..................[sgd]......................................................

COSTS - cost of the proceedings incurred by claimant payable pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - matter settled prior to hearing with provision for applicant's party-party costs to be paid by respondent - all other disputed costs resolved by agreement - counsel's fee on brief disputed - distinction between fee on brief reflecting the first day of hearing and 'cancellation fees' - whether counsels fee on brief reasonably incurred by 'reasonable and prudent, but not over-cautious' on behalf of applicant - whether cost is a cost of the proceeding to be paid by responsible authority - cost properly incurred and payable by responsible authority

Administrative Review Tribunal Act 2024 (Cth)

Commonwealth Workmen's Compensation Act 1912 (Cth)

Compensation (Commonwealth Employees) Act 1971 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cameron v Australian Postal Corporation (1995) 21 AAR 1

Cleveland v Goold & Porter Pty Ltd [1962] VicRp 1; [1962] VR 2

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Commissioner of the Australian Federal Police v Razzi & Ors (No. 2) [1991] FCA 267; (1991) 30 FCR 64

Donovan v Miller [1987] VicRp 16; [1987] VR 221

Elias v Smidt (No. 3) [2025] NSWSC 1062

Erem v Moussa [2023] NSWSC 536

Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2022] NSWSC 1062

The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd (No. 2) [2014] WASC 345

The Queen v Martinello [2005] ACTSC 109

Wright and Commonwealth, Re (1985) 8 ALD 436

Guideline of the Costs Assessment Rules Committee in NSW dated 16 March 2016

1. Mr Stephen Russell sought review of four separate decisions of Comcare in relation to his entitlement to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for an injury identified as 'rotator cuff tear arthropathy in his right shoulder'. On 23 October 2025, the parties entered into a written agreement as to the decision to be made in the four reviews. In two matters, 2023-4359 and 2024-6519, Comcare's decisions were affirmed. In matters numbered 2024-11016 and 2024-3819, Comcare's decisions were set aside and in substitution a decision making Comcare liable for the described injury and for the costs of a reverse shoulder replacement operation pursuant to sections 14 and 16 of the SRC Act. This became a decision of the Tribunal on 24 October 2025 pursuant to section 103 of the Administrative Appeals Tribunal Act 2024 (Cth) (ART Act)
2. In both matters numbered 2024-11016 and 2024-3819 the decision made by the Tribunal included provision for the respondent to pay the applicant's 'reasonable party/party costs and disbursements pursuant to section 67 of the SRC Act, to be agreed or taxed.'
3. All but one component of the costs and disbursements have been agreed by the parties save for Counsel's fee on brief for the hearing set down for 27 to 30 October 2025. Mr Ray Ternes was engaged to appear as counsel at the hearing to commence on Monday, 27 October 2025 and to continue to Thursday 30 October 2025. The fee incurred by the applicant's solicitors was in the sum of $3,850.00 for 'brief fee for hearing listed to commence 27/10/2025, one day'.
4. Comcare rejected payment of this fee on the ground that it was to be characterised as a 'cancellation fee' and there were no exceptional circumstances in this case that would permit the Tribunal to order the respondent to pay such a fee. The case settled on the acceptance of an offer made by the respondent on 15 October 2025, a little under two weeks prior to the date for the commencement of the hearing. That acceptance subsequently became the agreement of 23 October for a decision which was made by the Tribunal on 24 October 2025.
5. The applicant disputes that the fee charged is a 'cancellation fee' because it was a fee on brief, typically the fee for the first day of a hearing, not the subsequent days. Had fees been charged for all or part of the subsequent hearing days, it was submitted, that would better be characterised as a cancellation fee.

1. The usual rule in administrative review is that each party shall bear their own costs of the proceedings. There is no general power conferred on the Tribunal by the ART Act to award the losing party to pay the costs and disbursements of the successful party.
2. However, the various employee compensation schemes, the SRC Act included, all provide for the costs of the claimant to be paid by the responsible authority, in certain circumstances. In the present case, the discretion to award the successful claimant is found in subsection 67(8) of the SRC Act:

(8) Where, in any proceedings instituted by the claimant, the Administrative Review Tribunal makes a decision:

(a) varying a reviewable decision in a manner favourable to the claimant; or

(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;

the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.

