Charlton v Advance Resources Services Pty Ltd trading as Progress Couriers and Taxi Trucks

[2009] HCATrans 271

[2009] HCATrans 271

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A34 of 2008

B e t w e e n -

GEOFFREY ARTHUR CHARLTON

Applicant

and

ADVANCE RESOURCE SERVICES PTY LTD TRADING AS PROGRESS COURIERS AND TAXI TRUCKS

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO ADELAIDE

ON WEDNESDAY, 14 OCTOBER 2009, AT 9.48 AM

Copyright in the High Court of Australia

MR A.L. TOKLEY:   May it please the Court, I appear for applicant.  (instructed by Johnston Withers Barristers & Solicitors)

MR A. LAZAREVICH:   May it please the Court, I appear with MR S.K. DASAN for the respondent.  (instructed by Norman Waterhouse Lawyers)

FRENCH CJ:   Yes, Mr Tokley.

MR TOKLEY:   May it please the Court. Your Honours, the starting point in this matter is the proper construction of the relevant sections considered by the Full Court or the court below. The sections in question were section 185(b) of the Fair Work Act 1994 (SA) and the next section was section 191(1)(a) of the same Act. Your Honour, those sections are helpfully reproduced at pages 30 and 31 of the supplementary book of materials and, with your Honours’ permissions, I will take your Honours straight to those sections.

Your Honours will see on page 30 section 185 dealing with the matter of costs at subparagraph (b) “the Court may award costs on an appeal”. The relevant part in relation to section 191 on page 31 of the supplementary book is subsection (1)(a) –

An appeal lies to the Supreme Court from a judgment, order or decision of the Full Court if –

(a)the appeal is based on an alleged excess or deficiency or jurisdiction –

The first of the special leave questions goes to the question of costs, the second goes to the question of whether the appeal to the Full Court below was incompetent.

FRENCH CJ:   The problem you have, I suppose, just starting with the cost provision, is you have a very broadly expressed discretion and essentially what you want to do is inform it with a lot of history in relation to the industrial jurisdiction.

MR TOKLEY:   Yes, your Honour.  Our complaint about the decision of the Full Court below was that by referring to what has been called in the written submissions the usual order as to costs, the costs follow the event, et cetera, what has happened is what their Honours Justices Gaudron and Gummow warned against in Oshlack’s Case which is it is hardened into, in effect, a rule of law that whenever one comes to consider the question of costs, the usual rule applies, notwithstanding, as your Honour says, the width of the discretion conferred by section 185(b) of the matter.

Your Honours, that really is, in a nutshell, what the first special leave question is about.  The errors that can be found, in our respectful submission, on the part of the Full Court are to be found in the judgments of Justices Bleby and Chief Justice Doyle.  With Justice Bleby your Honours will find the errors at the application book page 44 beginning at paragraph 52.  Your Honours will see that his Honour Justice Bleby states:

On the face of s 185(b) the discretion to award costs is unfettered. It is a discretion which must be exercised judicially.

Even accepting that, your Honours, his Honour then goes on to say –

That will usually result in an order that the costs of an appeal follow the event.

His Honour makes a similar statement on page 45 at paragraph 55:

These are but examples only and are not intended to be a complete list of reasons for departing from the general rule.

Your Honours will see that has been transformed from the usual rule into the general rule –

The common feature is that they relate to some aspect of the conduct of the litigation.

Then in paragraph 56 his Honour goes on to say ‑ ‑ ‑

FRENCH CJ:   Is that to say anything more than that where there is an unfettered – well I suppose, query whether there is ever anything such as a totally unfettered discretion, but where there is a broad discretion in relation to costs, that normally costs follow the event as a matter of practice?  One normally looks to some basis for departing from that approach, does not one? 

MR TOKLEY:   Yes, your Honour.

FRENCH CJ:   I remember in the Full Federal Court we discussed this in the costs judgment in relation to Ruddock v Vadarlis.

