1. The Tribunal has the power under s 40(4) of the SAET Act that it may, at any time, make an order dismissing or striking out all or any part of any proceedings for want of prosecution.
2. If a proceeding is dismissed for want of prosecution, this does not prevent the applicant from making a fresh application on the same subject matter if the time limit allows, or applying to set aside the dismissal order. This is because there has been no judicial finding on the merits of the matter.[2]
3. The power accorded to the Tribunal by s 40 is discretionary. In the exercise of that discretion, I am guided by the decision of the Full Bench of this Court in the appeal matter of Shaw v Local Government Association Workers Compensation Scheme ('Shaw').[3]
4. In that matter, the Full Bench confirmed that the principles to be applied are those as expressed in Ulowski v Miller ('Ulowski'),[4] noting the further perspective by Bray CJ that:

It must be remembered that we are dealing here with a discretion and in my view it ought not to be fettered by any absolute or inflexible rules.[5]

1. Five factors identified in Ulowski as relevant to the exercise of this discretion were: the length of the delay; the explanation for the delay; the hardship to the applicant if the matter was dismissed; the hardship to the other party if the matter continues; and the conduct of the other party.[6]

1. The delays in these matters cumulatively resulted in the unfair dismissal claim having no affidavit evidence filed and incomplete disclosure 14 months on from when it was commenced; and the return to work claim having no affidavit evidence filed 10 months on from when it was filed.
2. The delays were significant, especially in the period during which Mr Bradbrook was self-represented and especially from 7 May 2024. The only progress in either matter between 7 May 2024, and the hearing of the dismissal applications on 26 September 2024, was disclosure by Mr Bradbrook in response to repeated extensions of time for the filing of his list of documents.

1. While there can be circumstances which delay proceedings for understandable reasons, particularly in return to work matters where injuries may not have been fully diagnosed, or treated, or there is a significant wait time for medical reports, the substantial cause of the delays in these matters was Mr Bradbrook's failure to comply with the Tribunal's orders, and his failure to communicate in a timely manner or at all with the Tribunal and the representatives of the respondents to his claims.
2. There is no suggestion of any conduct by the AWU or his legal representative which contributed to the delays.
3. There was some difficulty shared by the Tribunal and the other parties in accepting explanations that were given by Mr Bradbrook that were inconsistent, contradictory, or simply stretching the bounds of credibility. I note also that, although the opportunity was afforded to him to do so, he did not provide any of these explanations in evidentiary form.
4. Mr Austin, counsel for the City of TTG and the LGAWCS, submitted that by having not complied with my orders that Mr Bradbrook file any affidavit or other material in response to the dismissal applications by 19 September 2024, he should not be allowed to now give oral evidence without notice nor should I take account of any evidence that he attempted to give from the bar table.[7]
5. In any event, Mr Bradbrook did not seek leave to do so. He submitted that he had done his best as a self-represented person to pursue his applications, but it was difficult to give the matter the priority it needed when he had family responsibilities and employment commitments to meet.[8]
6. I put to Mr Bradbrook that both the Tribunal and the other parties had extended considerable flexibility to him in the aim of giving him the opportunity to meet the obligations that come with pursuing such applications in the SAET. However, to allow him to keep his applications on foot, I would need to be confident that in the future he would comply with orders. This exchange on transcript reads:

HER HONOUR: The difficulty I have is that with all the flexibility that I have afforded you along the way, here we are, all this time down the track, no further advanced, and so it's a matter of there being no light at the end of this tunnel. From my point of view, sitting here having to decide this, is, well, what more could they do? What more could I do that would make any difference? And the difficulty that I've got is that I haven't received anything from you, either under the threat of this application or since this application, to give me a reason to think anything's going to change. That's really a problem, from my point of view.

MR BRADBROOK: I mean, it's really hard from here on to sort of keep up with it. Yes, you know how much paperwork it takes, how much time that gets put into stuff. It's near impossible for a person to work, have kids and keep up with stuff. It's so hard.[9]

HER HONOUR: Well, I think what I'm trying to explain to you is that my difficulty at the moment is that I have nothing from you to give me any confidence that if I extend you any further flexibility, anything is going to change. That's my difficulty.

