Advance Resource Services Pty Ltd v Charlton

[2008] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Application)

ADVANCE RESOURCE SERVICES PTY LTD T/A PROGRESS COURIERS AND TAXI TRUCKS v CHARLTON

[2008] SASC 118

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Layton)

2 May 2008

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - AS OF RIGHT

Appeal from Full Court of Industrial Relations Court – whether appeal lay as of right to Full Court of Supreme Court – whether Full Court of Industrial Relations Court acted “in excess or deficiency of jurisdiction” – whether failure to exercise jurisdiction constitutes acting in excess or deficiency of jurisdiction – determination that appellant was not an employee was within jurisdiction of Industrial Relations Court – permission to appeal earlier refused - appeal dismissed.

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT

Purported cross-appeal – whether an appeal or cross-appeal – whether appeal against substantive decision is an appeal against the judgment the subject of an earlier appeal – earlier appeal against later costs order only – purported cross-appeal was an appeal and out of time.

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT

Industrial Relations Court – no power to award costs at first instance – power to award costs on an appeal – respondent successful at first instance and on appeal to a single judge of the Industrial Relations Court – appellant successful on appeal to the Full Court of the Industrial Relations Court – construction and effect of Fair Work Act 1994 s 185 – no statutory fetter on power of Court to order costs on appeal - whether the discretion should be exercised according to the common law principle that costs follow the event - whether there are industrial features which are relevant to the exercise of discretion to award costs – whether court took into account irrelevant considerations – whether exercise of Court’s discretion miscarried – appeal allowed by majority – matter remitted to Industrial Relations Court.

Fair Work Act 1994 (SA) ss 4, 14, 110, 154, 155A, 155B, 173, 185, 191; Supreme Court Civil Rules 2006 (SA) r 283, 288, 290(1)(h); Industrial Code 1920-1965 (SA) ss 5(1), 17, 19, 20, 21(l)(j), 25, 26, 27, 28, 29b, 29f, 29m, 39, 40, 59, 65, 66, 77, 85, 93, 99-119, 108, 109, 120-132, 121, 132c, 135, 136, 177, 197, 207, 291(2); Justices Act 1921 (SA) ss 43, 43a, 77, 163; Industrial Code Amendment Act 1966 (SA) s 18; Industrial Code 1967 (SA) ss 10, 19, 20, 21, 22, 25, 26, 28, 32, 36, 36, 51, 53 123, 127, 133, 134; Industrial Code Amendment Act 1970 (SA) s 19(e); Industrial Conciliation and Arbitration Act 1971 (SA); Industrial Conciliation and Arbitration Act 1972 (SA) ss 13, 15, 16, 17, 18, 31, 34, 94, 95, 151, 152, 153, 171, 174; Industrial Conciliation and Arbitration Act Amendment Act 1984 (SA); Industrial Conciliation and Arbitration Act Amendment (Statute Law Revision) Act 1987 (SA); Industrial Conciliation and Arbitration (Commonwealth Provisions) Amendment Act 1991 (SA) s 6; Industrial Relations (Miscellaneous Provisions) Amendment Act 1992 (SA); Industrial and Employee Relations Act 1994 (SA) ss 8, 14, 23, 109, 154, 173, 179-184, 185, 210, 224, 233, 235; Industrial Law Reform (Fair Work) Act 2005 (SA) ss 4, 62; Land and Environment Court Act 1979 (NSW) s 69; Local Courts Act 1926 (SA) ss 31, 32, 57, 58; Industrial Relations Act (SA) 1972 s 15, referred to.
Public Service Association of South Australia v Federated Clerks’ Union of Australia, SA Branch (1991) 173 CLR 132, applied.
Greek Orthodox Community of SA Inc v Ermogenous (2000) 77 SASR 523, distinguished.
R v Industrial Commission of South Australia; Ex parte Minda Home Inc (1975) 11 SASR 333, not followed.
Advanced Resources Pty Ltd v CharltonAdvanced Resources Pty Ltd v Charlton [2007] SASC 434; Donald Campbell and Co Ltd v Pollak [1927] AC 732; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11; Walkley v Dairyvale Co-operative Ltd (Preliminary Issues) (1972) 39 SAIR 327; Adelaide Electric Supply Company’s Salaried Officers’ Association Case (1944) 18 SAIR 200; The Queen v Olsson; Ex parte Amalgamated Wireless (Australasia) Ltd (1971) 1 SASR 453; Day v McGuire & Ors (Costs) Case (1970) 37 SAIR 59; Minchin and Gorman v St Jude’s Child Care Centre (Reinstatement) Case (1973) 40 SAIR 106; Minchin and Gorman v St Jude’s Child Care Centre (Costs) Case (1973) 40 SAIR 168; The Crippled Children’s Association of SA Inc v Nash (1979) 46 SAIR 952; University of Adelaide Ancillary Staff Association (Interpretation) Case (1981) 48 SAIR 687; Gregory’s Superstores v Papakoustantinou & Anor (1981) 1 IR 97; Hayes and Conway v Tempo Services Pty Ltd [1993] SAIRC 52; Willis v Serpentine Nominees Pty Ltd (Unreported, Industrial Court of South Australia, Judge Cawthorne, 13 August  1993); Tjombanakis v Marinakis (1998) 78 IR 481; Solora South Pty Ltd v McKendrick (1999) 87 IR 284; Dunk v South Australian Health Commission [2000] SAIRC 4; Estevez v Gerard Industries Pty Ltd (1995) 62 SAIR 19; Hand v Adelaide Bank (No 2) (1997) 73 IR 13; Siegloff v Marksman Training Systems (1998) 44 AILR 11-097; [1998] SAIRComm 57; Siostrom v J & A Transport Pty Ltd (1998) 81 IR 147; Advance Resource Services Pty Ltd t/as Progress Couriers and Taxi Trucks v Charlton [2007] SAIRC 64, discussed.
Holden & Co v Crown Prosecution Service (No 2) [1994] 1 AC 22; GE Dal Pont, Law of Costs  (2003) ; Gregory's Superstores v Papa Koustantinou, Zervas & Zervas (1982) 48 SAIR 552; Allen v Ellis (1932) SAIR 263; R v the Industrial Court and Others; Ex parte Hunkin [1934] SASR 208; Maio v United Co-operative Dairymen Ltd (1966) 33 SAIR 5; Guymer v Immigration, Publicity and Tourist Bureau Department (1969) 36 SAIR 52; Geracitano v Grote Street Service Station (1971) 38 SAIR 20; Campbell v Edments Pty Ltd (1971) 38 SAIR 41; A v X Limited (1971) 38 SAIR 86; Latoudis v Casey (1991) 70 CLR 534; Ohn v Walton (1995) 36 NSWLR 77; Gregory's Superstores v Papa Koustantinou, Zervas & Zervas (1981) 48 SAIR 552; Bewley v Linfox Interstate Transport [1999] SAIRC 13; Giancaspro v Eurest Australia Pty Ltd [2004] SAIRC 17; Advance Resource Services Pty Ltd t/as Progress Couriers and Taxi Trucks v Charlton (2007) 165 IR 275, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"Excess or deficiency of jurisdiction"
"Costs on appeal"

ADVANCE RESOURCE SERVICES PTY LTD T/A PROGRESS COURIERS AND TAXI TRUCKS v CHARLTON
[2008] SASC 118

Full Court:  Doyle CJ, Bleby and Layton JJ

1. DOYLE CJ:          I have had the benefit of reading the reasons of Bleby J and of Layton J.

2. I agree, for the reasons given by Bleby J, that the purported appeal by Mr Charlton should be dismissed as incompetent.

3. I turn to the appeal by Advance Resource Services Pty Ltd. The appeal raises the construction of s 185(b) of the Fair Work Act 1994 (SA) (“the Act”). It also raises the question of whether the Full Court of the Industrial Relations Court erred in the manner in which it exercised the power conferred by that provision.

4. The circumstances in which these issues arise sufficiently appear from the reasons of Bleby J and Layton J.

5. Bleby J and Layton J have thoroughly examined the legislative history of s 185 of the Act, and the approach that the Industrial Court and Industrial Commission have taken over time to the exercise of such powers as they respectively have had in relation to the costs of proceedings.

6. In the end, I am not persuaded that the legislative history affects in any significant way the resolution of the questions now before this Court.

7. By s 185(b) of the Act, Parliament has conferred on the Industrial Relations Court a generally expressed power to award costs on an appeal.

8. I consider that the following observations made by Gaudron and Gummow JJ in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, in relation to s 69 of the Land and Environment Court Act 1979 (NSW), are applicable to s 185(b):

   [21] The provisions of s 69 of the Court Act which confer upon the Court the discretion exercised by the primary judge attract the application of the general proposition that it is inappropriate to read a provision conferring jurisdiction or granting powers to a court by making conditions or imposing limitations which are not found in the words used. The necessity for the exercise of the jurisdiction or power by a court favours a liberal construction. Considerations which might limit the construction of such a grant to some different body do not apply.

   [22]The terms of s 69(2) contain no positive indication of the considerations upon which the Court is to determine by whom and to what extent costs are to be paid. The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as "the subject matter and the scope and purpose" of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be “definitely extraneous to any objects the legislature could have had in view". (footnotes omitted)

9. Having regard to the generality of the power conferred on the Industrial Relations Court, in the absence of any statutory fetters or guidelines relating to the exercise of the power, I consider that the exercise of the power that s 185(b) confers is to be approached bearing in mind considerations that apply when a like jurisdiction as to costs is conferred on a court.

10. In relation to statutory provisions that confer on a court a general discretion as to costs, certain general principles have emerged.  One is that the discretion should be exercised judicially, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation:  see Gaudron and Gummow JJ in Oshlack at [34]. Another general principle is that ordinarily a wholly successful defendant will receive that defendant’s costs unless there is a good reason to order otherwise: see Gaudron and Gummow JJ in Oshlack at [35]. However, it needs to be emphasised that these are but general principles, and should not be treated as if they are rules of law.

11. Another well recognised principle was identified by McHugh J in Oshlack.  Although his was a dissenting judgment, the principle to which he referred is well established:  see Latoudis v Casey (1991) 70 CLR 534 and Ohn v Walton (1995) 36 NSWLR 77 at 79. The principle is that the purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: Oshlack at [82].

12. In their reasons in Oshlack Gaudron and Gummow JJ emphasised the importance of not treating these general principles as something like rules of law. They said at [40]-[44]:

    [40] There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party.

    [41] If regard be had to the myriad circumstances presenting themselves in the institution and conduct of litigation, and to the varied nature of litigation, particularly in the equity jurisdiction, it will be seen that there is nothing remarkable in the above propositions. …

    …

    [43]Nor, before or since the introduction of the Judicature system, has there been any absolute proposition that the sole purpose of a costs order is to compensate one party at the expense of another. As a general rule, wherever an estate or fund is administered by the court, the costs of all necessary and proper parties to the proceedings should be defrayed out of the fund.

    [44]It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a "solicitor and client" basis or on an indemnity basis.  The result is more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part. (footnotes omitted)

13. These cautionary observations should be borne in mind. Equally, it should be borne in mind that the power conferred by s 185(b) is to be exercised in connection with a particular kind of litigation.

14. The exercise by the Industrial Court of its jurisdiction in respect of a “monetary claim”, on occasions may give rise to considerations of an industrial nature that will be relevant to the exercise of the power conferred by s 185(b). Such considerations might persuade the Court not to apply what is often called the “usual rule”, that costs follow the event.

