversations as well as letters, most people would find it very hard to understand why the tribunal should have to disregard the fact that Mr. Lovatt and Mrs. Carmichael both agreed that the C.E.G.B. were under no obligation to provide work and the applicants under no obligation to perform it. It is, I think, pedantic to describe such evidence as mere subjective belief. In the case of a contract which is based partly upon oral exchanges and conduct, a party may have a clear understanding of what was agreed without necessarily being able to remember the precise conversation or action which gave rise to that belief. As the Court of Appeal pointed out, the tribunal did not make any specific findings about what was said at the interviews or on any other occasion. But the terms of the engagement must have been discussed and these conversations must have played a part in forming the views of the parties about what their respective obligations were.

The evidence of a party as to what terms he understood to have been agreed is some evidence tending to show that those terms, in an objective sense, were agreed. Of course the tribunal may reject such evidence and conclude that the party misunderstood the effect of what was being said and done. But when both parties are agreed about what they understood their mutual obligations (or lack of them) to be, it is a strong thing to exclude their evidence from consideration. Evidence of subsequent conduct, which would be inadmissible to construe a purely written contract (see Whitworth Street Estates (Manchester) Ltd. v. James Miller and Partners Ltd. [1970] A.C. 583) may be relevant on similar grounds, namely that it shows what the parties thought they had agreed. It may of course also be admissible for the same purposes as it would be if the contract had been in writing, namely to support an argument that the terms have been varied or enlarged or to found an estoppel.

19    The passage emphasised above was repeated by Lord Hoffmann in Chartbrook Ltd v Persimmon Holmes Ltd [2009] UKHL 38 at [64]. At [65] Lord Hoffmann continued (emphasis added):

In a case in which the prior consensus was based wholly or in part on oral exchanges or conduct, such evidence may be significant. A party may have had a clear understanding of what was agreed without necessarily being able to remember the precise conversation or action which gave rise to that belief. Evidence of subsequent conduct may also have some evidential value. On the other hand, where the prior consensus is expressed entirely in writing, (as in George Cohen Sons & Co Ltd v Docks and Inland Waterways Executive (1950) 84 Lloyd’s Rep 97) such evidence is likely to carry very little weight. But I do not think that it is inadmissible.

20    The observations of Lord Hoffmann in Carmichael were applied by Spigelman CJ in County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [22] in support of the principle, expressed at [20]–[21], that subsequent conduct is relevant, on an objective basis, “to the identification of the subject matter of the contract or the determination of necessary terms, as distinct from deciding the meaning of words”. His Honour rejected the proposition that subsequent conduct could not be taken into account for those purposes because it reflected the subjective intention of the parties.

21    Relying on the observations of Spigelman CJ in County Securities as well as those made in Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153 at [25] and Filadelfia Projects Pty Ltd v Entirity Business Services Pty Ltd (No 2) [2011] NSWSC 116 at [38], Warren CJ, Kyrou and McLeish JJA in Regreen Asset Holdings Pty Ltd v Castricum Brothers Australia Pty Ltd [2015] VSCA 286 said this at [134] about evidence of post-contractual conduct (footnotes omitted):

It is also well established that, where no formal written contract exists, such evidence is admissible for the purpose of determining whether a contract was formed, who the parties to the contract are and whether a particular term should be inferred. Similarly, in the case of an oral contract, when the issue is not interpreting words but determining the subject matter of the contract as a fact, the court may have regard to post-contractual conduct.

22    It is no doubt true that the subjective understanding of a party or parties may be afforded little weight in the objective ascertainment of what was actually agreed. As McLelland J in Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR [97023] at 5–6 suggested, the probative force of subsequent communications may vary inversely with the strength of the available direct evidence on the matters in question. Additionally, Lord Clarke (with whom Lords Hope, Walker, Collins and Wilson agreed) in Autoclenz Limited v Belcher [2011] UKSC 41 cautioned against heavy reliance on the private intentions of the parties. The relevant question in that case was whether particular workers were employees or independent contractors. By reference to the judgment of the Court of Appeal, Lord Clarke emphasised that ultimately what matters is what was agreed at the time the contract was concluded. At [32] Lord Clarke said this (emphasis in original):

