Return to Work Act 2014 (SA)

HEARING DATE: On the papers dated 23 February 2026 and

DECISION OF: His Honour Deputy President Judge Rossi

The issue raised is whether an adverse costs order should be made against the solicitors for the applicant following repeated failure to comply with orders and directions of the Tribunal - HELD - The solicitors for the applicant have been, relevantly, a "professional representative" of the applicant as defined in s 107(1) of the Return to Work Act 2014 (SA) (RTW Act) - HELD - As professional representative, the solicitors caused costs to be incurred without reasonable cause and for costs to be wasted by undue delay and default - HELD - In such circumstances the Tribunal is to exercise a discretion as to whether to make an adverse costs order - HELD - In this case, the repeated failure to comply with orders and directions of the Tribunal, the nature of those orders and the failure, within the period, to make application for an extension of time and to explain adequately the reason for non-compliance, made it appropriate for an adverse costs order to be made - Consideration of the legal principles to be applied when considering if an adverse costs order should be made pursuant to s 107 of the RTW Act.

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Northern Territory of Australia v Sangare [2019] HCA 25

Malthouse v Return to Work SA (Teakle Contracting Pty Ltd) (No 2) [ 2017] SAET 14

Perre v Local Government Association Workers Compensation Scheme (city of Unley) (No 2) [2017] SAET 43

Pritchard v Local Government Association Workers Compensation Scheme (No 3) [2020] SAET 86

Rosaria Sara Di Sotto v WorkCover Corporation/MMI Workers Compensation (SA) Pty Ltd (AngliCare South Australia) [1999] SAWCT 92

Atie v Return to Work Corporation of South Australia (No. 2) [2021] SAET 104

Xie v Return to Work Corporation of South Australia [2026] SAET 31

Reimers v Department for Education [2022] SAET 64

St Paul's College Ltd v Allan [2026] NSWCA 22

1. Subsection 106(1) of the Return to Work Act 2014 (SA) (RTW Act) provides that a party (other than the relevant compensating authority) is entitled, subject to that Part and to the limits prescribed by regulations, to an award against the relevant compensating authority for the party's reasonable costs. There are other provisions which may modify the operation of s 106(1). The issue raised in this case is whether there should be a departure from the usual order as to the costs of representation of the applicant Kym Peek (Mr Peek), and whether an adverse order should be made against his solicitors in circumstances of repeated failure to comply with orders and directions of the Tribunal.

1. The proceeding in ET-25-00863 is an application by Mr Peek to review a decision of the respondent Return to Work Corporation of South Australia (the Corporation) dated 4 February 2025, where the Corporation determined that Mr Peek has no entitlement to lump sum compensation as a result of a low back injury sustained on 10 October 1989. That decision followed a permanent impairment assessment report of Dr D'Onise which provided a 0% whole person impairment (WPI) assessment.
2. The proceeding in ET-25-00864 is an application by Mr Peek to review a decision of the Corporation also dated 4 February 2025 where the Corporation determined that Mr Peek be entitled to compensation on the basis of a 37% WPI for other work-related injury to multiple body parts and systems. That followed a series of assessments and the provision of multiple permanent impairment assessment reports.
3. The two proceedings have been advanced together in the Tribunal. At all material times both parties have been legally represented. The matters failed to resolve at the compulsory conciliation conference and they were referred for hearing and determination by Commissioner Willson on 29 July 2025. The first directions hearing before me took place on 8 August 2025. The following relevant orders were made:
   1. Each party is to file and serve a list of documents by 29 August 2025.
   2. The applicant is to file and serve a Statement of Facts, Issues and Contentions by 19 September 2025.
   3. The respondent is to file and serve a Statement of Facts, Issues and Contentions by 10 October 2025.

1. The matter is listed for a judicial settlement conference commencing at 10:15 am on 22 October 2025.

...

(emphasis in original)

1. The Corporation duly filed its list of documents on 28 August 2025. Mr Peek failed to comply with either order 1 or 2 of the orders made on 8 August 2025 by the dates stated in those orders. No extension of time was sought by Mr Peek and no explanation was given for the non-compliance. In those circumstances, by e-mail transmission dated 8 October 2025, the Corporation made application to be relieved of its obligation to comply with order 3 of the orders made on 8 August 2025. On 8 October 2025, the parties were informed by my chambers that they were to attend a directions hearing before me on 10 October 2025. On 9 October 2025, Mr Peek filed a list of documents but the Statement of Facts, Issues and Contentions remained outstanding. On 10 October 2025, the following relevant orders were made:
   1. The time for the applicant to file and serve his Statement of Facts, Issues and Contentions is extended to 7 November 2025.
   2. The time for the respondent to file and serve its Statement of Facts, Issues and Contentions is extended to 5 December 2025.
   3. In the circumstances, orders 4, 5 and 6 of the orders made on 8 August 2025 are vacated.