MR BRADBROOK: Yes.

HER HONOUR: I'm not actually hearing anything from you today to suggest it is going to change.

MR BRADBROOK: I'd struggle. I honestly would struggle. Yes, I'd struggle to get it done now.[10]

The hardship to the applicant if the matters were dismissed

1. Mr Austin submitted that the only detriment the applicant was likely to suffer if the applications were dismissed was the opportunity to have his day in court. In relation to the return to work application, the medical report which had been obtained by Mr Bradbrook's legal representatives did not support that he had suffered any psychiatric injury arising from events at work, and that while he was resentful of the way he was treated, this did not meet the criteria for a psychiatric illness or injury.
2. In relation to the unfair dismissal application, Mr Austin submitted that the events which had initially appeared uncontentious did not give rise to any unfairness in relation to Mr Bradbrook's dismissal. While the dismissal of this application would deny him the chance to have his assertions of unfairness tested, he was not advancing that chance by conducting himself reasonably in the proceedings.
3. I make no finding in relation to the merits of Mr Bradbrook's applications, in the absence of evidence and a hearing on those merits. There is a loss to him in not having his matters heard. However, any such loss is the unfortunate outcome of his own conduct.

The hardship to the other parties if the matters continue

1. Both respondents had engaged legal representation and had invested their time and resources into their responses to Mr Bradbrook's application. This investment had been ongoing and over the months of Mr Bradbrook's repeated non-compliance and lack of communication, had unarguably cost them both. If the matters were allowed to continue, that cost would be ongoing with no discernible end in sight. Although both are organisations with considerable resources compared to single ordinary person, their resources are not unlimited. While such ongoing costs might not perhaps qualify as hardship, they are clearly factors causing disadvantage and prejudice to them.

1. There was no default by either of the respondents in their conduct in these proceedings. To the contrary, the legal representatives of the City of TTG made significant attempts to assist Mr Bradbrook as a self-represented litigant to understand and comply with his obligations.
2. While Mr Bradbrook did attempt to stay engaged with the proceedings by filing his list of documents and appearing (with one exception) at directions hearings, his defaults without reasonable excuse or communication limited the flexibility that the other parties were prepared to offer him. Ultimately, it was a lack of foreseeable change to the priority that he was giving to the proceedings which led me to conclude that there was no light at the end of the tunnel, and there had to be some finality to the proceedings.
3. Consequently, I dismissed both applications for want of prosecution by way of orders that day.[11]

1. Both respondents confirmed that their applications for costs are limited to their costs of the applications to dismiss for want of prosecution. Neither are seeking an order for costs of the proceedings otherwise. Indeed, the LGAWCS confirmed at the costs hearing that it had paid Mr Bradbrook's representation costs in relation to the substantive return to work claim, pursuant to s 106(1) of the Return to Work Act 2014 ('RTW ACT').
2. In considering the costs applications, I had regard to the affidavits filed by the respondents in support of the application, an affidavit by Mr Bradbrook dated 24 October 2024, the court file, Commissioner Rogers' Assessment and Recommendation dated 29 August 2023 in the unfair dismissal claim, and Commissioner Williams' Assessment and Recommendation dated 9 April 2024 in the return to work matter. This was supplemented by Mr Bradbrook's oral evidence at the costs hearing on 31 October 2024.
3. "The power to award costs is discretionary and that discretion is absolute and unfettered. See: Donald Campbell & Co v Pollak (1927) AC 732."[12]
4. The starting point for SAET's power to order costs is found in the SAET Act s 52(1) which reads:

Subject to this Act or a relevant Act, parties bear their own costs in any proceedings before the Tribunal (other than proceedings assigned to the South Australian Employment Court to which section 26B applies).

1. In the current matters, neither application is a proceeding to which s 26B applies. Each are subject to specific costs provisions contained in the Acts under which the proceedings were brought.

