Kronen v Commercial Motor Industries Pty Ltd (T/as CMI Toyota) - [2016] SASCFC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
KRONEN v COMMERCIAL MOTOR INDUSTRIES PTY LTD (T/AS CMI TOYOTA)
[2016] SASCFC 8
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Nicholson)
24 February 2016
INDUSTRIAL LAW - SOUTH AUSTRALIA - APPEALS AND REFERENCES - TO SUPREME COURT
INDUSTRIAL LAW - SOUTH AUSTRALIA - INDUSTRIAL RELATIONS COURT - JURISDICTION - GENERALLY
The appellant appealed against a decision of the Full Bench of the Industrial Relations Court, dismissing an appeal from a Judge of that Court who had in turn dismissed an appeal against a direction given by an Industrial Magistrate to the Registrar of the Industrial Relations Court to strike out a filed document.
The document was an application brought by the appellant to re-open proceedings initiated in 2005.
Held per the Court, dismissing the appeal:
1. The direction was a "judgment" within the meaning of s 187 of the Fair Work Act 1994 (SA). (at [32])
2. The Federal Court retains exclusive jurisdiction to hear appeals against judgments and decisions made in the original action. (at [38])
Industrial Proceedings Rules (2010) r 29, r 60; Fair Work Act 1994 (SA) s 187; Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) sch 2, sch 17; Workplace Relations Act 1996 (Cth) s 177A, s 178, s 179, s 720, s 853; Acts Interpretation Act 1901 (Cth) s 8; Supreme Court Civil Rules 2006 (SA) r 53, r 117; Federal Court Rules 1979 (Cth) r 7A; Fair Work Act 2009 (Cth), referred to.
Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; Westmill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99; Andrew Garrett Wine Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89, considered.

KRONEN v COMMERCIAL MOTOR INDUSTRIES PTY LTD (T/AS CMI TOYOTA)
[2016] SASCFC 8
Full Court: Kourakis CJ, Blue and Nicholson JJ

THE COURT: The appellant, Mr Kronen, appeals against a decision of the Full Bench of the Industrial Relations Court (the IRC) dismissing an appeal from a Judge of that Court who in turn had dismissed an appeal against a direction given by an Industrial Magistrate to the Registrar of the IRC to strike out a filed document. The direction of the Industrial Magistrate was given pursuant to Rule 29 of the Industrial Proceedings Rules (2010) (IPR 29). The document was an application brought by Mr Kronen to re-open proceedings initiated in 2005 and determined, at least in part, by an Industrial Magistrate in 2006. The application had been accepted for filing by the IRC registry, sealed and given the same action number as the earlier proceeding.
The Judge and the Full Bench dismissed Mr Kronen’s appeals on the ground that the direction was not a “judgment” for the purposes of s 187 of the Fair Work Act 1994 (SA) (the State Fair Work Act) and therefore not appellable. The Judge and the Full Bench held in the alternative that if the direction was a judgment, an appeal pursuant to s 187 of the State Fair Work Act was precluded by Schedule 17 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Provisions Act) and that the only avenue of appeal was to the Federal Court.
We hold that the direction of the Industrial Magistrate was a judgment within the meaning of the term in s 187 of the State Fair Work Act because it was an interlocutory judgment on a procedural question arising subsequent to the filing of, and concerning the legal status and effect of, the application. However, the appeal must be dismissed because the Judge and Full Bench of the Industrial Court were right to hold that the only appeal allowed by the Transitional Provisions Act is to the Federal Court. Our reasons follow.
The Litigation History
On 11 July 2005 Mr Kronen commenced proceedings against the respondent Commercial Motor Industries Pty Ltd trading as CMI Toyota (CMI) in the Industrial Relations Court of South Australia. Mr Kronen’s action was brought pursuant to s 179 of the Workplace Relations Act 1996 (Cth) (the WR Act) which then provided:
179 Recovery of wages etc.
(1)Where an employer is required by an award, order or certified agreement to pay an amount to an employee, the employee may, not later than 6 years after the employer was required to make the payment to the employee under the award, order or agreement, sue for the amount of the payment in the Court or in any court of competent jurisdiction.
The proceedings claimed a sum of $65,000 comprising:
·$6,000 in superannuation contributions on the ground that CMI had not paid superannuation on commissions in the period 14/4/98 to 3/11/2000; and
·$59,000 in underpayment of wages for overtime worked but not paid.
