357Costs of proceedings before the Tribunal

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