JURISDICTION: South Australian Employment Court - Return to Work Act 2014 - Costs

HEARING DATE: Written submissions received 26 September 2025, 7 October 2025, 20 October 2025, 24 October 2025

JUDGMENT OF: His Honour Deputy President Judge Calligeros

Costs - The employer seeks costs of an application to dismiss or strike out this proceeding - The application was unsuccessful and the compensating authority seeks an order that the employer pay the applicant administrator of the estate of a deceased worker's costs of the application - HELD: It was unreasonable to bring the application in circumstances where there was a genuine factual issue that needed to proceed to evidence and the compensating authority correctly identified that the application would fail and advised the employer of that - After the application was dismissed the employer consented to orders which accepted the claim in dispute in the proceeding - The employer is to pay the applicant's costs and the compensating authority is to bear its own costs.

Rita Sargeant as Administrator of the Estate of Emily Caridi Deceased v Return to Work Corporation of South Australia and ALDI Stores (A Limited Partnership) [2025] SAET 81

Cacas and Anor v Megameg and Anor (No 2) [2019] SADC 14

Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251

Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27

Agar v Hyde [2000] HCA 41

McBride v Teys Australia Pty Ltd [2016] SAET 78

Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

Durber v Arnott's Biscuits Limited [2012] SAWCT 9

Baygol Pty Ltd v Foamex Polystyrene Pty Ltd [2005] FCA 1089

Aljade Development and Construction Sdn Bhd v Oversea-Chinese Banking Corporation Ltd [2004] VSC 351

Calderbank v Calderbank [1975] 3 All ER 333

Hearing Matters v GM Holden Ltd [2013] SAWCT 10

Iplex Pipelines Australia Pty Ltd v WorkCover Corporation [2007] SAWCT 48

1. This decision concerns a dispute in relation to the costs of an application to dismiss or strike out this proceeding (Application) brought by the other party, ALDI Stores (Aldi). The applicant, Rita Sargeant is the administrator of the estate of her deceased daughter, Emily Caridi. Before her death, Ms Caridi disputed the rejection of a claim that she had made for a mental injury she claimed to have arisen from her employment with Aldi. Subsequently, Ms Sargeant brought a claim herself which seeks compensation for the death of Ms Caridi.
2. The Application concerns the first claim. In an earlier decision I dismissed the Application.[1] Aldi seeks an order that its costs of the Application be paid by the respondent compensating authority (Corporation). The Corporation opposes that order and seeks that Ms Sargeant's costs be paid by Aldi and that Aldi and the Corporation bear their own costs. Ms Sargeant seeks an order that her costs of the Application be paid by Aldi.

1. Section 41 of the South Australian Employment Tribunal Act 2014 (SAET Act) provides:

(1) This section applies if the Tribunal believes that a proceeding -

(a) is frivolous, vexatious, misconceived or lacking in substance or involves a trivial matter or amount; or

(b) is being used for an improper purpose; or

(c) is otherwise an abuse of process.

(2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and may make any related or ancillary order.

(3) The Tribunal may act under subsection (2) on the application of a party or on its own initiative.

(4) If a proceeding is dismissed or struck out under this section, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a Presidential member.

1. Relevantly to this proceeding, r 50 of the South Australian Employment Tribunal Rules 2024 (SAET Rules) provides that a Presidential member of the Tribunal may make such directions or orders as are necessary, including:

(v) dismissing or striking out a proceeding, or part of a proceeding;

(x) granting summary relief;

1. Relevantly for present purposes, s 106 of the Return to Work Act 2014 (RTW Act) 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,

the Tribunal may -

(c) decline to make an award of costs in favour of the party and may further (if it thinks fit) make an award of costs against the party; or

(d) reduce the amount of the award of costs to which the party would otherwise have been entitled.

1. Rule 50(bb) of the SAET Rules allows a Presidential member of the Tribunal to make such directions or orders necessary to achieve the fair and expeditious resolution of a proceeding, including determining costs.
2. Rules 80 to 84 of the SAET Rules provide:

80. Costs may be ordered at any stage

(1) The Tribunal may make an order for costs in favour of or against a party or non-party at any stage of a proceeding including after the final determination of the proceeding.

(2) If the Tribunal does not have jurisdiction to hear a proceeding it may nonetheless order that a party pay or receive costs in relation to the proceeding.

