Domenic Genovese v Return to Work Corporation of South Australia

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1. Upon the applicant returning to work in January 2024 with YESS to undertake his duties following the unrelated surgeries, YESS changed his job role without consultation or agreement with him.
2. YESS then made further changes to his job role, again without prior consultation or agreement with him.
3. In doing so, YESS provided and required the applicant to undertake physical work duties that were beyond the physical restrictions indicated in the said work capacity certificates.
4. From time to time YESS provided fellow workers to assist the applicant in the performance of heavier manual duties, but such assistance was on each occasion of a short-term nature and undertaken by fellow workers who were physically restricted, leaving for at least the most part the applicant to do what he could to undertake these heavy manual tasks.
5. The applicant was required to work under two managers: Paul Bana and David Brown, who appeared to have differences or issues between them with the applicant continuing to feel increasing frustration, anxiety, and overall stress in being caught in the middle of their issues.
6. There was criticism of the applicant's performance from time to time. In addition to, he feeling stressed or pressured to perform work beyond his physical capabilities, he felt unsupported and the criticisms included being through a Microsoft application which each manager preferred to use in communication with him instead of personal communications for the most part.
7. Ultimately the applicant ceased attending at work from 31 May 2024, as to which his general practitioner Dr Wong issued a work capacity certificate on that day indicating the diagnosis as "anxiety, anger issues".

1. The Statement of Facts, Issues and Contentions of the applicant is dated 12 August 2025. He had earlier provided an affidavit of evidence sworn on 24 June 2025.
2. In his supplementary affidavit sworn on 12 August 2025, after referring to his earlier affidavit sworn on 24 June 2025, he stated:
   1. I say that I recently have obtained some information of a more precise nature from a work computer that was left in my possession, an officer of YESS attended my home and requested certain items which I provided to him.
3. The applicant then proceeded to refer to paragraphs of his affidavit of 24 June 2025 and set out further detail.
4. By letter dated 28 August 2025 the solicitor for the other party wrote to the applicant's solicitor seeking disclosure of the documents upon the applicants work computer accessed and relied upon in preparing the supplementary affidavit.
5. At directions hearings the solicitor for the other party referred to its case and that it denied any psychiatric injury arising from any event in the course of the applicant's employment with the other party.

1. The other party submitted that the documents accessed by the applicant in order to provide the further detail set out in the supplementary affidavit, as to events claimed to have occurred in the course of the applicant's employment with the other party, must be directly relevant to an issue between the parties. That issue was identified as being whether any claimed psychiatric injury has arisen from the employment.
2. Reference was made to the computer having been in the possession of the applicant and that, following further inspection of the computer, screenshots were taken by the applicant and attached to a letter of the applicant's solicitor to the other party's solicitor dated 12 September 2025.[2] The other party submitted that the screenshots did not constitute disclosure by way of a list of documents or, in any other form, as it was not possible to discern from the screenshots the documents that were being referred to.
3. The other party submitted that the relevant documents were not otherwise disclosed and in the circumstances there was a necessity for an order to be made for further disclosure. Ultimately, the submission was that an order should be made that the applicant file an affidavit verifying his list of documents.

1. The respondent went further than the other party and submitted, given the general form of the text of the existing affidavits of the applicant, that not only should there be further disclosure but there should also be further affidavit evidence from the applicant explaining the significance of the documents to his case, to the extent that they are relied upon.

1. The applicant submitted that he has been under considerable stress and that he has endeavoured to disclose the existence of documents which are relevant to his case. He submitted that the detail provided in his affidavits of evidence, in combination with the return of the computer, constituted disclosure of all relevant documents. Put another way, the applicant maintained that the computer contained documents which enabled him to provide further detail of the basis of his case in his supplementary affidavit and that the relevant documents had been disclosed.

1. Rule 50 of the South Australian Employment Tribunal Rules 2024 (the SAET Rules) provides that at any time during a proceeding a Presidential Member may make such directions or orders necessary to achieve the fair and expeditious resolution of a proceeding. Sub-rule 50(d) empowers a Presidential Member to make directions in relation to discovery, inspection, and production of documents.
2. On 20 February 2025 and again on 9 April 2025 an order was made that each party file and serve a list of documents. The order of 9 April 2025 extended the time for compliance to 23 April 2025. The order made was in accordance with r 50 and r 56 of the SAET Rules. The applicant filed his list of documents in this matter on 24 June 2025.
3. Rule 56 sets out the relevant approach to discovery and provides, relevantly:

(1) In this Part and Part 10 the word 'discovery' means the requirement parties have in litigation to reveal the existence of documents and other materials to each other and not the requirement to disclose materials to the Tribunal in section 28 of the SAET Act.