1. Mr Peek failed to file and serve his Statement of Facts, Issues and Contentions by 7 November 2025 as ordered on 10 October 2025. No explanation was given for the failure to comply with that order and no application for a further extension of time was made.
2. By e-mail transmission dated 10 December 2025, the Corporation's solicitors informed my chambers that the Corporation had been unable to comply with order 2 of the orders made on 10 October 2025 because of Mr Peek's failure to comply with order 1. The parties were directed to attend a directions hearing on 11 December 2025.
3. At the directions hearing on 11 December 2025 the following orders were made:
   1. The time for the applicant to file and serve his Statement of Facts, Issues and Contentions is extended to 16 January 2026
   2. The time for the respondent to file and serve its Statement of Facts, Issues and Contentions is extended to 13 February 2026.
4. In addition to the orders made, the following notation was made:

A significant factor in the delay of the applicant filing and serving his Statement of Facts, Issues and Contentions has been an attempt by the applicant to seek to narrow the issues in dispute. However, there has been considerable delay in the applicant's solicitor forwarding relevant correspondence to the respondent's solicitor so those matters could be addressed. In the circumstances, the costs of today are reserved and the applicant's solicitor is provided with notice that the Tribunal will consider whether an order should be made that he pay the respondent's costs of today's attendance, in any event. The applicant will be heard in relation to the question of costs at the next directions hearing which will take place on 17 February 2026 at 9:40am.[1]

(emphasis in original)

1. The Court had not been provided at the time with any correspondence relating to the attempt to narrow the issues referred to by counsel for Mr Peek. The notation records the position of Mr Peek at the directions hearing from submissions advanced by his counsel and then records my observation in relation to that position. Mr Peek failed to comply with order 1 of the orders made on 11 December 2025. No application for a further extension of time was made, and no explanation was given for the failure to comply with the order. The failure to comply with the order was brought to the attention of my chambers by the Corporation's solicitor by e-mail transmission on 27 January 2025. The Corporation requested an order that it be excused from complying with order 2 of the orders made on 11 December 2025.
2. The proceedings were listed for a directions hearing on 2 February 2026. On that day and just prior to the directions hearing, Mr Peek filed a Statement of Facts, Issues and Contentions in ET-25-00864, but only a Statement of Issues and Contentions in ET-25-00863. As the documents had only been filed and served electronically upon the Corporation's solicitors just prior to the directions hearing, the solicitor who appeared for the Corporation was unable to address the Court that morning in relation to the content of the documents. In the record of the orders made that day, the history of non-compliance set out above, was referred to. Order 1 then stated:

In the circumstances, the Tribunal is to consider whether the applicant's solicitor has caused costs to have been incurred without reasonable cause or whether the applicants' solicitor has caused costs by undue delay or by other default under s 107(2) of the Return to Work Act 2014. The question arises as to whether an order for costs should be made under s 107(3). The applicant's solicitor has requested 21 days to advance submissions and to provide affidavit evidence if so advised. Such affidavit evidence and submissions are to be filed and served by 23 February 2026. The respondent is to file and serve any affidavit evidence and its submissions by 10 March 2026.

(emphasis in original)

1. The Tribunal has since been provided with an affidavit of Mr Peek's solicitor Mr Chris Katsoulas that was sworn on 23 February 2026 and the Corporation has provided an affidavit of its solicitor Alexandra Anne Woodland affirmed on 10 March 2026. The affidavits have been taken as read and to the extent they address submissions, those submissions have been considered. Neither party filed separate written submissions.

