Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Sneddon v State of New South Wales [2012] NSWCA 351
• Hearing dates: 18 July 2012
• Decision date: 01 November 2012
• Before: Basten JA at [2]; Macfarlan JA at [118]; Meagher JA at [179]

Decision

(1) Dismiss the motion of the first respondent (the State of New South Wales) to review the decision of Barrett JA.

(2) Order that the first respondent pay the appellant's costs of the motion to review the decision of Barrett JA.

(3) Dismiss the appellant's application for leave to appeal.

(4) Order that the first respondent pay the appellant's costs of the application for leave to appeal.

(5) With respect to the proceedings against the first respondent:

(a) Allow the appeal in part and set aside order 3 entered on 2 June 2011.

(b) In place of the order referred to in (a), give judgment for the plaintiff against the second defendant (the State of New South Wales) in the sum of $438,613.75, to take effect from 2 June 2011.

(c) Set aside order 2 entered on 3 August 2011.

(d) In place of the order referred to in (c), order that the second defendant pay the plaintiff's costs of the trial.

(e) Order that the first respondent pay 50 per cent of the appellant's costs of the appeal.

(6) With respect to the proceedings against the second respondent (Milton Orkopoulos), dismiss the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - leave to appeal - judgment against one joint tortfeasor for over $100,000 - appeal against dismissal of claim against other joint tortfeasor - first tortfeasor satisfied judgment - whether leave to appeal required - whether matter at issue of the value of $100,000 - whether value of matter determined at time that notice of appeal is filed - Supreme Court Act 1970 (NSW), s 101; CONSTITUTIONAL LAW - Constitution of New South Wales - functions and duties of Member of Legislative Assembly - whether Member of Legislative Assembly is "a person in the service of the Crown" - Constitution Act 1902 (NSW); Law Reform (Vicarious Liability) Act 1983 (NSW), s 8; DAMAGES - assessment of damages - severity of loss as proportion of most extreme case - uncertainty as to the prospects of full recovery - whether necessary to assess likelihood of hypothetical future event occurring - whether error of principle - whether assessment wholly unreasonable - Civil Liability Act 2002 (NSW), s 16; JUDGMENTS AND ORDERS - res judicata and issue estoppel - default judgment - claim brought against third defendant for alternative and inconsistent causes of action - first and second defendants vicariously liable for conduct of third defendant - default judgment entered against third defendant did not distinguish between causes of action - whether res judicata or issue estoppel created in relation to either or both causes of action - relevance of pleadings - whether default judgment can be entered in relation to only one of alternative causes of action - whether default judgment necessarily and precisely determined the cause of action for which the third defendant was liable; TORT - vicarious liability - vicarious liability of the State for conduct of persons in service of the Crown - tortious conduct of Member of Parliament in relation to electorate officer - whether Member of Parliament in the service of the Crown - whether conduct in Member's capacity as a Member of Parliament - Law Reform (Vicarious Liability) Act 1983 (NSW), s 8; TORT - vicarious liability - vicarious liability of the State for conduct of persons in service of the Crown - tortious conduct of Member of Parliament in relation to electorate officer - whether Speaker of Legislative Assembly part of executive government - whether Member agent or delegate of Speaker - Law Reform (Vicarious Liability) Act 1983 (NSW), s 8; WORDS & PHRASES - "involves a matter at issue amounting to or of the value of" - Supreme Court Act 1970 (NSW), s 101; WORDS & PHRASES - "the Crown" - "person in the service of the Crown" - Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
• Legislation Cited: Civil Liability Act 2002 ss 3B, 3C, 16, 21; Claims Against the Colonial Government Act 1876 (39 Vict No 38); Claims Against the Government and Crown Suits Act 1912 (NSW); Commonwealth of Australia Constitution Act (The Constitution) (Cth) s 75(v); Constitution Act 1902 (NSW) ss 26-29, 31, 39, 47, Pt 2; Crown Proceedings Act 1947 (UK); Crown Proceedings Act 1988 (NSW) ss 3, 4, 5; Director of Public Prosecutions Act 1986 (NSW) s 7; District Court Act 1973 (NSW) s 127; Government and Crown Suits Act 1912 (NSW); Government and Related Employees Appeal Tribunal Act 1980 (NSW) s 4; Interpretation Act 1987 (NSW) s 13A; Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5; Law Reform (Vicarious Liability) Act 1983 (NSW) ss 5, 7, 8, 10; Police Act 1863 (Qld) s 6; Privacy Committee Act 1975 (NSW); Public Sector Employment and Management Act 2002 (NSW); Slave Trade Act 1824 (UK) s 43; Supreme Court Act 1970 (NSW) s 101; Uniform Civil Procedure Rules 2005; Workers Compensation Act 1987 (NSW), Pt 5, Div 3; Workers Compensation Regulation 2010 (NSW), Sch 7
• Cases Cited: Armstrong v Budd (1969) 89 WN (NSW) (Part 2) 241; Attorney-General for NSW v Perpetual Trustee Co (Ltd) [1952] HCA 2; 85 CLR 237; Attorney-General for NSW v Perpetual Trustee Co (Ltd) [1955] AC 457; 92 CLR 113; Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; 177 CLR 106; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2007] HCA 38; 232 CLR 1; Bank of NSW v The commonwealth [1948] HCA 7; 76 CLR 1; Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334; Blair v Curran [1939] HCA 23; 62 CLR 464; Bradto Pty Ltd v State of Victoria [2006] VSCA 89; 15 VR 65; Bropho v Western Australia [1990] HCA 24; 171 CLR 1; Clifton v Lewis [2012] NSWCA 229; Commonwealth v Western Australia [1999] HCA 5; 196 CLR 392; Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767; Coomber v Justices of Berks (1883) 9 App Cas 61; Damberg v Damberg [2001] NSWCA 87; 52 NSWLR 492; Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; 174 CLR 219; Downs v Williams [1971] HCA 45; 126 CLR 61; Egan v Willis (1996) 40 NSWLR 650; Egan v Willis [1998] HCA 71; 195 CLR 424; Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563; Egerton v Brownlow (1853) 4 HLC 1; 10 ER 359; Enever v The King [1906] HCA 3; 3 CLR 969; Equuscorp Pty Ltd v Haxton [2012] HCA 7; 86 ALJR 296; Farnell v Bowman (1887) 12 App Cas 643; Field v Nott [1939] HCA 41; 62 CLR 660; Foley v Ryder [1906] HCA 61; 4 CLR 422; Gillard v Hunter Wine Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450; Hansen v Slattery Transport (NSW) Pty Ltd [2011] NSWCA 450; Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; Holly v Director of Public Works (1998) 14 NSWLR 140; Horne v Barber [1920] HCA 33; 27 CLR 494; Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; 119 CLR 334; In re M [1994] 1 AC 377; James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53; Jensen v Ray [2011] NSWCA 247; Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993; Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638; Mason v Demasi [2012] NSWCA 210; McConnell v Lombard and Ulster Banking Ltd [1982] NI 203; McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; 165 ALR 409; McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55; 221 CLR 646; Mounsey v Findlay (1993) 32 NSWLR 1; Municipal Council of Sydney v Commonwealth [1904] HCA 50; 1 CLR 208; Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 472; New Brunswick Railway Co v British & French Trust Corporation Ltd [1939] AC 1; Oertel v Crocker [1947] HCA 40; 75 CLR 261; Pegela Pty Ltd v Oates [2010] NSWCA 186; The King v Boston [1923] HCA 59; 33 CLR 386; The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Fotball League (Inc) [1979] HCA 6; 143 CLR 190; R v Stoddart [1987] CanLll 168; 37 CCC (3d) 351 (Ontario Court of Appeal); R (Quark Fishing Ltd) v Secretary of State for Foreign and commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529; Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391; Re Webster [1975] HCA 22; 132 CLR 270; Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] 1 AC 453; Rudolf Wolff & Co v Canada [1990] I SCR 695; 69 DLR (4th) 392; Ryder v Foley [1906] HCA 61; 4 CLR 422; Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508; Sneddon v State of New South Wales [2012] NSWCA 7; Sue v Hill [1999] HCA 30; 199 CLR 462; Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 226 CLR 161; Sydney City Council v Reid (1994) 34 NSWLR 506; Sydney Harbour Trust Commissioner v Ryan [1911] HCA 64; 13 CLR 358; Sykes v Cleary [1992] HCA 60; 176 CLR 77; Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293; Termijtelen v Van Arkel [1974] 1 NSWLR 525; The Commonwealth v Mewett [1997] HCA 29; 191 CLR 471; The King v Boston [1923] HCA 59; 33 CLR 386; Tobin v The Queen (1864) 16 CB (NS) 310; 143 ER 1148; Town Investments Ltd v Department of the Environment [1978] AC 359; Troughton v McIntosh (1896) 17 LR(NSW) 334; United Australia Ltd v Barclays Bank Ltd [1941] AC 1; Wilkinson v Osborne [1915] HCA 92; 21 CLR 89; Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149; Zavodnyik v Alex Constructions Pty Ltd [2005] NSWCA 438; 67 NSWLR 457
• Texts Cited: 4 Coke's Institutes of the Lawes of England, 49; Elliott M, Beatson, Matthews, and Elliott's Administrative Law (4th ed, 2011, OUP) at [16.1.3]; Evatt, HV, The Royal Prerogative, (1987) LBC; Finn, Paul "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; Professor Finnis "Common Law Constraints: Whose Common Good Counts?" (2008, University of Oxford Faculty of Law Legal Studies Research Paper Series); http://papers.ssm.com/Abstract=1100628, at pars 15-18; Law Reform Commission (NSW) 1975 Report on Proceedings By and Against the Crown (LRC 24), 13.2, 13.4, 13.7, 13.34, 13.35; May, Erskine, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 16th ed (1957); Moore, Harrison, "The Crown as Corporation" (1904) 20 Law Quarterly Review 351; New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 17 March 1983, 4765; Peter W Hogg, Patrick J Monahan and Wade K Wright, Liability of the Crown, 4th ed (2011) Carswell; Sappideen, C and Vines, P (eds) Fleming's Law of Torts, 10th ed (2011) LBC; Spencer, Bower & Handley, Res Judicata, 4th ed (2009) LexisNexis; The New Shorter Oxford English Dictionary (1993); Twomey A, The Chameleon Crown (Federation Press, 2006) p 263-267; Twomey A, The Constitution of New South Wales (Federation Press, 2004) at 26-30 and 387; Twomey A, "A Responsible Government and the Divisibility of the Crown" [2008] PL 742 at 757; Wade and Forsyth, Administrative Law (10th ed, 2009 OUP) pp 40 (fn 6), 694, 695; Winterton G, Parliament, The Executive and the Governor-General (Melb UP 1983), Ch 4
• Category: Principal judgment
• Parties: Gillian Margaret Sneddon (Appellant); State of New South Wales (First Respondent); Milton Orkopoulos (Second Respondent)
• Representation: Counsel: R J de Meyrick (Appellant); G C Lindsay SC/G J Sarginson (First Respondent); Solicitors: T D Kelly & Co (Appellant); Crown Solicitor (First Respondent)
• File Number(s): CA 2009/297790

Decision under appeal

• Citation: [2011] NSWSC 508; [2011] NSWSC 842
• Before: Price J
• File Number(s): SC 2009/297790

HEADNOTE

[This headnote is not to be read as part of the judgment]

In October 1999, the appellant was appointed to act as an electorate officer in the electorate office of the State Member for Swansea, Mr Milton Orkopolous (the second respondent).

In these proceedings the appellant alleged that, whilst working in the second respondent's office, she was bullied, victimised and harassed by him, causing her to suffer psychiatric harm which rendered her totally incapacitated for work. The primary judge found that the second respondent was liable for damages of $438,613.75 for breach of a duty of care owed to the appellant and that the appellant's employer, The Speaker of the Legislative Assembly, was liable for modified common law damages under the Workers Compensation Act 1987 for breach of his duties as an employer. The primary judge held that the State of NSW (the first respondent) was not liable for the conduct of the second respondent.

The appellant appealed to the Court of Appeal, contending that the State should be held liable for the second respondent's conduct under the Crown Proceedings Act 1988 or the Law Reform (Vicarious Liability) Act 1983 and that the damages payable by the second respondent should have been assessed on the basis that his conduct was intentional rather than negligent, thereby avoiding the limitations on damages imposed by the Civil Liability Act 2002. The appellant also claimed increased damages for non-economic loss and challenged a costs order.

The Court held:

(per Basten and Meagher JJA; Macfarlan JA agreeing save as to the costs order)

(i) The first respondent's motion to review a decision that the appeal was not incompetent should be dismissed with the first respondent to pay the appellant's costs of the notice of motion.

(per Basten, Macfarlan and Meagher JJA)

(ii) The primary judge correctly assessed damages against the second respondent in accordance with the limitations imposed by the Civil Liability Act 2002.

(per Basten and Macfarlan JJA, Meagher JA dissenting)

(iii) The State of NSW is liable for the tortious conduct of the second respondent as it occcured whilst the second respondent was acting "in the service of the Crown" pursuant to s 8(1) of the Law Reform (Vicarious Liability) Act 1983.

(per Basten JA; Macfarlan and Meagher JJA contra)

A Member of Parliament is involved in giving advice or consent on legislation, an essential part of the function of government, and is thereby performing a function incidental to an "activity of the Crown" within the meaning of s 8(1)(b) of the Law Reform (Vicarious Liability) Act 1983. As the tortious conduct of the second respondent was undertaken in his capacity as a Member of Parliament, the first respondent is liable for his misconduct.

(per Macfarlan JA; Basten JA not deciding; Meagher JA contra)

In supervising and controlling the appellant's employment in his electoral office, the second respondent acted as the delegate of the appellant's employer, The Speaker. As The Speaker was acting as part of the Executive Government of the State in employing the appellant, the second respondent, as his delegate, also so acted. The "Crown" at least includes the executive branch of government. Therefore the second respondent was acting in the "service of the Crown" pursuant to s 8(1) of the Law Reform (Vicarious Liability) Act 1983 when acting as The Speaker's delegate.

(per Meagher JA; Macfarlan JA agreeing; Basten JA contra)

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" for the purposes of s 8(1) of the Law Reform (Vicarious Liability) Act 1983. The Member cannot be controlled, directed or interfered with by the State in the discharge of those functions.

(per Meagher JA; Basten JA not deciding; Macfarlan JA contra)

In supervising or controlling the appellant, the second respondent was not acting as the agent of The Speaker and thus was not acting "in the service of the Crown".

(per Macfarlan and Meagher JJA, Basten JA dissenting)

(iv) The primary judge's assessment of the severity of the appellant's non-economic loss at 16 per cent of a most extreme case should not be disturbed as the appellant failed to show any error of principle or demonstrate that the primary judge's assessment was wholly unreasonable.

(per Macfarlan JA, Basten and Meagher JJA agreeing)

(v) The primary judge's order limiting the second respondent's liability for costs at first instance to those relating to a half-day hearing should not be disturbed.

Judgment

1 THE COURT: The separate reasons for judgment give rise to proposed orders which vary as between members of the Court. In these circumstances it is convenient to state the orders which we agree should be made to give effect to the differing reasons for judgment. The orders of the Court are:

(1) Dismiss the motion of the first respondent (the State of New South Wales) to review the decision of Barrett JA.

(2) Order that the first respondent pay the appellant's costs of the motion to review the decision of Barrett JA.

(3) Dismiss the appellant's application for leave to appeal.

(4) Order that the first respondent pay the appellant's costs of the application for leave to appeal.

(5) With respect to the proceedings against the first respondent:

(a) Allow the appeal in part and set aside order 3 entered on 2 June 2011.

(b) In place of the order referred to in (a), give judgment for the plaintiff against the second defendant (the State of New South Wales) in the sum of $438,613.75, to take effect from 2 June 2011.

(c) Set aside order 2 entered on 3 August 2011.

(d) In place of the order referred to in (c), order that the second defendant pay the plaintiff's costs of the trial.