Aikens LJ stressed at paras 90 to 92 the importance of identifying what were the actual legal obligations of the parties. He expressly agreed with Smith LJ's analysis of the legal position in Szilagyi and in paras 47 to 53 in this case. In addition, he correctly warned against focusing on the “true intentions” or "true expectations" of the parties because of the risk of concentrating too much on what were the private intentions of the parties. He added:

“What the parties privately intended or expected (either before or after the contract was agreed) may be evidence of what, objectively discerned, was actually agreed between the parties: see Lord Hoffmann’s speech in the Chartbrook case at [64] to [65]. But ultimately what matters is only what was agreed, either as set out in the written terms or, if it is alleged those terms are not accurate, what is proved to be their actual agreement at the time the contract was concluded. I accept, of course, that the agreement may not be express; it may be implied. But the court or tribunal's task is still to ascertain what was agreed.”

I agree.

23    The task faced by the Tribunal was not constrained by the parol evidence rule nor, in any event, was there evidence of there being a written contract. In circumstances where any written contract was incapable of being produced as evidence, it was open to the Tribunal to turn to the next best evidence available to it. The evidence contained in Mr Rus’s statements was capable of shedding light upon the existence of a contract, the parties to it and its subject matter. The evidence that Mr Rus worked “for” AWB and was employed by AWB is evidence of a direct relationship between AWB and Mr Rus. It tends against the conclusion that he worked for himself or for a third person. It tends for a conclusion that he worked as an employee of AWB. That conclusion may have been regarded as the most likely explanation of why it was that Mr Rus was working at AWB, especially given the absence of any evidence before the Tribunal identifying any other relevant employer. Moreover, at the time Mr Rus provided the work, he was 14 or 15 years of age and there was no evidence that he conducted a business in circumstances where the carrying on of a business is essential to the legal characterisation of a person as an independent contractor: Quest South Perth Holdings at [177].

24    The probative value of Mr Rus’s statements in the context of the other evidence before the Tribunal was a matter for the Tribunal. It was open to the Tribunal to give less significance to those statements than is implicit in the observation I have just made. However, it was wrong for the Tribunal to exclude from its consideration Mr Rus’s statements in determining the capacity in which Mr Rus provided work at AWB.

25    Comcare relied upon the Full Court’s judgment in Re Australian Industrial Relations Commission; Ex parte Commonwealth (2005) 145 FCR 277 (“Arends”) to contend that, if the Tribunal treated Mr Rus’s statements as irrelevant, it was correct to do so. That reliance was misconceived. In Arends, the relevant issue for determination was whether Mr Arends was a person in employment “by authority of a law of the Commonwealth”. Mr Arends had been specifically engaged under a particular instrument authorised by statute, which provided for a contract for services to be made by the Commonwealth with another person. The Full Bench (Wilcox, Gyles and Bennett JJ) concluded at [33] that the contract so created could not be classed as a contract of service and that the relationship created could not be described as that of employer and employee. The character of the authority conferred by the law authorising the instrument was, so the Full Court concluded, unchanged by the fact that the relationship established with Mr Arends may, in practice, have developed features of an employment relationship. The development of those features did not mean that Mr Arends was in employment “by authority of a law of the Commonwealth” (at [36] and [42]). It was in that context that the Full Court at [42] observed that Mr Arends’ “own belief as to his status is not relevant”. In other words, Mr Arends’ belief could not assist his need to establish an employment created “by authority of a law of the Commonwealth”. Either the “authority” existed or it did not, Mr Arends’ view about the nature of his status was irrelevant. Those observations are directed to a different question and are of no assistance.

26    A question of law within s 44 of the AAT Act is not confined to jurisdictional error but extends to a non-jurisdictional question of law: Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [62] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). While there may have been non-jurisdictional errors of law upon which Mrs Rus could have relied, her appeal was based upon jurisdictional error. Broadly stated, the question of law relied upon by Mrs Rus to sustain her appeal under s 44 of the AAT Act, was whether, by ignoring relevant material, the Tribunal failed to perform its statutory task to review the decision of Comcare, Comcare did not contest Mrs Rus’s contention that ignoring Mr Rus’s statements could constitute an error or law. I consider that it did. Ignoring relevant material will not, of itself, amount to an error of law. However, as McHugh, Gummow and Hayne JJ said in Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82] “… ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law”. Their Honours went on to conclude that such an error was a jurisdictional error. That an error of law of that kind may support an appeal under s 44 of the AAT Act on a question of law is confirmed in the judgment of Black CJ, Drummond and Kenny JJ in Repatriation Commission v Hill [2002] FCAFC 192 at [59].