15. By considerations of an industrial nature I mean the circumstances from which the claim arose, and in particular the circumstance that a claim might arise from a background of industrial disputation or unrest, or might be intended to resolve such disputation or unrest by settling an issue that affects a number of employers or a number of employees or both.  Such circumstances might, in a particular case, be a reason not to follow the “usual rule”.

16. In short, I consider that the power conferred by s 185(b) is to be exercised in accordance with principles that have been applied to other generally expressed powers in relation to the award of costs. To say that is not to deny that in a particular case circumstances may arise that are particular to the case, or are linked to the nature of the jurisdiction that the Industrial Relations Court exercises, that might justify a departure from the “usual rule” that costs follow the event.

17. I turn now to the decision of the Full Court of the Industrial Relations Court.

18. I agree with Bleby J that the Full Court of the Industrial Relations Court erred in its exercise of the power conferred by s 185(b) of the Act. I agree with what Bleby J says at [148]-[156]. For those reasons, the order made on 12 September 2007 should be quashed, and the matter should be referred back to that Court for further consideration and determination according to law.

    BLEBY J:

    Introduction

19. Mr Charlton, the respondent, was engaged as a courier van driver. He worked exclusively for the appellant, Advance Resource Services Pty Ltd, trading as Progress Couriers and Taxi Trucks (“Progress”). He brought proceedings pursuant to s 14 of the Fair Work Act 1994 (SA) in the Industrial Relations Court for alleged underpayment of wages due under an award. On the hearing of a preliminary issue an industrial magistrate determined that he was engaged by Progress as an employee pursuant to a common law contract of service.

20. Progress appealed against that decision to a judge of the Industrial Relations Court.  The appeal was dismissed.

21. Progress appealed against that decision to the Full Court of the Industrial Relations Court.  That Court, by a majority, allowed the appeal.  The form of the order was less than precise, but there was no argument that the effect of the order of the Full Court was to dismiss Mr Charlton’s claim.

22. The jurisdiction of the Industrial Relations Court to decide monetary claims is limited to a claim by an employee against an employer.  Furthermore, the award on which Mr Charlton was suing can only bind an employer to pay the prescribed wages to an employee.  An employee means a person employed under a contract of employment.[1]  A contract of employment means a contract recognised at common law as a contract of employment and certain other specified contracts not relevant for present purposes. [2]  The conclusion of the majority of the Full Court meant not only that Mr Charlton was not covered by the award but that the Court had no jurisdiction to entertain his claim.

    [1] Fair Work Act, 1994 s 4(1).

    [2] Ibid.

23. The order allowing the appeal was made on 10 July 2007.  At that time the Court also ordered that the parties be granted liberty to apply on the issue of costs.

24. Progress applied for an order for costs of the two appeals against Mr Charlton.  On 12 September 2007 the Full Court of the Industrial Relations Court, having heard argument on the question of costs, decided that there should be no order for costs in respect of both the appeal before the single Judge and the appeal before the Full Court.

25. Progress applied to this Court for permission to appeal against that decision pursuant to s 191(1)(b) of the Fair Work Act.  On 9 November 2007 a differently constituted Full Court of this Court granted permission to appeal.

26. Progress’s notice of appeal and application for permission to appeal had been filed on 26 September 2007. On 9 October 2007 Mr Charlton filed in this Court a conditional application for permission to “cross-appeal” against the decision of the Full Court of the Industrial Relations Court. The grounds of appeal related only to the order of the Industrial Relations Court made on 10 July 2007 allowing Progress’s appeal. It did not relate in any way to the Court’s decision on costs. The application was said to be conditional because Mr Charlton asserted that he did not require permission to cross-appeal. He asserted that he had an appeal as of right to this Court pursuant to s 191(1)(a) of the Fair Work Act.  That paragraph provides that an appeal lies from a judgment, order or decision of the Full Court of the Industrial Relations Court “if the appeal is based on an alleged excess or deficiency of jurisdiction”.

27. Mr Charlton’s application for permission to appeal came before the same Court which had decided Progress’s application for permission, but at a different time. On 11 December 2007, without deciding whether Mr Charlton’s proceeding was an appeal or a cross-appeal and without deciding whether an appeal lay as of right, that Court decided that if permission to appeal was required, it was refused. The Court indicated that Mr Charlton was at liberty to pursue his cross-appeal or appeal, as the case may be, on the basis that permission was not required.

28. Mr Charlton, now argues that he has an appeal as of right. However, Progress argues that Mr Charlton’s appeal is incompetent.

29. The issues which now arise for determination are as follows:

    1Whether Mr Charlton has an appeal as of right;

    2If he does, whether it is, for the purpose of the Supreme Court Civil Rules 2006, an appeal or a cross-appeal;

    3If he has an appeal as of right, whether the time for commencing the appeal or cross-appeal as the case may be should be extended; and

    4Progress’s appeal against the decision of the Full Court of the Industrial Relations Court on the question of the costs of the appeals.

30. The Court heard argument on those issues notwithstanding that, if Mr Charlton’s appeal was competent, it would be necessary to adjourn further consideration in order to hear the merits of the appeal, and that Progress’s appeal on costs might then cease to be relevant.

    The competency of Mr Charlton’s appeal

31. This Court may summarily dismiss the appeal if it is obvious that it cannot succeed.[3]  If Mr Charlton does not have an appeal as of right, that is the appropriate order to make, as permission to appeal has already been refused.

    [3]    Supreme Court Civil Rules 2006, r 290(1)(h).

1. The decision under challenge is that of the Full Court of the Industrial Relations Court that Mr Charlton was not, at common law, an employee but that he was, in law, an independent contractor.  If that is correct, the Industrial Relations Court had no jurisdiction to entertain his claim for underpayment of wages.  The question, in those circumstances, is whether the appeal is based on an alleged excess or deficiency of jurisdiction.

2. The phrase “excess or deficiency of jurisdiction” and other like expressions do not have the same meaning as a failure by a court or tribunal to exercise its jurisdiction.

3. In an earlier decision of the Full Court of this Court,[4] the Court held that a prohibition on judicial review of proceedings of the (then) Industrial Commission “save on the ground of excess or want of jurisdiction” allowed the Court to make an order in the nature of mandamus requiring the Commission to exercise its jurisdiction where it had wrongly declined to do so, and that the phrase should be given a wide meaning “so as to include all the jurisdictional matters which at common law would have induced the Court of Queens Bench to interfere by the machinery of the prerogative writs”.[5]

   [4]    R v Industrial Commission of South Australia; Ex parte Minda Home Inc (1975) 11 SASR 333.

   [5] Ibid 337, Bray CJ. See also Wells J at 343-345, Jacobs J agreeing with Bray CJ and Wells J.

4. However, that decision was specifically disapproved by the High Court in Public Service Association of South Australia v Federated Clerks’ Union of Australia, SA Branch.[6]  That case concerned s 95(b) of the Industrial Conciliation and Arbitration Act 1972 (SA) which prevented any review of a decision of the Industrial Commission “except on the ground of excess or want of jurisdiction”. Although the Court was divided in the result, all five judges disapproved the decision of this Court in the Minda Home Case.[7] The position was conveniently summarised by Brennan J:[8]

   Judicial review on the ground of excess or want of jurisdiction is available when a body purportedly acting in exercise of jurisdiction has no jurisdiction to act in the particular way. Judicial review on that ground stands in contrast with judicial review on the ground of a wrongful failure or refusal to exercise jurisdiction. In the former case, there is no jurisdiction to exercise; in the latter, there is jurisdiction but no exercise of it. The exception in s.95(b) covers the former case; there is no acceptable canon of construction by which it can be extended to cover the latter case. Thus, s.95(b) appears to permit erroneous assumptions of jurisdiction to be checked by judicial review, but not erroneous refusals to exercise jurisdiction.

   [6] (1991) 173 CLR 132.

   [7]    See Brennan J at 141-143, Deane J at 147-152, Dawson and Gaudron JJ at 160-161 and McHugh J at 164-165.

   [8]    Ibid 142.

5. It follows that Mr Charlton can take no comfort from my decision in Greek Orthodox Community of SA Inc v Ermogenous.[9] The reason I considered that the appellant in that case had a right of appeal was because the Full Court of the Industrial Relations Court had concluded that the appellant was an employee and that the Court therefore had jurisdiction to entertain his claim under s 14 of what was then known as the Industrial and Employee Relations Act 1994.  The argument before this Court was that by entertaining the appellant’s claim the Industrial Relations Court was exceeding its jurisdiction.

   [9] (2000) 77 SASR 523, 538-545, [2000] SASC 329 at [63]-[93].

6. In this case the Industrial Relations Court undoubtedly had jurisdiction to decide whether Mr Charlton was an employee.  In deciding that he was not, the Industrial Relations Court did not act in excess or deficiency of jurisdiction. Mr  Charlton’s complaint is that the Court, by that finding, declined to exercise the jurisdiction which he claims that it has.  However, we are bound by the decision of the High Court.  As the Industrial Relations Court did not act in excess or deficiency of jurisdiction, we are constrained to hold that Mr Charlton does not have an appeal as of right.  Permission to appeal having been refused, the appropriate order is that the appeal be dismissed because it is obvious that it cannot succeed.[10]

   [10]   Supreme Court Civil Rules 2006, r 290(l)(h).

7. It is therefore not strictly necessary to decide the other issues raised by Mr Charlton’s appeal. Nevertheless, it is appropriate that some observations be made about them.

   Whether the proceeding is an appeal or a cross-appeal

8. Rule 288 of the Supreme Court Civil Rules 2006 relevantly provides:

   Notice of cross-appeal and contention

   (1)If a respondent to an appeal also wants to appeal against the judgment subject to the appeal, the respondent may, within 14 days after service of the notice of appeal, lodge a notice of cross-appeal.

9. In order to constitute a cross-appeal, an appeal must be an appeal against a judgment already subject to an appeal.

10. Mr Cullimore, counsel for Mr Charlton, argued that the order of the Full Court of the Industrial Relations Court was not complete until the decision on costs was made.  That was followed by the institution of the appeal by Progress in relation to costs.  Mr Charlton’s appeal was therefore a cross-appeal which was required to be filed within 14 days after service of the notice of appeal.

11. The order of the Full Court of the Industrial Relations Court made on 10 July 2007 allowing the appeal from the single Judge was itself a final and appealable order.  Part of that order was that the parties be granted liberty to apply on the issue of costs.  They might never have done so.  It was open to Mr Charlton to institute an appeal against that decision and order.  Rule 283 of the Supreme Court Civil Rules requires that that be commenced within 21 days after the date of the judgment, order or decision subject to the appeal.

12. On 12 September 2007 the Full Court of the Industrial Relations Court decided to make no order as to costs on either appeal.  No order was therefore made.  The decision not to award costs was a separate decision and was quite independent of the order made on 10 July 2007.  If Mr Charlton wished to appeal against that decision and order, he was not required to wait until the question of costs was resolved.  On the contrary, he was required to commence his appeal within 21 days, i.e. by 31 July 2007.  His appeal was in truth an appeal and not a cross-appeal.

    Extension of time

13. Mr Charlton’s appeal was not commenced until 9 October 2007.  In the circumstances, it is not necessary to rule on whether an extension of time should be granted.  Little justification for such an extension has been advanced.  By letter dated 26 July 2007 his solicitor wrote to the solicitors for Progress informing them that his client “wishe[d] to take this matter further”.  The view was expressed that the time to seek permission to appeal would not run until the issue of costs was decided, and that Mr Charlton’s attitude to an appeal may be influenced by the outcome on costs.  The view was expressed in the letter that there was no need for him to file papers seeking permission to appeal at that stage, but that if the solicitors for Progress had a different view, they were asked to advise. No reply was received to that letter.

