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[2003] SAWCT 52
mixed. The Tribunal declined to deprive the worker of all his costs or to order the worker to pay the respondent's costs. The Tribunal awarded the worker 50 per cent of his costs incurred up to the date of...
The Tribunal considered whether the worker's challenge to a conciliation order was so unreasonable that he should lose his usual entitlement to costs. Although the worker's evidence at trial was weak and his case was a long shot, the Tribunal concluded it was not demonstrably unreasonable to bring the proceedings. The Tribunal therefore awarded the worker costs, but reduced the recoverable pre‑trial costs by half and awarded full costs for the hearing and afterwards.
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1,659 words · generated 16/08/2026
This decision is a costs ruling delivered by Acting Judge GMM Thompson of the Workers Compensation Tribunal (SA) in Edgecombe v WorkCover/Allianz Australia (Queen Elizabeth Hospital Research Foundation), reported as [2003] SAWCT 52. The underlying substantive matter was an application by the worker under s 88H to set aside the conciliation officer's order. The worker had earlier signed correspondence instructing the Employee Advocacy Unit (EAU) to drop a claim and continue another; the worker later contended that although he had consented, his consent was not legally 'informed'.
No linked legislation citations have been extracted yet.
The costs hearing arose after the Tribunal had determined the substantive challenge (the earlier judgment of 2 August 2001 is referenced at para 1). The costs application under s 110 (considering s 95 of the Act) was heard on 8 October 2001 and 23 April 2003, with the ex tempore reasons delivered on 23 April 2003 and published 9 May 2003.
Acting Judge Thompson framed the legal issue as whether the worker acted unreasonably, frivolously or vexatiously in bringing or conducting the proceedings, so as to justify a departure from the presumption in favour of awarding costs (see paras 4–5). The worker's evidentiary performance at trial was poor: the Tribunal found that his memory was very poor, that he was confused about events between 31 August and 17 September 1998, and that his oral evidence contradicted his earlier affidavit (para 3). Yet the central question was whether the proceeding was unreasonable to bring in the first place.
The Tribunal concluded the case was difficult and a long shot, "barely supportable", but not sufficiently unreasonable to remove the worker's entitlement to costs. The practical costs order adopted was to award the worker 50 per cent of his costs incurred up to the date of trial and full costs for the hearing and thereafter (para 22). The Tribunal declined to make an order that the worker pay the respondent's costs (para 23).
The Tribunal’s reasoning is built on three pillars:
Statutory framework: The presumption under s 95(1) is that a party is entitled to costs; s 95(3) creates a statutory exception where the Tribunal forms the opinion that a party acted unreasonably, frivolously or vexatiously (paras 4–5). The scope of s 95(3) thus defines when the Tribunal may deny costs or order costs against a party.
Distinguishing unreasonableness at commencement from poor performance at trial: The Tribunal emphasised a conceptual distinction (paras 9–11). A case may fail at trial for lack of evidence, but that does not necessarily mean it was unreasonable for the applicant to commence proceedings. The judge cited Cannan v Australia Postal Telecommunications Union as articulating the kind of test that applies where a proceeding, on the applicant's own version, must fail (para 9). However, Judge Thompson underlined that absence of evidence after hearing is not automatically proof that the initial decision to litigate was unreasonable (para 10).
Access to justice and policy considerations: The Tribunal expressly considered the policy context in the workers' compensation jurisdiction: that the system is structured to allow workers to bring claims and that the Tribunal awards costs differently from other forums (para 21). The judge noted his reluctance to deny a worker their day in court unless the claim was "demonstrably ridiculous or demonstrably unreasonable" (para 21). This policy disposition inclined the Tribunal against making a punitive costs order in borderline cases.
Applying those principles to the evidence, the judge found the worker’s case was tenuous and would only succeed if everything went his way, but he stopped short of characterising the bringing of the proceedings as unreasonable. The result was a balanced exercise of discretion: the worker gets costs, but with a reduction for the prolonged pre‑trial period when the merits may have been more doubtful (para 22).
Before Edgecombe, the statutory text of s 95 already supplied the basic framework: costs are normally awarded, with the Tribunal empowered to depart where proceedings are unreasonable, frivolous or vexatious. Edgecombe applies and clarifies two points within that framework in the tribunal context:
It emphasises the conceptual distinction between the lack of evidence at trial and whether proceedings were unreasonable to commence. The Judge distinguishes the "advising someone before a case starts" assessment from "finding after a hearing there was no evidence" (paras 9–10). Edgecombe thereby discourages an automatic leap from unsuccessful trial performance to an adverse costs finding.
It reflects a policy preference in workers' compensation tribunals to allow access to justice and to be cautious before penalising litigants with adverse costs, especially where cases, though difficult, are not plainly frivolous (para 21).
After Edgecombe (within the context of this judgment), the law remains that s 95 permits departure from the presumption of costs, but Edgecombe provides a worked example of exercising restraint: a partially reduced costs award for pre‑trial work where the case was "barely supportable" yet not unreasonable.
