Karl Konrad v Victoria Police [1998] FCA 16 (22 January 1998)

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - termination of employment - review of Judicial Registrar's decision - applicant a member of the Victoria police force - whether employer/employee relationship exists between the Crown and a member of a police force - whether Division 3 of Part IVA ("the Division") of the Workplace Relations Act 1996 treats "employment" as a wider concept than the traditional employer/employee relationship.

CONSTITUTIONAL LAW - Commonwealth Constitution - implied limitation on Commonwealth legislative powers - whether an implied limitation excludes members of a State police force from the operation of the Division.

PRACTICE AND PROCEDURE - whether review proceeding is a separate proceeding from application dealt with by Judicial Registrar - whether review is conducted in the Industrial Relations Court of Australia or the Federal Court of Australia.

PRACTICE AND PROCEDURE - whether extension of time should be granted for application to review.

PRACTICE AND PROCEDURE - application against non-juristic person - whether application is a nullity - whether amendment of application should be permitted.

Industrial Relations Act 1988 (Cth) ss 170EA, 170EB

Workplace Relations Act 1996 (Cth) Div 3 Pt IVA, ss 170CA, 170CB

Federal Court Rules O 13 r 2

Police Regulation Act 1958 (Vict) ss 4, 8, 11, 13

Police Regulation Act 1899 -1947 (NSW)

Termination of Employment Convention 1982 Arts 2, 4

Termination of Employment Recommendation 1982 Para 4

Shackley v Australian Croatian Club (1996) 141 ALR 736, followed

Andrews v Uniting Church in Australia Frontier Services t/a Old Timers (1995) 60 IR 437, discussed

Kumar v Prima Furniture (NSW) Pty Ltd (1997) 73 IR 349, discussed

D'Antuono v Minister of Health, (Full Court, 5 December 1997, unreported), discussed

Cosco Holdings Pty Ltd v Thu Thi Van Do and Others (Full Court, 4 December 1997, unreported), discussed

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, discussed

Coyne v Ansett (Full Court, 24 September 1996, Industrial Relations Court of Australia, unreported), discussed

Schafer v Colerio (1997) 73 IR 428, followed

Chalmers v Deakin University (Marshall J, 11 August 1997, Industrial Relations Court of Australia, unreported), followed

Commonwealth v Quince [1944] HCA 1; (1944) 68 CLR 227, applied

Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1955) 92 CLR 113, applied

Attorney-General for New South Wales v Perpetual Trustee Company (Limited) [1952] HCA 2; (1952) 85 CLR 237, applied

Re Australian Federal Police Association (1993) 51 IR 122, not followed

Griffiths v Haines (1984) 3 NSWLR 653, discussed

Chapman v Commissioner, Australian Federal Police (1983) 50 ACTR 23, discussed

Sellars v Wood (1982) 45 ALR 113, discussed

Capay Holdings Pty Ltd v Slattery (Full Court, 11 December 1996, Industrial Relations Court of Australia, unreported), followed

Re Australian Education Union; Ex parte Victoria [1995] HCA 71; (1995) 184 CLR 188, discussed

Victoria v Commonwealth (1996) 187 CLR 416, discussed

Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470, followed

Royal Australian Nursing Federation (Tasmanian Branch) v Fawdry (1986) 12 FCR 113, distinguished

Green v Philippines Consulate General [1971] VR 12, distinguished

Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30, distinguished

Inner and Eastern Health Care Network v HSUA, (Marshall J, 11 November 1997, unreported), distinguished

KARL KONRAD v VICTORIA POLICE

VI 2244R of 1996

MARSHALL J

MELBOURNE

22 JANUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 2244R of 1996

BETWEEN:	KARL KONRAD Applicant
AND:	VICTORIA POLICE Respondent
JUDGE:	MARSHALL J
DATE OF ORDER:	22 JANUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

	General distribution
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 2244R of 1996

BETWEEN:	KARL KONRAD Applicant
AND:	VICTORIA POLICE Respondent

JUDGE:	MARSHALL J
DATE:	22 JANUARY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This matter is an application for a review of the exercise of power by a Judicial Registrar in a proceeding concerning the alleged unlawful termination of the applicant's employment. The applicant, Mr Konrad, was a probationary constable in the Victoria Police Force. On 1 August 1996, Mr Konrad ceased to be a member of the Victoria Police Force at the initiative of the Chief Commissioner of the Victoria Police Force.

BACKGROUND

On 13 August 1996 Mr Konrad filed, in the Australian Industrial Relations Commission ("the Commission"), an application pursuant to s 170EA of the Industrial Relations Act 1988 ("the IR Act"). Section 170EA of the IR Act then provided as follows:

"(1) A person (the employee) may lodge with the Commission an application for relief in respect of termination of his or her employment.

(2) A trade union whose rules entitle it to represent the industrial interests of an employee (the employee) may, on the employee's behalf, lodge with the Commission an application for relief in respect of the termination of the employee's employment.

(3) An application under subsection (1) or (2) must be lodged:

(a) within 14 days after the employee receives written notice of the termination; or

(b) within such further period as the Commission allows on an application made during or after those 14 days.

(4) An application so lodged is to be treated by the Commission as a request to attempt to settle the matter by conciliation.

(5) Unless the Commission otherwise orders, the parties to such a conciliation proceeding are:

(a) the employer and the employee concerned; and

(b) if the application is lodged under subsection (2) - the trade union concerned.