14. For reasons I have given, that letter represented a mistaken view of the law as to the time within which an appeal was to be commenced.  It also indicates that Mr Charlton had reached no final view as to whether or not he would appeal. The solicitors for Progress were therefore not on notice that there would be such an appeal.  Mr Charlton can therefore obtain no comfort from the fact that his opponent knew that there would be an appeal.

15. One of the relevant factors in determining whether an extension of time should be granted relates to the prospects of success on the appeal.  We now have the advantage of the consideration by a differently constituted bench of this Court of the judgment the subject of appeal.  In refusing Mr Charlton permission to appeal that Court said:

    This Court would ordinarily grant permission to appeal, when the issue has already been considered at three different levels of the Industrial Relations Court, only if there is some issue of principle, if the interests of justice for some reason require a grant of permission in the particular case, or if the decision under appeal contains some indication of apparent error.  None of those criteria are satisfied in the present case.[11]

    [11] Advanced Resources Pty Ltd v Charlton [2007] SASC 434, [29].

16. While that does not represent an exhaustive consideration of the grounds of appeal, it is indicative of the substantial difficulties that Mr Charlton would face in successfully arguing his appeal.

17. An appeal on the merits of a decision should obviously be dealt with before the Court entertains an appeal or an application for permission to appeal against the decision on costs relating to the same matter.  Had Mr Charlton’s appeal been instituted within time and had he asserted at the outset that he had an appeal as of right, Progress and this Court might well have taken a different course in relation to the hearing of Progress’s application for permission to appeal against the costs order.  One cannot assert that the course would have been different, but at least Progress would have had the opportunity to consider its position and to decide whether it should then press its application for permission to appeal.

18. The factors I have mentioned raise obstacles to Mr Charlton’s application for an extension of time.  In all the circumstances I consider that the application for extension is weak, but as it is not necessary to determine it, I do not do so.

    The appeal on costs

19. Section 185 of the Fair Work Act provides:

    Costs

    The Court may only award costs in proceedings based on a monetary claim as follows—

    (a)the Court may award costs on a claim for non-payment of superannuation contributions to cover reasonable expenses incurred by the claimant to establish the present value of the loss; and

    (b)the Court may award costs on an appeal.

20. The effect of that section in this case is that it was not possible for the Industrial Magistrate to make an order for costs at first instance.  It was possible for the single Judge to make an order for costs of that appeal and for the Full Court of the Industrial Relations Court to do likewise.

    General considerations

21. On the face of s 185(b) the discretion to award costs is unfettered. It is a discretion which must be exercised judicially. That will usually result in an order that the costs of an appeal follow the event.[12]

    [12]   GE Dal Pont, Law of Costs (2003) [20.2] and the authorities cited therein, especially Holden & Co v Crown Prosecution Service (No 2) [1994] 1 AC 22, 39-40, Lord Bridge. See also Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [35], Gaudron and Gummow JJ.

22. In Donald Campbell and Co Ltd v Pollak,[13] Lord Atkinson said:

    It is, I think, perfectly clear from these authorities that if a judge in a case tried before him and a jury should, by the exercise of the discretion given to him by Order LXV., r. 1, deprive a successful litigant of his costs, the materials upon which he exercises that discretion, if it is to be properly exercised, must be materials proved in that case to exist.  It is not enough that they should be imagined, or suspected, or, without proof, believed by the learned judged to exist, nor is it enough if they should exist in a suit different from the suit tried, and the judge should mistakenly suppose that they had been established in this latter suit and act upon that false assumption … Besides, it should always be remembered that the discretion which is to be exercised under this Order and Rule is a judicial discretion.  It is not a judicial exercise of this discretion to order a litigant who has been completely successful in a suit and against whom no misconduct is alleged to pay the costs of the proceeding …[14]

    [13] [1927] AC 732.

    [14] Ibid 776.

23. As Lord Atkinson observed, there will usually need to be some reason related to the conduct of the proceedings to justify the exercise of the discretion in some other manner.  Examples which may affect an order that costs follow the event include a partial victory only, a failure by the successful party to comply with some procedural rules, some conduct on the part of the successful party which qualifies that party’s entitlement or which removes it, an offer of settlement more favourable to the successful party than the judgment, or the party may have succeeded on a point which could have been but which was not taken below.  Sometimes there may be special considerations relating to public interest litigation.

24. These are but examples only and are not intended to be a complete list of reasons for departing from the general rule.  The common feature is that they relate to some aspect of the conduct of the litigation.

25. Given the unfettered discretion conferred by s 185(b), it would therefore be expected that, in the absence of any such features, on an appeal in the Industrial Relations Court in proceedings based on a monetary claim, an order for costs would normally follow the event. That did not happen in this case. There were no features of the type mentioned above which would seem to justify such a course. The question therefore arises as to whether there is some principle peculiar to the exercise of the Court’s industrial jurisdiction which negates or qualifies the general principle. This must be considered against the relevant statutory provisions concerning costs and the nature of the jurisdiction exercised by the relevant industrial tribunals at the time.

    Industrial Code 1920-1965

26. Under the Industrial Code 1920-1965 (“the 1920 Code”) the Industrial Court had jurisdiction over industrial matters generally and by way of appeal from determinations of what were then known as Industrial Boards.  There was no Industrial Relations Commission.

27. Part II of the 1920 Code conferred both arbitral and curial or judicial functions on the Industrial Court.  Section 17 set out the principal arbitral powers of the Court.  In general terms they were to make awards or orders in respect of and to deal with “industrial matters”, a term widely defined in s 5(1) of the Code.  The Court also had the power to hear appeals against determinations of Industrial Boards constituted to make awards for particular industries.  The Court also had arbitral or administrative functions in relation to registered associations.  Under s 65 and s 66 it could hear appeals from decisions of the Registrar to grant or to refuse to grant registration.  Under s 77 it could order that a member of an association cease to be a member, and under s 85 it could cancel the registration of an association on certain grounds.

28. As to the Court’s judicial functions, they were relatively few.  There was a power to quash determinations of Industrial Boards for illegality.[15]  Division IX of Part II of the 1920 Code created offences for committing a breach of or failing to observe an award or order of the Court.  It included some non-discrimination provisions relating to membership of an association which created offences by both employers and employees.  Under s 135 of the 1920 Code proceedings in respect of offences against Part II of the Code were to be disposed of summarily, i.e. in a court of summary jurisdiction.

    [15]   1920 Code, s 17(1)(f), s 59 and s 197.

29. Section 136 of the 1920 Code provided that every special case stated on a question of law arising in summary proceedings under Part II should be dealt with by the Industrial Court, and every appeal in such proceedings should also lie to the Industrial Court.  There were complementary provisions in the Justices Act 1921.[16] 

    [16]   See Justices Act 1921, s 163.

30. The other judicial function of the Industrial Court was under Div VIII of Part II.  Those provisions outlawed lockouts, strikes and other industrial action.  Proceedings in respect of offences under this Division, besides being taken in a court of summary jurisdiction, could also be taken and prosecuted in the Industrial Court.[17] 

    [17]   Industrial Code 1920-1966, s 108.

31. As regards costs in its arbitral jurisdiction, s 21(1)(j) of the Code provided that, as regards every industrial matter over which the Court had original or appellate jurisdiction, it had power “to order any party to such matter to pay any other party such costs and expenses, including expenses of witnesses, as are specified in the order”.  However, s 25(2) provided that in most arbitral matters either party could, with the consent of both parties to such matter, at its or his own cost, be represented by a solicitor or agent.  Section 26 also provided that on the hearing of appeals against and applications to quash determinations of an Industrial Board, either party could, at its or his own cost, be represented by a solicitor or agent.  Sections 27 and 28 provided:

    27.On the hearing of informations or other proceedings in respect of or relating to offences against this Part of this Act either party may be represented by a solicitor or agent.

    28.The court may, subject to sections 25 and 26, in any proceeding whatsoever before it under this Part of this Act, make such order as to the costs of such proceeding and for the payment thereof as may by it be deemed proper, and may assess the amount of such costs.

32. Costs on appeals or references from courts of summary jurisdiction under s 136 were governed by the general provisions of s 28 set forth above.

33. In relation to proceedings in respect of lockouts, strikes and other industrial action under Div VIII, s 109 of the 1920 Code relevantly provided:

    109.(1)     The court, when it makes a conviction or an order under this Division of this Act may award and order in and by such conviction or order that the defendant shall pay to the informant such costs as to the court shall seem just and reasonable.

    (2)     The court, when it dismisses an information, may, in and by the order of dismissal, award and order that the informant shall pay to the defendant such costs as to the court shall seem just and reasonable.

34. Division VIII provided for offences by both employers and employees.  All were therefore subject to the same costs provisions if a conviction was entered for an offence against a section of that Division.

35. The combined effect of these several provisions seems to be that, in its arbitral functions, the Court could not award costs of legal representation, even though in some circumstances a party could be represented by a solicitor or agent.  However, in its non-arbitral or judicial functions it had a general discretion to award costs.

36. The Court had no jurisdiction to entertain money claims based on breaches of or alleged underpayments pursuant to an award of the Court or of an Industrial Board.

37. Section 121(2) provided that in the case of a conviction for breach of an award by an employer, the special magistrate convicting the employer could order that the defendant pay to the employee the difference between the amount paid and that which should have been paid under the award.  It followed that recovery of alleged underpayments under an award pursued by this means was subject to the ordinary costs jurisdiction of courts of summary jurisdiction.  That was a general power to award costs against a defendant where the Court entered a conviction or to order costs against a complainant where the complaint was dismissed.[18]  I have already referred to the power of the Industrial Court to award costs on an appeal from a court of summary jurisdiction.

    [18]   See Justices Act 1921, s 77.

38. It should also be noted that, during the period covered by the 1920 Code and indeed at all times since, in certain circumstances proceedings could be brought in a civil court to recover monies allegedly underpaid or due under an award.  This was by an action based on contract where the contract of employment was governed by an award and pursuant to a necessarily implied term that the employer would pay not less than that required by the award.  In such a case, parties to such an action would be subject to the general discretion of the local court to award costs in accordance with the general principles identified earlier in these reasons.

1. The only other relevant provision of the 1920 Code to which attention should be drawn is s 40 which provided:

   40.(1)     Notwithstanding anything in this Part of this Act or in any other law or any practice to the contrary–

   (a)the court, in the exercise of any jurisdiction, duty, power, or function conferred or imposed by or under this Part of this Act, shall be governed in its procedure and in its judgments, awards, orders, and decisions by equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms or the practice of other courts:

   (b)the court, in the exercise of any such jurisdiction, duty, power, or function, shall not be bound by any rules or practice as to evidence, but may inform its mind on any matter in such manner as it thinks just.

   (2)     This section shall not apply to proceedings in respect of offences against this Part of this Act.

2. These provisions were typical of statutory provisions applicable to other tribunals in Australia responsible for industrial arbitration and the settlement of industrial disputes.  It is noted that the only judicial function to which they applied was that of quashing awards of Industrial Boards for illegality.  They did not apply to any of the other judicial functions of the Court, including appeals from courts of summary jurisdiction relating to alleged breaches of awards.  The history and effect of such a provision was discussed at some length by Judge Olsson (as he then was) in Walkley v Dairyvale Co-operative Ltd (Preliminary Issues).[19]  As his Honour observed,[20] such provisions may have little practical application in cases involving penal or quasi-penal consequences.

   [19]   (1972) 39 SAIR 327.

   [20]   Ibid 358.

