(i) The employer is to pay the worker's costs of the s 42 referral on a party/party basis at the rate of 85% of the fees set out in Part 1 of Schedule 1 to the Supreme Court Rules 2000.

(ii) The employer is to pay the worker's costs thrown away for the hearings scheduled on 4 and 5 December 2023 and 27 June 2024 on a party/party basis at the rate of 85% of the fees set out in Part 1 of Schedule 1 to the Supreme Court Rules 2000.

(iii) There will be no order for costs in relation to the conciliations of 29 August 2022 and 23 June 2023.

(iv) If the costs pursuant to these orders are not able to be agreed between the parties, the worker is to serve a bill of costs on the employer's solicitors pursuant to Regulation 15(1) of the Workers Rehabilitation and Compensation Regulations 2021 (Tas).

Tribunal's discretion to order costs - Party/party costs - Solicitor/client costs - No misconduct that caused loss of time to the Tribunal or other party - Costs thrown away - Objective rather than subjective basis - Workers compensation process was not unreasonably obstructed or prolonged - Reasonable attempts to resolve the claim through the conciliation process have been made.

Workers Rehabilitation and Compensation Act 1988; ss 42, 59, 61, 69, 71, 77, 81A, 138AB;

Workers Rehabilitation and Compensation Regulations 2021 (Tas); Reg 15(1);

Supreme Court Rules 2000 (Tas); Pt 1 Sch 1;

Public Order (Protection of Persons and Property) Act1971 (Cth), s 12(2);

Racial Discrimination Act 1975 (Cth), s 18(d).

C. v JBS Pty Ltd [2011] TASWRCT 38;

Keen v Deputy Registrar of the Administrative Appeals Tribunal [2007] AAATA 1763 at 599;

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801: 46 FCR 225_;_

Robinson v Aware Industries Ltd [1998] FCA 1256:

DSE (Holdings) Pty Ltd v Inter-Tan Inc. [2004] FCA 1251: 51 ACSR 55;

Bolwell v Jennings [1985] TASSC 60;

State of Tasmania (Department for Education, Children & Young People) v ENX [2025] TASCAT 124; Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC16.

This decision has been anonymised for the purposes of publication

1. This is the Tribunal's decision in relation to applications for costs made by the worker pursuant to s 59 of the Workers Rehabilitation and Compensation Act 1988 (the WRC Act).

1. On 31 December 2019 the worker suffered serious leg injuries following a fall at work.
2. On 3 September 2021 the worker lodged a workers compensation claim with her employer purportedly providing it to her employer on 7 September 2021.
3. At the time of her injury and her claim, the employer had not effected a policy of workers compensation insurance but, asserting it had the financial means to meet the worker's claim, dealt with the worker's claim as if it were "self insured".
4. On 15 October 2021 the worker's solicitors filed a s 42 application pursuant to the WRC Act. For procedural reasons, on 16 December 2021 a s 81A referral was consented to by the worker which avoided a jurisdictional issue with its s 42 application.
5. Thereafter, by June of 2022 in addition to its s 42 application, the worker had filed s 69, s 71 and s 77 applications with the Tribunal.
6. On 7 March 2023 the worker filed a s 138AB referral with the Tribunal, attaching to it a medical report from Dr Wilkinson relating to the worker's asserted whole person impairment.
7. The worker's applications proceeded through the Tribunal's conciliation and direction conference processes.
8. On 26 June 2024, all referrals before the Tribunal were resolved by consent orders as between the parties, save for reserved applications for:

(i) The worker's costs relating to conciliation conferences held on 29 August 2022 and 23 June 2023;

(ii) The worker's costs of and incidental to the s 42 referral, and for the proceedings generally;

(iii) The costs thrown away in relation to the hearings scheduled for 4 and 5 December 2023 and 27 June 2024.

1. At a directions hearing on 26 August 2024, directions were given setting a timetable for the delivery of submissions relating to the worker's solicitor's application for costs.
2. In accordance with the directions of 26 August, the worker's solicitors filed written submissions on 26 August 2024.
3. Although slightly beyond the time set for the provision of its written submissions in the directions hearing of 26 August 2024, on 13 September 2024 the employer's counsel filed his written submissions. For completeness sake, I amend direction 1 of 26 August 2024 to extend the time for the provision of the employer's written submissions to 13 September 2024. I note that this is only five days after the timeframe indicated in direction 1 of 26 August 2024 had expired, and in any event, on 20 September 2024 the worker's solicitors provided responsorial submissions to the employer's written submissions and was thus not materially prejudiced by this slight delay.

