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.
This Act may be cited as the Worker’s Liens Act 1893.
In this Act, where not inconsistent with the context, the following terms have the following meanings:
contract means any agreement, whether written, oral, or implied, to do work or to procure work to be done, or to furnish materials in connection with work, or to pay for work, or for materials furnished or to be furnished in connection with work;
contract price means the money payable to any contractor or sub-contractor for any work, or materials furnished or to be furnished in connection with work, under any contract, and whether such price has been fixed by express agreement or not;
contractor means a person (not being a sub-contractor) contracting with or employed by another person to do work, or to procure work to be done, or to furnish materials in connection with work;
court in the case of an action in the Supreme Court or District Court includes a judge of the court, and in the case of an action in the Magistrates Court includes a magistrate;
fixture means such a fixture upon land as, having been attached to such land by the vendor, would pass to the purchaser upon the sale of the fee simple of the land;
goods includes all produce of land when severed from the land;
owner means the owner of the legal or equitable fee simple of land;
occupier means the lessee, sub-lessee, tenant, or occupier for the time being of land other than the owner thereof;
prescribed means prescribed by regulation made under this Act;
regulation means a regulation made under this Act;
sub-contractor means a person contracting with or employed by a contractor or sub‑contractor to do work, or to procure work to be done, or to furnish materials in connection with work for the purposes of the contract made by such contractor or last-mentioned sub-contractor;
the Real Property Act means the Real Property Act 1886 and any Act or Acts amending the same or substituted therefore;
wages means money to which a worker is or may be entitled for manual work or personal service, and whether to be ascertained by time or by the piece, and whether at a fixed price or rate or otherwise;
work means every description of manual work or personal service;
worker means every person employed in or doing any manual work or personal service.
(1) A worker doing work for an owner or occupier, or for a contractor or sub-contractor for the benefit of an owner or occupier, shall have a lien for his wages for such work on the estate or interest in land of the owner or occupier in each of the following cases:
(a) Where the work is done with the assent, express or implied, of the owner or occupier to the land or to any fixture thereon:
(b) Where the work is done in or about the manufacture of materials which are, with the assent, express or implied, of the owner or occupier, used or intended to be used in or about work done, or intended to be done, to the land or to any fixture thereon.
(2) A worker employed upon land and doing work there for the owner or occupier thereof in connection with pastoral, agricultural, horticultural, or mining pursuits carried on upon such land shall have a lien on all goods on such land belonging to such owner or occupier, but such lien shall not avail against the title of a bona fide purchaser, mortgagee, pledgee, or incumbrancee without notice of such lien.
(3) A lien under this section shall be limited to four weeks’ wages or wages for work not occupying more than four weeks, not exceeding in either case the sum of two hundred dollars.
A contractor or sub-contractor shall have a lien for the contract price, so far as accrued due, on the estate or interest in land of any owner or occupier in each of the following cases:
(a) Where the work is done, with the assent, express or implied, of the owner or occupier to the land or to any fixture thereon:
(b) Where the materials are, with the assent, express or implied, of the owner or occupier, used or intended to be used in or about work done, or intended to be done, to the land or to any fixture thereon.
Liens under subsection (1) of section 4 or under section 5 shall not, in cases other than those of workers employed by the owner or occupier, extend beyond that portion of the contract price payable by the owner or occupier under the contract for the purposes of which the work or materials are done, furnished, or manufactured and unpaid at the time when the owner or occupier shall receive notice of the lien or of its registration, whichever shall first happen, nor extend at all to cases where there is no such contract binding the owner or occupier to pay a contract price.
(1) A worker shall have a charge on any money payable to the contractor or sub-contractor by whom he is employed for his wages in respect of work done for the purposes of the contract of such contractor or sub-contractor .
(2) A sub-contractor shall have a charge on any money payable to the contractor or sub-contractor with whom he shall have contracted for that portion of the contract price payable to the first-mentioned sub-contractor in respect of work done or materials furnished or manufactured for the purposes of the contract of such contractor or secondly mentioned sub-contractor.
