Condron v Women's and Children's Health Network [2026] SAET 39

1. The applicant did not make submissions in relation to the quantum of the charges claimed by her former solicitors but maintained that the full amount of the costs paid by her to her former solicitors is recoverable.

1. The respondent referred to r 76(1)(b) of the South Australian Employment Tribunal Rules 2024 (SAET Rules) which provides that costs should be assessed by reference to how a prudent and properly advised, but not overly cautious, litigant should act. The respondent referred to the different methods of adjudication which can be employed under r 93 and submitted that costs should be assessed on a lump sum basis in this case.[3]
2. The respondent did not contend that it was unreasonable for the applicant to claim compensation and bring the proceeding, but maintained that she acted unreasonably in relation to the conduct of the proceeding by applying to adjourn the hearing on 27 March 2023 because:[4]

1. There was no prejudice identified by the Applicant arising from the report of Associate Professor Clayer dated 10 March 2023 (as His Honour already ruled). 2. There was no prejudice identified by the Applicant arising from the report of Dr Kam received on 27 March 2023. No submissions or no relevant submissions were made at the time in relation to the specific prejudice asserted. 3. The application to adjourn the trial part-heard by the Applicant was unreasonable in the circumstances where:

1. Dr Comley had not been identified as a witness on whom the Applicant has intended to rely prior to the commencement of trial; 2. The report of Dr Kam received on 27 March 2023 did not comment on any aspect of Dr Low's opinion; 3. No relevant reason or submission has been identified by the Applicant as to why an adjournment of the trial was required. 4. Significant cost was incurred by both parties including costs associated with preparation for trial on 27 March and 28 March 2023; 5. Cost has been incurred in relation to the late cancellation of medical witnesses.
2. I made an observation during a telephone directions hearing that in seeking to adjourn the hearing, the applicant probably saved the respondent costs as after and because of the adjournment, she became self-represented and the respondent was no longer liable for her legal fees under s 106(1) of the RTW Act. In response to that comment the respondent submitted that:[5]

... it is no answer (and an irrelevant consideration) to say that the Applicant became unrepresented, and so the costs liability was ultimately less than it would have been if the Applicant had continued to be represented. This is irrelevant.

1. The applicant was said by the respondent to have acted unreasonably or frivolously in seeking to dismiss the proceeding pursuant to s 42(2)(b) of the SAET Act without evidence because:[6]
   1. There was no basis for determining the proceeding in favour of the Applicant under s 42(2)(b)(ii) (para 108). The application was instituted without reasonable cause and was doomed to fail.
   2. The allegations made by the Applicant (such as the Respondent fabricating evidence and allegations of collusion between solicitors) were very serious allegations and the Tribunal explained that there needed to be evidence before such a submission could be considered (para 34).
   3. Despite this, the Applicant maintained the allegations without any evidence and insisted that her application be dealt with.
   4. The allegations were baseless and were dismissed (see for example para 94 and para 101).
   5. The Respondent was required to prepare written submissions in relation to the application and there were numerous lengthy directions hearings in relation to the application.
2. The respondent submits that the following amounts should be allowed:[7]
   1. Assessment of Mr Tim Cogan: $36,502.57
   2. Plus other disbursements claimed excluding photocopying: $6,173.09
   3. Plus printing/photocopying allowance: $1,000

Sub- total: $43,675.66

1. Reduction for unreasonable conduct (20%) - $8,735.13

Total $34,940.53

But rounded to $35,000

1. The respondent is correct to submit that the limits placed on an award of costs by the RTW Act when an AFR is at conciliation limit the amount payable by the respondent to the applicant. The costs incurred by the applicant between 11 November 2021 and 10 May 2022, the period when the AFR was at conciliation, are $11,867.13. The maximum amounts payable for the conciliation phase of the proceeding are $440 to prepare the AFR and $2,760 for participation in conciliation, a total of $3,200.
2. The AFR was referred to hearing and determination on 11 May 2022. The applicant's former solicitors ceased acting for her on 22 September 2023.
3. I was not provided with a copy of the costs agreement between the applicant and her former solicitors, but regardless of the terms of that agreement, the costs the respondent is liable for are limited by s 106(6) of the RTW Act which provides:

An award of legal costs cannot exceed 85% of the amount that would be allowable under the relevant Supreme Court scale if the proceedings were in the Supreme Court.

