Practice Directions, Guides and GuidelinesGuidesGuide to the Workers' Compensation JurisdictionMarch 2007 Version 1.1
ForewordThis guide provides information about how the Tribunal will review decisions made under the Safety, Rehabilitation and Compensation Act 1988 and the Seafarers Rehabilitation and Compensation Act 1992. It applies to all applications lodged throughout Australia. It will apply on and from 30 April 2007. The Tribunal is required to provide a mechanism of review that is fair, just, economical, informal and quick. The Tribunal will assist the parties to attempt to reach an agreed outcome where possible while ensuring that appropriate steps are taken to prepare for hearing those matters that do not settle. The Tribunal aims, wherever possible, to finalise applications for review within 12 months of lodgement. This guide sets out the procedures that the Tribunal will adopt in managing applications for review in this jurisdiction. It explains what is expected of parties and their representatives to assist the Tribunal during the review process. I note, in particular, that the decision-maker is required to use its best endeavours to assist the Tribunal in making its decision in relation to the proceeding. (1) The Tribunal recognises that the particular steps to be taken in moving each application towards resolution will vary. The Tribunal will determine in consultation with the parties what should be done to achieve resolution in an effective and efficient manner. Directions will be issued as necessary to ensure that applications progress in a timely manner and that parties and their representatives have clear guidance as to what is required of them. Failure to comply with Tribunal directions will be treated seriously. I note that the Tribunal can make an order for costs in favour of an applicant who is wholly or partly successful in the workers' compensation jurisdiction. Information relating to costs is set out in this guide. Further information about practice and procedure in this jurisdiction, including documents referred to in this guide, can be obtained from the Tribunal's website at www.aat.gov.au or by contacting the Tribunal registry in your State or Territory. Garry Downes 26 March 2007 (Note 1) Subsection 33(1AA) of the Administrative Appeals Tribunal Act 1975.
Table of Contents1. Applications and Section 37 Documents 1.1 Applications for review 2.1 Before the first conference 3.1 Before the conciliation 4.1 Fixing hearing dates 6.1 Further claims for compensation 1. Applications and Section 37 Documents1.1 Applications for reviewAn application for review of a decision under the Safety, Rehabilitation and Compensation Act 1988 or the Seafarers Rehabilitation and Compensation Act 1992 must be lodged with the Tribunal within 60 days after a person receives the decision. A person may apply to the Tribunal for an extension of the 60-day time limit. No fee is payable to lodge an application. General information about applying for review or requesting an extension of time to apply for review is available from the Tribunal's registries and on the Tribunal's website. In most cases, the applicant will be the person in respect of whom the reviewable decision was made. However, under the Safety, Rehabilitation and Compensation Act 1988, a Commonwealth department or agency, a Commonwealth authority or a licensed corporation may apply for review of a decision that affects it. Where this occurs, the person in respect of whom the decision was made is also a party. The body that is responsible under the legislation for making the decision under review is a party and is referred to as the respondent in this guide. 1.2 Notice of application and Section 37 DocumentsWhen the Tribunal receives an application for review that it has jurisdiction to deal with, the Tribunal notifies the respondent and any other party that the application has been received. Within 28 days after receiving this notice, the respondent must lodge with the Tribunal 2 copies of the documents required under section 37 of the Administrative Appeals Tribunal Act 1975. These documents are:
The respondent must also send a copy of the documents to the applicant and any other party. These papers are referred to as the "Section 37 Documents" or the "T (for Tribunal) Documents". A party may request that the Tribunal shorten the 28-day time period on the basis that it would or might cause hardship. The respondent may apply to the Tribunal to extend the 28-day time period. Such an application must be made if the respondent is not able to provide the Section 37 Documents within the 28-day time period. The application is to be made before the 28-day time period expires. If the applicant believes relevant documents have not been included in the Section 37 Documents, the applicant should inform the Tribunal and the respondent of this at the first conference. It is essential that all relevant documents are before the Tribunal. Whenever the respondent becomes aware that:
the respondent must lodge these documents ("Supplementary Section 37 Documents") as soon as is reasonably practicable after becoming aware of this or in accordance with any direction of the Tribunal. Please note that the Tribunal may, by notice in writing under subsection 37(2) of the Administrative Appeals Tribunal Act 1975, require the respondent to lodge copies of particular other documents, or other documents included in a particular class of documents. Further information about the requirements relating to the Section 37 Documents, including their presentation, is contained in the Practice Direction relating to Section 37 of the Administrative Appeals Tribunal Act 1975.
