Commonwealth v Bogle
89 CLR 229(Decision by: Webb J) Court:
Judges:
Dixon CJ
McTiernan J
Williams J
Webb JFullagar J
Kitto J
Taylor J
Judgment date: 13 March 1953
Decision by:
Webb J
In all three cases I agree with the answers proposed by Fullagar J. and substantially for the reasons given by his Honour but I wish to add a few words.
It is not contested that the Commonwealth can employ as its servant a company incorporated under the laws of a State. However I do not think that this company is the servant of the Commonwealth. One naturally looks for a clear indication of an intention to do such an unusual thing as to employ a company as a mere servant of the Commonwealth, and I can find no such indication. I am unable to regard the agreement between the company and the Commonwealth as constituting the former merely the manager of the latter. The appointment of a manager is not ordinarily effected in such form. In my opinion the terms of the agreement reveal the company to be an independent contractor for the supply of board and lodging to specified persons who seek it from the company. It is true that the combined effect of the memorandum and articles of association of the company and the agreement is that the Commonwealth controls the exercise of the powers and the scope of the operations of the company; but it is not true that the Commonwealth controls the manner of performing those operations to such an extent as to make the company its servant. In all essential particulars the position of the company under the agreement appears to me not to be different from what it would be if the company were an ordinary hotel keeper or boarding house keeper.
To meet the point that the company is an independent contractor there seems to be no alternative but to contend that the company is at most only apparently so; and that, having regard to its memorandum and articles of association, it is really the Commonwealth in the guise of a Victorian company limited by guarantee. To establish that contention it is necessary either to deny the incontestable, that is, that the company is a separate entity; or to prove that the company is in fact a mere puppet, whatever the documents may represent; but as to this there is no evidence.
No assistance can, I think, be derived from the cases dealing with specially created statutory corporations, such as railway and education commissioners. Their position in relation to the Crown always depends on the terms of the particular statutes.
In my opinion then this company, like other companies, is bound by the landlord and tenant and price fixing legislation of the States. However, the relevant landlord and tenant legislation is not applicable to the facts stated in any of the three cases.