JURISDICTION: South Australian Employment Court

South Australian Employment Tribunal Act 2014 - Appeal Costs

JUDGMENT OF: The Honourable President Justice Dolphin

Costs of Appeal - Inadequate Notice of Appeal - Hearing adjourned, orders made for an Amended Notice of Appeal and Revised Summaries of Arguments - Appeal proceeded on second listed date - Four Grounds of Appeal - Appellant unsuccessful on all four grounds - Appellant seeks her costs of the appeal pursuant to s 106 of the Return to Work Act 2014 - Respondent argues that an order for costs should be declined (s106(3)(c)); or in the alternative reduced (s 106(3)(d)) - Whether the appellant acted unreasonably. Held: The appellant acted unreasonably in advancing two grounds of appeal that did not involve a question of law pursuant to s 26I of the South Australian Employment Tribunal Act 2014 - Appellant's costs should therefore be reduced - Appellant's entitlement to costs of the appeal, excluding the costs of or occasioned by the application to amend her Notice of Appeal dated 22 September 2024 and the consequent adjournment, are reduced by 30%.

Muthu-Oosting v Return to Work Corporation of South Australia [2024] SAET 24

Calderbank v Calderbank [1975] 3 All ER 333

Moretta v Return to Work SA (Bendigo and Adelaide Bank) [2017] SAET 139

Return to Work Corporation of South Australia v Wastell [2024] SASCA 98

Wheeler v South Australia (2012) 114 SASR 111

Kelvinator v Jezior [1988] SASC 1156; (1988) 49 SASR 592

Department for Child Protection v Morris [2022] SASCA 131

Commissioner of Australian Federal Police v Razzi [1991] FCA 267; (1991) 101 ALR 425

Dodds Family Investments Pty Limited (Formerly Solar Tint Pty Limited) and SWD Group Pty Limited (Trading As Solar Tint) v Lane Industries Pty Limited; Edwards's Auto Accessories Pty Limited and George Edwards [1993] FCA 259

On appeal from a decision of Deputy President Judge Rossi [2023] SAET 29

1. In our judgment 19 April 2024, we dismissed Ms Muthu-Oosting's appeal and gave the parties liberty to apply as to the costs of the appeal, including the costs of the earlier adjournment. The parties now seek orders as to costs.
2. In order to deal with the competing submissions, it is necessary to briefly recap the issues at trial and the history of the proceedings.
3. The appellant is a registered nurse. She sustained a compensable injury that resulted in an incapacity for work. In conformity with its obligations under the Return to Work Act 2014 (RTW Act), the respondent provided her with suitable work as a health worker for which she was paid wages. Following the COVID-19 pandemic, a direction was issued by the State Coordinator for persons performing work in healthcare to either have an approved vaccination against COVID-19, or an approved exemption from such a vaccination. The appellant had neither, and as a result, the provision of suitable employment was withdrawn. This led the respondent to contend that the appellant had breached mutuality, and it discontinued her weekly payments of income support.
4. The appellant's challenge to that determination was dismissed by the trial judge. He found that the appellant had by her actions made herself unable to take up an offer of suitable employment. He did not accept the appellant's evidence as to why she declined to be vaccinated. He found that her actions constituted a breach of mutuality.
5. On appeal, the appellant was represented by senior and junior counsel. So too, was the respondent.
6. The appellant's Notice of Appeal was filed on 19 May 2023, and the appeal hearing was set down for Monday, 25 September 2023. However, on the Friday before that date, 22 September 2024, the appellant filed an Application for Directions seeking leave to amend her Notice of Appeal.[1]
7. Upon hearing that application, on 25 September 2024, the respondent opposed the altering of the grounds of appeal, not only on the basis that such amendments should have been proposed weeks before the appeal hearing, but fundamentally on the basis that the proposed amended grounds involved a 'substantial reframing' of the way in which the existing argument was to be put, and that 'completely new matters' were raised. Also, that the proposed appeal grounds failed to identify a question of law and as such any error(s) of law.[2]
8. Further, the respondent submitted that if the application to amend was allowed, it would be seeking its 'costs thrown away', if the appeal did not proceed as scheduled.[3]
9. After considering the issues, we decided that the application would be allowed, and that the appellant should file an amended Notice of Appeal that would be a replacement of the original notice. We said that we were concerned to ensure that the respondent was properly advised as to what grounds of appeal were to be advanced.[4]
10. As such, we vacated the appeal hearing of 25 September 2023 and relisted it for 23 November 2023. Further, we ordered the appellant to file an Amended Notice of Appeal and Revised Summary of Argument in advance of that hearing. The respondent was also ordered to file its Revised Summary of Argument.
11. The appeal proceeded as scheduled on 23 November 2023. We reserved our judgment, which was delivered on 19 April 2024. In an Application for Directions dated 30 August 2024, the appellant sought an order for her costs of the appeal pursuant to s 106(1) of the RTW Act. The respondent opposed such an order. The parties were subsequently ordered to file written submissions, and it was suggested that the costs issues could be heard and determined on the papers.
12. At a hearing on 13 November 2024, the respondent requested an oral hearing. Accordingly, the date of 27 February 2025 was fixed, and argument ensued thereon.