2. ConferencesConferences are the central component of the Tribunal's pre-hearing case management process. They are usually conducted by a Conference Registrar but may also be conducted by a Tribunal member ("Conference Convenor"). Conferences provide an opportunity for the Tribunal and the parties to:
In relation to gathering further supporting material, the Tribunal expects that parties will usually obtain this material at the same time. In some circumstances, however, it may be appropriate for one party to gather evidence first. This will be discussed at the first conference. In relation to exploring whether an agreed outcome can be reached, the Conference Convenor may make comments in relation to the strengths and weaknesses of each party's case during a conference.
In general, two conferences will be held. The Conference Convenor may decide that only one conference should be held or that more than two conferences are necessary. The first conference will usually be held 6 to 10 weeks after an application for review has been lodged. The timing of further conferences will be set by the Conference Convenor in consultation with the parties. The nature of the matter will determine the timing.
Where the applicant is not represented, conferences will generally be held in person at the Tribunal. If it is not convenient for an applicant to attend in person for geographic or other reasons, the conference may be conducted by telephone. Where both parties are represented, conferences are generally held by telephone. However, if the Conference Convenor or the parties prefer, the conference may be held in person. Further information about conferences and how they are conducted, including a Conference Process Model, is available from the Tribunal's registries and on the Tribunal's website. 2.1 Before the first conference
Experience demonstrates that, where appointments for expert medical reports are made earlier in the review process, applications are finalised in a more timely manner. Waiting lists to see medical specialists can be long and can cause considerable delay in Tribunal proceedings. Where parties are represented, representatives should consider whether or not an expert medical report is likely to be obtained. If it is clear that such a report will be sought, the representative should make an appointment for the purpose of obtaining the report before the first conference. Where appropriate, representatives for both parties should discuss before the first conference the option of obtaining a joint medical report and make any appointment. 2.2 At the first conferenceAt the first conference, the Conference Convenor and the parties will identify the legal and factual issues in the application. These will be discussed in detail. Where necessary, the Conference Convenor may require one or both parties to prepare a Statement of Issues to clarify the issues in dispute. A sample Statement of Issues is set out at Attachment A to this guide. The Conference Convenor will discuss with the parties what enquiries and investigations they may undertake and the further supporting material that may be gathered. Discussion may relate to matters such as:
The Conference Convenor will explore with the parties the prospects for reaching an agreed outcome. This will inform the further steps to be taken, including whether the application should be referred to another type of ADR process such as mediation, case appraisal or neutral evaluation. The Conference Convenor will determine in consultation with the parties what steps are to be taken before the next listing and a timetable for such steps. The Conference Convenor will be guided by the issues in the case and what will be effective and efficient in progressing the matter towards resolution. The Conference Convenor may issue a direction at the end of the conference specifying what must be done and by when. The direction may require one or both parties to:
The date for the next case event, usually a second conference, will be set based on the timetable determined by the Conference Convenor. In general, a second conference will be held no more than 12 to 16 weeks after the first conference. 2.3 After the first conference
Where medical appointments are to be made, parties should endeavour to make an appointment for the earliest possible date and, at the latest, within 8 weeks after the first conference. If it is not possible to obtain an appointment with a particular expert within a period of 12 weeks after the first conference, the party should seek an appointment with another expert unless there are compelling reasons for seeing that particular expert. Parties must give the following to the person who will be preparing the report:
Any expert report on which a party intends to rely must be lodged with the Tribunal and given to the other party as soon as practicable and, in any event, no later than 10 days after it has been received by the party. The letter requesting the report should be provided with the report together with any attachments that contain material not already available to the Tribunal and the other party. The Tribunal is required to make the correct or preferable decision in relation to an application. It will be assisted in this task by having all relevant material available to it. Consistently with subsection 33(1AA) of the Administrative Appeals Tribunal Act 1975, the respondent must lodge with the Tribunal all reports that it has obtained whether or not they are favourable to the applicant.
