Case: Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2008] FCAFC 171
Outcome: discussed
IRCSA appeal was listed for hearing on 30 April 2009. On 2 April 2009, his Honour Senior Judge Jennings gave directions for the exchange of outlines of submissions in relation to both the jurisdictional issue and the merits of the appeal. It is unclear what the "jurisdictional issue" is. It may be that there is an issue as to whether an appeal lies without the making of orders (although as noted in [8] of these reasons, s 187(1) of the FW Act would appear to accommodate such an appeal). It may be that there is an issue whether that appeal is competent, having regard to the "matter" including the federal element and the provisions of ss 850(2) and 853 of the WR Act. As to that, see the decision in ISS Health v Duthie [2007] SAIRC 94 at [45] . See also Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2008] FCAFC 171 ( Kronen ) at [4] and [7]. It may be that the appeal may be incompetent because it is not an appeal from the whole of the decision, but only that part of it which related to the period up to 26 March 2006. In Kronen [2008] FCAFC 171 , an Industrial Magistrate of the IRCSA had considered claims for underpayment of wages for overtime work and for underpayment of superannuation contributions. The written reasons for judgment dismissed the claim for overtime pay, but made no order reflecting the Industrial Magistrate's conclusions on the superannuation claim. The Full Court (Gray, Branson and Lander JJ) observed at [14]: The industrial magistrate made no order reflecting the conclusions he had reached on the superannuation claim. He neither dismissed the claim (which he was bound to do, if he came to the conclusion that he had no power to order the making of payments) nor made any purported declaration reflecting the conclusion to which he had come as to the meaning and effect of the provisions of the Award relating to superannuation. His Honour seems to have thought that the expression of a conclusion in his reasons for judgment was sufficient. It was not. The whole of the application by summons before the court needed to be dealt with. Plainly, because the court lacked jurisdiction to deal with the superannuation claim, that aspect of the application was required to be dismissed. There is nothing in the FW Act (which continues the existence of IRCSA established first under the Industrial Relations Act 1972 (SA) which requires its decisions to be reflected in formally drawn orders so that its orders must be drawn up and sealed. Nor is there anything in the South Australian Industrial Proceedings Rules (SA) dealing with those topics. In Kronen [2008] FCAFC 171 , the Full Court clearly accepted that the expression of an order dismissing the claim for overtime payments in the reasons for decision was sufficient to enliven the right of appeal, subject to granting leave to appeal if that were necessary: see at [15]. Clearly, that decision is different from the present circumstances. It is clear that the fact that the IRCSA does not routinely draw up formal orders after a decision (including reasons for decision) does not of itself impede the right of appeal under s 853 of the WR Act: see Kronen [2008] FCAFC 171. It therefore falls to consider whether the Industrial Magistrate, in particular by [39] of his reasons set out above, has in substance finally determined the issue as to how the parties' legal rights are to be assessed. Had the word "determine" been substituted for the word "conclude", or been used in conjunction with it, there would in my view have been no scope for debate about that. The limited liberty to apply as to the quantum reflects such an intention. In my view, the existence or otherwise of a right of appeal should not be determined by the precise word or words used, but by their substantive effect. I do not need to decide that issue because the appellant has taken upon itself to have this appeal dismissed. However, I think there is at least a reasonable basis to conclude that the Industrial Magistrate intended to, and did, finally determine the issue of principle in a binding way and that his expression at the conclusion of his reasons was intended to, and did, operate in that way. In any event, if there were any ambiguity, the Industrial Magistrate could have been asked to clarify the meaning of [39] of his reasons so as to indicate whether he intended it to be the operative judicial determination of that issue, or further, his Honour could have been asked to make such an operative judicial determination. The notice of appeal filed in the Federal Court, in the latter event, could have been allowed to stand as if that operative determination had been made at the time of the publication of the reasons and any necessary extension of time granted. No party would thereby have been prejudiced, and indeed the respondent opposed the stay motion and wanted to proceed with the appeal. I turn to consider the issue of the costs of the appeal. Section 824 of the WR Act relevantly provides: (1) A party to a proceeding (including an appeal) in a matter arising under this Act ... must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause. (2) Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act ... is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first-mentioned party to pay some or all of those costs. (3) In subsections (1) and (2): costs includes all legal and professional costs and disbursements and expenses of witnesses.