Advance Resource Services Pty Ltd T/a Progress Couriers and Taxi Trucks v Charlton

(2008) 100 SASR 388; [2008] SASC 118

Supreme Court of South Australia

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Interrogate

Catchwords

1. Appeal
2. › Right of appeal
3. › Industrial Relations Court
4. › Excess or deficiency of jurisdiction
5. › Whether failure to exercise jurisdiction constitutes acting in excess or deficiency of jurisdiction
6. › Whether determination that claimant was not an employee was within jurisdiction
7. › Fair Work Act 1994 (SA), s 191(1)(a)
1. Practice and Procedure
2. › Cross-appeal
3. › Whether proceeding is an appeal or cross-appeal
4. › Whether appeal against substantive decision is appeal against judgment subject to earlier appeal on costs only
5. › Supreme Court Civil Rules 2006 (SA), r 283, r 288
1. Practice and Procedure
2. › Costs
3. › Industrial jurisdiction
4. › Power to award costs on appeal in monetary claims
5. › Construction and effect of generally expressed costs power
6. › Whether common law principle that costs follow the event applies
7. › Whether industrial features relevant to exercise of discretion
8. › Whether exercise of discretion miscarried
9. › Fair Work Act 1994 (SA), s 185(b)

Quick Take

The power to award costs on appeal in monetary claims under s 185(b) of the Fair Work Act 1994 (SA) is a generally expressed discretionary power to be exercised in accordance with principles applicable to statutory costs discretions, including the usual rule that costs follow the event, though considerations of an industrial nature may justify departure from that rule. A determination by the Industrial Relations Court that a claimant is not an employee does not constitute acting in 'excess or deficiency of jurisdiction' so as to give rise to an appeal as of right under s 191(1)(a). The question of the proper approach to costs in the industrial jurisdiction was not definitively resolved, as the majority and dissent differed on the weight to be given to industrial features.