1. The 'responsible authority' is defined in subsection 67(1) of the SRC Act. For the present purposes, there is no dispute that the responsible authority in this case is Comcare.
2. There is no rule, regulation or Practice Direction of the present Tribunal concerning the resolution of a dispute on payment of costs. The former Administrative Appeals Tribunal did have a practice direction that provided a mechanism for the taxation of costs and the use of the Federal Court Scale of Costs as a guide to the quantification of costs. However, at present, there is no rule that ties the costs of the dispute to any equivalent court scale.
3. That said, it is to be remembered that for more than a century, the Commonwealth has legislated for the provision of compensation for employment injury and for the resolution of disputes concerning the payment of compensation to be adjudicated in courts or tribunals with the power to award costs. As early as 1911 with the passage of the Seamen's Compensation Act 1911 and the Commonwealth Workmen's Compensation Act 1912, disputes concerning the liability to pay compensation were amenable to determination by 'proceedings in a County Court,' which was defined as 'a County Court, District Court or Local court of any State, or any Court exercising in any part of the Commonwealth a limited civil jurisdiction and presided over by a judge or a police, stipendiary or special magistrate.'[1] A successful party in any such proceeding in those courts would be entitled to recover the costs of the proceeding and, if the costs were disputed, the taxing officers would exercise the court's discretion as to the amount of costs to be recovered by the successful party.
4. The provision of dispute resolution by courts with the power to allow the successful party to recover the costs of the proceedings was continued under the Commonwealth Employees' Compensation Act 1930 (Cth) (the 1930 Act) and the Compensation (Commonwealth Employees) Act 1971 (Cth) (the 1971 Act). It was during the currency of the 1971 Act that administrative tribunals were created, and disputes were then amendable to the jurisdiction of a Compensation Tribunal and later, the Administrative Appeals Tribunal. No particular rules were provided for the scale of costs or the manner in which taxation of such costs were to be handled but the practices of the courts having jurisdiction in general civil litigation, including claims for personal injury, were found apt to apply in employee compensation matters.
5. For example, In Re Wright and Commonwealth (1985) 8 ALD 436 (Wright), the Tribunal constituted by Senior Member, Ms R Balmford (as she then was), noted that the Tribunal had adopted the practice of using the scale of costs in the County Court of Victoria by analogy to disputes in the AAT. The scale provided for disputes of differing values starting with Scale A for matters valued less than $3,000 up to Scale E, for matters over $20,000 by reference to 'the amount recovered or the value of the property in litigation'. Since administrative decision making did not involve liquidated sums, disputes about costs in matters concerning continuing payments of compensation were generally assessed on Scale E. In Wright, the costs were again awarded on Scale E, notwithstanding that the value of the compensation recovered was less than $20,000, the Tribunal considering the 'nature of the proceedings' did not justify a departure from the established practice.
6. It is useful to note the former Tribunal's recognition of the continuing practice of determining the costs of the successful claimant by reference to the usages of the civil courts where common law personal injury cases were dealt with. It is also important to note that there was no slavish adherence to the scale of costs, given the fact that administrative law matters did not generally deal with liquidated sums.
7. At a later stage, the former AAT did adopt a Practice Direction to deal with the taxation of costs and made provision for directing the delegated taxing officer to refer to the Federal Court Scale of Costs.
8. The new ART, since its commencement on 14 October 2024, has no such practice direction. No one factor, or combination of factors, is necessarily determinative of the result and there is a degree of latitude allowed though the relevant considerations are confined by the subject matter and object of the legislation conferring the discretion.[2] Section 67 of the SRC Act confines the discretion in no particular manner though it is worthwhile noting that is deals only with the award of a claimant's costs, not those of the determining authority, and the object of the legislation is beneficial, and like all workers' compensation statutes, is intended to be construed in aid of injured workers.[3]