3. There was a decision of Morgan P on the question of costs under the 1920 Code in Adelaide Electric Supply Company’s Salaried Officers’ Association Case.[21]  That was a case involving an appeal against the decision of the Industrial Registrar in disallowing objections to the registration of an association of employees under the Code.  Registration as an association was of some significance in the regulation of industrial matters and industrial disputes under the Code.  The President refused an application for costs by the successful respondent to the appeal.  In the course of doing so he said:

   Subject to the limitation resulting from the reference to sections 25 and 26, a limitation which does not apply in this case as this matter does not fall within either section 25 or section 26, there is no doubt that section 28 gives to the Court a discretion as to the award of costs, a discretion which must in my opinion be exercised judicially. 

   I have caused a search to be made, and as a result I have ascertained that, as far as the records of this Court show, no order for payment of one party’s costs by another party has been made in this Court except in two classes of cases, that is to say, in appeals to this Court against decisions of Courts of Summary Jurisdiction and in prosecutions before this Court under Division VIII. of Part II. of the Code for offences of the nature of lock-outs or strikes.  In both of those classes of cases the proceedings are of a penal nature and it can be understood that different principles apply to the question of costs in them to those applicable in other proceedings before this Court.  In such penal matters it may well be that the Court should follow the ordinary principle applied in litigation inter partes, that is to say, that costs follow the event.  I do not know in how many cases not falling within those two exceptional classes costs have been applied for in this Court and the applications have been refused.  The only reported case appears to be the Women Teachers’ Guild Registration Case (16 S.A.I.R. 31 at pp. 49-50) in which Kelly P. refused an application for costs made by a successful appellant association against the refusal of the Registrar to register it.  There the order was sought against the organization which had objected before the Registrar to the registration of the new association, an objection which the Registrar had upheld.  I think it is clear that in such a matter the application for costs would not be based on as good a ground as that now made to me in this case where the respondent upholding in effect the decision of the Registrar has been successful.

   Generally speaking, my view is that except in penal matters it would be unwise for an industrial court to order that one party’s costs be paid by another party.  Conciliation must ever be in the forefront of this Court’s operations.  The two organizations which are concerned in this appeal both largely represent clerical workers and it should be in the interests both of the organizations and of those who constitute their members that the organizations should work in amity in the respective interests of their members.  I am aware that proceedings of this type are likely to leave some bitterness between the parties to them, and I think that to order the losing party to pay the costs of the winning may turn that likelihood into a certainty.  My general view is certainly supported by the absence of any orders made by this Court for the unsuccessful party to pay the successful party’s costs except in proceedings of a penal nature.

   At the same time, it is of course clear that occasions may arise when the Court should order costs as its discretion to do so has been made clear by Parliament.  I am not prepared to attempt a description of the types of cases in which the losing party should be mulcted in costs; indeed, it would be unwise to do so but an obvious example would seem to be a case in which the Court regarded an appeal under section 65 against the decision of the Registrar as being of a frivolous nature or one which should clearly not have been brought.  This is not, in my opinion, such a case. [22]

   [21]   (1944) 18 SAIR 200.

   [22]   Ibid 217-218.

4. It is clear that the learned President considered that, in the exercise of the Court’s discretion as to costs, there was a difference to be observed between what might be described as matters incidental to the arbitral or industrial matters jurisdiction of the Court, in which orders for costs of legal representation could not be awarded, and the exercise of the Court’s curial powers in what Morgan P described as “penal matters” for which they could.  Such penal matters included proceedings by way of appeal from decisions of courts of summary jurisdiction in respect of alleged breaches of an award and in respect of associated orders for payment of amounts due under an award.

5. The class of case in fact covered by the decision of Morgan P was a relatively small component of the Court’s jurisdiction not the subject of an “industrial matter” and not of a penal or judicial nature.  It was incidental to the arbitral function.  It was what I have described as an arbitral or administrative function. It was therefore appropriate that it should be subject to similar restrictions.

6. In summary, it may therefore be said that, in respect of the two alternative methods of enforcing a payment allegedly due under an award, the question of costs both at first instance and on appeal, by whichever method was chosen (prosecution or civil action), was subject to the general discretion of the court at first instance and on appeal.  That included an appeal to the Industrial Court where proceedings were taken in a court of summary jurisdiction for breach of the award.  The decision of Morgan P in Adelaide Electric Supply Company’s Salaried Officers’ Association Case makes clear that penal matters of that type were to be an exception to the Court’s exercise of its general industrial jurisdiction where orders for costs would not normally be made and where orders for costs of legal representation could not be made.  It is also reasonably clear that the reason for that differentiation was the collective and industrial nature of disputes and related matters with which the Court had to deal

   Industrial Code Amendment Act 1966

7. The Industrial Code Amendment Act 1966 (“the 1966 Amendment”) effected some very substantial amendments to the 1920 Code.  The Industrial Court continued in existence but it was stripped of any award-making powers and of any arbitral jurisdiction.  Such jurisdiction became vested in the newly created Industrial Commission and in Conciliation Committees.  The Court’s jurisdiction was limited to hearing appeals from courts of summary jurisdiction in proceedings under the Code, hearing and determining questions of law on cases stated from courts of summary jurisdiction, hearing and determining questions of law arising out of or involving the interpretation of the Code, interpreting various awards and industrial instruments, determining questions of law or a case stated by the Commission or a Conciliation Committee and dealing with prosecutions required to be dealt with by the Court.[23]

   [23]   See 1966 Amendment, s 18; 1920 Code as amended, s 17.

8. The power of the Court to deal with strikes, lockouts and other industrial action contained in Part II, Div VIII was unaffected, as were the provisions relating to prosecution and recovery of wages due under awards by way of proceedings in courts of summary jurisdiction.  The Court’s jurisdiction was therefore entirely judicial.  It had no arbitral or administrative function.

9. The Court’s power to award costs contained in s 21(1)(j) of the Code extended to all matters then within the jurisdiction of the Court.  Sections 25 and 26 of the 1920 Code were repealed.  Section 27 was amended to enable representation by a solicitor or agent in any proceedings before the Court, and by s 28 the Court’s power to make orders for costs was no longer subject to ss 25 and 26.  The Court therefore had an unfettered discretion to award costs in any matter before it, and in any such matter there was a right to legal representation.

10. The power to make awards in respect of and generally to deal within industrial and related matters, including the registration of associations, was vested in the new Industrial Commission by s 29b and other sections of the Code.  By s 29f(1)(j) the Commission retained a power to order a party to an industrial matter to pay to another party costs and expenses specified in the order, but by s 291(2) a party could only at its own cost, be represented by a solicitor or agent “with the consent of both parties to such matter, but not otherwise”.  However, on the hearing of appeals against awards either party could, at its or his own cost, be represented by a solicitor or agent.[24]  In other words, the Industrial Commission was subject to similar restrictions on the awarding of costs and expenses as was the Industrial Court when it formerly exercised its jurisdiction and arbitral powers in respect of industrial matters.

    [24]   Section 29m of the 1920 Code, as amended by the 1966 Amendment.

11. With the 1966 Amendment a new s 132c was inserted in the 1920 Code providing, for the first time, for the recovery of money due under awards of the Commission or Conciliation Committees.  Such an application could be heard by the Industrial Commission constituted by the President or a Commissioner or by the Industrial Registrar.  Subsection (3) provided:

    No costs shall be allowed in any proceedings before the commission or the Industrial Registrar under this section but either party may, at his or its own cost, be represented by a solicitor or agent.  No cost shall be recoverable by such solicitor or agent in excess of the amount approved by the commission or Industrial Registrar.

12. By subsection (4) there was an appeal from a decision of a Commissioner or the Industrial Registrar to the President of the Commission.  The section also made provision for the registration of orders of the Commission in a Local Court and for the enforcement of such orders as a judgment of the Local Court.  Finally, there was a reciprocal provision in subsection (8) enabling an employer to bring proceedings against an employee where the employee was indebted to the employer pursuant to an award or order of the Commission or of a Conciliation Committee.

13. It is not clear why such a more obviously curial power was vested in the Industrial Commission.  The effect of doing so meant that the exercise of the power, at least by members of the Commission (but not the Industrial Registrar) became subject to the equity and good conscience provisions of s 40 of the 1920 Code.  It was also, expressly, a “no costs” jurisdiction.

    Industrial Code 1967

14. The Industrial Code 1967 (“the 1967 Code”) repealed the whole of the 1920 Code as amended.  Under the 1967 Code the Industrial Court and Industrial Commission continued substantially with the functions which had been conferred on them respectively under the 1966 Amendment.  The jurisdiction of the Industrial Court was set out in s 19 of the 1967 Code.

15. Similar provisions as had previously been enacted were contained in Part VIII of the 1967 Code for the prosecution of offences, including breaches of awards, in courts of summary jurisdiction and for the recovery of amounts due under awards as an incident of such process,[25] with a right of appeal from a magistrate to the Industrial Court.[26]

    [25] 1967 Code, s 123.

    [26] Ibid s 127.

16. Part IX of the 1967 Code continued to outlaw lockouts and strikes, and proceedings for offences against that Part could be dealt with either in the Industrial Court or summarily.[27]  However, s 133 now provided that costs could not be awarded in any such proceedings.

    [27] Ibid s 134.

17. The powers conferred by s 20 included a similar wide power in the Court to order the payment of costs and expenses.[28]  Section 21 continued to enable any party to be represented by a solicitor or agent, and s 22 again enabled the Court “in any proceedings whatsoever before it under this Part” to make such order as to the costs of such proceedings “as may by it be deemed proper”. With the exception of proceedings relating to offences for lockouts and strikes, the Court therefore continued to have a wide and unfettered power to make orders for costs, including costs of legal representation.

    [28]   1967 Code, s 20(1)(g).

18. The powers of the Industrial Commission were contained in s 25 of the 1967 Code.  The power to order payment of costs and other expenses contained in s 28(1)(j) remained similarly curtailed by s 32(2) providing that on the hearing of “any matter” a party may, at its or his own cost, be represented by a solicitor or agent.

19. Provisions for the recovery of amounts due under awards first enacted in the 1966 Amendment were continued in s 36 of the 1967 Code, the jurisdiction being vested in the Industrial Commission constituted of the President, a Commissioner or the Industrial Registrar.  Section 36(3) continued the same “no costs” approach to such proceedings.

20. For the first time there was introduced into the industrial legislation of this State a power conferred on the President of the Court and Commission as persona designata a power to direct an employer to re-employ an employee “if a question arises as to whether the dismissal of (the) employee was harsh, unjust and unreasonable”.[29]  This Court held in The Queen v Olsson; Ex parte Amalgamated Wireless (Australasia) Ltd[30] that that power was no more than an incident of the President’s power to mediate in respect of industrial matters contained in s 26(1) of the 1967 Code.  There was no power to award costs in respect of the exercise of such a power, which is not surprising, given the context in which the power was conferred.  However, it provides an important background to the unfair dismissal provisions enacted in subsequent Acts.

    [29]   1967 Code, s 26(2).

    [30] (1971) 1 SASR 453.

