Part 2Part 2 Other procedural matters
A reference in this Part (other than section 89):(a) to an application includes a reference to an external appeal that is made to the Tribunal, and(b) to an applicant includes a reference to the person who makes any such appeal.
73 Procedure of the Tribunal generally
(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.(4) The Tribunal is to take such measures as are reasonably practicable:(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.(5) The Tribunal:(a) is to act as quickly as is practicable, and(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and(d) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and(e) may require a document to be served outside the State, and(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and(g) may dismiss at any stage any proceedings before it in any of the following circumstances:(i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate,(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and(h) may reinstate proceedings that have been dismissed because of an applicant’s failure to appear if the Tribunal considers that there is a reasonable explanation for that failure.(5A) An application made to the Tribunal to reinstate proceedings under subsection (5) (h) must be made:(a) within 28 days after the Tribunal dismissed the proceedings that are sought to be reinstated, or(b) within such further time as the Tribunal may allow.(6) A judicial member may:(a) hold a directions hearing in relation to any proceedings before the Tribunal, or(b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal.
73A Application of section 128 of Evidence Act 1995 to proceedings before Tribunal
Section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings before the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.
(1) The Tribunal may, before formally commencing to determine an application, confer informally with, or arrange for a member or assessor to confer informally with, the parties to the proceedings in a preliminary conference and make any determination with respect to the proceedings that is agreed to by the parties.(2) If proceedings are referred under this section to a member or an assessor and the parties agree to the determination of the member or assessor, the determination has effect as a decision of the Tribunal.(3) (Repealed)(4) If the proceedings are not determined under this section and proceed for a formal determination by the Tribunal:(a) evidence is not to be given, and statements are not to be made, concerning any words spoken or acts done at a conference held in accordance with this section unless the parties otherwise agree, and(b) any member or assessor who presided over a preliminary conference in respect of the proceedings may participate as a member of the Tribunal determining the proceedings, or as an assessor in those proceedings, unless:(i) a party to the preliminary conference objects to the member or assessor further participating in the proceedings, and(ii) the party demonstrates in that objection that the further participation of the member or assessor is likely to prejudice the party’s case.(5) For the purposes of subsection (4) (b), a party objects to a member or assessor further participating in proceedings only if:(a) the objection is lodged with the Registrar within 14 days after the conclusion of the preliminary conference (or within such other period as may be prescribed by the rules of the Tribunal), and(b) the objection is in such form as may be prescribed by (or approved under) the rules of the Tribunal.(6) The President may direct that a preliminary conference is to be held under this section in the case of any applications made to the Tribunal of a kind specified in the direction.
75 Proceedings on hearing to be conducted in public
(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:(a) an order that the hearing be conducted wholly or partly in private,(b) an order prohibiting or restricting:(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.(2A) The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies.(2B) The Tribunal may from time to time vary or revoke an order made under subsection (2).(3) Mediation sessions and neutral evaluation sessions under Part 4 are to be conducted in private.
76 Circumstances in which hearing may be dispensed with
The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.
If the Tribunal is constituted by more than 1 member, the most senior member is to preside at the proceedings before the Tribunal.Note. Clause 9 of Schedule 3 makes provision for the seniority of members.
78 Tribunal divided in opinion
(1) If the Tribunal is constituted by more than 1 member for the purposes of the determination of any proceedings and the members are divided in opinion, the opinion of the majority is taken to be the decision of the Tribunal.(2) However, a question of law (including the question whether a particular question is a question of law) arising in proceedings constituted by 1 or more judicial members is to be decided in accordance with the opinion of the judicial member or the majority of the judicial members.(3) If the members are equally divided in their opinion, the opinion that prevails is:(a) the opinion of the President if the President is sitting, or(b) if the President is not sitting, but 1 or more other judicial members are sitting—the opinion of the judicial member or most senior judicial member (as the case may be) sitting, or(c) if only non-judicial members are sitting—the opinion of the most senior member sitting.