1. Having considered all of the written submissions filed in relation to these costs applications, it is apparent to the Tribunal that the following are the issues to be determined by the Tribunal:

(i) Whether the employer should pay the worker's costs of the conciliations of 29 August 2022 and 23 June 2023 and if so, the basis on which those costs should be paid.

(ii) The basis upon which the employer is to pay the worker's costs of the s 42 referral and for the proceedings generally, and if determined to be on a party/party basis, the rate at which they are to be paid.

(iii) The basis upon which the employer is to pay the worker's costs thrown away for the hearings scheduled on 4 and 5 December 2023 and 27 June 2024, whether on a solicitor/client basis, the rate at which those costs should be paid, and at what rate those costs should be paid.

1. The matters before the Tribunal have a long and complicated history, and following my review of the Tribunal's file, the following relevant matters are apparent:

• The worker's s 42 application was filed with the Tribunal on 15 October 2021, being dated 10 October 2021.
  • On 10 November 2021 Mr John Mountford advised that he had been instructed to act on behalf of the employer.
  • By agreement a telephone conference with the Tribunal was adjourned on 10 November 2021.
  • On 6 December 2021 Mr Philip Zeeman of counsel advised that he was acting for the employer.
  • After agreement between the parties for procedural reasons on 16 December 2021 the worker consented to an employer referral pursuant to s 81A of the WRC Act.
  • On 11 May 2022 the worker's solicitors indicated they had sent an offer to the employer but had no response from the employer (there was no detail in the Tribunal file as to when this offer was actually sent).
  • On 17 May 2022 Mr Zeeman emailed the Tribunal indicating that he was seeking instructions regarding an offer from the worker's solicitors which remained open for 28 days (but which had not yet expired), and that he considered conciliation to be a "good idea".
  • On 8 June 2022 Mr Gates of counsel indicated that he was advising the worker.
  • Prior to a directions hearing on the afternoon of 9 June 2022, the worker's solicitors indicated that the parties had discussed the matter and were in agreement that there was little merit in proceeding with conciliation scheduled for 10 June 2022 as the parties were negotiating in an attempt to narrow issues of contention. The conciliation date and the directions hearing were vacated with a further directions hearing being requested to be listed within the next two weeks.
  • During a telephone conference on 22 June 2022 Mr Gates confirmed he was advising the worker's solicitors and that the previous offer had been withdrawn as they are now considering a much larger claim. Mr Zeeman indicated he had scant instructions, except that his briefing solicitor was having some trouble obtaining any responses from the employer and that he had given advice which included the employer advising the Nominal Insurer of a possible interest. The employer apparently also had some health issues and it was not clear whether or not the employer would be able to meet any order. The outcome of this conference was listing for conciliation in late August with the employer to attend in person unless the Nominal Insurer had become involved.
  • On 12 July a conciliation conference was listed for 29 August 2022. The worker's solicitor did not make any substantive submissions regarding the allocation of this date.
  • A conciliation conference was conducted in the Tribunal on 29 August 2022. Present were Mr Gates of counsel for the worker with Mr Dordhain, the worker's solicitor, the worker and her partner. Mr Zeeman of counsel appeared for the employer along with Mr Dennis Brown from the employer. The matter was not able to be resolved, and it was agreed to be relisted in three months from the date of this conference.
  • The matter next came on before the Tribunal in a telephone conference on 19 December 2022. Mr Dordhain appeared for the worker and Mr Zeeman for the employer. Mr Dordhain indicated the worker was being assessed for a whole person impairment by Dr Wilkinson in early February 2023. He indicated he had provided all materials mentioned at the last telephone conference but had not had any response, including the wage information the employer was to provide. Mr Zeeman indicated "he has not been favoured with instructions", despite follow up. He advised he would have a firm talk to the employer's new solicitor about the need to respond to the worker's request for information. Mr Cooper of the Tribunal suggested that Mr Zeeman advise the employer that if it does not engage with the process, the employer will receive notices requiring mandatory personal attendance at the Tribunal every time a telephone conference was scheduled.
  • A telephone conference took place in the Tribunal on 20 January 2023 with Mr Zeeman appearing for the employer and Mr Dordhain for the worker. Mr Zeeman indicated that the employer's solicitor, Mr John Mountford, had retired due to ill health. A new firm of solicitors had taken over, and the new lawyer was "finding their feet". Mr Dordhain had received an email from Mr Zeeman the preceding day with employment information. That email dealt with the matters then outstanding.
  • Mr Dordhain indicated the worker still has an IME with Dr Wilkinson scheduled in early February.
  • A telephone conference occurred on 2 March 2023. Mr Zeeman appearing for the employer, Mr Schubert appearing for the worker. Mr Schubert advised that the worker was still awaiting a report from Dr Wilkinson and hoped to have it in the next one to two weeks. It was agreed to relist a telephone directions conference in three to four weeks.