The claim was heard by an Industrial Magistrate in February 2006. It was agreed before the Industrial Magistrate that the award governing Mr Kronen’s employment was the Federal Vehicle Industry Repair, Services and Retail Award 1983 (the Federal Award).
CMI contended before the Industrial Magistrate that the Industrial Relations Court did not have jurisdiction to make any order for the payment of superannuation contributions because s 179 of the WR Act was limited to money payable to an employee and not to a superannuation fund. The Industrial Magistrate rejected that contention on the ground that he had a broad jurisdiction to interpret the Federal Award. However, the Industrial Magistrate construed the meaning of the word “ordinary time earnings” in the award to be the minimum weekly payment preserved by the award, or any retainer above the award, but not commissions. He held against Mr Kronen on the merits that commissions were not to be included in the base income on which the employer’s superannuation contribution was payable.
The Industrial Magistrate also dismissed Mr Kronen’s claim for overtime. The Industrial Magistrate found that there was a contractual term implied by custom that business managers did not receive overtime payments and that Mr Kronen’s income for the relevant period was in excess of the corresponding award rate when commissions were taken into account.
The only order made by the Industrial Magistrate was to dismiss the claim for overtime. No order referable to the superannuation claim was made.
After unsuccessfully attempting to bring an appeal to the Industrial Court, Mr Kronen eventually appealed against the Industrial Magistrate’s decision to the Full Court of the Federal Court (the Full Court).
The Full Court held that the Industrial Magistrate was exercising Federal jurisdiction when hearing Mr Kronen’s action and observed:
[3]In his reasons for judgment, the industrial magistrate acknowledged that the Award is a federal award. In the absence of any claim for the imposition of a penalty for a contravention of any term of the Award, the jurisdiction that the IRCSA was exercising was that conferred by s 179(1) of the WR Act …
The reference by the Full Court to a claim for the imposition of a penalty was a reference to s 178 of the WR Act which at that time provided:
Workplace Relations Act 1996
178    Imposition and recovery of penalties
(1)     Where an organisation or person bound by an award, an order of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or by a court of competent jurisdiction. …
(5)     A penalty for a breach of a term of an award or order may be sued for and recovered by:
…
(ca)    a person:
(i)whose employment is, or at the time of the breach was, subject to the award; and
(ii)    who is affected by the breach;
…
(6A) Where, in a proceeding against an employer under this section, it appears to the court concerned that the employer has not paid an amount to a superannuation fund that the employer was required, under an award, order or agreement, to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund.
The Full Court observed that on 27 March 2006, between the hearing and the delivery of reasons by the Industrial Magistrate on 12 May 2006, s 179 of the WR Act was replaced by s 720 of the WR Act which extended the cause of action available to employees for a breach of an applicable award to include a claim for unpaid contributions to a superannuation fund. Section 720 of the WR Act provided:
720 Recovery of wages etc.
If an employer is required by an applicable provision (except a term of an AWA) to pay an amount to an employee or to pay an amount to a superannuation fund on behalf of an employee, the employee, or an inspector on behalf of the employee, may, not later than 6 years after the employer was required to make the payment to the employee or fund, sue for the amount of the payment in an eligible court.
The Full Court held however that, by operation of s 8 of the Acts Interpretation Act 1901 (Cth), s 179(1) of the WR Act continued to govern the claim brought by Mr Kronen. The Full Court also held that by virtue of s 853(1) of the WR Act the Federal Court had exclusive jurisdiction to hear an appeal from a judgment of a court of a State on an application brought pursuant to s 179 of the WR Act.
On the appeal to the Full Court, CMI conceded that the Industrial Magistrate had erred in denying Mr Kronen’s overtime claim based on an implied term derived from custom and practice. The Court held that CMI’s concession was properly made because the obligation imposed by the Award was not subject to any contractual limitation. Nonetheless the Full Court held that the appellant was a “person principally employed to perform duties related to the sale of vehicles” within the meaning of clause 24(A) of the Award and that by that same clause he was therefore not entitled to payment for overtime hours worked. On the superannuation claim, the Full Court held that the Industrial Magistrate had no jurisdiction to make an order for the payment of superannuation and therefore had no general jurisdiction to interpret those provisions of the Award which dealt with it. The Court noted that the Industrial Magistrate had not formally dismissed the claim for payment of superannuation contributions and had therefore failed to deal with the whole of the application. The Full Court observed that in accordance with its decision the Industrial Magistrate lacked jurisdiction with respect to superannuation payable under the Award and that the application should have been dismissed for that reason.
