Div 6Procedure in arbitration

Division 6—Procedure in arbitration 25—Hearing to be in private (1) Subject to subclause (2), an arbitration hearing for an access dispute is to be in private. (2) If the parties agree, an arbitration hearing or part of an arbitration hearing may be conducted in public. (3) The arbitrator in a hearing that is conducted in private may give written directions as to the persons who may be present. (4) In giving directions under subclause (3), the arbitrator must have regard to the wishes of the parties and the need for commercial confidentiality. 26—Right to representation In an arbitration hearing, a party may appear in person or be represented by someone else. 27—Procedure of arbitrator (1) In an arbitration hearing about an access dispute, the arbitrator— (a) is not bound by technicalities, legal forms or rules of evidence; (b) must act as speedily as a proper consideration of the dispute allows, having regard to the need to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute; and (c) may inform himself or herself of any matter relevant to the dispute in any way the arbitrator thinks appropriate. (2) The arbitrator may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an access dispute and may require that the cases be presented within those periods. (3) The arbitrator may require evidence or argument to be presented in writing and may decide the matters on which the arbitrator will hear oral evidence or argument. (4) The arbitrator may determine that an arbitration hearing is to be conducted by— (a) telephone; (b) closed circuit television; or (c) any other means of communication. 28—Particular powers of arbitrator (1) The arbitrator may do any of the following things for the purpose of arbitrating an access dispute: (a) give a direction in the course of, or for the purposes of, an arbitration hearing; (b) hear and determine the arbitration in the absence of a person who has been summoned or served with a notice to appear; (c) sit at any place; (d) adjourn to any time and place; (e) refer any matter to an expert and accept the expert's report as evidence; (f) generally give all such directions, and do all such things, as are necessary or expedient for the speedy hearing and determination of the access dispute. (2) A person must not do an act or thing in relation to the arbitration of an access dispute that would be a contempt of court if the arbitrator were a court of record. (3) Subclause (1) has effect subject to any other provision of this Code or as prescribed. (4) The arbitrator may give an oral or written order to a person not to divulge or communicate to anyone else specified information that was given to the person in the course of an arbitration, unless the person has the arbitrator's permission. (5) A person who contravenes an order under subclause (4) is guilty of an offence. 29—Power to take evidence on oath or affirmation (1) The arbitrator may take evidence on oath or affirmation and for that purpose may administer an oath or affirmation. (2) The arbitrator may summon a person to appear before the arbitrator to give evidence and to produce such documents (if any) as are referred to in the summons. (3) The powers in this clause may be exercised only for the purposes of arbitrating an access dispute. 30—Failing to attend as witness A person who is served, as prescribed, with a summons to appear as a witness before the arbitrator must not, without reasonable excuse, fail to— (a) attend as required by the summons; or (b) appear and report himself or herself from day to day unless excused or released from further attendance by the arbitrator. 31—Failing to answer questions etc. (1) A person appearing as a witness before the arbitrator must not, without reasonable excuse, refuse or fail— (a) to be sworn or to make an affirmation; (b) to answer a question that the person is required to answer by the arbitrator; or (c) to produce a document that the person was required to produce by a summons under this Code served on the person as prescribed. (2) It is a reasonable excuse for the purposes of subclause (1) for an individual to refuse or fail to answer a question or produce a document on the ground that the answer or the production of the document might tend to incriminate the individual or to expose the individual to a penalty. (3) Subclause (2) does not limit what is a reasonable excuse for the purposes of subclause (1). 32—Intimidation etc. A person must not— (a) threaten, intimidate or coerce another person; or (b) cause or procure damage, loss or disadvantage to another person, because that other person— (c) proposes to produce, or has produced, documents to the arbitrator; or (d) proposes to appear or has appeared as a witness before the arbitrator. Penalty: $100 000. 33—Party may request arbitrator to treat material as confidential (1) A party to an arbitration hearing may— (a) inform the arbitrator that, in the party's opinion, a specified part of a document contains confidential commercial information; and (b) request the arbitrator not to give a copy of that part to another party. (2) On receiving a request, the arbitrator must— (a) inform the other party or parties that the request has been made and of the general nature of the matters to which the relevant part of the document relates; and (b) ask the other party or parties whether there is any objection to the arbitrator complying with the request. (3) If there is an objection to the arbitrator complying with a request, the party objecting may inform the arbitrator of its objection and of the reasons for it. (4) After considering— (a) a request; (b) any objection; and (c) any further submissions that a party has made in relation to the request, the arbitrator may decide not to give to the other party or parties a copy of so much of the document as contains confidential commercial information that the arbitrator thinks should not be so given. 34—Costs of arbitration (1) The costs of an arbitration (including each party's reasonable costs and expenses) are to be borne by the parties in proportions decided by the arbitrator. (2) However, if the access seeker terminates an arbitration or elects not to be bound by an award, the access seeker must bear the costs in their entirety. (3) The regulator may recover the costs of an arbitration as a debt.