Rules 41 of the Rules of the Commission provided that an application under s 170EA(1) of the IR Act must be in accordance with Form R28 and lodged in the Industrial Registry. Mr Konrad's application was in accordance with Form R28. Part of the form was headed "Details of employment". Mr Konrad gave as his employers name, "Victoria Police" of "Police Headquarters - World Trade Centre". He listed his occupation as "Constable of Police - General Duties". He advised that he sought the remedies of reinstatement, compensation and a "public apology" in respect of what he alleged to be the unlawful termination of his employment on 1 August 1996.

Rule 42(1) of the Rules of the Commission provided that:

"An application lodged under subrule 41(1) is answered by the employer filing a notice of appearance in accordance with Form R29."

Form R29 is headed "Application in respect of termination of employment - notice of employer's appearance". On 19 August 1996 a document complying with the requirements of Form R29 was filed in the Industrial Registry by Robert Watson. Next to the section of the form which asked "Are you the true employer?", the "No" box was ticked. Beside the words "Who is" Give Details", Mr Watson wrote "Chief Commissioner". I take this to be an intended reference to the Chief Commissioner of Police.

Section 170EB of the IR Act provided as follows:

(1) When an application is lodged with the Commission, the Commission must inquire into the matter to which the application relates and try to help the parties to the conciliation to agree on terms for settling the matter.

(2) If the Commission decides that the matter cannot be settled by conciliation, or further conciliation, within a reasonable period, the Commission must:

(a) inform the parties to the conciliation that it has so decided; and

(b) invite the parties to elect, by notice in writing given to the Commission, either at once or within a period specified by the Commission, to have the matter dealt with by consent arbitration.

(3) At any time during the conciliation of a matter, the parties to the conciliation may elect, by notice in writing given to the Commission, to have the matter to which the conciliation relates dealt with by consent arbitration, and, upon their so doing, the conciliation process ends.

(4) To avoid doubt, the Commission's functions under this section are additional to its other functions, and are not subject to any implied limitations arising from the existence of any of its other functions."

A conciliation conference in the application took place in late August 1996. On 30 August 1996 Commissioner O'Shea certified that the Commission had been unable to settle the matter by conciliation within a reasonable period and that "the parties in this matter, having been invited to elect to have the matter dealt with by consent arbitration, have not so elected."

The Commission referred the application to the Industrial Relations Court of Australia ("IRCA"). The application was listed for a directions hearing on 24 September 1996. At the directions hearing the application was "fixed for hearing on 16 December 1996 for three days". On 7 November 1996 solicitors acting for "Murray Neil Comrie, Chief Commissioner of Police" issued a notice of motion seeking that the application be dismissed.

An affidavit in support of that notice of motion was sworn by William Robertson, a former Assistant Commissioner of the Victoria Police Force who had retired on 3 August 1996. Mr Robertson testified that "Victoria Police" was not a legal person and at no time was Mr Konrad's employer.

In response, Mr Konrad swore an affidavit in which he testified that he applied to join the Victoria Police Force by filling out a form headed "Application For Employment". He also testified that the terms and conditions of his employment were governed by a collective employment agreement entered into by the Police Association and the Chief Commissioner of Police, pursuant to the Employee Relations Act 1992 (Vict).

Prior to the application being heard in IRCA the IR Act was amended with effect from 25 November 1996 in certain respects by the Workplace Relations and Other Legislation Amendment Act 1996 ("the Amendment Act") which, inter alia, had the effect of changing the name of the IR Act to the Workplace Relations Act 1996 ("the Act"). References to the IR Act as it stood prior to 25 November 1996 and to the provisions which are material to this matter are henceforth referred to as the Act and provisions of the Act respectively.

On 16 December 1996 Judicial Registrar Murphy sitting in IRCA upheld the notice of motion of the Chief Commissioner and dismissed Mr Konrad's application. In his ex-tempore reasons for judgment the Judicial Registrar held that the application should be dismissed as a nullity because the respondent "Victoria Police" was not a juristic person.

On 9 January 1997 Mr Konrad filed a notice of motion seeking a review pursuant to s 377(1) of the Act. On 24 February 1997 a directions hearing was held in the review. Directions were made for the filing of contentions of law on certain jurisdictional issues. Those jurisdictional issues are the subject of this judgment.

On 25 May 1997 the review had not commenced. On that day the jurisdiction of IRCA in respect of matters in which the substantive hearing had not commenced was transferred to this Court pursuant to the Amendment Act. On 6, 7, 8 and 9 October 1997 the Court heard submissions on certain jurisdictional issues to which I will refer later in these reasons for judgment. Further written submissions were filed and on 27 and 28 November 1997 additional oral submissions were made.

On the first day of the hearing of the review, counsel for the Chief Commissioner of Police and the State of Victoria inquired as to whether I was sitting in this matter as a Federal Court Judge or as a Judge of IRCA. I ruled that I was sitting as a judge of the Federal Court because I should follow the judgment of the Full Court of IRCA in Shackley v Australian Croatian Club (1996) 141 ALR 736, in which it was held that a review is a separate proceeding from the application which was dealt with by the Judicial Registrar. In so holding, the majority of the Full Court of IRCA expressly disapproved of the view of Gray J to the contrary in Andrews v Uniting Church in Australia Frontier Services t/a Old Timers (1995) 60 IR 437. However, after my ruling on 6 October 1997, but prior to the publication of these reasons, a Full Court of the Federal Court endorsed the view of Gray J in Andrews. See Cosco Holdings Pty Ltd v Thu Thi Van Do and Others (Full Court, 4 December 1997, unreported). Under the heading "Subsidiary issues" Northrop J, in his separate judgment, dealt with an order for costs which had been made by the trial judge. Northrop J said:

"Section 347 did not empower the Court to order that the employer pay the employees' costs of the applications brought by the employees. The true position is explained by Gray J in Andrews v Uniting Church in Australia Frontier Services (1995) 60 IR 437."