(2) Unless a relevant Act provides otherwise, each party must discover the documents that are, or have been, in the party's possession, custody or power to produce and are directly relevant to any material issue in a proceeding.

(3) Unless a relevant Act provides otherwise, the Tribunal may at any time order a party or any other person to provide a list of documents in the approved form P09 and produce to the Tribunal and any other party to the proceeding, any document which is or has been in the possession of the party that is directly relevant to a material issue in the proceeding.

(4) Where a party or other person discovers documents which are not directly relevant to a material issue in a proceeding, an adverse order for costs, may be made against them that reflects the additional time and expense to which other parties have been put by the unnecessary discovery.

(5) Subject to any other sub-rule, a party is required to produce any discovered document within 7 days of a request for production.

(12) The Tribunal may modify this rule in any way thought fit, including but not limited to, by use of the examples given in rule 73.14(2) of the Uniform Civil Rules

1. From the time the first order was made for the parties to file their lists of documents, there was an ongoing obligation on the part of the applicant to disclose to the other parties to the proceeding, by way of a list of documents, those documents which are or have been in his possession, custody, or power that are directly relevant to any material issue in the proceeding.
2. Some of the affidavit evidence read for the purpose of the application and submissions on behalf of the applicant referred to his experience of stress in the litigation and his lack of understanding of the obligation associated with disclosure. In claims for compensation under the Return to Work Act 2014 (the RTW Act), particularly where the claims arise from a psychiatric injury, memory and thought processes may be altered. However if that is to be advanced as an explanation for continuing inadequate disclosure, clear and detailed expert medical opinion and reasoning should be provided to the Tribunal. No such evidence was presented in this case and I have not been persuaded that, properly advised, the applicant has not been in a position to discharge his obligation in relation to disclosure. His solicitor has taken his oath on at least four occasions over several months with the most recent affidavit having been sworn on 15 September 2025. While the applicant deposes to an experience of stress and not having appreciated in the past the obligation related to disclosure, I am not persuaded that he lacks the mental capacity to discharge his obligation. That is with appropriate advice from his solicitor in order to identify and then list the documents to be discovered.
3. In Rockwell Machine Tool Co v EP Barrus (Concessionaires) Ltd[3] Megarry J referred to the obligations placed upon solicitors preparing for trial, and especially in relation to discovery, as a "great responsibility and a heavy burden".[4]
4. I accept the submission of the other party that the content of the supplementary affidavit of the applicant, together with the screenshots attached to the letter from the applicant's solicitors to the solicitors for the other party dated 12 September 2025, demonstrates that the list of documents of the applicant dated 24 June 2025 has not discharged the obligation on the part of the applicant to disclose the existence of all documents that are or have been in his possession, custody, or power and that are directly relevant to a material issue in the proceeding. That issue is whether the applicant's claimed psychiatric injury is a work injury for the purposes of the RTW Act. The screenshots are difficult to understand, in some respects illegible, and do not constitute compliance with the order made that the parties make disclosure by way of a list of documents. The obligation is to identify the relevant documents and that is not discharged by inviting the other party to search through a number of files in a computer in the hope of understanding which documents were being relied upon in a supplementary affidavit which did not identify the documents.
5. I reject the submission of the applicant that disclosure was provided by a combination of the content of the supplementary affidavit and the return to the other party of the applicant's work computer. As explained by Ms Luker in her affidavit:
   1. On the afternoon of 10 September 2025, I spent approximately 45 minutes reviewing the laptop. There are hundreds of files on the laptop in various folders. Many of the files appear to be of questionable or no relevance to these proceedings. I was unable to identify, with any certainty, what is the 'subject material' relied upon by the applicant in preparing the Applicant's Second Affidavit.
6. I note that in the course of oral submissions Mr Kirk was unable to identify any particular document as having been disclosed by means of provision of the screenshots and nor was he able to identify disclosure by any other means of any relevant document upon the applicant's work computer.
7. The order made on 18 September 2025 requires the applicant to provide an affidavit verifying a consolidated list of documents. That list must identify, with clarity, every document which is or has been in the possession, custody, or power of the applicant which is directly relevant to an issue in the proceeding. In relation to the files within the computer, the applicant is required to list, with clarity, each such document.

