• The public interest that underpins administrative reviews of a government decision weighs against readiness to make an award of costs merely because of jurisdictional or procedural error. The making of an error in a process that attracts a right of review is not equivalent to breaching a duty of care or breaching a contract. The purpose of administrative review is to achieve rectitude in decision-making and not to compensate for wrongs;
• The respondent's jurisdictional error was not evidence of unreasonable conduct that would justify a costs order.
• The failure on the part of an administrative decision-maker to compromise proceedings is not necessarily evidence of unreasonable intransigence given the obligation to comply with legislative constraints that govern the decision-making process.
• The respondent was not shown to have acted in bad faith in making its decision. It did not conduct itself in a way that was improper, intransigent or unjustified.

Administrative tribunals - Procedure - Statutory powers - Order for costs - Ordinary position that parties are to bear their own costs - Effect of outcome and party conduct on entitlement to costs in an administrative review

Freedom of Information Act 1991 s 40

Essential Services Commission Act 2002 ss 31, 32

South Australian Civil and Administrative Tribunal Act 2013 ss 37, 38, 50, 57, 58

Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100

GKZ v Department for Child Protection [2022] SACAT 29

Grasso v Owners of Strata Plan No 52399 [2022] NSWCATAP 91

Hamod v State of New South Wales (2002) 188 ALR 659

Hanna v City of Marion & Anor [2020] SACAT 21

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

Re HWS [2018] SACAT 39

Robusto Investments Pty Ltd v Essential Services Commission of South Australia [2023] SACAT 2

Robusto Investments Pty Ltd v Essential Services Commission of South Australia [2025] SASC 87

South Australian Housing Trust v Brady & Milera [2018] SACAT 2

Tronnolone v Edwards & Bryan [2016] SACAT 27

V_ero Insurance Ltd v The Gombac Group Pty Ltd_ [2007] VSC 117

Webb v Port Stephens Council [2023] NSWCATAD 137

Mr B Jenner, on instructions from Mr N Baldock, Madsen O'Dea Agnew, appeared for the applicant

Mr B Garnaut, on instructions from Mr S O'Flaherty, Crown Solicitor's Office, appeared for the respondent

Made under the South Australian Civil and Administrative Tribunal Act 2013 ss 57, 58

1. On 17 November 2023, the Tribunal delivered its decision in a review of a water pricing determination issued by the Essential Services Commission of South Australia (the respondent).
2. Robusto Investments Pty Ltd (the applicant), being a supplier of reticulated water in the Mount Compass area, brought the review proceedings in the Tribunal. It says it has incurred $366,334.47 in costs in the proceedings. It seeks an order that would require the respondent to pay its costs, to be agreed or taxed.[1]
3. The parties filed written submissions[2] and made oral submissions on 1 October 2025.

1. Proceedings in the Tribunal are governed by a costs regime contained in Division 7 of Part 4 of the South Australian Civil and Administrative Tribunal Act 2013 ('SACAT Act'). The relevant provisions are as follows:[3]

Division 7 - Costs > > 57 - Costs > > (1) Unless otherwise specified in this Act, a relevant Act, or an order of the Tribunal under this section, parties bear their own costs in any proceedings before the Tribunal. > > (2) Unless otherwise specified in a relevant Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party, or of a person required to appear before the Tribunal or to produce evidential material, if the Tribunal thinks that it is appropriate to do so after taking into account - > > (a) the main objectives of the Tribunal that are relevant to simplifying proceedings and issues before the Tribunal and to keeping costs to parties in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and > > (b) the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit; and > > (c) any provision made by the rules; and > > (d) any other matter considered relevant by the Tribunal. > > (3) Without limiting subsection (2), if the Tribunal dismisses or strikes out any proceedings in any prescribed circumstances, the Tribunal should also make an order for costs against the party against whom the action is directed unless the Tribunal is of the opinion that there is a good reason for not making an order in the circumstances of the particular case. > > (4) If the Tribunal makes an order for the payment of costs and does not fix the amount of costs, that amount is to be assessed and settled in accordance with the rules.