The Full Court considered whether the Industrial Magistrate’s failure to dispose of the entire action by dismissing the superannuation claim meant that Mr Kronen’s appeal was against an interlocutory order and therefore required leave. Considering it unfair to dismiss the appeal on that ground, the Full Court proceeded to hear the appeal with respect to the overtime claim without deciding whether leave was necessary.
On 9 September 2013, in an effort to overcome the effect of the decision of the Full Court, Mr Kronen bought an application to reopen and reconsider “various questions relating to that part of the original application [brought on 11 July 2005] that embodied the ‘superannuation’ claim”. In particular Mr Kronen sought permission to prosecute a claim for penalties pursuant to s 178 of the WR Act in the original action.
Mr Kronen’s application was accepted for filing by the registry of the Industrial Relations Court. It was sealed and given the same action number as the original claim. On 10 September 2013 an associate to an Industrial Magistrate wrote to Mr Kronen referring to his “application for directions dated 9 September 2013”. The letter directed Mr Kronen’s attention to a passage in the reasons of the Full Court in which it held that his application “in respect of superannuation payments was bound to fail as the court lacked jurisdiction to deal with it”. The letter concluded that the Industrial Court of South Australia had no jurisdiction to reopen the matter for reconsideration, and that the Court was “therefore unable to consider your application for directions and now returns the same to you”.
The letter to Mr Kronen was silent as to the power pursuant to which the application was being “returned”. However a letter to Mr Kronen dated 12 September 2013 from the Acting Industrial Registrar confirmed that his application for directions had been filed and had been assigned a hearing date of 1 October 2013 but informed Mr Kronen that his application had been “struck from the file” by the Registrar at the direction of the Industrial Magistrate pursuant to IPR 29.
IPR 29
IPR 29 provides:
29.     Power to reject documents submitted for filing
(1)     A document is an abuse of the process of the Tribunal if it contains matter that is scandalous, frivolous or vexatious.
(2)     If it appears to the Registrar that a document submitted for filing is an abuse of the process of the Tribunal, the Registrar must refer the matter to a judicial member of the Court or a presidential member of the Commission as the case may be.
(3)     If the judicial or presidential member so directs, the Registrar will reject the document.
(4)     If it appears to the Tribunal that a document that is an abuse of the process of the Tribunal has been filed, a judicial or presidential member may direct that it be struck from the file. Such a direction may be given either on the initiative of the Tribunal or on application by a party.
IPR 29 is similar in terms to rule 53 of the Supreme Court Civil Rules 2006 (SCR 53).[1]
[1]    53—Power to reject documents submitted for filing
(1)A document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious.
(2)If it appears to the Registrar that a document submitted for filing is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.
(3)If the Judge or Master so directs, the Registrar will reject the document.
(4)If it appears to the Court that a document that is an abuse of the process of the Court has been filed in the Court, the Court may direct that it be struck from the file.
The issue of a summons is an administrative and not a judicial act.[2] Speaking generally, a court cannot refuse to issue a summons.[3] Rules like IPR 29 of the Industrial Relations Court and SCR 53 must be understood in the context of, and as qualifying, that general principle.
[2] Clarke v Bradlaugh [1881] 8 QBD 63.
[3] Fielding v Janosevic [1983] 2 Qd R 352 at 356.
The first three subrules of IPR 29, and SCR 53, deal with documents tendered to the Registrar for filing. IPR 29(2) and SCR 53(2) require the Registrar of the IRC and the Supreme Court respectively to refer a document which “appears” to be an abuse of process to a judicial officer of his or her court. The use of the word “appears” signifies that the assessment is to be made on the face of the document. It is not for the Registrar to enquire into the merits of the proposed action, or of any proposed interlocutory proceeding brought in that action, or into the weight of any material filed in support. The Judge or Master to whom the document is referred must also make an assessment on the face of the document. An unintelligible document is an obvious kind of document to which IPR 29 and SCR 53 apply. An intelligible document which bears no resemblance to the form required by the Rules of Court is another kind. The decision to refuse to accept documents of those kinds is made on no other material than the document itself. A refusal must be capable of being made without the need to ascertain extraneous circumstances or to rely on arguable questions of law. If it were otherwise, it would be necessary to accord the party filing the document procedural fairness and the power exercised would become judicial and not administrative.
It is common for court rules to provide for the dismissal of proceedings which are an abuse of process without a hearing and determination of the merits. SCR 117(2) empowers this Court, in the management and control of actions, to strike out documents or proceedings which have been filed if the court considers them frivolous, vexatious or an abuse of process of the court.[4]
[4] SCR 117(2)(e).