79 Reconstitution of Tribunal during hearing
(1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if:(a) the member becomes unavailable for any reason, or ceases to be a member, before the matter is determined, and(b) the parties consent.(2) The Tribunal as so reconstituted is to have regard to the evidence and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.(3) If one or more of the parties do not consent to the reconstitution of the Tribunal under this section, the proceedings are to be reconsidered by the Tribunal constituted in accordance with this Act.(4) If proceedings are reconsidered by the Tribunal, the Tribunal may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings.
79A References of questions of law to Supreme Court
(1) The Tribunal in proceedings at first instance may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court if the President has consented in writing to the question being referred.(2) For the purposes of this section, proceedings at first instance are proceedings in the Tribunal for an original decision or the review of a reviewable decision.(3) The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section.(4) If a question of law arising in proceedings has been referred to the Supreme Court under this section, the Tribunal is not:(a) to give a decision in the proceedings to which the question is relevant while the reference is pending, or(b) to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question.(5) Subsection (4) extends to an Appeal Panel of the Tribunal determining an appeal from a decision of the Tribunal in proceedings in which a question of law has been referred to the Supreme Court under this section.
80 Tribunal may reserve decision
(1) The Tribunal may reserve its decision in any proceedings before it.(2) A reserved decision of a member or members of the Tribunal may be given:(a) by the member or members at a subsequent sitting of the Tribunal, or(b) if the decision of a member is set out in writing and signed by the member—by being delivered by a member of the Tribunal, or(c) by the Registrar, at a time and place of which the parties have been given reasonable notice.(3) If the Tribunal reserves its decision, it must give the reasons for its decision either orally or in writing within 6 months (or such other lesser period as may be specified by the rules of the Tribunal generally or for that class of matter) of the date on which it reserved its decision.(4) A failure to comply with subsection (3) does not affect the validity of a reserved decision.
81 Amendments and irregularities
(1) The Tribunal may, in any proceedings before it, make any amendments to the proceedings that the Tribunal considers to be necessary in the interests of justice.(2) Any such amendment may be made:(a) at any stage of the proceedings (including the commencement or purported commencement of proceedings), and(b) on such terms as the Tribunal thinks fit (including, if it can award costs in the proceedings, terms as to costs).(3) If this Act, the regulations or a rule of the Tribunal is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings before the Tribunal, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings or any decision in the proceedings.(4) For the purposes of subsection (3), the Tribunal may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings.
82 Recovery of amounts ordered to be paid (other than penalties)
(1) For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty), the amount is to be certified by the Registrar.(2) A certificate given under this section must identify the person liable to pay the certified amount.(3) A certificate of the Registrar that:(a) is given under this section, and(b) is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate,operates as such a judgment.(4) A party to proceedings in respect of which an amount has been certified by the Registrar under this section may apply to the Tribunal for a review of the decision to certify that amount.
82A Recovery of civil or other penalties
A civil or other penalty ordered to be paid by the Tribunal may be registered as a judgment debt in a court of competent jurisdiction and is enforceable accordingly.
83 Powers in relation to witnesses
(1) The Tribunal may:(a) call any witness of its own motion in any proceedings, and(b) examine any witness on oath or affirmation, or by use of a statutory declaration, in any proceedings, and(c) examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and(d) compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings before it.(2) If the Tribunal decides to call a person as a witness under subsection (1) (a), the Tribunal may:(a) seek to procure the voluntary attendance of the person before it by notifying the person in such manner as it thinks appropriate in the circumstances, or(b) direct the Registrar to issue a summons to compel the attendance of the person before it.(3) Nothing in subsection (1) enables the Tribunal to compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question.
(1) A summons for the purposes of this Act may be issued by the Registrar:(a) if the Registrar considers it appropriate to do so in the circumstances, on the application of a party to proceedings before the Tribunal, or(b) at the direction of the Tribunal.Note. The Registrar may refuse to issue a summons on the application of a party if the Registrar considers that it is not appropriate for a summons to be issued.(2) Any such summons must be signed by the Registrar or as otherwise provided by the rules of the Tribunal.(3) Any such summons may require a person to do any one or more of the following:(a) attend and give evidence,(b) attend and produce documents or other things.(4) A person who, without reasonable excuse, fails to comply with the requirements of a summons is guilty of an offence.Maximum penalty: 100 penalty units.