1. In his affidavit, Mr Katsoulas acknowledged that there were delays in complying with the orders of the Court by 7 November 202[5].[2] He stated that the delays were contributed to by advice of counsel that attempts be made to narrow the scope of the issues. Mr Katsoulas deposed to his attempt to do so by e-mail to the Corporation's solicitor sent on 10 December 202[5].[3] He deposed to Mr Peek's travel overseas from early December 2025 until 11 January 2026 as being a further factor that contributed to the delay. Mr Katsoulas then referred to having received two draft Statements of Facts, Issues and Contentions from counsel which were accompanied with advice that further instructions be obtained from Mr Peek before the documents were filed.
2. In her affidavit, Ms Woodland addressed the factor of seeking to narrow the scope of the issues in dispute between the parties. Annexed to her affidavit was a copy of a letter from Mr Katsoulas to her dated 28 November 2025. Mr Katsoulas sought a response to at least 16 questions raised in that letter and, given the date of the letter, curiously contained the following:

Given that we are under order to file the Worker's SOFIC by Friday 7 November 2025 we would be grateful if you could respond to this letter by close of business on Friday 31 October 2025.

(emphasis in original)

1. Ms Woodland immediately replied by e-mail transmission pointing out that both dates had long since passed. She asked Mr Katsoulas to withdraw his correspondence. Mr Katsoulas then replied that the error in the date was due to the time that it took to have the letter settled. The letter dated 28th November 2025 was then reissued by Mr Katsoulas without reference to a deadline for a response. The explanation by the solicitor is not consistent with the submissions of counsel for Mr Peek referred to at paragraphs 9 and 10 above. It is also not consistent with the dates in the settled letter. They indicate counsel settled the letter some time prior to 31 October 2025 and it was not sent to Ms Woodland until 28 November 2025.

1. Section 106 of the RTW Act addresses the costs of representation. It provides:

(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.

(2) Costs may only be awarded to cover -

(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 -

(a) has acted unreasonably -

(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. Section 107 of the RTW Act addresses the costs liability of representatives of parties. It provides:

professional representative means a legal practitioner or other person who has been engaged or appointed to represent a party to proceedings before the Tribunal (whether personally or through an employee or agent).

(2) If a professional representative acting for a party to proceedings before the Tribunal under this Part (whether personally or through an employee or agent) has caused costs -

(a) to be incurred improperly or without reasonable cause; or

(b) to be wasted by undue delay or negligence or by any other misconduct or default,

the Tribunal may make an order as specified in subsection (3).

(3) The Tribunal may order -

(a) that all or any of the costs between the professional representative and his or her client be disallowed or that the professional representative repay to his or her client the whole or part of any money paid on account of costs;

(b) that the professional representative pay to his or her client all or any of the costs which his or her client has been ordered to pay to any party;

(c) that the professional representative pay all or any of the costs of any party other than his or her client.

(4) Without limiting subsection (2), a professional representative is in default for the purposes of that subsection if any proceedings cannot conveniently be heard or proceed, or fail or are adjourned without any useful progress being made, because the professional representative failed to -

(a) attend in person or by a proper representative; or

(b) file any document which ought to have been filed; or

(c) lodge or deliver any document for the use of the Tribunal which ought to have been lodged or delivered; or

(d) be prepared with any proper evidence or account; or

(e) otherwise proceed.

(5) The Tribunal may not make an order against a professional representative under subsection (3) unless the Tribunal has informed the professional representative of the nature of the order proposed and allowed the professional representative a reasonable opportunity to make representations, and call evidence, in relation to the matter.

(6) The Tribunal may order that notice of any proceedings or order against a professional representative under this section be given to the client in such manner as the Tribunal directs.

(7) The Tribunal's power to make an order under subsection (3) is exercisable by -

(a) A presidential member of the Tribunal; or

(b) another member of the Tribunal who is authorised by a presidential member of the Tribunal to make the particular order.

