92Costs of proceedings before ART—when costs payable by employer

#### 92 Costs of proceedings before ART—when costs payable by employer (1) If, in any proceedings instituted by the claimant, the ART 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 ART may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, are to be paid by the employer. (2) If the ART gives a decision setting aside a reviewable decision and remitting the case for re‑determination by the employer, the ART must, subject to this section, order that costs of the proceedings before it incurred by the claimant are to be paid by the employer. (3) Neither subsection (1) nor (2) authorises the ART to order an employer to pay any costs incurred by a claimant in relation to an application for an extension of time for applying to the ART for a review of a reviewable decision. (4) If, in any proceedings, the ART varies or sets aside a reviewable decision, the ART must not make an order under subsection (1) or (2) in favour of a claimant in relation to the costs of those proceedings if: (a) the employer, before making the reviewable decision, gave the claimant a notice under section 67 or 83 requesting the claimant to give the employer the information (the relevant information) referred to in the notice or an authority to obtain the relevant information; and (b) the ART is satisfied that: (i) the claimant failed to comply with that notice; and (ii) at the time when the employer made the reviewable decision, it did not have the relevant information, and the relevant information was not reasonably available to it; and (iii) if the employer 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. (5) If, in any proceedings, the ART varies or sets aside a reviewable decision, the ART must not make an order under subsection (1) or (2) in favour of a claimant in relation to the costs of those proceedings if: (a) the employer, before making the reviewable decision, gave the claimant a notice under section 67 or 83 requesting the claimant to give the employer, or to give the employer a copy of, a document (the relevant document) referred to in the notice or an authority to obtain, or to obtain a copy of, the relevant document; and (b) the ART is satisfied that: (i) the claimant failed to comply with the notice; and (ii) at the time when the employer made the reviewable decision, it did not have the information contained in the relevant document, and that information was not reasonably available to it; and (iii) if the employer 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.