The concluding sentence of the joint judgment of Lindgren and Lehane JJ is as follows:

"We respectfully agree with what Northrop J has written about the subsidiary matters and with his Honour's proposals for their disposition."

There is nothing in Northrop J's judgment to indicate that Shackley was drawn to the Full Court's attention. In Shackley the trial judge had followed Andrews. His order was overturned on the basis that Andrews was not correctly decided on the issue as to whether a review was a separate proceeding or merely another step in the same proceeding which had commenced before the Judicial Registrar.

In Kumar v Prima Furniture (NSW) Pty Ltd (1997) 73 IR 349, Moore J, after a careful and thorough analysis of Sch 16 to the Amendment Act and reference to Shackley, held that the review in Kumar should be heard by the Federal Court. That position appeared to be endorsed by Burchett J in D'Antuono v Minister of Health, (Full Court, 5 December 1997, unreported) although not adverted to by Carr J or R D Nicholson J in D'Antuono. However neither Carr J or R D Nicholson J held that the review should not have been heard by the Federal Court. As at the date of its judgment, it appears that the Full Court in D'Antuono was unaware of what had been decided the day before in Cosco Holdings.

For the purposes of this judgment little turns in any practical sense on whether I am sitting as a Judge of IRCA or of this Court. In the event that I should have held that I was sitting as a Judge of IRCA an appeal from my judgment would in any case be dealt with by a Full Court of the Federal Court, as would be the case if I correctly had ruled on 6 October 1997, on the basis of existing authority, that I was sitting as a Judge of the Federal Court. It is unfortunate that two Full Court judgments delivered within a day of each other appear to support opposite views on this topic. However, the entire debate is circular in that if I am bound by Cosco Holdings to find I should have sat in IRCA, Shackley would be binding upon me as a single IRCA judge to sit in this Court.

EXTENSION OF TIME

The first issue which the Court dealt with on 6 October 1997 was the submission of counsel who appeared under protest for the Chief Commissioner of Police and/or as a friend of the Court and for the State of Victoria, Mr Jack Hammond, that Mr Konrad required an extension of time within which to bring his application for a review of the Judicial Registrar's exercise of power. Mr Hammond did not oppose an extension of time but merely desired to point out that an extension of time was required if the review was to be conducted. Counsel for Mr Konrad, Mr Bruce Shaw, submitted that an extension of time was not required but in the alternative sought such an extension if it was necessary.

The relevant controversy arose because the application for review was filed on 9 January 1997 when the last day for its filing was 7 January 1997, twenty-one days after Judicial Registrar Murphy's judgment of 16 December 1996. Order 74 rule 3 of IRCA's rules provided at the material time that:

"For the purposes of section 377(1) of the Act, the time prescribed in relation to an application to review the exercise of a power by a Judicial Registrar is 21 days or such further time as is allowed by the Court or a Judge upon application at any time."

On 8 August 1997 the IRCA rules were repealed by Statutory Rule No 204 of 1997 in which the rules of the Court were amended. Order 79 rule 4 of the rules of Court from that day has provided as follows:

"4. (1) This rule applies to an application by a party to a proceeding for review of an exercise of power in the proceeding by a Judicial Registrar.

(2) The application must be made within:

(a) 21 days after the day when the Judicial Registrar exercises the power; or

(b) any longer period allowed by the Court or a Judge.

(3) The Court or a Judge may allow a longer period within which the application may be made even if the period mentioned in paragraph (2)(a) has passed when the Court or the Judge is asked to allow the longer period.".

Mr Shaw contended that Mr Konrad's review application was not out of time because time did not run in the Court vacation. Order 2 rule 2 of the rules of IRCA provided at all material times for "a fixed vacation in each year during the period from the beginning of the Monday before 24 December until the first Monday in February." Order 3 rule 5 of the rules of IRCA also provided that:

"In the period from the beginning of the day on which the fixed vacation begins until the end of the 14th of January next following, time shall not, unless the Court otherwise orders, run so as to put any party in default in respect of any act for the doing of which a time is fixed by the Rules or by any judgment or order of the Court but business may be done during that period."

Mr Hammond submitted that Order 3 rule 5 did not have the effect of stopping time running during the vacation for the purpose of time limits provided by the rules. He submitted that the rules only relieved a party from being default in respect of the completion of doing any thing for which time had been fixed by the rules or by an order of IRCA. He further submitted that there was no requirement for Mr Konrad to seek to review the exercise of power by the Judicial Registrar and that there was no question of him being in default during the vacation.

On the assumption that an extension of time was required I granted Mr Konrad an extension of time within which to bring his application for review. Although the application for an extension was not opposed, I indicated the basis upon which I granted the extension. I referred to the well-known principles relating to extending time for the making of unlawful termination applications under s 170EA of the Act as referred to in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 and Coyne v Ansett, (Full Court, 24 September 1996, IRCA, unreported). I said that those principles had been held to be applicable to an application for an extension of time to seek a review of a Judicial Registrar's exercise of power and referred to Schafer v Colerio (1997) 73 IR 428 and Chalmers v Deakin University (Marshall J, 11 August 1997, unreported). In deciding to extend time I was influenced by the fact that the review application was only two days late and that no prejudice arose from an extension as was reflected by Mr Hammond making no submissions in opposition to an extension. Further, I had regard to the time of year when the review application was made and the fact that similar issues to those raised in Mr Konrad's application were before the Court as currently constituted in other matters. It followed, time having been extended, that the review application was then properly before the Court.