(e) Order that the first respondent pay 50 per cent of the appellant's costs of the appeal.

(6) With respect to the proceedings against the second respondent (Milton Orkopoulos), dismiss the appeal.

2 BASTEN JA: The appellant, Ms Gillian Sneddon, brought proceedings in the Supreme Court for psychiatric injury resulting from abusive treatment between October 2005 and September 2006 by the then Member of the New South Wales Legislative Assembly for the seat of Swansea, Mr Milton Orkopoulos. During the relevant period, the appellant was employed as an electorate officer, Grade 2, in the Member's Swansea electorate office. The first defendant to her claim was the Speaker of the Legislative Assembly who had power to appoint "minor servants of the Legislative Assembly", pursuant to s 47 of the Constitution Act 1902 (NSW). The Speaker was agreed to be the appellant's employer. The appellant was successful in her claim against the Speaker and was awarded damages of a little under $430,000, which amount has been paid in full: Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508 (Price J).

3 The third defendant was the Member of Parliament himself, against whom claims were brought in negligence, for breach of statutory duty and for the intentional tort of assault. He did not defend the claim and a default judgment was entered against him on 17 January 2011, for damages to be assessed. At trial those damages were assessed in an amount a little under $439,000. No amount has been paid by Mr Orkopoulos.

4 The second defendant in the Court below was the State of New South Wales, which was sued, relevantly for present purposes, as bearing vicarious liability for the tortious conduct of the third defendant, Mr Orkopoulos pursuant to the Crown Proceedings Act 1988 (NSW) and the Law Reform (Vicarious Liability) Act 1983 (NSW) ("the Vicarious Liability Act"). In this claim the appellant was unsuccessful, judgment being given for the State, to which the appellant was ordered to pay the State's costs of the trial.

5 The present appeal involves no challenge to the judgment against the Speaker, who is not a party to the proceedings in this Court. The focus of the appeal is twofold. First, it challenges the judgment in favour of the State (the first respondent) and, secondly, it seeks a variation in the damages awarded against Mr Orkopoulos (the second respondent), for which the State is said to be liable.

6 Before turning to the questions raised on the appeal, it is necessary to address a procedural skirmish which remained a live issue at the hearing of the appeal. That involved a claim by the State that the appeal was incompetent because it involved an amount of less than $100,000 and thus could only be brought by leave: Supreme Court Act 1970 (NSW), s 101(2)(r). Although the appellant has filed, defensively, a summons seeking leave to appeal, against the event that leave is required, costs have been incurred by both parties as a result of the procedural steps taken and it is appropriate that the issue in dispute be resolved.

(1) Leave to appeal

7 The judgment in the Common Law Division was delivered on 2 June 2011 and orders were then entered. The appellant's notice of appeal was filed on 1 September 2011, with an affidavit sworn by the solicitor for the appellant asserting that the amount in issue in respect of the liability of the State was the award of damages as against Mr Orkopoulos, which had been assessed at almost $439,000. The restriction in s 101(2)(r) was thus inapplicable and no leave was required. The affidavit was in conformity with the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 51.22.

8 A respondent who objects to the competency of an appeal may, within 28 days of service of the notice of appeal, apply for an order dismissing the appeal as incompetent: UCPR, r 51.41(1). The purpose of the strict time limit is to ensure that costs are not unnecessarily incurred in pursuing what turns out to be an incompetent appeal. Failure to object to competency in a timely fashion, where the appeal is later dismissed as incompetent, can have significant adverse consequences in respect of costs for the respondent: r 51.41(2). On 21 December 2011, the State filed a notice of motion objecting to the competency of the appeal, which motion required (and sought) an extension of time within which to raise the objection.

9 On 3 February 2012, the appellant's solicitor filed a further affidavit noting that in addition to the amount of the judgment against Mr Orkopoulos, which was sought to be ordered against the State, there was a challenge to the assessment of damages. Non-economic loss had been assessed in accordance with s 16 of the Civil Liability Act 2002 (NSW), the trial judge determining that the injury caused was 16% of a most extreme case, which resulted in an award of $7,500. The solicitor submitted that an appropriate assessment would have been 30% of a most extreme case, giving an award on the statutory scale of $115,000. He noted that the appellant also claimed that damages should have been assessed under the common law and not under the Act, on the basis that the Act did not apply to intentional torts and that a further allowance should have been made for exemplary damages. On those further bases he submitted that the amount in issue exceeded $100,000.

10 The motion was heard by Barrett JA on 6 February 2012, judgment being delivered three days later: Sneddon v State of New South Wales [2012] NSWCA 7. Barrett JA dismissed the motion with costs. On 23 February 2012 the State sought, pursuant to s 46(4) of the Supreme Court Act, to review the decision of Barrett JA. (That application was made within time: UCPR, r 51.58.)

11 Before Barrett JA, the State had argued, on the assumption that the Speaker had satisfied the judgment against him, that the amount which would be recovered if the appellant succeeded on the appeal was the difference between that award (assessed in accordance with the Workers Compensation Act 1987 (NSW)) and the slightly higher award against Mr Orkopoulos (assessed pursuant to the Civil Liability Act). The difference being a little under $9,500, the requirement for leave was engaged.

12 Although Barrett JA noted that the State had assumed that the judgment against the Speaker had been satisfied, he held that the competency of the appeal turned on the imposition of legal liability on the State for an amount well in excess of $100,000. At least by way of precaution, on 29 February 2012 the State served on the appellant a notice to admit facts, the relevant fact being that the Speaker had, "prior to 24 February 2012", paid or otherwise satisfied the judgment and the order for costs. On 13 March 2012 the appellant admitted that the judgment had been paid and that the Speaker had paid costs in the amount provided under the Workers Compensation Regulation 2010 (NSW), Sch 7.

13 The first limb of s 101(2)(r) of the Supreme Court Act precludes an appeal from a final judgment, except by leave of the Court, "other than an appeal ... that involves a matter at issue amounting to or of the value of $100,000 or more": s 101(2)(r)(i). (It may be assumed for present purposes that it is the first limb of the provision which applies in respect of a claim for damages, rather than the second limb which is concerned with appeals involving a claim "respecting any property or civil right" amounting to or of the value prescribed, which is concerned with injunctions, declarations and prerogative relief, being orders not having a monetary value: see Oertel v Crocker [1947] HCA 40; 75 CLR 261 at 265-267 (Latham CJ).)

14 The State sought to pursue what can basically be described as a practical or pragmatic approach. It submitted that leave was required unless there was a realistic prospect that the appeal could result in an increase in the appellant's wealth by not less than $100,000. That could not be a realistic prospect, it was submitted, where all that was sought was a judgment against the State for $439,000 when another party had already satisfied most of that judgment by payment of a little under $430,000. Success would thus increase the appellant's wealth by less than $10,000.

15 This argument is untenable, for a number of reasons. First, it avoids use of the statutory test, preferring to adopt a colloquial phrase taken from another judgment and then applied out of context. Nevertheless, the State sought to support that approach by reference to three authorities. The first was Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450 (Priestley JA and Sperling J). The Court identified the critical question, in dealing with an identical provision in s 127 of the District Court Act 1973 (NSW), to be the meaning of "the matter at issue" on an appeal. The proposition rejected was that the phrase referred to the amount "claimed" on appeal, however unrealistic the claim might be: at [11]. Rather, their Honours construed the section as meaning that a party "has an appeal as of right if there is a realistic prospect of changing the result by $100,000 or more": at [12]. That approach has been accepted as correct in subsequent cases.

16 Before leaving Gillard, there is another point arising from the judgment which is of relevance in the present case. The test involves a temporal element and the conclusion reached by the Court was formulated as to whether there was "any reasonable possibility, at the time when the application was filed, that it might be held, on a hearing of the application, that the amount realistically in issue on appeal was less than $100,000": at [14]. On a purposive approach, it must be correct that the test is to be applied at the point of time when the prospective appellant has to determine whether to lodge a notice of appeal or a summons seeking leave to appeal.

17 The second case relied upon was Pegela Pty Ltd v Oates [2010] NSWCA 186. In a passage with which Allsop P and McColl JA agreed, Young JA noted a submission by counsel for the appellants that "if the appeal succeeds it will change the wealth of his client by more than $100,000": at [60]. After referring to Gillard at [11] and [12], Young JA accepted that approach. The language was used in a context in which resolution of the issues in dispute could result in, say, the extinction of the appellant's liability to pay $50,000 and conferral of an entitlement to be paid $50,000. There would thus be a result aptly described as a change of $100,000 in the financial position, favourable to the appellant. As between two parties, that result may obtain, for example, by a combination of relief sought by the appellant on a claim (which was dismissed below) and the setting aside of its opponent's cross-claim (which had been upheld below). That was illustrated by Hansen v Slattery Transport (NSW) Pty Ltd [2011] NSWCA 193 where the appellant sought to set aside a judgment against him of a little under $100,000, but sought to recover an amount of $30,000. The case was a motor vehicle accident in which both vehicles had suffered damage and which turned on the apportionment of liability as between the respective drivers. Leave was held not to be required.

18 The third case relied upon by the State was Jensen v Ray [2011] NSWCA 247. In dealing with a claim under the Property (Relationships) Act 1984 (NSW) Brereton J stated (with the agreement of Campbell JA and Sackville AJA) that leave was not required "if there was a realistic prospect that the appeal would change the wealth of the appealing party by more than $100,000, it being the realistic worth of the claim that must exceed $100,000, rather than the property the subject of the claim": at [12].

19 The principal reason why none of these cases assist the State is that each involved an appeal involving two parties. A closer factual circumstance might have arisen in Hansen v Slattery Transport if there had been injury to the drivers of the vehicles (as well as to the vehicles themselves) in circumstances where each vehicle was owned by a corporation and the damage suffered by the corporation was therefore separate from the loss flowing from injury to the driver. There are cases in which appellants with claims arising out of the same events file a single notice of appeal; in principle, however, that practice is misconceived and, for the purposes of considering a question of leave, the "matter at issue" must be separately assessed for each appellant.

20 The second flaw in the State's reasoning is to identify the point of reference of the phrase "matter at issue" as a financial outcome, rather than a legal liability or entitlement. If the correct assessment of the right to appeal is to inquire what is the realistic financial outcome of success against the State, the answer is an increase of the State's liability from zero to $438,000. That was the approach taken by Barrett JA at [13]-[14]. He concluded that the judgment against Mr Orkopoulos was, in this context, irrelevant, as was the judgment against the Speaker.

21 The correctness of this reasoning is, in one sense, conceded by the State which seeks to rely, not upon the existence of the other judgments, but on the fact that an amount has been paid pursuant to one of them, namely the judgment against the Speaker. However that must be an irrelevant consideration if, consistently with the reasoning in Gillard, the time at which the assessment must be made is the time of filing the notice of appeal (or application for leave to appeal). There is no evidence that the judgment against the Speaker had been met by 1 September 2011, when the notice of appeal was filed. Whether a later payment will affect the judgment to which the appellant is entitled, if otherwise successful on the appeal, is not presently in issue: the later payment does not render a competent notice of appeal incompetent. To conclude otherwise would be to contradict the temporal element in the requirement for leave, derived from a purposive construction of the statute.

22 There was a third reason why the challenge to the judgment of Barrett JA must fail. The notice of appeal challenged the calculation of damages as assessed against Mr Orkopoulos. The proposition that the trial judge erred in his assessment by an amount of at least $100,000 was reasonably arguable, if unlikely to succeed. Barrett JA was satisfied that there were grounds for accepting that assessment, a conclusion which was not challenged in the submissions before this Court.

23 It follows that the State's motion seeking to review the judgment of Barrett JA should be dismissed; the State must pay the costs of the motion.

24 If this reasoning were erroneous, I would accept, for the reasons given by Macfarlan JA, that there should be a grant of leave to appeal.

(2) Issues on appeal

25 The present appeal had two purposes. First, although the appellant has been paid the amount of damages awarded against the Speaker, she sought to recover from the State a small additional amount payable by Mr Orkopoulos, but which has not been paid. If successful on that point, she will also reverse an order that she pay the costs of the State of New South Wales. That part of the appeal should be upheld.

26 Secondly, she challenged the assessment of damages payable by Mr Orkopoulos. That challenge had two limbs. The more advantageous limb asserted that damages should have been assessed under the general law and thus free from the constraints of the Civil Liability Act. The basis for that claim was that she had obtained a default judgment against Mr Orkopoulos for an intentional tort, assessment of damages for which was not governed by the Act. The result would have been a higher award for non-economic loss and, arguably, an award of exemplary damages. That challenge should be rejected. A more limited claim, namely that there had been a separate error in assessing non-economic loss, should be upheld, although the benefit, some $10,000, is marginal.

(3) Liability of State

27 Pursuant to statutory reforms which commenced in South Australia in 1853 and in New South Wales in 1857, the State is now liable for the tortious conduct of employees, officers, and others in its service, in respect of acts or omissions in those respective capacities. The appellant was herself a "servant of the Crown", to use the 19th century terminology still maintained in the Vicarious Liability Act. Her nominal employer was the Speaker of the Legislative Assembly; the Speaker was an officer of the State, for whose liability, the State probably bore ultimate responsibility, although this question was not raised in this appeal. Further, she contended that a member of the Legislative Assembly, carrying out his functions as such, is also an officer of the Crown, for whose conduct, carried out in that capacity, the State was also responsible. Accordingly, the appellant was entitled to judgment against the State of New South Wales in respect of the liability of Mr Orkopoulos and was entitled to her costs against the State.

(a) legislation

28 The relevant legislative provisions governing this litigation included s 5 of the Crown Proceedings Act, which states:

"5 Crown may be sued

(1) Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title 'State of New South Wales' in any competent court.

(2) Civil proceedings against the Crown shall be commenced in the same way, and the proceedings and rights of the parties in the case shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side, and shall bear interest, as in an ordinary case between subject and subject."

29 The language used in this section has a significant history to which it will be necessary to refer briefly. It is convenient first to note the definition of "Crown" in s 3:

"3 Definitions

In this Act:

...

Crown means the Crown in right of New South Wales, and includes:

(a) the Government of New South Wales, and

(b) a Minister of the Crown in right of New South Wales, and

(c) a statutory corporation, or other body, representing the Crown in right of New South Wales."

30 Three points are presently significant. First, the phrase "the Crown in right of New South Wales" may be understood, sufficiently for present purposes, to refer to the Monarch acting on the advice of her New South Wales representatives, rather than their counterparts in the Commonwealth or the United Kingdom (or for that matter Canada): A Twomey, The Chameleon Crown (Federation Press, 2006), pp 263-267. Secondly, the definition is inclusive and does not, in its terms, purport to be exhaustive. Thirdly, there is a degree of ambiguity in identifying one of the included bodies as "the Government of New South Wales", separately from ministers and statutory corporations or other bodies representing the Crown in right of New South Wales. The most obvious explanation for this drafting was to ensure that it covered all those institutions which might be thought to fall within its intended scope: though see the exclusion of statutory corporations in s 5(1).

31 Returning to the terms of s 5(2), there is a long line of authority for the general proposition that the effect of this provision (and its predecessors) was to remove any immunity which the Crown might enjoy from proceedings which might otherwise lie against it, as in claims between subject and subject. Accordingly, if the Crown were an employer, it would be vicariously liable for torts committed by its employees in the course of their employment. In this respect, the language echoed that of the Claims Against the Colonial Government Act 1876 (39 Vict No 38) which provided not only a procedural mechanism for making claims against the government, by seeking appointment of a nominal defendant against whom to proceed, but further provided that the "rights of parties therein shall as nearly as possible be the same ... as in an ordinary case between subject and subject". In Farnell v Bowman (1887) 12 App Cas 643 the Privy Council upheld the judgment of the Supreme Court (Faucett and Windeyer JJ, Martin CJ dissenting) permitting an action to lie against the government in tort. Doubts continued to arise in later years as to the effect, if any, of this legislation with respect to the obligations of the government under statute, but its effect with respect to common law actions in tort was not thereby put in doubt: see Downs v Williams [1971] HCA 45; 126 CLR 61.

