Moore v AI Automotive Pty Ltd - [2012] SASCFC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MOORE v AI AUTOMOTIVE PTY LTD
[2012] SASCFC 64
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Peek)
6 June 2012
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - COSTS AGAINST DEFENDANT
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - POWERS OF COURT
Application for permission to appeal against a decision of the Full Court of the Industrial Relations Court of South Australia – at trial, three offences were alleged against the respondent under the Occupational Health, Safety and Welfare Act 1986 (SA) – at trial, an Industrial Magistrate found the respondent guilty of each offence, recorded a conviction on each count, and imposed a fine – the prosecutor applied for an order that the respondent pay his costs of the prosecution – Industrial Magistrate departed from the scale and awarded costs of $89,000 – on appeal, a majority of the Full Court of the Industrial Relations Court of South Australia held that the Magistrate’s orders should be set aside, and that the question of costs should be remitted for hearing by a different Magistrate.
The issue on appeal was whether the Industrial Magistrate erred in principle in departing from the scale and ordering the defendant, convicted of three offences under the Occupational Health, Safety and Welfare Act 1986 (SA) after a hearing before the Magistrate, to pay the prosecutor’s costs.
Held: the discretion conferred by s 189(1) of the Summary Procedure Act 1921 (SA) is at large – the decision of Konieczka v Police [2006] SASC 228; (2006) 245 LSJS 458 does not place a fetter on that discretion – although broad, the discretion must be exercised judicially – the Industrial Magistrate was entitled to depart from the scale – there was no indication that the Industrial Magistrate erred in the manner in which he arrived at the award of costs.
Appeal allowed.
Occupational Health, Safety and Welfare Act 1986 (SA); Summary Procedure Act 1921 (SA) s 4(1), s 5, s 8, s 189, s 189(1); Magistrates Court Rules 1992 (SA) r 51, referred to.
Konieczka v Police (2006) 245 LSJS 458; Police v Pericic (2008) 100 SASR 141; Curnow v Police (2008) 100 SASR 290; Latoudis v Casey (1990) 170 CLR 534, discussed.
Cilli v Abbott (1981) 53 FLR 108; Kelly v Noumenon Pty Ltd (1988) 47 SASR 182; Norbis v Norbis (1986) 161 CLR 513, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"depart from the scale of costs", "prosecutor’s costs"

MOORE v AI AUTOMOTIVE PTY LTD
[2012] SASCFC 64
Full Court: Doyle CJ, Vanstone and Peek JJ

DOYLE CJ: This is an application for permission to appeal against a decision by the Full Court of the Industrial Relations Court. The issue raised by the proposed appeal is whether an Industrial Magistrate erred in principle in ordering the defendant, convicted of three…

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.

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Details

Case: [2012] SASCFC 64
Decision Date: 6 June 2012

CaseChat Overview and Summary

This case concerned an application for permission to appeal against a decision of the Full Court of the Industrial Relations Court of South Australia. At trial, the respondent, AI Automotive Pty Ltd, was found guilty of three offences under the *Occupational Health, Safety and Welfare Act 1986* (SA). Following convictions and the imposition of fines, the prosecutor applied for an order for costs. The Industrial Magistrate awarded the prosecutor $89,000 in costs, departing from the usual scale, citing the case's difficulty, complexity, seriousness, length, and the technical nature of the evidence. AI Automotive appealed this costs order.

The central legal issue before the Full Court of the Industrial Relations Court was whether the Industrial Magistrate had erred in exercising their discretion to award costs. Specifically, the majority of the Full Court considered whether the Magistrate had failed to take into account relevant factors when determining the quantum of the costs awarded, leading to a miscarriage of discretion. The dissenting judge, however, found no error in the Magistrate's decision to depart from the scale and in the subsequent calculation of the costs.

The Supreme Court of South Australia, in allowing the appeal, adopted the reasoning of the dissenting judge of the Full Court. The Court held that the Industrial Magistrate was justified in departing from the scale of costs due to the particular difficulty, complexity, and seriousness of the case. Once the decision to depart from the scale was made, the Magistrate's subsequent exercise of discretion in calculating the costs, based on work actually done and reasonable rates, was not found to contain any error. The Court concluded that there was no warrant for interference with the Magistrate's original costs order on appeal.