  • A telephone conference scheduled for 31 March 2023 was, by consent, agreed to be adjourned for a week as a consequence of the worker having recently filed on 7 March 2023 its referral under s 138AB of the WRC Act.
  • A telephone conference on 14 April 2023 was attended by Mr Zeeman and Mr Schubert. Mr Schubert indicated the worker had filed a s 138AB referral with the Tribunal along with a copy of Dr Wilkinson's report and was ready for a conciliation conference. Mr Zeeman advised he was not yet ready for a conciliation conference as he needed to obtain instructions from his instructing solicitor. He advised he may be ready for a conciliation conference but needed 21 days to do so to finalise his position.
  • Mr Schubert for the worker indicated that he was happy with that but noted the worker wished to have this matter resolved as soon as possible, noting the initial referral was in 2021.
  • On 8 May 2023 agreement was reached between the parties to list a conciliation conference for 24 May 2023. In an email on 5 May 2023 Mr Schubert for the worker indicated that 24 May suited him, his client and Mr Gates of counsel, but also indicted that the worker had indicated to him that she had to make a trip to New Zealand to see her unwell father and the timeframe for this had blown out after he was diagnosed with stage 4 cancer. Mr Schubert indicated in these circumstances he sought for the worker to attend by videolink, and that if this cannot be accommodated, it may be that we need to reschedule for a date in June (2023).
  • In a telephone conference on 5 May 2023 attended by Mr Schubert for the worker and Mr Zeeman for the employer, agreement was reached to list the conciliation conference for the morning of 25 May 2023.
  • On 23 May, Mr Schubert for the worker emailed the Tribunal to indicate that Mr Zeeman had indicated to him that he may have some concerns about participating online, and that if that was the case, and noting that the worker was returning to Tasmania in the following week, it may be appropriate to find a new date. After some further communications Mr Schubert for the worker confirmed he was content to consent for the adjournment of the conciliation conference scheduled for 25 May, indicating that he was available 26-28 June 2023 for that purpose. The conciliation was listed for Friday 23 June 2023 at 11:00am.
  • This conciliation conference occurred as scheduled on 23 June 2023. The matter was not able to be resolved by a conciliated outcome. A telephone conference was listed for 27 July 2023.
  • On 4 August 2023 the Tribunal followed up with Mr Zeeman seeking an update as to progress, doing so again on 11 August 2023.
  • In an email from the Tribunal to the worker's solicitor and Mr Zeeman on 22 August 2023 at 10:12am, Mr Thomas of the Tribunal indicated that he had been unable to make contact with Mr Zeeman on 22 July 2023, and that since that time numerous emails and phone calls by the Tribunal to follow up with Mr Zeeman regarding the employer's position had not received any response. Mr Thomas indicated that he took the view that he was unable to advance the conciliation process any further at this stage and will have the matter listed before a Tribunal Member with a view to progressing to a hearing.
  • On 14 August 2023 the worker's solicitors provided a summary of the position to that time to both the Tribunal and Mr Zeeman.
  • On Tuesday 22 August 2023 a notice to attend a directions hearing by telephone for Monday 28 August 2023 was issued to the parties.
  • The directions hearing for 28 August 2023 took place as scheduled before then Deputy President Clues. Mr Schubert appeared for the worker and Mr Zeeman for the employer. The outcome of this directions conference was a timetable setting the matter down for a two-day hearing on 4 and 5 December 2023.
  • A notice of hearing for Monday 4 December and Tuesday 5 December was issued by the Tribunal on 29 August 2023.
  • The directions made on 28 August 2023 were as follows:
    1. That by 11 September 2023 the worker is to provide the employer's solicitor with all workers compensation medical certificates upon which she intends to rely to support her claim.
    2. That by 18 September 2023 the worker's solicitor is to file and serve on both the solicitor and counsel for the employer a statement of facts, issues and contentions.
    3. That by 2 October 2023 the employer is to file and serve on the worker's solicitor its statement of facts, issues and contentions, noting any facts and issues that can be agreed.
    4. That the matter be set down for a two day hearing on notice to the parties on 4 and 5 December 2023.
    5. On or before 6 November 2023 each party is to make any requests for notices to produce, notices to witnesses or any other type of summons that the parties want the Tribunal to issue.
    6. That by 23 November 2023 the worker's solicitor is to file with the Tribunal and serve on the solicitor and counsel for the employer a hearing book. The hearing book will contain all of the documents that can be tendered in evidence by agreement and all of the documents that either party relies upon but cannot be tendered by agreement. The hearing book is to be indexed, tabulated and paginated. The hearing book is to be filed with the Tribunal and served upon the employer's solicitor and counsel electronically. Further, two hard copies are to be delivered to the Tribunal.
    7. That the matter be set down for a pre-hearing conference by telephone on 27 November 2023 at 4:15pm on notice to the parties.