MR TOKLEY:   Yes, your Honour.  Your Honour, in my respectful submission, the way in which the matter was approached was inconsistent with the approach of their Honours Justices Gaudron and Gummow in Oshlack’s Case and what has happened here is that what was or may have been a rule of practice has hardened into, in effect, a rule of law.  So, notwithstanding the broad statutory discretion that has been given, it is now being treated as if there was an additional element added into the words of the statute, that is, that costs will normally follow the event and there must be some good reason for departing from that.

Your Honours, in our written submissions we referred to the way in which the matter was approached when it was remitted back to the Full Court of the Industrial Court and each of the three judges there felt that they had no option but to apply the rule that costs should follow the event and that there were no good reasons for departing form it, whereas the authority of Oshlack’s Case suggests that in construing such provisions, adapting the words used in the case of Shin Kobe Maru, one must give those a liberal interpretation so as not to constrain the unfettered discretion that is given by the Court. 

Your Honours, the reason we say that the reasoning of the Full Court is in error on that point is because the condition that costs should follow the event is not found in the words of the statute.  It is at odds with the grant of jurisdictional power to a court to use in that way.  It is at odds with the authority of the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72 at paragraphs 21, 22 and 40 of that report. The third reason is the legislative history, as canvassed by his Honour Justice Bleby, does not support any such limitation.

The fourth is – and this comes back to your Honour the Chief Justice’s question at the beginning – it is really at odds with the nature of the interest at stake in that litigation and the approach taken by her Honour Justice Layton and the approach taken by their Honours in the Full Court of the Industrial Court is more consonant with the nature of the jurisdiction.  The fifth point really is, again identified in Oshlack’s Case, that the discretion being unconfined, one has to see if there is anything that was extraneous to the nature and subject matter and purpose of the litigation in the Industrial Court that would suggest that irrelevant considerations were taken into account. 

Your Honours, insofar as the Full Court of the Industrial Court took into account irrelevant matters, with respect, that is not borne out and the preferred approach is that of her Honour Justice Layton, which can be found in the application book pages 92 to 94. Your Honours, that deals with the submissions in relation to the first special leave question. The second of the special leave questions concerns the appeal to the Supreme Court and section 191(1)(a), an appeal to the Full Court of the Supreme Court lay as a right where the appeal was based on an alleged excess or deficiency of jurisdiction.

FRENCH CJ:   In this case the relevant finding was that the applicant was an independent contractor rather than an employee, was it not?  That was the finding that was challenged?

MR TOKLEY:   The relevant finding of the Full Court of the Industrial Court, yes your Honour, that is correct.

FRENCH CJ:   That is said to fall within the category of an excess or deficiency of jurisdiction?

MR TOKLEY:   It was alleged that the finding that Mr Charlton was not an employee was an excess or deficiency of the jurisdiction of the Full Court and hence gave a right of appeal to the Supreme Court.  The approach by his Honour Justice Bleby with which the other two judges, Chief Justice Doyle and Justice Layton agreed, was that there was no excess or deficiency of jurisdiction and his Honour Justice Bleby relied upon an earlier authority of the High Court.  But the difference between that authority and the section under consideration is that that the earlier authority considered a section which did not have the word “alleged” in it.

In my respectful submission, it is sufficient to give the Court jurisdiction if there is an allegation of excess or deficiency of jurisdiction.  If that submission is soundly based, then it follows that the Full Court of the Supreme Court were wrong in their conclusion that the appeal was incompetent, that that was a matter that should have been taken into account in determining whether the appeal should have been allowed to go ahead, given that an extension of time was required.  But in the Full Court of the Supreme Court, the question of whether an extension of time should not have been granted was not considered by their Honours because the view was taken that the appeal to that Court was, in the first place, incompetent, notwithstanding the section and the matter I have referred to just then.