Legal principles relating to s 106 and s 107 of the RTW Act

1. The power to award costs is a creature of statute.[4]
2. In civil courts the general costs provision typically provides the court with a wide discretion in formulating the appropriate order as to costs. It has been held, however, that the discretion conferred must be exercised judicially and in accordance with principles that have been formulated to guide the exercise of that discretion. The High Court in Sangare stated that the formulation of such principles does not fetter the discretion but rather avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power.[5]
3. In civil courts, one of those legal principles is that costs will generally follow the event. Where such courts have been empowered either by statute or by a rule of court to make an adverse costs order against a legal practitioner, the terms of the provision in the context of the usual costs order, having regard to any relevant policy consideration identified, will determine the correct construction of the provision.
4. Here, applying the principles of statutory construction, the text of s 107, in the context of other provisions including s 106, and any relevant policy consideration, will determine the correct construction of s 107.
5. By its text, s 107 is directed to particular circumstances of a professional representative acting for a party to proceedings before the Tribunal under Part 6 to Division 5 of the RTW Act causing costs to be incurred improperly or without reasonable cause or to be wasted by undue delay, negligence or any other misconduct or default.
6. In Malthouse v Return to Work SA (Teakle Contracting Pty Ltd) (No 2)[6] Gilchrist DPJ referred to s 106 of the RTW Act as implementing "a more benevolent costs regime".[7] His Honour was referring to the entitlement of a party ordinarily to recover costs not being conditional upon a successful outcome.
7. The interrelationship between s 106 and s 107 was addressed in Pritchard v Local Government Association Workers Compensation Scheme (No 3).[8] By way of summary:
   1. Ordinarily, a party to the proceedings will be entitled to recover the costs of the proceedings.[9]
   2. Subsection 106(3) of the RTW Act sets out circumstances where actions by a party to the proceedings may result in a different costs order being made. This is in circumstances inter alia of a worker acting unreasonably in bringing or in the conduct of the proceedings.[10]
   3. Section 107 of the RTW Act empowers the Tribunal, inter alia, to make orders disallowing, in particular circumstances, all or any of the costs between the professional representative and his or her client.[11]
   4. Sections 106 and 107 of the RTW Act are to be construed together. A party's entitlement to claim costs from a compensating authority pursuant to s 106(1) is subject to the party having a liability to pay those costs to the professional representative. If an order is made disallowing a professional representative's costs pursuant to s 107 of the RTW Act, then the party cannot have an entitlement to recover those costs from a compensating authority pursuant to s 106.[12]
   5. The term 'reasonable cause', as it appears in s 107(2) of the RTW Act, is to be given its ordinary every day meaning and an exercise of judgment is involved in determining whether there is a sufficient justification or explanation for incurring the relevant costs.[13]
8. Subsection 107(3) commences with the phrase "The Tribunal may order- ". Such a phrase, in a statute, may be empowering and directory as to the exercise of the power or it may be empowering and give rise to a discretion. A similar phrase is found in subsection 106(3) of the RTW Act. There, the Tribunal has held that the power conferred is discretionary.[14] Subsection 107(3) should be construed in the same way.
9. 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).
10. 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.
11. 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.
12. 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.