1. There is no definition in any set of rules or costs scales that defines 'cancellation fee' or the like. In an article on the subject from 2017, Mark Brabazon SC noted that the term has no technical meaning and could refer to a charge in respect of a day when an expected hearing did not proceed but noted that '[i]t used to be distinguished from a fee-on-brief, which was generally payable even if the relevant action settled before trial.'[4] It has become a matter of judicial consideration in matters starting with Commissioner of the Australian Federal Police v Razzi & Ors (No. 2) [1991] FCA 267; (1991) 30 FCR 64 (Razzi), a criminal case that had been expected to run for some weeks but was terminated after four days when the co-accused pleaded guilty to the charges and the evidence was, by agreement, limited.
2. Before Wilcox J in respect of the application for costs, it was disclosed that there had been an agreement between counsel and Ms Razzi obliging her to pay 'cancellation fees in respect of some or all of the time which was originally expected to be needed for the case but which was not in fact required.' These were thought by Ms Razzi to be recoverable by an order on a solicitor-client basis. The court ruled that there were no circumstances in the case that could justify recovery of costs on a solicitor-client basis, the court having found that this had been argued on the basis that there had been an abuse of process by the Commissioner in arguing a case that had no possible foundation. Wilcox J ruled that there was, on the evidence, an arguable case on the question of obtaining a benefit in the principal case, and hence no abuse of process and no foundation for an order of costs on a solicitor-client basis.
3. In the field of legal costs in litigation, a distinction is drawn between costs recoverable on a solicitor-client basis and a party-party basis. Solicitor-client costs are those costs a reasonable and prudent solicitor would incur on behalf of a client in the protection of their interests in litigation. The 'party-party' costs are restricted to those costs that are necessary and proper to incur in the circumstances of the case. A solicitor who incurs costs on behalf of a client to investigate an alternative remedy to the litigation, or to negate a potential line of attack on the client's case which does not eventuate may recover costs on a solicitor-client basis, but they may not be regarded as necessary and proper to the particular litigation in question.
4. Wilcox J in Razzi considered that an order on a solicitor-client basis, would not 'enable recovery of "cancellation fees". A solicitor-client costs order enables the recipient of the order to recover the actual costs, reasonably incurred, of all work reasonably required and actually performed in connection with a matter. But it does not extend to fees for work not done.'[5] He then noted that the practice of charging for 'cancellation fees' was of recent origin and in his own experience they had never been sought. He continued:

There were, of course, occasions when cases were suddenly adjourned, or when they took less time than had been estimated, so that the barristers briefed in the matter found themselves unexpectedly out of court. Very often they would have refused other work because of the case and its estimated duration. But, as I understood the situation, barristers generally accepted that any financial loss caused by such circumstances was to be borne by them. Any disadvantage had to be balanced against the advantage conferred by the rule which permits barristers to charge a full fee on a matter settled after delivery of the brief but before any hearing. This approach was fair.

5. In Razzi the Court did not disapprove the recovery of costs incurred for counsel's appearance. Hence, the fee on brief was recoverable on a party-party basis as well as the second day. The full four days would have been so recoverable but for the court's discount of those costs on the basis that one of the issues of Ms Razzi's denial of being engaged in dealing was put in issue and occupied some time in the running of the matter. The contest was not justifiable and only caused the Commissioner to increase in the costs of proving the issue. It was a disentitling factor which the court used to control the recovery of costs on a party-party basis. It did not deny the recoverability of the fees representing two days of court hearing time.
6. The applicant raised Razzi in support of the proposition that the fee on brief in dispute in the present matter was recoverable by reason of the 'rule which permits barristers to charge a full fee on a matter settled after delivery of the brief but before any hearing' referred to by Wilcox J above. The respondent argues that the better view of Razzi is that a barrister may well charge their own client a fee on brief on a matter that settled after delivery but before a hearing, but this is to be regarded as a solicitor-client cost.
7. The respondent raised several other authorities on the issue of 'cancellation fees' as a recognised 'solicitor-client' cost. I was taken to Erem v Moussa [2023] NSWSC 536 (Erem) which was said to summarise the principles that the courts have developed as 'to whether or not the costs of a cancellation fee of counsel's fee for the first day of hearing that did not proceed may be allowed on an inter partes basis.'[6]
8. Erem was a costs dispute arising from a vacation of hearing dates about one week prior to a hearing owing to the absence of the party. The matter had not settled. The matter had been set down for ten days and the vacation was allowed but with an order for costs thrown away by reason of the adjournment. The court noted an 'extremely protracted procedure history' including 58 prior listings where orders of the court had been made over six and a half years. [7]
9. The court was careful to deal with the situation of adjournment of the case. It did not equate a cancellation fee on the adjournment of a case with a fee on brief amounting to counsel's fee for the first day of the trial. The court referred to Professor Dal Pont in The Law of Costs at [17.54] 662-663 as to the propriety of allowing recovery on a party-party basis counsel's 'fee for the first day of a trial, listed for a five-day hearing, settled late on the day before trial.' The other cases referred to in the discussion of cancellation fees relate to late adjournments show the differing approach on adjournment and costs thrown away compared to counsel's fee on brief where a matter settles after the brief is delivered but before the hearing. In each case, a distinction is drawn between counsel's fees properly incurred and cancellation fees.