27    The ignoring of relevant material will constitute jurisdictional error where doing so demonstrates a failure to perform the statutory task required of the decision-maker. In Minister for Immigration and Border Protection v MZYTZ (2013) 230 FCR 431, Kenny, Griffiths and Mortimer JJ relevantly said this at [68]:

In SZJSS at [27]-[28] (a passage extracted by Robertson J in SZRKT at [96]) the joint judgment of the Court recognised as a proposition flowing from Yusuf that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”. In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored.

28    As I said in Buchwald v Minister for Immigration and Border Protection (2016) 242 FCR 65 at [72]:

… Where relevant evidence is ignored, it is crucial to the assessment of whether jurisdictional error is established that consideration be given to the consequence of that omission. As Robertson J said in SZRKT at [111]:

The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error.

See further VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] (Hill, Sundberg and Stone JJ) and SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 at [81(b)] and [81(f)] (Griffiths J).

29    The Tribunal’s task was to determine whether or not it was satisfied that Mr Rus was an “employee” pursuant to s 5 of the SRC Act. That task could not have been properly performed if material important to the formation of the requisite state of satisfaction or non-satisfaction was ignored. In the context of the material available to the Tribunal, Mr Rus’s statements were critical to the fact of employment which was the critical fact in the case. The Tribunal’s failure to take that material into account affected the exercise of its power and resulted in an error of law.

30    There were other issues raised by Comcare of which I should say something. By a Notice of Contention, Comcare raised two matters. The first was in these terms:

1.     In 1965 Mr Francis Rus could only have been employed by the Australian Wool Board if the Board had engaged him under s 27(1) of the Wool Industry Act 1962 (Cth). If so engaged, his terms and conditions of employment would be as determined by the Board pursuant to s 27(2) of that Act.

31    As explained by its submission, the point sought to be made by Comcare was that the Tribunal erred by not excluding the possibility of the employment of Mr Rus by AWB under a contract of employment. Comcare contended that the only possible means by which Mr Rus could have been lawfully engaged by AWB was under a statutory employment pursuant to s 27 of the WI Act. It is not apparent to me how such an error would be the basis for affirming the decision of the Tribunal “on grounds other than those relied upon by the Tribunal”: r 33.21 of the Federal Court Rules 2011 (Cth). The same can be said of the second matter raised by Comcare’s Notice of Contention. That challenged the Tribunal leaving open the possibility that Mr Rus had been an independent contractor engaged by AWB. Comcare contended that there was no evidence for any finding “about that likelihood or unlikelihood”. Again, it is difficult to understand how any such error, the existence of which I very much doubt, could provide a basis for affirming the Tribunal’s decision on grounds other than those relied upon by the Tribunal. For those reasons, I regard Comcare’s Notice of Contention to be misconceived.

32    However, the first matter raised by the Notice of Contention was also relied upon in support of Comcare’s contention that Mr Rus’s statements were irrelevant. Assuming for the moment that the contention is correct, and that if Mr Rus was engaged by AWB he could only have been engaged under the WI Act and not also under contract, I would not accept the proposition that Mr Rus’s statements do not constitute relevant evidence of that engagement.

33    Putting to one side questions about the construction of the statute (which are of no relevance on this analysis), whether or not a person was engaged under a statute is a question of fact. The best evidence of that fact may well be an instrument made by the statutory authority recording that engagement. However, other evidence may be probative of that fact, including evidence from the person providing the work that he or she worked for the statutory authority. That is some evidence of a direct relationship between the worker and the statutory authority. If the only available means by which that direct relationship could have been achieved was through a statutory engagement, that evidence would tend to support the existence of such an engagement.