21. In Day v McGuire & Ors (Costs) Case[31] a question arose as to the costs of a reference by the Industrial Commission of certain questions of law to the Industrial Court pursuant to s 19(e) of the 1967 Code.  The matter before the Industrial Commission involved an intra-union dispute concerning elections within and the validity of certain rules of a registered association of employees.  The actual question referred involved the interpretation of another section of the 1967 Code.  The Court decided that each party should bear their own costs of the proceedings in the Court.  In making that decision Judge Olsson (as he then was) said:

    As to the question of the costs of this application, my attention was directed to the past practice of the Commonwealth and State Courts.  As the case of Re Insurance Officers (Clerical Indoors Staffs) Award (1962) 3 F.L.R. 74 illustrates, the Commonwealth tribunal has adopted the attitude that it will not normally award costs in interpretation matters. A similar attitude has also been adopted in Western Australia (vide A.W.U. (Goldfields) v Golden Horseshoe (1922) 1 W.A.I.G. 83) and, so far as I have been able to ascertain, in this State (vide also the approach adopted as to other matters in the Adelaide Electric Supply Company’s Salaried Officers’ Association Case supra at pp.218-9).

    It is common ground that the present reference raises difficult matters of general importance which have not previously been decided.  Furthermore, the conclusions to which I have come give rise to a most unusual and unsatisfactory legal situation which, in itself, could impose hardship in some circumstances.[32]

    [31]   (1970) 37 SAIR 59.

    [32]   Ibid 67.

22. Although the question referred involved the interpretation of the Code, the proceedings were, in effect, an extension of other proceedings in the Industrial Commission in the exercise of its supervisory jurisdiction over registered associations of employees.  It has not been unusual for questions of interpretation of awards and legislation to be at the centre and to assist in the resolution of industrial disputes.  It was therefore understandable that, consistent with the views expressed by Morgan P in the Adelaide Electric Supply Company’s Salaried Officers’ Association Case,[33] a similar attitude should be taken to the awarding of costs by the Court in such proceedings.  In addition, there were other considerations peculiar to the litigation in question which supported such an approach.

    [33]   (1944) 18 SAIR 200.

    Industrial Code Amendment Act 1970

23. Amendments were effected to the 1967 Code by the Industrial Code Amendment Act 1970 (“the 1970 Amendment”).  Among other things the office of Industrial Magistrate was created.  An industrial magistrate became a member of the Industrial Court.[34]

    [34]   1967 Code, as amended, s 10.

24. The other significant change brought about by the 1970 Amendment was the transfer of the jurisdiction to order recovery of wages and other amounts due under an award from the Industrial Commission to the Industrial Court.  Section 36 of the 1967 Code was amended accordingly.  However, subsection (3) remained so that the jurisdiction, although now exercised by the Industrial Court, continued to be a “no costs” jurisdiction.  A new subsection (9) was inserted which applied the equity and good conscience provisions, then contained in s 51 of the 1967 Code, to applications brought under s 36.

25. This meant that after an initial period of less than four years when such matters were handled by the Commission or the Industrial Registrar, the monetary claims jurisdiction became vested in the Industrial Court.  However, by way of exception to the exercise of its other jurisdiction, this was a “no costs” jurisdiction and was subject to the equity and good conscience provisions generally only applicable to the Industrial Commission.  While there was an appeal from a decision of an industrial magistrate to a judge of the Industrial Court where the amount of the claim exceeded $60, as had been the case when the jurisdiction was exercised by the Commission, the order of the Court was to be final and not to “be challenged, appealed against, reviewed, quashed, or called in question in any court or tribunal on any account whatsoever other than for excess of or want of jurisdiction”.[35]  There was a similar general privative provision in respect of both the Industrial Commission and the Industrial Court contained in s 53 of the 1967 Code.

    [35]   1967 Code, s 36(5).

    Industrial Conciliation and Arbitration Act 1972

1. The Industrial Conciliation and Arbitration Act 1972 (“the 1972 Act”) repealed most of the 1967 Code and enacted in a new Act all the provisions concerning the jurisdiction and powers of the Industrial Court and the Industrial Commission and related provisions concerning the regulation of industrial matters, the settlement of industrial disputes and the registration of associations of employees and employers.

2. The jurisdiction and powers of the Commission continued, with minor amendments, as in the 1967 Code as amended.  Section 34(1) enabled any party before the Commission to be represented by a legal practitioner or agent, but s 34(2) prevented the costs of any such representation from being included in an order for payment of costs.

3. The jurisdiction of the Industrial Court continued to be similar to that under the 1967 Code.  The monetary claims jurisdiction contained in s 36 of the 1967 Code as amended by the 1970 Amendment was included as s 15(1)(d) of the 1972 Act along with other heads of jurisdiction of the Industrial Court contained in s 15.  Section 15(1)(d) continued to apply to money claims by employees against employers and by employers against employees.  It now included a power to determine money claims allegedly due under awards of the Commonwealth Industrial Relations Commission.

4. Part X Div II continued to provide for penalties for participation in lockouts and strikes.  Proceedings for those offences were to be heard by the Court,[36] but as with the previous Act, costs could not be awarded in any such proceedings.[37]

   [36]   1972 Act, s 152.

   [37]   Ibid s 151.

5. Proceedings in respect of other offences against the Act, including for breaches of an award, were to continue to be heard summarily before a special magistrate,[38] but s 43a of the Justices Act 1921-1972 was enacted at the same time which required that proceedings for industrial offences should be heard by an industrial magistrate.  Section 171 continued to provide for an alternative means of recovery of sums due under an award upon conviction of an employer for breach of the award.

   [38]   Ibid s 174.

6. Section 15(1)(e) conferred a new head of jurisdiction on the Court, namely a jurisdiction to determine claims of alleged harsh, unjust or unreasonable dismissals, with a power to order re-employment and payment of wages lost in the meantime if re-employment was ordered.

7. Section 16(1) of the 1972 Act continued to provide that, in proceedings before the Court, any party could be represented by a legal practitioner or agent. Section 17(6) continued to provide, in terms similar to those used in the 1967 Code, for a wide general discretion in the Court to award costs except as provided elsewhere in the Act.

8. As well as the “no costs” exception in respect of proceedings for strikes and lockouts, another exception was contained in s 18(2).  That provided that in the exercise of its jurisdiction under s 15(1)(d) of the 1972 Act the Court could not, except as expressly provided elsewhere in s 18, award costs in any proceedings.  Section 18 also re-enacted the equity and good conscience provisions in respect of proceedings under s 15(1)(d).

9. The exception to the inability to award costs in s 15(1)(d) proceedings was contained in s 18(5) of the 1972 Act:

   Where an appeal is commenced against an order or decision of the Court in the exercise of the jurisdiction to which this section applies and that appeal is not allowed or is withdrawn the Court before which the appeal was commenced may order that the costs of the respondent to the appeal be paid by the appellant in an amount determined pursuant to subsection (6) of this section.

10. There was therefore a relaxing of the “no costs” jurisdiction in respect of monetary claims in certain circumstances at the level of an appeal.  Those provisions did not discriminate between appeals by employees and appeals by employers.  Any appellant was subject to the same risk if the appeal was not allowed or was withdrawn.  Otherwise, the general power of the Industrial Court to award costs applied in all other matters, including in the exercise of the new re-employment jurisdiction conferred by s 15(1)(e). 

11. The exercise of the Court’s discretion in respect of re-employment cases was the subject of consideration by the Court in several decisions which require careful attention.

12. In Minchin and Gorman v St Jude’s Child Care Centre (Reinstatement) Case[39] two employees employed as child attendants were dismissed following an industrial dispute between their union and the employer over entitlements to wages, as a consequence of which a consent award was made in the Industrial Commission.  The employer claimed that the sole motive for the dismissal was that it had become uneconomic to continue with the employment of the two employees.  The employees, on the other hand, alleged that the dismissals were, in effect, acts of retaliation for the action taken by the union on their behalf.  Judge Olsson (as he then was) held that the applicants were entitled to the relief claimed and ordered their re-employment on the footing that the dismissals had not been satisfactorily explained by the employer, and there was at least some evidence to suggest that the dismissals had been motivated by feelings of retaliation against the legitimate industrial activities of the employees, through their union.  The employees had, throughout the proceedings, been represented by a lay advocate employed by their union.

    [39]   (1973) 40 SAIR 106.

13. The successful applicants applied for an order for costs against the employer.  In a separate decision[40] Judge Olsson dismissed the application.  When speaking of the Court’s general discretion to award costs he said:

    Generally speaking the Industrial Court has, for many years, possessed an unfettered statutory power to award costs in respect of proceedings before it (other than those related to its industrial arbitration function prior to the creation of the Industrial Commission.)  This remains the situation under the current legislation save that, in relation to money claims heard and determined under section 15 (1) (d), costs may not be awarded except in certain circumstances concerning appeals from decisions at first instance. (Cf. the pre-existing section 36 of the Industrial Code 1967, as amended.)

    The general power is, for all practical purposes, co-extensive with that vested in most civil law courts, in relation to which it has consistently been held that, as a matter of the proper exercise of judicial discretion, appropriate costs should normally follow the event unless special circumstances dictate otherwise.  (See, for example, the reasoning adopted by the Full Court of the Supreme Court in Hamdorf v. Riddle (1971) LSJS 476.) As was pointed out by the House of Lords in Donald Campbell & Co. v. Pollock (1927) AC 732 [sic], this approach has, historically, developed from the settled practice of the civil courts as appropriate to the type of suits brought before them.[41]

    [40]   Minchin and Gorman v St Jude’s Child Care Centre (Costs) Case (1973) 40 SAIR 168.

    [41]   Ibid 169.

14. His Honour went on to point out that in some respects that general rule did not always apply in the exercise of the Industrial Court’s discretion.  He referred, for example, to his previous decision in Day v McGuire & Ors (Costs) Case[42] and to the decision of Morgan P in the Adelaide Electric Supply Company’s Salaried Officers’ Association Case.[43]  His Honour continued:

    The jurisdiction which I now exercise is an important adjunct to the functions of the Industrial Commission and is designed not only to ensure industrial justice as between the parties but also to prevent more general industrial unrest and stoppages arising.  In practice applications for orders for re-employment are usually prosecuted on behalf of individuals by unions of which they are members and either are born of a more widespread area of industrial disputation or, alternatively, if not settled rapidly and satisfactorily, are very likely to lead to more widespread industrial strife.

    As against such a background the validity of Morgan P’s reasoning stands out stark and clear.  Moreover the problem is exacerbated when the practical result of an order for costs in a case such as that now before me can appear to be both anomolous [sic] and almost capricious.  If costs were to be awarded to the applicants in the current proceedings the amount which they could recover would be minute.  They would receive no witness fees (because their back wages are to be paid to them) and the costs could only envisage filing fees, transcript fees and (possibly) a witness type fee for Mr. Brown as lay advocate (CF. the type of reasoning in Whitbread v. Velliaris (1969) S.A.S.R. 291.) On the other hand if costs had been awarded against the applicants then, because the respondent was represented by a legal practitioner (as is often the case), the sum involved could run into many hundreds of dollars.[44]

    [42]   (1970) 37 SAIR 59, 67.

    [43]   (1944) 18 SAIR 200, 217-218.

    [44]   (1973) 40 SAIR 168, 172-173.

15. The observations of Judge Olsson were, with respect, entirely appropriate for the type of case then before him where the Court was plainly acting as an adjunct to the Industrial Commission in its dispute settling function.  However, the observations were not appropriate to all cases in which the Industrial Court might exercise its re-employment jurisdiction.  Section 15(1)(e) of the 1972 Act was then in its infancy.  It was to spawn a great many cases of alleged unfair dismissal which were true inter-partes conflicts, with no industrial or union overtones, in respect of which such observations would be inappropriate.