Your Honours, in our written submissions, we have deal with why this matter is of sufficient public importance to warrant a grant of special leave to appeal and I would rely upon the matters stated in there.  Your Honours may know that we have provided a further book of supplementary materials and the reason for doing that, your Honours, was that it came to our attention very recently that on 9 September 2009 a Bill was introduced into the Parliament in South Australia entitled the Statutes Amendment (National Industrial Relations Systems) Bill for 2009 which is proposing an amendment to the Fair Work Act.  We have included sections 23 and 24 of the amending Bill for your Honours’ assistance.  Your Honours will see that there is the amendment ‑ ‑ ‑

FRENCH CJ:   Where does that appear in the supplementary materials?

MR TOKLEY:   Your Honours should have been provided with a book called “Further Supplementary Materials”.  It is a very slim amount of material, your Honour.

FRENCH CJ:   Yes.  It was an attachment to a letter, I think.

MR TOKLEY:   Yes, your Honour.  Because it only recently came to our attention, we thought we should bring it to the Court’s attention.  Your Honour will see the second page in is the Statutes Amendment (National Industrial Relations Systems) Bill for 2009.

FRENCH CJ:   Yes. There is an amendment to section 185?

MR TOKLEY:   Yes, correct, your Honour.  It is to add a subparagraph (2):

In connection with the operation of subsection (1)(b).

FRENCH CJ:   Yes.

MR TOKLEY:   I am sure your Honours will see the import of that.  In effect, it goes back to the way in which the Full Court of the Industrial Court approached the matter as contrasted with the way in which the Full Court of the Supreme Court approached the matter.

FRENCH CJ:   That may lie against your application insofar as it raises any issue of general public importance, might it not?

MR TOKLEY:   Yes, your Honour.  That was the reason we felt it incumbent upon us to bring it to the attention of the Court, it may do so.  Your Honours, we have no reason to consider that the Bill will not go through to become an Act of Parliament but, by the same token, we are not aware of how many decisions may already have been dealt with where the Full Court of the Industrial Relations Court has applied the approach of the Full Court of the Supreme Court and, in our respectful submission, for the reasons we have already given, it would have been an erroneous application.

FRENCH CJ:   This is still at the stage of a Bill before the Parliament, is that right?

MR TOKLEY:   Correct, your Honour.

FRENCH CJ:   Yes.  Speaking for myself, I do not know that one can draw inferences based on the assumption that a Bill placed before the

Parliament is going to become an Act, but thank you for drawing it to our attention.

MR TOKLEY:   I am grateful to your Honour the Chief Justice.  Thank you, your Honour.  Your Honours, for the reasons we give in our written submissions, we do say the matter is of sufficient public importance.  Your Honours, if I may just finish on one final note.  The application book at page 16 indicates that not only is the matter of importance in relation to the Industrial Court, but if your Honours have a look at the application book page 16, paragraph 17, his Honour Justice McCusker there refers to the fact that the decision of the Full Court of the Supreme Court would also “have some influence on the application of s 210(2)” of the Fair Work Act which deals with the work of the Industrial Relations Commission.  May it please the Court, those are my submissions.

FRENCH CJ:   Thank you, Mr Tokley.  Yes, Mr Lazarevich.

MR LAZAREVICH:   If the Court pleases.  If we could address the Court on the question of costs first.  We say that given the Full Court of the Supreme Court did not make the costs order which is effectively under challenge, really two issues arise.  Number one, was the Full Court of the Supreme Court correct in its findings that the Industrial Relations Court had taken into account irrelevant considerations in making its decision?  Secondly, is there sufficient doubt about the general statements of principle as to costs which have been enunciated by the Full Court of the Supreme Court?

Before we start, we say that the context of this particular piece of litigation is important.  Unlike the decision in Oshlack, it was not a case about public interest or about public importance, it was a private individual seeking to deal with private rights where he was effectively trying to undo contractual relationships that had been freely and voluntarily entered into and that differentiates it from the kind of public interest considerations which might flow from either the kind of decision that took place in Oshlack or in other areas of the industrial jurisdiction where action is taken to quell general industrial unrest. 

