Part 6Dispute resolution

Part 6—Dispute resolution 95—Specific object The vesting of jurisdiction in the Tribunal under this Part is intended to achieve an outcome in any proceedings that is based on quick and efficient decision-making that resolves disputes expeditiously and fairly. 96—Interpretation In this Part— applicant means the person who makes an application to the Tribunal under this Part; party to proceedings means— (a) the applicant; and (b) the relevant compensating authority; and (c) if the matter is about a work injury and the worker who suffered or is alleged to have suffered the work injury is not the applicant—the worker; and (d) if the matter is about a work injury and the employer from whose employment the injury arose or is alleged to have arisen is not the applicant—the employer; and (e) a person who has a direct interest in the matter and has notified the Registrar of the interest; relevant compensating authority in relation to a particular decision means— (a) if the decision was made by the Corporation or a body corporate exercising powers delegated by the Corporation—the Corporation or the relevant delegate; or (b) if the decision was made by a self‑insured employer—the self‑insured employer; rules means the rules of the Tribunal. 97—Reviewable decisions The following decisions are reviewable: (a) a decision made as a result of an application under section 21(3); (b) a decision about the nature or scope of recovery/return to work services provided, or to be provided, for a worker; (ba) a decision to bring an interim decision under section 21(3) to an end under section 21(4)(b)(ii); (c) without limiting paragraph (b)—a decision relating to a recovery/return to work plan, or a provision of a recovery/return to work plan (including on a review of a recovery/return to work plan), on the ground that the decision or the provision is unreasonable; (d) a decision as to a permanent impairment matter under Part 2 Division 5; (e) a decision on a claim under section 31 (and, if a claim is accepted, will include the calculation of average weekly earnings under section 5 and the amount of any payment under Part 4); (f) a decision to redetermine a claim under section 31; (g) without limiting a preceding paragraph—a decision on a claim for compensation for costs under section 33(2); (h) a decision not to approve the provision of services or the incurring of costs on an application under section 33(17); (i) a decision not to approve surgery under section 33(21)(b)(ii) or the provision of services under section 33(21)(b)(iii); (j) a decision to review, vary, discontinue or suspend weekly payments under Part 4 Division 4 Subdivision 2, Subdivision 3 or Subdivision 4; (k) a decision to suspend weekly payments under section 51(4); (l) without limiting a preceding paragraph, a decision as to the amount payable under Part 4 Division 6 or Division 7 or any decision under Part 4 Division 8 (including on a review under section 60); (m) a decision on a claim made by the Tribunal made in the exercise of its jurisdiction under Part 7; (n) a decision declared to be reviewable by regulations made for the purposes of this section. Division 2—Conferral of jurisdiction 98—Conferral of jurisdiction (1) The Tribunal has jurisdiction to deal with a reviewable decision. (2) Despite section 27 of the South Australian Employment Tribunal Act 2014, the Tribunal will conduct a review of a reviewable decision as a hearing de novo. Division 3—Institution of proceedings 99—Application to Tribunal (1) A person with a direct interest in a reviewable decision may commence proceedings for a review of the reviewable decision by the Tribunal. (2) A person has a direct interest in a reviewable decision if the person— (a) is directly affected by the decision; or (b) is the employer from whose employment the work injury arose or is alleged to have arisen. 100—Time for making application (1) An application may be made to the Tribunal within 1 month after the applicant receives notice of the reviewable decision unless the Tribunal allows an extension of time. (2) The Tribunal must only allow an extension of time under subsection (1) if satisfied— (a) that good reason exists; and (b) that another party will not be unreasonably disadvantaged because of the delay in commencing the proceedings. 101—Notice to be given by Registrar (1) On receiving an application under this Part, the Registrar must immediately send copies of the application to the other parties to the proceedings. (2) The copy of the application sent to the relevant compensating authority must be accompanied by copies of any documentary materials lodged with the application. Division 4—Initial reconsideration 102—Initial reconsideration (1) The relevant compensating authority must, on receiving a copy of an application under this Part— (a) assign a suitable person to reconsider the decision to which the application relates; and (b) have the decision reconsidered in the light of the matters set out in the application. (2) A person assigned to reconsider the decision— (a) may be (but need not be) an officer of the relevant compensating authority but must not be the person who made the decision; and (b) must be a person who has been nominated to the Registrar in accordance with the regulations as a person who may be assigned to reconsider decisions under this Division. (3) On completion of the reconsideration, the relevant compensating authority must confirm or vary the decision to conform with the result of the reconsideration and give the Registrar a written notice stating— (a) the result of the reconsideration; and (b) whether the compensating authority has confirmed or varied the decision as a result of the reconsideration and, if the decision has been varied, how the decision has been varied. (4) If the disputed