A similar power is conferred by IPR 60:
60.     Tribunal's power to dismiss or deal summarily with a proceeding
(1)     The Tribunal may dismiss a proceeding if -
(a)    the relevant documents disclose no reasonable cause of action; or
(b)the proceeding is frivolous, vexatious or an abuse of the process of the Tribunal.
The powers conferred by SCR 117(2) and IPR 60(1) do not finally resolve a controversy by the exercise of judicial power but they confer interlocutory powers which must be exercised judicially. The obligation to proceed judicially includes giving the parties an opportunity to be heard.
Both SCR 117(2) and IPR 60(1) apply to documents that initiate a proceeding, that is to say the substantive proceeding, and an interlocutory step filed in that proceeding. Documents which do not initiate a proceeding or a step in a proceeding are also commonly filed in the course of litigation. Affidavits are the most obvious example. IPR 29(4) and SCR 53(4) are directed to documents of both kinds, including for example scandalous affidavits, which the Registrar has accepted for filing. If a party seeks an order that such a document be struck out pursuant to IPR 29(4), the party who filed the document must be given procedural fairness. There is no less reason to afford the party filing a document procedural fairness when the court acts on its own motion pursuant to IPR 29(4) or SCR 53(4) to strike out a document from the file.
Order 46 Rule 7A of the Federal Court Rules 1979 (Cth) (now repealed) was in similar but not identical terms to IPR 29 and SCR 53. Rule 7A however, unlike IPR 29 and SCR 53, dealt only with documents presented to the Registrar but not yet accepted for filing. The predecessor to Rule 7A, like IPR 29 and SCR 53, only allowed the Registrar to refer a document to a Judge for a direction on whether it should be accepted. Rule 7A was amended to allow the Registrar to exercise his or her own discretion to reject a document presented for filing without first referring the question to a Judge.
In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs,[5] the Full Court of the Federal Court explained the operation of the amended rule as follows:
[5] [2003] FCAFC 42.
[14]The [earlier] rule was repealed and promulgated in its present form on 1 July 1985 and it reads as follows:
“Abuse of process
7A.    If a document presented to a Registry in any proceeding, including any document which is or will if issued become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may refuse to accept or issue it or may seek the direction of a Judge who may direct him –
(a)     to accept or issue it; or
(b)     to refuse to accept or issue it; or
(c)to refuse to accept or issue it without the leave of a Judge first had and obtained.”
[15]The rule in its current form removed a clog on the Registrar’s discretion to act by permitting the Registrar to refuse to accept or issue a document without the Registrar being required to obtain authority from a Judge so to act. The first point to note in the construction of the rule is that O 46 is directed to administration of registries of the Court. The purpose of r 7A is to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court.
The Full Court then went on to consider the nature of the powers exercised by the Registrar and Judges of the Federal Court in the application of Rule 7A:
[16]No judicial act is carried out by the Registrar in so acting. The Registrar continues to perform an administrative function, albeit that the act of the Registrar may bear upon the ultimate performance of judicial power. Insofar as r 7A gives the Registrar a discretion to seek a direction from a Judge as to performance of the Registrar’s duties, the direction sought is administrative in character. It is a direction provided by a Judge to assist the Registrar in the task of administration and is not a determination of right made by a Judge after hearing or considering argument or submissions upon an application to the Court seeking the exercise of judicial power.
[17]Rule 7A provides for a Judge to act in aid of administration of the Court. There is no application to the Court by motion or otherwise and no requirement for a party to be heard. It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face. No order or decree intended to bind a party and no determination of right is made by a Judge where assistance is provided to a Registrar under r 7A.
[18]A direction pursuant to the rule either assures a Registrar that he, or she, would not breach a duty by refusing to accept or issue a document, or advises the Registrar that a document, rejection of which is being considered by the Registrar, should be accepted, the Judge being unable to form a view on the face of the document that the Registrar is entitled to reject it. Further, the Registrar may be directed by the Judge to inform the party who has presented the document that the Registrar will not accept it until that party has obtained leave from a Judge to lodge or file the document. An application to a Judge for such leave, pursuant to which submissions would be presented and considered, would be determined in the exercise of judicial power.
