Linke v WorkCover Corporation [2012] SAWCT 10 | Case summary

Workers Compensation Tribunal (SA)|2012-03-09|Before: Mr P

1 On 15 February 2012 the Tribunal published reasons for decision on an application for directions seeking to set aside consent orders which had been signed by the parties. The Tribunal concluded that it was not in the interests of justice to set aside the consent orders[1].

This is an application for costs by the worker.
Mr Durkin, appearing for the worker, referred the Tribunal to s 95 of the Workers Rehabilitation and Compensation Act (the Act) and in particular s 95(3), which provides that the worker will not be entitled to costs:

He contended that this jurisdiction is not one where costs follow the event. Here, he submitted that the worker had done nothing that would disqualify him from the costs to which Parliament had said he should be entitled to in the normal course of events.
He submitted that there was no evidence that the worker was guilty of any delay; he had not committed any fraud; nor was he deceitful; nor was his conduct in any way unreasonable.
He said the award of costs should "reflect what is fair in all the circumstances"[2] and that costs should be awarded in favour of his client.
Mr Black, counsel for the Compensating Authority, correctly pointed out that this is not a matter that is governed by s 95. It is an application for directions which is governed by s 88F of the Act where the costs are in the general discretion of the Tribunal.
I have had regard to the respective submissions of the parties.
I agree with and adopt the submissions of Mr Black.
Consistent with the approach of the Full Tribunal in South Australian Police Department v Tate[3], I find that parties are entitled to assume some general consistency in an approach as to how the discretion in relation to costs is to be exercised, and that absent some special, unusual or exceptional circumstances, a successful litigant should ordinarily expect to recover costs.
Whilst that decision dealt with the issue of costs on an appeal, the same principle applies to the exercise of the Tribunal's discretion pursuant to s 88F in relation to an application pursuant to s 88H to set aside the terms of consent orders.
Thus, in this matter I would normally have awarded costs in favour of the WorkCover Corporation; however as Mr Black sought an order that each party bear their own costs I order accordingly.

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.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] Linke v WorkCover Corporation (Furnmarn Pty Ltd t/as Harvey Norman Furniture) [2012] SAWCT 3

[2] Mazel v The State of South Australia [2003] SAWCT 67

Workers Rehabilitation and Compensation Act 1986

Linke v WorkCover Corporation

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