(3) A charge under this section shall attach only to money payable under the contract for the purposes of which the work or materials have been done, supplied, or manufactured, and shall lapse unless an action be brought to enforce the same within twenty-eight days after the wages or contract price in respect of which such charge has arisen shall have become due within the meaning of section 10, subsection (2). Such action shall not be discontinued without the consent of the defendant or an order of the court, and the court on making such order may declare that any charge claimed does not exist or order that it shall forthwith lapse, or that the plaintiff have further time to bring a fresh action to enforce the charge.
(4) The charge of a worker under this section shall be limited to four weeks’ wages or wages for work not occupying more than four weeks, not exceeding in either case the sum of two hundred dollars.
(5) A charge under this section shall not avail as to any moneys bona fide paid over without notice of such charge.
(1) The several liens and charges created by this Act shall have priority in the following order:
(a) the liens and charges of workers for wages;
(b) the liens and charges of sub-contractors;
(c) the liens of contractors.
(2) As between themselves, persons belonging to each of the said three classes shall, subject to the provisions hereinafter contained, participate ratably in the benefits of their liens or charges.
A lien under this Part of Act shall be subject to every dealing, assurance, mortgage, encumbrance, or charge on the estate or interest in the land of the owner or occupier, or on the goods the subject of the lien, registered before the registration of such lien, but shall take priority of any dealing, assurance, mortgage, encumbrance, or charge not so registered.
No unregistered estate or interest shall prevail against a registered lien.
Section 9B—Liens for materials
Liens shall be had under this Act for materials furnished, although such materials may not be furnished in connection with work.
(1) A lien under this Act with regard to land shall be available only if registered before the expiration of twenty-eight days after the wages or contract price in respect of which such lien has arisen shall for the purposes of this section have become due.
(2) Any wages or contract price shall for the purposes of this section be deemed to have become due—
(a) if unpaid for seven days after the same (being payable) shall have been demanded by notice in writing, signed by the person claiming the same and given to the person liable to pay the same, or posted in a registered letter addressed to him at his usual or last known place of abode in South Australia:
(b) if either before or after the same shall have become payable, the person liable to pay the same shall have called a meeting of his creditors, or committed an act of bankruptcy, or executed a deed of assignment within the meaning of the Bankruptcy Act 1924 of the Commonwealth, or shall have taken or attempted to take the benefit of any law relating to bankrupts or insolvent debtors, or shall have suffered his goods to be taken in execution or seized under legal process or distress for rent.
(3) A lien shall be registered by the person claiming the same lodging in the General Registry Office a notice in the prescribed form and accompanied by the prescribed fee, which notice shall be signed by such person and attested.
(4) A lien may be registered after the wages or contract price have become payable, although the seven days mentioned in subsection (2) shall not have commenced to run.
(5) Notices of lien under this Act shall state the court in which action will be brought to enforce the same, and any person to whom notice is given may deposit the amount claimed in such court to abide the event of such action, and thereupon the lien shall be deemed to cease.
Upon the lodging of such notice the Registrar-General shall—
(a) where the estate or interest of the owner or occupier sought to be affected by the lien is registered under the Real Property Act, make a memorandum of such notice and the day and hour of the lodging thereof upon the folium of the Register Book on which such estate or interest is registered, and shall send a copy of such notice through the post addressed to the owner or occupier at his address as appearing in the Register Book;
(b) where the estate or interest of the owner or occupier sought to be affected by the lien is not registered under the Real Property Act, make a memorandum on such notice of the day and hour of the lodging thereof, and send a copy of such notice through the post addressed to the owner or occupier at his address as given in the notice.
A notice lodged in respect of land under the provisions of the Real Property Act shall be deemed to be a caveat forbidding the registration of any dealing with the estate or interest sought to be affected by the lien, unless such dealing shall be expressed to be subject to the claim of the person lodging the notice, and the provisions of the Real Property Act relating to caveats shall, so far as applicable and so far as consistent with this Act, apply to every such notice.