We say that the Full Court of the Supreme Court was correct to allow the appeal from the Industrial Relations Court. That was because the Industrial Relations Court had taken into account a number of irrelevant considerations. They are set out at paragraphs 148 through to 155 of the honourable Justice Bleby’s decision, which is at pages 64 and 65 of the application book. Those matters were firstly – and this is a matter I will expand upon, but just to identify it to start with – it is the dichotomy between section 185(a) and section 185(b) of the Fair Work Act and that the protection as to costs at first instance might be seen to be compromised if an order for costs was made on appeal, and because of the importance of that point, I will return to it.

The other matters that were relied upon were the benefit to progress in having its business model confirmed.  We say that was an irrelevant consideration because it was Mr Charlton who was challenging that relationship and no other person was seeking to do so.  He was also doing it several years down the track in circumstances where his evidence at trial was that he intended to enter into the independent contract relationship.  Thirdly, there is the issue of the tax deductibility of legal expenses.  They are not relevant to the exercise of discretion as to costs.  Whether the litigant was a litigant in person was an irrelevant consideration.  Whether the matter was complex was an irrelevant consideration and whether or not Mr Charlton was a man of means was an irrelevant consideration, we say, particularly as there was no evidence led on that particular point.  Because those irrelevant considerations had been taken into account, we say the Full Court was correct to allow the appeal by the respondent in this application. 

If I can return to the question of the dichotomy between section 185(a) and section 185(b) of the Fair Work Act, which appears at page 30 of the supplementary application book. We say that the so‑called protection which is given at first instance in a monetary claim, which is section 185, is not a protection that is particular to the employee, that is a protection that would apply both to the employer and employee and it is not a protection which appears on appeals. So Parliament has made a conscious decision to enact the words of the statute in a particular way and it has done so in the context of three important matters.

The first of those important matters, we say, is the predecessor section, which is set out at application book page 54, paragraph 103 of the judgment of the honourable Justice Bleby.  That was the 1972 Act which applied before the 1994 amendments.  The relevant provision – this is around about line 30, slightly above, on the page – the limitation is that costs can be awarded in favour of a respondent to an appeal and be paid by the appellant, but that was the only circumstance in which an order for costs could be made on an appeal.  So that was seen fit to be amended by Parliament and we say that accordingly, to place a fetter on discretion by reference to a concept that costs would not be awarded in favour of a successful appellant would be take away a broad discretion which Parliament has seen fit to provide in circumstances where there was a predecessor section that provided something to the contrary.

FRENCH CJ:   The point made against you is that in the Full Court of the Supreme Court there is a fetter placed on the discretion by reference to a rule that costs will normally follow the event.

MR LAZAREVICH:   Yes, your Honour.  If we can then identify that, I will just state it broadly, and then come back to it.  The answer to that is that the judgment in the Full Court has been fairly clear in making sure that that is not an absolute rule.  Both the honourable Chief Justice Doyle and also Justice Bleby set out that it is only a matter of general principle and there are all sorts of reasons why one might depart from the general rule as to costs, and that is a matter that I will come back to in a moment. 

The final point that we make in respect of the context of section 185 of the Fair Work Act is that it appears in this section entitled “Monetary claims” which are a particular type of inter partes litigation which we say is separate from the kind of conciliatory role that the Industrial Relations Court might play in other areas of industrial disputes.  We say it is important to recognise that the majority decision, being both the honourable Justice Bleby at paragraph 146 and the Chief Justice at paragraph 14, both of those judges deal specifically with the scenario that there may well be occasions where even in monetary claim, what the Court might be doing is dealing with something that it is really is an adjunct to the conciliatory of arbitral powers of the Industrial Court.  So, again their Honours have made quite clear that this is not a matter of absolute rigidity. 

We say it then becomes necessary to consider whether the statement of principle which the Full Court has enunciated as to a general rule as to costs following the event is one that is attended with sufficient doubt and we say it is important that the rule is not an absolute one.  The statement of principle is that the costs are in the discretion of the Court and that that discretion is one that needs to be exercised judicially.  That is a statement which is well known and, we say, not attended with any doubt. 