The application of the provisions and the legal principles in this case

1. As recently observed by the President, compliance with orders made by this Tribunal is not optional.[15] The main objectives of the Tribunal set out in s 8 of the South Australian Employment Tribunal Act 2014 (SAET Act) include an objective to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome.[16] The South Australian Employment Tribunal Rules 2024 (the SAET Rules) also contain relevant rules of the Tribunal. Rule 4 addresses the overriding purpose of the SAET Rules. Sub-rule 4(1) provides that the overriding purpose is to facilitate the objectives of the Tribunal and in particular achieve the just, quick and cost effective resolution of the real issues in the proceedings. Sub-rule 4(2) provides that the Tribunal must give effect to the overriding purpose when interpreting any rule. Rule 5 addresses overarching obligations. It provides in sub-rule 5(1)(g), for a party or a person appearing before the Tribunal to take reasonable endeavours to narrow the scope of a disputed issue by agreement but this is to be applied together with sub-rule 5(1)(h) which requires a party or person appearing before the Tribunal to comply with the SAET Rules and orders of the Tribunal. Rule 51 empowers the Tribunal to make general directions including those made in this case.
2. At a first directions hearing following referral for hearing and determination, ordinarily a timetable will be set for steps to be undertaken by the parties in order to have the matter ready for trial. That timetable will take into account the overriding purpose of the SAET Rules as expressed in r 4(1) and the major objective set out in s 8(c) of the SAET Act. For a variety of reasons, it may be appropriate to vary the initial timetable and to extend the time for steps to be undertaken. In that regard, one of the major objectives of the Tribunal is to be flexible in the way in which it conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.[17] However, that variation may only occur by order of the Tribunal. It may not be altered solely on the basis of advice received by a party from counsel or by consent of the parties to the proceedings.
3. It is to be stated that on the clearest terms, in the circumstances of this case, that an advice of counsel inconsistent with orders made by the Tribunal does relieve a party from the obligation to comply with an order made. That party may make application for an order to be set aside or varied and it is then for the Tribunal to determine the appropriate order in the circumstances. For the reasons that follow, whilst I accept Mr Peek's counsel was genuinely motivated to narrow the issues in dispute, if Mr Peek had promptly made application to set aside the orders made on 8 August 2025 to explore the matters raised in the letter of 28 November 2025, the application would have been refused.
4. In general, in the RTW Act jurisdiction of the Tribunal, circumstances may be evolving when orders and directions are made. Further issues may arise and there may be other proceedings that should be heard and determined at the same time.
5. If circumstances arise where a party considers there is good reason to extend time to comply with an order made by the Tribunal or that there is good reason to vacate that order, then an application should be made promptly by that party seeking the appropriate order. In many cases that application may be made informally by email to the chambers of the Tribunal Member presiding over the matter or, during a compulsory conciliation conference phase, by email directed to the Commissioner. Where a party is legally represented then as soon as the party's solicitor becomes aware of those circumstances, that solicitor should bring the appropriate application on behalf of the party to the proceeding. In this case, there was not only a failure, but a repeated failure, by Mr Peek's solicitor to do so. On each occasion, no explanation was given at the time for the failure to comply with the order, including the subsequent orders extending time. Nor did Mr Peek's solicitor make application for an extension of time until the matter was raised by the Corporation's solicitor and, at the initiative of the Tribunal, the matter was listed for a further directions hearing. Put another way, the repeated failure of the solicitor for Mr Peek to seek a variation of the timetable initially set, and subsequently amended, was notwithstanding the repeated example of the solicitor for the Corporation of the correct and well established practice and procedure. Mr Peek's solicitor is experienced in this jurisdiction.
6. There is another fundamental difficulty with the purported reliance upon the letter from Mr Peek's solicitor to the Corporation's solicitor dated 28 November 2025 for not complying with orders made. The letter raises at least sixteen questions for the Corporation to address. Whilst they are referred to as "positive contentions", the questions seek an admission in relation to what appear to be material facts in Mr Peek's case. The letter suggests that admissions would avoid Mr Peek, in his Statement of Facts, Issues and Contentions, going into "excessive historical detail".
7. The starting point, in a consideration of this position, is that no Statement of Facts, Issues and Contentions should contain excessive historical detail. It is appropriate to make some brief observations in relation to the function of Statements of Facts, Issues and Contentions. In Reimers v Department for Education[18] I observed that irrespective of whether a Statement of Facts, Issues and Contentions in a RTW Act proceeding is to be treated as a formal pleading or not, a party may be bound by the content of such a document if, to do otherwise, would deny another party to the proceedings, procedural fairness.[19] I then stated:

It is procedural fairness that is the dominant consideration. In modern litigation, if properly undertaken in accordance with the objects of the Rules of Court, there may not be a substantial difference between a pleadings based jurisdiction and the jurisdiction that utilises Statements of Facts, Issues and Contentions. That is because of the modern emphasis upon the disclosure of the case for each party pre-trial in various ways.

In Banque Commerciale SA (In Liq) v Akhil Holdings Ltd Mason CJ and Gaudron J addressed the function of pleadings:

The function of pleadings is to state with sufficient clarity a case that must be met: Gould and Birback and Bacon v Mount Oxide Mines (in Liquidation) [1916] HCA 81; (1916) 22 CLR 490, per Isaacs and Rich JJ. at p 517. In this way pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.

Recently, this Court observed that the principles emerging from that case are to be applied in a practical and robust manner having regard to the circumstances of the case.

In this court, in relation to disputed claims under the RTW Act, the evidence in chief of witnesses is provided in a documentary form in advance of trial. Expert evidence in chief is similarly required to be provided in the documentary form in advance of trial. Other documents to be relied upon at trial are typically incorporated within a Trial Book and is exchanged between the parties prior to the commencement of the trial. The contents of these documents are relevant to a consideration as to whether a party is exposed to a procedural unfairness if another party departs, at trial, from the content of a Statement of Issues and Contentions.