All notices of lien lodged in the General Registry Office shall be numbered consecutively, and the Registrar-General shall keep an alphabetical index containing the names of all persons giving notices of liens and of the persons named in such notices as owners or occupiers.
All notices of lien, and the indexes thereof, shall be open to inspection by any person during the hours and upon the days appointed for search in the General Registry Office, upon payment of the prescribed fee.
Every lien under this Act upon the estate or interest of any owner or occupier shall cease unless an action shall be brought against the owner or occupier for enforcement of the lien within fourteen days from the registration thereof.
The Registrar-General upon payment of the prescribed fee and proof to his satisfaction that any person who has registered a lien has failed in an action to enforce the same, or that no such action has been brought by him against the owner or occupier within fourteen days from registration or having been so brought has been discontinued without an order of the court giving further time to bring a fresh action to enforce the lien, which order the court is empowered to make, or that any claim made or judgment obtained against the owner or occupier has been satisfied by payment or otherwise, or in any case where the owner or occupier shall have deposited with the Registrar-General the amount claimed in respect of the lien, either in discharge of such lien or to abide the event of an action to enforce the same, or to recover the amount so deposited, shall make on the proper folium of the Register Book if the lien is registered there or otherwise on the notice of lien a memorandum that the lien has ceased, and upon such entry the lands affected by such notice shall be discharged from the lien.
If the Registrar-General shall refuse to make the memorandum that any lien has ceased, the owner or occupier may apply to a judge of the Supreme Court or District Court or a magistrate in a summary manner to direct the Registrar-General to make such memorandum, and notice of such application shall be given by posting the same in a registered letter two clear days at least before such application shall be heard to the person who has given the notice of the lien to his address mentioned in such notice, and he shall be entitled to be heard on the application.
Upon the hearing of such application the judge or magistrate may make such order in respect thereof as shall be just and the Registrar-General shall obey such order, and the costs of and incidental to such application shall be in the discretion of the judge or magistrate.
(1) Any person entitled to a lien under section 4 subsection (2) hereof may give to the owner or occupier, his manager, or overseer, or leave for him at his residence or place of business, or may send to him by registered letter to his last known address, a notice in writing, demanding payment of the wages due to him, and stating the amount thereof and the nature of the claim; and from the giving or leaving of such notice such goods shall not be removed by the owner or occupier, or any person on his behalf, from the land until the wages of such person, to the extent of his lien, have been paid, or an agreement permitting the removal of the goods shall have been made.
(2) Every such person shall, within fourteen days after giving or leaving such notice, commence an action to enforce his lien, otherwise such lien shall cease.
Section 20—Mortgagee may pay wages or contract price and may recover wages or contract price paid by him
Where a lien under this Act attaches to the estate or interest in land of any owner or occupier or to any goods any person interested in such land or goods as mortgagee, incumbrancee, or pledgee, whether his interest is or is not subject to such lien, may pay the wages or contract price in respect of which the lien exists, together with all costs, charges, and expenses of and incidental thereto, and shall, on demand, be entitled to recover the same from the mortgagor, encumbrancer, or pledgor, together with interest thereon, at the rate of eight per centum per annum, calculated from the date of payment, and the moneys so paid with interest as aforesaid, shall be a charge on the estate or interest or the goods as if originally portion of the moneys secured by the mortgage, encumbrance, or pledge.
Any person entitled to a lien or charge under this Act may bring an action to enforce such lien or charge, or to recover any amount deposited under section 16, in any court in which the wages or contract price in respect of which such lien or charge is claimed could have been recovered against the person primarily liable therefore.
In case of deposit under section 16 of the amount claimed in respect of a lien, an action to recover the amount so deposited may be brought within fourteen days from the registration of the lien, but not after, and if such action be not so brought the amount so deposited shall be repaid by the Registrar-General to the person who deposited the same.