32 More importantly for present purposes, the liability of the Crown was treated as always vicarious and not direct (a proposition which will be considered further below), with the result that there was no liability on the part of the government in respect of the acts of independent contractors or officers exercising independent functions conferred by law and not subject to direction by the government. The common example of tortious conduct for which the Crown was not responsible was that of a police constable: see, eg, Enever v The King [1906] HCA 3; 3 CLR 969. Accepting that the constable was personally liable for a wrongful arrest, Griffith CJ noted the acceptance by the appellant that the equivalent legislative provision in Tasmania did not impose any liability upon the government "except in cases where the relationship between the officer and the Government is such that, if a like relationship existed between subject and subject, the maxim respondeat superior would apply": at 975. The Court held that it would not apply in the case of a constable. As explained by Griffith CJ at 977:

"Now, the powers of a constable, quâ peace officer, whether conferred by common or statute law, are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself. ... A constable, therefore, when acting as a peace officer, is not exercising a delegated authority, but an original authority, and the general law of agency has no application."

33 It is not necessary to pursue further this line of authority; its existence explains two aspects of the Vicarious Liability Act. That Act reflected the proposals persuasively argued by the Law Reform Commission (NSW) in 1975 in its Report on Proceedings By and Against the Crown (LRC 24). The Report recommended the adoption of a form of enterprise liability in respect of all torts committed by employees, agents and officers of the Crown in right of the State. The Report discussed (at par 13.2) the decision of the English Court of Common Pleas in Tobin v The Queen (1864) 16 CB (NS) 310; 143 ER 1148. That case involved an action against the Queen by the owners of a ship seized by a naval commander pursuant to a power conferred by the Slave Trade Act 1824 (5 Geo 4 no 113), s 43, empowering commanders of ships of Her Majesty's Navy to seize slave traders. On the assumption that the seizure was unlawful, the Court nevertheless dismissed the claim. Erle CJ stated at 1163:

"The liability of a master for the act of his servant attaches in the case where the will of the master directs both the act to be done and the agent who is to do it. The act of the servant is then held to be the act of the master .... When the duty to be performed is imposed by law, and not by the will of the party employing the agent, the employer is not liable for the wrong done by the agent in such employment."

34 Noting that Tobin's case was relied upon in Enever, the Report concluded at paragraph 13.4:

"A fundamental premise of the reasoning of Erle CJ in Tobin's Case is that the Crown does not act by legislation; and that it acts only through the Executive Government. As Erle CJ put it, the duty which the naval commander had to perform was 'a duty imposed upon him by the statute'. It was not a duty 'created by command of the Queen'. But, ... the development of the law relating to the Crown as a litigant is to a large measure an expression of the development of the concept of the State as distinct from the Sovereign. If the expression 'command of the Queen' is understood to mean the 'command of the State' the fallacy of the fundamental premise in the reasoning of the Chief Justice becomes apparent - for the legislation of the State is no less the expression of its will than are the administrative actions of Ministers of the State (be they called by that title or by the title Ministers of the Crown) or of those subject to their directions."

35 The Report concluded that there was no justification for limiting the liability of the State by such insubstantial arguments and, therefore, there was "no justification for the State escaping responsibility for torts of its officers on the ground that the relevant functions of those officers are conferred or imposed not by the authority of the Executive Government but by the authority of Parliament or by the common law": at par 13.7. "Nor", the Report continued, "should the State escape liability because the common law or the relevant statute law requires an officer of the State to act on his personal judgment".

36 The Vicarious Liability Act gave effect to the Commission's recommendations in the following sections:

"7 Vicarious liability of masters

Notwithstanding any law to the contrary, a master is vicariously liable in respect of a tort committed by the master's servant in the performance or purported performance by the servant of an independent function where the performance or purported performance of the function:

(a) is in the course of the servant's service for his or her master or is an incident of the servant's service (whether or not it was a term of his or her contract of service that the servant perform the function), or

(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the servant's master.

8 Further vicarious liability of the Crown

(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:

(a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function), or

(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown.

(2) Subsection (1) does not apply to or in respect of a tort committed by a person in the conduct of any business, enterprise, undertaking or activity which is:

(a) carried on by the person on the person's own account, or

(b) carried on by any partnership, of which the person is a member, on account of the partnership."

37 Further, there were a number of important definitions in s 5:

"5 Definitions

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

court includes a tribunal, and in relation to a claim for damages means any court or tribunal by or before which the claim falls to be determined.

Crown means the Crown in right of New South Wales.

independent function, in relation to a servant or a person in the service of the Crown, means a function conferred or imposed upon the servant or person, whether or not as the holder of an office, by the common law or statute independently of the will of the servant's master or the Crown, as the case may require.

legal proceedings means proceedings in a court.

office includes the office of special constable within the meaning of Part 4 of the Police Offences Act 1901.

originating process means any statement of claim, summons, application or other process by means of which legal proceedings are commenced.

person in the service of the Crown does not include a servant of the Crown.

police tort claim-see section 9B (1).

(2) In this Act, a reference to:

(a) a function includes a reference to a power, authority and duty, and

(b) the performance of a function includes a reference to the exercise of the function and the failure to perform or exercise the function."

38 The definition of "independent function" reflects the intention of the Law Reform Commission Report to remove the underlying basis of the immunity of persons in the service of the Crown, as identified in Enever and Tobin. Section 10 of the Vicarious Liability Act, as originally enacted, confirmed that the Act did not derogate from any statutory protective provision which excluded or limited the liability of any servant or person in the service of the Crown. That provision was replaced in 1989 by an entirely new provision in the following terms:

"10 Effect of statutory exemptions

(1) In this section:

person includes the Crown.

statutory exemption means a provision made by or under an Act which excludes or limits the liability of a person.

(2) For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded.

(3) Except as provided by this section, nothing in this Act affects a statutory exemption conferred on a person."

39 The significant effect of this provision is to transfer to the State liability for the conduct of the officer, even if the officer enjoys statutory immunity from suit, without affecting that immunity.

(b) meaning of "Crown"

40 The relationship of governments in Australia with "the Crown" has been explored in a number of constitutional and public law contexts. In Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [224] in exploring the concept of "allegiance" between an individual and a sovereign power, Gummow and Hayne JJ noted that in 1886, before Australian federation, Lord Coleridge CJ had explained that allegiance was due from subjects to the Crown in the "politic" not the "personal" capacity of the Sovereign. They referred to the discussion in Sue v Hill [1999] HCA 30; 199 CLR 462.

41 The importance of identifying the Crown as a "body politic" is in part a reflection of the need to allow for changed constitutional circumstances: Sue v Hill at [56]. The practical importance of this analysis may be seen in the debates as to which minister's advice the representative of the Crown is to act upon. At least since the Australia Acts of 1986, it may be apt to describe the Crown, relevantly for present purposes, as the "Queen" or "Crown" of New South Wales: A Twomey, The Constitution of New South Wales, (Federation Press, 2004), p 387; R (on the application of Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529 at [9] (Lord Bingham of Cornhill); cf A Twomey, "Responsible Government and the Divisibility of the Crown" [2008] PL 742 at 757. (Similar criticisms of the reasoning in Quark Fishing were made by John Finnis in "Common Law Constraints: Whose Common Good Counts?" (2008, Univ of Oxford, Faculty of Law, Leg Studies Res Paper Series) http://papers.ssrn.com/Abstract=1100628, at paragraphs 15-18, an analysis accepted in part at least by the House of Lords in Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453 at [39]-[40] (Lord Hoffmann, Lord Mance agreeing at [142]); [98]-[101] (Lord Rodger of Earlsferry, Lord Carswell agreeing at [126]). Indeed, the proposition that the Crown involved multiple juristic persons was accepted well before the Australia Acts: see Municipal Council of Sydney v Commonwealth [1904] HCA 50; 1 CLR 208 at 231 (Griffith CJ, Barton and O'Connor JJ agreeing). Sue v Hill was concerned with the meaning of "the Queen" in various provisions of the Constitution, which did not use the term "the Crown". Nevertheless at [83]-[94] Gleeson CJ, Gummow and Hayne JJ provide a valuable analysis of the expression in constitutional theory. Commencing at [84] the joint reasons explained:

"The first use of the expression 'the Crown' was to identify the body politic. Writing in 1903, Professor Pitt Cobbett identified this as involving a 'defective conception' which was 'the outcome of an attempt on the part of English law to dispense with the recognition of the State as a juristic person, and to make the Crown do service in its stead'. The Constitution, in identifying the new body politic which it established, did not use the term 'the Crown' in this way. After considering earlier usages of the term in England and in the former American colonies, Maitland rejoiced in the return of the term 'the Commonwealth' to the statute book."

42 Having identified three further usages, including a reference to the government meaning "the executive as distinct from legislative branch of government" (at [87]), their Honours continued at [90]:

"The expression 'the Crown in right of...' the government in question was used to identify these newly created and evolving political units. With the formation of federations in Canada and Australia it became more difficult to continue to press 'the Crown' into service to describe complex political structures. Harrison Moore identified 'the doctrine of unity and indivisibility of the Crown' as something 'not persisted in to the extent of ignoring that the several parts of the Empire are distinct entities'. He pointed to the 'inconvenience and mischief' which would follow from rigid adherence to any such doctrine where there were federal structures...."

43 It may be accepted that the expression "the Crown" can in some circumstances be understood to refer to the executive arm of government, although even this usage may require closer identification of which activities of the executive government are to be identified. That issue was considered in Bropho v Western Australia [1990] HCA 24; 171 CLR 1, dealing with the presumption that a statute does not "bind the Crown" in the absence of an indication to the contrary. As noted by Gummow J in Commonwealth v Western Australia [1999] HCA 5; 196 CLR 392, "'The Crown' may identify not a body politic or the executive government thereof but those rights, privileges or immunities identified with the royal prerogative": at [106].

44 Even in reference to executive functions the expression "the Crown" has different flavours in different contexts, as is apparent from the role of the Crown as prosecutor in criminal cases. Thus, the Director of Public Prosecutions is empowered to institute and conduct prosecutions for indictable offences "on behalf of the Crown": Director of Public Prosecutions Act 1986 (NSW), s 7(1). The Director undertakes that function in "courts" exercising the judicial power of the government. As explained by Tarnopolsky JA in R v Stoddart [1987] CanLII 168; 37 CCC (3d) 351 (Ontario Court of Appeal) at 363, in a passage cited with approval by the Supreme Court of Canada in Rudolf Wolff & Co Ltd v Canada [1990] 1 SCR 695 at 701; 69 DLR (4th) 392:

"... the Crown Attorney does not participate in a criminal trial as an 'individual'. He participates as a representative of the Crown, which in turn represents the state, ie organized society."

45 Even within the Constitution Act the "Crown" is referred to in different capacities. Thus, reference to "revenues of the Crown" in s 39, dealing with the Consolidated Fund, refers to the public revenues of the State of New South Wales, not the personal revenues of the Monarch. By contrast, in dealing with the "demise of the Crown" and its effect on the holders of offices under the Crown, the reference is clearly to the Monarch as an individual: s 49A.

46 Accepting that the Crown acts through agents, who will not themselves enjoy the immunity of the Crown, s 13A of the Interpretation Act 1987 (NSW) provides:

"13A NSW Government agencies and statutory bodies representing the Crown

(1) If an Act provides that a body is:

(a) a NSW Government agency, or

(b) a statutory body representing the Crown,

the body has the status, privileges and immunities of the Crown.

...

(5) In this section, the Crown includes the State and the Government of the State."

47 As noted above, the Law Reform Commission adopted the concept of the State, as opposed to the Crown, as a means of avoiding the confusion caused by reliance on language reflecting feudal concepts of the monarchy. However, that reasoning resulted in only a titular change, in relation to the manner in which civil proceedings may be brought. In the Crown Proceedings Act, the critical terms of s 5 refer to proceedings "against the Crown"; in the Vicarious Liability Act, the critical language refers to vicarious liability of "the Crown" in respect of a tort committed by a person "in the service of the Crown", such a person being distinguished from "a servant of the Crown". It remains necessary to identify what is meant by "the Crown" in this statutory context. The statutory definitions provide little assistance in this regard, except that they do not purport to limit the concept of the Crown, nor is there any reason to give a different meaning to that concept in each statute. Each refers to the Crown as the Crown in right of New South Wales, which is, in effect, a constitutional limitation, but not one of present significance. The examples of what is meant by that phrase in the Crown Proceedings Act are precisely that: they are neither expansive nor restrictive, but illustrative.

48 Difficulties with the language still adopted in these provisions was remarked on more than 30 years ago by the House of Lords in Town Investments Ltd v Department of the Environment [1978] AC 359. The case was concerned with the application of legislative rent restriction on tenancies occupied by the tenant for the purpose of its business. A lease was taken by the Minister of Works to house civil servants working for other government departments. The question was whether the rent restrictions applied. In holding that they did, the House of Lords broadly accepted that the lease having been signed "for and on behalf of Her Majesty" the relevant business was the exercise of the functions of government in the United Kingdom. Various members of the House of Lords commented on the inappropriateness of identifying whether the tenant was the Minister of a particular department or "the Crown" and the meaning of the words "for and on behalf of Her Majesty" in which capacity the Minister purported to act. Lord Diplock stated at 380-381:

"My Lords, the fallacy in this argument is that it is not private law but public law that governs the relationships between Her Majesty acting in her political capacity, the government departments among which the work of Her Majesty's government is distributed, the ministers of the Crown in charge of the various departments and civil servants of all grades who are employed in those departments. These relationships have in the course of centuries been transformed with the continuous evolution of the constitution of this country from that of personal rule by a feudal landowning monarch to the constitutional monarchy of today; but the vocabulary used by lawyers in the field of public law has not kept pace with this evolution and remains more apt to the constitutional realities of the Tudor or even the Norman monarchy than to the constitutional realities of the 20th century. To use as a metaphor the symbol of royalty, 'the Crown', was no doubt a convenient way of denoting and distinguishing the monarch when doing acts of government in his political capacity from the monarch when doing private acts in his personal capacity, at a period when legislative and executive powers were exercised by him in accordance with his own will. But to continue nowadays to speak of 'the Crown' as doing legislative or executive acts of government, which, in reality as distinct from legal fiction, are decided on and done by human beings other than the Queen herself, involves the risk of confusion."

49 There was no equivocation as to the scope of the roles attributed to the Crown: they included both legislative and executive functions. Lord Simon of Glaisdale stated, in respect of the questions 'who was the tenant of the demised premises' and 'were the premises occupied by the tenant', at 397:

"Nor can the first two questions be answered without also bearing in mind that your Lordships are concerned with symbolic language which cannot be understood without regard to constitutional history. The crown as an object is a piece of jewelled headgear under guard at the Tower of London. But it symbolises the powers of government which were formerly wielded by the wearer of the crown; so that by the 13th Century crimes were committed not only against the king's peace but also against 'his crown and dignity': Pollock and Maitland, History of English Law, 2nd ed (1898), v I, p 525. The term 'the Crown' is therefore used in constitutional law to denote the collection of such of those powers as remain extant (the royal prerogative), together with such other powers as have been expressly conferred by statute on 'the Crown'.

So too 'The Queen' indicates the person who by right of succession is entitled to wear the crown. But 'Her Majesty' is evidently a symbolic phrase, betokening the power, the 'mana,' which is embodied in the person entitled to wear the crown .... 'Her Majesty' in constitutional legal usage thus generally personifies the powers of 'the Crown' - powers the nucleus of which legally and historically are those of The Queen, but which by constitutional convention (ie, in political reality) are exercised in the name of the Queen by those who are nominally and legally her servants or agents."

