67Costs of proceedings before Administrative Review Tribunal

#### 67 Costs of proceedings before Administrative Review Tribunal (1A) In this section, responsible authority, in relation to a determination, means: (a) if the determination affected the Commonwealth or a Commonwealth authority other than a licensed authority—Comcare; and (b) if the determination affected a Commonwealth authority, or a corporation, that holds a licence under Part VIII authorising acceptance of liability for claims in respect of which the determination is made—that authority or corporation; and (c) if the determination affected a Commonwealth authority that holds a licence under Part VIII but the licence does not authorise acceptance of liability for claims in respect of which the determination is made—Comcare. (1) Subject to this section, the costs incurred by a party to proceedings instituted under this Part in respect of that reviewable decision shall be borne by that party. (2) Subject to this section, where a proceeding instituted under this Part in respect of a reviewable decision relating to a determination is rendered abortive because a decision has been made, following a reconsideration under subsection 62(1), varying or revoking that determination, the responsible authority is liable to reimburse the claimant for costs reasonably incurred by the claimant in connection with that proceeding. (3) Where: (a) a determining authority has determined a claim (in this subsection called the original determination); (b) the authority, before making that determination, gave the claimant a notice under section 58 requesting the claimant to give it the information specified in the notice (in this subsection called the relevant information); (c) the claimant failed to comply with the notice; (d) at the time when the authority determined the claim, it did not have the relevant information nor was the relevant information reasonably available to it; (e) after the claim was determined, the claimant disclosed the relevant information to the authority or to the Administrative Review Tribunal; (f) the authority reconsidered the original determination under subsection 62(1) and made a determination more favourable to the claimant than the original determination; (g) the authority is satisfied that, if it had had the relevant information at the time when the original determination was made, it would have made a determination more favourable to the claimant than the original determination; and (h) the responsible authority would, but for subsection (5), be liable under subsection (2), to reimburse the claimant for costs reasonably incurred by the claimant; the determining authority may make a declaration, in writing, that subsection (2) does not apply to those costs. (4) Where: (a) a determining authority has determined a claim (in this section called the original determination); (b) the authority, before making that determination, gave the claimant a notice under section 58 requesting the claimant to give it a document, or a copy of the document, specified in the notice (in this subsection called the relevant document); (c) the claimant failed to comply with the notice; (d) at the time when the authority determined the claim, it did not have the information contained in the relevant document nor was that information reasonably available to it; (e) after the claim was determined, the claimant gave the document, or a copy of the document, or the information contained in the relevant document, to the authority or to the Administrative Review Tribunal; (f) the authority reconsidered the original determination under subsection 62(1), and made a determination more favourable to the claimant than the original determination; (g) the authority is satisfied that, if it had had the information contained in the relevant document at the time when the original determination was made, it would have made a determination more favourable to the claimant than the original determination; and (h) the responsible authority would, but for subsection (5), be liable, under subsection (2), to reimburse the claimant for costs reasonably incurred by the claimant; the determining authority may make a declaration, in writing, that subsection (2) does not apply in relation to those costs. (5) Where a determining authority makes a declaration under subsection (3) or (4) that subsection (2) does not apply in relation to costs incurred by a claimant, subsection (2) does not apply in relation to those costs. (6) A determining authority shall give a copy of a declaration made by it under subsection (3) or (4) to the claimant. (7) Application may be made to the Administrative Review Tribunal for review of a decision by a determining authority to make a declaration under subsection (3) or (4). (8) Where, in any proceedings instituted by the claimant, the Administrative Review Tribunal makes a decision: (a) varying a reviewable decision in a manner favourable to the claimant; or (b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision; the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority. (8A) Subject to this section, the Administrative Review Tribunal may order that the costs incurred by the claimant of any proceedings instituted by the Commonwealth be paid by: (a) if the Tribunal varies the relevant reviewable decision in a manner less favourable to the claimant, or sets aside the relevant reviewable decision and substitutes a decision that is less favourable to the claimant—Comcare; or (b) in any other case—the Commonwealth. (8B) Subject to this section, if in any proceedings instituted by a licensed authority or a licensed corporation, the Tribunal affirms the reviewable decision or varies that decision in a manner more favourable to the claimant, or sets aside the relevant reviewable decision and substitutes a decision that is more favourable to the claimant, the Administrative Review Tribunal may order that the costs of the proceedings incurred by the claimant be paid by the responsible authority. (9) Where the Administrative Review Tribunal gives a decision setting aside a reviewable decision and remitting the case for re‑determination by the determining authority, the Tribunal shall, subject to this section, order that the costs of the proceedings before it incurred by the claimant shall be paid by the responsible authority. (10) Nothing in subsection (8), (8A) or (9) authorises the Administrative Review Tribunal to order a person 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 reviewable decision. (11) Where, in any proceedings, the Administrative Review Tribunal varies or sets aside a reviewable decision, the Tribunal shall not make an order under subsection (8) or (9) in favour of a claimant in relation to the costs of those proceedings if: (a) the authority, before making the reviewable decision, gave the claimant a notice under section 58 requesting the claimant to give Comcare or authority information specified in the notice (in this subsection called the relevant information); and (b) the Tribunal is satisfied that: (i) the claimant failed to comply with that notice; (ii) at the time when the authority made the reviewable decision, it did not have the relevant information, nor was the relevant information reasonably available to it; and (iii) if the authority had had the relevant information at the time when it made the reviewable decision it would have made a decision more favourable to the claimant than the reviewable decision. (12) Where, in any proceedings, the Administrative Review Tribunal varies or sets aside a reviewable decision, the Tribunal shall not make an order under subsection (8) or (9) in favour of a claimant in relation to the costs of those proceedings if: (a) the determining authority, before making the reviewable decision, gave the claimant a notice under section 58 requesting the claimant to give the authority a copy of the document specified in the notice (in this subsection called the relevant document); and (b) the Tribunal is satisfied that: (i) the claimant failed to comply with that notice; (ii) at the time when the authority made the reviewable decision, it did not have the information contained in the relevant document, nor was that information reasonably available to it; and (iii) if the authority had had the information contained in the relevant document at the time when it made the reviewable decision it would have made a decision more favourable to the claimant than the reviewable decision. (14) For the purposes of section 115 of the Administrative Review Tribunal Act 2024, the responsible authority is taken to be a party to the proceeding before the Administrative Review Tribunal.