However, ordinarily, a party is entitled to assume that a Statement of Issues and Contentions accurately and comprehensively sets out the case of the party that has prepared the document. A possible alternative case buried in a mass of documents will not prevent a Court from finding procedural unfairness.[20]

1. In this case, the parties were directed to file and serve a Statement of Facts, Issues and Contentions. In such a case, the facts to be set out, as in the case of a Statement of Claim, are the material facts and not the evidence by which those facts are to be proved. The setting out of material facts can be to an injured worker's strategic advantage, as the setting out of those facts operates as a form of notice to admit facts.[21]
2. In this case, the facts underpinning the 16 questions raised by Mr Peek in his solicitor's letter of 28 November 2025, could have been set as material facts in his Statement of Facts, Issues and Contentions. The Corporation would then have been required to address those facts, clearly, in its responding Statement of Facts, Issues and Contentions.
3. Whilst, in general, parties are encouraged to seek to reduce the issues in dispute, in this case the relevant letter from Mr Katsoulas to Ms Woodland was not sent until 28 November 2025. By that time there had already been a failure to comply with the orders made on 8 August 2025 and 10 October 2025 relating to the filing of Mr Peek's Statements of Facts, Issues and Contentions. Seeking to narrow the issues in dispute was not raised by counsel for Mr Peek until the directions hearing of 11 December 2025. As recorded in the notation that day, there had already been considerable delay by that time. At no time did Mr Peek make application for an order that the Corporation respond to Mr Katsoulas' letter dated 28 November 2025 before being required to comply with the order of the Tribunal to file and serve his Statements of Facts Issues and Contentions.
4. Mr Peek's travel overseas from early December 2025 until 11 January 2026 could not be an explanation for the repeated failure to comply with the earlier orders of the Tribunal. There was not a satisfactory explanation in the affidavit of Mr Katsoulas as to how that travel overseas impeded the ability to file and serve the Statements of Facts, Issues and Contentions thereafter.
5. To the extent Mr Katsoulas referred to time associated with counsel settling documents, I am not satisfied that provides a satisfactory explanation for the repeated failures by Mr Katsoulas, as solicitor, to comply with orders of the Tribunal over a number of months. The initial direction was that the Statements of Facts, Issues and contentions be filed and served by 19 September 2025, and that did not occur until 2 February 2026. Mr Katsoulas did not disclose in his affidavit the detail of when the advice was first received from counsel, when the letter dated 28 November 2025 was drafted, by whom it was drafted, whether counsel advised steps to be undertaken by the solicitor to enable the letter to be settled, or when it was settled.[22] I do not find any delay on the part of counsel in the settling of the letter. I have also taken into account the oral submissions of counsel at the directions hearings. I find that at all times the delay was that of the solicitor. The time initially allowed was 21 days. The delay in compliance was substantial. I have set out earlier in these reasons the further attendances and the exchanges between all the parties and between the Corporation's solicitor and my chambers. They are indicative of the costs under consideration.
6. The only reference by Mr Katsoulas, in his affidavit, to the actions of Mr Peek as being relevant to the Tribunal's consideration of the appropriate costs order to be made, is the reference to his overseas travel. I have already found that cannot explain the failure to comply with the earlier orders of the Tribunal, nor did the affidavit of Mr Katsoulas satisfactorily explain the instructions required of Mr Peek whilst he was overseas. In all the circumstances I find that CLK Lawyers have acted as professional representative for Mr Peek in the proceedings and, in acting for Mr Peek in the proceedings before the Tribunal, have caused costs to have been incurred without reasonable cause and that those costs were also wasted by undue delay and default within the ambit of s 107(2) of the RTW Act.
7. Having made the finding of circumstances within the ambit of s 107(2), the Tribunal is to consider whether an order should be made under s 107(3) of the RTW Act. The power conferred by s 107(3) is discretionary. If the Tribunal is satisfied that the discretion should be exercised and an adverse costs order made against a professional representative, the sub-section does not refer to a requirement of an application by another party for the Tribunal to consider an order under s 107(3)(b) or (c).
8. Mr Peek should not have a liability to pay any legal fees for his representation associated with the attendances at the Tribunal on 8 August 2025, 10 October 2025, 11 December 2025 and 2 February 2026. If any such costs have already been paid by Mr Peek to CLK Lawyers then they are to be repaid to him by CLK lawyers.
9. In the circumstances of the repeated failure to comply with orders of the Tribunal, over a number of months and without having taken steps to provide a prompt explanation for the non-compliance or to seek an extension of time I find the appropriate order as to costs is that CLK Lawyers not recover their costs and that they pay the reasonable costs of representation of the Corporation associated with the directions hearings that occurred on 8 August 2025, 10 October 2025, 11 December 2025 and 2 February 2026. The costs are to be adjudicated by the Tribunal in default of agreement.
10. The associated costs would include the correspondence from Ms Woodland to the Tribunal relating to the non-compliance with orders of the Tribunal, the reports likely to have been made to the Corporation by its solicitors following each attendance at a directions hearing, and the obtaining of instructions in relation to the ongoing defaults. It would also include an appropriate fee for the perusal of these reasons for decision and a letter to the Corporation.
11. The two proceedings are ongoing. It is important that there be no conflation of the costs that are the subject of this application with other costs of the proceedings. The orders will include a timetable for either agreement or adjudication of costs.