[19]It should be concluded, therefore, that a mere direction under O 46 r 7A is not a judgment able to be subjected to appeal by a person whose document has been rejected by the Registrar pursuant to the direction. Similarly, a respondent against whom litigation is commenced by a document accepted and issued by a Registrar, acting under a direction of a Judge pursuant to r 7A, cannot subject that direction to an appeal. If such a respondent contends that the originating document as filed involves an abuse of process or is frivolous or vexatious, the respondent may, by motion under O 20 r 2 of the Rules, seek a summary judicial determination that the proceeding be stayed or dismissed.

Several observations can be made about those passages. First, Rule 7A expressly limits the assessment of the impugned document to what appears “on its face”. That limitation on the inquiry is, as already explained, implicit in IPR 29 and SCR 53. Secondly, the Full Court in Bizuneh gave that limitation considerable importance. It contrasted Rule 7A with powers which can only be exercised after hearing submissions. Thirdly, the Full Court made the point that the rejection of a document for filing is neither a determination of right nor an order binding a party. Fourthly, the Full Court accepted that an order made on an application to obtain leave to file from a Judge following conditional acceptance by the Registrar pursuant to Rule 7A(2)(c) was an exercise of judicial power.
In Westmill Pty Ltd & Ors v Byrt & Ors,[6] Gray J considered the operation of SCR 53 on the referral by the Registrar of a purported Notice of Appeal. Gray J said:
[3]The purpose of Rule 53 is to ensure that the resources of the court are not exhausted by pointless and misconceived litigation and that in the interests of justice, defendants are not put to expense and stress in such cases.[7] The Rule has been held to apply to documents that are incoherent such that parties could not know the case being made against them.[8] Under a Federal Court Rule in comparable terms, the actual rejection of the document by the Registrar is not subject to judicial review.[9] The direction made under Rule 53(4), is an administrative act not subject to appeal.[10]
[4]The predecessor to Rule 53 can be found in Rule 102.09 of the Supreme Court Civil Rules 1987. That Rule, although in different terms, was of materially the same effect and, as such, commentary in relation to that Rule is helpful in the present enquiry. That Rule did however contemplate applications for leave to file documents where it appeared to the Registrar that the document was an abuse of process. Those applications were heard ex parte.[11] It is to be observed that no such application is provided for in Rule 53. …
[13]Rule 53 is, in part, a reflection of the need for courts to protect their resources, while dealing with cases justly. This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications.[12] While a court is occupied dealing with matters devoid of merit, meritorious claims are left wanting access to the courts.[13] On the other hand, a fundamental rule of law is that all persons have access to courts.[14] Regardless, general interests of justice and the public interest combine, to require that there be procedures for ensuring that a court can prevent the institution of frivolous or vexatious proceedings, in the sense that those proceedings cannot succeed.[15] It is however a power which should be exercised with care.
[6] [2010] SASC 99.
[7]    Staats v United States of America (1992) 66 ALJR 793.
[8]    Re Davison (1997) 147 ALR 259.
[9]    Manolakis v District Registrar (SA) (2008) 170 FCR 426.
[10] Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89 at [32]-[33].
[11] Kowalski v Davison [2006] SASC 123.
[12] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 at 93 considered in Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193 at [31].
[13] Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193 at [32].
[14] See Ramsey v Skyring (1999) 164 ALR 378.
[15] Staats v United States of America (1992) 66 ALJR 793 where Deane J was considering a Rule in the High Court Rules comparable terms to Rule 53.
The reasons of Gray J explain in general terms the purpose of SCR 53. However, it is important to keep in mind, as earlier observed, that SCR 53 is not the only rule designed to protect the processes of the court from abuse. The scope of SCR 53 and, in particular, the occasions on which it is applied must be informed by the existence of those rules which allow the court to deal judicially with proceedings and steps in proceedings after an action has been initiated. Moreover, it is important to distinguish, as the Federal Court did in Bizuneh, between those acts and directions which prevent the filing of a document, and which are therefore administrative, and those acts and directions given on filed documents in the course of proceedings which are interlocutory orders of a judicial nature. Finally, the reference in [3] of the reasons to Rule 53(4) appears to be a typographical error. Gray J was dealing with the referral of an initiating document, a notice of appeal, which had not been accepted for filing and had been referred to him pursuant to Rule 53(2) for a direction pursuant to Rule 53(3). Moreover, the authority cited for the proposition, Andrew Garrett Wine Resorts Pty Ltd v National Australia Bank Ltd,[16] also concerned a direction given by a judge to refuse to accept a document.
[16] [2007] SASC 89 at [32], [33].