2. In these proceedings, it was uncontroversial that:

(a) The Essential Services Commission Act 2002 ('ESC Act), which conferred the applicant's right to seek the review of the respondent's price determination, is a "relevant Act" for the purposes of s 57(1) of the SACAT Act. It does not contain any provision relevant to awards of costs in Tribunal proceedings, with the effect that the parties are to bear their own costs of proceedings in the Tribunal unless the Tribunal orders otherwise.

(b) There was no dismissal or striking out of the proceedings.

(c) The rules referred to in s 57(4) of the SACAT Act are the South Australian Civil and Administrative Tribunal Rules 2014 ('SACAT Rules'), which provide for costs to be awarded at 75% of the Supreme Court scale.[4]

1. Section 58 of the SACAT Act proceeds to make further provision for costs awards as follows:

58 - Costs - related matters > > (1) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses or loss resulting from any proceedings or matter. > > (2) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party, where the matter that is the subject of any proceedings comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to - > > (a) whether the party genuinely attempted to enable and assist the decision‑maker to make a decision on its merits; > > (b) whether the party (being the decision‑maker) genuinely attempted to make a decision on its merits. > > (3) The rules may deal with the effect of certain offers to settle, and the response, if any, to the offer, on the making of an order for the payment by a party of the costs of another party. > > ...

2. The applicant's application for costs was framed as seeking an order for the applicant's costs "of and incidental to the application [for review of the price determination] on the Supreme Court scale to be agreed or taxed on a party-party basis". As the applicant seeks an order for an award of costs in its favour, and not an order that the parties bear their own costs, it is necessary to understand the history of the proceedings.

1. The following background is undisputed.
2. The applicant (trading as Compass Springs) is a retailer of drinking water services to customers in the Mount Compass area. It was granted a licence by the respondent to provide drinking water retail services in August 2016. As provided for in the ESC Act, the applicant sought a price determination in March 2017. The making of a price determination is directed at balancing the outcomes of appropriate prices for consumers with reasonable returns for the retailer. The reasonable returns of the retailer are the profits achieved that provides an incentive to keep providing the service after reasonable operating costs have been met. Much of the dispute between the parties focused upon their experts' different allowances for reasonable operating cost components.
3. The respondent undertook an assessment of information provided by the applicant and a public consultation process, and then issued a determination dated 25 May 2021. The effect of its determination was that the applicant was not permitted to exceed the maximum revenue control amount of $248,395 for drinking water retail services supplied to its residential customers and its one non-residential customer. The determination also set the consequential maximum notional prices for residential customers and the pricing structure that the applicant was required to adopt for residential customers.
4. The determination was specified to operate for a period between 1 April 2021 and 30 June 2022.
5. The applicant was unhappy with the determination and in June 2021, made an application for an internal review of the determination pursuant to s 31 of the ESC Act.
6. As a result of undertaking the internal review process, the respondent varied the determination, but not to the extent sought by the applicant, and issued a new determination made on 26 August 2021.
7. The applicant remained dissatisfied and sought a review by the Tribunal. That review was conducted under Division 3 of Part 3 of the SACAT Act, noting that those provisions are slightly modified by the ESC Act. Whereas reviews under Division 3 of Part 3 of the SACAT Act allow a range of outcomes specified in ss 37 and 38, the ESC Act modifies this scheme by limiting the orders that the Tribunal may make to orders affirming the Commission's decision, or setting it aside and remitting it to the Commission to be remade.[5]
8. The substantive hearing in the Tribunal was only able to be undertaken after a preliminary question of law was determined.[6] The effect of the answer given to the parties was that the respondent's process had miscarried and needed to be revisited. Once that had occurred, the substantive dispute resumed in the Tribunal and involved numerous hearing days. A large amount of documentary evidence was filed. Each party also relied upon the oral evidence of an expert. Resolution of the matter required the Tribunal to consider the respondent's process and its determination, and whether it was correct or preferable, against the material that the respondent had considered, and also against further material that was filed for the review in the Tribunal.
9. The outcome of the proceedings was that the Tribunal remitted the decision to the respondent and directed the respondent to reconsider the amounts allowed for certain aspects of the applicant's operating costs, having regard to the following:

(a) the Tribunal's Reasons for Decision:

(b) the actual operating costs incurred by the applicant during the relevant period; and

(c) any further relevant information submitted by the applicant or otherwise available to the respondent.