81. Costs orders

Where not precluded by a relevant Act, the Tribunal may order that:

(a) costs be awarded on a party/party basis, a solicitor/client basis or some other basis;

(b) interest be payable on an award of costs in respect of a time before a decision is entered for the costs;

(c) costs, including any interest, be awarded on a lump sum or a partial lump sum basis.

(d) an award of costs to a party be set-off against any liability that the party may have, including a liability for costs.

82. Presumptive costs

(1) Costs reserved but not otherwise the subject of a specific order will be treated as being part of any final costs order made.

(2) The quantum of costs ordered is to be adjudicated if not agreed.

(3) Costs are not able to be adjudicated, and do not become payable, until after a proceeding is finalised and final costs orders are made.

83. General costs principles

(1) Any rule relating to costs is subject to the overriding discretion of the Tribunal in relation to costs.

(2) Any presumption in rule 82 is subject to contrary order of the Tribunal.

84. Discretionary factors

(1) In exercising discretion as to costs the Tribunal may have regard to any factors considered relevant.

(2) Factors relevant to exercising discretion as to costs include:

(a) any misconduct or unreasonable conduct by a party or a representative of a party in connection with a proceeding;

(b) any breach of the Rules or an order of the Tribunal by a party;

(c) whether an offer was made to resolve a proceeding;

(d) any response to an offer made to resolve a proceeding;

(e) the value and importance of the relief sought and/or obtained.

1. Aldi submitted that to deprive an applicant to a RTW Act dispute from an order for costs, it must be shown that the application was unreasonable, frivolous or vexatious given s 106(3). Aldi contended that the Application was reasonably brought because the features of the case were so unusual as to warrant bringing it. It was said that delusional paranoia may have been the cause of the mental injury rather than employment.
2. It was submitted that the real issue in the case was whether the claim could be proved given "such a serious and incurable gap in the evidence".[2] It was said that the proactive approach taken was motivated by the proper intention of saving time and expense.
3. Aldi submitted that an adverse order for costs against it in this matter would discourage similar applications being made in the future in circumstances when it may be in the interests of justice for such an application to be made.
4. Some of Aldi's submissions were directed to the Corporation seeking costs against Aldi, a result that the Corporation did not seek. For that reason, those submissions are not described or dealt with.

1. The Corporation referred to the salient provisions of the RTW Act and the SAET Rules. Rules 50, 80(1) and 84(1) were said to provide a broad discretion and permit an award of costs to be made against an intervenor and ameliorate the ultimate effect of s 106 on the overall costs of a proceeding.
2. The Corporation submitted that while s 106 might inform the approach to costs as a whole, and in relation to particular issues between workers and the Corporation, it does not extend to a case like this because:
   • the Application was brought by the employer;
   • an application brought by an interested party should have regard to whether it has an interest distinct to the Corporation that warranted the type of investment it made in the proceeding:
   • a party assuming the role of the Corporation in defending the interests of the compensation fund needs to have regard to the policy considerations involved;
   • the Application was substantive, and if successful, would finalise the proceeding;
   • Aldi was on notice the Application was opposed as it was misconceived;
   • the Application was in fact misconceived.
3. The Corporation said the following in relation to the merits of the Application:[3]

From the outset, RTW took the position that the Application for summary dismissal was without merit. Yet further, RTW, as the compensating authority, expressed to ALDI that the relevant claim made on behalf of the applicant, both for weekly payments and medical expenses, should be accepted, and foreshadowed that, were ALDI not to accept that, then ALDI would need to assume the responsibility for the opposition to the claim. A copy of the letter from Minter Ellison to Andersons Solicitors dated 17 April 2025 (sent by email dated 22 April 2025) is attached.

1. The Corporation submitted that it would be perverse if a sophisticated party like Aldi could recover its own costs, or make the Corporation liable for those costs, in the present circumstances.

1. Ms Sargeant's submissions largely aligned with the Corporation's submissions save that she submitted that the Corporation should have taken the lead in opposing the course of action taken by Aldi rather than leaving Ms Sargeant to lead the opposition to what Aldi sought.
2. Ms Sargeant submitted that it was appropriate that Aldi pay her costs, but if there was some impediment to such an order being made, the Corporation should meet her costs.