• There is nothing before the Tribunal to indicate that the worker complied with direction 1 of 28 August 2023, but on 19 September at 1:40pm the worker's solicitors complied with direction 2.
• On 23 October 2023 the worker's solicitors contacted the Tribunal to advise that the employer had not complied with direction 3 from 28 August 2023 which was required by 2 October and a follow up on 13 October had not received a response. The Tribunal responded affirmatively to the worker's solicitor's request for the matter to be listed for a directions conference which was scheduled to occur on 31 October 2023.
• The directions hearing occurred as scheduled on 31 October 2023. Mr Gates appeared for the worker and Mr Zeeman for the employer.
• Mr Zeeman apologised to the Tribunal for his non-compliance with the directions from 28 August 2023 directions hearing, and indicated that he had a draft statement in progress, and was hopeful that it would be filed and served by the end of the week. Mr Gates did not oppose any extension of time until 3 November 2023, but noted that he could not anticipate whether any further extensions would be required from the worker until after he saw that statement. Further directions were made by the Tribunal extending the time within which the employer was to file and serve on the worker's solicitors its statement of facts, issues and contentions, noting that the time for the delivery of any facts and issues that could be agreed was extended from 2 October to 3 November 2023. These directions were confirmed to the worker's solicitors and the employer's solicitors by email at 2:10pm on 1 November 2023.
• On 8 November 2023, some five days after the expiration of the extension of the direction given in the telephone directions hearing on 31 October 2023, the worker's solicitors contacted the Tribunal to indicate that they had not received the employer's statement of facts, issues and contentions pursuant to those directions and requested an urgent listing. A notice to attend a directions hearing issued on that day for a telephone directions hearing to take place on Thursday 9 November 2023 at 10:00am.
• The telephone directions hearing before then Deputy President Clues took place as scheduled on 9 November 2023. Mr Gates appeared for the worker and Mr Zeeman for the employer. Mr Zeeman made a number of submissions with regard to the advancement of this matter. Mr Gates submitted that Mr Zeeman's submissions were an accurate reflection of the state of the proceedings. Mr Gates submitted that the worker had been required to attend at least two conciliation conferences organised by the Tribunal and that he believed they fell within s 59 of the WRC Act, where the costs of those conciliation conferences should be paid by the employer. With respect to the worker's s 138AB referral, it was agreed that it should be referred back to the conciliation process for a teleconference not before 30 January 2024. The hearing dates on 4 and 5 December were vacated with the Tribunal noting the worker's application for costs thrown away by virtue of the vacation of the hearing dates. Mr Zeeman submitted that the employer would be prepared to pay the reasonable costs thrown away as a result of the vacation of the hearing dates. Mr Gates indicated he would need to consider whether that would be on a party/party basis or a solicitor/client or indemnity basis. It was agreed that the costs application would be noted and adjourned. Draft orders were proposed with a requirement that they be finalised between the parties. These directions were confirmed by the Tribunal in an email to Mr Gates and Mr Zeeman at 8:54am on 10 November 2023.
• A telephone conference which was scheduled for 1 February 2024 did not occur due to Mr Zeeman's unavailability. The worker's solicitors agreed to a seven day adjournment.
• A telephone conference which was listed for 8 February 2024 occurred. Mr Zeeman appeared for the employer and Mr Schubert for the worker. In this telephone conference Mr Zeeman indicated that he was dealing with a serious personal issue and that this was his focus at that time. He advised that he was aware of this matter, and that he will make an effort to contact the worker's solicitors in the following week when he is back in chambers. Mr Thomas of the Tribunal, indicated that he certainly understood Mr Zeeman's situation and would not be pushing this matter. Mr Zeeman said that he was content for contact to be attempted with him next week and that hopefully by that stage he will have spoken to the worker's solicitor.
• On 19 February 2024 the worker's solicitors emailed a letter to the Tribunal and Mr Zeeman indicating that they had understood from Mr Zeeman's email of 8 November 2023 that his client wished to have the worker examined in response to the report from Dr Wilkinson which it had attached to the s 138AB referral of 7 March 2023. It was further contended that despite this having been followed up with the employer's solicitors in December 2023 to which they had received no response, they now sought to have the referral progressed on the basis the employer no longer required the worker to be further examined.
• The Tribunal's file indicates that on 20 February 2024 Mr Thomas spoke to Mr Zeeman who indicated he would be returning to chambers in the following week, him having been "seriously distracted". Mr Zeeman did however note that the worker's solicitors had been reasonable and he understood that the matter needed to be progressed. He indicated he would update on his return in the following week. On 23 February the Tribunal contacted the worker's solicitors to advise them of this contact with Mr Zeeman.
• A directions hearing listed for 27 March 2024 was adjourned to another suitable date as Mr Zeeman was advisedly appearing on another matter in the Supreme Court. By agreement, a directions hearing by telephone was listed to occur on 8 April 2024.
• The 8 April 2024 directions hearing took place before then Deputy President Clues as scheduled. The following directions were made and communicated to the parties via email on 9 April 2024 at 3:09pm:

1. That the worker's referral pursuant to s 138AB (W/2023/236) be set down for hearing on Thursday 27 June 2024 at 9:30am on notice to the parties. 2. That the worker's application for costs with respect to the s 42 referral (W/2021/1051) as well as her application for the costs thrown away as a result of the vacated hearing dates of 4 and 5 December 2023 be set down for hearing on Friday 28 June 2024 at 9:30am on notice to the parties.

3. That both parties have liberty to apply to the Tribunal.

• The Tribunal's file reveals that on 3 June the worker's solicitors sought a pre-hearing directions conference in readiness for the s 138AB hearing scheduled for 27 June 2024.
• The directions hearing listed for 9:30am on Thursday 13 June 2024 before then Deputy President Clues took place as scheduled, with Mr Gates appearing as counsel for the worker and Mr Zeeman appearing as counsel for the employer. The following directions were made:

1. If the worker seeks to amend the s 138AB referral (W/2023/236) to include a determination in relation to an assessment of the worker's permanent impairment resulting from the injury of 31 December 2019, then that application and submissions in support should be filed and served on or before 20 June 2024. 2. If the application in Direction 1 is opposed by the employer, submissions are to be filed and served on or before 25 June 2024. 3. If the application is not resolved between the parties, then the Tribunal will determine it at the hearing on 26 June 2024. 4. That on or before 20 June 2024, the worker is to file and serve electronically a hearing book. The hearing book is to include all of the documents that the parties seek to rely upon in support of the referral. The hearing book is to be indexed, tabulated and paginated. 5. If any documents in the hearing book cannot be tendered by consent at the hearing, the employer will advise the worker on or before 25 June 2024. The employer will identify the documents that cannot be tendered by consent and the reasons why. A determination in relation to the documents can be made at the hearing on 27 June 2024. 6. On or before 25 June 2024, the parties are to advise the Tribunal if any witness is to give evidence via Microsoft Teams. The Tribunal should be notified in writing of the name, email address, and mobile phone number of that witness. 7. On or before 25 June 2024, the employer is to advise the worker of any witness it intends to call to give evidence and it is to provide a summary of the nature of the evidence to be given by that witness. 8. On or before 20 June 2024, the employer is to advise the worker if the employer does not concede that the hip surgery the worker has undergone results from the injury of 20 December 2019. 9. That at 9:00am on 25 June 2024, a pre-hearing conference will take place on notice to the parties.