1. As noted early in these reasons, the respondent made application for an order that the applicant not be entitled to recover his costs of representation in relation to the other party's application and that the applicant pay the other party's costs of and incidental to that application. The respondent accepted that in the absence of the applicant making payment of the other party's costs of the application, then the other party is entitled to recover its reasonable costs of and incidental to that application from the respondent in accordance with s 106(1) of the RTW Act.
2. The applicant made application for an order that he be entitled to recover his reasonable costs of the application from the respondent as the relevant compensating authority. As I recently observed in Ramamoorthy v Return to Work Corporation of South Australia[5], where there is an interlocutory application and the worker is legally represented, the Return to Work Corporation of South Australia (the Corporation), as the relevant compensating authority, would ordinarily be liable to make payment of the reasonable costs of the worker in accordance with s 106(1) of the RTW Act,[6] even if the worker is not successful.
3. I also noted, however, that s 106(1) is expressed to be subject to the content of Part 6 of the RTW Act and that includes sub-section 106(3). Sub-sections 106(1) and 106(3) provide:

(1) 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 compensating 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.

(3) If the Tribunal is of the opinion that a party -

(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 or settle 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 to the conduct of proceedings before the Tribunal,

(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 otherwise have been entitled.

1. The issue raised by the respondent in this matter is whether the applicant has acted unreasonably in the conduct of the proceeding within the ambit of s 106(3) of the RTW Act and, if so, whether the Tribunal should exercise the discretion conferred by s 106(3)(c) to decline to make an award of costs in favour of the applicant and to make a further order for an award of costs against that party.
2. The essence of the submission of the respondent is that the matters raised in argument by the applicant, in resisting the orders sought by the other party, were so lacking in merit as to be acting unreasonably in the conduct of the proceeding.
3. It was clear from the content of the supplementary affidavit of evidence of the applicant sworn on 12 August 2025, and his submissions, that there were further documents to be discovered. An order had previously been made that discovery be undertaken by way of a list of documents. Neither the provision of the laptop computer itself to the third party, nor the subsequent provision of the screenshots, identified any further document. The provision of the screenshots alluded to the existence of other documents to be discovered, but without identifying the documents.
4. The affidavits of the applicant sworn on 15 September 2025 and of solicitor Paul Arthur Kirk sworn on the same day did not assist the applicant's case of resisting the application of the other party. Neither affidavit satisfactorily addressed why the applicant has not provided to the other party a list of the documents that he accessed from his work computer which he relied upon in providing the further detail set out in his supplementary affidavit.
5. The applicant failed to raise an arguable basis for resisting an order for further disclosure and acted unreasonably in the conduct of the proceeding by requiring the other party to file the application for directions, to have the matter argued and for orders to be made after a contested hearing.
6. There should be an order that the applicant not be entitled to recover from the respondent his costs of representation in relation to the application.
7. The order sought by the respondent that the applicant pay the other party's costs of representation requires further consideration. The Tribunal has not made a finding in relation to the merit of the applicant's case in the substantive proceeding. The finding is that no reasonable argument was raised in opposition to the order for further disclosure as sought by the other party. An aspect of the beneficial costs regime set out in s 106 of the RTW Act is that parties who have an arguable case should not be discouraged from pursuing such a case by the risk of an order to pay another party's costs merely by being unsuccessful. But there are limits and a party who acts unreasonably in the conduct of a proceeding may be ordered to pay another party's costs. Here the applicant's submissions were devoid of merit as a basis for opposing an order for further disclosure. I note that the respondent has not sought an order that would require the applicant to pay the respondent's costs of the application.
8. I am satisfied that there should be a further order that the applicant pay the other party's reasonable costs of its application for directions, but that the order for payment of the other party's costs of the application should not be enforceable until orders are made which finalise the substantive proceeding.
9. The submission of the respondent that the applicant should be ordered, in addition, to provide further affidavit evidence, is a matter more appropriately addressed after the process of disclosure has been completed.

1. The applicant is not entitled to recover from the respondent any of his costs of and related to the application for directions of the other party dated 11 September 2025.
2. The applicant is to pay the other party's reasonable costs of the application for directions dated 11 September 2025 with the amount of such costs to be adjudicated by the Tribunal in default of agreement. This order for costs is not enforceable by the third party against the applicant until final orders have been made to finalise the substantive proceedings.
3. If, upon agreement or adjudication of the amount of costs, such costs are not paid by the applicant to the third party in accordance with Order 2 then liberty is granted to the other party to apply for an order as to costs related to its application for directions dated 11 September 2025, to be paid by the Return to Work Corporation of South Australia.

[1] The other three applications for review forms relate to claims for compensation for injuries claimed to have been sustained earlier and arising from employment with another employer. Those claimed injuries and applications are not relevant to the other party's application for directions in this matter.

[3] [1968] 2 All ER 98

[4] Ibid 99. See also Myers v Elman [1940] AC 282; British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; 7 VR 524.

[5] [2025] SAET 88.