1. The unfair dismissal claim was a proceeding brought under Part 6 of the FW Act, being the Part which deals with claims for remedy for unfair dismissal. This part includes under Division 5, s 110 in relation to the power to order costs.
2. It is worth looking at s 110 in its entirety. It reads:

(1) If an application under this part proceeds to hearing and the SAET is satisfied that a party to the proceedings clearly acted unreasonably in failing to discontinue or settle matter before the hearing concluded, SAET may, on the application of the other party to the proceedings, make an order for costs (including - if relevant, the costs of representation) against the party.

(2) If an employee discontinues proceedings under this Part more than 14 days after the conclusion of the conference of the parties, SAET may, on application of the employer, make an order for costs (including - if relevant - the costs of representation) against the employee if SAET is satisfied that the employee has acted unreasonably.

(3) An application for an order for costs under this section must be made within 14 days after the determination or discontinuance of the proceedings.

1. The City of TTG submitted that its application for costs in relation to its application to dismiss was an application pursuant to s 110(1) of the FW Act.
2. It submitted that the application to dismiss fell within the definition of an application under Part 6 and that the hearing of the application to dismiss fell within the scope of the word "hearing" in s 110(1) even though Mr Bradbrook's claim had not proceeded to a hearing on the merits of his claim.
3. Given the application to dismiss was an application for, and led to, a final determination of the matter, I accept that it was an application within the scope of Part 6 and the hearing consequently was a hearing as contemplated by s 110(1).
4. The application for costs was included in the application to dismiss and so was made within the timeframes stipulated by s 110(3).
5. To succeed in its application for an order for costs pursuant to s 110(1), the City of TTG must establish to the satisfaction of the Tribunal that Mr Bradbrook "clearly acted unreasonably in failing to discontinue or settle the matter before the hearing concluded".
6. As is clear from the wording, the power to award costs under this provision is limited to the circumstances there identified. Consequently, there are two circumstances only which enliven the discretion to make a costs order. These are a failure to discontinue the matter, or a failure to settle the matter. If either of these circumstances exist, it opens up an enquiry as to whether that failure was unreasonable and if so, whether the Tribunal should exercise its discretion to award costs against the party who has acted unreasonably.
7. This is not a general power to award costs for acting unreasonably. Under the FW Act, only a failure to discontinue or a failure to settle will qualify.
8. This requires consideration also of the effect of s 110(2), which provides that an order for costs may be made against an employee if he or she discontinues more than 14 days after the conclusion of the conciliation conference. At the conclusion of the conciliation conference the parties are provided with the Assessment and Recommendations by the Commissioner who conducted it. If this Assessment and Recommendations includes a recommendation to the employee that they discontinue their application, and they do not follow that recommendation, or they do so more than 14 days after the conclusion of the conference, they will risk a costs order against them.
9. The assessment and recommendation issued to the parties following the conference in the unfair dismissal matter did not recommend to Mr Bradbrook that he discontinue his application. It noted that there was a dispute over whether the circumstances of his dismissal rendered it unfair but recommended that he consider settling his claim on the basis of a payment to him of compensation rather than reinstatement.
10. The onus for proving unreasonableness lies with the City of TTG as the party alleging the unreasonableness as discussed in Spencer v Hage:

In terms of the approach to the present application, I refer to the discussion of the principles to be applied in these circumstances as summarised by the Full Commission in Tsouris v Transport Training Centre Inc Costs Appeal [2001] SAIRComm 39 and in particular the relevance of the approach taken in Bevan v Dairy Vale Metro Co-Op Ltd (1989) 56 SAIR 398 ("Bevan"). On this basis the applicant has the onus to satisfy the Commission beyond reasonable dispute that the respondent has acted unreasonably in failing to settle the s 106 application prior to it being determined by the Commission.[13]

1. Further, as Commissioner Dangerfield stated in Pauly v The Red Room:

For the purposes of s 110(1), for the Commission to be satisfied that a party has "clearly acted unreasonably" it must be satisfied "... that it is obvious or self-evident, or, to put it another way, beyond reasonable dispute, that the applicant so acted" (Bevan v Dairyvale (1989) 56 SAIR 398).[14]

Did Mr Bradbrook act unreasonably in failing to settle his unfair dismissal claim?