50 Town Investments is seen in some quarters as a demonstration of the very confusion it sought to resolve. Thus, Wade and Forsyth describe the attempt to identify ministerial executive acts with acts done by the Crown and to treat the whole government as a form of corporate entity as "radically misconceived and [to] ignore constitutional principles": Administrative Law (10th ed, OUP, 2009) p 40, fn 6. The fact that agents and officers of the Crown had not traditionally enjoyed the immunity from suit that the Crown itself enjoyed was inconsistent with the notion of a single legal entity: pp 694-695; see also M Elliott, Beatson, Matthews, and Elliott's Administrative Law (4th ed, 2011, OUP) at [16.1.3].

51 Town Investments was also considered by the House of Lords in In re M [1994] 1 AC 377. Lord Woolf (with whom all other members of the House of Lords agreed) referred to the comments of Lord Diplock and Lord Simon in Town Investments as potentially having the effect of treating a duty placed upon a minister as a duty of the government as a whole. He said that it was "not appropriate to apply that approach to actions in tort, including actions for breach of statutory duty, since this would mean that the [Crown Proceedings Act 1947 (UK)] had the surprising effect of treating the wrongful act of a named minister as being that of the Crown so that the minister could no longer be sued personally in tort or for injunctive relief": at 415C. Lord Woolf held that a finding of contempt could be made against a government minister in his or her official capacity, but not against the Crown directly: at 424E-F. He accepted, however, that the Crown could "be appropriately described as a corporation sole or a corporation aggregate" for the purpose of holding property and entering into contracts: at 424F. However, it is not that aspect of the approach in Town Investments which is significant for present purposes, but rather the identification of "the Crown" as a legal concept as embracing the legislative, executive and judicial arms of government. Thus, Lord Diplock noted at 381A:

"We very sensibly speak today of legislation being made by Act of Parliament - though the preamble to every statute still maintains the fiction that the maker was Her Majesty and that the participation of the members of the two Houses of Parliament had been restricted to advice and acquiescence."

52 Lord Morris of Borth-y-Gest noted, to similar effect, that "laws are enacted by Her Majesty in Parliament": 393C.

(c) liability of State for torts of member of Legislature

53 The issue raised in the present case was whether Mr Orkopoulos, as a Member of Parliament, was an officer, agent or servant of the Crown. The question may be phrased in this way because the conduct complained of occurred in the course of the appellant's employment in the Swansea Electorate Office. Although the pleading was somewhat opaque in this respect, it appears to have been accepted in the course of the trial that his tortious actions were undertaken in his capacity as a Member of the Legislative Assembly and not as a Minister. The appellant's position was one of a staff member assisting a Member of Parliament to deal with his or her electoral duties, and not his ministerial responsibilities. The State, however, denied liability for torts committed by members of Parliament towards their electoral staff, despite the fact that the staff are "Crown employees". The underlying assumption appears to have been that the Crown Proceedings Act and the Vicarious Liability Act impose liability on the State only in respect of the torts committed by members of the executive arm of the government, and not its legislative arm.

54 It goes without saying that the Constitution, providing for the government of the State, includes the Legislature (Constitution Act, Pt 2) and provides for membership of the Legislative Assembly. Members of the Legislative Assembly thus participate in the exercise of the legislative power of government, in conventional terms, giving "advice and consent" and "authority" to legislation enacted by the assent of the Monarch, acting through the Governor of the State.

55 The language of enactment was the same in this State until 1987. Thus, the Claims against the Government and Crown Suits Act 1912 (NSW) commenced:

"BE it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:-".

56 The contention of the State was, in effect, that officers of the Crown were persons appointed by the executive and did not include members of the legislature elected by the people.

57 It is an essential element of a democratic constitution that members of the legislature are elected by those qualified and entitled to vote. It would have been possible to limit the liability of the State of New South Wales to the torts committed by officers and agents "appointed by" the Crown (which would no doubt include ministers of the Crown: Constitution Act, s 35E) thus excluding from the concept of the Crown those members of the legislature who were not ministers, but that course was not taken. In that respect, the Law Reform Commission recommendation, adopted in legislation, rejected the test applied in the Crown Proceedings Act 1947 (UK) of persons "directly or indirectly appointed by the Crown" as "too uncertain": par 13.34. The preferred course, adopted in the legislation with a change in nomenclature, was to refer to persons "in the service of the State": par 13.35.

58 Section 8 of the Vicarious Liability Act requires that the tort must be committed either "in the course of" the person's service with the Crown or as "an incident" of the person's service: s 8(1)(a). In the alternative, the tort must be committed by the person in the performance of a function "directed to" or "incidental to" the carrying on of "any ... activity of the Crown": s 8(1)(b).

59 Taking only the last description, the following conclusions follow from the ordinary meaning of the language:

(a) a member of Parliament is involved in giving advice and consent to legislation;

(b) legislation is an essential part of the function of government;

(c) a member of the legislature is therefore a person performing an independent function, directed to or incidental to an activity of government;

(d) whatever the scope of the phrase "activity of the Crown", it is apt to include the exercise of a legislative power, and

(e) those engaged in the performance of that function are involved in the service of the Crown.

60 It would follow from the analysis so far that a tortious act of a member of the legislature in the course of carrying out parliamentary functions, as a result of which a member of his or her staff was injured, would give rise to liability on the part of the State. It would also follow that a judicial officer, exercising the judicial power of government, would be carrying on a governmental function or activity of the Crown and that the State would be liable for his or her tortious conduct towards staff: cf Troughton v McIntosh (1896) 17 NSWR(L) 334 at 338 (Stephen J); see also McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; 165 ALR 409 at [209], where Weinberg J noted that judges hold "office under the Crown". That conclusion is consistent with the understanding that federal judges are officers of the Commonwealth for the purposes of s 75(v) of the Constitution: see The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League (Inc) [1979] HCA 6; 143 CLR 190. The question is not whether or not the judicial officer is immune, but whether the State is liable for his or her tortious conduct.

61 It is also an appropriate, if not essential, part of the function of an elected representative of the people to communicate with his or her electorate. That follows from the constitutional requirement that the member represent the people of an identified electoral district: Constitution Act, ss 26-29. That function is reflected in the appointment by the Speaker of the Legislative Assembly of officers to work in the electoral offices of members of the Legislative Assembly, such officers being remunerated by moneys appropriated from the Consolidated Fund.

62 The conclusion that members of the legislature are servants, agents or officers of the Crown is supported by Australian authority. The King v Boston [1923] HCA 59; 33 CLR 386 involved a demurrer to an indictment charging that a number of people conspired with Boston "in his official capacity ... then being a public officer to wit a member of the Legislative Assembly of New South Wales" to accept corruptly payments of sums of money as an inducement to him "in his said official capacity ... in violation of his official duty to do or omit to do certain acts to wit to use his position as such member to secure the inspection of, acquisition and the payment in cash for certain estates by the Government of the State of New South Wales": at 387. Isaacs and Rich JJ stated at 399-400:

"In the theory of our government the Sovereign is the source of all authority, legislative, executive and judicial. The British Constitution requires that practically in all cases the Sovereign's authority shall be exercised in the prescribed manner, with the prescribed advice and consent, and by the prescribed agents. Broadly speaking, the Sovereign in historical times acted in each branch of sovereignty with the aid of Councils which in various forms survive to-day. For the purposes of legislation his Council has become the body now represented by Parliament, whose advice and consent are essential ..., with increased practical powers, but with theoretic relations to the Crown unchanged. The fundamental obligation of a member in relation to the Parliament of which he is a constituent unit still subsists as essentially as at any period of our history. That fundamental obligation, which is the key to this case, is the duty to serve and, in serving, to act with fidelity and with a single-mindedness for the welfare of the community." (Emphasis in original.)

63 Quoting Coke's Institutes, the joint judgment continued at 400:

"The King cannot grant a charter of exemption to any man to be freed from election of knight, citizen, or burgess of the Parliament ... because the election of them ought to be free, and his attendance is for the service of the whole realm and for the benefit of the King and his people, and the whole commonwealth hath an interest therein."

64 Following the high tone of Coke, the joint judgment continued at 401-402:

"It is thus clear to demonstration that every member of the Assembly elected fills a position created in which he is to 'serve' as member in the sense in which that expression has always been understood and to which the duties of service are inseparably attached. Those duties are of a transcendent nature and involve the greatest responsibility, for they include the supreme power of moulding the laws to meet the necessities of the people, and the function of vigilantly controlling and faithfully guarding the public finances. ...

...

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 recognized place in the constitutional machinery of government. Why, then, does he not hold an 'office'? In R v White [(1875) 13 SCR (NSW) (L) 322] it was held, as a matter of course, that he does. That decision is sound. ... Clearly a member of Parliament is a 'public officer' in a very real sense, for he has, in the words of Williams J in Faulkner v Upper Boddington Overseers [(1857) 3 CB (NS) 412 at 420], 'duties to perform which would constitute in law an office.'"

65 It is not necessary for the purposes of this case to identify the precise limits of the functions of a member of the legislature. The limits, relevantly, are set by s 8(2) of the Vicarious Liability Act which excludes liability for a tort committed by a person in the conduct of any business or activity carried on by that person on his or her own account. The tortious conduct occurred in the course of Mr Orkopoulos interacting with the appellant in her capacity as electoral officer. That interaction was the performance of a function in the course of Mr Orkopoulos' service with the Crown, or was at least incidental to that service. It was not contended that the breaches of the duty of care owed by Mr Orkopoulos to the appellant were concerned with some personal relationship between the two, or the undertaking by Mr Orkopoulos of some private business or activity outside his parliamentary functions.

66 One consequentialist argument against the attribution of liability to the State for tortious conduct of members of the legislature invoked the apparent absurdity of making the State liable for, say, defamatory statements made by a member of the opposition in the course of electioneering, where the object of ridicule was a State minister. Such an example would raise a number of questions, including the possibility that activities of candidates for election would not themselves fall within the scope of the legislative functions imposed on members of Parliament and a separate possibility that statements made outside the legislature for the purposes of promoting the party political objectives of one party or another would also fall outside the functions of a legislator. However, the possibility of such questions arising is not a basis for reading down the language of the Vicarious Liability Act so as to exclude legislators from the category of persons performing functions in the service of the Crown.

67 The "absurdity" argument raised above was also put in more nuanced constitutional terms by the State, both in its written and oral submissions. In its written submissions, the proposition was succinctly stated in the following terms, albeit as a matter militating against a grant of leave to appeal, if that were required (paragraph 3(e)):

"Imposition of any liability on the first respondent for the tortious acts of the second respondent may have a tendency to operate so as to interfere with the independence of Members of Parliament in the conduct of their Electorate Offices independently of Executive Government; the supervision of staff allocated to Members of Parliament by the House of which they are Members; the internal workings of Parliament; the privileges of Parliament; and the political processes associated with the conduct of business by Parliament."

68 This aggregation of somewhat disparate concepts was refined in oral submissions in the following way (Tcpt, 18/07/12, pp 39 (35)-40 (5)):

"If the State has liability for what goes on in the electoral office of all members of Parliament, what does that mean in practice? Does it mean that the head of the Executive government or the political head of the Executive government, the premier of the day, has some oversight into the electoral office of the various members of Parliament who compromise [comprise?] the Opposition? I submit the way it all fits together is that the Executive government informs [which forms?] the State, really has no part to play, can have no part to play in the conduct of the individual member of Parliament's electoral office. That is something which is we submit within the control of the Parliament using the Speaker on a day-to-day basis as its representative, and that's the way we submit the employment arrangements tie together. The Speaker appoints the electoral officers, the Speaker issues the various workplace policies, the Speaker supervises the staff. If there's a complaint, members of staff go to the Speaker's office or people working directly under the Speaker, and we submit that approach to it leaves everything within the control of the Parliament without there being any suggestion that the premier of the day could make enquiries of the leader of the Opposition or anybody else. It we submit leaves the Parliament master of its own destiny and we submit that's the way it should all fit together."

69 The thrust of these submissions depended upon two basal constitutional propositions, which should be accepted. The first is that the State Constitution, like the Australian Constitution, reflects the principle of responsible government under the Crown. Thus, the Crown's representative is to act only on the advice of her ministers and the ministers must retain the confidence of the Parliament: G Winterton, Parliament, The Executive and the Governor-General (Melb UP, 1983), Ch 4; A Twomey, The Constitution of New South Wales at 26-30; Egan v Willis (1996) 40 NSWLR 650 at 660 (Gleeson CJ); Egan v Willis [1998] HCA 71; 195 CLR 424 at [46] (Gaudron, Gummow and Hayne JJ); Egan v Chadwick (1999) 46 NSWLR 563 at [34]-[40] (Spigelman CJ). Thus, the executive is ultimately subject to control by the parliament and the legislature is not under the control of the executive.

70 The second proposition is a practical matter: the parliament, like any other department of state, can only function with financial and administrative resources. Although it may determine budgets, it is ultimately dependent on the executive arm of government to provide such resources. However, the mechanism by which that is done, relevantly in the present case through the office of the Speaker, is designed to minimise inconsistency with the principle that the executive is subservient to the parliament, rather than the other way around. (Similar issues will arise with respect to the administration of the judicial branch of government, including in relation to the staff in judges' chambers.) The proposition is, accordingly, that to impose responsibility on the Crown for the tortious conduct of members of parliament in relation to their functions as such is to upset the constitutional balance.

71 The flaw in the reasoning is twofold. First, the strength or weakness of the argument is one for the parliament: if parliament has legislated to impose liability on the State in such circumstances, there is no diminution in the sovereignty of parliament by giving effect to that law. However, that proposition would probably not be disputed by the State: rather, the focus of the submission is that because of the consequences for the constitutional balance, it should be assumed that parliament did not have the intention of disturbing that balance.

72 It is at this second level that the substance of the argument must be addressed. It is unapologetically consequentialist in form: that is, to impose liability is to invite control and interference in advance, in order to limit potential future liability. However, to state the argument in that way is to expose the flaw. The express intention of s 8 of the Vicarious Liability Act is to require the State to accept responsibility for the tortious conduct of its officers even when beyond its control, in the exercise of independent functions. There can be no suggestion that the Vicarious Liability Act brought with it some greater power to control the exercise of independent functions, whether by police, the Director of Public Prosecutions or any other officer in the service of the Crown. If there is a resultant incentive to limit the potential for such liability, it may be assumed that the executive has adequate and appropriate means to do so, for example by the provision of training and the promulgation of appropriate standards, through the existing structures of executive control. Accordingly, the constitutional argument should be rejected as providing no basis for reading down terms of legislation which are patently beneficial, both in the interests of citizens injured as a result of the activity of officers of the Crown and in formalising that which had previously been common practice, namely ensuring that any judgment is borne by the State, rather than (or, in the absence of statutory immunity, in addition to) the individuals responsible for the tortious conduct.

(4) Effect of default judgment

(a) nature of issue

73 On the basis that the State is liable for any tort committed by Mr Orkopoulos in the exercise of his function as a Member of Parliament, including in his dealings with the appellant as a member of his staff in his electorate office, the next question requires assessment of the damages for which the State is liable. In this regard, it should be noted that s 8 of the Vicarious Liability Act does not state that the Crown will be liable for the damages awarded against the person in the service of the Crown, but establishes vicarious liability in respect of the tort committed by that person. However, it was assumed that the vicarious liability of the State would be limited in the same manner as the liability of Mr Orkopoulos, pursuant to the Civil Liability Act, s 3C.

74 The appellant contended that, while the State did not admit the intentional tort, as between the appellant and Mr Orkopoulos, it was admitted. Accordingly, the appellant was entitled to have damages assessed on that basis. The State did not claim any right to take over Mr Orkopoulos' defence. The Vicarious Liability Act says it is liable "in respect of the tort committed" by Mr Orkopoulos: s 8(1). Once Mr Orkopoulos conceded an intentional tort, by admitting the bullying allegations, the State was not entitled to put the appellant to proof of that cause of action. Although damages needed to be assessed, the absence of a defence conceded both the injury particularized and causation. Accordingly, what needed to be "assessed" was the value of the injury, in accordance with the general law.