1. An amount of $22,230 inclusive of GST is claimed for counsel fees. Mr Cogan, the costs expert retained by the respondent, stated that counsel charged a daily rate of $3,200 exclusive of GST, the top of the 2017 counsel fee indicator. Mr Cogan observed that the rates in the counsel fee indicator are no longer indicative of the rates generally charged and he considered the rate charged to be reasonable. As the hearing lasted only for one day, Mr Cogan considered that day and an additional 3 days for all reading, preparation, conferences and written advices was appropriate. That produces an amount of $12,800 plus GST for counsel fees. I agree and adopt that figure.
2. The total amount of the disbursements claimed is $9,248.26 plus GST. Mr Cogan considered all the amounts claimed for disbursements to be reasonable except for photocopying, which he reduced from $3,661.06 plus GST to $1,000 plus GST. I agree with the reduction. The amount claimed for printing and photocopying is very high.
3. Orders were made on 7 March 2025 to facilitate an adjudication of costs. The preamble to the orders is in the following terms:

The respondent filed an Application for Directions dated 11 April 2023 and the applicant filed an Application for Directions dated 2 October 2024. Both relate to costs. Since October 2024, numerous directions hearings and a settlement conference have been conducted. Whilst the respondent has made a payment of $35,000 to the applicant as partial reimbursement of her costs, there are currently outstanding issues related to both Applications for Directions which need to be dealt with. The applicant does not agree to waive legal professional privilege and therefore does not consent to the electronic file of her former solicitor being provided to the respondent. By email dated 26 February 2025, the respondent requested that the applicant file and serve her claim for costs pursuant to r 86(1) of the South Australian Employment Tribunal Rules 2024 (SA). The applicant has requested, on numerous occasions, that President Dolphin preside over the adjudication of costs. The President has declined to do so. Having considered the Applications for Directions and the respective positions of the parties I make the following orders:

1. The applicant refused to allow the respondent to access the electronic file or the paper file of her former solicitors. That limited the approach that the Mr Cogan could take and may explain why the respondent submitted that a lump sum assessment of costs or similar should be undertaken. Mr Cogan observed that using that method may produce a different result than using an item-by-item approach to costs.[8]
2. In an email to the respondent's solicitor dated 17 December 2024, a copy of which is attached to the respondent's written submissions, Mr Cogan explained that he applied scale rates to a large sample of the common costs records from 10 May 2022 onwards. I take 'common costs records' to mean items that the applicant's former solicitors have claimed and which can be compared to corresponding items in the respondent's file, such as letters and notes of telephone conversations between solicitors that record the length of the conversation. Using that methodology, Mr Cogan estimated solicitors' fees of $19,222.57 in addition to conciliation costs, disbursements and counsel fees. The estimate is based on 85% of the relevant Supreme Court Scale of costs as required by s 106(6) of the RTW Act. The Higher Courts scale of costs has replaced the Supreme Court scale of costs and is the scale to now have regard to.
3. While I accept Mr Cogan's costs estimates, I do not accept the respondent's submissions about the penalties that should be applied. I reject the submission there should be a reduction to the award of costs because of unreasonable conduct by the applicant in adjourning the hearing. While I accept that the reasons the applicant gave for adjourning the hearing are not reasonable viewed objectively, the adjournment was sought in the context of the relationship between the applicant and her the legal advisers fracturing. Although the applicant terminated instructions to her solicitors six months after the hearing was adjourned, it was apparent the relationship had irretrievably broken down on and from the first day of the hearing when the adjournment application was made on behalf of the applicant and her solicitors and counsel withdrew.
4. The applicant did not instruct other solicitors to act for her. The respondent did not submit that I was wrong to say that it became liable for a lesser amount of costs as a result of the applicant representing herself. The submission was that the observation was not relevant and did not answer the question whether the applicant had acted unreasonably. I accept that comment but do not agree that the respondent being relieved of having to pay the applicants costs after 23 September 2023 is not a relevant consideration. The discretion to award costs is broad and unfettered.[9] While I accept that the applicant acted unreasonably in seeking to adjourn the hearing, that behaviour occurred in the context of the applicant having lost faith in her solicitors and it has not been shown that the behaviour caused the respondent to pay greater costs than it otherwise would have. I decline to exercise the discretion in s 106(3) to make an adverse order against the applicant for seeking an adjournment.
5. There are good reasons for exercising the discretion in s 106(3) in relation to the applicant's submission that the respondent's defence to her claim should be dismissed under s 42(2)(b) of the RTW Act without any evidence on the issue. There is no evidentiary basis for the applicant's assertion that her solicitors colluded with the respondent's solicitors to defeat her claim. The applicant ignored a warning I gave that she had made a very serious allegation without a basis. The s 42(2)(b) application had no realistic prospect of success for the reasons given in the decision.
6. It follows that a reduction to the award of costs because the applicant has behaved unreasonably is appropriate, but a 20% reduction is excessive in my view. The respondent's submissions on the s 42(2)(b) issue filed on 10 July 2024 are just over 3 pages long. A more detailed response was not warranted because the applicant's argument had no reasonable prospect of success. A reduction of $1,500 including GST pursuant to s 106(3) of the RTW Act is appropriate to compensate the respondent for the applicant acting unreasonably in bringing and maintaining the s 42(2)(b) submission given the discrete nature of the issue and it being dealt with on the papers.
7. I accept the respondent's submission that the filing fee and the solicitor's fee the applicant paid to her former solicitors in relation to the Magistrates Court proceeding cannot be recovered as a cost of this proceeding. The fees were incurred by the applicant's former solicitors in pursuing her to pay their costs and the applicant paid them. The costs of the Magistrates Court proceeding are not costs of this proceeding.
8. As the applicant has paid her former solicitors a significantly greater sum for printing and photocopying than the sum allowed in these reasons, it is appropriate that the basis of the charge is explained. The issue can and should be examined given this is an adjudication of costs, the amount claimed has been reduced and the applicant has paid the higher amount. As Mr Cogan's email observed, the applicant's solicitors were provided with a Book of Documents at conciliation and a Trial Book at hearing and determination by the respondent's solicitors. An explanation of why there was an apparently large volume of photocopying, or a high rate charged, warrants an explanation in light of s 107 of the RTW Act. Section 107(2)(a) provides that if costs are incurred improperly or without reasonable cause, they may be reduced or disallowed under s 107(3).The test is complex. In Peek v Return to Work Corporation of South Australia,[10] Rossi DPJ said the following:[11]