10. That the parties have liberty to apply generally.

• The pre-hearing directions conference took place as scheduled on 25 June 2024. Mr Gates appeared for the worker and Mr Zeeman for the employer. The s 138AB matter was set down for hearing on Thursday 27 June 2024.
• On 26 June 2024 formal orders resolving all of the worker's referrals to the Tribunal were made by then Deputy President Clues pursuant to s 61 of the WRC Act.
• By an email from the Tribunal at 2:42pm on Friday 28 June 2024, it was noted that the worker's referrals W/2021/1051 and W/2023/236 had been resolved by consent between the parties and that it was noted that the employer had agreed to pay the worker's costs of and incidental to the referrals, however the basis upon which those costs were to be paid either on a party/party or solicitor/client/indemnity basis had not been agreed. It was directed that if no agreement could be reached in relation to the basis upon which the worker's costs were to be paid by the employer then the worker was to advise the Tribunal on or before 26 July 2024, and the matter would be set down for directions hearing to enable a timetable to be set for a determination on that issue.
• On Friday 12 July a notice was issued to the parties setting down a directions hearing for Monday 26 August 2024.
• Submissions in relation to costs were received from the parties, the worker's solicitor's on 26 August, the employer's submissions on 13 September (5 days outside the directed timeframe) and the worker's response submissions on 20 September 2024.

1. Section 59 of the WRC Act provides the Tribunal with the discretionary power to order costs.
2. Section 59 provides:

(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 discretion in relation to costs in the workers compensation claim jurisdiction was discussed by Commissioner Chandler in a case of C. v JBS Pty Ltd [2011] TASWRCT 38.
2. At [4] of that decision, Commissioner Chandler (as cited in the employer's solicitor's submissions) made the following relevant comment as to costs:

Section 59(1) provides the Tribunal with a broad discretion upon costs, it stating ".....the Tribunal may make such orders as to costs as it considers appropriate in any proceedings before it". The proper exercise of that discretion usually requires a costs order to be made in favour of the successful party absent good reason not to do so. Farrow v State of Tasmania [1997] TASSC 62 (2007) 7 TasR 127. In the instant case the employer was the successful party in that it obtained a determination that a reasonably arguable case exists concerning the worker's claim.

3. It is on this basis, that save for the rate at which these costs are to be paid, the employer's solicitors have properly not opposed an order that they pay the worker's costs of the s 42 reference nor the costs thrown away for the hearings scheduled on 4 and 5 December 2023 and 27 June 2024.

Party/party or solicitor/client costs for the costs throw away for the hearings scheduled on 4 and 5 December 2023 and 27 June 2024