The judgment also situates itself against other Tribunal decisions: Chapman and Wojciak are distinguished as instances involving more deliberate or clear unreasonableness (para 16). The judge referred to other authorities setting a high hurdle for setting aside conciliation orders (Mundie's case, Mohtar's case, State Rail Authority v Codelfa) as background to the difficulty of the worker's case (para 17).
Para 4: "The test in s 95 is this: that under subs (1) a party is entitled to an order for costs. That is the norm."
Para 5: Quotation of s 95(3).
Para 9–10: Distinction between pre-litigation advice and post-hearing absence of evidence.
Para 20–22: "I have come to the conclusion that it was not. I do so with some doubt... I think that it was only barely supportable... I am going to ameliorate it... the worker should have 50 per cent of his costs up to the date of trial and his costs thereafter."
Para 3: Assessment of the worker's credibility.
Edgecombe is relevant where:
In those circumstances Edgecombe guides tribunals to assess the reasonableness of initiating proceedings on a holistic basis, avoiding an automatic inference from trial failure to unreasonableness. It also endorses a middle course: where proceedings were arguable but weak, tribunals can proportionately reduce recoverable pre‑trial costs rather than imposing punitive costs orders.
The judgment itself does not contain material on subsequent judicial treatment. The text does note other tribunal cases and authorities that informed the decision (see paras 9, 16–17). Because the present source does not provide cases applying Edgecombe subsequently, it is not possible on the basis of this document alone to state how later courts or tribunals have treated the decision. Users should consult up‑to‑date AustLII or other case citators to identify subsequent citations and treatment.
Threshold for 'unreasonable' at commencement: Edgecombe applies a commonsense, discretionary approach but does not set a bright-line test for when an applicant's prospects are so weak that bringing proceedings is unreasonable. Practitioners will still face uncertainty when a case is weak but not obviously frivolous.
Appropriate measure of pre‑trial cost amelioration: In Edgecombe the Tribunal chose a 50 per cent reduction for pre‑trial costs. The judgment provides no prescriptive rule for selecting the precise percentage. Future cases may develop principles for calibrating such reductions (e.g. the weight to give delay, the degree of meritlessness, the conduct of legal advisers).
Interaction with representation advice: The worker was represented by the Employee Advocacy Unit. Edgecombe touches on the difficulty of assessing whether a litigant knew the ramifications of consenting to a conciliation order and on whether advice, or lack of fully informed advice, should influence costs. There remains scope for courts to clarify how poor advice or misunderstanding affects the reasonableness inquiry.
Impact on litigant behaviour and legal practice: The judgment balances access to justice with deterrence against vexatious litigation. How tribunals will apply this balance in cases with different factual permutations (for example where a litigant was unrepresented or where the solicitor failed to advise properly) remains open.
Final note: This analysis is based solely on the text of the Edgecombe judgment supplied above. It is general legal information and not legal advice. I can make mistakes; before you act on this, rely on it, or use any draft outcome summary, get a qualified Australian lawyer to check it.
1 The matter before me this morning arises from a decision I delivered on 2 August 2001 in (2001) SAWCT 88. It involves costs. I heard the case on 11 July 2001. The case involved an application by the worker pursuant to s 88H to set aside an order made by a conciliation officer.
2 Ultimately, the application was based on the proposition that although the worker had consented to the order of the conciliation officer, the worker's consent, although real, was not informed within the legal definition of informed consent, - a proposition that is found more in medical negligence cases than the Workers Compensation Tribunal.
3 The worker was at the material time when the order was made was time represented by the Employee Advocacy Unit. Everything that could have been said was said and debated in that hearing before me. I came to the conclusion in par 48 about the worker, that:-
"... the kindest thing that one can say of his evidence was that he had a very poor memory of what occurred between 31 August and 17 September 1998. He was confused and could not recall initiating or receiving correspondence and he could not remember what instructions he gave to the EAU until confronted with his own letter. His oral evidence was in contradiction to his affidavit evidence sworn earlier that year. He changed his ground when being cross-examined and opted for answers that would absolve him from any responsibility.
The letter that is referred to was a letter under his hand instructing the EAU to drop the claim:-
`I, John Edgecombe, will drop the first claim, being 01 back claim, being I don't have enough proof to back up my claim which I had put forward. I will be continuing on with the 02 claim, being for my knee.'"
4 The test in s 95 is this: that under subs (1) a party is entitled to an order for costs. That is the norm.
"If the tribunal is of the opinion that a party acted unreasonably, frivolously or vexatiously in bringing or in relation to the conduct of proceedings, the tribunal may decline to make an award for costs and further make an order for costs against the party or alternatively, as a third course of action, reduce the amount of the award to which the party would otherwise have been entitled."
6 The respondent's position in this case is that Mr Edgecombe acted unreasonably in actually bringing the case. Not a great deal of weight is placed on the fact that it was not brought until 15 months later than the order, other than the fact that that may well throw some light upon the quality of the case in that one could reasonably take the view that at least that should have been done as soon as he instructed a lawyer. If that be a point that is germane, then the application should have been brought then - not later.