The decision of the Industrial Magistrate was a judicial one. If an application or document is not filed, it is not capable of initiating a proceeding or a step in a proceeding. The decision of a Registrar not to accept a document is an administrative one whether or not the Registrar acts on his or her own motion or at the direction of a Judge. However, the circumstances in which persons are denied access to a court by administrative acts must be carefully confined. Access to a court to resolve a legal controversy is an important public right. However, the court is entitled to insist on the filing of documents which are intelligible and in substantially the prescribed form. In the case of initiating proceedings, they must also appear on their face to raise a justiciable controversy. Interlocutory proceedings must appear to relate to the action in which they are filed. Mr Kronen’s documents did that. A consideration of the complex interaction of the WR Act and the State Fair Work Act and a comparison of the claim which Mr Kronen now wishes to advance with the ambit of his claim in 2005 shows that his prospects of success are poor. However, on their face they raise matters warranting judicial consideration. It may well be that the prospects were so poor that Mr Kronen’s application to reopen was vulnerable to an application for dismissal pursuant to IPR 60. Once a matter is accepted for filing, any subsequent disposition of the matters it raises is judicial in nature. It was not appropriate to deal with the application to re-open pursuant to IPR 29(4) without giving Mr Kronen an opportunity to be heard.
The exercise of the power conferred by IPR 29(4) being judicial in nature, the direction of the Industrial Magistrate was necessarily an interlocutory judicial order and therefore a “judgment order or decision” within the meaning of those terms in s 187 of the State Fair Work Act which provides:
187—Appeals from Industrial Magistrate
(1) An appeal lies from a judgment, order or decision of the Court constituted of an Industrial Magistrate to the Court constituted of a single Judge.
(2) A single Judge may refer an appeal under this section to the Full Court if of the opinion that the appeal raises questions of importance or difficulty that justify consideration by the Full Court.[17]
[17] An order is defined by s 4 of the Fair Work Act 1994 (SA) to include a direction and a decision is defined to include a refusal or failure to make a decision.
No Right of Appeal to a Judge of the Industrial Court
It remains to consider whether the conferral of federal jurisdiction on the Industrial Relations Court extends to the hearing of appeals from the decisions of Industrial Magistrates pursuant to s 187 of the State Fair Work Act.
The WR Act was repealed by the Fair Work Act 2009 (Cth) but continues to apply to Mr Kronen’s employment with CMI by reason of the Transitional Provisions Act which confers exclusive jurisdiction on the Federal Court to hear appeals against decisions made in the first instance by State or Territory courts exercising jurisdiction under the Transitional Provisions Act, or the WR Act as it continues to apply because of the Transitional Provisions Act.
Section 853 of the WR Act provides:
853    Appeals from State and Territory courts
(1)     An appeal lies to the Court from a judgment of a court of a State or Territory in a matter arising under this Act or the BCII Act.
(2)     It is not necessary to obtain the leave of the Court or the court appealed from in relation to an appeal under subsection (1).
(3)     An appeal does not lie to the High Court from a judgment from which an appeal may be made to the Court under subsection (1).
Clause 11 of Schedule 2 of the Transitional Provisions Act provides:
11 Conduct before repeal--WR Act continues to apply
Conduct before repeal
(1) The WR Act continues to apply, on and after the WR Act repeal day, in relation to conduct that occurred before the WR Act repeal day.
…
Orders made before repeal
(2) To avoid doubt, the WR Act continues to apply, on and after the WR Act repeal day, in relation to orders made under that Act, including as it continues to apply under subitem (1).
Clause 24 of Schedule 17 of the Transitional Provisions Act is in similar terms to s 853 of the WR Act and provides:
24    Appeals from eligible State or Territory courts
(1) An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act or the WR Act as it continues to apply because of this Act.
(2)     It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subitem (1).
(3)     No appeal lies from a decision referred to in subitem (1), except as provided for by this item.
It follows that the Federal Court retains exclusive jurisdiction to hear appeals against judgments and decisions made in the original action.
The Full Bench of the Industrial Court was correct to so decide. Mr Kronen’s appeal to this Court must therefore be dismissed. It is for Mr Kronen to decide whether he wishes to pursue an appeal to the Federal Court. However we observe that the application he made was an interlocutory one, as was the direction given by the Industrial Magistrate. The direction given by the Industrial Magistrate does not, of itself, preclude Mr Kronen filing another interlocutory application. If Mr Kronen were to do so then, in the light of these reasons, it may be accepted for filing and subsequently dealt with in accordance with the Industrial Proceedings Rules 2010 (SA) by giving Mr Kronen an opportunity to be heard.