75 The claims brought by the appellant against the Speaker, the State and Mr Orkopoulos were complicated by the different statutory regimes for the assessment of damages. Thus, damages against the Speaker were to be assessed under the Workers Compensation Act, Pt 5, Div 3. Those damages were, in substance, restricted to economic loss. As against Mr Orkopoulos, the trial judge found that, on the evidence, Mr Orkopoulos was liable in negligence and that damages were to be assessed under the Civil Liability Act, Pt 2. It is that latter finding which is challenged in the appeal.

76 In her statement of claim, paragraph 3, the appellant had asserted that the State was "vicariously liable for the acts and omission of the third defendant [Mr Orkopoulos] in the manner, control, direction, management, and supervision of staff employed within the Swansea Electorate Office". The State, in its defence, paragraph 5, denied any liability for such acts or omissions of Mr Orkopoulos: it follows from the foregoing reasoning, that the defence must be rejected and the liability of the State upheld "in respect of the tort committed by [Mr Orkopoulos] in the performance or purported performance by [him] of" his function as a Member of Parliament, pursuant to s 8 of the Vicarious Liability Act.

77 The appellant did not contend that, if it were appropriate or necessary for the primary judge to determine the relevant cause of action made good by reference to the evidence called at the trial, his conclusion was wrong. Rather, the ground of challenge was limited to the proposition that, the appellant having pleaded an intentional tort committed by Mr Orkopoulos and entered default judgment with respect to liability, the trial judge was bound to assess damages on the basis of an intentional tort. If that were so, the restrictions on general law damages imposed by the Civil Liability Act did not apply: Civil Liability Act, s 3B(1)(a). The issue on appeal was, therefore, identified as whether the trial judge should have proceeded on the basis of damages for intentional tort, because of the effect of entering a default judgment against Mr Orkopoulos.

78 Even if the appellant established that proposition, there is a consequential issue, namely whether the State is liable for whatever damages may be assessed as against Mr Orkopoulos, or whether it is entitled to limit its liability to an assessment under the Civil Liability Act. If the latter, and subject to a final issue as to the assessment of non-economic loss, the State will only be liable for the damages as assessed by the trial judge against Mr Orkopoulos.

79 In considering the effect of the default judgment, the starting point must be the pleading to which Mr Orkopoulos failed to respond. The pleading asserted that the Speaker and the State were vicariously liable for the acts and omissions of Mr Orkopoulos: statement of claim, paragraph 3. It also alleged that the appellant was exposed "to a significant degree of stress" in the course of her employment: paragraph 7. Further, it alleged that the plaintiff was also "victimised, bullied and harassed" by Mr Orkopoulos. The last allegation (which may be compendiously described as bullying) was identified as a particular of negligence (paragraph 18(a)) as against each defendant, but also formed the basis of the alleged intentional tort. The key paragraphs were as follows:

"26 Further and in the alternative the plaintiff's injury, loss and damage caused by the victimisation, bullying and harassment of the plaintiff by the third defendant.

27 The third defendant's conduct, in victimising, bullying and harassing the plaintiff constituted assaults upon the plaintiff.

28 The aforementioned conduct also constituted intentional acts done with intent to cause injury within the meaning of s 3B(1)(a) of the Civil Liability Act 2002.

29 The second defendant is vicariously liable for the injury, loss and damage caused to the plaintiff by the aforementioned conduct of the third defendant."

80 The claim being for unliquidated damages, the appellant was entitled to enter judgment upon the defendant's default, for damages to be assessed and for her costs: r 16.7(1). She then relied upon the terms of r 30.1, which provides as follows:

"30.1 Damages under judgment

(1) This rule applies to proceedings in which judgment against a party has been given for damages to be assessed.

(2) Subject to subrule (3), the proceedings are to proceed to trial for assessment of damages.

(3) If the proceedings are carried on against the party on any claim for relief not determined by the judgment, or against any other party, the trial for assessment of damages is to be held together with any other trial in the proceedings."

81 The difficulty, which is not directly addressed by these rules, is the effect of entering judgment with respect to liability where the causes of action identified in the statement of claim are, effectively, in the alternative and different consequences flow from liability under each. The appellant's argument assumed, in her favour, that she was entitled to rely upon a judgment as carrying liability for that cause of action most favourable to her claims.

82 The reason that the matter needs to be addressed in these terms is that there is an inherent inconsistency between an allegation of negligence and an allegation of an intentional tort, quite apart from the fact that damages must be assessed on a different basis for each. Thus, in Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471 at [61]-[63], in analysing the responsibility of the bully (Mr Chaloner) and his employer, Spigelman CJ stated:

"[61] In any event, in the face of Mr Chaloner's intentional course of conduct, which brutalised the respondent, it is artificial to analyse his conduct in terms of a duty of care owed by either appellant, through the agency of Mr Chaloner, based on the foreseeability of psychiatric damage together with the application of a standard of reasonableness as to the steps which should have been taken to avoid psychiatric injury.

[62] The imperial march of the tort of negligence is such that, as a matter of practice, it has led the legal profession to abjure the sometimes more demanding requirements of proof of an intentional tort. This has led to an accompanying lack of rigour in the analysis of the elements of a cause of action.

[63] To treat Mr Chaloner's knowledge as pertinent to determining what a reasonable employer or surrogate employer should have done appears to me to be so inappropriate as to engage the wrong sphere of legal discourse. That conclusion is reinforced by the artificiality of any suggestion that Mr Chaloner was authorised to receive information about, or had a duty to communicate, the results of his own misconduct and that, on that basis, each appellant had imputed knowledge of whatever he knew."

83 There is, of course, no reason not to plead causes of action in the alternative: until the facts are found and characterised by the trial judge, a plaintiff cannot be sure whether the conduct will be accepted as alleged and whether it will be seen to constitute deliberate abuse and bullying, or merely the creation of a hostile work environment by a failure to take reasonable care for the safety of the plaintiff. It is also, of course, quite legitimate to plead that an employer may be negligent in failing to take steps to prevent or rectify bullying by a superior of the plaintiff in the workplace. The point raised for present purposes is whether, having pleaded against Mr Orkopoulos in the alternative, the default judgment can give rise to liability for one cause of action as opposed to the alternative as pleaded.

84 Whether or not there was inconsistency between the separate causes of action in the sense identified in Naidu is not determinative in the present case. It is necessary to characterise the relevant tort as founded on negligence or as an intentional act done with intent to cause injury: Civil Liability Act, s 3B(1)(a). That characterisation must govern the assessment of damages which remained to be undertaken, following the default judgment.

(b) reasoning of primary judge

85 The primary judge dealt with the matter only after he had made findings as to the nature of Mr Orkopoulos' liability, on the basis of the evidence before him. Thus he stated at [227]:

"I agree with the [State's] submissions that the default judgment is interlocutory in nature and open to review in the light of evidence adduced during the hearing. When considering the case against the [State], the court is not obliged to act on admissions claimed to have arisen from [Mr Orkopoulos'] failure to file a defence and the consequential obtaining of default judgment against him, but can act upon the evidence: Termijtelen v Van Arkel (1974) 1 NSWLR 525 per Hope JA at 529-531. It would be contrary to principle and a denial of procedural fairness if liability was found against the [State] because [Mr Orkopoulos] did not defend the case, but the plaintiff had not established his negligence."

86 The first step in this reasoning appears to be unjustified as a matter of procedure. No doubt the default judgment was interlocutory, but it is by no means clear that the purpose of the trial was to "review" the judgment: if that had been the purpose, then the judgment was not set aside or varied.

87 Similarly, there are difficulties with the last sentence. If the only claim made against Mr Orkopoulos had been in negligence and the appellant had signed default judgment against him, at least in proceedings to which the State was party and where the State had notice that default judgment was likely to be sought, or would be sought, it is by no means clear that the conclusion (as to procedural unfairness) is correct. Procedural fairness depends on a party being afforded an opportunity to seek to avoid an adverse outcome. Assuming for present purposes that the State had knowledge of a judgment being proposed against a party for whose liability it bore responsibility, there would be no procedural unfairness if it failed to take a reasonable opportunity to avoid the adverse outcome.

88 In James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53, a plaintiff sued three defendants as concurrent tortfeasors in the Dust Diseases Tribunal. The third defendant obtained judgment against the plaintiff, by consent, in the course of the trial. One of the other defendants, against whom judgment was given by the Tribunal in favour of the plaintiff, sought to recover contribution from the third defendant as another tortfeasor "who is, or would if sued have been, liable in respect of the same damage": Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c). The High Court held that, having been joined in the proceedings, the third defendant had in fact been sued but, albeit by a consent judgment, had been found not to be liable. In explaining why the unsuccessful defendant (the appellant in the High Court) could not seek contribution against the third defendant (the respondent in the High Court) Gaudron and Gummow JJ stated:

"[40] However, in the present litigation, the order dismissing the plaintiff's action against the respondent was a final order which brought that action to an end. ... The plaintiff's cause of action against the respondent merged in the judgment, thereby destroying its independent existence.

[41] The status of the Tribunal as a court of record was such that the circumstance that the judgment in favour of the respondent was entered by consent renders it no less effective to absolve the respondent from liability to the plaintiff. It was for the appellant to have taken the necessary steps to oppose that entry of judgment and to have put itself in the procedural position whereby it was competent to appeal against that entry."

89 The third concern is the statement by the primary judge that he was not "obliged to act on admissions" arising from the default of Mr Orkopoulos. The appellant sought to distinguish the authority relied on for this proposition, namely Termijtelen. That submission should be accepted. Termijtelen was an appeal from a decision by Mahoney J not to exercise a discretionary power under the Consolidated Equity Rules of 1902 to make a decree based upon a default by a defendant. Hope JA explained at 530F:

"As appears from the decision in Verney v Thomas [(1888) 58 LT 20], the fact that a cause of action against a party who has not defended is related to a cause of action otherwise to be litigated in a suit is a ground for exercising a discretion not to give judgment against the non-defending defendant before the suit has been heard; and, when the suit has been heard, it is, in my opinion, contrary to all principle that a court, having decided that an alleged fact was or was not true, and having acting on the basis of that decision against the defending party, should be required to act on the contrary basis against the non-defending party. What the court does in a particular case is of course a matter of the circumstances of that particular case; the relief against the non-defending defendant may be so severable, in law or in fact, from the relief sought against the defending defendant that it may be appropriate to deal with the non-defending defendant on the basis of the admissions ...."

90 As the appellant correctly submitted, the present case is concerned with the effect of a judgment in fact entered, in circumstances where the State had not sought to have it set aside.

91 Although there are difficulties with the approach adopted by the primary judge, the question remains as to the effect of the default judgment in the light of apparently inconsistent causes of action.

(c) an unresolved issue

92 McConnell v Lombard and Ulster Banking Ltd [1982] NI 203 involved a question as to the effect of a default judgment entered against one defendant, which might have had the result of exonerating the other defendant. The plaintiff had bought goods on hire purchase, but found that the equipment was unsuitable for the purpose for which it had been hired. The agreement involved the plaintiff and the first defendant. The original supplier of the goods was the second defendant and the plaintiff acted upon representations made by a representative of the second defendant. Proceedings were brought against both defendants claiming damages for misrepresentation, breach of contract and negligence. The person responsible for the misrepresentation and negligence was the representative of the second defendant which, it was pleaded, had acted as the servant or agent of the first defendant. The second defendant did not defend the proceedings and the plaintiff obtained a default judgment in an amount calculated by reference to the payments made under the hire agreement, but without any amount for general damages or interest: at 204. The first defendant argued that as there had been only one party to the contract with the plaintiff, the judgment against the second defendant carried with it an implied finding that the contract had been with that party and accordingly the first defendant should be treated as having been exonerated. The judgment itself was opaque as to whether damages had been awarded for breach of contract as between the plaintiff and the second defendant or for misrepresentation and negligence in respect of the equipment the subject of a contract between the plaintiff and the first defendant. The plaintiff had pleaded the matter in the alternative and either conclusion was open. Thus, Gibson LJ concluded at 208:

"Applying the tests of trying to say what is the 'bare essence' of the judgment or what must 'necessarily and with complete precision' have been decided, I can only say that this judgment totally fails to establish a clear decision which is inconsistent with the existence of a contract with the first defendant and so raises no estoppel to that issue being contested in further proceedings against that defendant."

93 McConnell is distinguishable from the present case: there, one defendant was seeking to establish an estoppel in the face of a judgment which was opaque in its terms in respect of a pleading in the alternative. In the present case, one defendant seeks to deny the plaintiff an entitlement to obtain damages based on one cause of action, when the judgment itself is opaque and the pleading contained alternatives. Nevertheless, the approach in each case should be similar, as a matter of principle. It is therefore convenient to note the derivation of the tests applied by Gibson LJ which are succinctly set out in the following passage, at 207:

"Where judgment has been marked in default of appearance or defence, then as between the parties and for the purpose of the proceeding, all allegations in the statement of claim are deemed to have been admitted by the defaulting party and to that extent he will generally be estopped from setting up in any subsequent proceeding any matter of defence which (to quote Lord Maugham LC in New Brunswick Railway Co v British & French Trust Corporation Ltd [1939] AC 1 at page 21) was 'necessarily and with complete precision' decided against him by the previous judgment by default. As Lord Radcliffe stressed in Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 at page 1012, the limits prescribed by the principle will be strictly observed; and the courts will scrutinise such judgments with extreme particularity in order to ascertain the bare essence of what must necessarily have been decided and to avoid implying as having been decided by a judgment by default any more than is necessarily involved by reason of the fact that judgment has been obtained."

94 At least so far as the contract claim was concerned, the first defendant in McConnell was relying upon the fact that the plaintiff had alternative claims which could not both be upheld. In other circumstances, as in the present case, inconsistency can arise with respect to the available remedies. That situation arose in United Australia Ltd v Barclays Bank Ltd [1941] AC 1. After referring to the circumstances in which a party may be held to an unequivocal election as between incompatible rights, Lord Atkin continued at 30:

"I ... think that on a question of alternative remedies no question of election arises until one or other claim has been brought to judgment. Up to that stage the plaintiff may pursue both remedies together, or pursuing one may amend and pursue the other: but he can take judgment only for the one, and his cause of action on both will then be merged in the one."

95 Applying that principle, which was described as "well established" by Handley JA (with the agreement of Mason P and Latham J) in Zavodnyik v Alex Constructions Pty Ltd [2005] NSWCA 438; 67 NSWLR 457 at [32], no election having been made by the appellant prior to the assessment of damages, the judgment as entered for damages to be assessed cannot be treated as a judgment in respect of either cause of action, nor can it be a judgment for both.

96 It may be open to a party who has pleaded alternative causes of action to obtain a default judgment which specifies the cause of action sought to be relied upon: in respect of alternative claims, including any two or more claims referred to in UCPR Pt 16, judgment may be given on any one of those claims as if it were the only claim for relief: r 16.8. However, that rule would appear not to apply to several claims for unliquidated damages, all of which would fall within the one category, namely that identified in r 16.7.

97 Curiously, there appears to be a dearth of authority on this last point, although a similar issue arose in R T Co Pty Ltd v Minister of State for the Interior [1957] HCA 39; 98 CLR 168. In that case, not only were there alternative claims the subject of a default judgment, but the claims were made against the defendants in the alternative: at 169. Accordingly, a judgment entered against the defendants jointly was held by Dixon CJ to be irregular and was therefore set aside. Dixon CJ stated, in respect of a rule permitting entry of judgment in default of delivery of a defence:

"In Victoria the corresponding rule has been construed as enabling a plaintiff where alternative claims are made against the same defendant to enter judgment on one alternative claim on the footing that he thus abandons the others. That was so decided by Hodges J in the case of Currie v May [[1914] VLR 17]."