16. Those observations were referred to again by Judge Olsson in The Crippled Children’s Association of SA Inc. v Nash.[45]  That was a case of a pure inter-partes dispute with no “industrial” overtones, both sides being represented by counsel.  An industrial magistrate concluded that the dismissal was harsh, unjust and unreasonable, but that because the situation which had developed between the parties was such that it would be useless to endeavour to re-establish an adequate and effective relationship between them, he dismissed the application for an order for re-employment.  Without hearing argument on the topic, he then ordered the employer to pay the applicant’s costs of the proceedings on the footing that he considered that the case was “an extreme example of an employer abusing his right at law to dismiss an employee”.[46]  There was an appeal by the employer against that order.  Judge Olsson considered the position at common law and concluded:

    Thus at common law it is difficult to see how, consistently with the exercise of a proper judicial discretion, any order for costs could properly have been made against the Association.  Such an order is not, as it were, to be made as a consolation prize for partial success as to some issues in the proceedings, or to mark the Court’s displeasure at the seeming morals of a situation.  To do so would utterly be in conflict with long established practice and principle.[47]

    [45]   (1979) 46 SAIR 952.

    [46]   Ibid 956.

    [47]   Ibid 958.

17. His Honour seems to have allowed the appeal and quashed the order for costs on that basis.  Nevertheless, he also referred to what he had said in Minchin and Gorman v St Jude’s Child Care Centre (Costs) Case[48] as added justification for allowing the appeal.  He concluded:

    There is no suggestion in this case that the conduct of any party within the proceedings was frivolous, vexatious or tantamount to an abuse of process.  On the well settled approach of the Court – apart from any common law aspect – it is impossible to perceive any basis upon which an order for costs could properly be made.[49]

    [48]   (1973) 40 SAIR 168.

    [49]   Ibid 960.

18. Those observations were not necessary for the decision in the case, nor do I consider that they were appropriate.  That was a very different case from the situation which His Honour had to decide in the Minchin and Gorman Case.

19. In University of Adelaide Ancillary Staff Association (Interpretation) Case[50] Judge Russell QC exercised the power of the Court under s 15(1)(a) of the 1972 Act to make a declaratory order interpreting a registered industrial agreement.  He declined to make an order for costs in favour of the successful party.  In considering the exercise of his discretion he reviewed a number of cases,[51] including some of those mentioned above, and declined to make the order sought because he saw “such proceedings as being a useful adjunct to the conciliatory process, which lies at the heart of the legislation under which these proceedings have been taken”.[52]  His Honour described it as “virtually an industrial type of litigation … so as to avoid further hearings no doubt before (a Commissioner) and to enable them to approach (the Commissioner) to resolve any differences which now lie between them …”.

    [50]   (1981) 48 SAIR 687.

    [51]   Ibid 700-706.

    [52]   Ibid 704.  See also 706.

20. The last case necessary to consider in the context of the 1972 Act is Gregory’s Superstores v Papakoustantinou & Anor.[53]In that case three applicants brought proceedings under s 15(1)(e) against their former employer.  There were no “industrial” overtones to the case.  All three employees succeeded in obtaining orders for re-employment before an industrial magistrate.  On appeal before a judge of the Industrial Court, the orders for re-employment were quashed in respect of two of the employees, although the finding was upheld that their dismissal was harsh, unjust or unreasonable.  In relation to the third employee, the appeal was dismissed.[54]  In deciding the issue of costs, Judge Layton (as she then was) referred to the general discretion conferred upon the Industrial Court and to the fact that there was no statutory limitation placed on the Court’s exercise of discretion.  She referred to the general principle that costs follow the event and to the observations quoted above of Morgan P in Adelaide Electric Supply Company’s Salaried Officers’ Association Case[55] and to those of Judge Olsson in Minchin and Gorman v St Jude’s Child Care Centre (Costs).[56]  Her Honour concluded:

    [53] (1981) 1 IR 97.

    [54]   For the decision on the appeal (other than in respect of costs) see Gregory’s Superstores v Papakoustantinou, Zervas & Zervas (1981) 48 SAIR 552.

    [55]   (1944) 18 SAIR 200.

    [56]   (1973) 40 SAIR 168.

    Considering these authorities the following propositions seem to emerge—

    1.Unless statutorily provided otherwise, an order for costs for proceedings pursuant to the Industrial Conciliation and Arbitration Act is solely at the discretion of the Court.

    2.The Court must exercise its discretion judicially having particular regard to previous authority, practice as well as the particular facts and circumstances of the case.

    3.At common law, the normal practice which has become the rule is that costs should follow the event except in exceptional circumstances connected with the case eg, where the conduct of the successful party has been unconscionable, vexatious or improper.

    4.In industrial matters which are penal matters, the above common law rule should apply.

    5.In industrial matters other than penal matters it is unwise for the common law rule to apply because—(1) In such industrial matters, conciliation must be at the forefront; (2) Industrial matters usually concern large organisations.  The issue has a more widespread effect.  They are therefore not inter-partes proceedings in the true sense.  (3) An order for costs may be anomalous or capricious if an unrepresented unsuccessful party had to pay the costs of legal representation of the successful party.

    6.Section 15(1)(e) proceedings are not penal proceedings therefore on the face of it, it would be unwise for the common law rule to be applied.  However, if the particular s 15(1)(e) proceedings do not contain those characteristics mentioned in 4 above [sic][57] which would make the application of the common law rule unwise then the common law rule as to costs should be applied.

    In considering the question of costs pursuant to s. 15(1)(e) it is therefore important to look at whether or not in the particular proceedings it is one in which conciliation is at the forefront, whether the dismissal does involve a wider industrial issue or unrest and whether the particular proceedings can be characterised as inter-partes as well as whether the unsuccessful party is represented by a legal practitioner.

    On the facts in this case there is nothing which suggests that conciliation was at the forefront of the proceedings nor has there been any submission to that effect.  There is also nothing to suggest that the particular dismissals involved a larger industrial area or that the dismissals could lead to industrial unrest.  There was no suggestion of a union or unions being involved on either side.  The proceedings in my opinion could be truly characterised as inter-partes and all parties were legally represented.  On the facts in this case therefore, I consider that it would not be unwise to apply the common law rule as to costs and that the common law rule is appropriate.[58]

    [57]   I believe the reference to paragraph 4 in the text is a mistake.

    [58]   At 99.

21. On that basis the Judge ordered that, in respect of the unsuccessful appeal concerning the third employee, that employee should have her costs both of the appeal and at first instance.  Leaving aside an incidental matter, the other two employees were ordered to pay the employer’s costs of its successful appeal and at first instance.

22. I return to the numbered paragraphs of the reasons of Judge Layton set forth above.  I respectfully agree that the propositions contained in paragraphs 1-4 inclusive correctly reflect the position taken by the Industrial Court to that time.  As to paragraph 5, I think it is incorrect to say that those propositions apply to all industrial matters “other than penal matters”.  The only qualification on the exercise of the common law discretion with respect to costs had been expressed in those cases where the exercise of the Court’s jurisdiction was incidental to the jurisdiction of the Court or of the Commission in the settlement of industrial disputes or the exercise of the general power of regulating industrial matters as defined from time to time in the legislation.

23. As to paragraph 6, similarly I do not consider that there has ever been any reservation on the application of the common law discretion in matters arising under s 15(1)(e) merely because they are not penal proceedings.  However, I respectfully agree with and endorse the view expressed by Her Honour that where proceedings under s 15(1)(e) did not possess any of the characteristics mentioned in paragraph 5, then the common law rule as to costs was to be applied.

    Industrial Conciliation and Arbitration Act Amendment Act 1984

24. The Industrial Conciliation and Arbitration Act Amendment Act 1984 took effect on 14 May 1984.  It amended the 1972 Act by transferring the unfair dismissal jurisdiction from the Industrial Court to the Industrial Commission.  Those provisions were thereafter contained in s 31 of the 1972 Act, and the awarding of costs in re-employment cases thereafter became regulated by various provisions applicable only to the Industrial Commission and its successor, the Industrial Relations Commission.

    Industrial Conciliation and Arbitration Act Amendment (Statute Law Revision) Act 1987

25. By the Industrial Conciliation and Arbitration Act Amendment (Statute Law Revision) Act 1987 the provisions of s 18 of the 1972 Act were repealed and the relevant cost provisions were incorporated into an amended s 15 of the Act, but without any change of substance.

    Industrial Conciliation and Arbitration (Commonwealth Provisions) Amendment Act 1991

26. By the Industrial Conciliation and Arbitration (Commonwealth Provisions) Amendment Act 1991 the name of the 1972 Act was changed to the Industrial Relations Act (SA) 1972.

1. Against that background, I make the following points in relation to these costs provisions:

   ·A claim for monies due remained a “no costs” jurisdiction at first instance, (save for a special provision in a superannuation claim benefiting an employee in relation to expenses incurred establishing a present value of loss);

   ·Costs in relation to appeal were still limited to an unsuccessful appellant or an appellant who withdrew an appeal or lost on appeal; and

   ·These costs provisions expressly differed from costs provisions at common law.  They also differed from the general costs provisions applicable to the Industrial Court.

2. Judge Cawthorne considered the effect of the costs provisions under s 15(3)(i) of the Industrial Relations Act 1972 (SA) in Hayes and Conway v Tempo Services Pty Ltd (“Hayes and Conway”).[134] In that case, Judge Cawthorne indicated that he was applying the approach he had taken in Willis v Serpentine Nominees Pty Ltd,[135] where he had made the following observations:[136]

   It is clear from that provision that costs cannot be awarded against an unsuccessful party in first instance section 15(1)(d) proceedings but may be awarded if that party unsuccessfully appeals such a decision.  Moreover it is to be noted that there is no provision for an award of costs in favour of a successful appellant.  It would seem to follow therefore that the provision is designed to discourage appeals in a jurisdiction which is cost free at first instance and to provide recompense for a successful respondent in appropriate cases.  Otherwise a successful litigant who has already borne his or her costs of the proceedings at first instance would also have to bear the costs of an unsuccessful appeal. All that said however ultimately the question whether costs should be awarded against an unsuccessful appellant involves the exercise of a discretion which must be exercised according to proper principle.

   [134] [1993] SAIRC 52 (17 December 1993).

   [135] Unreported, Judge Cawthorne, 13 August 1993, Action No. 229 of 1991.

   [136] Ibid.

3. These remarks are the first that I have found in relation to costs orders in money claims under s 15(3)(i). The reasons given by His Honour are not detailed and there is no discussion of the history or context of costs orders beyond simply stating that the provision was designed to discourage appeals.

4. The appeal before Judge Cawthorne was instituted by an employer who lost both at first instance and on appeal.  The Judge did not elucidate as to what he meant when he indicated that the discretion to award costs should be “exercised according to proper principle”.  The express provisions allowed a successful party on appeal to be awarded costs. His Honour decided that the successful employees should receive their costs of the appeal. I note that one of the submissions made by the employer as to why each party should bear their own costs was that the interpretation of the award, for which it contended, was reasonably open and that the award had industry wide application. These features had been recognised as relevant by earlier cases in the industrial jurisdiction. However, this argument on the facts of the case did not carry the day.

5. Judge Cawthorne correctly observed that s 15(3)(i) was designed to discourage appeals.  The effect of the provision was that an employee was given a chance to take proceedings at first instance and have the claim heard without a costs impediment. Thereafter any appeal lodged by an employee was at risk of a costs order if the appeal was either withdrawn or was again unsuccessful.  The limited circumstances in which costs could be granted by the Court suggest that the legislation was directed towards discouraging inappropriate appeals or appeals with little prospect of success. 