1. In her appeal, the appellant advanced various grounds of appeal arguing that the judge at first instance had erred. In our judgment, we formulated the four questions to be decided on the grounds of appeal advanced by the appellant as:
   1. Did the judge err in finding that as of 18 November 2021, Ms Muthu-Oosting had committed a recognised breach of the obligation of mutuality?
   2. Did the judge misdirect himself as to the proper construction of s 48(3)(e)(i) of the RTW Act?
   3. Did the judge misdirect himself as to the proper construction of s 48(4)(a) of the RTW Act?
   4. Did the judge err in law in finding that Ms Muthu-Oosting had not reasonably refused the administration of a drug?
2. On all four questions, we held that the judge did not err in law. As such the appellant was wholly unsuccessful.

1. The appellant argued that pursuant to s 106(1) of the RTW Act, she has a prima facie entitlement to the costs of her unsuccessful appeal. That entitlement being only subject to the qualifications set out at s 106(3). Section 106 is set out as below:

(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.

(a) the cost of representation by a legal practitioner or an officer or employee of an industrial association; and

(b) costs of a kind authorised by the regulations that were reasonably incurred.

(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.

(4) Subject to subsection (5), an award of costs to cover professional advice or assistance may, if the Tribunal considers appropriate, be made in favour of the person who provided the professional advice or assistance.

(5) An award of costs to cover the cost of representation by an officer or employee of an industrial association are payable to the industrial association.

(6) 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.

(7) If the amount of permanent impairment compensation is disputed by a worker and the amount the Tribunal awards is less than, or the same as, or less than 10% above, an amount offered by the relevant compensating authority to settle the matter before the matter proceeds to a hearing before the Tribunal, the worker is not entitled to costs under this section (and evidence of an offer made in the course of a compulsory conference or mediation is admissible (without the consent of all parties) in subsequent proceedings for the purpose of applying this provision).

(8) Section 57 of the South Australian Employment Tribunal Act 2014 does not apply to proceedings before the Tribunal under this Act.

1. As can be seen above, the Tribunal's discretion to either decline to make an order for costs or reduce any award of costs is only enlivened if the opinion has been formed that the party acted "unreasonably" or has acted "frivolously" or "vexatiously" in the bringing of, or in the conduct of, the proceedings. In these proceedings, although during oral addresses the respondent tilted at the suggestion that there was a degree of overlap between the various concepts, it was accepted that only the "unreasonably" criterion applied here, and that "frivolously" or "vexatious" preconditions were not called in aid. As such, the present inquiry is limited to s 106(3)(a) of the RTW Act.[5]
2. Also relevant to the issue of appeal costs, is s 26I of the South Australian Employment Tribunal Act 2014, which stipulates that:

An appeal from a decision of the Tribunal under the Return to Work Act 2014 (other than in the exercise of its criminal jurisdiction) will be limited to a question of law. (emphasis added)

1. Accordingly, appeals under the RTW Act - which this one was - must relate to "a question of law". Appeals against factual findings are restricted.
2. Three issues potentially arise in connection with the costs of the appeal. The first is whether costs should be certified fit for senior counsel. The second is whether time was wasted by the appellant during the appeal proceedings, including her late application to amend her Notice of Appeal and the subsequent adjournment of the appeal. The third is what costs order on appeal more generally should be made.
3. It is convenient for us to commence with the third issue.

1. During oral addresses, the respondent argued that the appellant's costs application should be assessed by dint of two subplacita of 106 being, 106(3)(a)(i) - in bringing the proceedings; and s 106(3)(a)(iii) - in failing to discontinue or settle the proceedings. In that regard the respondent contended that the appellant has acted unreasonably. And given such, it was the respondent's primary position that the appellant should be declined (s 106(3)(c)) her costs of the appeal completely. The respondent's alternative position was that the appellants costs should be reduced (s 106(3)(d)).
2. The appellant submitted that although she was unsuccessful on all four grounds of appeal, that nevertheless, those grounds all identified questions of law. It was further stressed that the appeal raised novel questions regarding s 48 of the RTW Act and that the submissions put by the appellant were "at least arguable" and that such submissions were "contentious, but ultimately unsuccessful arguments."[6]
3. Turning to what discussions took place between the parties regarding settlement, the appellant submitted that only the offers of settlement occurring after the judgment at first instance (19 April 2024) and before the appeal hearing (23 November 2024) could be relevant to the appeal costs issue.[7]
4. In one of his affidavits, Andrew Wright, lawyer for the appellant, explained that on 22 September 2023, an offer of settlement was put to the respondent. Later that day, the respondent rejected that offer, but counter-offered to pay the appellant's costs, if the appeal was withdrawn.[8] That counteroffer was not accepted, and the appeal proceeded.
5. It is evident from the affidavit evidence from Mr Wright, and from Sophie Carman, lawyer for the respondent, that no further settlement offers were put by either side after 22 September 2023 and before the delivery of our judgment on 19 April 2024.[9]
6. After judgment it is evident that the parties began discussions with regards to costs. In her email of 19 July 2024 Ms Carman stated that the appellant 'acted unreasonably in bringing the appeal to the Full Bench in light of the fact that there was clearly no error of law [by the first instance judge].' Also, that costs were opposed as the appellant had acted unreasonably in continuing the proceedings following the respondent's Calderbank[10] letter of 8 March 2023. Further, that the grounds of appeal as formulated - even after they had been amended - 'were doomed to fail.' Ms Carman went on to say that the quantum of the costs sought by the appellant were very high, and that she could not see how the Full Bench would endorse such an amount.[11]
7. On the appellant's understanding of Ms Carman's email of 19 July 2024, there were two grounds of opposition by the respondent to an award of costs to the appellant. Those being: first, that the appellant had acted unreasonably in bringing that appeal at all, because there was clearly no error of law (failure to identify any question(s) of law); and second, the appellant acted unreasonably in failing to settle the first instance proceedings (from March 2023), because had she done so, there would have been no appeal.[12]
8. The appellant submitted that whilst we dismissed all four grounds of her appeal, we did not make findings that such grounds failed to identify a question of law.[13]
9. Accepting the distinction between what will be a question of law and what will be a question of fact, the appellant suggested that even if her Ground of Appeal 1 was predominantly a factual argument, then the remedy was an order for reduced costs, not a denial of costs altogether.[14]
10. Speaking to the other grounds, the appellant contended that there was no established authority on Ground 2 (the proper construction of s 48(3)(e)(i) of the RTW Act), and that our judgment was the first such decision at appellate level. As for Grounds 3 (s 48(4)(a)) & 4 (reasonable refusal of the administration of a drug), the appellant also argued that there was no prior authority and that the grounds related to statutory construction, which was a question of law.[15]
11. Essentially, the appellant contended that her appeal involved novel questions, with no authority either way to guide the Full Bench. By reference to the Full Bench decision in Moretta v Return to Work SA (Bendigo and Adelaide Bank)[16], she submitted that the pursuit of a contentious, but ultimately unsuccessful argument, does not mean that she acted unreasonably. And in no sense could it be said that her appeal was always 'doomed to fail'.[17]
12. In similar vein, in oral submissions the appellant made the point that all unsuccessful appeals fail because no error of law was found; that did not mean that no question of law had been identified. What had occurred here, it was argued, was that the appellant failed because she was not able to demonstrate any error of law by the trial judge, but in her attempts to do so, she had raised arguable questions of law.[18]
13. The respondent for its part argued that there was no "right" to costs in proceedings under the RTW Act: The respondent is right about that. Section 106 provides an inchoate entitlement to costs, subject to the discretion of the Tribunal in establishing unreasonable, frivolous or vexatious conduct of, or in, the proceedings, on behalf of the party seeking a costs order.
14. Relying on what it said were 'relevant facts' the respondent contended that the appellant had acted unreasonably in bringing the appeal proceedings as: the Notice of Appeal, both in its original form, and as amended, lacked focus; and the grounds as set out paid insufficient regard to the need to identify a reviewable error, and a number of those grounds were misunderstood or misconceived.[19]
15. In oral submissions, the respondent took its argument further, suggesting that at no stage did the appellant's case get to first base and that that included our jurisdiction to hear the appeal. That the failure to identify a question of law, meant no jurisdiction and that no jurisdiction meant no arguable case.[20] Responding to that, the appellant countered by pointing out that we had not made any finding in our judgment that jurisdiction was wanting.[21]
16. Returning to the grounds of appeal, in our opinion Grounds 2 and 3, involving as they did matters of statutory construction, clearly involved questions of law. In respect of the issues raised, there were no decisive authorities and although ultimately, we ruled against that arguments put by the appellant, they were not fanciful or doomed to fail.
17. In contrast to this, Grounds 1 and 4 did not involve matters of statutory construction. For the purposes of the question of costs they invite consideration as to whether they genuinely involved questions of law.
18. In her amended Notice of Appeal, the appellant expressed the question of law to be determined with regards to Ground 1 in the following terms:

What is the proper operation of section 48(3)(g) of the Act, and in particular, where:

1. an injured worker who has returned to modified duties is subject to a supervening event unrelated to the work injury which causes that worker to be incapacitated for those modified duties; and

2. there is no evidence to suggest the supervening event has caused a total incapacity for work;

will those circumstances amount to a recognised breach of the obligation of mutuality for the purposes of section 48(3)(g) unless the worker can discharge an evidentiary onus to prove that there exists other duties that the worker is capable of working and that are available?

1. In developing this ground on appeal, the appellant put forward two propositions. The first was that a breach of mutuality involved a consideration of the labour market at large and not one particular job. The second was that that a supervening event said to constitute a breach of mutuality must cause a total incapacity for work. These submissions in turn required a consideration of the evidence around the issue of breach of mutuality and the findings made by then trial judge.
2. This in turn begs the question as to whether the appellant's challenge to the trial judge's conclusion as to a breach of mutuality genuinely involved a question of law.
3. Providing guidance on "questions of law", the Court of Appeal in Return to Work Corporation of South Australia v Wastell, recently said that despite the many previous attempts to emphasise the requirement for a question of law in a Notice of Appeal, the appellant in that case had failed to do so.[22] Moreover, that:

It is insufficient simply to complain in a notice of appeal that a decision-maker 'erred in law' in some respect. That does not identify a question of law.[23]