98 Whether or not judgment could have been entered on a specific cause of action, that did not happen in the present case at any stage prior to the findings by the trial judge. The default judgment did not necessarily and with complete precision determine for which of the various causes of action the respondent was liable. If they had been consistent, the plaintiff might have been able to require that damages be assessed on the basis most favourable to her; however, the fact that the cause of action relied upon (for an intentional tort) was not consistent with the alternative basis, being that revealed by the evidence before the trial judge (breach of duty of care) prevents that logic applying. It follows that the appellant cannot rely upon the default judgment to establish liability for an intentional tort on the part of Mr Orkopoulos.

99 Put in terms of the characterisation issue identified above, by reference to the terms of the Civil Liability Act, the default judgment did not preclude the State from resisting the conclusion that the conduct of Mr Orkopoulos constituted an intentional act done with intent to cause injury, for the purposes of s 3B(1)(a) of the Civil Liability Act. Even assuming that both causes of action merged in the default judgment, the statutory characterisation issue remained unresolved. If that is so, it follows that no different result will flow from application of principles of issue estoppel, falling short of res judicata.

100 There being no other challenge to the characterisation of the tort as based on negligence, the appeal in this respect must be dismissed.

(5) Damages - non-economic loss

101 Independently of the basis on which the appellant sought to maintain a claim on a cause of action for intentional tort, she challenged the assessment of non-economic loss under the Civil Liability Act.

102 At trial, the appellant claimed that her degree of suffering should be assessed at 30% of a most extreme case, if it were to be assessed pursuant to s 16 of the Civil Liability Act. The primary judge did not accept that assessment, primarily because he concluded that her recovery had been "substantial" to the date of trial and that "full recovery is, on the balance of probabilities, not too far away": at [270].

103 What precisely his Honour intended by this finding as to the future is unclear: however, it appears to have discounted the possibility, falling short of a probability, that some degree of suffering and loss of the amenities of life might continue beyond the immediate future. That approach is inconsistent with Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638. As with the assessment of hypothetical past events, as opposed to actual past events, the assessment must be made in terms of the degree of likelihood of those events occurring.

104 It may reasonably be contended that the point at which a psychiatric condition may be said to have resolved cannot, of its nature, involve a precise assessment. Nor did the trial judge attempt such precision. However, it is clear from the language used that he treated the possibility of a condition continuing into the future for more than a relatively short period as improbable and therefore to be ignored. That approach constitutes error.

105 That there was uncertainty about the future is also reflected in the assessment of damages for future economic loss in the sum of $110,000. In explaining the approach on which that calculation was undertaken the trial judge stated:

"[282] The plaintiff is not totally incapacitated for work but has not fully recovered. It is more likely than not that she will return to the workforce initially part time and when fully recovered, be employed full time. She does have the disadvantage of having been out of the work force for about 5 years and might experience some difficulty in obtaining work at the same level in office management that she would have had but for the depressive illness. Some of the positions that are identified in the reports of Dr Mitchell and Mr Brown and in the report of Professor Prior are less remunerative than her position at the electorate office.

[283] However, I am not persuaded that future economic loss should be calculated on the basis of a residual incapacity of $300 - $400 net per week until retirement as the plaintiff is an intelligent woman, with much experience in managing an electorate office. I am not satisfied on the balance of probabilities that after she has been back in the workforce for some time she will not be employed in a position with the same level of remuneration, which she would otherwise have attained, but for her illness.

...

[285] In my opinion, the amount proposed by Ms Norton, of one year's salary as a buffer is inadequate. I consider that the sum of $110,000.00 is the appropriate amount." [Emphasis added.]

106 A further sum of $12,100 was allowed on account of superannuation: at [286]. No attempt was made to determine precisely when the appellant would no longer suffer loss of income from the diminution in her earning capacity, but again the matter was dealt with "on the balance of probabilities": at [282] and [283]. This was an erroneous approach, for the same reasons as noted above in respect of non-economic loss.

107 It may further be noted that his Honour rejected as inadequate a "buffer" calculated at the equivalent of one year's salary. In calculating past economic loss, the trial judge adopted a figure of $1,176 net per week from July 2010 until February 2011. It may be assumed, therefore, that the amount rejected as inadequate was of the order of $61,000 per annum. Accordingly, the "salary equivalent" in fact adopted equated to one year, nine months, with, presumably, some notional reduction for the fact that future loss was being received in the present.

108 Although no precise calculation is possible, it should be accepted that the failure to allow for the possibility of future loss which was not established as more probable than not, diminished the amount properly recoverable on account of non-economic loss. There is no challenge to the assessment of future economic loss, which appears to have been inappropriately discounted on the same basis, and that figure should not be varied. On the other hand, the fact that the depressive illness suffered by the appellant gave rise to a period of weeks in the Lakeside Clinic, a total loss of earning capacity for 4.5 years and a future loss of earning capacity equivalent to a further one year, nine months (at the least) suggests an unduly low figure for the proportion of a most extreme case. Absent the erroneous approach to future assessment, it could properly have been said that 16% was at the lower end, but within, a permissible range. Although these assessments are matters of impression, making other assumptions conformable with the findings of the primary judge, some allowance should be made to correct the errors in approach.

109 To increase the assessment to 20% of a most extreme case might be viewed as overcompensating for the error, because it involves a 25% increase in the assessment of the severity of the condition. On the other hand, absent error, an increase of 4% from 16% to 20% would not usually be sufficient to take the assessment outside a permissible range: see Clifton v Lewis [2012] NSWCA 229 at [57]; Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 at [205] (Beazley JA). In the circumstances, 20% is an appropriate figure, which would translate (according to the maximum amount available as at the date of judgment below) to an award of $17,500. That constitutes an additional amount in respect of the damages assessed as against the second respondent of $10,000.

Conclusions

110 The appellant did not require leave to pursue her appeal as to the liability of the State. In addition, she had a realistic claim in respect of the quantum of damages awarded against Mr Orkopoulos. If damages should have been assessed on the basis of an intentional tort, rather than under the Civil Liability Act, the amount awarded for non-economic loss would have been significantly higher and there was a realistic prospect of obtaining a sum for exemplary damages. Leave was not required to pursue her appeal with respect to the judgment against Mr Orkopoulos.

111 The appeal against the judgment in favour of the State should be allowed and damages should be awarded against the State for the amount assessed by the trial judge, together with the additional amount of $10,000 for non-economic loss as a result of reassessing the proportion of a most extreme case.

112 In giving judgment for the appellant against the Speaker and Mr Orkopoulos in different amounts, the primary judge added a paragraph to the orders as entered on 2 June 2011, in the following terms:

"3(a) I stress the total amount of damages recoverable by the Plaintiff is $438,613.75."

113 The purpose of this statement was no doubt to make clear that the judgments were not cumulative, but, whilst the intention was right, the statement was not in the form of an enforceable order. Without seeking to diminish the purpose underlying the statement, the amount no longer being correct, the statement itself should be set aside.

114 The judgment to be entered against the State should take effect from the date of the orders made at trial. To the extent that the judgment has been satisfied by the payment made by the Speaker, any interest payable on that sum will have accrued, in accordance with the rules, from the date of the orders made below. Interest should run on the balance outstanding, which will be an amount of a little under $20,000, from the date of the judgment below.

115 With respect to costs, the appellant should have her costs of the trial. It may be inferred from the orders made below that there was no relevant offer of compromise: accordingly the costs should be assessed on the ordinary basis.

116 With respect to the assessment of damages, as against Mr Orkopoulos, the appellant was unsuccessful on her main claim, but successful on a subsidiary claim. As Mr Orkopoulos did not appear in these proceedings, there should be no orders as to costs as between the appellant and the second respondent. So far as the appellant and the State are concerned, the appellant has been substantially successful in respect of her arguments as to the liability of the State (although not her argument in respect of the default judgment, which would have affected the quantum of the liability of the State) and should have an award of costs against the State in respect of the appeal and the dispute as to the need for leave to appeal.

117 The Court should make the following orders:

(A) With respect to the appeal against the second respondent (third defendant below) (Milton Orkopoulos):

(1) Allow the appeal in part and set aside orders (2) and (3)(a) entered on 2 June 2011.

(2) In place of those orders, give judgment for the plaintiff against the third defendant in the sum of $448,613.75.

(3) The judgment to be entered against the third defendant is to take effect from the date of the orders made by the trial judge, namely 2 June 2011.

(B) With respect to the appeal against the first respondent (the second defendant below) (the State of New South Wales):

(1) Allow the appeal and set aside order (3) entered on 2 June 2011 and order (2) entered on 3 August 2011.

(2) In place of those orders:

(a) give judgment for the plaintiff against the second defendant in the sum of $448,613.75;

(b) order that the second defendant pay the plaintiff's costs of the trial to be assessed on the ordinary basis.

(3) The judgment to be entered against the second defendant is to take effect from the date of the orders made by the trial judge, namely 2 June 2011.

(4) Order that the first respondent pay the appellant's costs in this Court of -

(a) the objection to competency;

(b) the review of the dismissal of the objection to competency;

(c) the application for leave to appeal, and

(d) the appeal.

118 MACFARLAN JA:

Table of Contents
Summary of case and conclusions	[119]
Ms Sneddon's employment	[131]
The default judgment against Mr Orkopoulos	[134]
The Crown Proceedings Act 1988	[135]
The Law Reform (Vicarious Liability) Act 1983	[136]
The judgment at first instance	[137]
Mr Orkopoulos' liability	[137]
The Speaker's liability for Mr Orkopoulos' conduct	[139]
The State's liability	[140]
Damages	[144]
Costs	[146]
The judgment against Mr Orkopoulos	[149]
Effect of the default judgment	[149]
Damages for non-economic loss: s 16 Civil Liability Act	[158]
Whether the State is vicariously liable	[161]
Costs at first instance	[175]
Orders on appeal	[177]

SUMMARY OF CASE AND CONCLUSIONS

119 In 1999 Ms Gillian Sneddon, the appellant, was appointed an Electorate Officer for the New South Wales electorate office of Mr Milton Orkopoulos MP who was then the State Legislative Assembly Member for Swansea. The appointment was made by the Honourable the Speaker of the New South Wales Legislative Assembly (the "Speaker") on the recommendation of Mr Orkopoulos.

120 Ms Sneddon said that in that position she "effectively ran the office under [Mr Orkopoulous] with the assistance of ... a lower grade electorate officer" and that her role included interviewing constituents and attempting to solve community concerns and problems (Plaintiff's Evidentiary Statement dated 4 August 2010, p 2). Mr Orkopoulos was appointed Minister for Aboriginal Affairs and the Minister Assisting the Premier on Citizenship on 10 August 2005.

121 Prior to the termination of Ms Sneddon's employment on 22 February 2008, Mr Orkopoulos resigned as the Member for Swansea and in March 2008 he was found guilty of criminal offences including sexual assault of a minor, indecent assault and the supply of heroin and cannabis.

122 On 11 September 2009 Ms Sneddon commenced the present proceedings, claiming that she was bullied, victimised and harassed while she was working in the Swansea electorate office, and suffered psychiatric harm as a consequence. The proceedings were brought against the Speaker, the State of New South Wales (the "State"), and Mr Orkopoulos as the first, second and third defendants respectively.

123 By judgment dated 2 June 2011, Price J found that Ms Sneddon had established her allegations and that Mr Orkopoulos was liable for damages in the amount of $438,613.75 for breach of a duty of care owed to her. His Honour also found that the Speaker, as Ms Sneddon's employer, was liable for "modified common law damages" assessed under Division 3 of Part 5 of the Workers Compensation Act 1987 in the amount of $429,165.96, but that the State was not liable to Ms Sneddon.

124 On appeal Ms Sneddon contended that the damages payable by Mr Orkopoulos should have been assessed upon the basis that Mr Orkopoulos' conduct was intentional, rendering limitations imposed by the Civil Liability Act 2002 on the recovery of damages for negligence inapplicable. She contended that on this basis she was entitled to exemplary damages, and substantially greater damages for non-economic loss than those awarded by his Honour. She also claimed that in any event the damages awarded for non-economic loss were too low and that the costs order made by his Honour was erroneous.

125 Ms Sneddon did not appeal against his Honour's decision in relation to the Speaker but contended on appeal that the State is vicariously liable in respect of Mr Orkopoulos' conduct, pursuant to the Crown Proceedings Act 1988 or the Law Reform (Vicarious Liability) Act 1983. Mr Orkopoulos was not represented on the appeal but his interests largely coincide with those of the State which is alleged to be responsible for his conduct.

126 Although the basis of Mr Orkopoulous' liability, as found by the primary judge, was breach of a duty of care which was "indistinguishable from [her] employer's duty" (Judgment [204]), none of the parties contended that damages payable by him, and for which the State was alleged to be vicariously liable, should be assessed in accordance with the provisions of the Workers' Compensation Act.

127 It was common ground between the parties that, after the decision of Price J, the Speaker paid the amount of the judgment awarded against him and the parties appear to have accepted that Ms Sneddon can only recover her loss once. Thus what is at stake on appeal is:

(a) the liability of the State for the difference between the judgment of $429,165.96 paid by the Speaker and the judgment of $438,613.75 awarded against Mr Orkopoulos;

(b) the liability of Mr Orkopoulos and the State for any amount in excess of $438,613.75 to which Ms Sneddon can demonstrate entitlement; and

(c) the costs of the proceedings at first instance and on appeal.

128 In these circumstances, there is an issue between the parties as to whether Ms Sneddon has an appeal as of right, or requires leave to appeal. By a judgment of 9 February 2012 ([2012] NSWCA 7), Barrett J rejected an application by the State that the Notice of Appeal filed by Ms Sneddon be dismissed as incompetent. The State sought a review of that judgment. As I consider that this is in any event an appropriate case for a grant of leave to appeal, it is unnecessary to determine the State's application for review which should be dismissed. No special costs order should be made as the application did not significantly add to the costs of the appeal proceedings.

129 This is an appropriate case for a grant of leave to appeal as Ms Sneddon's case raises important issues concerning the vicarious liability of the State for acts of Members of the Legislative Assembly and because her case has merit, as will be explained below. Given the doubt about Ms Sneddon's right to appeal, leave to appeal should be granted.

130 My conclusions concerning the issues on appeal are as follows:

(a) The primary judge correctly assessed damages against Mr Orkopoulos on the basis that the provisions of the Civil Liability Act were applicable, he having found that Mr Orkopoulos' conduct was negligent rather than intentional.

(b) In supervising and controlling Ms Sneddon in her employment in his electoral office, Mr Orkopoulos was acting as a delegate of the Speaker who was, in employing Ms Sneddon, acting as part of the Executive Government of the State and therefore as a representative of the "Crown" within the meaning of that expression in the Law Reform (Vicarious Liability) Act. Accordingly, Mr Orkopoulos, as the Speaker's delegate, was also acting as part of the Executive Government and was therefore "in the service of the Crown" within the meaning of s 8(1) of that Act. In these circumstances, the Crown, being in this context the State, is vicariously liable for Mr Orkopoulos' conduct. Judgment should therefore be entered against the State for the same amount as awarded against Mr Orkopoulos.

(c) Ms Sneddon fails in her challenges to the primary judge's assessment for damages for non-economic loss under the Civil Liability Act and to the limited order for costs made against Mr Orkopoulos.

MS SNEDDON'S EMPLOYMENT

131 A Memorandum to the Speaker dated 22 April 1999 recommending Ms Sneddon's appointment (approved by the Speaker on 27 April 1999) stated:

"Employment is to the electorate office of Mr Orkopoulos, Member for Swansea only and does not constitute appointment to the Public Service, the Department of the Legislative Assembly or to other Parliamentary or Public Sector employment".

The appointment appears to have been made by the authority of an Order under s 47 of the Constitution Act 1902 published in the New South Wales Government Gazette of 2 May 1952. This Order vested in the Speaker of the Legislative Assembly the power to appoint "minor servants" of the Legislative Assembly. Section 47 of the Constitution Act was (and remains) in the following terms:

"Appointment of officers

Subject to the provisions of the Public Service Act 1902 and of all other enactments relating to the appointment of officers and being in force at the passing of this Act, the appointment of all public offices under the Government, whether such offices are salaried or not, shall be vested in the Governor with the advice of the Executive Council, with the exception of the appointments of the officers liable to retire from office on political grounds, which appointments shall be vested in the Governor alone:

Provided that this enactment shall not extend to minor appointments which by any Act or by order of the Governor and Executive Council are vested in heads of departments or other officers or persons."