1. In the proceedings in case numbers ET-25-00863 and ET-25-00864 CLK Lawyers have been the professional representative of the applicant, Kym Peek, for the purposes of s 107 of the Return to Work Act 2014 (SA) (the RTW Act).
2. CLK Lawyers have caused costs to be incurred without reasonable cause and have caused costs to be wasted by undue delay and default associated with attendances at the Tribunal on 8 August 2025, 10 October 2025, 11 December 2025 and 2 February 2026 and by not complying with orders and directions made by the Tribunal on 8 August 2025, 10 October 2025 and 11 December 2025.

1. All of the costs including counsel fees between CLK Lawyers and the applicant, Kym Peek, associated with the attendances at the Tribunal on 8 August 2025, 10 October 2025, 11 December 2025 and 2 February 2026 are disallowed and to the extent of any payment already having been made by Mr Kym Peek to CLK Lawyers associated with those attendances then it is ordered that CLK Lawyers repay to Mr Kym Peek the whole of such money paid on account of costs.
2. CLK Lawyers are not entitled to recover any of their costs including counsel fees associated with attendances at the Tribunal on 8 August 2025, 10 October 2025, 11 December 2025 and 2 February 2026 and it is hereby ordered that CLK Lawyers pay all of the reasonable costs of the Return to Work Corporation of South Australia associated with its representation and relating to the attendances at the Tribunal on those dates.
3. The costs to be paid by CLK Lawyers to the Return to Work Corporation of South Australia are to be adjudicated by the Tribunal in default of agreement.
4. The Return to Work Corporation of South Australia is to provide to CLK Lawyers particulars of the amount of costs claimed, including work in progress entries, by 21 April 2026.
5. CLK Lawyers are to respond in writing to the claim for costs by 12 May 2026.
6. CLK Lawyers and the Corporation are to attend a directions hearing on 28 May 2026 at 9:50am where a timetable for an adjudication of costs will be set if the quantum of costs is not agreed by the parties by that date.
7. The Registrar is to provide a copy of the Reasons for Decision and the Declarations and Orders made to Mr Kym Peek.

[1] No order had been previously made as to costs relating to the earlier attendances at directions hearings on 8 August 2025 and 10 October 2025. Matters relating to the costs of those attendances were addressed in the affidavit of Mr Katsoulas and Mr Woodland and are addressed in these reasons.

[2] In his affidavit, Mr Katsoulas erroneously referred to a date of 7 November 2026.

[3] In his affidavit, Mr Katsoulas erroneously referred to a date of 10 December 2026. Ms Woodland annexed to her affidavit a copy of the letter and it is dated 28 November 2025. She deposed to having received the letter on 28 November 2025.

[4] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 557; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 85-86, [33]- [34], 120 [34]; Northern Territory of Australia v Sangare [2019] HCA 25 at [12] (Sangare).

[6] [2017] SAET 14.

[7] Ibid [7], cited with approval by Calligeros DPJ in Perre v Local Government Association Workers Compensation Scheme (City of Unley) (No 2) [2017] SAET 43, [28].

[8] [2020] SAET 86.

[14] See for example, Rosaria Sara Di Sotto v WorkCover Corporation/MMI Workers Compensation (SA) Pty Ltd (AngliCare South Australia) [1999] SAWCT 92 and Atie v Return to Work Corporation of South Australia (No. 2) [2021] SAET 104.

[15] Xie v Return to Work Corporation of South Australia [2026] SAET 31 [50] (Dolphin PJ).

[18] [2022] SAET 64.

[21] See St Paul's College Ltd v Allan [2026] NSWCA 22 [31] (Kirk JA, Payne JA and Price AJA agreeing).

[22] In paragraph 9 of his affidavit Mr Katsoulas refers to having received two draft Statements of Facts, Issues and Contentions from counsel on 21 January 2026, which was associated with advice to obtain further instructions before filing and serving the documents.