1. Citing the 2012 case of Wheeler v South Australia - a workers compensation case under the repealed Workers Rehabilitation and Compensation Act 1986 - the Court of Appeal set out the summation from White J, with whom Sulan and Nicholson JJ agreed, with regards to the similar appeals provision under that forerunner legislation:

In my respectful opinion, a ground of appeal in these terms contains some shortcomings. As noted earlier, s 86(1) of the WRC Act provides that an appeal lies to the Full Bench against a decision of a single presidential member on a question of law only. The appellate jurisdiction of the Full Bench of the Tribunal is accordingly limited to appeals of that kind. That being so, it is appropriate that notices of appeal identify the question of law sought to be agitated on appeal. That is necessary in order to give both the Tribunal and the worker proper notice of the matter to be argued and to allow them to consider whether the appellate jurisdiction of the Full Bench has been properly invoked.[24]

1. As would be understood, the same appellate restriction of a "question of law" only was present under the legislation preceding the current RTW Act.
2. After expressing how the relevant question should have been formulated, the Court of Appeal in Wastell said:

We can only continue to emphasise the importance of stating the question of law arising, rather than simply acknowledging that a question of law exists or reducing the complaint to one of 'error of law'.[25]

1. With regards to Ground 1 the appellant cited no authority that supported her contentions. The overwhelming weight of authority was against the propositions she put. And there are clear statements from the Supreme Court that a finding of mutuality involves an evaluative judgment determined by reference to the individual facts of the case.[26]
2. In our opinion, Ground 1, in reality invited us to simply review the facts found by the trial judge and the appellant acted unreasonably in arguing this ground.
3. Turning to Ground 4, in her amended Notice of Appeal, the appellant expressed the question of law to be determined with regards to that ground in the following terms:

What is the proper operation of section 48(4)(a) of the Act, and in particular:

1. as a matter of construction, does section 48(4)(a) of the Act apply to reasonable refusal of the administration of any drug, or only drugs that are intended to be administered in order to treat a work injury?

2. What is the test for determining whether a refusal to administer a drug is reasonable, and in particular:

3. is it permissible to consider the reasonableness of the Applicant's ongoing refusal to administer the drug after the date of determination in order to determine whether the refusal was reasonable as at the date of the determination?

4. if the reasons for refusing the administration of a drug include an asserted medical condition or allergy, is it necessary to prove that the worker had the condition as a matter of medicinal science, or is it necessary only to establish that the worker genuinely believed she had, or might have, the condition?

5. what is the standard of reasonableness to which a worker ought to be held, and what are the boundaries of the "area of decisional freedom" (see, eg, Minister for Immigration & Border Protection v Eden [2016] FCAFC 28) that is intended to be conferred on the worker by this section?

