Kronen v Commercial Motor Industries Pty Ltd (T/As CMI Toyota) (No 2)

[2016] SASCFC 23

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

KRONEN v COMMERCIAL MOTOR INDUSTRIES PTY LTD (T/AS CMI TOYOTA) (No 2)

[2016] SASCFC 23

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Nicholson)

17 March 2016

INDUSTRIAL LAW - SOUTH AUSTRALIA - PROCEDURAL AND EVIDENTIARY MATTERS RELATING TO COURT AND COMMISSION - COSTS

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

Costs in appeal against a decision of the Full Bench of the Industrial Relations Court.

Reasons for judgment previously delivered dismissing the appeal. The Court held that a direction given by an Industrial Magistrate to the Registrar of the Industrial Relations Court to strike out a filed document was a ‘judgment’ within the meaning of s 187 of the Fair Work Act 1994 (SA). The Court held that the Federal Court retains exclusive jurisdiction to hear appeals against judgments and decisions made in the original action.

Held per the Court:

1.       The appellant to pay the respondent 50 per cent of the costs of the appeal.

Fair Work Act 1994 (SA) s 187; Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) sch 17, referred to.
Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2016] SASCFC 8, considered.

KRONEN v COMMERCIAL MOTOR INDUSTRIES PTY LTD (T/AS CMI TOYOTA) (No 2)
[2016] SASCFC 23

Full Court:  Kourakis CJ, Blue and Nicholson JJ

1. THE COURT:     On 24 February 2016 this Court dismissed Mr Kronen’s appeal against a decision of the Full Bench of the Industrial Relations Court affirming an Industrial Magistrate’s direction to strike out his application to reopen proceedings brought by him in the Industrial Relations Court in 2005.[1]   

   [1]    Kronen v Commercial Motor Industries Pty Ltd (t/as CMI Toyota) [2016] SASCFC 8.

2. The Full Bench upheld the direction of the Magistrate holding that the Magistrate’s direction was not a judgment for the purposes of s 187 of the Fair Work Act 1994 (SA) (the State Fair Work Act). The Full Bench held, in the alternative, that if the Magistrate’s direction were a judgment, an appeal pursuant to that provision was precluded by Schedule 17 the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) and that the only avenue of appeal was to the Federal Court.

3. This Court held that the direction of the Industrial Magistrate was a judgment for the purposes of s 187 of the State Fair Work Act because it was an interlocutory judgment on a procedural question. This Court, however, dismissed Mr Kronen’s appeal because the Full Bench of the Industrial Relations Court was right to hold that the only avenue of appeal was to the Federal Court.

4. The respondent seeks an order for costs in its favour.  The appellant opposes that order on the grounds that he was successful on one of the two issues on which the appeal was contested.

5. The Court exercises a judicial discretion with respect to costs and in the ordinary course costs follow the event unless there are special circumstances justifying another order.   In the exercise of the costs discretion, it is sometimes appropriate to modify that order when the ultimately successful party has failed on particular disputed questions of fact or law.   

6. The question of the nature of the discretion occupied a substantial proportion of the hearing.  Moreover, the determination of that question has shown that Mr Kronen was wrongly denied an opportunity to be heard on an application raising an issue of some complexity and that Mr Kronen is not precluded from making a fresh application.  Mr Kronen has only been unsuccessful in his choice of venue for appellate review of the Industrial Relations Court’s error.  In the circumstances of this case, we would order that the appellant pay the respondent 50 per cent of the costs of the appeal.