THE JURISDICTIONAL ISSUES

Mr Hammond raised the following jurisdictional questions:

* Is the application a nullity because the named respondent is not a juristic person?

* Was there an employment relationship between Mr Konrad and the State of Victoria?

* If such an employment relationship did exist, is Div 3 of Part VIA of the Act beyond the legislative competence of the Federal Parliament because "it infringes the implied limitation in relation to State powers"?

Mr Hammond also submitted that Div 3 of Part VIA of the Act did not apply to Mr Konrad because he was a probationary employee. However, Mr Shaw and Mr Hammond agreed that that issue could await the Court's determination of the jurisdictional issues referred to above and be heard, if necessary, with any evidence dealing with the merits of the application should all other jurisdictional objections fail.

"THE EMPLOYEE POINT"

For reasons which will become apparent later in this judgment, I propose to deal first with the issue as to whether Mr Konrad was an employee of the State of Victoria when he was a probationary constable in the Victoria Police Force.

(i) Police Regulation Act 1958 (Vict)

Pursuant to s 4 of the Police Regulation Act 1958 (Vict) ("the PR Act") the Governor in Council may appoint a Chief Commissioner of Police ("the Chief Commissioner") . Under s 8 of the PR Act the Chief Commissioner may appoint, inter alia, constables. Constables so appointed become officers of "the force". The force is defined in s 3 of the PR Act to mean:

"... officers and other members of the police force of Victoria whether employed upon land or upon water;".

Appointment of constables is subject to a two year probation period which may be extended by one year.

Section 13(1) of the PR Act provides that:

"Any person appointed to be a member of the force shall not be capable of acting in any way as such member until he has taken and subscribed the oath set forth in Form A of the Second Schedule.".

Form A of the Second Schedule to the PR Act is in the following form:

"Oath for Members of the Police Force of Victoria

I swear by Almighty God that I will well and truly serve our Sovereign Lady the Queen as a member of the Police Force of Victoria in such capacity as I may be hereafter appointed, promoted, or reduced to without favour or affection malice or ill-will for the period of from this date, and until I am legally discharged; that I will see and cause Her Majesty's peace to be kept and preserved; and that I will prevent to the best of my power all offences against the same, and that while I shall continue to be a member of the Police Force of Victoria I will to the best of my skill and knowledge discharge all the duties legally imposed upon me faithfully and according to law."

Section 11 of the PR Act is headed "Authority of constables" and provides that:

"Every constable shall have such powers and privileges and be liable to all such duties as any constable duly appointed now has or hereafter may have either by the common law or by virtue of any Act of Parliament now or hereafter to be in force in Victoria, and any member of the police force of higher rank than a constable shall have all the powers and privileges of a constable whether conferred by this Act or otherwise."

Section 13(3) of the PR Act provides that:

"Every person who has taken and subscribed such oath shall be taken to have, from the day on which such oath has been taken and subscribed, thereby entered into a written agreement with, and shall be thereby bound to serve Her Majesty as a member of the force, and in whatsoever capacity he is hereinafter required to serve, and at the current rate of pay of any rank to which he is appointed or reduced until legally discharged; and such agreement shall not be set aside cancelled or annulled for want of reciprocity, but every such agreement shall be determined by the discharge dismissal or other removal from office of any such person, or by the acceptance of the resignation of the Chief Commissioner or of any Deputy or Assistant Commissioner by the Governor in Council, or by the acceptance of the resignation of any other member of the force by the Chief Commissioner."

(ii) Quince's Case

In Commonwealth v Quince [1944] HCA 1; (1944) 68 CLR 227 the High Court held that the Crown was not able to sue for the loss of the services of a member of the Royal Australian Air Force under the cause of action per quod servitium amisit. A material issue in Quince, arising from the action there taken, was the nature of the relationship between an airman and the Commonwealth. Although dissenting in the result, Latham CJ held at 233-234, that the relationship between an airman and the Commonwealth was not contractual in nature. He held that the relationship was constituted by the airman taking the oath of enlistment and that therefore there was no contract of service. See especially at 236. Latham CJ held that the Commonwealth was entitled to sue for damages for the loss of the airman's services because the airman was "bound to render service", albeit not pursuant to a contract of service. Rich J held that at least a "defacto relation of master and servant" was required for the Commonwealth to maintain its action. He held at 243 that:

"... the services rendered to the Crown by members of those forces differ in kind from those rendered by a servant to a private master under a contract of service, and there is no principle upon which the Crown can recover in an action per quod servitium amisit in respect of the loss of such services."

Starke J at 245, held that a member of the armed services was not an employee. He observed that "pay and allowances" were stipulated by legislation for members of the armed services but held that "no civil contract is created between the King and members of the [armed] forces." McTiernan J held at 250 that there was no relevant contract of service. Williams J dissented. Taking a similar approach to that of Latham CJ, his Honour said at 254 that:

"... it is immaterial to decide whether (the airman's) relationship to the Crown was in any respect contractual."

