South Australian Police Department v Tate [2000] SAWCT 156

3 The Full Tribunal has considered the question of costs in relation to Full Tribunal appeals in the matters of John Smith v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Underdale Metal Processing) JD25/1997; Johnny Kevin Adams v WorkCover Corporation/NZI Workers Compensation (SA) Ltd (WB and SM Doser) JD26/1997 and in WorkCover Corporation/MMI Workers Compensation (SA) Pty Ltd (Trans Ocean Terminals) v Varsamidis [2000] SAWCT 70. What was decided in those cases is as follows:

* Whereas generally in proceedings before the Tribunal a party other than the compensating authority, is entitled to the costs of the proceedings (subject to certain exceptions) in proceedings before the Full Bench of the Tribunal by way of an appeal and in proceedings before the Full Supreme Court by way of a case stated no such principle applies; (Smith)

* In the absence of such a principle the award of costs is a matter for the Full Tribunal's discretion (s 88F), save that the amount so awarded is limited by s 95(5); (Smith)

* The discretion pursuant to s 88F ought to be exercised in the usual manner that is to say in the absence of special circumstances a successful litigant should receive an order for the costs of the action to be paid by the unsuccessful party; (Smith)

* The fact that a worker was successful in the Tribunal below and became an unsuccessful respondent in the Full Tribunal, does not of itself demonstrate special circumstances. (Varsamidis)

4 In opposing the appellant's application for costs of the hearing Mr Pearce did not take issue with the decision of the Tribunal in the case of Smith. In that case the worker Smith failed both at first instance and on appeal. In the submission of Mr Pearce in instituting the appeal the appellant worker rightfully had to take his chances and had no cause for complaint if his claim failed yet again. Mr Pearce submitted however that where a worker was successful at judicial determination but unsuccessful on an appeal brought by an exempt employer or the Corporation the situation was different and this should be reflected in any decision of the Tribunal on the issue of costs.

5 Mr Pearce emphasised that appeals to the Full Tribunal were not limited to workers and could be brought by an employer or even a doctor in a dispute about charges for medical services. Whilst acknowledging that an object of the Act was to achieve a reasonable balance between the interests of employers and the interests of workers (s 2(1)(a)(i)) he nevertheless submitted that in dealing with the issue of costs it must be borne in mind that the Act was remedial legislation. Mr Pearce further submitted that:-

* Parliament could have enshrined in the legislation what he referred to as "the normal rule as to costs" if that was what was intended;

* Varsamidis was wrongly decided because it cut across the very philosophy of s 95(1) of the Act and that it was anomalous that a worker could act reasonably in all stages of litigation but lose on appeal and be "crushed" by an order for costs;

* The effect of the decisions of the Full Tribunal provided encouragement for litigants to run their own case on appeal to the detriment of the system as a whole.

6 In summary his submission was that the usual order of the Tribunal on appeal should be that as long as the worker acted reasonably in all the circumstances he should get his costs of the appeal win or lose.

7 In approaching the issue of costs on appeal to the Full Bench we can see no reason to depart from the conclusion reached in Smith (supra) and Adams (supra) that with respect to proceedings by way of appeal to the Full Bench, s 95(1) does not apply. Costs are in our general discretion.

8 Although the word "discretion" connotes a degree of latitude in the decision-maker: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 at par 19 per Gleeson CJ, Gaudron and Hayne JJ, there are limitations as to how it is to be exercised. The discretion must be exercised judicially. In respect of a discretion as to costs the Tribunal is limited to a consideration of matters relevant to the litigation. Moreover parties are entitled to assume that there will be some general consistency in approach as to how the discretion is exercised. See, for example: Donald Campbell and Co Ltd v Pollack [1927] AC 732 at 811 per Viscount Cave LC and Copping v ANZ McCaughan Ltd [1995] SASC 4917; (1995) 63 SASR 523 at 526 and 527 per King CJ.

9 We recognise that the overriding principle is that the order for costs be fair and just in all the circumstances: per Debelle J in Badge Constructions Pty Ltd v Penbury Coast Pty Ltd Supreme Court [1999] SASC 6.

10 We are also mindful of the important caveat that Doyle CJ noted in Santos Ltd v The Workers Rehabilitation and Compensation Corporation (1998) 199 LSJS 83 at 84 regarding the use to be made of previous decisions in respect of matters concerning the exercise of a discretion:-

"It is one thing to identify the principles in accordance with which the discretion must be exercised. Care must be exercised in applying judicial statements about the actual exercise of the discretion to another case. The reason for this is that the facts of each case will differ. Any statement about the actual exercise of the discretion will necessarily be shaped by the context in which it is made."

11 But, that said, and having given due consideration to the submissions of Mr Pearce we think that the decisions of the Tribunal that we have cited are fundamentally correct and reflect how the discretion conferred on the Full Bench on the issue of costs will generally be exercised and that is, absent special, unusual or exceptional circumstances, the successful litigant on appeal should ordinarily expect to recover costs of the appeal from the unsuccessful litigant.

12 Having made these observations we now turn to consider how our discretion ought to be exercised in this case.

13 The dispute here involved a relatively small amount, income maintenance for a closed period of about six weeks and limited s 32 expenses. Having failed to resolve at conciliation the dispute was referred for arbitration. An Arbitration Officer found against the worker for substantially the same reasons that were ultimately given by the Full Bench. Thus, the worker had the benefit of an independent umpire's decision that his claim could not be sustained. Whilst he had the statutory right to have a fresh hearing before a Presidential Member, in exercising that right he carried the risk that if he succeeded, the employer might appeal and on appeal he did not have the protection of s 95(1). Given the relatively small amount of compensation at stake here the worker's failure to accept the first umpire's decision is, in our view, a relevant factor. To put it another way, having lost at first instance, and having elected to pursue the matter further to attempt to recover a relatively small amount of money, the fact that the worker came to this appeal with an order in his favour does not excite much sympathy in determining how our discretion is to be exercised.

14 Mr Pearce submitted that although the amount of money involved was small, there was an important point of principle involved for both the employer and employee. We do not agree. There was no novel issue of law involved here. We do not think there was anything exceptional about the circumstances of this claim to warrant this being a factor in so far as the exercise of our discretion is concerned.

15 We have had regard to all of the submissions put by counsel but we do not consider that there is anything special, unusual or exceptional about the circumstances of this appeal. We therefore conclude that the worker should pay the employer's costs of the appeal to be agreed or in default of agreement taxed.