1. The Tribunal issued reasons that were published on 27 October 2023.
2. The applicant appealed the Tribunal's decision to the Supreme Court. It considered that the Tribunal had failed to give additional directions to the Commission to follow in its reconsideration. The additional directions that the applicant sought concerned the date on which its asset base should be valued, and various others regarding the assessment of reasonable operating costs.
3. On 30 May 2025, the Chief Justice granted permission to appeal, and allowed the appeal.[7] The Court issued fresh directions to the respondent for its reassessment. The Chief Justice further ordered the respondent to pay the applicant 75% of the applicant's costs of the appeal on a standard basis.[8]
4. The respondent appealed the decision to the Court of Appeal.[9] Prior to the hearing of the appeal, the parties came to an agreement in relation to orders and the Court ordered by consent that several of the directions issued by the Chief Justice be set aside, on the basis that the Commission would reconsider the decision in accordance with various stated principles. The parties agreed that there should be no order for costs in respect of the appeal to the Court of Appeal.[10]
5. The parties now agree before the Tribunal that the costs orders in the Supreme Court (General Division) and the Court of Appeal do not prevent the Tribunal from making a decision with respect to costs associated with the Tribunal proceedings.

1. The applicant's case on costs is that an award should be made in its favour, having regard to the provisions governing costs and the jurisprudence, such as has developed, regarding those provisions.[11]
2. The applicant submitted that the nature of the application and whether it requires an exercise of the Tribunal's original, review or internal review jurisdiction, is relevant to whether an award should be made. As to the nature of the proceedings, the applicant submitted that the commercial context of the dispute, the complexity of the inputs into the decision, and the financial consequences of the outcome, supported a departure from the starting position that the parties bear their own costs, in favour of an approach that focused more upon the outcome of the proceedings and the conduct of the parties.
3. It submitted that the fact that the applicant was successful in seeking to have the determination set aside is a relevant factor and that, as the impugned decision was set aside by the Tribunal, the Tribunal should approach the question of costs on the basis that the applicant had succeeded in the proceedings.
4. In addition, or in the alternative, the applicant contended that the respondent's conduct warranted an award of costs in favour of the applicant. The applicant submitted that when considered generally, or by separate reference to particular stages of the process, the respondent's conduct invited an award of costs to compensate the applicant for the significant cost that it had been required to outlay to have the price determination properly made.
5. The applicant submitted more particularly that, firstly the period of four years between the applicant's pricing submission and the determination that was issued on 25 May 2021 constituted an unreasonable delay in decision-making. Secondly, as to the respondent's conduct generally, the applicant submitted that at any time after the applicant expressed its concerns about the determination, the respondent could have revoked its determination and avoided putting the applicant to the cost of proving the defects in the respondent's approach and evidence.
6. Compounding this unreasonable conduct, the applicant submitted that the respondent did not genuinely attempt to make its determination on the merits and in accordance with the legislation, but simply adopted the opinion of a consultant as to the matter it was required to decide. This led to the Tribunal's preliminary decision that the process had miscarried and that the respondent was required to remake the price determination in accordance with the process identified in the legislation. The applicant argued that the respondent nevertheless continued to maintain an erroneous reliance on the consultant's opinion by defending its determination by reference to the reasonableness of propositions about the inputs for the operating costs, which is a test not supported by the legislation.
7. These matters in combination, according to the applicant, warrant an award of costs in its favour.