If a party wishes to obtain the medical records of treating doctors or other health service providers, the party may request the Tribunal to issue a summons to produce documents. A party may also request the Tribunal to issue a summons for any other documents that will be relevant to the review of the decision. Any request to issue a summons to produce documents must be made to the Tribunal as early as possible in the proceedings. Information on the procedures relating to the issue of summonses and access to documents produced under summons is available from the Tribunal's registries. 2.4 Second and subsequent conferencesThe second conference provides an opportunity for the Tribunal and the parties to review progress in the matter. Any further supporting material that has been lodged with the Tribunal and the merits of each case will be discussed with a view to reaching an agreed outcome or narrowing the issues in dispute. The Conference Convenor and the parties will discuss any new issues that may have arisen and the further steps to be taken in the application. The Conference Convenor in consultation with the parties will determine:
The Conference Convenor will issue a direction as necessary and appropriate at the end of the second or any further conference specifying what the parties must do and by when. The direction may require one or both parties to:
For information about finalising applications where the parties reach an agreement during the conference process, please see Section 6.7 of the guide. 2.5 Statements of Facts, Issues and ContentionsWhere the applicant is represented, the Tribunal may require both parties to prepare a Statement of Facts, Issues and Contentions. Usually, the applicant will be required to prepare the Statement of Facts, Issues and Contentions first. The respondent will usually be required to prepare a statement in reply. Where the applicant is not represented, the Conference Convenor will usually require the respondent to lodge with the Tribunal and give to the applicant a Statement of Facts, Issues and Contentions. The Conference Convenor may also require the applicant to prepare a statement in reply, or a chronology of relevant events. The Statement of Facts, Issues and Contentions must clearly and concisely set out:
Any statement in reply should respond specifically to the Statement of Facts, Issues and Contentions noting what aspects are agreed, which are disputed and the alternative facts and/or contentions on which the party relies. A sample Statement of Facts, Issues and Contentions is set out at Attachment B to this guide.
3. ConciliationIf a matter has not been finalised during the conference process and both parties are represented, the Tribunal will hold a conciliation. A conciliation will be held unless the Tribunal determines that it would not be useful to hold it (e.g. the application involves only a legal issue) or another ADR process is to be used. If the Tribunal considers it appropriate to do so and the applicant consents, a conciliation may be held where an applicant is not represented. The conciliation will usually be listed when the Tribunal is satisfied that there will be sufficient material to make the conciliation effective. In most cases, the conciliation will take place as soon as is practicable and no more than 10 weeks after the last conference. Conciliations will be held in person and will be conducted by a Tribunal member or Conference Registrar ("Conciliator"). The Tribunal expects the following people will attend the conciliation:
A representative of the applicant's employer or other person may also attend the conciliation where appropriate. The Tribunal will endeavour to schedule the conciliation at a time that will allow all of these persons to attend. If any person is unable to attend the conciliation in person, due to geographic or other considerations, the relevant party may make a request to the Conciliator for the person to participate by telephone or video. If permission is given, the costs of the person participating by telephone or video will be paid by that party. Further information about conciliations and how they are conducted is outlined below and in the Conciliation Process Model which is available from the Tribunal's registries and on the Tribunal's website. 3.1 Before the conciliation
Where an applicant is represented, a Conciliation Checklist is sent to the applicant's representative with the listing notice for the conciliation. A second copy of the Checklist is enclosed to be forwarded to the applicant. The Checklist asks for a range of information that may be relevant to reaching an agreement between the parties at the conciliation. The Checklist is to be completed and brought to the conciliation. The applicant's representative may need to seek certain information from the respondent to complete the Checklist. Respondents are encouraged to assist in the completion of the Checklist. 3.2 At the conciliationAt the commencement of the conciliation, each party must certify that they have authority to settle the application. During the conciliation, the Conciliator will take an active role, setting out options and discussing with the parties the merits of their respective cases. The Conciliator will work with the parties to explore whether an agreed outcome can be reached. For information about finalising applications where the parties reach an agreement during or after the conciliation, please see Section 6.7 of the guide. If the matter is not resolved at the conciliation, the Conciliator will determine the next steps to be taken in consultation with the parties. In general, the matter will be listed for hearing and the Conciliator will discuss with the parties what further steps must be taken before the hearing. The Conciliator will issue a direction as necessary and appropriate specifying what the parties must do and by when. The direction may require one or both parties to:
If the applicant is not represented and will not be calling any other witnesses, the Conciliator will generally ask the applicant for any dates on which he or she would be unavailable to attend a hearing.
