Traffic Group Australia P/L v Moeller

[2013] SASCFC 102

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

TRAFFIC GROUP AUSTRALIA P/L v MOELLER

[2013] SASCFC 102

Reasons for Decision of The Full Court

(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Stanley)

4 October 2013

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

This is an application for permission to appeal to the Full Court of the Supreme Court from a decision of the Full Court of the Industrial Relations Court upholding the findings made by an Industrial Magistrate.

Held (per Stanley J, Sulan and Vanstone JJ agreeing): Application for permission to appeal refused. The application raises no issue of principle. 

Supreme Court Civil Rules 2006 (SA) r 290; Fair Work Act 1994 (SA) s 191; Long Service Leave Act 1987 (SA), referred to.
Fox v Percy (2003) 214 CLR 118; Markos v Quin Investments Pty Ltd & Anor [2011] SASCFC 98, considered.

TRAFFIC GROUP AUSTRALIA P/L v MOELLER
[2013] SASCFC 102

Full Court:  Sulan, Vanstone and Stanley JJ

1. SULAN J: I agree with Stanley J.  I would refuse permission to appeal.

2. VANSTONE J:     I would refuse permission to appeal for the reasons written by Stanley J.

3. STANLEY J:         This is an application for permission to appeal to the Full Court of the Supreme Court from a decision of the Full Court of the Industrial Relations Court (“the IRC”). The application for permission to appeal is made pursuant to s 191(1)(b) of the Fair Work Act 1994 (SA).

4. The application is being considered pursuant to 6SCR 290. The application is supported by a summary of argument as required by 6SCR 290(1)(b). The application was considered without hearing from the respondent pursuant to 6SCR 290(6).

5. The respondent claimed the sum of $47,124.95 from the applicant pursuant to the Long Service Leave Act 1987 (SA) (“the LSL Act”).  He claimed the entitlement accrued over the period of his service from 13 January 1998 to 23 May 2011 in a traffic management business conducted by three successive employers, the last of which was the applicant. 

6. The respondent’s claim was allowed by an Industrial Magistrate.  An appeal from that decision to the Senior Judge of the IRC was dismissed.  An appeal from the decision of the Senior Judge to the Full Court of the IRC also was dismissed. 

7. The Full Court of the IRC upheld the finding made by the Industrial Magistrate that the respondent’s service over the period from 1998 to 2011 was “continuous service” with “related employers” within the meaning of the LSL Act.

8. The applicant seeks permission to appeal on the basis that the Full Court of the IRC erred in failing to find that there had been a break in the respondent’s service in 2007, when the traffic management business was sold by All Points Logistics Pty Ltd (“All Points”) to Traffic Technologies Traffic Management Division Pty Ltd (“Traffic Technologies”).  Subsequently the applicant acquired the business from Traffic Technologies.

9. The applicant contends that the respondent was the controlling mind of the vendor, All Points.  Pursuant to the sale of business agreement entered into between All Points and Traffic Technologies, employees of the business, excluding the respondent, were to be transferred from All Points to Traffic Technologies upon the completion of the sale of the business.  Following the completion of the sale on 7 June 2007, the respondent undertook some work for Traffic Technologies as a contractor until he accepted employment with Traffic Technologies pursuant to a written contract which commenced on either 20 August 2007 or 3 September 2007. 

10. The IRC found for the respondent on the basis that there existed a co-lateral oral contract between Traffic Technologies and the respondent pursuant to which Traffic Technologies employed the respondent from 7 June 2007.  The Industrial Magistrate found this co-lateral oral employment contract was negotiated between the respondent and Mr O’Dwyer on behalf of Traffic Technologies.  The Full Court of the IRC upheld this finding. 

11. The applicant submits this finding was contrary to the objective evidence. 

12. At the trial before the Industrial Magistrate, the applicant did not call any evidence from Mr O’Dwyer or any of the principals of Traffic Technologies to contradict the respondent’s claim concerning the making of this oral employment contract.

13. On appeal, the Senior Judge rejected an application by the applicant to call fresh evidence from the managing director of Traffic Technologies, Mr Scrinis.  The proposed evidence concerned the conduct of the negotiations with the respondent for the purchase of All Points by Traffic Technologies.  The Full Court of the IRC rejected the applicant’s submission that the Senior Judge had erred in the exercise of his discretion to dismiss the application to call fresh evidence on the basis that the applicant had failed to satisfy the Court that the evidence could not have been obtained for use at the trial by the exercise of reasonable diligence.

14. The applicant submits that the Full Court of the IRC erred in forming this conclusion.

15. The applicant’s detailed summary of argument demonstrates that it wishes to agitate, on any appeal to this Court, findings of fact and mixed questions of law and fact.  It wishes this Court to revisit the factual findings made by the Industrial Magistrate which have been subsequently considered twice on appeal by the Senior Judge and the Full Court of the IRC.  In addition, it wishes this Court to further review the exercise of the Senior Judge’s discretion to reject the application to call fresh evidence, which was subsequently reviewed by the Full Court of the IRC. 

16. In my view, the applicant’s complaint concerning the critical finding of the learned magistrate, upheld by the Senior Judge and the Full Court of the IRC, that there was “continuous service” from 1998 to 2011, for the purposes of the Act, is arguable.  Although I am inclined to think that the applicant would be unlikely to succeed on appeal.  On the other hand, the rejection by the Full Court of the IRC of the appeal from the Senior Judge’s discretionary judgment to reject the application to call fresh evidence seems unimpeachable. 

17. If permission to appeal against the critical finding is granted, the Court will be invited to revisit the facts in great detail, to review the findings of fact made, and to reverse the Full Court’s decision upholding the Industrial Magistrate.  In short, the grant of permission to appeal is going to result in the hearing of an appeal which agitates questions that are essentially factual and will involve a close scrutiny of a substantial amount of evidence. 

18. Although the applicant asserts that its application raises an issue of principle as to the approach to be taken by a court of appeal in relation to findings of fact in accordance with Fox v Percy[1], the summary of argument indicates that those submissions are but another way of putting the submission that the Full Court of the IRC erred. 

    [1] [2003] HCA 22, (2003) 214 CLR 118.

19. This Court has previously emphasised that in providing that an appeal lies to it only if permission is granted, the Parliament intended that this Court should determine when it is appropriate to grant permission to appeal.  It has been the practice of this Court not to grant permission to appeal when the grant of permission would result in no more than a re-examination of facts already considered once at the appellate level.  That is not a hard and fast rule, because at the end of the day the issue for the Full Court must always be whether it is in the interests of justice to grant permission to appeal.  While it is not a hard and fast rule, however, it is a sound guiding principle.[2]

    [2]    Markos v Quin Investments Pty Ltd & Anor [2011] SASCFC 98 at [16].

20. In this case, there have now been two occasions for a re-examination of the findings of fact at an appellate level.  A grant of permission to appeal would lead to yet another re-examination, and a fourth consideration of the question of whether, on the facts of this case, there was “continuous service” within the meaning of the LSL Act by the respondent. 

21. Permission to appeal is not granted merely because the appeal raises an arguable point.  It is relevant to bear in mind that the case raises no issue of principle.  It raises at best the application to particular circumstances of well-understood principles.  Taking into account the nature of the issues raised and the fact that there has already been three hearings, I am of the view that this is not an appropriate case for a grant of permission to appeal.

22. I would refuse permission to appeal.