1. Notably, s 110 does not refer to a failure to make a settlement offer, only to a failure to settle. As a settlement requires agreement by both parties, there must be an offer by one which is capable of being accepted by the other.
2. It is not uncommon in the SAET for a party making a settlement offer to note that it is on a without prejudice basis save as to costs. This means that the settlement offer cannot be relied upon in determining the substantive application, but if the offer is rejected it can be relied on to support an application for costs. For example, if an offer was made that was better than the other party achieved in the determination of the matter, the question arises of whether failing to settle on that basis was unreasonable.
3. In the unfair dismissal matter, there was no evidence presented to me from either Mr Bradbrook or the City of TTG of any offer to settle his unfair dismissal claim. In the absence of evidence of any settlement offers, I cannot be satisfied that Mr Bradbrook unreasonably failed to settle his unfair dismissal claim. Therefore the discretion to award costs does not arise on this limb of s 110(1).

Did Mr Bradbrook act unreasonably in failing to discontinue the unfair dismissal application?

1. The Assessment and Recommendation falls well short of a clear message to Mr Bradbrook that his claim was so without merit that he should discontinue it within 14 days or risk a costs order against him. The Commissioner's assessment was that he had an arguable case but recommended that Mr Bradbrook should consider compensation as a remedy rather than reinstatement. It was not unreasonable of Mr Bradbrook to continue with his claim for more than 14 days in response to this Assessment and Recommendations.
2. The way s 110(2) is written, if he had then discontinued his application after that 14 day period for any reason he would have exposed himself to the risk of costs contemplated by s 110(2), in circumstances where the merits of his arguable case had not been determined.
3. If the sole purpose of s 110(2) was to provide a window of 14 days for discontinuance without risk of costs in the context of an otherwise costs free jurisdiction, it could simply have said so and left the issue of unreasonableness as it stands in s 110(1). However it does not, it goes further and introduces the conduct of discontinuing after those 14 days as of itself enlivening the discretion to award costs.
4. As mentioned above the discretion to award costs pursuant to s 110 of the FWA is not at large or even as wide as unreasonable conduct generally.
5. Having found that Mr Bradbrook did not act unreasonably in failing to discontinue or settle his claim within 14 days in light of the Assessment and Recommendations, I am left with the consideration of whether he nevertheless acted unreasonably in failing to discontinue later than that, before the application to dismiss for want of prosecution was heard.
6. This rests on Mr Bradbrook's failure to comply with orders, during the time he was self-represented following the departure of his union and legal representatives. The failure to comply with orders is alone not enough to enliven the discretion in s 110. The argument can only succeed if I were to find that Mr Bradbrook should have discontinued his claim instead.
7. Having commenced his application with union representation, then proceeded with legal representation for a time, during which I find there was no unreasonable conduct, I infer from his conduct of attendance at hearings and his attempt at complying with the orders for filing a list of documents, that Mr Bradbrook wanted and intended to have his arguable claim heard on its merits, but ultimately did not give the proceedings the priority that they required and made excuses for his failures.
8. Whether he was aware of it or not, he was then caught between a rock and a hard place in relation to his potential exposure to an adverse costs order. Discontinuing and failing to discontinue would both potentially expose him to a risk of costs.
9. While it would have been desirable for Mr Bradbrook to have recognised earlier that his other commitments were going to prevent him from prosecuting his claim within the bounds of reasonable conduct in the SAET, he did not have the advantage of notice by the City of TTG of the possibility that they would apply for an order that he pay their legal costs to focus his mind. Nor was the risk of costs referenced in the Assessment and Recommendations.
10. In my consideration of this issue I have not been assisted by earlier decisions on costs applications pursuant to s 110 of this Act or its equivalent provision in its predecessor legislation the Industrial and Employee Relations Act. These decisions dealt with applications on the grounds of unreasonable behaviour in the context of failures to follow Commissioner recommendations or unreasonable failures to settle. Neither applies in this case. In the matter of Lethrangomites v Southern Adelaide Health Service Inc (Costs)[15], the applicant discontinued his application after the first day of trial. The application for costs in that matter followed an assessment of merits which clearly advised a modest financial settlement, which was offered, along with a warning of the costs implications if it was refused.
11. In Perkins v Golden Plains Fodder Pty Ltd[16], it was the respondent which acted unreasonably in failing to settle prior to the matter being heard.
12. The Fair Work Commission matter of Hansen v Calvary Health Care Adelaide Limited[17], was decided on s 400A of the Fair Work Act 2009 (Cth), which is broader in scope s 110 of the FWA, and on a finding that the applicant's appeal "was so devoid of merit or substance at to not be reasonably arguable".
13. While Mr Bradbrook's failure to comply with orders was unreasonable conduct on his part, I have no evidence that the option of discontinuing with or without an adverse cost order was ever proposed to him.
14. Even if it was unreasonable of him to persist with his claim as long as he did, I consider the absence of notice of the possible consequence of an adverse costs order to be a deciding factor in the exercise of my discretion as to the award of costs.
15. While the City of TTG did incur costs unnecessarily in the protracted defence of his claim, it was legally represented and could be expected to put an unrepresented litigant fairly on notice of costs if it intended to claim them. I say a more about this issue of fairness in relation to the costs claim by LGAWCS.