I would conclude that s 107 of the RTW Act empowers the Tribunal to make an adverse costs order against a professional representative of a party in the particular circumstances set out in s 107(2). The Tribunal will be mindful of the requirement that there be a finding not only of relevant conduct but that the conduct has caused the costs to not only to be incurred but to be incurred in the circumstances set out in s 107(2)(a) or (b). The Tribunal will consider whether there may be other causes. A finding of other causes may be relevant to whether the conduct of the professional representative has been relevantly causative of the costs incurred and, in the event of a finding of multiple causes including the conduct of the legal representative, relevant to its exercise of the discretion conferred by s 107(3).

The Tribunal will be mindful that a professional representative will take into account instructions received and that the conduct of other parties to the proceedings may be relevant.

Where there is a finding within the ambit of s 107(2), the Tribunal will then consider whether the discretion conferred by s 107(3) should be exercised. The Tribunal will be mindful that the section operates in a scheme of costs where, ordinarily, the Corporation is liable to pay costs of a party to the proceedings, and irrespective of the outcome of those proceedings. The Tribunal will consider the role of the professional representative and will take into account the differences in professional obligation between solicitors and barristers.

Section 107 does not require the Tribunal to assess the conduct of the professional representative through the prism of perfection. The most competent and diligent professional representative may, inadvertently and on rare occasion, cause a cost to be incurred by another party without reasonable cause. However, in an urgent case or in a case where the Tribunal has emphasised the importance of timely compliance with its orders, a single contravention may enliven the exercise of the discretion against the professional representative. As with all exercises of discretion relation to costs, subject to established legal principles as to the exercise of the discretion, there is to be an exercise of judgment upon the totality of the circumstances.

1. I assess the following amounts inclusive of GST as payable:

Solicitor fees: $22,422.57

Counsel fees: $14,080

Disbursements excluding printing/photocopying: $6,173.09

Printing/photocopying: $1,100

Sub- total: $43,775.66

Reduction for unreasonable conduct: $1,500

Total $42,275.66

1. As the respondent has already paid $35,000 inclusive of GST towards the applicant's costs, a further $7,275.66 inclusive of GST is payable by the respondent.
2. The respondent submitted that the Court should provide directions about whom costs should be paid if the award made is greater than $35,000, which it is. The respondent advised that while the applicant has paid the costs and disbursements claimed by her former solicitors, counsel fees have not yet been paid.[12]
3. There is no evidence about the status of the claim for counsel fees. Counsel may not have pursued the claim. It is also not clear who is responsible for payment of counsel fees. Presumably the applicant's former solicitors retained counsel, but the terms of the engagement are unknown. Given those matters, it is not appropriate to make orders that dispose of the issue of costs. Instead, the following orders are made:
   1. A copy of these reasons is to be provided to the applicant's former solicitors and former counsel.
   2. The parties and the applicant's former solicitors and former counsel have 21 days in which to make any submission they wish to make in relation to whom the amount of $7,275.66 payable under this decision should be paid.
   3. The applicant's former solicitors are directed to advise within 21 days the basis of the amount claimed for printing and photocopying by reference to the amount and rate of photocopying charged.
   4. The applicant has 7 days after receiving any submission made pursuant to orders 2 and 3 to reply to any submission made by the respondent, her former solicitors or her former counsel.

[1] Condron v Women's and Children's Health Network [No 2] [2024] SAET 81.

[2] Condron v Women's and Children's Health Network [2024] SAET 66.

[4] Respondent's costs submissions [13].

[8] See Smoothpool Nominees Pty Ltd v Pickering and Ors [2001] SASC 131 [11] per Lander J.

[9] Holt v Bunney (No 2) [2020] SASCFC 120.

[10] [2026] SAET 36.

[12] Respondent's costs submissions [23]