Later in his judgment, especially at 257, Williams J, in dicta, expressed views which support the proposition, not accepted by any of his brothers, that the airman was employed by the Commonwealth pursuant to a contract of service. The majority in Quince and one member of the minority held that the services performed by a member of the armed forces was not performed pursuant to a contract of service.

(iii) The Perpetual Trustee Cases

In Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1955) 92 CLR 113 the Privy Council held, affirming the decision of the High Court of Australia in Attorney-General for New South Wales v Perpetual Trustee Company (Limited) [1952] HCA 2; (1952) 85 CLR 237, that the Crown was not able to sue for the loss of the services of a member of the police force caused by the negligent act of another under the cause of action per quod servitium amisit. Analogous to Quince, in the Perpetual Trustee cases, the Privy Council and the High Court considered the nature of the relationship between a member of the police force of New South Wales and the Crown in right of New South Wales.

The Privy Council traced the relevant legislative provisions applying under the Police Regulation Act 1899 -1947 (NSW). Those provisions are not materially distinguishable from the provisions of the PR Act which apply in Victoria today.

Viscount Simonds delivered the judgment of the Privy Council. At 121 his Lordship observed that:

"... neither changes in organization nor the imposition of ever-increasing statutory duties have altered the fundamental character of the constable's office. Today as in the past he is in common parlance described in terms which aptly define his legal position as `a police officer', `an officer of justice', `an officer of the peace'. If ever he is called a servant, it is in the same sense in which any holder of a public office may be called a servant of the Crown or of the State."

His Lordship then referred to the "Oath" which New South Wales constables were required to take and observed at 121 that:

"It is not the usual concomitant of the master and servant relationship."

At 129 - 130 his Lordship said, concerning the judgments of the members of the High Court of Australia in the matter subject of the appeal:

"Their Lordships have made many references to Quince's Case [(1944) [1944] HCA 1; 68 CLR 227] which was in the High Court regarded as indistinguishable in principle from the present case, and have freely borrowed from the judgments of Rich, Starke and McTiernan JJ., in that case. In their view its facts, at least as clearly as those of the present case, support the view that the master and servant relation, upon which the action per quod servitium amisit rests, is wholly different in kind from the relation of the Crown to a member of the armed forces, whether Field Marshal or private soldier, and that a rule of law which applies to one should not be applied to the other unless there is compelling authority to do so. The review of the case law on the subject has shown that is far from being the fact. Their Lordships share the opinion entertained by all the judges of the High Court that the case of the constable is not in principle distinguishable from that of the soldier. Certain differentiating features such as the right given to the police under the Industrial Arbitration Act 1940 -1948 cannot affect the position."

Also at 129 the conclusion of the Privy Council was expressed in the following terms:

"... there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category."

The decision of the Privy Council in Perpetual Trustees unambiguously provides that a member of a police force is not an employee of the Crown. In the High Court of Australia at [1952] HCA 2; (1952) 85 CLR 237 the majority of the six Justices sitting expressed views inconsistent with the proposition that police constables are employees of the Crown or the State.

At 303 - 304, Kitto J said:

"The matter may be summed up by saying that a member of the police force is under an obligation to perform duties of which some are statutory, some derive from the common law, and all are of a public character; and although a member of the police force is bound to obey the lawful orders of his superiors (s. 14), neither they nor the Crown itself can lawfully require him to abstain from performing the duties which the law imposes upon him with respect to the preservation of the peace and the apprehension of offenders, or can lawfully direct the detailed manner in which he shall perform those duties, and neither they nor the Crown itself (although amenable to actions of tort in New South Wales) can be held liable for acts done by a constable in relation to the duties of his office. These considerations seem to me sufficient in themselves to negative the existence of a master and servant relationship." (emphasis supplied)

Further at 304, Kitto J said:

"... even if it were to be conceded that with respect to some classes of persons in the service of the Crown the relation of master and servant in the strict sense exists, I should be of opinion that that relation does not exist between the Crown and a member of the police force, having regard to the nature of his office, the public character of his duties, the absence of power in the Crown to control the performance of his duties, and the consequential non-liability of the Crown for acts done within the scope of his duties."

Fullagar J referred to the judgment of the High Court in Quince. He held at 279 that the circumstances of the airman in Quince were not distinguishable from those of the police constable in the matter before him. Fullagar J applied Quince. He said at 282:

"We should, in my opinion, adhere to Quince's Case unless and until the House of Lords or the Privy Council may require us to adopt a different view."

In some passages of his judgment at 283 ff, Fullagar J expressed views which may tend to support the existence of an employee/employer relationship between a police officer and the Crown. The following passage at 283 is particularly relevant:

I begin by thinking that every member of the navy or the army or the air force or the police force is a servant of the Crown in the sense which is required for the application of the rule of respondeat superior.

However, it is apparent from 282 - 283 of his Honour's judgment that the passage cited immediately above was obiter dicta. Fullagar J was addressing the issue of vicarious liability of the Crown for acts of members of a police force and and members of the military. Vicarious liability was not a matter raised by the facts of Perpetual Trustees and consequently was not a matter directly at issue in the case. Fullagar J was merely, by way of comparison, highlighting the historical and other distinctions between the action per quod servitium amisit and the rule of vicarious liability.

At 273, Webb J said:

"A police constable has always been an arm of the law and never a servant employed to do a master's bidding on all occasions and in any circumstances. His authority is original, and not derived from a master or exercised on behalf one, but is exercised on behalf of the public, ...".