There are all sorts of reasons why one might depart form the general rule as to costs.  Usually they would be connected with the way in which the litigation has been conducted, and there are examples of disentitling conduct.  Other kind of reasons might be the nature of the litigation itself, for example, if there are issues of public interest raised as they were in the Oshlack decision. We say that the Full Court made it absolutely clear that the principle that they were putting forward was not any kind of absolute rule. If I could draw your Honours’ attentions firstly to paragraph 10 of the Chief Justice’s decision at page 38 of the application books at around about line 30. The statement that is put forward is the one about the discretion being –

exercised judicially, not by reference to irrelevant or extraneous considerations –

And at the very end of the paragraph, his Honour points out:

it needs to be emphasised that these are but general principles, and should not be treated as if they are rules of law.

So the statement from the Full Court is not elevating the proposition to anything above what is appropriate to have in regard to the learning and the law that has gone on before.  A similar point is made at paragraph 12, where his Honour refers specifically to the decision in Oshlack and to:

the importance of not treating these general principles as something like rules of law.

At paragraph 13, again it refers to those cautionary observations that need to be borne in mind.

FRENCH CJ:   Is that caution replicated in Justice Bleby’s judgment?

MR LAZAREVICH:   To a lesser degree.  The relevant passages are at, firstly, paragraph 52, and that is the general proposition that:

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 –

for costs.  At paragraph 54, his Honour refers to:

there will usually need to be some reason related to the conduct of the proceedings to justify –

a different kind of exercise of the discretion.  At paragraph 55, he says:

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.

Then he comes to the general proposition in paragraph 56 that ordinarily, unless there is some reason not to, costs would follow the event.  We say that is an appropriate test, it is consistent with the long practice of the courts in this area and if there is going to be a decision to depart from the general rule as to costs, then there has got to be a proper basis for doing so.  The bases that were identified with respect to the Full Court of the Industrial Relations Court were not proper bases.  We also say that nothing in Oshlack would necessitate a different conclusion.  My learned friend has included the decision in Oshlack in his supplementary book of materials.  There are a couple of features of the case that we bring to the Court’s attention. 

Firstly at page 41 of that supplementary book, paragraph 20.  This was the decision in the Court below that was upheld.  In subparagraph (i), the reference to the traditional rule.  In subparagraph (ii), the characterisation of proceedings as being in the public interest being a factor, but not enough of itself to justify a departure from the usual rule as to costs.  Then the identification of the matters in the following subparagraphs that gave rise to the particular features in Oshlack which justified a departure from the general rule. That was a decision that was ultimately upheld. Passages about the construction of the Act that were relevant included at 21 the general proposition about the way the order for costs would work and in paragraph 22, the concept to not exercising the power in an arbitrary or capricious way.

We say that paragraph 35 is of importance because it again emphasises the general rule as to costs and the broad discretion which exists and that discretion is one that is determined by statute and the reference to the general rule that a “successful defendant should receive his costs unless good reason is shown to the contrary”.  Finally, the concepts in paragraph 40 about their being no absolute rule and in paragraph 49, the upholding of the primary judge’s starting point which favoured the cost orders against the appellant as an unsuccessful party, but the reasons why it was appropriate in that case to depart from that general rule.  So we say that there is nothing in Oshlack which would necessitate the different result than that reached by the Full Court of the Supreme Court, therefore no error.

We also say that there has not been a clear articulation of what factor it is that the Industrial Relations Court was precluded by reason of the Full Court’s decision from taking into account and how that particular factor would have altered the outcome of the rule as to costs.  The final point on costs is the issue of the amendments to the Fair Work Act and we say that that is consistent with the argument in paragraph 3 of our outline, namely, that where there is a discretion that is otherwise unfettered, it is for Parliament ‑ ‑ ‑

FRENCH CJ:   These amendments have not happened, so I do not think we can really take any notice of them.