Consequently, the Supreme Court allowed the appeal, set aside the order of the Full Court of the Industrial Relations Court that had remitted the costs for rehearing, and substituted an order dismissing the appeal to that Court. This meant the original costs order of $89,000 in favour of the prosecutor was reinstated.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow I would grant permission to appeal. The appeal raises issues of principle that should be settled. I would allow the appeal to this Court, set aside the order allowing the appeal to the Full Court of the Industrial Relations Court, and substitute an order dismissing the appeal to that Court.Facts Mr Moore (the prosecutor) filed a complaint charging AI Automotive Pty Ltd (AI) with three counts that alleged offences under the Occupational Health, Safety and Welfare Act 1986 (SA) (the OHSW Act). The charges were based on an alleged failure to protect an employee of AI from injury in the workplace. The Magistrate found AI guilty of each offence, recorded a conviction on each count, and imposed a fine. The prosecutor applied for an order that AI pay his costs of the prosecution. The Magistrate awarded costs of $89,000. The Magistrate gave brief written reasons for that decision. During the submissions on costs, counsel for the prosecutor gave the Magistrate a number of memoranda and accounts setting out the matters in respect of which a claim was made (work done by solicitors, by counsel and by an expert) and also setting out the amounts claimed. In making the award the Magistrate departed from the scale of costs that applied subject to an order to the contrary. The Magistrate said that this was justified by the “difficulty, complexity and seriousness of the case”, by the length of the trial (8.5 sitting days), and by the “highly technical and complex evidence” given before the Magistrate. The Magistrate said that the prosecutor was:… entitled to compensation for its reasonable costs irrespective of the level of penalty imposed and in respect of which I am able to apply a broad brush …The Magistrate was satisfied that the work in respect of which a claim was made was properly and appropriately carried out in connection with the prosecution, and that the rate at which claims were made for the work of solicitors, counsel and an expert was reasonable. The Magistrate commented that a greater amount than that claimed might well have been justified. AI appealed against that decision. The majority (Judge Parsons, with whom Judge Farrell agreed) held that in deciding the amount to be awarded the Magistrate had failed to take into account a number of relevant considerations identified by the majority, and that the exercise of the discretion to award costs had miscarried. Accordingly, they ordered that the order for costs be set aside, and that the question of costs be remitted to another Industrial Magistrate for rehearing: AI Automotive Pty Ltd v Moore [2011] SAIRC 65 at [65]-[72]. Judge McCusker held that the Magistrate was entitled to depart from the scale ordinarily applicable, and that in arriving at the amount to be awarded, once the decision was made to depart from the scale, there was no error on the part of the Magistrate: AI Automotive at [23].Legislation The complaint charged summary offences for the purposes of the Summary Procedure Act 1921 (SA) (the SPA): see the definition of “summary offence” in s 4(1) of the SPA and in s 5 of the SPA. As each offence was an “industrial offence” as defined in s 4(1) of the SPA, the charges were heard by an Industrial Magistrate: s 8 of the SPA. The hearing of the charges was governed by the SPA.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that I agree in substance with the approach of Judge McCusker, the dissenting member of the Court, when he said:[23]Thus the learned Industrial Magistrate was well justified in his conclusion that the case was one of particular difficulty, complexity and seriousness. He was therefore entitled on the authorities to depart from the scale of the First Schedule. Once he had reached this stage in his analysis the learned Industrial Magistrate exercised his discretion adopting a calculation based upon the work actually done and accepting the amounts attributed to each such item. Moreover that was reduced by some 40% out of caution and to ensure it reflected only attributable costs. In the circumstances there is no warrant in my opinion for our interference on appeal.The reasons of the Magistrate do not indicate error, nor does the decision that he made indicate that some unexpressed error must have affected that decision.Conclusion The Magistrate was entitled to depart from the Scale of Costs set out in the First Schedule. There is no indication of error on the part of the Magistrate in the manner in which he arrived at the award of costs. I would allow the appeal, set aside the order made by the Full Court of the Industrial Relations Court allowing the appeal to it, and order that there be substituted an order dismissing the appeal to the Full Court of the Industrial Relations Court. VANSTONE J: I agree with the orders proposed by the Chief Justice and with the reasons he has given. PEEK J: I agree with the orders proposed by the Chief Justice and with his reasons.

Ratio Decidendi

Legal Principle Established

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