decision is varied, the written notice must also be given to the other parties to the proceedings. (5) The relevant compensating authority must complete the reconsideration and give the notice or notices stating the result of the reconsideration as soon as is reasonably practicable but in any event within 10 business days after receiving the copy of the application or a longer time allowed by the Registrar on the authority's application. (6) The variation of a decision under this section is not to be regarded as a redetermination of a claim under the other provisions of this Act. (7) A decision on a claim by the Tribunal itself, made in the exercise of the Tribunal's special jurisdiction to expedite decisions on claims, is not liable to reconsideration under this section and if such a decision is the subject of an application under this Part, the matter will immediately proceed to be reviewed under Part 3 of the South Australian Employment Tribunal Act 2014. 103—Proceedings on application (1) If in a case where section 102 applies— (a) the relevant compensating authority, on reconsideration of a decision under this Division, confirms the decision; or (b) the relevant compensating authority, on reconsideration of a decision under this Division, varies the decision and a party to the dispute expresses dissatisfaction with the result of the reconsideration in accordance with the rules, the matter will be dealt with under Part 3 of the South Australian Employment Tribunal Act 2014. (2) The reconsideration of a matter under this Division should not unduly delay proceedings before the Tribunal and the Tribunal must, so far as is reasonably practicable, undertake its processes pending the outcome of the reconsideration (including by listing the matter, setting up or conducting any conference, or taking other such steps). Division 5—Related matters—Tribunal proceedings 104—Conciliation conference (1) Before the Tribunal proceeds with the hearing of a matter under this Part, a compulsory conciliation conference between the parties must be held in accordance with section 43 of the South Australian Employment Tribunal Act 2014. (2) In connection with the operation of subsection (1), the Tribunal must not dispense with a conference under section 43(3) of the South Australian Employment Tribunal Act 2014 but the member of the Tribunal presiding at the conference may close the conference at any time if it appears to him or her that the matter should immediately be referred to the Tribunal for hearing and determination. (3) When a matter is referred to a conference under section 43 of the South Australian Employment Tribunal Act 2014, each party must, in accordance with the rules of the Tribunal— (a) disclose to the member of the Tribunal presiding over the conference the existence and nature of all evidentiary material in the party's possession relevant to the matter; and (b) at the request of another party to the proceedings, give the party access to the relevant evidentiary material. (4) However, if the member of the Tribunal presiding over the conference agrees, a party need not give another party access to evidentiary material if— (a) the material is a paper, videotape, compact disc or other electronic recording of photographic material, or a report of surveillance; or (b) the disclosure of the material could prejudice the investigation of a suspected offence. (5) Despite section 43(14) of the South Australian Employment Tribunal Act 2014— (a) evidence of a settlement reached at a conference under that section is admissible (without the consent of all parties) in subsequent proceedings; and (b) evidence of the offers made in the course of a conference under that section is admissible (without consent of all parties) in subsequent proceedings for the purpose of applying provisions for deciding questions about costs. 105—Representation (1) In addition to section 51(1)(a) and (b) of the South Australian Employment Tribunal Act 2014, a party to proceedings before the Tribunal under this Act is entitled, without leave, to be represented by an officer or employee of an industrial association acting in the course of employment with that industrial association. (2) Section 51(1)(c) of the South Australian Employment Tribunal Act 2014 does not apply with respect to proceedings under this Act. 106—Costs (1) A party (other than the relevant compensating authority) is entitled, subject to this Part and to limits prescribed by regulation, to an award against the relevant compensating authority for the party's reasonable costs of— (a) any initial reconsideration of a decision under Division 4; and (b) any subsequent proceedings for resolution of the matter before the Tribunal. (2) Costs may only be awarded to cover— (a) the cost of representation by a legal practitioner or an officer or employee of an industrial association; and (b) costs of a kind authorised by the regulations that were reasonably incurred. (3) If the Tribunal is of the opinion that a party— (a) has acted unreasonably— (i) in bringing proceedings before the Tribunal; or (ii) in view of an assessment or recommendation of a member of the Tribunal under section 43(13) of the South Australian Employment Tribunal Act 2014; or (iii) without limiting subparagraph (ii)—in failing to discontinue or settle any proceedings before the conclusion of the hearing of a matter; or (iv) in relation to any other aspect of the conduct of proceedings before the Tribunal; or (b) has acted frivolously or vexatiously in bringing or in relation to the conduct of proceedings before the Tribunal, the Tribunal may— (c) decline to make an award of costs in favour of the party and may further (if it thinks fit) make an award of costs against the party; or (d) reduce the amount of the award of costs to which the party would otherwise