Advanced Resources Pty Ltd v Charlton

[2007] SASC 393

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

ADVANCED RESOURCES PTY LTD v CHARLTON

[2007] SASC 393

Judgment of The Full Court

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

9 November 2007

INDUSTRIAL LAW - SOUTH AUSTRALIA - APPEALS AND REFERENCES

PROCEDURE - COSTS - JURISDICTION - OTHER CASES

Application for permission to appeal to the Full Court from a costs decision of the Full Court of the Industrial Court - whether the costs decision raises an issue that should be reviewed on appeal.

Held: Reasonably arguable that the Full Court of the Industrial Court considered irrelevant factors when deciding question as to costs - application for permission to appeal granted.

Fair Work Act 1994 (SA) s 191(1)(b); Supreme Court Civil Rules 2006 (SA) r 285, applied.

ADVANCED RESOURCES PTY LTD v CHARLTON
[2007] SASC 393

Full Court:  Doyle CJ, Anderson and White JJ

1. THE COURT:      This is an application for permission to appeal, permission being sought pursuant to s 191(1)(b) of the Fair Work Act1994 (SA).

2. The application is for permission to appeal against a decision of the Full Court of the Industrial Court.  The decision in question was a decision by the Full Court declining to make an order for costs in favour of Advanced Resources Pty Ltd, which had successfully appealed to the Full Court from a decision of a single judge of the Court, confirming the decision of an Industrial Magistrate.  The decision of the Full Court, by majority, was that Mr Charlton was not party to a contract of employment with Advanced Resources Pty Ltd, but was an independent contractor, and therefore could not succeed in his claim against Advance Resource Services Pty Ltd for underpayment of wages.

3. The Full Court declined to make an award of costs in favour of Advanced Resources Pty Ltd, notwithstanding the fact that it succeeded on the appeal to the Full Court.  The Court provided brief but comprehensive reasons for its decision, which reasons were given on the conclusion of the hearing of the application for an order for costs.

4. The Full Court will rarely grant permission to appeal against a decision on a question of costs.  There is a long standing practice to this effect.  In part the practice rests on the discretionary nature of a decision as to costs.  It is only rarely that a decision on the question as to costs will raise an issue of principle, or an issue which, in the interests of justice, should be reviewed on appeal.

5. However, in the present case the Court is of the opinion that it is reasonably arguable that the Court exercised its power to decline to make an order for costs in favour of the appellant on the basis of factors which are not relevant, and accordingly which should not have been taken into account.  The Court is further of the opinion that it is reasonably arguable that the decision, if it stands, being a decision of the Full Court, will set a precedent which will be applicable in other like cases.  The significance of this is that the case before the Full Court was a case of a type which is likely to recur, and a decision of the Full Court was based on factors which are likely to be present in other cases.  It is for those reasons that, unusually, it is reasonably arguable that the decision will set a precedent in the Industrial Court.

6. For that reason, having considered the application for permission to appeal, and the summary of argument in support of the application, and pursuant to Practice Direction 6.1.4 and r 285 of the Supreme Court Civil Rules 2006, the court orders that permission to appeal be granted.

7. The Court directs that the appellant prepare and lodge the necessary case books as required by Practice Direction 6.1.