1. In developing this ground on appeal, the appellant submitted that the trial judge erred in finding that she had not reasonably refused the administration of a drug because he took into account information that came to light after her refusal and because he gave no weight to her wish for a referral to SACSIC[27] and further testing before considering having the vaccination.
2. These submissions overlooked the fact that the trial judge had expressed significant concerns about the appellant's reliability regarding the reasons why she refused to be vaccinated and that this was critical to his conclusion that her refusal was unreasonable. On appeal the respondent was correct in submitting that this was purely a factual matter which was immune from review on an appeal limited to a question of law. In our opinion, the appellant acted unreasonably in arguing this ground.
3. We now turn to consider whether the appellant's failure to settle the proceedings is a factor relevant to the question of costs (s.106(3)(a)(iii) RTW Act).
4. As the appellant understood it, the respondent was critical that she did not accept an offer of settlement made in March 2023, being just prior to the first instance hearing. Although unsuccessful at first instance, an agreed outcome was reached as to costs of those proceedings. In that regard, the offers to settle made in the first instance setting are of little or no utility in assessing any failure to settle the appeal proceedings. Essentially, the first instance proceedings are done and dusted, it is not in the interests of justice to revisit what happened and what was ultimately agreed between the parties there.
5. Accordingly, on the facts of this matter any criticism to settle the proceedings can only be made towards the events involving the appeal.
6. As above, the appeal was commenced on 19 May 2023 and on 22 September 2023, settlement negotiations ensued, with the respondent ultimately offering to pay the appellant's costs, if the appeal was withdrawn. Thereafter no further settlement discussions took place.
7. The respondent relied on Ms Carman's email of 19 July 2024. Whilst that email is in time after the commencement of the appeal, and as such potentially relevant to any failure to settle the appeal proceedings if offers were discussed, the email only references the appellant's apparent unreasonable actions in failing to settle the first instance proceedings following the Calderbank letter of 8 March 2023. The email was after our appeal judgment of 19 April 2024 and was a conversation about the costs thereon. The email was not an attempt to resolve the proceedings, that had been done by our judgment. As such, the email is of little or no assistance in resolving the present costs question.
8. For her part, the appellant stressed that the only relevant offer made to her was for her to 'walk away but to obtain [her] costs' and that such a circumstance was a long way away from other cases where generous pecuniary offers were put, but not accepted.[28]
9. As said above, whilst the appeal did unreasonably identify questions of fact for the Full Bench's consideration, contrary to s 26I of the SAET Act, questions of law were also properly raised. As such, we do not accept the respondent's contention that the appellant's ultimate failure on all grounds constitutes a failure to reasonably settle her appeal proceedings. As for the September 2023 offer to discontinue the appeal with the appellant's costs paid, we take that factor into consideration in our conclusion of the appeal costs issue.

1. We now turn to consider the issue the appeal proceedings were fit for senior counsel. In aid of a costs order, the appellant sought succour in the earlier certification by consent that it was fit for senior counsel. There were two aspects to the appellant's arguments. First, that although not completely determinative, that past consent certification was inconsistent with the submissions now advanced by the respondent, which were coloured by hindsight.
2. Second, that the respondent should not be permitted now - after the appeal judgment - to attempt to circumvent the earlier order that the appeal was fit for senior counsel. And as such, the appellant submitted that the nature of the appeal was such that warranted the involvement of senior and junior counsel and that the costs thereon should be appropriately assessed as such.[29]
3. The accepted facts of these proceedings are that in an Application for Directions dated 14 August 2023, the appellant sought an order that the appeal proceedings be certified fit for senior counsel. That application outlined the respondent's consent to such a certification. On 17 August 2023, the appeal proceedings were certified fit for senior counsel with the assistance of junior counsel.[30]
4. After our appeal judgment, when the issue of costs of the appeal was raised by the appellant, and opposed by the respondent, the latter took the view that even with the involvement of senior counsel (and junior counsel), the amended and recast appeal was still wholly unsuccessful. It argued those facts indicate that the appeal should not have been pursued in the first place. Or should have been discontinued at an earlier stage.[31]
5. Further, the respondent said that its earlier consent to the certification that the appeal was fit for senior counsel, should not be seen as a reflection that it considered there was merit in the appeal; at no stage, it was said, did the respondent ever resile from the proposition that the appeal had failed to identify a question of law.[32]
6. When considering the senior counsel issue, it is noted that when the certification order was made on 17 August 2023, it was done so with the respondent's consent. In providing that consent, the respondent was obviously mindful of s 106 of the RTW Act and that absence unreasonableness,[33] it would be liable for the appellant's fees for senior and junior counsel.
7. That said, the certification order did not guarantee that the appellant would get her costs come what may. Also, such an order did not quarantine the appellant from adverse costs orders on account of unreasonable[34] conduct.
8. At the appeal hearings of 25 September 2023 and 23 November 2023, both sides were represented by senior and junior counsel.
9. At no time prior to these costs proceedings - that is, before, during or after the appeal hearing - did the respondent either oppose the senior counsel certification or apply to revisit the earlier order due to changed circumstances.
10. Accordingly, we can see no reason to interfere with the earlier order now. The proof of the pudding will always be in the eating; although at one time a proceeding may be certified fit for senior counsel, the opinion of the Tribunal as to s 106(3), in the totality of the matter, is the paramount consideration.

