Litchfield v Chief Executive, Department of Manufacturing, Innovation, Trade, Resources and Energy (No 2)

[2014] SASCFC 69

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

LITCHFIELD v CHIEF EXECUTIVE, DEPARTMENT OF MANUFACTURING, INNOVATION, TRADE, RESOURCES AND ENERGY (NO 2)

[2014] SASCFC 69

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)

4 July 2014

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

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE

The appellant was awarded payment in lieu of notice and a termination benefit pursuant to his employment contract by a magistrate of the Industrial Relations Court. The Full Court of the Industrial Relations Court of South Australia overturned that decision. It found that the appellant’s employment had not been terminated according to the contract but that he was assigned to different duties pursuant to the Public Sector Act 2009 (SA). The appellant brought an appeal against the judgment of the Full Court of the Industrial Relations Court to the Full Court of the Supreme Court.

The Full Court of the Supreme Court dismissed the appeal by Mr Litchfield from the judgment of the Full Court of the Industrial Relations Court.  The respondent applies for the costs of the appeal.  The appellant opposes the application for costs.  The appellant submits that the Court should make no order as to costs of the appeal.

Whether the appeal raised a difficult issue of construction.  Whether costs should follow the event.

Held (the Court):

The respondent was successful in resisting the appellant’s claim.  The appellant is to pay the respondent’s costs of and incidental to the appeal.

Public Sector Act 2009 (SA) 9; 47, referred to.

WORDS AND PHRASES CONSIDERED/DEFINED

"Costs"

LITCHFIELD v CHIEF EXECUTIVE, DEPARTMENT OF MANUFACTURING, INNOVATION, TRADE, RESOURCES AND ENERGY (NO 2)
[2014] SASCFC 69

Full Court:      Kourakis CJ, Stanley and Bampton JJ

1. THE COURT:      In this matter the Court dismissed the appeal by Mr Litchfield from the judgment of the Full Court of the Industrial Relations Court of South Australia.  The respondent has applied for the costs of the appeal to this Court.  The appellant opposes the application for costs.  It submits that the Court should make no order as to costs of the appeal.

2. The appellant submits that the appeal raised difficult issues of construction of the Public Sector Act 2009 (SA). He submits that the outcome of the appeal turned on the application of s 9 of the Act. In particular, he submits that this Court found the Full Court of the Industrial Relations Court erred in relying upon s 47 of the Act in rejecting his claim to the termination benefit conferred pursuant to clause 11.1 of his contract. He submits that at the trial before Mr Ardlie IM the respondent did not rely upon s 9, in the manner it advanced before this Court, as justification for its decision to temporarily assign the appellant. Further, he submits that on appeal to the Full Court of the Industrial Relations Court the respondent did not rely upon s 9 at all. Finally, he submits that on appeal to this Court the respondent did not rely upon s 9 as a justification for the temporary assignment of the appellant.

3. The respondent submits that it has been overwhelmingly successful in the appeal.  The relevant question in determining a liability for costs is whether the appellant was successful in making out his claim.  He was not.  In those circumstances, costs should follow the event in accordance with the usual practice.  In any event, the respondent submits that it is incorrect to contend that it did not rely on s 9 below or before this Court.

4. The usual practice is that costs of proceedings, including an appeal, should follow the event unless there exists circumstances which, in the exercise of a judicial discretion, would justify departure from that practice.

5. In our view, while the respondent primarily conducted its defence of the appellant’s claim to the termination benefit, conferred by clause 11 of his contract, by reference to s 47, it also relied upon the provisions of s 9 in the alternative.  In the end, the respondent has been successful in resisting the appellant’s claim.  While the appeal raised an important and difficult issue of construction, we do not consider that, per se, justifies a departure from the usual practice in relation to costs.

6. We would order that the appellant pay the respondent’s costs of and incidental to the appeal.