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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] SASC 118
Decision Date: 2 May 2008

CaseChat Overview and Summary

In Advance Resource Services Pty Ltd v Charlton, the parties were involved in a dispute that was brought before the courts of South Australia. Advance Resource Services Pty Ltd (the appellant) challenged the decisions of the Industrial Relations Court and the Full Court of Industrial Relations Court regarding an employee's dismissal and the subsequent costs order. The primary issues the court had to decide were whether an appeal lay as of right from the Industrial Relations Court to the Full Court of the Supreme Court, whether the Industrial Relations Court acted in excess or deficiency of jurisdiction, and whether the discretion to award costs on appeal in the industrial jurisdiction should align with the common law principles.

The court found that the appeal did not lie as of right from the Industrial Relations Court to the Full Court of the Supreme Court, as the Full Court of Industrial Relations Court had acted within its jurisdiction in determining that the appellant was not an employee. Regarding the purported cross-appeal, the court held that it was an appeal and was out of time. On the issue of costs, the court held that the discretion to award costs on appeal in the industrial jurisdiction should not be exercised according to the common law principle that costs follow the event. Instead, the court considered industrial features relevant to the exercise of the discretion to award costs. The court found that the exercise of the Industrial Relations Court's discretion miscarried, leading to the appeal being allowed by a majority. The matter was remitted to the Industrial Relations Court for reconsideration.

The final orders included dismissing the appeal as of right, allowing the appeal on the issue of costs, and remitting the matter to the Industrial Relations Court for reconsideration of the costs order.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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. 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