This is a part of The Worker’s Liens Casebook, by Robert Fenwick Elliott. Copyright © 2010
Copies of text of no more than 500 words may be made, provided they are accompanied by due attribution.
- The Worker’s Liens Act 1893 of South Australia is something of a living legal dinosaur. It is essentially a hangover from the pioneering days of the 19th century.
Terminology
- In the cases, “lienor” means the party seeking the benefit of the lien, and “lienee” means the owner whose title is affected by the lien. The word “lienor” is so used in the title to section 31 of the Act and on the prescribed forms of Notice. But in The Artificer’s Lien, RD Elliott uses these terms the other way around. This has sometimes caused confusion[1]. In the commentary and headnotes in this casebook, the more neutral word “claimant” is generally used to describe a party claiming a lien and/or a charge, and the term “owner” is generally used to describe the person in respect of whose title a lien is sought.
- In the context of the Act, “Notice of Demand” means notice under section 10(2)(a)[2] and “Notice of Lien” means notice under section 10(3) [3].
- In the commentary in this casebook:
- “Act” means the Worker’s Liens Act (SA) as amended from time to time, including the Act when it also applied in the Northern Territory;
- “bare supplier” means a party who supplies materials, but does not himself execute any construction work using those materials;
- “charge” means a charge under the Act; and
- “Claimant” means a party claiming a lien and/or a charge under the Act.
The Name of the Act
- The Act was originally called the Workmen’s Liens Act 1893. In 1988, the name was changed to the Worker’s Liens Act. This change was presumably intended as a gesture of gender neutrality, although it was an entirely empty gesture since neither workman not workwoman had invoked the Act for many decades. The Hansard record[4] shows an intention to rename the Act as the Workers Liens Act, but in fact it came out as the Worker’s Liens Act, the apostrophe improbably suggesting that one worker might enjoy several liens. In the cases, it is referred to much more often as the Workers’ Liens Act (which makes rather more sense, and follows the original name grammatically) or simply as the Workers Liens Act. Section 4 is headed “Workers’ Liens”. In practice, no-one seems to care if there is an apostrophe or not, or where it is placed.
Latin Tags
- The authorities on the Act are rich in the use of Latin and sometimes Norman French legal expressions. For readers who are too young to have been compelled to learn Latin at school, the following guide is offered:
| ab initio | From the beginning |
| contemporanea expositio est optima et fortissima in lege | A contemporaneous exposition is the best and most powerful in the law |
| cf.; confer | Compare |
| casus omissus | An omitted case |
| casus omissuset oblivioni datus dispositioni juris communis relinquitur | When there has been a casus omissus in a statute, the subject is ruled by the common law |
| cestui que trust | the beneficiary of an estate held in trust |
| debitum in praesenti, solvendum in future | A debt due at present, to be paid in future |
| de minimis | Of minimal importance |
| de minimis non curat lex, | “the law cares not for small things” |
| Elegit | a writ of elegit requires the Sheriff to deliver to the judgment creditor the chattels of the debtor (except oxen and beasts of his plough) and one half of his lands |
| et seq | And following |
| ex hypothesi | By hypothesis |
| ex tempore | Without delay; a judgment delivered immediately upon conclusion of the parties’ cases |
| falsa demonstratio non nocet | A false or mistaken description does not vitiate |
| in banco | Sitting as a full court |
| indebitatus | Debt |
| indebitatus assumpsit | An action for recovery of a sum due pursuant to a contract |
| in future | In the future; typically as at some past point in time. |
| in limine | In law |
| in medio | In the middle; as held by a stakeholder |
| in praesenti | In the present; typically as at some past point in time. |
| Lis | Litigation |
| Messuage | a dwelling-house, including out-buildings, orchards, etc |
| obiter dictum | a remark or observation made in a judgment does not form a necessary part of the court’s decision |
| omnia praesumuntur rite esse acta | All things are presumed to be done in due form |
| pari passu | By the same gradation |
| per incuriam | “through lack of care”; a judgment of a court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant |
| pro tanto | For so much; as far as it goes |
| profit a prendre | A entitlement in the nature of rent where there is no lease |
| quantum meruit | What it is worth; a claim for the value of work done where there is no contract or contractual entitlement to payment |
| qui facit per alium, facit per se | He who does something through an agent, does it for himself |
| ratio decidendi | “The ratio decidendi of a case is any rule of law expressly or implicitly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or as a necessary part of his direction to the jury; ”Cross, Precedent in English Law |
| scil.; scilicet | That is to say; namely |
| simpliciter | simply; without any qualification or condition |
| stricto sensu | In its strict sense |
| Viz | See |
[1] See for example Blythe Green and Jordain (Trading) Pty Ltd v Sienna Pty Ltd, where Rice J suggests that RD Elliott had used the terms the wrong way around, and referred to with accepted legal usage and drafting terminology (see Jessup’s Lands Titles Office: Forms and Practice, 6th ed, by Maher at p 294 and note 2 at p 295.) But RD Elliott plainly used the language as he did deliberately, following the accepted usage that “mortgagor” means a party whose property is mortgaged, and “mortgagee” means the party entitled to the benefit of the mortgage and at paragraph 19 of the decision of Cearney J in Jovista v Pegasus, the Court indicated that “Lienee” is the correct term for the Lien holder, notwithstanding that the cases usually refer to him as the Lienor.
[2] See page 121 below.
[3] See page 121 below.
[4] See page 807 below.