MR LAZAREVICH:   Thank you, your Honour.  On the question of jurisdiction, which is grounds 1 to 4 of the amended notice of appeal, we say firstly a time point arises.  The applicant is seeking leave to raise in June 2009 a challenge to a judgment handed down in May 2008 which would have the effect of reopening a judgment of the Full Court of the Industrial Court of July 2007 in the context of a dispute ongoing since 2005.  We say it would be inappropriate to grant leave for an extension of time unless the following matters were addressed.  Firstly, the utility of allowing that matter to be ventilated.  In particular, there would be no utility unless it could be said that the merits of the matter in the Industrial Relations Court as to whether or not Mr Charlton was a contractor or an employee, whether there is a strong argument in that regard.  If there is no strong argument on the merits, there is no point in having what would otherwise be an academic debate. 

BELL J:   In that respect, the decision of the Court of Appeal on the permission issue where reference was made to the circumstance that at three different levels of the Industrial Relations Court the matter had been determined adversely to the applicant, should have some bearing.

MR LAZAREVICH:   Thank you, your Honour.  Secondly, we say that there would need to be an adequate explanation for the delay and no explanation has been proffered.  Thirdly, we say that it is not appropriate for the applicant to not make an election as to whether he would actually prosecute the appeal in the Supreme Court.  I do not know if your Honours have had the supplementary materials which we filed yesterday which exhibited two letters at pages 83 to 86 of the application book where that very question is put forward, namely, would it be Mr Charlton’s intention to run the case again in the Supreme Court of South Australia?  The answer that has been given was that that is not within the scope of the instructions of those instructing Mr Tokley.  So, without any clear indication as to what Mr Charlton would do, there would be no utility in running the appeal.  Finally there is issue of prejudice and we say the cost of reopening matters long since determined is against the principles of finality in litigation, particular having regard to the length of time that has elapsed.

FRENCH CJ:   The special leave application itself requires an extension, does it not?

MR LAZAREVICH:   It does, your Honours.

FRENCH CJ:   What is the delay there?

MR LAZAREVICH:   The delay there is a shorter one.  It is a matter of only a couple of months, but with the amendment that has been made, the extension – I will perhaps come back to that in a moment, I have lost my figure on the exact amount of time, but it is a substantial period of time in relation to the issue of jurisdiction.  We say the reasons why it would not be appropriate to revisit the question of jurisdiction would be as follows.  Firstly, the decision under appeal was unanimous, so there was no divergence of opinion in the court below.  Secondly, properly seen the notice of appeal in the Supreme Court of South Australia, which is replicated in the supplementary application book at pages 3 to 5, did not raise, we say, properly seen, any allegation of excess or deficiency of jurisdiction, rather what it sought to do was either challenge factual findings or the application of legal principle to those factual findings and that none of those go to the topic of an allegation of deficiency or excessive jurisdiction per se.

We say that the point has been determined in the Public Service Association Case, which is referred to in the honourable Justice Bleby’s decision at paragraph 35, application book page 42, and that that decision has been affirmed and applied in numerous cases with no suggestion that the statement of principle is wrong.  That finding in the Public Service Association Case was that a statute which refers to an excess or want of jurisdiction does not allow for the review of a wrongful failure or refusal to exercise jurisdiction.  So we say that whether or not Mr Charlton was an independent contractor or employee, was a finding that was open for the Industrial Relations Court to determine.  There is no allegation that it misconceived its role or misunderstood the nature of its duty or acted on evidence that it should not have acted or anything of that nature, you are simply left with the question of the application of law to the facts in circumstances ‑ ‑ ‑

FRENCH CJ:   His claim based on underpayment arose out of an award entitlement on the assumption he was an employee, is that correct?

MR LAZAREVICH:   Yes, your Honour.

FRENCH CJ:   The opposing contention was that as an independent contractor he simply was not covered by the award?