1. The respondent submitted that there was no basis for the Tribunal to depart from the legislated position that the parties bear their own costs of the proceedings.
2. The respondent observed that the legislature had not considered it necessary to create different costs arrangements for this type of review and as such, only egregious conduct of a type not seen in these proceedings would attract an award of costs. In particular, it noted that mere success in the outcome (which the respondent contended had not in fact been achieved by the applicant except to a very limited extent) is insufficient to justify an award of costs. The respondent submitted that the applicant had failed in the majority of its arguments and that its success concerned a limited component of the overall task performed by the respondent.
3. It argued that the applicant had not demonstrated any lack of bona fides on the part of the respondent or its officers, and had not identified any conduct on the part of the respondent that would warrant a departure from the starting position that each party bears its own costs of a review.

Legal principles regarding costs relevant to these proceedings

1. Section 57 of the SACAT Act 2013, which provides that each party bears its own costs, is one manifestation of the Tribunal's objective as set out in s 8(1)(d) of keeping parties' costs to a minimum insofar as is just and appropriate. Section 8(1) in full provides:

8 - Main objectives of Tribunal > > (1) The main objectives of the Tribunal in dealing with matters within its jurisdiction are -

(a) in the exercise of its jurisdiction, to promote the best principles of public administration, including -

(i) independence in decision‑making; and

(ii) natural justice and procedural fairness; and

(iii) high‑quality, consistent decision‑making; and

(iv) transparency and accountability in the exercise of statutory functions, powers and duties; and

(b) to be accessible by being easy to find and easy to access, and to be responsive to parties, especially people with special needs; and

(c) to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high‑quality processes and the use of mediation and alternative dispute resolution procedures wherever appropriate; and

(d) to keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and

(e) to use straightforward language and procedures (including, insofar as is reasonably practicable and appropriate, by using simple and standardised forms); and

(f) to act with as little formality and technicality as possible, including by informing itself in such manner as the Tribunal thinks fit; and

(g) to be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.

1. As such, s 57 creates a scheme for costs orders in relation to proceedings in the Tribunal in the exercise of any of its jurisdiction. It is a scheme that is quite different from that which applies to civil proceedings brought in a court, including judicial review of administrative action, where a successful party is usually compensated by an award of costs in its favour.
2. The Tribunal can depart from the "default" position. However, in order to make an award of costs to a party, the Tribunal must find that it is appropriate to do so.[12] Its consideration of that issue must be undertaken by reference to the statutorily mandated factors in s 57(2). Because the list of factors extends to allow the consideration of "any other matter considered relevant", a broad discretion is conferred on the Tribunal. As I observed in South Australian Housing Trust v Brady & Milera:[13]

The Tribunal's ability to take into account any other relevant matter connotes the wide discretion in the Tribunal to consider a wide range of facts, circumstances and behaviours when determining what is appropriate in making an order.