4. HearingWhere a matter has not been finalised during the pre-hearing process, the Tribunal will hold a hearing to determine the application. General information about hearings is available from the Tribunal's registries and on the Tribunal's website. 4.1 Fixing hearing dates
The Tribunal will usually ask parties who are represented to lodge a Hearing Certificate with the Tribunal and give a copy to the other party. Applicants representing themselves may also be asked to lodge a Hearing Certificate. The Hearing Certificate asks for information about:
Parties are expected to consult each other in preparing the Hearing Certificate. Hearing Certificates must be lodged within the time specified by the Tribunal. In accordance with the Tribunal's Listing and Adjournment Practice Direction, the Tribunal may list an application for hearing without further consultation if a party fails to do so. The Tribunal will use its best efforts to:
On receipt of the listing notice for the hearing, parties must ensure that counsel and any witnesses are advised of the hearing date(s) as soon as possible. Parties should communicate with each other to ensure that witnesses have not been asked to appear at the same time. Where the parties are represented, a Certificate of Readiness may be sent with the listing notice at the discretion of the District Registrar. The Certificate of Readiness requires the parties to confirm that arrangements have been made for the hearing to proceed on the listed date and to notify the Tribunal of any other relevant matters. If a Certificate of Readiness is issued, it must be lodged with the Tribunal within 14 days of receipt. 4.2 Before the hearing
The Tribunal expects that, in general, all evidence to be relied on at the hearing will have been identified during the pre-hearing process. Parties must comply with any directions issued or timetables set for giving documents or other material to the Tribunal and the other party prior to the hearing. If a party anticipates or experiences any difficulty in meeting these obligations, this must be brought to the attention of the Tribunal as soon as possible. Applicants should be aware that, if they wish to present any matter in evidence and that matter was not disclosed to the Tribunal at least 28 days before the hearing date, that matter is not admissible as evidence without the leave of the Tribunal: see subsection 66(1) of the Safety, Rehabilitation and Compensation Act 1988 and subsection 90(1) of the Seafarers Rehabilitation and Compensation Act 1992. In some cases, the respondent will have material such as video surveillance evidence which it may seek to use to cross-examine a witness at the hearing and which is not identified or lodged prior to the hearing. Please see Section 4.3 in relation to material of this kind.
