Advanced Resources Pty Ltd v Charlton

[2007] SASC 434

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

ADVANCED RESOURCES PTY LTD v CHARLTON

[2007] SASC 434

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice White)

11 December 2007

INDUSTRIAL LAW - SOUTH AUSTRALIA - APPEALS AND REFERENCES

Conditional application for permission to cross-appeal against decision of Full Court of Industrial Relations Court - whether applicant needs permission to cross-appeal - whether cross-appeal is in fact appeal - whether extension of time required to file initiating documents.

Held:  no issue of principle arises - permission to appeal or cross-appeal refused.

Fair Work Act 1994 (SA) s 191(1)(a); Supreme Court Civil Rules 2006 (SA) r 283, r 288, referred to.
Advanced Resources Pty Ltd v Charlton [2007] SASC 393, considered.

ADVANCED RESOURCES PTY LTD v CHARLTON
[2007] SASC 434

Full Court:  Doyle CJ, Anderson and White JJ

1. THE COURT:        Mr Charlton has made a conditional application for permission to cross appeal against a decision by the Full Court of the Industrial Relations Court of South Australia.

2. The application is conditional, because Mr Charlton submits that he does not require permission to cross appeal.

3. By letter dated 15 November 2007 his solicitor has asked the Court to deal with the application for permission to cross appeal.

4. As will appear, there are two subsidiary issues.  The first is whether this is a cross appeal, or whether it is in fact an appeal.  The second is whether an extension of time is required for the filing of the initiating documents.

5. On 10 July 2007 the Full Court of the Industrial Relations Court allowed an appeal to it against a decision by a single Judge.  That Judge had affirmed a decision by a Magistrate.  The Full Court decided (by majority) that Mr Charlton was an independent contractor to Advance Resource Services Pty Ltd (“Advance”) (this appears to be the correct name of the relevant party), and not an employee.  It followed that a claim made by Mr Charlton in the Industrial Relations Court against Advance, for a payment due under an award, had to be dismissed, as the Court had jurisdiction to enter judgment in his favour only if he was an employee or former employee of Advance.

6. The order of the Full Court of the Industrial Relations Court has been drawn up and is dated 10 July 2007.

7. As it happens, the order appears to be incomplete.  It records that “the appeal be allowed”.  It contains no consequential orders dealing with the judgment under appeal, or with the claim originally made by Mr Charlton.

8. On 26 July 2007 Mr Charlton’s solicitor wrote to the solicitors for Advance.  (Until this stage it appears that Mr Charlton had been acting for himself.)  Mr Charlton’s solicitor indicated that his client was minded to appeal to the Supreme Court, but that his decision might be influenced by the decision of the Full Court of the Industrial Relations Court on costs.  The letter asserted that the time for the institution of an appeal had not yet begun to run.  The solicitors for Advance did not reply.

9. On 9 October 2007 Mr Charlton filed a “Notice of Cross Appeal and Application for Permission to Cross Appeal”.  The Notice states that Mr Charlton cross appeals, or in the alternative seeks permission to cross appeal.  The Notice states that it is a cross appeal against the decision of the Full Court of the Industrial Relations Court of 10 July 2007.

10. Mr Charlton was aware that Advance had sought permission to appeal against the decision of the Full Court of the Industrial Relations Court on the question of costs (as to which, see below).   This application is referred to in the Notice of Cross Appeal. 

11. Written submissions in support of Mr Charlton’s application for permission were filed on 16 November 2007.  Those submissions are now before the Court for consideration.

12. Meantime, on 12 September 2007 the Full Court of the Industrial Relations Court had ordered that each party to the appeal pay their own costs.  The Court gave full reasons for this decision.

13. On 26 September 2007 Advance filed a “Notice of Appeal and Application for Leave to Appeal”.  By this Notice, Advance sought permission to appeal against the decision on costs.  On the same day Advance filed written submissions in support of the application.

