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

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.
The application is conditional, because Mr Charlton submits that he does not require permission to cross appeal.
By letter dated 15 November 2007 his solicitor has asked the Court to deal with the application for permission to cross appeal.
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.
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.
The order of the Full Court of the Industrial Relations Court has been drawn up and is dated 10 July 2007.
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.
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…

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: [2007] SASC 434
Decision Date: 11 December 2007

CaseChat Overview and Summary

Advanced Resources Pty Ltd sought leave to appeal a decision of the Full Court of the Industrial Relations Court of South Australia. The initial dispute was related to industrial law matters. The Full Court had previously declined the applicant’s application for leave to cross-appeal against the decision of a single judge, and the applicant sought to challenge that decision. The crux of the matter was whether the applicant needed permission to cross-appeal, whether the cross-appeal was, in fact, an appeal, and whether an extension of time was required to file the initiating documents.

The court considered the applicant's contention that no issue of principle arose that would warrant permission to appeal or cross-appeal. The court examined the statutory framework governing the process of appealing in the Industrial Relations Court and found that the applicant did not satisfy the requirements for granting leave to appeal or cross-appeal. The court concluded that the applicant had not demonstrated that the appeal or cross-appeal involved any question of law of general public importance.

The court dismissed the application for leave to cross-appeal and refused permission to appeal, finding that no substantial issue of principle was involved. The decision of the Full Court was upheld, and the application was dismissed in its entirety.

Orders