Waikerie Murray River Queen Pty Ltd v Loizides

[2009] SASC 257

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

WAIKERIE MURRAY RIVER QUEEN PTY LTD v LOIZIDES

[2009] SASC 257

Reasons for Decision of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Kelly)

28 August 2009

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

Industrial Magistrate ruled that complaint charging the applicant with offences duplicitous - complainant appealed to a single Judge of the Industrial Relations Court of South Australia - single Judge held that appeal was competent and allowed the appeal, holding that the complaint was not duplicitous - Full Court of the Industrial Relations Court dismissed appeal against decision of single Judge - application for permission to appeal to the Full Court of the Supreme Court.

Held: applicant has an arguable case on appeal - permission to appeal not necessarily granted when there is an arguable point - events the subject of the charges on the complaint occurred nearly six years ago - risk that a ruling pre-trial as to duplicity will not finally resolve the issue - applicant would not be put in an unfair position if the trial were to proceed on the complaint as it currently stands - open for applicant to re-argue issue on appeal after trial in light of the facts as found at trial - permission to appeal refused.

Fair Work Act 1994 (SA) s 191(1)(b); Magistrates Court Act 1991 (SA) s 42(1a); Occupational Health, Safety and Welfare Act 1986 (SA) s 19(1), referred to.
Diemould Tooling Services Pty Ltd v Oaten (2008) 101 SASR 339; Waikerie Murray River Queen Pty Ltd v Loizides [2009] SAIRC 47, discussed.
Loizides v Waikerie Murray River Queen Pty Ltd [2008] SAIRC 47; Waikerie Murray River Queen Pty Ltd v Loizides [2009] SAIRC 17, considered.

WAIKERIE MURRAY RIVER QUEEN PTY LTD v LOIZIDES
[2009] SASC 257

FULL COURT:  Doyle CJ, Sulan and Kelly JJ

1. THE COURT:  This is an application for permission to appeal to the Full Court against a decision of the Full Court of the Industrial Relations Court of South Australia:  Waikerie Murray River Queen Pty Ltd v Loizides [2009] SAIRC 47.

2. An appeal lies if the Supreme Court grants permission to appeal: s 191(1)(b) of the Fair Work Act 1994 (SA).

3. The application has been considered by the Court comprising Doyle CJ, Sulan J and Kelly J.  The Court has considered the summary of argument filed by the applicant and an additional summary of argument filed at the invitation of the Court.

4. The application arises from a complaint and summons issued by Mr Loizides, alleging the commission of offences against s 19(1) of the Occupational Health, Safety and Welfare Act 1986 (SA).

5. An Industrial Magistrate held that the complaint was duplicitous, and that the complainant must elect as between the complaints made by the summons:  Loizides v Waikerie Murray River Queen Pty Ltd [2008] SAIRC 47.  The complainant declined to do so, and on 12 September 2008 the Magistrate dismissed the complaint and summons.

6. The complainant appealed to a single Judge of the Industrial Relations Court.  The Judge dismissed an objection to the competency of the appeal, and upheld the appeal, setting aside the decision of the Magistrate:  Loizides v Waikerie Murray River Queen Pty Ltd [2009] SAIRC 17.

7. The applicant appealed to the Full Court, which also rejected the argument that the appeal was incompetent, and upheld the decision of the single Judge:  Waikerie Murray River Queen Pty Ltd v Loizides [2009] SAIRC 47.

8. It is from that decision that the applicant, Waikerie Murray River Queen Pty Ltd, wishes to appeal.

9. The application for permission to appeal raises the competence argument and the duplicity argument.

10. If the appeal to the single Judge was not competent, that would be the end of the matter unless the complainant now obtains an extension of time and permission to appeal under s 42(1a) of the Magistrates Court Act 1991 (SA). The complainant has maintained, successfully in the Industrial Relations Court, that he does not require permission to appeal from the Magistrate because, the complainant asserts, the relevant decision is the decision dismissing the complaint and that is not an interlocutory judgment appealable only with permission to appeal.

11. The decision of the Full Court examines the issue of competence and as well the issue of duplicity.

12. Having regard to the submissions put forward in this Court in support of the application for permission to appeal, we agree that the applicant has made an arguable case.

13. But permission to appeal is not granted as of course, simply because there is an arguable point.

14. The Court invited further submissions from the applicant having regard to matters to which we now refer.

15. The recent decision in Diemould Tooling Services Pty Ltd v Oaten [2008] SASC 197; (2008) 101 SASR 339 illustrates difficulties that can arise in dealing with the question of duplicity and particulars under s 19 of the Occupational Health, Safety and Welfare Act 1986 (SA). Before granting permission for a further appeal, it is appropriate for the Court to consider whether that further appeal is likely to resolve finally the issues that it raises.

16. There are further matters calling for consideration.

17. The events in question happened in September 2003.  The summons was issued on 30 August 2005.  There appears to have been a request for particulars on 6 October 2006.  There were then arguments over particulars until January 2008, when an amended complaint was served.  There was then a further dispute over particulars, and the issues now under consideration arose.

18. There have now been three rulings on the question of duplicity – the Magistrate on 11 July 2008, the single Judge on 17 March 2009 and the Full Court of the Industrial Relations Court on 13 July 2009.  Almost six years have now passed since the events in question.  The competence of the appeal has been argued twice, and the issue of duplicity three times.

19. The decision in Diemould demonstrates that there is a risk that a ruling at this stage will not finally resolve the question of duplicity. On that point, we refer to the reasons of the Full Court of the Industrial Relations Court at [56].

20. In the additional submissions the applicant has argued that it will be in difficulty if the trial proceeds on the basis of the ruling of the Full Court of the Industrial Relations Court. We note that that Court, which has considerable experience in this area, did not think that the applicant was in an unfair position: at [54].

21. A grant of permission to appeal will extend yet further the regrettably long pre-trial process.  The benefits of a further examination of the issues at this stage are not clear.

22. Taking all things into consideration, the Court is unanimously of the opinion that permission to appeal should be refused having regard to the extensive delay that has already occurred, and the circumstance that the Court cannot be confident in saying that the decision on the issue of duplicity will finally resolve the issue. It remains open to the applicant to raise the same issues on appeal, after a trial, should it be found guilty. As the Full Court of the Industrial Relations Court has itself acknowledged, depending upon the manner in which the trial unfolds, it may be appropriate for the applicant to renew its application: at [56].

23. For those reasons the Court refuses permission to appeal.