Moore v AI Automotive Pty Ltd

[2011] SASCFC 141

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

MOORE v AI AUTOMOTIVE PTY LTD

[2011] SASCFC 141

Reasons for Decision of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Anderson)

23 November 2011

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

PROCEDURE - COSTS - APPEALS AS TO COSTS

Application for permission to appeal to the Full Court in private - an Industrial Magistrate found the respondent guilty of offences under the Fair Work Act 1995 (SA) - the magistrate ordered the respondent to pay the costs of the appellant - in making the order for costs the magistrate said that he was not bound to apply any particular scale of costs but that his task was to determine the reasonable costs that should be awarded by way of compensation - the Full Court of the Industrial Relations Court of South Australia said that there was some uncertainty about the correct approach to costs in cases such as this, and identified a number of separate aspects of the magistrate's reasons that the majority considered gave rise to an error in the ultimate decision - whether appeal would involve an issue of principle of some practical significance.

Application for permission to appeal to the Full Court referred into open court, with the hearing of the application for permission to appeal to be treated as the hearing of the appeal if the Court decides that permission to appeal should be granted.

Fair Work Act 1994 (SA) s 191(1)(b); Summary Procedure Act 1921 (SA) s 189(1), referred to.
AI Automotive Pty Ltd v Moore [2011] SAIRC 65, considered.

MOORE v AI AUTOMOTIVE PTY LTD
[2011] SASCFC 141

Full Court:       Doyle CJ, Vanstone and Anderson JJ

1. THE COURT:  This is an application for permission to appeal to the Full Court of the Supreme Court against a decision by the Full Court of the Industrial Relations Court. The application is made under s 191(1)(b) of the Fair Work Act 1994 (SA) (the Act).

2. The Full Court of the Industrial Relations Court (by majority) allowed an appeal against a costs order made by an Industrial Magistrate.  The Magistrate had found the respondent guilty of offences under the Act.  The offences involve a failure to provide safe working conditions for persons employed by the respondent.  The Magistrate ordered the respondent to pay the costs of the appellant.  The Magistrate heard detailed submissions on the question of costs, and fixed the costs payable by the respondent at $89,000.

3. In making that order the Magistrate said that he was not bound to apply any particular scale of costs.  He said that his task was to determine, applying “a broad brush”, the reasonable costs that should be awarded to the appellant by way of compensation.  He said that the matter was one that involved considerable difficulty and complexity, and that the charges were serious.  The power to award costs is found in s 189(1) of the Summary Procedure Act, which confers a power to award costs “as the Court thinks fit”.

4. The majority of the Full Court decided that the Magistrate was wrong.  They set aside the order made by the Magistrate.  They remitted the matter to another Magistrate to determine the costs that should be paid by the respondent to the appellant.

5. The majority said that there was some uncertainty about the correct approach to costs in cases such as that before them:  AI Automotive Pty Ltd v Moore [2011] SAIRC 65 at [55].  The majority identified a number of separate aspects of the Magistrate’s reasons that the majority considered gave rise to an error in the ultimate order:  AI Automotive Pty Ltd v Moore at [58]-[70].  It may be that the error that the majority found resulted from the cumulative effect of the matters identified in their reasons.   On the other hand, it may be that each of the matters was itself treated as an error.

6. The appellant now submits that the majority erred.  The appellant treats the majority as establishing definite principles to be applied in fixing costs in cases involving the prosecution under the Act.  The appellant submits that accordingly the appeal raises significant issues of principle, because the approach of the majority will be treated as governing the award of costs in prosecutions generally.  It treats the majority as setting new and erroneous principles to be applied.

7. If the appellant is correct in its contention about the effect of the majority decision, the case does warrant a grant of permission to appeal.  The case, on that basis, would involve an issue of principle of some practical significance.  On the other hand, it is not clear that the majority decision has the effect for which the appellant contends.  In the end it may be that the case will be seen as turning on its facts and circumstances.   Ultimately it might not raise the issues of principle identified by the appellant.

8. This is one of those cases in which it is desirable for the Court to hear submissions on either side before deciding whether or not permission to appeal should be granted.

9. Accordingly, the Court orders that the application for permission to appeal be referred into open court, on notice to the respondent.  The hearing of the application for permission to appeal will be treated as the hearing of the appeal, if the Court decides that permission to appeal should be granted.  It will be open to the Court on the hearing of the application to decide that permission to appeal should not in fact be granted.

10. The case has a long history.  The offences that the Magistrate found were committed occurred on 19 April 2002.  The proceedings before the Magistrate were spread over a period between October 2005 and June 2006.  The Magistrate’s decision was published in November 2006.  For reasons that do not emerge from the limited material before this Court, the decision on costs was not made until August 2010.  The appeal was heard by the Full Court of the Industrial Court in March 2011, the decision being given in September 2011.

11. The appellant and respondent should do everything that can be done to ensure that the appeal comes on for hearing as soon as practical.