1. The power of the SAET to order costs in relation to return to work proceedings is quite different to the power in unfair dismissal proceedings. The power to order costs in return to work matters is found in s 106 of the RTW Act. It creates a qualified entitlement for parties other than a compensating authority to an award of their reasonable costs, payable by the compensating authority. Section 106(1) reads:

A party other than the relevant compensating authority is entitled, subject to this Part and to limits prescribed by regulation, to an award against the relevant compensation authority for the party's reasonable costs of -

(a) any initial reconsideration of a decision under Division 4; and

(b) any subsequent proceedings for resolution of the matter before the Tribunal.

1. There follows a discretion accorded to the Tribunal at s 106(3) as follows:

If the Tribunal is of the opinion that a party -

(a) has acted unreasonably -

(i) in bringing proceedings before the Tribunal; or

(ii) in view of an assessment or recommendation of a member of the Tribunal under section 43(13) of the South Australian Employment Tribunal Act 2014; or

(iii) without limiting subparagraph (ii) - in failing to discontinue settlement any proceedings before the conclusion of the hearing of a matter; or

(iv) in relation to any other aspect of the conduct of proceedings before the Tribunal; or

(b) has acted frivolously or vexatiously in bringing or in relation the conduct of proceedings before the Tribunal,

the Tribunal may -

(c) decline to make an award of costs in favour of the party and may further (if it thinks fit) make an award of costs against the party; or

(d) reduce the amount of the award of costs to which the party would other have been entitled.