(a) The Queen v Martinello [2005] ACTSC 109 was a costs decision in relation to the adjournment of a criminal case because of an evidential gap in the Crown's case. Fees of defendant's counsel for the adjourned matter were claimed. The matter was still to proceed to trial. > > (b) In The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd (No. 2) [2014] WASC 345 the court cited Razzi in relation to cancellation fees but only in respect of an alleged fee on brief which was actually for the third day of hearing at a rate that exceeded the court scale and where the matter concluded at lunch on that third day and included the cost of a conference after court. The court found that the fee recoverable for the third day would not exceed the court scale. > > (c) In Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2022] NSWSC 1062 counsel's fees for the adjournment was allowed in part as to the amount of preparation wasted but the separate cancellation fee was not allowed. > > (d) In Elias v Smidt (No. 3) [2025] NSWSC 1062 the question in relation to counsel's fees was considered in the context of a trial abandoned as opposed to settled. At [88] Leeming JA allowed that 'One day's fees for preparation and one day's fees for the hearing on 14 July is reasonable. However, nothing should be allowed for the cancellation fee' and referred to court Guidelines 'which state (in footnote 8) "[c]ancellation fees, over and above the first day of a brief on hearing, should not be allowed.'

10. I have viewed the Guideline of the Costs Assessment Rules Committee in NSW dated 16 March 2016 at paragraph 8 which are for the guidance of 'Costs Assessors in the assessment of costs payable between parties under an order of a court of tribunal.' It is quite clear that on a party-party assessment of counsel's fees a clear distinction is drawn between counsel's fee for the first day of a brief on hearing and what is properly called a cancellation fee.
11. I accept that there is a distinction between recovery of cancellation fees as costs thrown away by reason of adjournment, and the like, and the recovery of counsel's fee for the first day of a brief on hearing which settles before the hearing.

The fee for the first day of a brief on hearing was properly incurred.

1. The true question to be determined in this case is whether the first day of a brief on hearing was properly incurred by Mr Russell's solicitor.
2. Mr Russell's matter was set down for hearing as a 4-day case to commence on 27 October 2025. His solicitor received the listing notice of the tribunal on 1 July 2025 and on 9 July 2025, Mr Ternes was retained to appear at that hearing.[8]
3. Mr Ternes had held a brief in relation to the preparation of a Statement of Facts, Issues and Contentions in this matter, but that brief was updated or supplemented in preparation of the hearing as time went by.
4. On 8 October 2025, some 19 days prior to the first day of the hearing, the respondent made an offer of settlement which was expressed to be open until 4.00pm on 15 October 2025.[9] In broad terms, the offer became the substance of the terms of written agreement signed by both parties on 23 October 2025. The applicant communicated the acceptance of the offer at 12.38pm on 15 October 2025.[10]
5. The applicant referred me to the former Tribunal's decision in Cameron v Australian Postal Corporation (1995) 21 AAR 1 (Cameron) in support of the recovery of counsel's fee on brief in circumstances where the matter settled before the first day of the hearing. The respondent objected to the payment of the fee of counsel engaged for the hearing on the grounds that the fee incurred was neither necessary nor proper in the circumstances. There had been, in the argument of the respondent, a call over on 2 March 1994, shortly following which, on 11 March 1994 a notice of a date for hearing was issued by the Tribunal. The hearing date set down was 26 April 1994, just over six weeks from the date of notice. The respondent submitted that an informal settlement conference had been arranged for 28 March 1994. An offer to resolve the matter was formulated on 30 March 1994 and the matter resolved on 6 April 1994 three weeks prior to hearing. Counsel had been briefed prior to the settlement. The respondent contended that because the negotiations were underway, the expenses incurred in preparing the brief for counsel was unnecessary.
6. The applicant argued that counsel had been briefed prior to the settlement and that the fee was properly incurred. The brief had been delivered on 23 March 1994 - some five weeks prior to the date for which the hearing was fixed. The fee was ultimately allowed.
7. The Deputy Registrar of the AAT was referred to the Victorian Supreme Court decision in Donovan v Miller [1987] VicRp 16; [1987] VR 221. The Full Court (Young CJ, King and Beach JJ) dealt with an appeal from a ruling by Judge Walsh in the County Court reviewing a taxation of what was described as an uncomplicated action for damages in a personal injury action. On taxation, the Registrar of the County Court felt himself bound by the decision of the Chief Judge in the case of Hancock v Tynan, an unreported Judgment of the County Court on 8 June 1984, in which the Chief Judge decided "in the circumstances of that case the delivery of the Brief to Counsel to Appear earlier than two weeks prior to the date of trial was premature, and should be disallowed". Judge Walsh, on review, allowed the recovery of counsel's fee.
8. On appeal, the Full Court ruled that the Chief Judge in the earlier case was not laying down an a priori rule to be followed in all cases. Hence, the Registrar, in feeling so bound, had failed in the exercise of his discretion, or exercised it on the basis of a wrong principle. Further, the Full Court did not agree with the defendant that Judge Walsh failed in his exercise of the discretion on review. The appeal was dismissed, the Court stating:[11]