6. Although s 15(3)(i) is expressed in neutral terms so that on its face, the provision is applicable to either an employer or an employee appellant, a monetary claim can only be made by an employee.  Further, a costs order may have a different impact depending on whether the appellant is an employee or an employer.  This is a result of the nature of the proceedings and the fact that the relief is sought by the employee, being the only party seeking to economically gain from the proceedings. The employee is the party with a particular interest in continuing with the claim in order to obtain the monetary benefit.  There are also differing effects of costs orders depending on the economic positions of the parties. It is more likely that an employer will be represented, thereby placing a greater economic burden on an employee who is unrepresented and unsuccessful.

7. The industrial jurisdiction has always reflected a concern about the legal costs of proceedings and the impact this has on the parties before it. This is exemplified in the statutory provisions that were designed to minimise the impact of costs by limiting representation, making parties bear their own costs of representation and controlling costs that could be charged by legal representatives.

   Industrial and Employees Relations Act 1994 

8. In 1994, the Industrial and Employee Relations Act 1994 (“the IER Act”) repealed the Industrial Relations Act 1972.

9. The jurisdiction of the Industrial Relations Court, as it was renamed, retained the hearing of monetary claims. The monetary claim provisions contained in s 14, and ss 179 to 184 of the IER Act were expressed in similar terms as the ICA Act, with an additional power of the Industrial Relations Court to order interest. The special provision in relation to costs on monetary claims was further amended.

10. Section 185 provided:

    185. The Court may only award costs in proceedings based on a monetary claim as follows—

    (a)the Court may award costs on a claim for non-payment of superannuation contributions to cover reasonable expenses incurred by the claimant to establish the present value of the loss; and

    (b)the Court may award.0 costs on an appeal.

11. Monetary claim proceedings remained a “no costs” jurisdiction at first instance.[137]  The situation on appeal, however, differed in that the previous qualification of allowing a court to order costs against an unsuccessful appellant or an appellant who withdrew an appeal was removed.  Consequently, there was no express limitation on an order for costs being made.

    [137] With the same modification as to reasonable expenses incurred by an employee in establishing present value of loss on superannuation claims.

12. Therefore, the Industrial Relations Court and the Industrial Relations Commission were still both “no costs” jurisdictions, with the only exceptions being the cost provisions in relation to unfair dismissal and monetary claims.

13. Turning again to the case law, the provisions relating to costs of appeal in relation to unfair dismissals, as contained in s 210(2), have been the subject of a number of decisions under this Act. The first, which specifically considered these provisions, was the Full Industrial Relations Commission in Estevez v Gerard Industries Pty Ltd (“Estevez”). [138] 

    [138] (1995) 62 SAIR 19.

14. In that case, the Full Commission noted the following:[139]

    We note the wording of section 210(2) includes no constraints in its application, and whilst the 1994 Act clearly establishes a broad right to award costs on appeal, we do not see that inevitably leading to costs following the event. The concept of costs following the event has been quite foreign to the Industrial (Commission) jurisdiction in its widest sense; indeed the concept of costs being awarded at all in Commission proceedings is one of only fairly recent vintage, via the unfair dismissal jurisdiction. Nonetheless we note the Act contains costs provisions which are peculiar to the industrial sphere which have the effect of distinguishing them from costs provisions in other jurisdictions. Any award of costs is clearly a result of an exercise of discretion by the tribunal, such discretion being exercised judicially.

    The Commission should have regard to all of the circumstances of the case including the outcome of the appeal and the basis of the decision.  The Commission should also be mindful of the conduct of the parties to the proceedings, and whilst the test is not necessarily that one party or the other ‘clearly acted unreasonably’ nonetheless this test which is required at first instance, should be borne in mind in relation to proceedings on appeal.  [Emphasis added]

    [139] Estevez v Gerard Industries Pty Ltd (1995) 62 SAIR 19, 24-5.

15. The Full Commission decided that no order for costs should be made in favour of the successful appellant.  In doing so, the Full Commission endorsed the historical approach of drawing a distinction between costs in the industrial jurisdiction and costs in the civil jurisdiction.

16. Subsequent to that decision, the Full Industrial Relations Commission case of Hand v Adelaide Bank (No. 2)[140] considered an application for costs on appeal in relation to unfair dismissal. In particular, it considered the overall effect of ss 109, 173 and 210 of the Industrial and Employees Relations Act 1994 (SA).  After citing those sections the majority stated:[141]

    [140] (1997) 73 IR 13.

    [141] Ibid, 13-14.

    Section 210(2) of the Act was recently considered by the Full Commission in Estevez v Gerard Industries Pty. Ltd. (1995) 62 SAIR 19.  In that case the Commission resolved not to make any orders for costs, despite its conclusion that the appellant worker’s appeal should succeed.

    In the exercise of its discretion, the Commission considered that having “… regard to the nature of our findings on appeal, and the relative proximity of the award of compensation to the original outcome … [and the fact] … that the respondent had an arguable position to defend at the hearing …” that it should not make an order for costs in favour of the appellant.

    In the context of this case, we regard the ratio decidendi of the case as being limited to the following propositions:

    (1) Section 210(2) gives the Full Commission a general power to award costs.

    (2)Such power is to be exercised in the discretion of the Commission and must be exercised judicially.

    (3)Costs would not inevitably follow the event. [Emphasis added]

    In our view, it would be quite wrong to regard the decision in Estevez as laying down a prescription as to how the Full Commission’s discretion as to costs, is to be exercised.

17. Applying that approach, the majority decided that even though the appellant was successful, there should be no order as to costs.  Dissenting reasons for decision given by Deputy President McCusker largely appear to have been with regard to the outcome in Estevez, rather than the principles and the propositions expressed by the majority.

18. These cases were followed by the Full Commission decisions in Siostrom v J and A Transport Pty Ltd[142] and Siegloff v Marksman Training Systems.[143]In the latter case, Commissioner Huxter stated:[144]

    [142] (1998) 81 IR 147.

    [143] (1998) 44 AILR 11-097; [1998] SAIRComm 57.

    [144] Siegloff v Marksman Training Systems [1998] SAIRComm 57.

    It is apparent from the statute that, in this jurisdiction, the power to award costs is limited and, as has historically been the case in this jurisdiction, costs do not inevitably follow the event.  It is also clear that there is a general power for the Full Commission to award costs in these cases.  It is accepted that such power is to be exercised in each particular case as the discretion of the Full Commission and must be exercised judicially.

    …

    As to the pronouncements of various superior courts on the issue of costs, they are generally directed towards the practices of courts where costs do follow the event and where a refusal of costs is the exception. As such, whilst instructive or of some general relevance they provide only limited guidance for this Tribunal, acting as it must within the strictures of the relevant provisions of the Act.

    There is support in Estevez (supra) for the proposition that:

    ‘… whilst the test is not necessarily that one party or the other “clearly acted unreasonably” nonetheless this test which is required at first instance, should be borne in mind in relation to proceedings on appeal.’  

    …

    The mere fact of succeeding on appeal does not entitle the appellant to the costs of that appeal as of right.  This is generally a ‘no costs’ jurisdiction.  As we have indicated, costs do not necessarily follow the event.  The question is whether the discretion to award costs should be exercised by reason of some features of the case.  With respect, it is not, as put to us by Mr. DiFazio, whether the appellant should be denied costs, as if they were otherwise automatically available. 

    …

    In short, nothing that was put to us in pursuit of this costs application persuades us that we should exercise our discretion to award the costs of the appeal in favour of the appellant.  We therefore make no order as to costs. [Emphasis in original] 

19. These decisions of the Full Commission all contained detailed reasons. They are to be contrasted with the short observations made by individual judges who have touched on the topic of costs in relation to appeals on monetary claims. The appellant in this case relies on these brief individual statements to support the proposition that the usual exercise of discretion in the civil jurisdiction should be applied in monetary claims on appeal.

20. The first case relied on by the appellant is Tjombanakis v Marinakis.[145] In this case, Senior Judge Jennings sitting in the Industrial Relations Court, was concerned with the provisions of s 185 of the Industrial and Employees Relations Act 1994 (SA). This section was in the same terms as the present s 185(b) of the Fair Work Act 1994 (SA) presently before this Court.

    [145] (1998) 78 IR 481.

21. Senior Judge Jennings had before him an application for costs made by an employee who had lost at first instance but was successful on appeal.  His Honour noted:[146]

    It is significant that Parliament has changed the previous provision relating to costs, and removed the restriction that limited the appellate Court to awarding costs against an unsuccessful appellant, or an appellant who had withdrawn the appeal.  As to the significance of this, see generally the remarks of Cawthorne J in Hayes and Conway v Tempo Services Pty Ltd (unreported, SA Industrial Relations Court, Print I.127A/1993).

    The significance of the removal of this limitation on the Court’s power, is that it indicates Parliament’s intention that the convention of costs following the event, subject to the overriding discretion of the Court, should be restored. [Emphasis added]

    [146] Tjombanakis v Marinakis (1998) 78 IR 481, 481.

22. His Honour continued:[147]

    Having considered the arguments of Mr Rau, of counsel, for the applicant, and Mr Cappola, of counsel, for the respondent, I find that nothing has been presented to me what would urge me to exercise my discretion against the dictates of that convention. [Emphasis added]

    [147] Ibid.

23. There are no indications given in the judgment as to the nature of the arguments put forward by either party, and no other reasons given for the statements emphasised. The statements raise questions as to what the Senior Judge intended when he said that the “convention of costs … of the Court, should be restored”, given the specific reference to the earlier remarks of Judge Cawthorne in Hayes and Conway; the observations which have been made by the Senior Judge in other cases which have recognised the differing practice in the industrial jurisdiction as to costs; and importantly, His Honour’s concurrence as a member of the Full Court in the reasons given in this case.

24. The Full Court decision, which is the subject of appeal before this Court, is the first decision containing any detail on matters relevant to the exercise of discretion in relation to appeals on monetary claims. Therefore, I do not consider that the Senior Judge in Tjombanakis v Marinakis was necessarily intending to express the view that the removal of the express limitation thereby meant that costs should normally follow the event in accordance with the exercise of the discretion in the common law civil jurisdiction.

25. The second case relied on by the appellant in this case is a decision of the then Acting Judge Gilchrist in Solora South Pty Ltd v McKendrick.[148] In that case, the employee was successful at first instance but was an unsuccessful respondent on appeal. A primary issue on costs was whether or not the appeal concerned a monetary claim. If it was a monetary claim then the provisions of s 185 applied. The Acting Judge decided that it should be characterised as a monetary claim and almost all of the reasoning concerned this issue. In conclusion, His Honour appeared to apply a general rule that he should not depart in that case from the “general rule that the successful party should be awarded costs”.[149]  No discussion occurred as to why this principle was applied. It appeared to have been an assumption of the Acting Judge.

    [148] (1995) 87 IR 284.

    [149] Solora South Pty Ltd v McKendrick (1995) 87 IR 284, 285.

26. This approach was again adopted by Judge Gilchrist in a third case of Dunk v South Australian Health Commission.[150]  Similarly, other single judges without further discussion have adopted these brief statements.[151]

    [150] [2000] SAIRC 4 (29 March 2000).

    [151] See for example, Bewley v Linfox Interstate Transport  [1999] SAIRC 13 (9 April 199) and Giancaspro v Eurest Australia Pty Ltd [2004] SAIRC 17 (11 March 2004).

    Fair Work Act 1994

27. Completing the legislative history, s 173 of the FWA provides that “the Court or the Commission may only make orders for costs where specifically authorised to do so”, being the same expression as in s 173 of the IER Act.

28. Section 110 deals with costs with respect to unfair dismissal and is in the same terms as s 109 of the IER Act. Section 185 provides for costs in relation to monetary claims, which is expressed in the same terms as the corresponding section in the IER Act. These two provisions are the only exceptions to the “no costs” jurisdiction of the Court and the Commission.