MR LAZAREVICH:   That is right.  So, although that is, in a sense, a jurisdictional point, that is, the Industrial Relations Court would not have jurisdiction to allow Mr Charlton’s claim unless he was in fact an employee, it had the jurisdiction to decide the question as to whether he was an employee and that finding being within ‑ ‑ ‑

FRENCH CJ:   If he was not an employee covered by the award, he would not have an entitlement.  It would go straight to the heart of the case, would it not?

MR LAZAREVICH:   That is right.  But that decision is one that the Industrial Relations Court has jurisdiction to make.  So if you look at the next level of the matter, suppose it had wrongfully decided that he was an employee, then it might be exercising a jurisdiction that it should not have exercised, but that one step down, which is the decision as to whether or not he is an employee, the order is already pronounced in the Public Service Association Case, but that is not the kind of error that falls within the description of a deficiency or excessive jurisdiction and there is no reason to revisit that principle.

FRENCH CJ:   All right.  Thank you, Mr Lazarevich.  I think your time is up.  Yes, Mr Tokley.

MR TOKLEY:   Thank you, your Honours.  Your Honours, some short points by way of reply.  In relation to the width of the discretion, could I please invite your Honours to turn to the application book and to the judgment of the Chief Justice.  This goes to your Honour the Chief Justice’s question about whether the rule that costs follow the event might be hardening into a general rule to be applied.  My learned friend took you to paragraph 10 of the Chief Justice’s reasons at page 38 of the application book, but could I please invite your Honours’ attention to page 39 of the application book and, in particular, to paragraphs 14, 15 and 16 in his Honour the Chief Justice’s reasons, Chief Justice Doyle.  Your Honours will see in the last sentence of each of those paragraphs what looks like a practice or policy hardening into a rule of law to be applied by the Court below.  In paragraph 14 it is:

Such considerations might persuade the court not to apply what is often called the “usual rule”, that costs follow the event.

In paragraph 15, the last sentence becomes:

Such circumstances might, in a particular case, be a reason not to follow the “usual rule”.

Then in paragraph 16, it begins in the middle of the paragraph:

To say that is not to deny that in a particular case . . . that the Industrial Relations Court exercises, that might justify a departure from the ‘usual rule” that costs follow the event.

The passages my learned friend took your Honours to in the judgment of Justice Bleby to show the way in which the Full Court went about dealing with the matter is that it is hardened into a rule of law.  Your Honours, there is a very apt statement in the decision of your Honours’ in Oshlack’s Case, which can be found at paragraph 36 on page 47 of the supplementary book of materials.  If can invite your Honours’ attention to that.  It is in the joint judgment of their Honours Justices Gaudron and Gummow when dealing with the section 69 of the particular Act under consideration, where their Honours say:

At bottom in the present case is the question whether rules of practice with respect to similarly expressed provisions in legislation applicable in other species of litigation have so hardened “that they look like rules of law”, which render irrelevant to the exercise of the discretion conferred by s 69 those considerations to which the Council successfully objected in the Court of Appeal.

In my respectful submission, that is what has occurred here.  The evidence for that can be found at application book on page 11 in paragraph 2 of the judgment of his Honour Justice Jennings.  You will see he starts off:

The majority reasons of the Full Court of the Supreme Court are binding on us.  In the circumstances of this case those reasons compel the conclusion that the respondent must pay the appellant’s costs of the appeal to the single judge and the costs of the appeal to this Full Court and I would order accordingly.

BELL J:   Mr Tokley, this is the consideration by the Full Court on the remitter.

MR TOKLEY:   Correct, your Honour, yes.

BELL J:   You are seeking leave to appeal from the decision of the Full Court.  It is just not clear to me why it is useful to take us to the way the Full Bench interpreted the decision that you seek to appeal from.

MR TOKLEY:   I understand your Honour’s points.  I think what I was seeking to make good, your Honour, was the point that if there was a practice that costs follow the event, it is not now being treated that way by the Court that actually has to apply the particular section and exercise its discretion.  That was the point of the exercise, your Honour, but I do take your Honour’s point.  Your Honours, the other point that was raised against us was the extension of time point.  That is dealt with in the written submissions in the application book at page 125 and there is an affidavit in support of that at page 128 and for the reasons set out therein, we would respectfully seek an extension of time.