7 It rather has overtones of the validity of complaints in cases of sexual misconduct, that the closer they are to the activity, the more likely they are to be persuasive.
8 But not a great deal is made of that by Ms Kelly, and she relies upon the unreasonableness; the unreasonableness being that the worker's affidavit was confusing. He was very confused in the witness box; gave contradictory answers, and Ms Kelly did not say very much more to me than what I had said in my judgment, about the worker.
9 Ms Kelly says that there was no reasonable prospect of success in this case, whether one expresses it that there is either no reasonable prospect of success or there was no substantial prospect of success - see Cannan v Australia Postal Telecommunications Union [1992] FCA 539; (1992) 43 IR 257 at 264 - 5:-
"Where on the applicant's own version of the facts it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable course."
That is a test, and it is one test, and certainly if it does not pass that test it is going to be unreasonable.
9 I remarked in another case, that is not necessarily the only test. I think there is a conceptual difference between no reasonable chance of success looked at from the point of view of advising somebody before the case starts on the one hand and, secondly, a finding after a hearing that there was no evidence to support the proposition that was being advanced on behalf of the applicant.
10 The first proposition does not necessarily flow from the second; that is to say, the fact that one finds there is no evidence to support the case being put forward, does not, of itself, support the proposition that there is no reasonable prospect of success.
11 It is inherently difficult to deal with this matter two years after I have heard it because one is deprived of the very essential advantage of recalling exactly - or recalling with clarity - what the applicant was like.
12 My recollection - and it is not disputed - was that Mr Edgecombe was not a person of any great education or sophistication at all. I think he was a labourer and lived at Whyalla. When I said in my judgment, "The worker didn't assert in his affidavit that he did not understand what he was doing. He did not assert that and he didn't complain that he was not properly advised by the EAU" - Mr Kernot points out that of course if he had not been advised what the consequences of his actions were - of course he would not have complained because he did not know. You cannot complain about something you do not know anything about.
13 I was obviously quite unimpressed with the worker. I was quite unimpressed with the fact that - it was not until fairly late in the day that there was even a concession from him that he had written the letter and that it meant what it actually said.
14 It is a fine point of distinction, to say, "It meant what it said, but I didn't understand what the ramifications were."
15 Can it be said to be unreasonable to bring that sort of case?
16 It is not a case which falls into the category of Wojciak v South Australian Water Corporation [2003]/24 or a case of Chapman v WorkCover (2000) SAWCT 126. In both those cases - and particularly Chapman - the presiding Deputy President was exercised by the deliberate lack of credibility on the part of Mr Chapman and the unreasonableness of Mr Wojciak. This is not that sort of case, of somebody deliberately coming along and virtually deceiving the Court.
17 Ms Kelly also points out that it must have been patently obvious that, bearing in mind the difficulty of the legal status of an order and the difficulty that an applicant has to set aside an order - as set out in the cases I have quoted such as Mundie's case, Mohtar's case, and of course State Rail Authority v Codelfa in the High Court.
18 The hurdle was set high for this worker and it was at the very best a long shot - so long that it should have been seen right from the beginning that it was not likely to get up to succeed.
19 Putting aside, as I say, the worker's performance in the witness box - because I think that is the purpose of cross-examination - to show up the opponent in the worst light, I do not think that in this case, even though I was not impressed with him, that his actual conduct in the witness box would lead me to the conclusion that the case was unreasonable. The real issue is whether, right from the beginning, bringing the case was unreasonable.
20 I have come to the conclusion that it was not. I do so with some doubt.
(2) I think it was a case that would only succeed if everything ran the worker's way.
21 However, bearing in mind the purpose of this litigation is to ensure that workers who have a case are able to bring the case, bearing in mind the fact that in this jurisdiction - which is unique, as I understand it in jurisdictions in Australia - that workers do get their costs even if they fail - bearing in mind perhaps a long-standing foible of mine, that it is one of the glories of the law that the legal profession will take cases on which, on the face of them, do not have much prospect of success and people ought not be denied their day in court, unless what they are going to say is demonstrably ridiculous or demonstrably unreasonable, which is the term we use in s 95.
22 I think that when one comes down to being almost on the borderline case of making an order against a worker - and in this case the order I would have made - that I was contemplating making for some time - was that the worker should have his costs only of the hearing and nothing before. For all of the reasons I have mentioned above - I think I should come down in favour of the worker getting his costs, I am going to ameliorate it in this sense: that because of the very lengthy time beforehand that, up to the date of trial, the worker should have 50 per cent of his costs and his costs thereafter.
23 I decline to make an order depriving him of all of his costs and I decline to make an order that the worker should pay the costs of the respondent.
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.
Edgecombe
Workcover/Allianz Australia
(1992) 43 IR 257
The Tribunal declined to deprive the worker of all his costs or to order the worker to pay the respondent's costs. The Tribunal awarded the worker 50 per cent of his costs incurred up to the date of trial and full costs for the hearing and thereafter (para 22-23).