McTiernan J at 254 - 255 referred to the relevant positions of the Police Regulation Act 1899 - 1947 (NSW) and at 255 said:

"The legal relations between the Crown and the policeman, with whom this case is concerned, and the nature of his services for the loss of which the Crown claims damages, are established by these references to the Police Regulation Act 1944 . The relations arose out of the Act and ex lege : the Crown and the policeman were not master and servant in the legal sense : the members of the police force of New South Wales are engaged in public service : they are organized by the Executive Government of New South Wales as a civil force responsible for maintaining public order : the policeman was bound by an engagement having statutory force to serve the Crown in the public office of a constable and as a member of this force : and the relations of its members, as such, with the Crown are in no wise private or domestic."

At 255 - 256 McTiernan J said:

"It was argued that by virtue of the Acts of New South Wales, a member of the police force of the State is a servant, in the legal sense, of the Crown. The references made to the Police Regulation Act show that this contention cannot stand upon that Act. Reliance, in order to sustain the contention that the policeman was in the situation of a servant in the legal sense, was placed upon other Acts of New South Wales under which rights and privileges are given to members of the force. It was argued that the relations of a member of the police force of New South Wales are thereby assimilated to those of an ordinary worker in industry. The Acts upon which most reliance was placed were the Crown Employees Appeal Board Act and the Industrial Arbitration Act 1940 -1951. These Acts granted to members of the police force of the State certain rights that are enjoyed by other branches of the public service of the State and by industrial workers. In either Act, or in any Act, to which reference was made in argument, there is nothing which alters the essential character of the relations between the Crown and any policeman, as determined by the Police Regulation Act 1899 -1947, or the nature of his service. The Crown's right to the service of the policeman did not depend upon a contract of hiring and service : it depended upon laws analogous to those upon which the Crown's right to the services of the airman in Quince's Case [(1944) [1944] HCA 1; 68 CLR 227] depended : police service in the police force of New South Wales and military service in the Royal Australian Air Force are both public service. The result is that Quince's Case governs the present case."

Dixon J at 243 acknowledged that unless Quince was reconsidered the cause of action sought to be maintained could not be established. His Honour said, referring to Quince, that:

"... the reasoning upon which the judgments of the majority of the Court [in Quince] depend, in spite of some variation, appears to me to apply to the case of a member of the police force. It is true that Starke J [(1944) 68 CLR at pp 245, 246] places some stress on the national duty of military service and also that his Honour confines his decision to members of the defence forces. But the distinctions between the military service of the Crown and service in a police force do not seem sufficiently relevant to the want of that correspondence with the relation of master and servant which his Honour considered to be lacking to warrant an opposite conclusion in the case of the police force."

Dixon J held at 244 that Quince should be applied but indicated that if the matter had been decided afresh he would have held that:

"... an action does lie at the suit of the Crown for damage suffered by reason of the loss of the services of a Crown servant caused by a wrongful act and that the services of a member of the police force of New South Wales are of a description falling within the principle."

At 252 Dixon J took issue with the view that "the general relation between the Crown and a member of the police force is not that of master and servant". His Honour said:

"... In most respects a member of the police force is subject to the direction and control which is characteristic of the relation of master and servant. It does not matter that there is a chain of command. That is necessary in some degree in all organizations military and civil, public and private. It is only when in the course of his duties as a servant of the Crown he is confronted with a situation involving the liberty or rights of the subject that the law places upon him a personal responsibility of judgment and action."

However, the above cited remarks of Dixon J at 252 were dicta. Despite his Honour's obvious preference for the view that the relationship between the Crown and members of the police force was that of master and servant, Dixon J declined to so hold but held that the "proper course judicially" was to follow and apply Quince.

Williams J dissented from the majority on the issue of whether a master and servant relationship existed between the Crown and members of the police force. He held that Quince was wrongly decided. At 265 his Honour said that members of the police force:

"... are servants of the Crown at least to the same extent that pilots were held to be such servants in Fowles v Eastern and Australian Steamship Co Ltd [(1916) 2 AC 556]."

Later Williams J in reference to members of the defence and police forces said at 265:

Each form of service is regulated to a large degree by statutes ... but also includes by implication many of the incidents which the law implies in an ordinary contract of service."

(iv) Conclusion

In Re Australian Federal Police Association (No 2) (1993) 51 IR 122, Williams DP at 140 referred to Perpetual Trustees. His Honour held that three members of the Court, McTiernan, Webb and Kitto JJ, supported the view that police officers were not employees whilst Dixon, Williams and Fullagar JJ were of the contrary view. My conclusion is that it is not open to me to rely upon the judgments of Dixon, Williams and Fullager JJ, as authority for the proposition that police officers are employees. As I have already discussed, Dixon and Fullagar JJ's support for the existence of a master and servant relationship between the Crown and a member of the police force, was confined to obiter dicta. This was in the context where both Justices held that the proper course was to apply Quince to the circumstance of a police officer. Consequently, on a proper analysis of their judgments, both Dixon and Fullagar JJ must be counted amongst a majority in Perpetual Trustees who held that members of the police force were not servants of the Crown. Against the majority on this issue was the sole dissenting judgment of Williams J. With the greatest respect to Williams DP, as his Honour then was, I am unable to find that the High Court was evenly divided on the master servant issue by grouping the dicta expressed by Dixon and Fullagar JJ with the dissent of Williams J.

Therefore it follows that in Perpetual Trustees a majority of the High Court held that members of the police force are not employees. That view was affirmed on appeal by the Privy Council as referred to above.