Finally, your Honours, the point that was raised against us in relation to whether there was an allegation of a deficiency of jurisdiction can be found at the supplementary book at page 10 in paragraphs 5.2 to 5.3 set out therein.  Your Honours will see that it is clear from the written submissions, particularly on page 10 where it starts off by quoting the relevant section of the Fair Work Act at the very top of the page and in paragraphs 5.2 and 5.3.

BELL J:   Mr Tokley, I am sorry.  Is this in the supplementary book of materials that you are taking us to?

MR TOKLEY:   Yes, your Honour, supplementary book of materials.

BELL J:   Page 10?

MR TOKLEY:   Page 10 of the supplementary book, your Honour.

BELL J:   What paragraph? 

MR TOKLEY:   It is paragraphs 5.2 and 5.3, your Honour.

BELL J:   I am sorry, yes.

MR TOKLEY:   Your Honours will recall it was put against me that there was no allegation of the deficiency of jurisdiction and that is what we rely upon to say that before the Full Court of the Supreme Court there was an allegation of a deficiency of jurisdiction.

BELL J:   Can I take up with you, Mr Tokley, the matter that I raised with your opponent.  It goes to the merits of the matter.  The Full Court in the earlier determination of the permission point did note against you that at three different levels in the specialist jurisdiction, the factual issue had been determined against you, is there anything you want to put on that?

MR TOKLEY:   Yes, please, your Honour.  In fact, with great respect, your Honour, that is not actually correct.  Mr Charlton was successful before the industrial magistrate.  He was then successful before the industrial judge and he lost two‑one, if I may put it that way, before the Full Court of the Industrial Court.  So he had been twice successful and only lost on the appeal to the Full Court.  Thank you, your Honour.

FRENCH CJ:   Thank you, Mr Tokley. 

The Industrial Relations Court of South Australia is empowered by section 185(1)(b) of the Fair Work Act 1994 (SA) to award costs on an appeal in proceedings based on a monetary claim. The Full Court of the Supreme Court of South Australia held by majority that when the power is enlivened costs will usually follow the event. Having regard to the broad terms of the discretion conferred upon the Court by section 185(1)(b) and the well‑established principles for the exercise of such broad statutory discretions in Australian courts, it cannot be said that the approach taken by the Full Court of the Supreme Court discloses any error warranting the grant of special leave. In particular, we do not accept that the court fettered its discretion by the treating the “usual rule” that costs follow the event as a rule of law confining it.

The applicant also sought special leave to appeal from the unanimous decision of the Full Court of the Supreme Court that the appeal to that Court from the Full Court of the Industrial Relations Court was incompetent. His right to appeal to the Supreme Court was limited by section 191(1)(a) of the Fair Work Act 1994 to an appeal based on alleged excess or deficiency of jurisdiction.

The Full Court of the Industrial Relations Court had held that he was an independent contractor and not an employee and that it had not jurisdiction to entertain his claim for underpayment of wages.  The Full Court of the Supreme Court held that this was a decision within jurisdiction.  If the Full Court of the Industrial Relations Court was wrong, its failure to exercise jurisdiction was not the subject of the statutory appeal right.  The Full Court of the Supreme Court was correct in so concluding. 

The application for an order dispensing with the time limit specified in rule 41.02.1 should be refused.  The application for special leave should be refused.  The Court will adjourn briefly to reconstitute for the next matter.

MR LAZAREVICH:   Before your Honours rise, can we make an application for costs?

FRENCH CJ:   I am sorry, yes.

MR LAZAREVICH:   Thank you, your Honour.

FRENCH CJ:   Can that application be resisted, Mr Tokley?

MR TOKLEY:   No, your Honours.

FRENCH CJ:   Yes, special leave refused with costs.  

Yes, the Court will adjourn.

AT 10.33 AM THE MATTER WAS CONCLUDED