In every action to enforce a lien or charge or to recover an amount deposited under section 16, the person primarily liable for the wages or contract price may be joined as a defendant unless judgment has already been obtained against him, and judgment in such action shall be given against the person primarily liable for the full sum due by him, and an order shall be made for the enforcement of the lien or charge, or the payment of the money deposited or otherwise in relation thereto as shall be just, but shall not prejudice the right of the plaintiff to enforce any other lien or charge to which he shall be entitled under this Act.
When a judgment has been obtained against the person primarily liable for wages, or contract price or part thereof, the production of a certificate of such judgment specifying such wages or contract price or part thereof and purporting to be signed by the proper officer of the court in which such judgment has been obtained, shall in all cases be prima facie proof that the wages or contract price or part thereof in respect of which such judgment has been obtained are due.
(1) An order for the enforcement of a lien or liens may be carried into effect by a writ or warrant from the court for the sale of the estate or interest in land or the goods the subject of the lien.
(2) An order for the enforcement of a charge may be carried into effect in like manner as a judgment of the court making the order by execution against the goods and land of the person against whom such order shall be made.
(3) Any order for the payment of money deposited under section 16 shall be obeyed by the Registrar-General, who need not, however, be a party to the action.
(1) In case of an action to enforce a lien the person against whose property such lien is sought to be enforced or any person interested in such property may by payment into court of the amount claimed in respect thereof relieve himself and the property from liability with regard to the lien or in respect of the costs of further proceedings.
(2) In case of an action to enforce a charge the person against whom such charge is sought to be enforced may by payment into court of the amount claimed in respect thereof relieve himself of all further liability in respect of such charge or in respect of the costs of further proceedings.
In case of an action to enforce a lien or charge the court in which such action is brought may, upon the application of any party with or without notice to any other party, make any order for the detention, preservation, or inspection of any property concerned, and may for any purpose ancillary or incidental to the action authorise any person to enter upon or into any land or building in the possession of any party to the action.
In any action to enforce a lien or charge—
(a) the claims of any number of persons may be included and claims against any persons interested in the subject matter of the action or in any contract or sub-contract out of which the claim in the action arises may be included, but if it appears to the court that any of such claims cannot conveniently be tried or dealt with in such action the court may order separate trials or separate actions in respect of any of such claims;
(b) the court may deal with any claim relating to or connected with the original subject of the action and made by any party to the action against any person whether already a party to the action or not, who shall have been duly served with notice in writing of such claim in accordance with the rules of the court, and may grant relief in respect of such claim as if such person had been defendant to an action under this Act. Every person so served with notice shall thenceforth be deemed a party to such action, and shall have the same rights in respect of his defence against or counter-claim to such claim and with respect to any claim over against any other person as if he had been a defendant to such action and the party claiming against him had been plaintiff.
Any person claiming to be interested in the subject matter of an action under this Act may apply to the court to be made a party to the action, and the court may make such order in respect of such application and of the subsequent proceedings in relation to such person as shall be just.
(1) Any person who has obtained an order for the enforcement of a lien under this Act upon any goods subject to a registered mortgage may pay the mortgagee, who shall receive, the principal moneys secured by his mortgage, with interest up to the date of such payment, at the rate provided for in such mortgage, notwithstanding the principal moneys shall not be due, or may pay such principal moneys and interest into the court making the order, which court shall on application by the mortgagee order payment thereof to him.
(2) On payment to the mortgagee or into court under subsection (1) the goods shall be discharged from the mortgage, but the sum secured by the lien shall be increased by the amount so paid, and the order for the enforcement of the lien shall be enlarged accordingly.
(3) Any principal moneys paid under subsection (1) shall carry interest in favour of the person paying the same at the same rate as under the mortgage.
Any person alleging that he is prejudicially affected by a claim, lien, or charge, or by registration under this Act, may at any time apply to the court to have such claim or registration cancelled or the effect thereof modified, and such order may be made as may be deemed just.