His Honour relied upon some observations of Madden CJ in International Financial Society v Smith [1896] VicLawRp 73; (1896) 22 VLR 114, at p. 119 where the Chief Justice had said that in his view briefs could not be too soon prepared. Counsel before us suggested that the Chief Justice was there drawing a distinction between the preparation of a brief and its delivery to counsel. We see no basis for such a distinction and although we do not wish to encourage the premature delivery of briefs we wish to emphasize that the proper conduct of litigation in the interests of a party requires a solicitor to prepare a brief to counsel in good time and to deliver a brief to counsel in an appropriate case in good time. What is "good time" will of course vary from case to case but it must be governed principally by consideration of the interests of the solicitor's client. To borrow the language of the headnote in Peile v Nobel (Australasia) Pty Ltd [1966] VicRp 60; [1966] VR 433, what has to be considered are the individual features of each case, not merely what kind of a case it is: see at pp. 437-8, per Starke J. In determining whether a step taken by a solicitor in an action has been taken prematurely the test to be applied is: Would a reasonable and prudent, but not over-cautious, solicitor in all the circumstances consider that the time for doing the work has arrived?

9. The practice of briefing counsel in good time before a hearing is well established. It avoids the adjournment of hearings where late briefing very close to the hearing leads to the absence of counsel. A period of several weeks prior to hearing has proven to be useful in order for counsel to prepare and to secure their attendance. It is a regular practice in completing hearing certificates, prior to setting down a matter for hearing, to advise the Tribunal of the availability of counsel for hearing. The Tribunal does take that into consideration when fixing the matter. Once fixed and the parties are advised, it is an appropriate time for briefing counsel for hearing. The Tribunal, as a practice, does not fix cases many months prior to the hearing as is the case in some of the superior courts. In general, the briefing of counsel for hearing 6 to 12 weeks prior to a hearing is a reasonable practice. Specifically in the present case, the fee was properly incurred.
10. The respondent submitted that the decision in Cameron was now over 30 years old and ought to be treated with caution. I disagree with that submission. The decision reflects the practice in the courts having civil jurisdiction in matters relating to personal injury and is apt for the application to matters arising for review in the worker's compensation jurisdiction of the Tribunal. The rule of paying the fee on brief reflecting the first day of hearing when a matter settled shortly before hearing is acknowledged in the cases, including Razzi, and the decisions referred to reflected that approach. It is not a question of payment of cancellation fees in respect of anticipated days of counsel's engagement where hearing dates are vacated or hearings unexpectedly shortened. It is a practice that continues as is reflected in the Guidelines of the NSW Costs Assessment Rules Committee for assessment of party-party costs. I also add that it has been the consistent rule applied during my long engagement in Tribunal review applications for more than six years as a solicitor followed by more than 20 years as a member of the Victorian Bar.
11. In the present case, at the time when the offer was made on 8 October 2025, a mere 19 days prior to hearing, Mr Ternes was properly briefed, and the applicant had incurred the cost of briefing counsel for hearing. In briefing counsel in that manner, the applicant's solicitor acted as a 'reasonable and prudent, but not over-cautious, solicitor.' The case was one that was likely to be of 4 days duration with several expert witnesses to give evidence in addition to the applicant. Counsel was briefed appropriately and in proper time to prepare for the hearing.
12. Accordingly, I find that the respondent is liable to pay the costs of Mr Ternes fee on brief in the sum of $3,850.00 on a party-party basis.

Ms Annabelle Ballard, instructed by McInnes Wilson Lawyers

[1] Subsections 3(1) and 5(3) of the Seamen's Compensation Act 1911

[2] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 204-205 [19] per Gleeson CJ, Gaudron and Hayne JJ.

[3] Cleveland v Goold & Porter Pty Ltd [1962] VicRp 1; [1962] VR 2, at 14, per Sholl J.

[4] Mark Brabazon SC, 'Cancellation fees'. Journal of the NSW Bar Association [2017] (Summer)

[5] [1991] FCA 267; (1991) 30 FCR 64, 67.

[6] Respondent's submissions 28 November 2025, [6].

[7] [2023] NSWSC 536 [17]-[18].

[8] Statement of Sarsha Lauterbach 20 November 2025 [2]-[3].

[9] Email of 8 October 2025 was attachment YT-3 of the Statement of Yaseen Abdul Rahman Tiry dated 28 November 2025.

[10] Email of 15 October 2025 was attachment YT-9 of the Statement of Yaseen Abdul Rahman Tiry dated 28 November 2025.

[11] [1987] VicRp 16; [1987] VR 221, 224.