Subject to compliance with statutory requirements, the Tribunal will generally receive into evidence a medical or other expert report that has been lodged with the Tribunal and given to the other party, whether or not the author of the report gives oral evidence. Parties should consider carefully whether it is necessary for medical practitioners or other experts to give oral evidence at a hearing. In particular, parties should consider whether oral evidence will assist the Tribunal to determine the issues in dispute. Oral evidence will usually be necessary where there are differences of opinion in the reports that are to be relied upon. Where oral evidence is to be given, arrangements for the attendance of an expert at a hearing will generally be made by the party seeking to rely on the report. If a party was not intending to call the author of a report to give evidence but the other party requires that person for cross-examination, the parties should liaise as necessary in relation to who will arrange the person's attendance. Failure of the author to give evidence in these circumstances will not, in itself, render the report incapable of being taken into account but may be relevant in assessing the weight to be given to the report. Witness expenses paid by or on behalf of an applicant may form part of the costs payable under any costs order made by the Tribunal if the matter is determined in a manner favourable to the applicant. See Section 6.8 for more detailed information in relation to costs.
At the discretion of the presiding member of the Tribunal, part of any hearing may be conducted by telephone or video. This may be appropriate, for example, where evidence is to be given by an expert witness who is unable to attend in person. A party seeking to have evidence taken in this manner must seek permission from the presiding member. If a party is represented, any request for evidence to be taken by telephone or video must be made in writing. The request must:
If a party is not represented, the person may contact the Tribunal by telephone or in writing and explain why the evidence should be taken by telephone or video. The Tribunal will ask the respondent whether or not it opposes the request. The presiding member will decide whether or not the request will be granted. The presiding member may wish to conduct a directions hearing in person or by telephone before exercising this discretion. Where evidence is to be given either by telephone or video, the party who is calling the witness must make all necessary arrangements and give the Tribunal relevant details including the location of the witness, the telephone numbers and the date, time and estimated duration. The party must also ensure that the witness will have access to all relevant documents. Unless the parties otherwise agree or the presiding member otherwise directs, the costs of taking the evidence by telephone or video are to be paid by the party who requires the witness to give evidence. The presiding member may waive the charges. If no specific direction as to waiver is given, application can be made to the District Registrar to waive the charges on the basis that, having regard to the income, day to day living expenses, liabilities and assets of the party concerned, payment of the charges would cause financial hardship to the person.
Parties who are represented will usually be required to give to the Tribunal and to the other party a list of cases on which they intend to rely at the hearing at least 2 working days before the hearing. A party who is not represented will generally not be required to provide a list of cases.
Before the listed hearing date, Tribunal staff will contact the parties by telephone to confirm the arrangements for the hearing including whether an interpreter is required. At the request of a party or of its own motion, the presiding member may hold a directions hearing in person or by telephone to discuss with the parties any issues in relation to the hearing. The presiding member will issue directions as necessary to ensure that any outstanding matters are completed prior to the hearing. 4.3 At the hearing
At the commencement of the hearing, parties who are represented should inform the Tribunal:
As noted in Section 4.2, an applicant must seek leave of the Tribunal to present evidence in relation to any matter that was not disclosed to the Tribunal at least 28 days before the hearing date. Respondents must also seek leave of the Tribunal at the hearing to rely on any material that has not been disclosed to the Tribunal and the other party prior to the hearing. This includes video surveillance evidence or other material to be used in the cross-examination of a witness.
The Tribunal allocates a certain amount of time for the hearing following an assessment of the information provided by the parties. The Tribunal and the parties must make every effort to ensure that the hearing is completed within the allocated time. On rare occasions, it may be necessary for further material to be lodged and/or written submissions to be made after the hearing. The Tribunal will allow this only where it is strictly necessary. Any further material and/or written submissions must be lodged in accordance with the timetable set by the Tribunal. If this does not occur, the Tribunal may proceed to make a decision without the material.
5. DecisionThe Tribunal may give its decision and reasons for decision at the end of the hearing. More often, however, the Tribunal will give its decision and reasons in writing at a later date. The Tribunal will endeavour to give its decision and reasons within 2 months of:
Where the Tribunal makes a decision that is favourable to the applicant, the Tribunal has the power to order that the respondent pay the costs, or a part of the costs, incurred by the applicant. The Tribunal will usually include an order of the following kind in its decision: Either party may make an application in relation to the costs of the proceedings within 14 days of the date of this decision. If no such application is made, the Tribunal orders that the respondent pay the applicant's costs of the proceedings. Both parties will have the opportunity to make submissions to the Tribunal in relation to costs before the order takes effect. Where it considers it appropriate to do so, the Tribunal may ask the parties to make submissions in relation to costs before making any order in relation to costs. See Section 6.8 for more detailed information in relation to costs.