If any person vexatiously or without any reasonable grounds, and with intent to defraud, gives notice of claim, lien, or charge, or registers any lien, such person shall be guilty of an offence against this Act, punishable, on summary conviction, by a penalty not exceeding one hundred dollars or by imprisonment for a term not exceeding six months.
If any person vexatiously or without any reasonable grounds gives notice of claim, lien, or charge, or registers any lien, such person shall be liable to pay to any person prejudicially affected thereby such compensation not exceeding twenty dollars, as a court on a summary application may fix and determine.
Nothing in this Act shall affect the provisions of the law for the time being relating to the jurisdiction and practice of a court, except where inconsistent with this Act or any regulation made hereunder.
The costs of all proceedings shall be in the discretion of the court in which such proceedings are taken, which may also make such order as it shall deem just in reference to proceedings preliminary to action in relation to the registration or discharge of liens and the giving of notices and otherwise, but, unless a court having jurisdiction in the matter shall for good cause otherwise order, any owner or occupier may charge upon and deduct from any contract price payable by him, as specified in section 6, his reasonable cost of obtaining the discharge of any lien and the making of a memorandum by the Registrar-General that any lien has ceased.
The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act.
Every person who has bestowed work or materials upon any chattel or thing in altering the condition thereof, or improving the same, and who is entitled to a lien on such chattel or thing at common law, may, while such lien exists, if the amount due to him in respect of such lien remains unpaid for one month after the same has become due, sell such chattel or thing by public auction, upon giving to the owner thereof, or posting to him at his last known place of abode in South Australia fourteen days before such sale, a notice in writing, by registered letter, stating the amount of the debt, a description of the chattel or thing to be sold, the time and place of sale, and the name of the proposed auctioneer.
(1) Upon any sale under the last preceding section the proceeds arising therefrom shall be applied in payment of the amount in respect of which such lien exists, and of the costs of and incidental to such sale, and any surplus shall forthwith be paid to the Magistrates Court to be held for the benefit of the person entitled to it.
(2) The Magistrates Court may, on the application of the person entitled to the surplus, order payment of the surplus to the person.
Whenever any contract shall hereafter provide for payment of wages to any worker at longer intervals than from month to month, the wages of such worker shall, notwithstanding such provision, be deemed to be payable monthly, computing from the date of the commencement of the work.
Nothing in this Act shall prejudice any other remedy which any person may have in respect of any contract price or wages payable to him.
If any person, after a demand has been made, as provided by section 19, shall conceal, sell, kill, remove, or destroy any goods upon which any worker has a lien under this Act with intent to deprive such worker of his lien, or to delay such worker in the enforcement thereof, or in obtaining payment of his wages, he shall be guilty of an offence against this Act, punishable on summary conviction by a penalty not exceeding one hundred dollars, or by imprisonment for a term not exceeding six months.
The Registrar-General and every officer under him shall be liable to the same penalties and consequences for neglect or default in respect of the duties imposed by this Act as if such duties were imposed under the Real Property Act.
Nothing in this Act contained shall create or give any right or remedy against land vested in Her Majesty or in any person for or on behalf of the Government or increase or change the liability of Her Majesty, or of any person procuring the performance of work for or on behalf of the Government and, except as between the contractors, sub-contractors, and workers, this Act shall not apply to such work.
Notwithstanding the provisions of the Real Property Act 1886 this Act shall apply to land subject to the provisions of the said Real Property Act.
 This is not the original name of the Act; it used to be called The Workmen’s Liens Act 1893.
 See paragraph 59 above for a discussion of this term.
 See paragraph 70 above for a discussion of this term.
 “Contractor” here is not used in the sense of “contracting party” so as to include the owner; Ready Mixed Concrete v Constructions (Broken Hill).
 In this instance, “land” does not mean an interest in land but means the soil itself: see Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 2) (1987) 162 CLR 153 at 162-163 and Pegasus Gold v Metso Minerals at paragraph 29; see page 464 below.
 Originally £12
 Does this mean payable to the head contractor? In Albert Del Fabbro v Wilckens & Burnside, Bright J thought not at first instance, but the Full Court’s decision indicates that “payable” in this context must mean payable to the head contractor.