Whether time was wasted during the appeal proceedings?

1. Next, we turn to consider the question of wasted time during the appeal and the costs of the late application to amend the Notice of Appeal and the consequential adjournment.
2. Dealing with the latter first, despite its earlier intention to do so, the respondent did not proceed with its argument that the appellant should pay its costs thrown away for the adjournment of the 25 September 2023 appeal hearing.[35] In similar vein, the appellant did not seek her costs of, or occasioned by, her application to amend and the subsequent order allowing such and adjourning the hearing. Having made that concession, the appellant submitted that she ought not to be disproportionally punished for one procedural backstep by having her entire costs disallowed.[36]
3. Given the positions now advocated for by the parties, the application to amend and the subsequent adjournment issue is essentially neutral, and as such little consideration needs to be given to that issue in the overall costs question.
4. The respondent was critical of the time taken by the appellant during the appeal hearing of 23 November 2023. In that regard, it submitted that it was the duty of a litigant to use the court's time and resources efficiently and wisely. In not doing that, the respondent contended, the appellant's submissions on 23 November were rather a verbatim recounting of her written submissions.[37]
5. Replying to that, the appellant conceded that whilst the procedural history of the appeal was regrettable, she was not seeking her costs for the application to amend and the subsequent adjournment. With regards to the hearing of 23 November 2024, it was argued that time was used wisely, with the matter taking only a few hours. Further, that any suggestion that she should have been more concise, was unrealistic given the complexity of the case.[38]
6. On the wasted court time issue, we note that the appellant was prepared to proceed to have the Full Bench determine to appeal costs on the papers. It was at the respondent's request that the hearing of 27 February 2025 was listed.[39] Notwithstanding the efforts of counsel, what was said there did not significantly advance the issues in question beyond what had already been expressed in the written documents.
7. Accordingly, whilst there has been some wasted time in the appeal and costs proceedings, the unnecessary verbiage put was nothing out of the ordinary for proceedings in SAET and was not in any way unreasonable. For the record, the appeal hearing on 23 November 2023 took some 2 hours and 50 minutes, such a time frame was expected and is usual in RTW Act appeal proceedings.

1. Finally, as in Ms Carman's email of 19 July 2024, the respondent continued to complain that the quantum of the appellant's sought costs was excessive. Of course, quantum is a separate question to whether there should be any entitlement to costs. Should there be such an entitlement, then quantum is a question for a taxation.

1. From the outset of our reasoning, we make it clear that the appeal proceedings before us were very much a standard type of appeal in SAET. Questions of law, questions of fact and the perhaps intermingling of both. Similarly, the Notice of Appeal as it became, was not a document which on its face was clearly and entirely objectionable. Written submissions and oral argument were required as is our usual practice. There was nothing inherently unreasonable in the way the appeal proceeded following the application to amend and the adjournment of September 2023.
2. That said however, some of the appellant's arguments were questions of fact dressed up as questions of law. She acted unreasonably in bringing those questions to the Full Bench. The appellant should have been more mindful of s 26I of the SAET Act and should have been more careful in how her arguments were crafted. Appellants who would seek an award of costs pursuant to s 106 of the RTW Act, would do well to not attempt to put a veneer of a question of law, on what are questions of fact.
3. We are mindful of community demands for economy and efficiency in the conduct of litigation and for the wise use of court resources. In that regard, the learned comments of Wilcox J in Commissioner of Australian Federal Police v. Razzi are worth repeating:

In these days of extensive court delays and high legal costs the courts should use all proper means to encourage parties to consider carefully what matters they will put in issue in their litigation. If parties come to realise that they will not necessarily recover the whole of their costs, even though they have unsuccessfully raised a discrete issue, they are likely better to consider whether the raising of that issue is a justifiable course to take.[40]