6. Other matters6.1 Further claims for compensationDuring the review process, an applicant may lodge a further claim for compensation that is relevant to the application before the Tribunal. A request may then be made to the Tribunal to defer dealing with the existing application until the further claim is processed. Awaiting the determination of a further claim can cause significant delay in progressing and finalising an application that is before the Tribunal. For this reason, any further claim for compensation should be lodged at the earliest opportunity. Where the Tribunal becomes aware that a further claim for compensation has been made or will be made, the Tribunal will discuss with the parties what effect this may have on the further progress of the application. The Tribunal will decide whether or not it is appropriate to await the determination of any further claims for compensation. An important consideration will be whether or not further claims have in fact been lodged. Where a decision is made to await the determination of a further claim, the Tribunal will seek the cooperation of the parties to minimise delay. Where appropriate, the Tribunal will encourage the parties to commence gathering evidence in relation to the further claim. 6.2 Requests for adjournments
If a party is unable to attend a conference, conciliation or other ADR process or believes that it should be postponed, the party must make a request for an adjournment. The request must be made as early as possible. The Tribunal will not grant an adjournment unless there are good reasons to do so. If a party is represented, a request for an adjournment of a conference, conciliation or other ADR process must be made in writing. The request must:
A person who is not represented must contact the Tribunal by telephone or in writing to explain why the conference or other event should be postponed. The Tribunal may ask the person to put the reasons in writing. The Tribunal will ask the respondent whether it objects to the request and then decide whether or not to grant the request. In relation to a request for an adjournment of a conciliation or another ADR process, the request should be made as early as possible and preferably at least 10 working days before the listing.
The Tribunal has a Listing and Adjournment Practice Direction that sets out the policy and procedures of the Tribunal in relation to requests for adjournments of a hearing. If either party wants an adjournment of the hearing, the request must be made in accordance with the requirements of the practice direction. An application for an adjournment of a hearing must be made in writing and addressed to the District Registrar. The application must:
If the party seeking the adjournment is represented, the written request for an adjournment should also indicate whether or not the other party objects to the adjournment. Please note that the Tribunal will generally hold a hearing in relation to the adjournment application. 6.3 Non-compliance with legislative requirements and Tribunal directionsFailure to comply with legislative requirements and directions issued by the Tribunal can contribute significantly to delay in the timely finalisation of applications for review. The Tribunal will treat non-compliance seriously. Where a represented party becomes aware that it may not be able to comply with a legislative requirement or Tribunal direction, the party should write to the Tribunal in advance of the deadline to request further time within which to comply. The request must:
A person who is not represented must contact the Tribunal by telephone or in writing to ask for further time. The Tribunal will seek the view of the respondent on the request and the Tribunal will then decide whether or not further time will be granted. Where a party fails to comply with a legislative requirement or a direction issued by the Tribunal, the following procedures will generally apply:
The Tribunal will also send a copy of the letter to the non-offending party. However, the non-offending party is not required to attend the directions hearing unless it wishes to do so or the Tribunal requests that the party attend. Where there has been a history of failure to comply by a particular representative, the Tribunal may also send a copy of the notice directly to the applicant or to the respondent agency or corporation. Failure to comply with legislative requirements and Tribunal directions may have a number of consequences. They include:
6.4 Directions hearingsA directions hearing may be listed at any time if the matter requires it. Either party can make a request for a directions hearing if the need arises. Where the party is represented, the request should be in writing and set out the reasons for which the directions hearing is sought. A person who is not represented may contact the Tribunal by telephone or in writing to request a directions hearing. The Tribunal may of its own motion list a directions hearing at any time if it considers it necessary. 6.5 InterpretersInterpreters will be arranged and paid for by the Tribunal. If an interpreter is required, parties must advise the Tribunal of this in sufficient time to enable an interpreter to be engaged. Parties must advise the Tribunal precisely which language and/or dialect is required. Generally, interpreters will be accredited with the National Accreditation Authority for Translators and Interpreters at the first professional level, Interpreter. Only in languages where no professional level interpreter is accredited will a Paraprofessional Interpreter be used. 6.6 Own motion reconsideration by a respondentThe respondent may reconsider a determination on its own motion even if an application has been made to the Tribunal for review of a decision relating to that determination: see subsection 62(1) of the Safety, Rehabilitation and Compensation Act 1988 and subsection 78(1) of the Seafarers Rehabilitation and Compensation Act 1992. Where the respondent informs the Tribunal that it has reconsidered a determination, the Tribunal will examine the effect of the reconsideration on any application before the Tribunal. The Tribunal will seek the views of the applicant in relation to what should occur in relation to that application either by sending a letter or by holding a conference or directions hearing. 6.7 Finalising applications by consent decisionsWhere the parties reach agreement as to the terms of a decision in a matter, the Tribunal may give effect to the agreement if:
The terms of agreement must be in writing, signed by or on behalf of the parties and lodged with the Tribunal. The Administrative Appeals Tribunal Act 1975 draws a distinction between:
Where the parties have reached agreement in the course of an ADR process, the Tribunal must wait 7 days after the terms of agreement are lodged before making any decision. The Tribunal cannot make a decision if either party notifies the Tribunal within 7 days after the terms were lodged that he or she wishes to withdraw from the agreement. Where the parties have reached an agreement otherwise than in the course of an ADR process, the Tribunal may proceed to make a decision in accordance with the terms of agreement immediately. When preparing terms of agreement for a consent decision, parties must specify clearly whether the agreement is a Section 34D Agreement or Section 42C Agreement. Terms of agreement should be lodged as soon as possible after the agreement has been reached. If the terms of agreement are to include a clause relating to costs but the parties are unable to agree within a reasonable time as to the actual amount of costs to be paid, the terms of agreement should specify that costs will be awarded "as agreed or taxed". 6.8 CostsThe power of the Tribunal to award costs is set out in section 67 of the Safety, Rehabilitation and Compensation Act 1988 and section 92 of the Seafarers Rehabilitation and Compensation Act 1992. Where the applicant is the person in respect of whom the reviewable decision was made and the Tribunal makes a decision:
the Tribunal may order that the respondent pay all of, or a part of, the costs incurred by the applicant. In exercising this discretion, the Tribunal may take into account a range of matters including whether the applicant has incurred unnecessary costs or the applicant has caused the respondent to incur unnecessary costs in the proceeding. Where the Tribunal sets aside a reviewable decision and remits the case to the respondent for re-determination, the Tribunal must order the respondent to pay the costs incurred by the applicant. The legislation stipulates that the Tribunal cannot make a costs order in certain circumstances where information or documents have been withheld by an applicant. Where a Commonwealth department, agency or authority, or a licensed corporation, has applied for review of a decision under the Safety, Rehabilitation and Compensation Act 1988, the Tribunal may award costs in accordance with the Act to the person in respect of whom the reviewable decision was made. Unless the order states otherwise, the costs payable may include:
In the absence of any order to the contrary, costs will be assessed on a party and party basis. Costs may be agreed between the parties. Where there is no agreement, a party may apply to the Tribunal for the costs to be taxed. Information on the procedures relating to the taxation of costs is available from the Tribunal's registries. Where an application for review to the Tribunal has been rendered abortive because the respondent has undertaken an own motion reconsideration of a determination, the respondent will usually be liable to reimburse the person in respect of whom the reviewable decision was made for costs reasonably incurred in connection with the application. The Tribunal has no power to tax costs that are payable in these circumstances.
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