1. As can be seen from these provisions, the scope of the power to award costs in return to work matters is wider in scope than it is in unfair dismissal matters.
2. Of particular relevance in the return to work matter is the power at s 106(3)(iv) to award costs against a party if the Tribunal is satisfied that the party has acted unreasonably "in relation to any other aspect of the conduct of proceedings before the Tribunal".
3. In my view this allows me to consider Mr Bradbrook's conduct more broadly.
4. The affidavit of Ms Melino affirmed 13 September 2024, sets out the conduct of Mr Bradbrook which the LGAWCS claims was unreasonable and upon which it relies for its application for costs.
5. This affidavit goes further than Mr Bradbrook's failure to comply with orders of the Tribunal, which I have referred to above. In relation to the return to work claim, there were two sets of orders Mr Bradbrook did not comply with: namely, the orders of 4 June 2024 and the orders of 27 June 2024. I note that the orders of 27 June 2024 gave extensions of time to Mr Bradbrook to comply with the orders of 4 June 2024 in which he was in default.
6. In addition to the failure to comply with orders, Ms Melino also referred to Mr Bradbrook failing to provide a copy of his general practitioner notes which he confirmed that he had and would provide, necessitating a summons for those same notes by the LGAWCS. She also referred to his failure to respond to communications from her firm on behalf of the LGAWCS.
7. Mr Bradbrook's return to work application was dismissed for want to prosecution, in circumstances where he had discharged his legal representatives, failed to comply with subsequent orders of the Tribunal, and failed to communicate with the Tribunal and the LGAWCS representatives in furtherance of his application, all without reasonable explanation.
8. His ultimate concession at the hearing of the application to dismiss that he could not give the proceedings the priority they required given his other family and work commitments confirmed that there was no end in sight other than dismissal of the application.
9. I find that Mr Bradbrook's conduct in failing to comply with the orders and failing to communicate with either the Tribunal or the respondent about them was unreasonable within the meaning of s 106(3)(a)(iv). Being of that opinion, I am therefore able to exercise the discretion contained in s 106(3)(c) which includes, if I think fit, to make an order of costs against Mr Bradbrook.
10. I consider the application by the LGAWCS to dismiss was a reasonable action on its part to bring finalisation to a proceeding that was not progressing in any meaningful way and was causing it to incur costs unnecessarily.
11. I do not find that there is any inconsistency in the LGAWCS agreeing to pay and paying Mr Bradbrook's representation costs for the return to work application up to the point where that representation ceased and its application for its costs to bring the proceedings to finalisation given the lack of progress after that.
12. In opposing the application for costs, Mr Bradbrook submitted that I should consider his financial circumstances and the effect of any order for payment of costs on his family as well as himself. So that it was clear what was at stake, I ordered the LGAWCS to provide Mr Bradbrook with its claim for costs so that he would be able to appreciate what the LGAWCS was asking, or at least the extent of the costs that it claimed to have incurred. I also ordered that he file an affidavit in respect of any financial and personal circumstances that he wanted me to consider. Mr Bradbrook filed an affidavit dated 23 October 2024 with some attached financial documents. At the hearing of the costs application on 31 October 2024, he was cross-examined on that evidence.
13. Although the High Court has provided authority that the impecuniosity of a litigant is not a bar to an award of costs against them[18], the RTW Act has costs provisions which in effect provide a form of legal aid for parties other than a compensating authority. The clear intention of these arrangements is to ensure that a lack of resources is not a bar to an employer or employee seeking review of a decision of the compensating authority which they consider to be wrong. The adverse costs provisions in s 106(3) are a safeguard against the abuse of this aid by unreasonable behaviour in the course of those proceedings.
14. While these provisions are well known to legal practitioners and officers and employees of industrial associations which routinely represent employers and employees, their effect as a brake on unreasonable behaviour by self-represented litigants logically depends on those persons being aware of those provisions and the risk that they face when such conduct falls within their scope.
15. I observe that it is a common practice in proceedings in this Tribunal that a party which intends to rely on the provisions of s 106(3) puts the other party on notice of that intention should a reasonable settlement offer be rejected or some other allegedly unreasonable behaviour persist.
16. The reasons for this are twofold. On one hand, it gives the allegedly unreasonable party the opportunity to reflect on and consider the potential costs consequences of their conduct before decisions which might bring those consequences to bear. On the other hand, it protects the interests of the party seeking the costs relief by making it clear to both the other party and the Tribunal of its intention to seek that relief.
17. In this matter, the LGAWCS put Mr Bradbrook on notice that if he continued his non-compliance with orders, the LGAWCS would apply for his return to work application to be dismissed.[19]
18. This correspondence did not include any warning that such an application would be accompanied by an application that he pay their costs. On the evidence presented to me, he was not put on notice of costs until the application for directions was served on him.[20] So while Mr Bradbrook was clearly on notice of the possible consequence of the dismissal of his claim if he continued to breach Tribunal orders, he was not so clearly put on notice of the potential consequence of an order that he pay costs to the LGAWCS.
19. This is a matter that I can take into account. There are a number of decisions which confirm that notice of an intention to claim costs is relevant consideration for an application for costs.
20. In particular I observe from these authorities that notice should clearly set out the consequences and make a specific settlement offer;[21] advance notice enhances procedural fairness and influences costs discretion under s 106(3)[22]; notice must give the applicant a reasonable opportunity to adjust conduct and consider risks[23]; a warning without an explicit offer is not enough, indicating that clarity and specificity are crucial to effecting notice[24]; and a Calderbank letter citing s 106(3) suffices as adequate notice.[25]