132 A document in evidence entitled "Position Description" set out the following "key accountabilities" of the occupant of the position held by Ms Sneddon:

". Deal with problems presented by constituents

. Build and maintain effective working relationships with community groups in the constituency

. Disseminate information to the public

. Provide administrative support to the MP

. Seek, evaluate and communicate information on political and community issues to the MP".

133 The document referred to the holder of the position being appointed under the Crown Employees (Parliamentary Electorate Officers) Award and contained the following statement:

"Electorate Officers are not permitted to engage in activities of a direct electioneering or political campaigning nature during ordinary hours of work and as part of their role as an Electorate Officer".

THE DEFAULT JUDGMENT AGAINST MR ORKOPOULOS

134 As Mr Orkopoulous did not enter an appearance or file a defence in the proceedings, Ms Sneddon obtained default judgment against him. The judgment, entered on 17 January 2011, was for damages to be assessed and for costs. The other defendants were aware of Ms Sneddon's intention to seek this default judgment.

THE CROWN PROCEEDINGS ACT 1988

135 Relevant provisions of this Act are as follows:

"3 Definitions

In this Act:

...

Crown means the Crown in right of New South Wales, and includes:

(a) the Government of New South Wales, and

(b) a Minister of the Crown in right of New South Wales, and

(c) a statutory corporation, or other body, representing the Crown in right of New South Wales.

...

4 Crown may sue

The Crown may bring civil proceedings under the title 'State of New South Wales' against any person in any competent court.

5 Crown may be sued

(1) Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title 'State of New South Wales' in any competent court.

(2) Civil proceedings against the Crown shall be commenced in the same way, and the proceedings and rights of the parties in the case shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side, and shall bear interest, as in an ordinary case between subject and subject."

THE LAW REFORM (VICARIOUS LIABILITY) ACT 1983

136 Relevant provisions of this Act are as follows:

"5 Definitions

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

court includes a tribunal, and in relation to a claim for damages means any court or tribunal by or before which the claim falls to be determined.

Crown means the Crown in right of New South Wales.

independent function, in relation to a servant or a person in the service of the Crown, means a function conferred or imposed upon the servant or person, whether or not as the holder of an office, by the common law or statute independently of the will of the servant's master or the Crown, as the case may require.

legal proceedings means proceedings in a court.

office includes the office of special constable within the meaning of Part 4 of the Police Offences Act 1901.

originating process means any statement of claim, summons, application or other process by means of which legal proceedings are commenced.

person in the service of the Crown does not include a servant of the Crown.

police tort claim-see section 9B (1).

(2) In this Act, a reference to:

(a) a function includes a reference to a power, authority and duty, and

(b) the performance of a function includes a reference to the exercise of the function and the failure to perform or exercise the function.

...

7 Vicarious liability of masters

Notwithstanding any law to the contrary, a master is vicariously liable in respect of a tort committed by the master's servant in the performance or purported performance by the servant of an independent function where the performance or purported performance of the function:

(a) is in the course of the servant's service for his or her master or is an incident of the servant's service (whether or not it was a term of his or her contract of service that the servant perform the function), or

(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the servant's master.

8 Further vicarious liability of the Crown

(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:

(a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function), or

(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown.

(2) Subsection (1) does not apply to or in respect of a tort committed by a person in the conduct of any business, enterprise, undertaking or activity which is:

(a) carried on by the person on the person's own account, or

(b) carried on by any partnership, of which the person is a member, on account of the partnership."

THE JUDGMENT AT FIRST INSTANCE

Mr Orkopoulos' liability

137 For reasons that he gave when considering the State's liability (see [140] below), the primary judge concluded that Ms Sneddon's entry of default judgment against Mr Orkopoulos did not oblige the Court to conclude that Mr Orkopoulos had committed an intentional tort, as alleged in the statement of claim, when, on his Honour's view, the evidence did not establish that to be the case (Judgment [180]).

138 The primary judge concluded that Mr Orkopoulos had bullied and harassed Ms Sneddon, that there was a risk of significant psychiatric injury to her that was not insignificant and should have been foreseen by Mr Orkopoulos, that a reasonable person in his position would have refrained from such behaviour and that he accordingly breached his duty of care to Ms Sneddon (Judgment [206] - [207]). The primary judge found that as Ms Sneddon worked under Mr Orkopoulos' direct supervision and management, the duty of care that he owed to her was indistinguishable from that owed by an employer to an employee (Judgment [204]).

The Speaker's liability for Mr Orkopoulos' conduct

139 The primary judge found that in directing and managing Ms Sneddon in her employment, Mr Orkopoulos was acting as the Speaker's representative to whom the Speaker had delegated performance of his duty of care to provide a safe place of work for Ms Sneddon (Judgment [204], [224], [226], [240]). As a result of Mr Orkopoulos' misconduct, the Speaker was liable to Ms Sneddon for breach of the duty of care that he owed to her as his employee.

The State's liability

140 The primary judge did not regard the admissions arising out of Mr Orkopoulos' failure to file a defence and the default judgment against him as binding the State. His Honour reasoned as follows:

"227 It is unnecessary to deal at length with the plaintiff's argument founded upon the entry of default judgment against the third defendant as I have found that he breached his duty of care to the plaintiff. I consider it convenient, however, to state that the plaintiff's argument on this issue was not, in my opinion, soundly based. I agree with the second defendant's submissions that the default judgment is interlocutory in nature and open to review in the light of evidence adduced during the hearing. When considering the case against the second defendant, the court is not obliged to act on admissions claimed to have arisen from the third defendant's failure to file a defence and the consequential obtaining of default judgment against him, but can act upon the evidence: Termijtelen v Van Arkel (1974) 1 NSWLR 525 per Hope JA at 529 - 531. It would be contrary to principle and a denial of procedural fairness if liability was found against the second defendant because the third defendant did not defend the case, but the plaintiff had not established his negligence."

141 Before considering the statutory bases of Ms Sneddon's claims against the State, the primary judge said:

"The facts in this case do not support a finding that the State, apart from liability under statute (if any), owed to the plaintiff a duty to take reasonable care to avoid harm or injury. The Speaker, as her employer, not the State, had a non-delegable duty to exercise reasonable care to provide a safe place of work" (Judgment [235]).

142 His Honour rejected Ms Sneddon's claim under the Crown Proceedings Act for the following reasons:

"240 The tortious acts of the third defendant were not committed in the course of the administration of his departments as Minister but when he was exercising an independent duty of care that the law imposed upon him: see [207] above and when he was acting as the Speaker's representative: see [226] above. His misconduct was not associated with the performance or purported performance of his function as a Minister and did not fall within the scope of his capacity or authority as a Minister of the Crown in right of the State.

...

243 Although the third defendant was, as a Minister, a member of the Government of New South Wales and the acts of the Government may be performed by the proper responsible Minister, none of his tortious acts were performed in the exercise or purported exercise of the powers of the Government and the Crown [see the definition of "Crown" in s 3] is not responsible for them. In my opinion, the Crown is not liable for the third defendant's misconduct unless vicarious liability is established under s 8 Law Reform (Vicarious Liability) Act, to which I now turn".

143 The primary judge gave the following reasons for rejecting Ms Sneddon's claim under the Law Reform (Vicarious Liability) Act 1983:

"253 Mahoney AJ referred [in Holly v Director of Public Works (1988) 14 NSWLR 140] to those persons who may act in the Crown's service because they have been appointed to an office in which they act in that way: for example a police constable, or to those persons who may act in the Crown's service because of a contract of employment made with the Crown. Neither a Minister of the Crown nor a Member of Parliament has been appointed to an office in the service of the Crown nor has either a Minister or a Member entered into a contract of employment with the Crown. Another consideration is that the Constitution Act 1902 makes reference to the appointment of Ministers of the Crown in s 35E and to the appointment of 'officers' in s 48. In s 48, an 'officer' is defined to mean:

'an officer in the service of the Crown or of an authority of the State, but does not include the Governor, the Lieutenant-Governor or other officer administering the government of the State, a member of the Executive Council, a Minister of the Crown or the holder of a judicial office' (italics added).

The definition of an officer in the service of the Crown does not include a Minister of the Crown.

254 My conclusion is that the third defendant as a Minister was a servant of the Crown and not in the service of the Crown.

255 I do not think that a Member of Parliament is a person in the service of the Crown. He is an elected representative of the people. The doctrine of responsible government is part of the Australian constitutional law: R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254; Egan v Chadwick [1999] NSWCA 176; (1999) 46 NSWLR 563. Spigelman CJ in Egan v Chadwick at [24] cited what was said by Isaacs J in Horne v Barber [1920] HCA 33; (1920) 27 CLR 494 at 500:

'When a man becomes a member of Parliament, he undertakes high public duties. Those duties are inseparable from the position: he cannot retain the honour and divest himself of the duty. One of the duties is that of 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 - censure which, if sufficiently supported, means removal from office. 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.'"

Damages

144 The only part of the primary judge's reasoning concerning damages that is challenged on appeal is that concerning non-economic loss. His Honour reasoned as follows:

"267 This head of damage does not apply to the first defendant. The plaintiff submitted that she was entitled to damages for non-economic loss assessed at 30 per cent of a most extreme case pursuant to s 16 CLA. Mr de Meyrick drew my attention to Dr Steele's assessment of 17 per cent whole person impairment and contended that an assessment under s 16 CLA must be higher as different considerations apply.

268 I am satisfied, however, that Dr Steele's assessment was over pessimistic and the plaintiff's impairment has diminished greatly since that time. The plaintiff is now very different to the lethargic, depressed and unmotivated person who was examined by Dr Steele on 3 June 2008.

269 The second defendant argued that the plaintiff's claim did not arise above the threshold of 15 per cent of a most extreme case. The current maximum amount recoverable for non-economic loss under s 16 is $500,500.00.

270 The task under s 16 CLA is to determine the severity of the plaintiff's economic loss by reference to a "most extreme case". An assessment under s 16 CLA includes pain and suffering and loss of amenities of life. Amongst the matters that bear upon the assessment of non-economic loss are; the plaintiff's hospitalisation for about a month in 2007 and that she has not fully recovered after some five years of illness. She is 54 years old. However, her recovery has been substantial and full recovery is, on the balance of probabilities, not too far away. I do not consider the plaintiff's non-economic loss to be 30 per cent of a most extreme case. I assess the severity of her non-economic loss to be 16 per cent of a most extreme case and award damages in the sum of $7,500.00 under this head."

145 As damages were to be awarded against both the Speaker (the employer tortfeasor) and Mr Orkopoulos (a non-employer tortfeasor) in respect of Ms Sneddon's psychiatric injury, the primary judge adjusted the damages pursuant to s 151Z(2) of the Workers' Compensation Act 1987.

Costs

146 In a separate judgment dated 3 August 2011, the primary judge made the following costs order in favour of Ms Sneddon against Mr Orkopoulos:

"The third defendant (Mr Orkopoulos) is to pay the plaintiff's costs for a half day hearing, plus preparation on the specific issue of the assessment of damages under the CLA. Such costs are to be assessed on an ordinary basis. He is also to pay the plaintiff's costs on the entry of default judgment in accordance with UCPR r 16.7."

147 His Honour's reasons for making this order were as follows:

"39 The plaintiff seeks an order against Mr Orkopoulos that he pay "the plaintiff's costs of these proceedings as agreed or assessed". The justice of the case requires that the plaintiff be entitled to the costs that she has reasonably and properly incurred against him. As has been mentioned at [2] above, Mr Orkopoulos took no part in the proceedings and default judgment was entered against him on 17 January 2011. He is not responsible for the length or the complexity of the defended hearing and I do not propose to make the order in the terms sought. Such an order would be unjust.

40 The plaintiff is entitled to costs on the entry of default judgment in accordance with UCPR r 16.7. Notwithstanding the entry of default judgment, the court, however, was obliged to assess damages under the CLA that the plaintiff was entitled to recover from Mr Orkopoulos.

41 It is difficult to be precise as to the time in the case that was devoted to this issue but it was not more than half a day (including submissions). An order appropriate to the justice of the case requires that Mr Orkopoulos pay the plaintiff's costs for a half day hearing, plus preparation on this specific issue."

148 I turn now to the resolution of the issues on appeal.

THE JUDGMENT AGAINST MR ORKOPOULOS

Effect of the default judgment

149 In her Statement of Claim, Ms Sneddon claimed damages from Mr Orkopoulos on a number of bases: the tort of negligence, breach of statutory duty and intentional torts consisting of assaults in Mr Orkopoulos' victimisation, bullying and harassment of Ms Sneddon.

150 As Mr Orkopoulos failed to file a defence, Ms Sneddon entered judgment for damages to be assessed, and for costs, under r 16.7 of the Uniform Civil Procedure Rules 2005 ("UCPR"). The assessment of those damages came on for hearing at the same time as the hearing of Ms Sneddon's claims against the Speaker and the State.

151 Rule 14.26(1) of the UCPR is in the following terms:

"(1) An allegation of fact made by a party in a pleading is taken to be admitted by any opposite party required to plead in response unless:

(a) in the pleading in response, the opposite party traverses the allegation, or

(b) a joinder of issues under rule 14.27 operates as a denial of the allegation."

152 The use of the word "the" in the expression in (a) "in the pleading in response" indicates that that sub-rule is concerned with a situation where a pleading is in fact filed, not one, as here, where there is a failure to file a responsive pleading. The point only arises in relation to a defence as r 14.27 expressly deals with the absence of a reply to a defence, providing that there is an implied joinder of issue on that defence. Thus, the consequences of failing to file a defence are in my view not dealt with by r 14.26 but by Part 16 of the UCPR concerning default judgment.

153 Ms Sneddon contended that the default judgment that she obtained constituted a binding determination in her favour on each of the liability issues raised by her statement of claim, including the claim that Mr Orkopoulos committed intentional torts. I do not accept this contention. The judgment was a determination that Mr Orkopoulos was liable to pay damages to Ms Sneddon on the basis of the claims made in her statement of claim. It did not decide that Ms Sneddon was entitled to succeed on each of those claims. The judgment was consistent with Mr Orkopoulos being liable in negligence only and not for any intentional torts or breach of statutory duty. In the language of Dixon J in Blair v Curran [1939] HCA 23; 62 CLR 464 at 532, a conclusion that Mr Orkopoulos had committed intentional torts, as alleged by Ms Sneddon in her statement of claim, was not "legally indispensable" to the default judgment: it was equally supportable, for example, by the claim that he committed the tort of negligence. Accordingly, the default judgment did not determine that Mr Orkopoulos had committed intentional torts and the primary judge did not err in examining the evidence before him to decide whether he had.

154 In any event the primary judge would not in my view have been bound to enter a monetary judgment which conflicted with the facts proved before him. As the primary judge pointed out (see [140] above) the default judgment, for damages to be assessed, was interlocutory in character. It did not constitute a final determination from which the judge ultimately disposing of the proceedings was unable to depart.

155 It is unnecessary to deal with additional bases upon which the State contended that the default judgment did not preclude the primary judge finding that Mr Orkopoulos had not committed intentional torts: first, that the Court should not act on admissions that do not conform with the facts proved by the evidence before the Court and, secondly, that any admissions made by Mr Orkopoulos would at most have been binding upon him, and not upon the State which should be regarded as a third party for this purpose.

156 Ms Sneddon conceded before the primary judge that, leaving aside the default judgment, the evidence did not establish that Mr Orkopoulos committed any intentional torts. Ms Sneddon did not seek to depart from this concession on appeal. Accordingly the primary judge correctly assessed damages upon the basis of Ms Sneddon's claim in negligence (the breach of statutory duty claim not being pressed) and in accordance with the limitations on damages imposed by the Civil Liability Act 2002.