14. The application for permission was considered by the Court in the usual manner, without hearing from the respondent.  The Court (Doyle CJ, Anderson J and White J) ordered on 9 November 2007 that permission to appeal be granted: Advanced Resources Pty Ltd v Charlton [2007] SASC 393.

15. In his written submissions Mr Charlton argues that he does not require permission to cross appeal against the decision of the Full Court of the Industrial Relations Court. By s 191(1)(a) of the Fair Work Act 1994 (SA) an appeal lies to this Court if the relevant decision “… is based on an alleged excess or deficiency of jurisdiction”. Mr Charlton argues that the Full Court wrongly declined jurisdiction, and that accordingly his appeal is based on a deficiency of jurisdiction. It wrongly declined jurisdiction by wrongly finding that he was not an employee.

16. There is no need at present for the Court to deal with that argument.  That issue is not before the Court.  If the cross appeal is set down for hearing, the competency of the cross appeal will be determined by the Court when the cross appeal comes before it.

17. It may be necessary for Mr Charlton to apply for an extension of time within which to institute his cross appeal, or the appeal if in truth it be an appeal.  An appeal is to be commenced within 21 days of the date of the decision subject to appeal:  r 283(1) of the Supreme Court Civil Rules 2006 (“the Rules”).  If the cross appeal is in truth an appeal, the time for the instituting of the appeal expired on 31 July 2007.

18. A Notice of Cross Appeal can be lodged within 14 days after service of the Notice of Appeal against the judgment in question:  r 288 of the Rules.  There is no material before the Court indicating when Advance served its Notice of Appeal and application for leave to appeal on Mr Charlton.

19. But Advance sought permission to appeal against the decision of 12 September 2007, dealing with the question of the costs of the appeal.  Mr Charlton cross appeals, or appeals, against the substantive decision given on 10 July 2007.  It may be that this is not a cross appeal, but an appeal. 

20. The misdescription of the status of the appeal (appeal or cross appeal) can be remedied by the Court.  However, the correct status of the appeal or cross appeal is relevant to the question of time.

21. The Court is prepared to put those matters to one side for the moment.  That is, for the purposes of considering the conditional application for permission to appeal, the Court is prepared to assume that it is appropriate to grant an extension of time for the purposes of instituting an appeal or cross appeal as the case may be.  The Court does not so decide, but is prepared to make that assumption as a matter of convenience.

22. On the basis of that assumption, should permission to cross appeal be granted?

23. The decision of the Full Court of the Industrial Relations Court was, as we have already said, a decision that, having regard to the facts of the case, Mr Charlton was an independent contractor to Advance, and not an employee.

24. The decision of the Full Court of the Industrial Relations Court involved the application of well-established principles.  As is always the case in such matters, it was a matter of applying those principles to the facts of the particular case.

25. That same issue had been considered, on the same facts, by an Industrial Magistrate and by a single Judge.

26. The reasons of the Full Court of the Industrial Relations Court are thorough.  Each member of the Court has considered the relevant principles, and their application to the facts.  The issue of whether, in a given case, a person is to be categorised as an employee or as an independent contractor is notoriously difficult, and is fact sensitive.  By that we mean that while the principles of law are clear enough, their application to the facts of necessity depends upon a careful consideration of all of the facts of the instant case.

27. The written submissions filed by Mr Charlton indicate that the application for permission will involve a reconsideration of a mixed question of fact and law already dealt with at three levels of the Industrial Relations Court.

28. There is nothing in the submissions to suggest that a new issue of principle arises.  There is nothing out of the ordinary about this particular case.  Any decision in this case will necessarily be confined to its particular facts.

29. For those reasons, we are not persuaded that this is a proper case for the grant of permission to appeal, or to cross appeal, if permission is required.  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.

30. For those reasons, if permission to appeal is required, we refuse to grant permission to appeal.

31. Mr Charlton is at liberty to pursue his cross appeal or appeal as the case may be, on the basis that permission is not required.  It is for him to consider whether or not he should apply to amend his Notice to include an appeal as well as a cross appeal, and whether or not he should apply for an extension of time within which to appeal or cross appeal as the case may be.