Worker ordered to pay the employer’s costs after opposing a discovery application and losing (TASCAT, 2026)

What happened

The underlying matter was a set of workers compensation referrals brought by a worker against the State of Tasmania as his employer. Three file numbers were on foot. The worker's name was anonymised for publication.

During that litigation the employer applied for discovery, which means an order that the other side produce documents relevant to the dispute. In an earlier decision the senior member ordered the worker to make discovery of any documentation relevant to his intention to work, or not work, beyond the date on which he became eligible for defined benefit pension payments.

That left the question of who should pay the costs of the discovery application. Each side said it had won and should have its costs. The costs question was decided on written submissions only, with no hearing. The worker was represented by a law firm and the employer by the State Litigation Office.

The tribunal recorded that the worker had not yet produced any documents in answer to the discovery order, and that the evidence before it on whether the discovery obligation had been met was incomplete.

What each side wanted

The employer argued it had been wholly successful on the discovery application and should have its costs, and that even if it were seen as only partly successful it was still the successful party. The worker argued the employer had not achieved any practical success: before the application was made he had not refused to give documents in substantially the same terms as the order that was later made, and the order had not in fact produced any further documents. On that basis the worker said the application had been unnecessary and he should have his costs instead.

What the tribunal decided

The tribunal ordered that the worker pay the employer's costs of the application in any event. It followed that the worker's own costs application failed.

"In any event" means the costs order stands no matter how the main workers compensation referrals finish. The tribunal explained that this was appropriate because the discovery application was interlocutory, that is, a step along the way rather than the final decision, and it raised discrete issues separate from the merits of the referrals. The tribunal distinguished interlocutory applications that do decide the ultimate issues, such as an injunction or summary judgment application, where costs might instead be left to follow the outcome of the whole case.

No dollar figure appears in the decision. The order fixes who pays, not how much.

Why the tribunal decided it that way

The starting point was section 59 of the Workers Rehabilitation and Compensation Act 1988, which carries the presumption that costs follow the event. In other words, the party that loses normally pays the winner's legal costs. The tribunal applied the Full Court's recent summary of the principles: costs are discretionary but the discretion must be exercised judicially; who won is decided by the practical result, by asking as a matter of substance and reality who had won; and a costs order is compensatory, not a punishment.

The tribunal found the employer had achieved substantial or practical success. The worker had opposed the substance of the order that was made, so the employer was justified in pressing the application once it was opposed. There is now an enforceable discovery order against the worker. The fact that no documents had yet been produced under it did not make the win insubstantial or hollow, and the tribunal was not prepared to infer a lack of success from that, because doing so would mean re-litigating the discovery decision on incomplete evidence.

The tribunal also held that conduct after the proceeding ended was not relevant to the costs discretion, because treating it as relevant would be inconsistent with costs being compensatory rather than punitive. Conduct before litigation starts can be relevant, following the High Court's decision in Oshlack, but that was not what the worker's argument relied on.

On the point that the employer had dropped one category of its discovery request, the tribunal accepted that happened but said the worker had not withdrawn his opposition and the change had little effect on the issues in dispute. Under the Full Court's approach a successful party is only deprived of costs where the issues it lost on are clearly dominant or separable, individual issues are not weighed with minute precision, and the assessment is made on a relatively broad brush basis. The abandoned category did not meet that test.

What this means if you are in a similar position

If you are in a similar position, this decision shows how a tribunal works out who won for costs purposes. It does not count points or compare how many arguments each side made. It asks what the practical result was, and a party that gets the order it asked for is usually treated as the winner even if it dropped part of its request along the way, and even if the order has not yet produced anything.

It also shows that opposing a procedural application carries its own costs risk. The worker's point that he had been willing to give the documents before the application was made did not save him, because he opposed the application once it was brought. Where an application is interlocutory and separate from the merits, a tribunal may order costs "in any event", so that the costs are owed regardless of who eventually wins the main case.

In workers compensation and similar disputes, most people start with a clear written document that sets out what they say they are owed or what they want changed, and what they are asking the other side to do about it, before any tribunal application is lodged. The written record of that step is often what the tribunal looks at later when deciding who was reasonable and who should pay.

How to apply: our step-by-step guide to a TASCAT application. More decisions: TASCAT cases and employment and wages.

Source: EUT v State of Tasmania (No 2) [2026] TASCAT 106 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.