 In subcontractor cases, this means the head contract. See Aberdine v Vineyard Estate Management.
 See para 163 above for the modern irrelevance of workers’ charges.
 Originally £12
 See paragraph 190 above for the effect of this provision, and paragraph 241 et seq above for a discussion of its operation.
 The (a),(b) and (c) were originally I,II and III, but were redesignated by the Statute Law Revision Act 2003.
 This section was introduced by amendment in 1896 to reverse Bourne v Kneebone; see the discussion at paragraph 134 above in relation to liens and paragraph 168 above in relation to charges.
 See paragraph 202 et seq above for a discussion of section 10(2)(a) notices.
 These words do not prevent the notice validly being signed by the claimant’s solicitor if authorised; see Colmup v Mecair Engineering.
 The word “person” here includes both companies and natural persons; see W Curl & Sons at page 340 and Palyaris v Kauri (see page 461 below).
 The (a) and (b) were originally I and II, but were redesignated by the Statute Law Revision Act 2003.
 This means “notice of lien”; see Wyara v Advanced Civil Engineering
 See paragraph 298 above for a discussion of this provision.
 In this context, “land” means “the estate or interest affected by a notice of lien”; Jennings v Burgundy Royale, paragraph 8 at page 317 below.
 See paragraph 275 et seq above for a discussion of this section.
 In this context, “land” means only that estate or interest in land which is vested in the person against whom execution goes; Jennings v Burgundy Royale, paragraph 8 at page 317 below.
 See paragraph 287 et seq above for a discussion of this section.
 In Pitt v Glenelg the court said that “property” includes the subject matter of an interest; see  SASR 532 at paragraph 60 on page 616 below.
 The (a) and(b) were originally I and II, but were redesignated by the Statute Law Revision Act 2003.
 “Any person” here includes the owner; see for example Badge v Rule Chambers.
 The word “deemed” here seems to be mere surplusage. For an example of a “Judgment of Solomon” see Birchall v Jape.
 See paragraph 304 et seq above for a discussion of this section.
 The words “(with or without hard labour)” were deleted by the Statutes Amendment (Justice Portfolio) Act 2006.
 See paragraph 317 above for a discussion of this section.
 See paragraph 316 above for a discussion of this section.
 This discretion of the court to order costs is presumably subject to section 26, which provides that a payment into court will relieve a lienee of liability for costs in respect of further proceedings.
 The power is unusual, in that it extends to the costs, not only of proceedings themselves, but extends to “proceedings preliminary to action”. It is not clear precisely what this phrase is intended to cover; it is suggested that it probably includes all formal steps provided for by the Act.
 See page 134 below for the regulations currently in force.
 The words “(with or without hard labour)” were deleted by the Statutes Amendment (Justice Portfolio) Act 2006.
 Land here means “interest in land” and not the physical entity, and accordingly this section does not prohibit liens which operate against a leasehold interest in land owned by the Crown; Jennings v Burgundy Royale, paragraph 9 at page 317 below.
 The expression “for or on behalf of the Government” imports the relationship of trustee and cestui que trust; if the Government has no proprietary interest, whether legal or equitable, in the lease, the person in whom the lease is vested cannot be said to hold it on behalf of the Government; Jennings v Burgundy Royale, paragraph 12 at page 319 below.
 A charge amounts to a change; Ready Mixed Concrete v Constructions (Broken Hill).
 “Contractors” here is governed by the definition, and is not used in the sense of “contracting party” so as to include the owner; Ready Mixed Concrete v Constructions (Broken Hill).
 The exception means that a sub-sub-contractor may charge money in the hands of a contractor payable to a sub-contractor, but that the Crown remains immune from the charging of money in its hands; Ready Mixed Concrete v Constructions (Broken Hill).
 “Such work” is a reference to work for or on behalf of the Government; Ready Mixed Concrete v Constructions (Broken Hill).