3. There is no authority binding on the Tribunal to assist in the consideration of the operation of s 57 in review proceedings under the ESC Act_._ The decisions of some relevance are those of this Tribunal that concern proceedings of different types: guardianship matters,[14] tenancy matters,[15] and disciplinary matters.[16] Perhaps the most relevant are those relating to administrative review of administrative action but the differences between the regimes reduces the assistance that even these cases provide.[17]
4. In SAHT v Brady & Milera,[18] I acknowledged that the diversity of jurisdiction exercised by the Tribunal is such that some types of proceedings may lend themselves more readily than others to awards of costs. Proceedings brought in the Tribunal's original or review jurisdictions by persons challenging orders made under the Mental Health Act 2017 or the Guardianship and Administration Act 1993 are unlikely to attract awards of costs (particularly against the person with such illness or incapacity) even where the proceedings are wholly unsuccessful, because of the evident public interest in the accessibility of justice in respect of proceedings that have a human rights focus. On the other hand, as fees to have a Tribunal's decision internally reviewed are higher than those that apply for first-instance decisions, an internal review may be more amenable to an order that an unsuccessful party at first instance be required to pay the costs of another party where an internal review is unsuccessful. However, these observations do not subordinate the primary legislated position that each party bear its own costs in all proceedings (save for where it is legislated otherwise) unless the Tribunal finds that it is appropriate to make an order that one party meet the other's costs.
5. The current proceedings are in the nature of administrative review by an affected party of a decision of a Government body. All reviews of Government action have some public character and there is public good in fair, transparent and evidence-based decision-making. The nature of such proceedings, at that level of taxonomy, does not, in my view, lend itself towards a greater readiness to make an award of costs at the conclusion of the proceeding, but rather, the opposite. It is consistent with this that the Administrative Review Tribunal, formerly the Administrative Appeals Tribunal, was not conferred with a power to make an award of costs.
6. The decision under review in these proceedings has an additional public interest character in the sense that it affects the price of water for a cohort of consumers and does not only affect the private interests of the applicant. Section 32 of the ESC Act confers a right on any person who made submissions in an internal review dissatisfied with a price determination following the internal review, not just the retailer, to seek a review by the Tribunal. The public interest character of the price determination is consistent with an approach that the parties bear their own costs of such a review.
7. It might be argued that it is appropriate to distinguish between review proceedings that are more limited in scope and do not usually require evidence, particularly expert evidence, to be adduced, and those such as the present proceedings which entails complex evidence. Some types of administrative review, such as personal firearms licence challenges and working with children prohibition notice reviews, are often confined in their scope and consequence, and require little evidence to resolve. However, administrative review proceedings such as land valuation and certain commercial licence decisions, have the potential to be expensive for affected parties to bring. The hearing of these proceedings occurred over multiple days. Complex expert accounting evidence was adduced.
8. However, to use such a distinction to create a sub-class of reviews that are more amenable to costs awards undermines the legislature's choice not to make provision for costs and to allow the "default position" in s 57 to govern. This is to be contrasted, for example, with s 40(8) of the Freedom of Information Act 1991 which does create a singular exception to the default position, by requiring an agency to pay the respondent's costs of a review that the agency initiates.
9. Where the legislature has determined that the discretion remain vested in the Tribunal, it is preferable for the discretion to remain capable of broad application and to allow factors such as the parties' conduct and any other relevant matter to be brought into account in the Tribunal's decision on a case-by-case basis.
10. Further, in contrast to disciplinary proceedings as another example of proceedings with a public interest character, these proceedings were brought by the applicant as opposed to its participation being compelled by the respondent. The applicant retained control over whether to expose itself to the costs of litigation to a greater extent than a respondent in disciplinary proceedings.

The relevance of the outcome of the proceedings to an award of costs

1. The provisions that dictated the Tribunal's available orders in these proceedings required that the Tribunal, upon finding that the decision was not correct or preferable, remit the decision to the respondent to be remade, rather than the Tribunal substituting its own decision. That remittal arose from the Tribunal's conclusions that a few, but not all, of the variables contributing to the determination required modification.
2. The applicant sought to describe this as its success, whereas the respondent argued that there was no glaring error found that would warrant an award of costs.
3. In private inter partes civil proceedings, the outcome of the proceeding is usually, though not always, determinative of the question of costs. The making of an error in a process that attracts a right of review is not equivalent to breaching a duty of care or breaching a contract. The purpose of administrative review is to achieve rectitude in decision-making and not to compensate for wrongs. The outcome of an administrative review attracts less relevance to the question of costs than the outcome of civil proceedings.
4. In any event, the applicant was only successful on a limited sub-set of its arguments. Many of the decision-making components were not successfully impugned.

1. In light of the statutory scheme, the strongest of the applicant's arguments calls for a consideration of the parties' conduct, rather than the nature of the proceedings or its outcome. Claims about conduct must be framed by reference to whether the respondent's conduct warrants a departure from the "usual position" in favour of an award of costs to the applicant. Nevertheless, despite the necessary evaluation of party conduct against various norms, the principle to be borne in mind when considering party conduct is that costs are compensatory and not punitive, in nature.[19]

1. The applicant submitted that the respondent's delay in making the original decision is relevant to the consideration of a costs order. The respondent says that this takes the question of "conduct" too far into the history of the process, and that for a party's conduct to be relevant, it must concern "the proceedings".
2. I accept the respondent's position in this regard. The Tribunal's remit with respect to costs will usually, and in this case, concern only events after the proceedings are commenced.
3. Relief for delay was available to the applicant in the form of mandamus if it had decided to adopt that path, and complaint about delay may be referred to appropriate Governmental oversight bodies. It is not for the Tribunal to assess the respondent's conduct prior to the proceedings being commenced for the purposes of determining whether an award of costs should be made in respect of the proceedings.