1. Decisions of the Workers Rehabilitation and Compensation Tribunal and by this Tribunal have consistently stated that the costs of workers compensation proceedings are to be paid on a party/party basis. Costs on a party/party basis are such costs as are necessary and proper for the attainment of justice or for the enforcing or defending the rights of a party whose costs are being taxed. Costs on a party/party basis do not entitle the successful party to a complete indemnity to his or her costs. The costs are those that are necessary to enable the successful party to conduct the litigation and no more. It is also said that the successful party should have his or her full costs but not luxuries (see Keen v Deputy Registrar of the Administrative Appeals Tribunal [2007] AATA 1763 at 599.
2. The usual course is that costs follow the event and are payable on a party/party basis, but as was explained by Shepherd J in Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801: 46 FCR 225 at 233, there may be circumstances that justify departing from the usual course, including "evidence of particular misconduct that causes loss of time to the court and to other parties". In Robinson v Aware Industries Ltd [1998] FCA 1256, Weinberg J held that the applicant's conduct constituted misconduct of the kind described by Shepherd J in Colgate-Palmolive Co v Cussons Pty Ltd (supra) where, after a trial was listed, the applicant "did nothing of any consequence....to ensure that the trial could commence on the date fixed" and "made no effort to communicate to the respondents in a timely manner the fact that he might not be in a position to commence [the] trial on the date fixed for hearing".
3. Similarly, Allsop J (as he then was) in DSE (Holdings) Pty Ltd v Inter-Tan Inc. [2004] FCA 1251: 51 ACSR 55, ordered that costs be paid on an indemnity basis in a case in which His Honour described parties as having engaged in "trench warfare" at [37]. Matters relevant to His Honour's decision included that the respondents had deliberately chosen not to outline with clarity the position of a key witness (at [26]), and at [36] had failed to "bring forward reasonably frankly the determinative or likely determinative evidence".
4. Having considered the written submissions of both the worker and the employer, and noting that the worker's solicitors in their application for costs have only sought costs on a solicitor/client basis for the costs thrown away for the hearing scheduled for 4 and 5 December 2023 and 27 June 2024 (see para 13(iii) above), as it is the normal practice of the Tribunal to award costs on a party/party basis, and I can see no reason for departing from that practice, the form of the order for the payment of the worker's costs pursuant to a s 42 application (para 13(ii) above) will be on a party/party basis.
5. With regard to the costs thrown away for the hearings scheduled for 4 and 5 December 2023 and 27 June 2024, I am not satisfied that there are any circumstances that justify departing from the usual course of awarding costs on a party/party basis.
6. With regard to the hearings scheduled for 4 and 5 December 2023, although the employer's counsel did not comply with the directions made on 28 August 2023, during the directions conference on 31 October 2023 the worker's counsel did not oppose the employer's counsel's request for an extension of time to provide further materials.
7. By the time this matter had come on for a directions hearing before then Deputy President Clues on 9 November 2023, Mr Zeeman had indicated agreement that the employer would be prepared to pay the worker's reasonable costs thrown away as a result of the vacation of the hearing scheduled for 4 and 5 December 2023 which had occurred during that directions hearing.
8. As there is no evidence before me of any particular misconduct that causes loss of time to the Tribunal or the other party, I am not persuaded that I should depart from the usual order that the costs throw away for this hearing should be paid on a party/party basis rather than a solicitor/client or indemnity basis.
9. With regard to the hearing of the s 138AB referral on 27 June 2024, I am similarly not persuaded that there is evidence of particular misconduct by the employer that caused loss of time to the Tribunal and/or the other party.
10. The time between the directions conference on 1 February 2024 and the vacation of the hearing date for 27 June 2024 which occurred on 8 April 2024 is just under three months.
11. During that period, there is clear evidence of the employer's counsel providing reasons for his non-attendance at telephone conferences through February 2024, and also clear evidence disclosed by the employer's counsel to the Tribunal and to the worker's solicitors, of him having significant events occurring in his personal life through this period.
12. Similarly, the Tribunal's file indicates the employer's counsel indicated his unavailability due to a clash with a matter in the Supreme Court on 27 March, advising as such, with the worker's solicitors agreeing to a further adjournment.

1. Section 59(2) of the WRC Act provides that the Tribunal may not order costs in respect of the conciliation process in Division 2 of the WRC Act except if it appears to the Tribunal that a party has unreasonably obstructed or prolonged that process, or has not made reasonable attempts to resolve the claim through the conciliation process.
2. I accept the employer's counsel's submissions that the phrase "unreasonably obstructed or prolonged the process", has not been considered in the context of the WRC Act, and that whilst it is readily accepted the standard to which the Tribunal must be satisfied is different, the question remains essentially the same to that considered in Bolwell v Jennings [1985] TASSC 60 by Cox J, as he then was, and considering s 12(2) of the Public Order (Protection of Persons and Property) Act 1971 (Commonwealth).
3. As the employer's counsel has stated, whilst the worker may have found it irritating or inconvenient, there is no evidence of any delay in the conciliation process being unreasonable in the context of the WRC Act.
4. In other contexts, questions of reasonableness have been found necessary to be determined on an objective rather than a subjective basis. For example, in the context of s 25(1A)(a) and (c) of the WRC Act, see State of Tasmania (Department for Education, Children & Young People) v ENX [2025] TASCAT 124 and Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC16 where, when dealing with the interpretation of s 18(d) of the Racial Discrimination Act 1975, French J stated at [79]:

In this context that means a judgement independent of that which the actor thinks is reasonable.