There being no material legal distinction between the nature of "service" of a police officer in New South Wales in the 1950's and a police officer in Victoria in the late 1990s I consider that I am bound to hold that Mr Konrad was not an employee of the Crown in right of the State of Victoria when holding office as a probationary constable in the Victoria Police Force. I do so despite what in my view is the compelling logic to the contrary contained in the judgment of Dixon J at 252 in Perpetual Trustees and cited above. However, on the view I take of what was there decided, that is a matter which can only be redressed in the High Court. Borrowing from the language of Fullagar J in Perpetual Trustees, I should adhere to Perpetual Trustees unless and until the High Court or a Full Court of this Court requires me to adopt a different view.

It should be noted that Perpetual Trustees has been applied in a series of cases to which Mr Hammond directed my attention. For example, in Griffiths v Haines (1984) 3 NSWLR 653, 661 - 662, Lee J of the Supreme Court of New South Wales in applying Perpetual Trustees said as follows:

"The very independence of the constable's office precludes the existence of the traditional common law duties of a master to a servant and, indeed, the very acts required of a constable in the performance of his duty of themselves would in many circumstances make impossible the application of such duties ..."

See also Chapman v Commissioner, Australian Federal Police (1983) 50 ACTR 23, 33 where Kelly J, of the Supreme Court of the Australian Capital Territory, said that:

"The relationship between the Crown and an officer of the Australian Federal Police is not the ordinary contractual relationship between master and servant : see Attorney-General (NSW) v Perpetual Trustee Co (Ltd) (1955) 92 CLR 113."

I acknowledge the persuasiveness of the submission that much of the regulation of the terms and conditions of the engagement of police officers in Victoria is consistent with the establishment of an employment relationship between them and the Crown. But for Perpetual Trustees it is most likely that I would have been persuaded to hold that police officers are engaged in an employment relationship with the State. However, as indicated above, I feel constrained by Perpetual Trustees, as decided by the High Court and affirmed by the Privy Council, to come to a contrary conclusion.

IS THE ACT CONFINED TO EMPLOYEES?

It was submitted on behalf of Mr Konrad that Division 3 of Part IVA of the Act ("the Division") treats "employment" as a wider concept than the traditional employee/employer relationship.

Section 170CA(1) of the Act provides that the object of the Division is to give effect to the Termination of Employment Convention 1982 ("the Convention") and the Termination of Employment Recommendation 1983 ("the Recommendation").

Section 170CB of the Act gives identical meaning to expressions in the Division to expressions in the Convention. In Article 2 the Convention is expressed to apply to "all branches of economic activity and to all employed persons.". Article 4 refers to "[t]he employment of a worker" in prohibiting termination of employment "unless there is a valid reason". Other provisions of the Convention are redolent with references to "the employer" and "a worker". Similar references are contained in the Recommendation.

Paragraph 4 of the Recommendation defines "termination" and "termination of employment" to mean "termination at the initiative of the employer".

In my view the availability of a remedy under the Division depends on the existence of an employment relationship. See Capay Holdings Pty Ltd v Slattery (Full Court, 11 December 1996, IRCA, unreported).

An employment relationship will not exist where the putative employer of the worker is not, in law, the employer of the worker and the worker is not, in law, the employee of such person. Accepting that the Division, Convention and Recommendation must all be generously construed, in my view it would strain the language of each such instrument to hold that an employment relationship exists where in law the person who serves is not the employee of the person served.

I therefore hold that the Division has no application to Mr Konrad and that his application must be dismissed.

OTHER ISSUES

It is unnecessary for the Court to determine whether the State of Victoria is immune from proceedings under the Division by virtue of implications arising from the Constitution. In the event that I had held that Mr Konrad was an employee of the State of Victoria it would have been necessary for me to consider whether there was an implied limitation upon the legislative powers of the Commonwealth in the application of the Division to the State of Victoria.

In my view there is nothing in the implied limitation upon the legislative power of the Commonwealth which was identified in Re Australian Education Union; Ex parte Victoria [1995] HCA 71; (1995) 184 CLR 188 which would inhibit the application of the Division to State police officers. In Re AEU, a majority of the High Court held at 232 that an impairment of a State's right to "determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds" infringed the implied limitation. The majority determined that a federal award prescribing minimum wages and working conditions for State employees did not infringe the implied limitation. The High Court further considered the specific circumstance of State police officers in respect of federal arbitral powers and the implied limitaion. The majority did not distinguish State police officers from other State public servants holding at 241 as follows:

"... having regard to conclusions earlier stated in these reasons, there is no basis for holding that the Commission is precluded from exercising some powers in relation to the fixing by award of minimum wages for State police officers.

In Victoria v Commonwealth (1996) 187 CLR 416, the High Court considered, inter alia, a challenge to the Division as it affected the States on the basis that it offended the implied limitation identified in Re AEU. The majority held that, save in circumstances of redundancy and subject to a further exception that I will deal with later in this judgment, the provisions of the Division did not offend the implied limitation and consequently, where otherwise constitutionally valid, applied to the States in respect of their employees.

There is nothing in Victoria v Commonwealth which gives me cause to treat State police officers differently, from other State public servants, in terms of the constitutional validity of the Division. Indeed, having regard to Re AEU, where the High Court did not distinguish between State police officers and other State public servants in respect of the arbitral powers of the Commission, my view is that the Division has the same application to State police officers (if employees) as to other State public servants.