Conduct in the review of 28 August 2021 may be relevant

1. The Tribunal found that the respondent committed jurisdictional error when it issued its price determination in August 2021. That error arose from the way in which the respondent used the views of a consultant expert in reaching its decision. The applicant submitted that the respondent's approach could properly be described as a failure to make a "genuine attempt" to make a decision on the merits.
2. I reject that characterisation of the respondent's error. Absent male fides, which was not suggested to be present here, I do not accept that the jurisdictional error is an error that attracts the "conduct" factor.
3. When the Tribunal said, in its decision of 8 March 2023,[20] that the Commissioners did not engage with the merits of the issue to be determined, it was because the Commissioners mistakenly thought that they could delegate that task. They thought the expert had engaged with the merits. If it were the case that error were a ground for costs, it would amount to costs following the event.
4. The Tribunal also stated that the expert's report "did not address the applicant's complaints".[21] Again, whilst this constitutes a process error in the making of the decision, it does not amount to conduct that is relevant to the question of whether the costs of challenging the decision should be borne by the decision-maker.

Conduct after the application was issued - disclosure and conciliation

1. The applicant contended that the respondent failed to disclose relevant documents and caused unnecessary delay and cost to the applicant in seeking orders and reviewing the subsequently-disclosed voluminous materials.
2. The respondent argued that one tranche of material was released after the Tribunal (and not the applicant) questioned the lawfulness of the respondent's use of a consultant expert in the price determination process, which subsequently became a significant preliminary issue in the hearing process. I accept that this could not justify an award of costs to the applicant. It was not an issue to which either party appeared to have turned its mind prior to the commencement of the proceedings.
3. The second tranche of additional documents was disclosed, according to the respondent, after the applicant's grounds of review were clarified and the issues were narrowed. Nothing in the Tribunal's reasons for decision indicated that the manner in which the respondent dealt with documents was oppressive to the applicant or obstructive to the Tribunal's review process. The applicant's arguments concerning the respondent's conduct with respect to disclosure are rejected.
4. The applicant submitted that it was open to the Tribunal to take into account the fact that the parties attended a compulsory conference where the respondent did not make any offer and the matter did not resolve, and that the respondent's decision was overturned at a hearing.
5. The compulsory conference process occurred by virtue of a Tribunal direction made pursuant to s 50 of the SACAT Act 2013. The purpose of such a conference is to "identify and clarify the issues in the proceedings and to promote the resolution of the matters by a settlement between the parties".[22]
6. In reviews of administrative action, the identification and clarification of issues can be an efficient way to enable the efficient running of a hearing, particularly as there are few mandated pre-hearing steps. It is often an opportunity for the agreement of facts and identification of key witnesses and matters requiring proof. The capacity of such conferences to resolve reviews of administrative decisions is more limited than in proceedings that have a private character. Where an evident error in the process has occurred, the parties might agree to seek an order from the Tribunal that the decision be remitted for re-making. Not every error comes within that category. The Tribunal will always seek first to be satisfied that the order is an appropriate one, bearing in mind the public interests underlying the decision. For this reason, the applicant was wrong to argue that a decision-maker's failure to seek to compromise should have costs consequences. That approach wrongly adopts a civil dispute lens that is not apt for administrative review.
7. Because of the broader public interest in the outcome, it may not be appropriate for a government agency to resolve a review of an administrative decision. Each matter needs to be considered on its own circumstances. I do not consider that the failure of the matter to resolve at a confidential conciliation conference is a matter that is, in this case, relevant to whether an order in favour of the applicant being awarded costs should be made.
8. The respondent argued that the fact that the parties did not agree upon an outcome at the conference did not disclose any recalcitrance on the part of either party. It submitted that the subsequent outcome following the hearing was one of mixed success for each party, and that in fact only a narrow aspect of the decision-making was found to have miscarried. I accept that these were not proceedings in which the respondent's failure to agree to put a proposal to the Tribunal for early disposition of the review in setting aside the original decision, indicated inappropriately rigid conduct. The respondent was not entitled to engage in purely commercial conduct.
9. The parties' conduct during the Tribunal review hearing provides a conceivable basis for a finding that it is appropriate to make an award of costs in favour of one or other of the parties.
10. The applicant complained that the respondent's conduct met the threshold for the making of such an order. For the reasons that follow, the Tribunal does not consider that the applicant has identified conduct of a type that justifies an award of costs to the applicant.
11. The primary contention raised by the applicant was that, notwithstanding the Tribunal's answer to the preliminary question of law rejecting the process by which the determination had been reached, the respondent maintained that same flawed approach to its task by continuing to defend its expert's report as "reasonable", rather than engaging with the assessment task required of it. The applicant contended that the respondent's task was not to arrive at a "reasonable" outcome, but to make the correct or preferable determination, but that the respondent continued to avoid that exercise.
12. There are two reasons that this complaint does not establish conduct that would attract an award of costs. The first is that the Tribunal's finding that the respondent did not engage with the merits of the application does not imply a lack of good faith on the part of the respondent. The Tribunal rejected the respondent's process. It did not reject the expert's conclusions to such an extent as would indicate that the respondent could not proceed to draw upon those conclusions and adopt them, as long as it did so in a manner that showed an engagement by the decision-making body. The respondent was not shown to have conducted itself in a way that was improper, intransigent or unjustified in adopting the expert's conclusions. The second is that the respondent was entitled to continue to advance the expert's conclusions, although it was required to do so only once it had taken those conclusions on as its own.