1. In its submissions in reply, Aldi submitted that it had a separate financial and reputational interest to protect to that of the Corporation. The financial interest sees Aldi responsible for weekly payments made on the claim and also affects the industry premium levied by the Corporation. The reputational interest concerns the allegations about Aldi made by Ms Caridi.
2. Aldi submitted that no explanation was given for the position taken by the Corporation, thereby denying Aldi an opportunity to revise its position. It was submitted that the Corporation had an obligation to explain the basis of its view that the Application would fail: Cacas and Anor v Megameg and Anor (No 2).[4] Further, it was said that the Corporation often compromises claims for administrative convenience and not on the merits.

1. The Corporation submitted that contrary to Aldi's primary submission, there is a separate power to s 106 of the RTW Act which can be exercised under the SAET Rules in relation to interlocutory applications. Regardless of that, s 106(3) is satisfied here because the Application was unnecessary and/or, unreasonable, frivolous or vexatious. It was said that the alternative explanation that delusional paranoia was at play demonstrates that the Application never stood a reasonable prospect of success. Further, the fact the sensitive nature of the approach taken shows that there was a genuine factual dispute that required a substantive hearing.

1. In Rogers v The Queen, McHugh J made the following observation: [5]

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.

1. In relation to the abuse of process alleged I said the following:[6]

This proceeding is not an abuse of process, nor is it being maintained for an improper purpose, and its outcome is not certain. The standard required to summarily dismiss a proceeding is not met.

1. Aldi acknowledged that the test that applies "is an exceptional one and the bar is high".[7] In Batistatos v Roads and Traffic Authority (NSW),[8] the High Court cited with approval this statement made by the plurality in Agar v Hyde:[9]

... Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. [Citation omitted]

1. In McBride v Teys Australia Pty Ltd,[10] Gilchrist DPJ described the test that applies here, and the rationale behind it, in this way:[11]

The authorities make it clear that in the power to permanently strike out proceedings should be used sparingly.[12] They talk in terms of the case being so obviously untenable that it cannot possibly succeed.[13] In setting the bar at such a height, courts recognise that to permanently deprive a litigant the opportunity to argue his or her case in court is a very serious infringement on fundamental rights that should only be exercised in the clearest of cases...

1. His Honour went on to refer to s 41(4) of the SAET Act and the ability to reinstate a proceeding dismissed under s 41 with the leave of a Presidential member of the Tribunal. While s 41(4) might be properly exercised in a case where an important change of circumstances has occurred, such as a litigant no longer behaving vexatiously or unreasonably, it should not apply where a matter has been struck out or dismissed because it would be an abuse of process to let the matter proceed because it has no real prospect of success. In Batistatos, the majority observed that the term "abuse of the process of the court" has been used, and still is used, in many senses.[14]
2. In the earlier decision, I recorded that I was "far from satisfied" that the first claim had no reasonable prospect of success.[15] I also observed that Ms Caridi was disadvantaged as she could not engage with the evidence given by Aldi's witnesses. I observed that "that would seem to be a greater impediment for the applicant's case than for Aldi's case".[16]
3. Senior counsel for the Corporation was correct to observe that the basis of the Application shifted from asserting that not being able to cross-examine Ms Caridi meant that Aldi could not receive a fair hearing,[17] to maintaining at the argument on 30 April 2025 the unfairness was because Ms Caridi could not provide her history to a psychiatrist at an examination.[18]
4. Having regard to the authorities mentioned above and to the approach taken to applications of the kind in issue, it is apparent that the Application had limited prospects of success. There was a genuine factual issue that needed to proceed to evidence.
5. While Aldi submitted that the Corporation is not averse to acting to further its administrative and financial advantage, the Corporation's strong opposition to the Application should have caused Aldi concern. The Corporation was not simply a bystander, it had a financial interest in the outcome. Despite that, the Corporation strongly opposed the Application and pressed Aldi to allow the first claim to be accepted. In my view, the Corporation was not behaving perversely in doing so as Aldi suggested. The primary objects of the Corporation in s 12 of the Return to Work Corporation of South Australia Act 1994 include providing fair compensation for work related injuries. Fulfilling that objective can extend to acting as the Corporation did in this case in my view. While Aldi complains that the Corporation has acted to the financial detriment of the RTW Scheme in opposing the Application, the Corporation took the view that the Application was doomed to fail and the first claim would succeed. Given that, the Corporation was trying to save incurring costs. That is consonant with the financial objectives in s 12.
6. After the Application was dismissed, Aldi consented to the first claim being accepted and consent orders dated 19 September 2025 to that effect were made. The orders provide that weekly payments would be made from the first date of incapacity until Ms Caridi's death on 30 December 2023 and that the Corporation would meet the costs of the other parties, save for the costs of the Application.
7. The submission made by Aldi in relation to Cacas refers to this passage:[19]