157 As this Court does not have the benefit of the primary judge's views as to the damages that he would have awarded if, contrary to his view, they were to be assessed without regard to the limitations imposed by the Civil Liability Act, it is not appropriate for this Court to embark on that exercise when, on the view that I share, the provisions of the Civil Liability Act apply.

Damages for non-economic loss: s 16 Civil Liability Act

158 In the alternative to her submission that damages should not be assessed under the Civil Liability Act because Mr Orkopoulos committed intentional torts, Ms Sneddon challenged the primary judge's assessment of damages for non-economic loss under s 16 of the Civil Liability Act only on the following basis:

"It is submitted that a chronic psychiatric illness lasting 5 years, during which the plaintiff is assessed as being substantially incapacitated, and leading at one point to a period of a month in hospital, is of such a magnitude that 16 percent is an erroneously low assessment that is out of the range of reasonable assessments, and should be adjusted on appeal. In this regard, it is noted that the 15% threshold was intended to deny damages to trivial claims, and this intention must inform the Court as to the type of case that would be at or about 15% of a most extreme case" (Appellant's Written Submissions at [60]).

159 As noted above ([144]), the primary judge found that the severity of Ms Sneddon's non-economic loss was 16 per cent of the most extreme case.

160 The circumstances in which this Court will interfere with an assessment of non-economic loss are limited. They were described by McColl JA (with whom Tobias and Young JJA agreed) in Wynn Tressidder Management v Barkho [2009] NSWCA 149 at [110] - [111] (see also Mason v Demasi [2012] NSWCA 210 at [23]). Unless an error of principle can be shown, it is necessary for an appellant to demonstrate that the primary judge's conclusion was wholly unreasonable. Ms Sneddon has not demonstrated any error of principle nor made good her submission that the assessment "is an erroneously low assessment that is out of the range of reasonable assessments". I consider that the primary judge gave persuasive reasons for the conclusion at which he arrived (see [144] above) and that his assessment was within the range that was reasonably open to him.

WHETHER THE STATE IS VICARIOUSLY LIABLE

161 Ms Sneddon contended that the State is vicariously liable for the conduct of Mr Orkopoulos by reason of either the Crown Proceedings Act 1988 (see [135] above) or the Law Reform (Vicarious Liability) Act 1983 (the "Vicarious Liability Act": see [136] above).

162 I reject the contention based on the Crown Proceedings Act as, at least insofar as it applies in the present context, that Act simply facilitates the bringing of proceedings against the State where a cause of action already exists against the Crown. Unlike the Vicarious Liability Act, it does not create a cause of action, but assumes the existence of one founded upon other legislation or circumstances.

163 Ms Sneddon did not rely upon s 7 of the Vicarious Liability Act concerning the liability of a master for the conduct of a servant as she did not contend that Mr Orkopoulos was "a servant" of the Crown.

164 Instead she relied upon s 8(1) which imposes vicarious liability on the Crown in respect of certain torts committed by a person "in the service of the Crown in the performance or purported performance by the person of a function (including an independent function)".

165 She argued, first, that Mr Orkopoulos' negligent acts fell within the terms of s 8(1) because they were committed by him in his capacity as a Minister for the Crown. This submission must be rejected because the primary judge held that Mr Orkopoulos was not so acting when he committed the tortious acts (Judgment [240]) and on appeal Ms Sneddon offered no good reason to warrant a departure from that conclusion.

166 Secondly, Ms Sneddon contended that s 8(1) applied because Mr Orkopoulos engaged in conduct "in the course of his ... governmental duties, including the management of his electoral office and its staff" (Appellant's Written Submissions [14] referable to the Crown Proceedings Act but seemingly also referable to the Vicarious Liability Act). I accept this contention for the following reasons.

167 The parties accepted that Ms Sneddon was appointed by authority of an order under s 47 of the Constitution Act (see [131] above). Section 47 is concerned with appointments of public officers by the Executive Government. Under the section, significant appointments are effected by "the Governor with the advice of the Executive Council". Section 35B makes it plain that the Governor, acting with the advice of the Executive Council, is responsible for the government of the State and is therefore in this respect acting as part of the Executive Government.

168 Under s 47, responsibility for making "minor appointments" may be vested by order of the Governor and Executive Council, that is the executive branch of the polity, "in heads of departments or other officers or persons". Such a delegation occurred by the order of 2 May 1952 (see [131] above) vesting relevant power in the Speaker of the Legislative Assembly. In my view, the power so vested in the Speaker was to act on behalf of, or as part of the Executive Government, in appointing persons such as Ms Sneddon. That the Speaker otherwise had a role in the legislative branch of government did not preclude him from acting, in this respect, as part of the Executive Branch. An arguable corollary of this reasoning would be that Ms Sneddon's true employer was not the Speaker but the State, on whose behalf the Speaker was acting in appointing her. However as neither party to the appeal contended for this conclusion I do not make such a finding. Indeed Ms Sneddon's counsel expressly eschewed the proposition that the State was Ms Sneddon's employer (Appeal Transcript p 5).

169 A consequence of the reasoning which Ms Sneddon did embrace is that, in representing the Speaker in supervising and controlling Ms Sneddon's employment, Mr Orkopoulos was acting as the Speaker's delegate and, to that extent, performing the Speaker's functions as Ms Sneddon's employer. As the Speaker would have been acting as part of the Executive Government, and therefore the State, if he had performed those functions himself, Mr Orkopoulos was so acting when performing them as the Speaker's delegate. The State did not challenge the primary judge's conclusion (see [139] above) that Mr Orkopoulous acted as the Speaker's representative in this respect.

170 The "Crown" at least includes the executive branch of government (in this case, of the State: s 5(1) Vicarious Liability Act) (Foley v Ryder [1906] HCA 61; 4 CLR 422 at 432; Commonwealth v Western Australia [1999] HCA 5; 196 CLR 392 at [105] - [106]; Sue v Hill [1999] HCA 30; 199 CLR 462 at [83] - [94]; P Hogg, P Monahan and W Wright, Liability of the Crown, 4th ed (2011) Carswell [1.4]). Accordingly, the above analysis leads to the conclusion that in supervising and controlling Ms Sneddon, Mr Orkopoulos was acting as part of the Executive Government of the State. For the purposes of s 8(1) of the Vicarious Liability Act, Mr Orkopoulos was thus "in the service of the Crown". His tortious acts occurred "in the performance or purported performance" by him of a "function" (said by s 5(2) to include a reference "to a power, authority and duty") in circumstances that satisfied the first of the two conditions stated in s 8(1) (see [136] above). It was in the course of Mr Orkopoulos' service with the Crown, or an incident of that service, that he committed the tortious acts.

171 The consequence is that s 8(1) of the Vicarious Liability Act renders the State vicariously liable for the acts of Mr Orkopoulos upon which the judgment against him was founded.

172 The primary judge concluded that "none of [Mr Orkopoulos'] tortious acts were performed in the exercise or purported exercise of the powers of the Government and the Crown is not responsible for them" (Judgment [243]). For the reasons I have given, I do not consider this to be the case.

173 I emphasise that I do not find that, in discharging his legislative and parliamentary duties as a non-ministerial Member of the Legislative Assembly, Mr Orkopoulos was acting as part of the Executive Government of the State. I agree with Meagher JA's conclusion that he was not and was therefore not then acting in the "service of the Crown". Mr Orkopoulos was however doing so when he acted as a representative of Ms Sneddon's employer, the Speaker, in supervising and controlling her employment.

174 In conclusion on this topic I note that, by a Notice of Contention, the State contended that s 8(2)(a) of the Vicarious Liability Act precluded a finding that it was vicariously liable for Mr Orkopoulos' conduct. That provision relevantly states that s 8(1) does not apply to torts committed by a person in the conduct of an activity "carried on by the person on the person's own account". It follows from my earlier comments that Mr Orkopoulos committed torts not "on his own account", but whilst acting as the Speaker's representative. Accordingly, the State fails on its Notice of Contention.

COSTS AT FIRST INSTANCE

175 Ms Sneddon contended that even if her other arguments failed, the limited costs order made by the primary judge in her favour against Mr Orkopoulos (see [123] above) should be replaced by an order that Mr Orkopoulos pay her costs generally of the hearing at first instance.

176 In my view this contention should be rejected. The primary judge's order limited Mr Orkopoulos' liability for costs to those relating to a half-day hearing, plus preparation on the issue of the assessment of damages under the Civil Liability Act. This was in my view appropriate as it was the conduct of the Speaker and the State in contesting the proceedings against them that led to the hearing lasting much longer. It was well open to his Honour to conclude that Mr Orkopoulos was not responsible for the length or the complexity of the hearing and that if the hearing had related to Mr Orkopoulos alone it would not have occupied more than half a day.

ORDERS ON APPEAL

177 For the reasons I have given, the judgment against Mr Orkopoulos should not be increased but judgment should be entered against the State for the same amount as the judgment entered against Mr Orkopoulos at first instance ($438,613.75) as the State is vicariously liable for the relevant conduct of Mr Orkopoulos. Whilst Ms Sneddon has been successful upon this issue, she has been unsuccessful in her attempts to justify the entry of judgment in a greater amount against Mr Orkopoulos (and therefore also against the State). In these circumstances I consider that the State should be ordered to pay 50 per cent of Ms Sneddon's costs of the appeal and, as Ms Sneddon should have obtained a substantial judgment against it at first instance, the State should be ordered to pay Ms Sneddon's first instance costs generally.

178 I propose the following orders:

(1) Grant leave to appeal.

(2) Appeal in relation to the first respondent allowed.

(3) Set aside the judgment in favour of the State against Ms Sneddon ordered on 2 June 2011.

(4) Judgment for Ms Sneddon against the State in the amount of $438,613.75, to take effect from 2 June 2011.

(5) Dismiss the appeal in relation to the second respondent.

(6) Set aside order (2) made at first instance on 3 August 2011 that Ms Sneddon pay the costs of the State on an ordinary basis.

(7) Order the State to pay Ms Sneddon's costs of the proceedings at first instance.

(8) Order the State to pay 50 per cent of Ms Sneddon's costs on appeal.

179 MEAGHER JA: There are four areas of controversy in this appeal. They concern the State's notice of motion to review the judgment and orders of Barrett JA as to the competency of the appeal, the assessment of damages payable by Mr Orkopoulos, the liability of the State for Mr Orkopoulos' tortious conduct and the costs order made by the primary judge.

Leave to appeal not required

180 The State sought an order dismissing the appeal as incompetent. Barrett JA dismissed that application. The State sought a review of that judgment and order. For the reasons given by Basten JA, I agree that the State's motion for review should be dismissed with costs. The appellant does not require leave to appeal.

Assessment of damages

181 The primary judge held in the contested proceedings between the appellant, the Speaker of the Legislative Assembly and the State that the appellant had not established that Mr Orkopoulos' conduct was intentional: [181]. That conclusion is not challenged on appeal. However, the appellant argues that the default judgment for damages to be assessed which was entered against Mr Orkopoulos constituted a binding determination in her favour on the liability issues raised by her statement of claim, which included an allegation that Mr Orkopoulos' tortious conduct was intentional. It follows, the appellant says, that the primary judge erred in not assessing damages on that basis and relevantly unconstrained by ss 16 and 21 of the Civil Liability Act.

182 Separately, the appellant argues that the primary judge erred in assessing non-economic loss.

183 The default judgment against Mr Orkopoulos was entered under UCPR r 16.7(1) "for damages to be assessed". The appellant relied upon that judgment as determining that Mr Orkopoulos had committed an intentional tort with the result that damages should be assessed under UCPR Part 30 on that basis.

184 That default judgment was not a final judgment because it was for damages to be assessed. For that reason it could not give rise to any issue estoppels as between the appellant and Mr Orkopoulos: Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767; Equuscorp Pty Ltd v Haxton [2012] HCA 7; 86 ALJR 296. However, the question here is not whether the appellant had the benefit of any issue estoppel but whether that default judgment determined the issue as to Mr Orkopoulos' liability "in respect of an intentional tort". In my view, it did not. That is for the same reason that the judgment, even if it had been a final, albeit default judgment, could not have given rise to an estoppel on that issue as between the appellant and Mr Orkopoulos.

185 A default judgment can only give rise to issue estoppels in respect of what must "necessarily and with complete precision" have been thereby determined: Blair v Curran [1939] HCA 23; 62 CLR 464 at 531-532; Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 at 1012; New Brunswick Railway Co v British & French Trust Corporation Ltd [1939] AC 1 at 21; Spencer, Bower & Handley, Res Judicata, 4th ed (2009) Lexis Nexis at para 2.23.

186 The appellant's statement of claim pleaded, in the alternative against Mr Orkopoulos, causes of action for negligence, breach of statutory duty and intentional tort. An allegation that conduct consisting of acts or omissions was negligent is inconsistent with an allegation that the same conduct was intentional. The latter allegation is that the acts or omissions were done wilfully whereas the former is that they were done unintentionally but without sufficient care. Because the allegations were made in the alternative it cannot be said that the default judgment necessarily decided the issue as to negligence or that it necessarily decided the issue as to intentional tort. The allegations are inconsistent and each was sufficient to found the default judgment. It follows that the fact of the default judgment could not and did not determine the precise basis on which Mr Orkopoulos was liable: see also the treatment of the relevant principles in relation to issue estoppels in McConnell v Lombard & Ulster Banking Ltd and R R Bigscreen Services Ltd [1982] NI 203 at 206-208. The primary judge did not err in proceeding to assess damages as between the appellant and Mr Orkopoulos on the basis that the default judgment had not determined that Mr Orkopoulos was liable in respect of an intentional tort. In the absence of any challenge to his Honour's finding that the conduct was not intentional, the primary judge was correct to assess damages on the basis that the Civil Liability Act applied.

187 The primary judge assessed the appellant's non-economic loss as being 16 per cent of a most extreme case. The appellant argued that the assessment of 16 per cent was manifestly inadequate. It was not submitted that in arriving at that assessment the primary judge acted upon any wrong principle. I am not persuaded that this assessment was outside the range of reasonable assessments. I agree with Macfarlan JA that this challenge should be dismissed.

Liability of the State for Mr Orkopoulos' tortious conduct

188 The appellant argues that the State is liable for the tortious conduct of Mr Orkopoulos. That argument is put in a number of ways.

189 First, 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.

190 That 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.

192 Before 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).

193 Secondly, 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").

194 The 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).

195 The 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.

196 The 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).

197 The 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.

198 The 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").

199 The 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."

200 The 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).

201 Noting 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).

202 The 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)

203 It 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.

204 The 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).

205 The 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].

206 Public 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).

207 Nonetheless, 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.

208 The 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).

209 The 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.

210 A 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.

211 In 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).

212 In 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).

213 It 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.

214 New 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.

215 Members 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].

216 The 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.

217 The 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.

218 The 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.

219 The 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."

220 These 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.

221 Having 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)

222 Their 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.

223 Notwithstanding 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".

224 A 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".

225 The 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].

226 Addressing 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".

227 It 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.

228 The 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".

229 That 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].

230 It 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.

231 In 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].

Costs at first instance

232 I agree with Macfarlan JA that the primary judge's order limiting Mr Orkopoulos' liability for costs to those relating to a half-day hearing did not, as an exercise of discretion, involve error.

Proposed orders

233 The orders which I would propose be made are as follows:

(1) The first respondent's (State's) motion to review the decision of Barrett JA be dismissed.

(2) The appellant's application for leave to appeal be dismissed.

(3) The first respondent pay the appellant's costs of that motion and of the appellant's application for leave to appeal.

(4) Appeal against the second respondent (Mr Orkopoulos) be dismissed.

(5) Appeal against the first respondent (the State) be dismissed.

(6) The appellant pay the first respondent's costs of the appeal.

**********

Amendments

02 November 2012 - Inadvertent omission of minor changes
Amended paragraphs: [184], [190], [193], [195], [203] [205] and [221]

Decision last updated: 02 November 2012