S & AD Basheer Nominees Pty Ltd v Boland (No 2) - [2019] SASCFC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
S & AD BASHEER NOMINEES PTY LTD v BOLAND (No 2)
[2019] SASCFC 35
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
11 April 2019
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
The Full Bench of the South Australian Employment Court referred four questions of law to the Supreme Court. Ultimately the Court found it necessary only to answer the question whether the respondent was under a duty to inform the Minister, before laying an information prosecuting a breach of the Work Health and Safety Act 2012 (SA), of her intention to do so. Contrary to the contention of the appellant, that question was answered in the negative.
The respondent seeks an order that the appellant pay its costs of the proceeding in the Supreme Court.
Held, by the Court:
1. The Full Court does not have the power to award costs on a question reserved under section 70(1) of the South Australian Employment Tribunal Act 2014 (SA).
Criminal Law Consolidation Act (SA) s 50(2), s 350(2); Fair Work Act 1994 (SA) s 173; Magistrates Court Act 1991 (SA) s 43(3); South Australian Employment Tribunal Act 2014 (SA) s 22(2)(b), s 67(6), s 68(3)(c), s 70; Supreme Court Act 1935 (SA) s 40; Supreme Court Civil Rules 2006 (SA) r 263; Work, Health and Safety Act 2012 (SA) s 32, s 152(a), referred to.
Question of Law Reserved (No. 1 of 2018) [No. 2] [2019] SASCFC 17, applied.
Symons v Brice Metals Australia Pty Ltd [2012] SAIRC 17, discussed.
Burford v Allan [1998] SASC 6693; S & AD Basheer Nominees Pty Ltd v Boland [2018] SASCFC 127, considered.

S & AD BASHEER NOMINEES PTY LTD v BOLAND (No 2)
[2019] SASCFC 35
Full Court: Kourakis CJ, Blue and Stanley JJ

THE COURT: In this matter the Court answered questions of law referred to it by the Full Bench of the South Australian Employment Court (Employment Court) pursuant to the South Australian Employment Tribunal Act 2014 (SA)[1] (the Employment Tribunal Act). S & AD Basheer Nominees Pty Ltd (Basheer) is the defendant in a prosecution instituted by the Acting Executive Director of SafeWork SA (the Executive Director) for a breach of s 32 of the Work Health and Safety Act 2012 (SA) (WHS Act).
[1] S & AD Basheer Nominees Pty Ltd v Boland [2018] SASCFC 127.
Before an Industrial Magistrate, Basheer submitted that the information and summons was invalid because s 152(a) of the WHS Act conditions the institution of a prosecution upon the Executive Director advising the Minister of her intention to prosecute a person under the WHS Act before the laying of an information.
The Magistrate dismissed the challenge to the validity of the prosecution. Basheer appealed against the Magistrate’s ruling. The Full Bench of the Employment Court referred four questions of law to this Court.
Ultimately the Court found it necessary only to answer the question whether the Executive Director was under a duty to inform the Minister, before laying an information prosecuting a breach of the WHS Act, of her intention to do so. Contrary to the contention of Basheer, that question was answered in the negative.
The Executive Director now seeks an order that Basheer pay the costs of the proceeding in this Court.
Basheer opposes the application. It submits that there is no power in this Court to make an order for the payment of costs on the referral of a question of law to this Court pursuant to the Employment Tribunal Act. In the alternative, it submits that the Court should make no order as to the costs of the proceeding in this Court. It puts that submission on the basis that the matter raised a novel question of general importance and some difficulty and that there was a public interest in obtaining the answer to the question of law referred to the Court. Basheer submits that the public interest is reflected in the investigations initiated into the conduct of SafeWork SA by the Independent Commissioner Against Corruption. In those circumstances it submits that it is appropriate that there should be no order as to costs.
The Court’s power to award costs
The source of the power of the Court to order payment of costs is statutory.[2]
[2] Burford v Allan [1998] SASC 6693.