28 Mr Ower SC submitted that there is no evidence of an imprudent refusal by the plaintiffs in accordance with well settled authority. Also, there is no evidence of serious misconduct. The plaintiffs submit that in the absence of any evidence of serious misconduct in the pursuit of its claims which may be taken into account in assessing imprudent refusal, the only appropriate order is for party and party costs scale to be applied. The plaintiffs also submitted that there was no genuine element of compromise in the defendants' offer. The plaintiffs refer to and rely upon paragraphs 13.67 and 13.68 from the text Law of Costs by Professor GE Dal Pont[20] which reads as follows:

Offers that lack genuine element of compromise

13.67 The policy that informs why an invitation to surrender cast in the form of an offer of compromise under the court rules does not ordinarily alter the usual costs rule - there must be a genuine compromise, not merely a token one - likewise applies to Calderbank offers. This has led some judges to conclude that an invitation for the offeree to surrender or capitulate is not a Calderbank letter. But as with offers that lack the requisite clarity, the foregoing need not operate an 'all or nothing' affair. In circumstances that lack any compromise, it may indeed be legitimate to ignore the offer for costs purposes. The same may be so in the case of a token offer of compromise, although here the matter may go to discretion, and thus the weight to be accorded to the offer, specifically the reasonableness of its rejection in the circumstances. In Baygol Pty Ltd v Foamex Polystyrene Pty Ltd Tamberlin J explained the point as follows:[21]

The weight to be given to the existence of an offer to settle prior to the conclusion of the hearing depends on the reasonableness of the failure by the relevant party to accept the offer. A distinction has been drawn in the authorities between a genuine offer of a realistic compromise, and a demand to capitulate in circumstances where the case has some prospect of success. The question posed is whether the offer advanced by the party is designed merely to trigger costs sanctions, in which case it would not be treated as a genuine offer of compromise, or whether it is an offer of a significant benefit, in which case it could be so treated. A refusal to acknowledge any substance in the opposing party's case will usually not be sufficient of itself to warrant the making of a costs award on a solicitor client basis. The existence of a Calderbank offer, and its significance and importance, depends on the terms of the offer considered in the circumstances of each case and it is one factor to weigh and balance when exercising in a judicial manner the unfettered discretion conferred.

13.68 Whether an offer exhibiting minimal compromise should nonetheless have costs consequences cannot be assessed independently of the strength of the offeror's case. An offeror whose case is strong on the merits should not be expected, it is reasoned, to offer to compromise to the same extent as one whose case is weaker in order to secure the costs benefits of a Calderbank offer. What also informs this inquiry is whether the offeror has, via the terms of the offer or otherwise, disclosed information or made arguments that might have caused the offeree to give serious consideration to dropping his or her claim or defence. The weight to be accorded to any such information or statements depends on the circumstances of the case, as appears from the following remark by Redlich J in Aljade Development and Construction Sdn Bhd v Oversea-Chinese Banking Corporation Ltd.__[22]

Whether there is a need for the offeror to descend to specificity as to why the offer should be accepted must depend upon a consideration of all of the circumstances existing at the time of the offer. The extent to which the weakness of a party's position is exposed through the pleadings, affidavits and the various communications between the parties during the course of the litigation may bear upon the significance of the absence of specificity in the informal offer.

That the offer is open for only a relatively short period of time, particularly without any explanation as to why the offeree's action is doomed to failure, may deny a finding of unreasonableness in rejecting the offer (citations omitted).

29 I refer in particular to the reference within paragraph 13.68 about whether an offeror (the defendants) have within the terms of their offer disclosed information or made arguments which might have caused the offeree to give serious consideration to dropping the claim. As the learned author says, the weight to be accorded to such information or statements depends upon the circumstances of the case. One of those circumstances includes where there is a flurry of late pleadings changes as has occurred in this matter. One other consideration is the explanation about why the plaintiffs' action was doomed to failure. In this case, the offer of the defendants was made on 26 June 2017. Subsequently, on 2 August 2017, the defendants made substantive amendments to their Defence soon before the commencement of the trial.

