Workcover Corporation/Mmi (Trans Ocean Terminals) v Varsamidis [2000] SAWCT 70

S 88F:-

"Subject to this Act, the costs of proceedings before the Tribunal are in the discretion of the Tribunal."

S 95(1)(b):-

"A party is entitled ... to an award against the relevant compensating authority for the party's reasonable costs of

(b) any subsequent proceedings for resolution of the dispute under this Part (but not proceedings by way of an appeal or case stated to a Full Bench of the Tribunal or the Supreme Court)."

3 The Full Tribunal noted in Adams and Smith that the primary rule to be adopted on costs in the Full Tribunal, was that costs were to follow the event. That is to say the unsuccessful party would be normally subject to an order to pay the other party's costs - other than in special circumstances.

4 Mr Wilson submitted that the general philosophy of the Act was that the worker was to be put into a position that gave the worker an economic capacity to litigate, equivalent to that of the Corporation or exempt employer.

5 In the case of a worker unsuccessful at judicial determination and unsuccessful before the Full Tribunal, the application of the ordinary rule is unexceptional.

6 However in the case of a worker successful at judicial determination but unsuccessful (ie by reversal) in the Full Tribunal the success in the tribunal below demonstrates the special circumstances adverted to in Adams and Smith.

7 That the Full Tribunal's previously expressed views are well founded is fortified by what fell from Bray CJ in Creatazzo v Lombardi (1975) 13 SASR 4 at 12:-

"There must be some reason for departing from the settled practice whereby the successful party receives his costs from his opponent - see Donald Campbell and Co v. Pollock (1927) AC 732, per Viscount Cave L.C. at p.812."

8 This Tribunal's view is that 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.

9 The Full Tribunal repeats that in accordance with s 88F there is a residual discretion in the Full Tribunal to shape an order for costs appropriate to the case.

10 The ambit of what constitutes "special circumstances" is so wide and so varied, it would be inappropriate and unprofitable to attempt to essay a definition thereof.

11 However the mere fact of being successful before a Deputy President and unsuccessful before the Tribunal does not of itself fall within the ambit of special circumstances.

12 The respondent is to pay the appellant's costs of and incidental to this appeal, such costs to be agreed or taxed.