5. Just because the worker considers that the employer unreasonably obstructed or prolonged that process or had not made a reasonable attempt to resolve the claim through the conciliation process, does not of itself make it unreasonable.
6. Even if I am wrong as to the issue of unreasonable obstruction or prolonging of the conciliation process being considered on an objective rather than a subjective basis, on the evidence before me in relation to the conciliation held on 29 August 2022, there is no basis for me to find that the employer did unreasonably obstruct or prolong that process nor did it make any reasonable attempt to resolve the claim. The evidence clearly indicates that the conciliation took place on 29 August 2022, but agreement as to the resolution of the referrals then within the Tribunal was unable to be achieved.
7. Additionally, there is no material on the Tribunal's file indicating that the involved conciliator had any concerns that the employer's conduct was of this character.
8. Similar matters relate to the conciliation of 23 June 2023, which also took place as scheduled, but was unable to be resolved by agreement.
9. As with the conciliation on 29 August 2022, there are no notes or other indications on the Tribunal's file that the involved conciliators for the conciliation conference on 23 June 2023 had any concerns regarding the conduct of the employer's counsel or the employer generally.
10. For all of these reasons, I do not consider there are grounds for me to depart from the indications in s 59(2) of the WRC Act that costs should not be ordered in respect of a conciliation unless I am satisfied of the matters set out in s 59(2). I am not so satisfied.

The rate at which party/party costs are to be paid

1. The employer's solicitors contend that as there is no scale of costs in the Tribunal and the appropriate and usual order is that those costs should be assessed at the rate of 80% of the scale of costs contained in Sch 2 of the Tasmanian Supreme Court Rules 2000, that is the appropriate rate at which the worker's solicitor's costs should be paid.
2. The worker's solicitors have contended in response that the correct calculation is 85% as per Rule 15 in the Workers Rehabilitation and Compensation Regulations 2021 (Tas).
3. Rule 15 is set out in Division 2 - Costs in the Regulations and states as follows:

Bill of Costs > > (1) If costs are not agreed between the parties the successful party deemed costs have been awarded by an order of the Tribunal may serve a bill of costs on any unsuccessful party. > > (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.

4. The Workers Rehabilitation and Compensation Regulations 2021 (Tas) (the WRC Regulations) came into effect on 13 July 2021, which was before the worker's claim being initially referred to the Tribunal.
5. The employer's solicitor's submissions are clearly incorrect.
6. There is a scale for costs in workers compensation matters dealt with by the Tribunal, that being, as asserted by the worker, at the rate of 85% of the costs contained in Sch 1 of the Tasmanian Supreme Court Rules.
7. On the evidence before me I can see no reason to depart from the assessment of the worker's costs at the rate prescribed in Reg 15(2) of the WRC Regulations.

1. For all of the reasons indicated above there will be no order that the employer pay the worker's costs of the conciliations of 29 August 2022 and 23 June 2023. There will be an order that the employer pay the worker's costs of the s 42 application and the proceedings generally on a party/party basis. There will be an order that the employer pay the worker's costs thrown away for the hearing scheduled for 4 and 5 December 2023, and 7 June 2024, also on a party/party basis.

(i) The employer is to pay the worker's costs of the s 42 referral on a party/party basis at the rate of 85% of the fees set out in Part 1 of Schedule 1 to the Supreme Court Rules 2000.

(ii) The employer is to pay the worker's costs thrown away for the hearings scheduled on 4 and 5 December 2023 and 27 June 2024 on a party/party basis at the rate of 85% of the fees set out in Part 1 of Schedule 1 to the Supreme Court Rules 2000.

(iii) There will be no order for costs in relation to the conciliations of 29 August 2022 and 23 June 2023.

(iv) If the costs pursuant to these orders are not able to be agreed between the parties, the worker is to serve a bill of costs on the employer's solicitors pursuant to Regulation 15(1) of the Workers Rehabilitation and Compensation Regulations 2021 (Tas).