However, as I alluded to above, there was an additional aspect dealt with in Victoria v Commonwealth, in respect of the implied limitation doctrine and the application of the Division to the States. The majority in Victoria v Commonwealth held that the Division offended the implied limitation in so far as it applied to those employed at the higher levels of a State government. In my view, this determination has no relevance to the circumstances of Mr Konrad, who held the position of a probationary constable. A probationary constable can in no way be categorised as a person engaged at the higher levels of the Victorian government.

Consequently, in my view, this Court would have had jurisdiction to entertain an application in respect of the alleged unlawful termination of a probationary constable based on grounds other than redundancy if such constable was, in law, an employee.

It is also unnecessary to deal with the contention that the application is a nullity. Had I found it necessary to do so I would have held that the application was not a nullity. In my view s 170EA(5) of the Act has a deeming effect. In circumstances where there is an employer who is the true employer of the applicant s 170EA(5) of the Act deems such person to be a party to the proceeding.

Consequently, I would have allowed an application for the name of the respondent and the title of the proceedings to be amended, had the Court possessed the requisite jurisdiction to deal with the application.

Putting to one side the effect of s 170EA(5) of the Act it is my view that the application by Mr Konrad which named "Victoria Police" as a respondent is not a nullity. It is accepted by counsel that the proper respondent is "the State of Victoria". The State of Victoria was the entity with which Mr Konrad had a relationship. He was a public office holder in the service of the Crown in the right of the State of Victoria as a member of the police force of Victoria. If Mr Konrad had a claim in the associated or accrued jurisdiction of the Court unconnected to his claim that he was an employee such claim would be directed against the State of Victoria.

In Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470, French J rejected a submission that the application before him was a nullity because it was instituted in the name of the union in its Western Australian Division. He held that the applicant had been mis-named. It was significant to him, at 473, that the respondent had:

"... known at all material times the identity of the applicant and has not been misled or prejudiced by its incorrect description."

French J distinguished the case before him from other cases where it was effectively too late to remedy a situation where further action was sought to be taken based on action which had already been taken against a non-juristic person.

The cases distinguished by French J were relied upon in this matter by Mr Hammond. In Royal Australian Nursing Federation (Tasmanian Branch) v Fawdry (1986) 12 FCR 113 the Full Court dealt with an appeal from a judgment in which a branch of a registered organisation was purported to be convicted. It was too late to remedy the consequences of the conviction of a non-juristic person on the appeal. Even if the question of mis-nomer had arisen at first instance, given that the matter involved a criminal proceeding, amendment would not have been available. As the Full Court said at 114:

"It is trite law that an information for an offence can be charged only against a person, either a natural person or a juristic person."

Similarly, Green v Philippines Consulate General [1971] VR 12, involved an information for an offence. An information directed against a non-juristic person was held to be void.

In Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 the issue of the non-juristic nature of a branch of a registered organisation arose on appeal when it was too late to cure the consequences of an order being made against a non-juristic person.

Analogous to the circumstances of Williams v Hursey was the recent matter of Inner and Eastern Health Care Network v HSUA (Marshall J, 11 November 1997, unreported). That case involved an application to the Court to enforce an order of the Commission made under s 127 (1) of the Act. The order made by the Commission was directed to a non-juristic person having named a branch of a registered organisation as respondent. In enforcement proceedings before the Court the applicant sought to enforce the Commission's order against the registered organisation. The Court refused to treat the matter as a question of mere misdescription because its function was to consider the exercise of its discretion to enforce the order of the Commission rather than to recast the order made by the Commission.

The circumstances of this matter are far closer and analogous to the circumstances before French J in Shire of Albany. The matter is not a criminal proceeding. Further, no issue arises regarding the enforcement or reliance upon earlier proceedings in which orders were purportedly made against non-juristic persons as occurred in HSUA.

In my opinion Mr Konrad intended to make a claim against the entity with which he had a legal relationship in consequence of earning his livelihood. That entity is colloquially known as "Victoria Police". But his relationship was as a matter of law with the State of Victoria. In my view what is disclosed is a matter of mere misnomer which in the circumstances was understandable. Had it been necessary to do so I would have found that Mr Konrad's application was not a nullity due to "Victoria Police" being named as a respondent.

Further, had it been necessary to deal with the application by Mr Konrad to amend his application to substitute "the State of Victoria" as the respondent, I would have allowed such amendment. It is appropriate to do so in circumstances where the Court has found that the respondent has been misdescribed and the proceeding is not a nullity. See Shire of Albany at 473 and Order 13 rule 2 of the rules of Court.

I also reject Mr Hammond's separate contention that there was no valid certificate which the Commission could make referring the matter to IRCA because "Victoria Police" was a non-juristic person and the certificate was unable to enliven IRCA's jurisdiction. As indicated above, once the matter was at the conciliation stage, s 170EA(5) of the Act deemed the parties to be the true employer and the employee. Notwithstanding that the certificate of the Commission in terms referred to Victoria Police the effect of s 170EA(5) of the Act is to deem that reference to be in truth, a reference to the State of Victoria.

ORDER

The order of the Court is that the application be dismissed.

I certify that this and the preceding twenty-three (23) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated: 22 January 1998

Counsel for the Applicant:	Mr Bruce G Shaw
Solicitor for the Applicant:	J N Zigouras & Co
Counsel for the Respondent:	Mr Jack D Hammond (under protest)
Solicitor for the Respondent:	Freehill Hollingdale and Page
Date of Hearings:	6, 7, 8, 9 October and 27 & 28 November 1997
Date of Judgment:	22 January 1988