34    It was not in contest that if Mr Rus was engaged under statute alone he would have been “employed under a law of the Commonwealth” and thus within the s 5(1) definition of “employee”. Given that the definition also includes “a person … employed … under a contract of employment”, it was not necessary for the Tribunal to have made a conclusive finding as to whether employment under the WI Act was exclusively statutory or alternatively also encompassed a contract of employment. In determining whether either possibility was applicable, Mr Rus’s statements were relevant.

35    Given the conclusion just expressed, it is not necessary for me to determine whether employment pursuant to s 27 of the WI Act is exclusively statutory or also encompasses a contract of employment. I observe, however, that the authorities in Australia tend to support the latter position. As the learned author Smith G F (Public Employment Law: The Role of the Contract of Employment in Australia and Britain (Butterworths, 1987)) stated at 89:

The position in Australia is much clearer. There is ample authority for the view that public servants in Australia have a contract. A number of relatively early decisions of the High Court of Australia decided, though on the basis of dubious authority, that the relationship between the Crown and its servants is contractual. In Carey v Commonwealth (1921) 30 CLR 132, Higgins J held that while the employment continues, relations between the Crown and its servants are contractual in character. In Lucy v Commonwealth (1923) 33 CLR 229, Starke J said:

Service under the Crown involves in the case of civil officers, a contract of service – peculiar in its conditions, no doubt, and in many cases subject to statutory provisions and qualifications – but still a contract. [at 253]

There are subsequent decisions which have clearly held that public servants employed by the Crown in the various States of Australia also are employed under contracts of employment. These include Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 at 24; Siebert v Hunkin; [1933] SASR 432 at 437; Keeley v Victoria [1964] VR 344.

36    The following observations of Sheppard J in Ioannou v Fowell [1982] FCA 179; 63 FLR 170 at 188 (FLR) are also instructive:

… I do not understand what Mason J. said in the Australian Broadcasting Commission case to mean that he is of opinion that public service pursuant to statutes such as apply here is not pursuant to any contract. That would run counter to long held notions. If he had intended to espouse that view I would have thought that a much more explicit statement to that effect would have been made. I refer in passing to the decision of Gillard J. in Keeley v. Victoria [1964] VR 344 and to Hogg on the Liability of the Crown (1971), pp. 148 et seq. The submission made on behalf of the respondents would result in the position of public servants depending upon status rather than contract and would mean that the entirety of their rights and obligations would devolve from the relevant statutory provisions. Notwithstanding the comprehensive code which undoubtedly exists in this case, there are many gaps which need filling in, not the least of which is the necessity to understand the ambit of the responsibilities imposed by his employment upon an employee such as the applicant. These must derive from contract…

37    Similar observations to those made by Smith are made by other learned authors: see McCarry G, Aspects of Public Sector Employment Law (Law Book Company, 1988) at 20; and Irving M, The Contract of Employment (LexisNexis Butterworths, 2012) at [2.39]. However, as Brennan J observed in Director General of Education v Suttling (1986) 162 CLR 427 at 437, the contractual nature of the relationship between a civil servant and the Crown “has not been universally accepted”.

38    It is not necessary that I deal in any detail with the further contention raised by Mrs Rus, that the Tribunal’s decision was legally unreasonable. That challenge was only faintly pressed and has no apparent merit.

39    For those reasons, Mrs Rus’s appeal succeeds. I will make orders allowing the appeal and remitting the matter for reconsideration by the Tribunal. The scope of that remittal has not been the subject of submissions and needs to be considered by reference to the considerations I outlined in O’Loughlin v Linfox Australia Pty Ltd [2015] 235 FCR 164 at [68]–[70].

40    Given the limited issue dealt with by the Tribunal, it may assist that I express my preliminary view that the remittal should be confined to the question of whether, on the material before the Tribunal, Mr Rus was an employee of AWB. However, should the parties (or one of them) not agree with that view or, should the parties not come to an agreement as to the scope of the remittal, I will receive and consider short submissions on that point. Similarly, if the parties are not agreed on the question of costs, their further submissions will be required. I will make orders facilitating those processes.

Associate:        

Dated:    10 March 2017