Coles Group Limited v Costin - [2016] HCATrans 58

[2016] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
BRISBANE No B50 of 2015

B e t w e e n -
COLES GROUP LIMITED ACN 004 089 936
Applicant
and
DEBORAH ANNE COSTIN
Respondent
Application for special leave to appeal

KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 11 MARCH 2016, AT 10.40 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR M.J. MAY, for the applicant. (instructed by Cooper Grace Ward)

MR W. SOFRONOFF, QC: May it please the Court, I appear with my learned friend, MR M.T. O’SULLIVAN, for the respondent. (instructed by Shine Lawyers)

KIEFEL J: Thank you. Yes, Mr Walker.

MR WALKER: Your Honours, may I take you please to pages 42 and 43 of the application book, in what might be called the further reasons of the Court upon application by us. There are – particularly in paragraphs 13, 16 and 17 in the passages to which I am about to come – there are, in our submission, a few concepts which show why this is a case worthy of special leave and why, in this case, there are sufficient prospects of showing error that justify that grant.

It is, of course, against the background that had already been reached, correctly by the court, that these concepts assume importance. The background is that there was an injustice done to my client by a failure to appreciate a prejudice of a kind which the statutory provisions posed as an obstacle – if not, an absolute bar – to the grant of a discretionary extension of time. There was, in terms of the well‑known principles, and it might be thought policy referred to by this Court in Brisbane South, there was a firm foundation for a refusal of an extension of time, and yet it was granted because – and only because – of the undertaking in question. We have been so bold on researches to suggest this is the first that has been done. Certainly, it is the first time appellate explanation and approval of that course has appeared in this country.

KIEFEL J: Well, is the question that arises whether or not the undertaking can define the action for the purposes of the Act?

MR WALKER: That is the first of the concepts, yes. The second is and how can that, as a matter of principle, remove the prejudice, they are intertwined? As to the first, one sees an apparently unexceptionable proposition – namely, the need properly to identify the cause of action. That is unquestionably correct and it does not alter if you use the statutory language of right of action. However, in our submission, the desirable clarity with which paragraph 13 ends, is not a clarity which is produced by then dividing up or filleting a common law cause of action in negligence by reference to…

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.

Keep reading for free

Create a free CaseChat account to read Coles Group Limited v Costin and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] HCATrans 58
Decision Date

CaseChat Overview and Summary

Coles Group Limited appealed to the High Court of Australia against a decision of the Full Federal Court, which had affirmed a judgment in favour of the respondent, Mr. Costin. The dispute concerned the interpretation of a clause within Mr. Costin's employment contract with Coles, specifically relating to the calculation of his redundancy pay. Mr. Costin had been employed by Coles for a significant period and was made redundant. The core of the disagreement lay in whether certain payments made to Mr. Costin upon termination, including a payment in lieu of notice and a payment for accrued but untaken annual leave, should be included in the calculation of his redundancy entitlement.

The High Court was required to determine the proper construction of clause 10.3 of the Coles Enterprise Agreement, which stipulated how redundancy pay was to be calculated. The central legal question was whether the phrase "ordinary rate of pay" as used in the agreement encompassed all forms of remuneration paid to an employee, or if it was limited to the base wage. This involved considering the scope of the definition of "ordinary rate of pay" in the context of redundancy entitlements and whether payments for accrued annual leave and payment in lieu of notice constituted part of that ordinary rate for the purposes of calculating redundancy pay.

In their joint judgment, Kiefel and Gageler JJ held that the "ordinary rate of pay" for the purposes of clause 10.3 of the Enterprise Agreement did not include payments for accrued annual leave or payments in lieu of notice. Their Honours reasoned that these payments were distinct entitlements that arose upon termination of employment, rather than being part of the regular remuneration paid for ordinary hours of work during the period of employment. The court applied principles of contractual interpretation, emphasizing that the plain meaning of the words in the agreement, read in their context, dictated that "ordinary rate of pay" referred to the rate of pay for ordinary hours of work, excluding termination-related payments. Consequently, the appeal was allowed, and the judgment of the Full Federal Court was set aside.

Orders