(5) A summons may be served within or outside the State.(6) The Registrar may give directions with respect to access to documents or other things produced pursuant to a summons if no objection has been made to the summons.
A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision.
86 Powers when proceedings settled
(1) The Tribunal may, at any stage of proceedings before it, make such orders (including an order dismissing the application that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties to the proceedings if:(a) the terms of the agreed settlement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal, and(b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.(c) (Repealed)(2) The Tribunal may dismiss the application that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.(3) Nothing in this section affects:(a) the power of the Tribunal, a member or an assessor to make a determination under section 74 to which the parties to the proceedings concerned agree, or(b) the power of the Tribunal to make any order under section 105 giving effect to any agreement or arrangement arising out of a mediation session under Part 4.
86A Matters that may be taken into account when exercising settlement powers
(1) This section applies to the exercise by the Tribunal, a member or an assessor of any of the following powers (a settlement power) conferred on the Tribunal or person:(a) the power of the Tribunal, a member or an assessor to make a determination under section 74 to which the parties to the proceedings agree,(b) the power of the Tribunal to make an order under section 86 giving effect to any agreed settlement by the parties to the proceedings,(c) the power of the Tribunal to make an order under section 105 giving effect to any agreement or arrangement arising out of a mediation session under Part 4.(2) When deciding whether to exercise a settlement power, the Tribunal, member or assessor (as the case requires) may take into account the interests of any vulnerable person (whether or not a party to the proceedings) if the Tribunal, member or assessor considers that:(a) the person may be directly affected by the exercise of the power because the person is a party to, or the subject of, the proceedings concerned, and(b) it is appropriate to do so in the circumstances.(3) A vulnerable person is:(a) a minor, or(b) a person who is totally or partially incapable of representing his or her interests in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled.(4) Nothing in this section limits the matters to which the Tribunal, a member or an assessor may have regard when deciding whether to exercise a settlement power.
87 Power to correct decisions of the Tribunal
(1) If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal.(2) If the text of a decision or statement is so altered, the altered text is taken to be the decision of the Tribunal or the reasons for the decision, as the case may be.(3) Examples of obvious errors in the text of a decision or statement of reasons are where:(a) there is an obvious clerical or typographical error in the text of the decision or statement of reasons, or(b) there is an error arising from an accidental slip or omission, or(c) there is a defect of form, or(d) there is an inconsistency between the decision and the statement of reasons.(4) The powers of the Tribunal under this section may be exercised by the President or by the member who presided at the proceedings to which the decision relates.
(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or(iv) causing an adjournment, or(v) attempting to deceive another party or the Tribunal, or(vi) vexatiously conducting the proceedings,(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,(d) the nature and complexity of the proceedings,(e) any other matter that the Tribunal considers relevant.(2) The Tribunal may:(a) determine by whom and to what extent costs are to be paid, and(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.(4) In this section, costs includes:(a) costs of or incidental to proceedings in the Tribunal, and(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.
89 Tribunal to give decision determining application
(1) If the Tribunal makes an original decision or determines an application for the review of a reviewable decision, the Tribunal is to cause a copy of its decision to be served on each party to the proceedings for the decision.(2) The Tribunal may give reasons either orally or in writing for its decision.(3) If the Tribunal does not give reasons in writing for its decision:(a) a party to the proceedings may, within 28 days after the day on which a copy of the decision of the Tribunal is served on that party, request the Tribunal to give the party a statement in writing of the reasons of the Tribunal for its decision, and(b) the Tribunal must, within 28 days after receiving the request, give the party such a statement.(4) For the purposes of compliance with subsection (3), it is sufficient if the Tribunal gives the party a copy of a transcript of oral reasons previously delivered that complies with subsection (5).(5) If the Tribunal gives the reasons for its decision in writing under subsection (3), the written reasons are to set out the following:(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,(b) the Tribunal’s understanding of the applicable law,(c) the reasoning processes that lead the Tribunal to the conclusions it made.