1. Although it may be the general proposition under s 106 of the RTW Act that an unsuccessful applicant would be entitled to an award of costs, that does not automatically translate into permission to pursue any argument, however speculative, on appeal or into an expectation that full costs will be awarded in all instances. Consistent with the main objectives of SAET, litigants are to be encouraged to carefully consider what grounds they will agitate on appeal, as the ways in which they do so will inform whether there has been any unreasonable action in the bringing of, and in the conduct of, the proceedings. Where unreasonable appeal arguments fail, litigants should not assume that full costs are there for the taking.
2. In this case, the appellant's reliance on Appeal Grounds 1 and 4 was an unnecessary extravagance; she acted unreasonably in bringing and pursuing such grounds.
3. Accordingly, whilst we cannot go so far as the respondent requests in declining to make an award of costs in the appellant's favour, we are resolved that a reduction in her awarded costs is reasonable, required and will do justice to the case at bar. In that regard, as is consistently the outcome with costs issues, we take a broadaxe approach. Also, in cases where there is a mixed outcome in proceedings, courts within their discretion regularly make an apportionment of costs. Again, a broadaxe approach is appropriate as '[m]athematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation.'[41]
4. Taking into account the fact that two of the appellant's grounds of appeal that were legitimately questions of law, and were substantive issues to resolve, in all the circumstances it is appropriate that the appellant should receive an award of her reasonable costs, but that such costs should be reduce by 30%, thereby entitling her to 70 % of her reasonable costs of the appeal, and so we would order.

[1] Muthu-Oosting v Return to Work Corporation of South Australia [2024] SAET 24 [2].

[2] Ibid [3]-[4]; Transcript 25/09/23 02.12-31 & 02.33-03.26.

[6] Appellant's Outline of Submissions on Costs 4 October 2024 [12]-[22].

[8] Exhibit A2 affidavit of Andrew Wright 8 October 2024 [5]-[6].

[9] Exhibit A1 affidavit of Andrew Wright 14 August 2024; Exhibit A2 affidavit of Andrew Wright 8 October 2024; Exhibit R1 affidavit of Sophie Carman 2 September 2024 [including as an annexure affidavit of Sophie Carman 16 July 2023].

[10] Calderbank v Calderbank [1975] 3 All ER 333.

[11] Exhibit R1 affidavit of Sophie Carman 2 September 2024 [8], annexure SDC4 email 19 July 2024.

[12] Appellant Submissions [5]-[6].

[13] Appellant Submissions [12]-[13].

[16] [2017] SAET 139.

[19] Respondent's Written Submissions18 October 2024 [9].

[22] Return to Work Corporation of South Australia v Wastell [2024] SASCA 98 [5].

[24] Wastell [6]; Wheeler v South Australia (2012) 114 SASR 111 [42].

[26] See, for example: Kelvinator v Jezior [1988] SASC 1156; (1988) 49 SASR 592 and Department for Child Protection v Morris [2022] SASCA 131.

[27] South Australia COVID-19 Specialist Immunisation Clinic.

[29] Appellant Submissions [36]-[38].

[30] SAET Appeal Orders 17 August 2023.

[33] Or, frivolous or vexatious conduct, s 106(3)(b).

[35] Muthu-Oosting v Return to Work Corporation of South Australia [2024] SAET 24 [5]; Tr 16.38-18.15.

[36] Application for Directions 30 August 2024 [1]; Appellant's Reply Submissions on Costs 29 October 2024 [14].

[40] Commissioner of Australian Federal Police v Razzi [1991] FCA 267; (1991) 101 ALR 425 at 430.

[41] Dodds Family Investments Pty Limited (Formerly Solar Tint Pty Limited) and SWD Group Pty Limited (Trading As Solar Tint) v Lane Industries Pty Limited; Edwards's Auto Accessories Pty Limited and George Edwards [1993] FCA 259, Gummow, French and Hill JJ [29].