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MILITARY REHABILITATION AND COMPENSATION ACT 2004 - SECT 357

Costs of proceedings before the Tribunal

             (1)  Subject to this section and to subsection 358(1), the costs incurred by a party to proceedings instituted under this Part in respect of a determination are to be borne by that party.

             (2)  If, in proceedings instituted by a claimant, the Tribunal makes a determination:

                     (a)  varying a determination in a manner favourable to the claimant; or

                     (b)  setting aside a determination and making a determination in substitution for the first-mentioned determination that is more favourable to the claimant than the first-mentioned determination;

the Tribunal may order that the costs of those proceedings incurred by the claimant, or a part of those costs, are to be paid by the Commonwealth.

             (3)  The Tribunal may order that the costs incurred by the claimant of proceedings instituted by the Commission or the Chief of the Defence Force be paid by the Commonwealth.

             (4)  If the Tribunal makes a determination setting aside a determination and remitting the case for re-determination by the Commission or the Chief of the Defence Force, the Tribunal must order that the costs of the proceedings before it incurred by the claimant are to be paid by the Commonwealth.

             (5)  This section does not authorise the Tribunal to order the Commonwealth to pay any costs incurred by a claimant in relation to an application for an extension of time for applying to the Tribunal for a review of a determination.

             (6)  If, in any proceedings, the Tribunal varies or sets aside a determination, the Tribunal must not make an order under subsection (2) or (4) in favour of a claimant in relation to the costs of those proceedings if:

                     (a)  the Commission, before making the determination, gave the claimant a notice under section 330 requesting the claimant to give the Commission information or a document specified in the notice; and

                     (b)  the Tribunal is satisfied that:

                              (i)  the claimant failed to comply with that notice; and

                             (ii)  at the time when the Commission made the reviewable determination, it did not have the information or document, nor was the information or document reasonably available to it; and

                            (iii)  if the Commission had the information or document at the time when it made the determination, it would have made a determination more favourable to the claimant than the reviewable determination.

          (6A)  If, in any proceedings, the Tribunal varies or sets aside a reviewable determination made by the Board, the Tribunal must not make an order under subsection (2) or (4) in favour of a claimant in relation to the costs of those proceedings if:

                     (a)  in the course of the review by the Tribunal, the claimant provided to the Tribunal a document relevant to the review; and

                     (b)  the Tribunal is satisfied that, at the time when the Board made the reviewable determination, the Board did not have the document and the claimant could have provided the document to the Board without unreasonable expense or inconvenience; and

                     (c)  the Tribunal is satisfied that, if the Board had the document at the time when the Board made the reviewable determination, the Board would have made a determination more favourable to the claimant than the reviewable determination.

          (6B)  If, in any proceedings, the Tribunal varies or sets aside a reviewable determination made by the Board, the Tribunal must not make an order under subsection (2) or (4) in favour of a claimant in relation to the costs of those proceedings if the Tribunal is satisfied that:

                     (a)  in connection with the review by the Tribunal or Board, the claimant was granted legal aid under a Commonwealth, State or Territory legal aid scheme or service; or

                     (b)  the claimant failed, without reasonable excuse, to appear at the hearing of the review by the Board; or

                     (c)  in connection with the review by the Board, the claimant failed to comply with a direction under subsection 148(4B) of the Veterans' Entitlements Act 1986 ; or

                     (d)  the claimant failed to comply with a notice under section 330 before the Commission made the original determination in relation to which the reviewable determination was made.

          (6C)  If, in any proceedings, the Tribunal remits a reviewable determination made by the Board to the Commission as mentioned in subsection 354(1C), the Tribunal must not make an order under subsection (2) or (4) in favour of a claimant in relation to the costs of those proceedings.

             (7)  If the Tribunal orders the Commonwealth to pay costs incurred by a claimant, the Tribunal may, in the absence of agreement between the parties as to the amount of the costs, tax or settle the amount of the costs or order that the costs be taxed by the Registrar or an officer of the Tribunal.



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