29. Monetary claims and claims for unfair dismissal are also singled out for compulsory conciliation conferences by both the Industrial Relations Court and the Industrial Relations Commission. In 2005 the following provisions were inserted:[152]

    [152] Industrial Law Reform (Fair Work) Act 2005 s 62.

    Division 4A—Conciliation conferences

    155A—Application of Division

    This Division applies to proceedings founded on –

    (a) a monetary claim;

    (b) a claim for relief against unfair dismissal.

    155B—Conciliation conference

    (1)    Before the Court or the Commission hears proceedings to which this Division applies, a conference of the parties must be held for the purpose of exploring –

    (a)    the possibility of resolving the matters at issue by conciliation and ensuring that the parties are fully informed of the possible consequences of taking the proceedings further; and

    (b)    if the proceedings are to progress further and the parties are involved in 2 or more sets of proceedings under this Act – the possibility of hearing and determining some or all of the proceedings concurrently.

    (2)    Any member of the Court or Commission may preside at a conference under subsection (1) unless the parties are in a remote part of the State, in which case the President may authorise a stipendiary magistrate to call and preside at the conference.

    (3)    The person presiding at the conference (the presiding officer) must, not more than 3 business days after the conclusion of the conference –

    (a)    give the parties a preliminary assessment of the merits of the claim (or, if there is more than 1 claim, of each claim) and any defence to the claim (or claims); and

    (b)    recommend to the parties how best to proceed to resolution of the questions in issue between them (or, if in the presiding officer’s opinion the application patently lacks merit, recommend that the claim be withdrawn).

    (4)    If a claim is not resolved by conciliation or withdrawn, it will be set down for hearing before the Court or Commission (as the case requires).

1. Therefore, conciliation is expressed by the legislation as being a vital precursor before matters involving money claims and unfair dismissals can be heard.

   Conclusions on the legislation and case law

2. It is apparent that costs within the industrial jurisdiction has never been expressed or applied in the same way as in the common law jurisdiction, particularly in respect of monetary claims and applications for unfair dismissal. 

3. The specific issue which arises for consideration on this appeal is whether the legislators, in deleting the earlier limited exception to “no costs” on appeals in monetary claims, and instead providing a generally expressed discretion to order costs on appeal, was thereby intending the discretion to be exercised in accordance with the usual approach in the common law jurisdiction.  In my view, given the history of the legislation, the express provision as to costs at first instance and the manner in which such unfettered statutory provisions have been interpreted in the past, that is not how that subsection should be interpreted.

4. I note that unfair dismissal claims and money claims under the FWA have the following common features:

   ·The jurisdiction of the Industrial Relations Court and Industrial Relations Commission is a “no costs” jurisdiction. The only limited exceptions are the specific costs provisions in relation to these claims.

   ·Unfair dismissal claims and money claims, by their very nature, are proceedings instituted by employees for the specific benefit of employees. It is beneficial legislation to protect employees in relation to their wages and conditions of employment.

   ·Proceedings for unfair dismissal claims and money claims are not penal matters attracting the common law principles on costs.

   ·The costs provisions are contained within an overall framework of the “no costs” jurisdiction of both the Industrial Relations Court and the Industrial Relations Commission which expressly differs from common law:

   -With regard to monetary claims, s 185 states the Court can only award costs in two circumstances, one of which is on an appeal. The Court has no power to order costs on a hearing at first instance; and

   -As to unfair dismissal applications, the power to order costs is limited to awarding costs against a party who unreasonably fails to discontinue or settle proceedings. This qualification does not permit costs to be awarded against a party simply because the party is unsuccessful at a hearing.

   ·The potential exposure of employees to an order for costs against them on a hearing at first instance, simply because they were unsuccessful, would have a dissuasive effect on claims being made in the first place.

   ·Generally speaking, employers are likely to be in a better economic position than the employees.  Employees are more likely to be self-represented than employers. As Olsson J noted in the Minchin and Gorman case, there is a differing exposure and different effect on a party from an order for costs, depending on whether a party is represented or unrepresented.

   ·Claims may be instituted by individuals or by industrial organisations and they may arise in circumstances which involve industrial disputation or unrest.

   ·Even if claims are not connected to industrial disputation or unrest, they may have a broader impact than simply inter partes proceedings between individual parties. Their outcome may affect a large number of other employees in the employment of the respondent, or affect other employees in the industry.

   ·Conciliation or mediation is at the forefront of the jurisdiction both in the Court and the Commission.[153]

   ·The history of industrial cases indicates that even when the costs provisions have been unfettered in their expression, the approach taken by the Court and Commission in the exercise of the discretion to award costs has differed from the approach taken at common law.

   [153] Fair Work Act 1994 (SA) ss 155A and 155B.

5. In summary, having regard to the legislative history, the case law and the specific legislative provisions in s 185(b) of the FWA, the following approach to costs is indicated. If a monetary claim is simply an inter partes proceeding between individual parties, then it is appropriate for costs on appeal to follow the common law principles and costs usually follow the event. However, if on the facts of the case there are industrial features such that the proceedings are not appropriately characterised as inter partes proceedings, then the application of common law principles may not be appropriate. 

6. The industrial features which have been recognised in past cases as attracting a different approach are when the proceedings have arisen in circumstances of industrial disputation or unrest; or in circumstances where conciliation was at the forefront; or where the proceedings have a broader interest and impact other than simply the outcome in the individual case; or where an order for costs may be anomalous or have a capricious effect on an unrepresented party having to pay the costs of legal representation of the successful party. These are to be considered collectively as part of the exercise of the discretion of the Industrial Relations Court and not simply applied as individual criteria.  These are not limiting criteria and the Industrial Relations Court and the Industrial Relations Commission, exercising as they do a specialised jurisdiction, are better placed to identify other relevant industrial features.  I particularly refer to the last mentioned feature of the economic burden of an adverse costs order. This feature on its own would not be regarded as an industrial feature such that it would attract a different approach on costs. It is one matter which is relevant to the exercise of discretion if other features of an industrial nature are present.

   The Full Industrial Relations Court approach

7. Turning now to the approach which the Full Industrial Relations Court took to the question of costs in this case.

8. In paragraph 3 of the reasons of Judge McCusker, with whom the Senior Judge and Judge Parsons agreed, His Honour characterised s 185 of the FWA as “… a hybrid provision in the sense that it qualifies the discretion of the Court to award costs”. In this, I consider he is correct. The Judge continues with:

   … The purpose of Parliament appears to be that a person seeking to make a monetary claim should be free of the risk of having an award of costs against him or her at least at first instance.  However, that protection is absent when the matter goes on appeal.

9. I agree with his observations.

10. Judge McCusker continues on in paragraph 4:

    As a result a dichotomy may occur where the applicant has exercised his/her protected right at trial and then the employer appeals and succeeds on the appeal.  It seems to me that the purpose of Parliament that a party should be free of the risk of costs at first instance, will be compromised if an order for costs can be made on the appeal.  I have no doubt that an order for costs can be made against the applicant on appeal, but on the other hand given the primary purpose of Parliament, I think it is matter that we should have regard to when considering the exercise of the discretion.

11. In my view, the wording used in the expression that a party who is free of costs at first instance “will be compromised if an order for costs can be made on appeal” is perhaps somewhat robust and a more felicitous expression could have been the phrase “may be compromised”.  Having said that, Judge McCusker went on to state, “… I have no doubt that an order for costs can be made against the applicant on appeal …”.[154]  I therefore consider that the Court was correct in its analysis.  I do not agree with the reasoning of Bleby J that there has been error. In my opinion, it is an appropriate consideration to be taken into account with regard to the exercise of discretion in the Industrial Court.

    [154] Advance Resource Services Pty Ltd t/as Progress Couriers and Taxi Trucks v Charlton [2007] SAIRC 64 (12 October 2007), [4].

12. In paragraph 5 and 6 of the reasoning, the Court reflects on submissions which were made by the appellant, namely:

    …

    “11.1 the issue at bar affected or had the potential to affect not just the respondent, but also some 102 other drivers;

    11.2 the issues were complex, and were, given the growing use of contractors of general importance to the industry as a whole as well as to the individual litigants.”

    …

    Those submissions indicate that there were potentially broader interests at stake than a case simply between Mr Charlton and the appellant.  To that degree only, there has been an added benefit to the appellant in the confirmation of the business model it uses to conduct its business.

13. I note that it was the appellant who raised the issue of the case being more widespread than simply an inter partes case, which is likely to explain the use of a senior counsel to argue the case. The 60 pages of analysis by the Full Industrial Relations Court was an in depth discussion of the provisions of a common written contract and work rules which governed the respondent and others.[155] Judge Parsons, in her reasons, concluded:[156]

    This case is not without difficulty, however I would conclude that the respondent was an independent contractor, and as indicated earlier I would allow the appeal.

    [155] Advance Resource Services Pty Ltd t/as Propers Couriers and Taxi Trucks v Charlton (2007) 165 IR 275.

    [156] Ibid, 334.

14. The reference by the Full Industrial Relations Court to ‘the confirmation of the business model” in paragraph 6 above, was simply a reference back to the broader impact of the case and the importance of the outcome to the appellant.

15. In expressing these views the Court was stating nothing more than it had previously expressed with regard to features that are relevant to the exercise of discretion to award costs in the industrial jurisdiction.

16. The Court in the judgment on costs then went on to consider the matter of the impact of the costs on the appellant.  The Court explicitly said:[157]

    There is also the matter of Mr Charlton having conducted this litigation in person.  By that I mean that had Mr Charlton succeeded, the appellant would not have had to meet an order for costs against it.  That perhaps is a minimal issue as there has to be some recognition of the choice people make to be represented or not represented.

    Finally the order for costs in what was a reasonably complex and difficult matter, would not be small.  It cannot be ignored that this could have possibly devastating effects on a person of moderate means.  It is likely Mr Charlton fits this category.

    [157] Advance Resource Services Pty Ltd t/as Propers Couriers and Taxi Trucks v Charlton [2007] SAIRC 64 (12 October 2007), [8]-[9].

17. In so stating these matters, again, the concern about an unrepresented unsuccessful party on appeal having to bear significant costs and, in particular in this case, costs of representation by a senior counsel, is a relevant consideration.

18. The Full Industrial Relations Court concluded in paragraphs 11 and 12:

    In the run of the mill case it is true that costs should follow the event.  As has been put on behalf of Mr Charlton, there may have been a different result had Mr Charlton appealed against an adverse decision at first instance.  However, in this case Mr Charlton won at first instance and at the first appeal.  He only failed before the Full Industrial Court.

    The dominant principle must always be in the given case the pursuit of a just outcome.  In my conclusion a just outcome in this particular case would be for each party to pay their own costs.

19. In my view, these observations in the exercise of the discretion were unremarkable and appropriate in that jurisdiction.  They were relevant matters to be considered in that case.  Whilst they may not be relevant in the common law civil jurisdiction, they are considerations which have been recognised by the industrial jurisdiction for many years.  It was also pertinent in this case to have regard to the fact that the respondent on appeal had only been unsuccessful on the third hearing.  He had been successful on two previous hearings.  He did not have an unreasonable argument.

20. The one point on which I take issue with the reasoning of the Full Industrial Relations Court is that contained in paragraph 7 with regard to the expenses of litigation as a deductible expense.  I agree with the reasons of Bleby J that this was not an appropriate consideration for the reasons which he gives.  However, although there was error in one aspect of the exercise of the Court’s discretion, I am not satisfied that this sufficiently taints the remainder of the reasoning.  In my view, the appeal against that decision should be dismissed.