21. It was put to me by the LGAWCS that the purpose of the costs provisions in s 106(3) is precisely to provide a potential consequence of acting unreasonably in the return to work proceedings, and in circumstances where such unreasonable conduct was found, it is important to give effect to that purpose.
22. That purpose would surely be served more effectively by conveying very clearly to a party who is alleged to be acting unreasonably that there might be very significant financial consequences of continuing to act in an unreasonable manner.
23. While an explicit warning of an intended costs application is not a requirement before a costs application can be made, it is a matter to be considered in the exercise of the Court's discretion as to whether such an order should be made and if so, to what extent. Where no notice was given, costs penalties may be mitigated, but will not necessarily preclude it if misconduct occurs.[26]
24. Counsel for the LGAWCS submitted that Mr Bradbrook was put on notice of the intention to claim costs because it was included in the orders sought by his client in its application for the claim to be dismissed.
25. While simply including a claim for costs in the orders sought in an application for directions would generally be understood by a legal practitioner, both in terms of the risk of such an order and the likely quantum of such an order, I would not expect a lay person to understand it in the same way, if at all.
26. Certainly, the emphasis applied in correspondence by the lawyers for the LGAWCS to the consequence of having his claim dismissed was not applied to the consequence of potentially having to pay their costs.
27. Once those consequences were obvious, by virtue of the hearing and my orders of 26 September 2024, Mr Bradbrook was apparently able to do that which he had failed to do previously; to file an affidavit with attached documents.
28. It is not necessary for me to detail the evidence that Mr Bradbrook presented in his affidavit and his oral evidence about his financial circumstances. Suffice it to say that I accept that his family finances had been put under verified stress due to a period of unemployment following his dismissal from the City of TTG and relying solely on his wife's part-time income to support the two of them and 3 children. I am satisfied that a costs order against him would cause further financial difficulty for him and his family.
29. The relevance of this is that a while a dismissal of his applications may be a loss to be suffered by Mr Bradbrook alone, a financial impost may impact his family as well. Putting him on notice of the risk of costs would unarguably have alerted him to this further consequence.
30. While the LGAWCS application to dismiss was made in tandem with the City of TTG application to dismiss, and was argued by the same counsel, Mr Bradbrook's failures in relation the RTW claim were less extensive.
31. Like the City of TTG claim, there was no evidence before me of any settlement offer made or rejected by Mr Bradbrook. The Commissioner's Assessment and Recommendations stated that it was appropriate for the claim to proceed together with the unfair dismissal matter "so as to facilitate further settlement discussions".
32. Following the judicial settlement conference, Mr Bradbrook failed on two occasions to comply with Court orders. I accept that he also failed to respond to communication from the lawyers for the LGAWCS and the Tribunal.
33. While I find that his conduct in relation to those failures was unreasonable in all the circumstances, that finding only goes as far as bringing the matter within the discretion enlivened by s 106(3) of the RTW Act.
34. I take into account that the Commissioner's Assessment and Recommendation was that the matter be the subject of further settlement discussions, and that Mr Bradbrook engaged in those discussions with legal representation at a judicial settlement conference assisted by a presidential member of the Tribunal.
35. There was no evidence presented to me of any settlement offer made or rejected by Mr Bradbrook. I am not in a position to find that he behaved unreasonably by failing to settle his return to work claim.
36. His unreasonable behaviour amounted to failing to comply with two sets of orders, the second of which extended the time for him to comply with the first, and his failure to communicate with the Tribunal and the lawyers for the LGAWCS about that non-compliance.
37. While this was sufficient to justify the dismissal of his claim for want of prosecution, this was in the context of his own admission that he was unlikely to be able to give the necessary priority to the proceedings if they continued. It does not necessarily follow that it is sufficient to justify an order that he pay the LGAWCS their costs of that dismissal application.
38. While his conduct in failing to comply with the Tribunal's orders in the return to work matter was unreasonable, it was not extensive, and the consequence of having his claim dismissed was made clear to him, the possible consequence of an order that he pay costs to the LGAWCS was not.
39. I take into account that while Mr Bradbrook's conduct included unreasonable failures to comply with orders and response to communications, these failures were not a complete disregard of proceedings, as evidenced by his attempted compliance with the orders for disclosure and his personal appearance at hearings barring one exception.
40. While Mr Bradbrook's financial circumstances do not preclude a costs order against him, they are something that I can take into account, in the context of the RTW Act where costs do not follow the event, and there is a form of legal aid included to ensure access to review of return to work decisions by both employees and employers.
41. The LGAWCS as the compensating authority in this matter was required to adhere to the same standards as the Corporation under the RTW Act.[27] In particular, sch 5, cl 1(2) says that "These standards recognise that when a worker or an employer deals with the Corporation, it is reasonable to the worker and the employer to expect the highest standards of service and fairness."
42. In this matter, I consider that fairness required the LGAWCS to clearly communicate to Mr Bradbrook, as a self-represented lay person, that the RTW Act contained exceptions to the cost provisions that enabled payment for his lawyer, and that it could and would apply for him to pay its costs if he continued to breach Tribunal orders.
43. The potential financial consequences to his family of an adverse costs order is something that may well have focussed his attention in a way that the consequence of having his claim dismissed did not. While I cannot speculate on what effect it would have had, in fairness he should have had the opportunity to consider those issues prior to the dismissal application.
44. On balance, I consider that issue of notice and fairness by the compensating authority to be the deciding factor in the exercise of my discretion to decline the application for costs.