1. The applicant has not persuaded the Tribunal that it would be appropriate to make an order that all or any of the applicant's costs be paid by the respondent.
2. It follows that there is no need to consider the quantum of the costs claimed, or the basis upon which they may be ordered.

1. Each party is to bear its own costs of the proceedings.

1. [1] It is not evident whether the claimed costs have been calculated in accordance with the South Australian Civil and Administrative Tribunal Rules 2014 i.e. 75% of Supreme Court scale.

[2] Applicant's submissions dated 7 December 2023; Respondent's submissions dated 21 December 2023; applicant's reply submissions dated 4 January 2024.

[6] Robusto Investments Pty Ltd v Essential Services Commission of South Australia [2023] SACAT 2.

[7] [2025] SASC 87.

[8] Record of Outcome dated 29 September 2025 (CIV-23-014506).

[10] Record of Outcome dated 27 October 2025

[11] Applicant's submissions dated 7 December 2023 at [9].

[12] Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117 at [20] per Gillard J (considering s 109 of Victorian Civil and Administrative Tribunal Act 1998).

[13] [2018] SACAT 2 at [22] ('SAHT v Brady & Milera').

[14] E.g_. Re HWS_ [2018] SACAT 39.

[15] E.g. Tronnolone v Edwards & Bryan [2016] SACAT 27.

[16] E.g. Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100.

[17] E.g. Hanna v City of Marion & Anor [2020] SACAT 21 (firearms prohibition); GKZ v Department for Child Protection [2022] SACAT 29 (placement of a child decision).

[18] (n 13).

1. [19] Grasso v Owners of Strata Plan No 52399 [2022] NSWCATAP 91at [12]; Oshlak v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Hamod v State of New South Wales (2002) 188 ALR 659; Webb v Port Stephens Council [2023] NSWCATAD 137.

[20] Robusto Investments Pty Ltd v Essential Services Commission of South Australia [2023] SACAT 2 at [63]- [64]; [100]-[101].