have been entitled. (4) Subject to subsection (5), an award of costs to cover professional advice or assistance may, if the Tribunal considers appropriate, be made in favour of the person who provided the professional advice or assistance. (5) An award of costs to cover the cost of representation by an officer or employee of an industrial association are payable to the industrial association. (6) An award of legal costs cannot exceed 85% of the amount that would be allowable under the relevant Supreme Court scale if the proceedings were in the Supreme Court. (7) If the amount of permanent impairment compensation is disputed by a worker and the amount the Tribunal awards is less than, or the same as, or less than 10% above, an amount offered by the relevant compensating authority to settle the matter before the matter proceeds to a hearing before the Tribunal, the worker is not entitled to costs under this section (and evidence of an offer made in the course of a compulsory conference or mediation is admissible (without the consent of all parties) in subsequent proceedings for the purpose of applying this provision). (8) Section 57 of the South Australian Employment Tribunal Act 2014 does not apply to proceedings before the Tribunal under this Act. 107—Costs liability of representatives professional representative means a legal practitioner or other person who has been engaged or appointed to represent a party to proceedings before the Tribunal (whether personally or through an employee or agent). (2) If a professional representative acting for a party to proceedings before the Tribunal under this Part (whether personally or through an employee or agent) has caused costs— (a) to be incurred improperly or without reasonable cause; or (b) to be wasted by undue delay or negligence or by any other misconduct or default, the Tribunal may make an order as specified in subsection (3). (3) The Tribunal may order— (a) that all or any of the costs between the professional representative and his or her client be disallowed or that the professional representative repay to his or her client the whole or part of any money paid on account of costs; (b) that the professional representative pay to his or her client all or any of the costs which his or her client has been ordered to pay to any party; (c) that the professional representative pay all or any of the costs of any party other than his or her client. (4) Without limiting subsection (2), a professional representative is in default for the purposes of that subsection if any proceedings cannot conveniently be heard or proceed, or fail or are adjourned without any useful progress being made, because the professional representative failed to— (a) attend in person or by a proper representative; or (b) file any document which ought to have been filed; or (c) lodge or deliver any document for the use of the Tribunal which ought to have been lodged or delivered; or (d) be prepared with any proper evidence or account; or (e) otherwise proceed. (5) The Tribunal may not make an order against a professional representative under subsection (3) unless the Tribunal has informed the professional representative of the nature of the order proposed and allowed the professional representative a reasonable opportunity to make representations, and call evidence, in relation to the matter. (6) The Tribunal may order that notice of any proceedings or order against a professional representative under this section be given to the client in such manner as the Tribunal directs. (7) The Tribunal's power to make an order under subsection (3) is exercisable by— (a) a presidential member of the Tribunal; or (b) another member of the Tribunal who is authorised by a presidential member of the Tribunal to make the particular order. 108—Recovery of costs of representation (1) A representative of a party to proceedings before the Tribunal under this Act must not charge nor seek to recover for work involved in, or associated with, that representation an amount exceeding the amount allowable under a scale fixed by regulation. Maximum penalty: $2 000. (2) Before proposing a regulation under this section to the Executive Council, the Minister must consult with the Crown Solicitor. 109—Ministerial intervention The Minister may, if satisfied that intervention is justified in the public interest, intervene in proceedings before the Tribunal under this Part. 110—Power to amend or set aside decisions or orders The Tribunal may amend or set aside a decision or order of the Tribunal— (a) by consent of the parties; or (b) if the interests of justice require that the decision or order be amended or set aside. 111—Regulations concerning medical evidence (1) The regulations may make provision for or with respect to— (a) the disclosure, by the furnishing of copies of reports or otherwise, of the nature of the expert medical evidence to be given in evidence before the Tribunal (including the exclusion of any such evidence for non‑compliance with any requirement for the disclosure of the nature of the evidence); and (b) the disclosure of medical reports (including X‑rays and the results of other tests) (including the exclusion of any such medical report for non‑compliance with any requirement for the disclosure of the medical report). (2) Subsection (1) does not limit any other power of the Tribunal in relation to determining the procedures of the Tribunal, regulating proceedings before the Tribunal, or making rules under the South Australian Employment Tribunal Act 2014. 112—Payment to child (1) Although a party to proceedings before the Tribunal may be a child under a legal disability, the Tribunal may order the payment of money to that child. (2) If such an order is made, a receipt given by the child is a valid discharge for the person to whom it is given.