1. The costs argument in Cacas arose because the defendants who succeeded in the primary action sought indemnity costs from the plaintiffs based on a Calderbank offer the defendants had made.[23] Slattery J refused the application and awarded the defendants costs on a party and party basis.
2. There are significant differences between the facts of Cacas and the present facts. Cacas concerned commercial disputes, primarily in relation to leases and trusts. The defendants made a Calderbank offer to vacate the premises the subject of a lease. In response the plaintiffs filed a formal offer to accept $200,000 plus costs to finalise the proceeding. The plaintiffs' claim failed. It is apparent from the passage set out above that Slattery J held concerns about whether the Calderbank offer made by the defendants was a genuine attempt to reach a compromise given that it was made very late in the proceeding and given a significant amendment was made to the pleadings by the defendants soon after the offer was made.
3. The considerations that were relevant in Cacas are not relevant here. Neither the Corporation nor Ms Sargeant was obliged to explain the basis of their opposition to the Application and why they considered that it would fail. They were simply opposing Aldi's attempt to dismiss or strike out the proceeding without a hearing with evidence. Aldi is a sophisticated corporate litigant that was acting on the basis of legal advice. There is no requirement for Ms Sargeant or the Corporation to explain to Aldi why the Application would and did fail.
4. In my view, the Application should not have been brought. The standard required to summarily dismiss a proceeding was not met. During argument, when Aldi submitted that it would not receive a fair trial because Ms Caridi could not be examined by a psychiatrist. I pointed out that was an assumption because there was no psychiatric evidence to that effect. It is for an expert to say the level of evidence that the giving of an expert opinion requires. Prior to her death, Ms Caridi had provided a long and detailed record of interview in relation to the circumstances of her claim. Members of her family and Aldi employees could give evidence about her behaviour and demeanour.
5. While the usual position under s 106(1) of the RTW Act is that parties to proceedings, other than the compensating authority, are entitled to an award of costs, even if unsuccessful, s 106(3) provides an exception where a party acts unreasonably in bringing proceedings or in relation to any other aspect of the conduct of proceedings.
6. In my view, Aldi acted unreasonably within the meaning of s 106(3)(a)(i) and (iii) of the RTW Act in bringing the Application and in failing to discontinue the Application after the letter of 17 April 2025 was sent from the Corporation's solicitors to Aldi's solicitors. By reference to the authorities cited above, the Application had no reasonable prospect of success. Aldi giving consent to orders that accepted the first claim after it had sought to summarily dismiss that claim supports that view.
7. In Hearing Matters v GM Holden Ltd,[24] a Full Bench of the Workers Compensation Tribunal said the following:[25]

As the Tribunal said in Iplex Pipelines Australia Pty Ltd v The WorkCover Corporation[26] it is appropriate to reflect on the strength of a case in evaluating the reasonableness of a party in insisting that the matter proceed. In the circumstances there are no facts which warrant a departure from the exercise of discretion in favour of the successful litigant.

1. I make the following orders:
   1. The other party is to pay the applicant's party and party costs of the Application based on 85% of the Higher Courts costs scale, to be agreed or adjudicated.
   2. The respondent is to bear its own costs of the Application.

[1] Rita Sargeant as Administrator of the Estate of Emily Caridi Deceased v Return to Work Corporation of South Australia and ALDI Stores (A Limited Partnership) [2025] SAET 81.

[2] Employer's Outline of Argument [6].

[3] Respondent's Submissions 26/09/25 [17].

[4] [2019] SADC 14 [28]-[29].

[5] [1994] HCA 42; (1994) 181 CLR 251 at 286.

[6] [2025] SAET 81 [33].

[7] Employers Outline of Argument 24 April 2024 [7].

[8] [2006] HCA 27.

[9] [2000] HCA 41.

[10] [2016] SAET 78.

[12] For example: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118.

[13] For example Durber v Arnott's Biscuits Limited [2012] SAWCT 9 [8] per Hannon DPJ.

[14] [2006] HCA 27 [1].

[15] [2025] SAET 81 [34].

[17] Affidavit of Margaret May Kaukas dated 4 March 2025 [10].

[19] [2019] SADC 14 [28]-[29].

[20] Lexis Nexis Butterworths, 3rd Edn, 2013.

[21] [2005] FCA 1089 [12]

[22] [2004] VSC 351 [87].

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

[24] [2013] SAWCT 10.

[26] [2007] SAWCT 48.