T v The State of Tasmania

(1) Except as provided in subsection (2), the Tribunal may make such order as to costs as it considers appropriate in any proceedings, in relation to this Act, that are before it.

(2) The Tribunal may not order costs in respect of the conciliation process set out in Division 2 except if it appears to the Tribunal that a party -

(a) has unreasonably obstructed or prolonged that process; or

(b) has not made a reasonable attempt to resolve the claim throughout the conciliation process.

(3) If a party to proceedings withdraws proceedings, other than proceedings in relation to a referral under section 81A, costs are payable by the party.

(4) Division 10 of Part 8 of the Tasmanian Civil and Administrative Tribunal Act 2020 does not apply in relation to proceedings in relation to this Act.

1. The Workers Rehabilitation and Compensation Regulations 2021 address the scale of costs and the assessment process. Regulation 15(2) states:

(2) Unless the Tribunal otherwise orders, the fees in a bill of costs are to be at the rate of 85% of the fees set out in Part 1 of Schedule 1 to the Supreme Court Rules 2000.

1. The hearing ran for approximately one and a half days and involved several issues relevant to whether the employer was liable to pay workers compensation. The employer conceded that the worker's injury arose from reading the referee report. The employer submits that its concession significantly reduced the hearing time. That may be true, but it does not bear upon the question of costs as it arises in this case. The concession was properly made and, based on the employer's own evidence, inevitable.
2. Instead, the question of costs turns on what the worker describes as the two foundations of the employer's case. The first is that his injury, although arising from reading the referee report, did not arise from his employment. The Tribunal found for the worker on this issue: Liability Decision at [19]-[20].
3. The second is that one or more of the defences in the WRC Act, s 25(1A) applied. The employer relied on alternative defences in s 25(1A)(b) and (c). The Tribunal found for the employer on each of the two defences: Liability Decision at [49] and [68].
4. The worker says that approximately half of the hearing time and submissions were devoted to the first issue. He says that the employer should have conceded the first issue and therefore the employer should only have half of its costs.

1. Section 59 amounts to a proposition that costs ordinarily follow the event: Sims Knipe Maver & Pereira Pty Ltd v Vince [1999] TASSC 8 at [4]. That is, where the successful party acted reasonably, it should (absent other relevant matters) not be deprived of its costs: State of Tasmania v Farrow [1997] TASSC 62; (1997) 7 Tas R 127. The employer submits that there is no reason to depart from this general rule and refers to its concession of the worker's injury.
2. The worker submits that he should pay 50% of the employer's costs of the referral. The primary basis is that approximately half of the hearing time and submissions were devoted to an issue on which the employer failed. There is some authority to suggest that in applying the general rule, particular issues may be regarded as particular events for the purposes of costs. Beazley, Ipp and Basten JJA summarised the relevant principles in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]:

The principles governing the making of an order as to costs so as to reflect the time taken in dealing with a particular issue in which the successful party in the proceedings or on the appeal did not succeed were reviewed by this Court in Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373. Those principles may be summarised as follows:

• Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).
• In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.
• If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].
• Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).
• A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].
• Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272.

1. On the other hand, there is some authority to suggest that the fact that a successful party failed on some issues does not itself mean that it should be deprived of its costs in respect of them: Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 at [8]. Moreover, a successful defendant may be afforded some greater latitude on the basis that, unlike a successful plaintiff, it is an unwilling party to litigation: Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 at [19].

1. The starting point is that costs should follow the event. Costs are designed to compensate a successful party, not punish an unsuccessful party. However, there are some factors pointing to awarding the employer a (lesser) percentage of its costs.
2. In the absence of objection by the employer, I accept the worker's submission that the first issue (on which he succeeded) occupied approximately half of the hearing and submissions. This time would not have been required had the employer conceded that issue.
3. There are several factors suggesting that the employer should have all its costs. First, it was wholly successful as to liability. To my mind, there is less justification to depart from the general rule where a wholly successful party succeeded on only some of its issues than where the party enjoyed only partial success.
4. Second, the employer was defending a claim and in that sense was an unwilling party to litigation.
5. Third, there was nothing unreasonable or unnecessary about the employer's decision to raise the first issue or the way in which the issue was raised. It is apparent from the Liability Decision that the issue was arguable and that the employer was entitled to 'put the worker to proof' on it. That there was some authority, referred to in the Liability Decision, which did not support the employer's case did not mean that the issue was unarguable or that it was otherwise unreasonable for the employer to raise it.
6. Weighing up these matters, there is insufficient justification to depart from the general rule that costs follow the event and that a successful party is entitled to all of its costs rather than a proportion of them based on success not on all issues.

1. I order that the worker pay the employer's party/party costs of and incidental to the referral.