1. The application by the City of Tea Tree Gully for the applicant to pay its costs of its application for directions dated 12 September 2024 is refused.
2. The application by the Local Government Association Workers Compensation Scheme for the applicant to pay its cost of its application for directions dated 13 September 2024 is refused.

[1] As it then was, the SAET Rules 2024 being gazetted on 28 November 2024.

[2] Martin v Return to Work Corporation of South Australia (Aquaessence Pty Ltd) [2020] SAET 157 [28].

[3] [2020] SAET 216.

[4] Ulowski v Miller (1968) SASR 277.

[12] Perkins v Golden Plains Fodder Pty Ltd [2005] SAIRComm 32 @ [14]

[13] Spencer v Hage and Co Pty Ltd - Costs [2003] SAIRComm 34 [23].

[14] Pauly v The Red Room (Costs) [2003] SAIRComm 22 [22] (per Dangerfield C).

[15] [2009] SAIRComm 4.

[16] [2005] SAIRComm 32.

[17] [2016] FWCFB 8162 at [32].

[18] Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164.

[19] Correspondence dated 2 September 2024. Tr 31 October 2024 P-27.

[21] Return to Work Corporation of South Australia v Sweeney [2025] SASCA 50; Patel v Return to Work Corporation of South Australia (No 2) [2021] SAET 90.

[22] Barclay v Nyrstar Port Pirie Pty Ltd [2022] SAET 92.

[23] Richards v Little Company of Mary Health Care [2018] SAET 186.

[24] Fitzgerald v Return to Work Corporation of South Australia [2023] SAET 60.

[25] Dodman v Return to Work SA (Knollview Pty Ltd) [2019] SAET 164.

[26] Al-Shareeda v Return to Work Corporation of South Australia and Mitcon Formwork Pty Ltd (No 2) [2025] SAET 7.