Basheer submits that as a matter of statutory construction the Employment Tribunal Act does not confer power to make an order for costs where the Court has determined a question or questions of law reserved to it by a Full Bench of the Tribunal. Section 70 of the Employment Tribunal Act provides:
70—Reservation of questions of law
(1) A Full Bench of the Tribunal (including a Full Bench of the South Australian Employment Court) may reserve any question of law arising in any proceedings (including on referral to the Full Bench) for determination by the Full Court of the Supreme Court.
(2) If a question of law is reserved, the Supreme Court may determine the question and give any consequential orders or directions considered by the Court to be appropriate to the circumstances of the case.
By way of contrast, Basheer points to the power conferred on the Court by s 68(3)(c) to “make consequential or related orders (including orders for costs)” when this Court has heard an appeal on a question of law from the Full Bench. In a similar vein Basheer points to the power conferred on the Full Bench of the Tribunal by s 67(6) to “make any interim, ancillary or consequential order that the Full Bench considers appropriate (including orders for costs)” when the Full Bench has heard an appeal against a decision of the Tribunal.
Basheer submits that the absence of the words in s 70(2), found in parentheses in s 67(6) and s 68(3)(c), evinces, by necessary implication, a legislative intention to exclude the power to award costs by this Court in exercising the jurisdiction conferred by s 70.
Basheer relies upon the reasons for decision in the matter of Symons v Brice Metals Australia Pty Ltd,[3] where the Full Court of the Industrial Relations Court of SA (IRC) held that s 43(3) of the Magistrates Court Act 1991 (SA) (MCA) does not confer power on the Full Court of the IRC to award costs on the determination of a question of law. Section 43(3) provides:
[3] [2012] SAIRC 17.
43—Reservation of question of law
(3) The Court for whose determination a question of law is reserved under this section may determine the question and give any consequential orders or directions that may be appropriate in the circumstances of the case.
The power of the IRC to make an order for costs was conferred by s 173 of the Fair Work Act 1994 (SA) (FWA) which provided that the Court “may only make orders for costs where specifically authorised to do so”. The decision of the Full Court of the IRC was founded on the different statutory context of the FWA and the MCA. The reasons of the Full Court of the IRC in Brice did not require consideration of the provisions of s 40 of the Supreme Court Act 1935 (SA) (SCA).
This Court is conferred with power to order costs in matters within its jurisdiction by s 40 of the SCA. Section 40(1) provides:
40—Power of court with regard to costs
(1) Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.
It can be seen that the power of the Supreme Court to order costs, conferred by s 40(1) of the SCA, is subject only to the express provisions of the SCA and the Rules of Court made thereunder and to the express provisions of any other Act whenever passed. Section 70 of the Employment Tribunal Act exhaustively states the powers of the Supreme Court on the hearing of a question reserved. When construed against s 68(3)(c) the phrase “consequential orders or directions” does not include an order as to costs. It follows that s 70(2) of the Employment Tribunal Act is an express provision which modifies the scope of s 40 of the SCA. Accordingly, we accept the submission that s 70 evinces a legislative intention to cover the field of the power of this Court on referral of questions of law. This Court cannot make orders for costs on the referral of questions of law because the determination of those questions does not finally dispose of the matter before the Tribunal. In any event, recent authority of this Court has conclusively excluded s 40(1) of the SCA as a source of power to award costs in these circumstances.
In Question of Law Reserved (No. 1 of 2018) [No. 2],[4] this Court held that s 40 of the SCA does not confer power upon the Court to make an award of costs consequent upon determining a question reserved under s 350(2) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). There is no relevant distinction between a referral of a question of law to this Court pursuant to s 50(2) of the CLCA and s 70 of the Employment Tribunal Act. That decision is binding upon us. It is conclusive of the question of power given that no other provision in the Employment Tribunal Act, or any other Act, expressly confers power on this Court to order costs on the referral of the question of law.
[4] [2019] SASCFC 17 (Hinton J, Vanstone and Lovell JJ agreeing).
Finally, the lack of power to award costs on a reservation of a question of law and the contrasting position in an appeal to this Court should be taken into account in the exercise of the discretion to reserve a question pursuant to s 22(2)(b) or s 70(1) of the Employment Tribunal Act.
Accordingly, we make no order in relation to the costs of the proceeding before this Court.