Part 4Principles, powers and procedures

Part 4—Principles, powers and procedures Division 1—Principles governing hearings 39—Principles governing hearings (1) On the hearing of any proceedings, but subject to the provisions of a relevant Act— (a) the procedure of the Tribunal will, subject to this Act, be conducted with the minimum of formality; and (b) the Tribunal is not bound by the rules of evidence, may adopt, as in its discretion it considers appropriate, any findings, decision or judgment of a court or other tribunal (insofar as may be relevant to the proceedings before the Tribunal), and may otherwise inform itself as it thinks fit; and (c) the Tribunal must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms. (2) Nothing in this Act affects any rule or principle of law relating to— (a) legal professional privilege; or (b) "without prejudice" privilege; or (c) public interest immunity. (3) This section does not limit the operation of section 69. Division 2—Evidentiary powers 40—Power to require person to give evidence or to produce evidentiary material (1) The Tribunal may, on the application of a party to proceedings or on its own initiative, issue a summons requiring a person to appear before the Tribunal at a specified time and place to give evidence or to produce evidentiary material (or both). (2) A summons to produce evidentiary material may, instead of providing for production of the material before the Tribunal, provide for production of the material to an officer of the Tribunal, or to any person nominated in the summons. (3) The Tribunal may— (a) retain any document, object or substance produced before it (whether in response to a summons or otherwise) for such reasonable period as it thinks fit, and make copies of any document; and (b) require a person called to give evidence (whether in response to a summons or otherwise) to make an oath or affirmation (which may be administered by any member or officer of the Tribunal) to answer truthfully questions put by any member of the Tribunal or any person appearing before the Tribunal; and (c) require any person called to give evidence (whether in response to a summons or otherwise) to answer any questions put by any member of the Tribunal or any person appearing before the Tribunal that are determined by the Tribunal to be relevant to the proceedings before the Tribunal. (4) A person who— (a) refuses or fails to make an oath or affirmation when required to do so under this section; or (b) refuses or fails without reasonable excuse to produce evidentiary material that the person is required by the Tribunal to produce; or (c) refuses or fails without reasonable excuse to appear before the Tribunal in response to a summons; or (d) refuses or fails without reasonable excuse to give evidence before the Tribunal or otherwise refuses or fails without reasonable excuse to answer any question put in proceedings before the Tribunal or otherwise required under this Act; or (e) gives false or misleading evidence to the Tribunal, is guilty of an offence. Maximum penalty: $25 000 or imprisonment for 1 year. (5) A summons under this section may be issued on behalf of the Tribunal by— (a) any member of the Tribunal; or (b) a registrar; or (c) any other officer authorised under the rules or by the President of the Tribunal to issue such summonses. 41—Entry and inspection of property (1) A member of the Tribunal may enter any land or building and carry out any inspection that the Tribunal considers relevant to any proceedings before the Tribunal. (2) A member of the Tribunal may authorise an officer of the Tribunal to enter any land or building and carry out an inspection that the member considers relevant to any proceedings before the Tribunal. (3) A person who obstructs a member of the Tribunal, or a person authorised by the Tribunal, in the exercise of a power of entry or inspection under this section is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 6 months. 42—Expert reports (1) The Tribunal may refer any question arising in any proceedings for investigation and report by an expert in the relevant field. (2) The Tribunal must seek submissions from the parties to the proceedings before making a reference under this section. (3) A person to whom a question is referred under this section becomes an officer of the Tribunal and may exercise such powers of the Tribunal as the Tribunal delegates. (4) The Tribunal may adopt a report obtained under this section in whole or in part (or may reject it). (5) Any action taken under subsection (4) does not prevent the Tribunal from making a further reference to an expert. (6) The Tribunal may order a party to pay or contribute to the costs of an expert's investigation and report under this section. Division 3—Procedures 43—Practice and procedure generally (1) The Tribunal is to take measures that are reasonably practicable— (a) to ensure that the parties to any proceedings have a reasonable opportunity to understand the nature of the matter under consideration; and (b) to ensure that the parties to any proceedings understand the nature of any assertions made in the proceedings and the legal implications of those assertions; and (c) to explain to the parties, if requested to do so, any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal; and (d) to ensure that the parties have the opportunity in any proceedings to be heard or otherwise have their submissions received. (2) The Tribunal— (a) is to take all practicable steps to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in any proceedings; and (b) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument; and (c) may limit the time available for presenting the respective cases of parties before it at a hearing to an extent that it considers would not impede the fair and adequate presentation of the cases; and (d) may require a document to be served outside the State; and (e) may adjourn any proceedings at any time and to any place (including for the purpose of enabling the parties to negotiate a settlement or for the purpose of reconsideration of a decision by the decision‑maker); and (f) may proceed to hear and determine proceedings in the absence of a party. (3) To the extent that the practice or procedure of the Tribunal is not prescribed by or under this Act or a relevant Act, it is to be as the Tribunal determines. 44—Directions for conduct of proceedings (1) The Tribunal may give directions at any time in any proceedings and do whatever is necessary for the speedy and fair conduct of the proceedings. (2) The Tribunal may give directions on its own initiative or at the request of a party. (3) A directions hearing may be held for the purposes of this section before any other hearing in any proceedings. (4) The Tribunal may give a direction requiring a party to produce a document or other material, or to provide information, to the Tribunal or another party. 45—Consolidating and splitting proceedings (1) The Tribunal may direct that 2 or more proceedings that concern the same or related facts or circumstances— (a) be consolidated into 1 proceeding; or (b) remain as separate proceedings but be heard and determined together. (2) If proceedings are consolidated, evidence given in the consolidated proceedings is admissible in relation to matters involved in either of the proceedings that were consolidated. (3) The Tribunal may direct— (a) that any aspect of any proceedings be heard and determined separately; (b) that proceedings commenced by 2 or more persons jointly be split into separate proceedings. 46—More appropriate forum The Tribunal may, at any time, make an order striking out all, or any part, of any proceedings if it considers that the matter, or any aspect of it, would be more appropriately dealt with by another tribunal, a court, or any other person. 47—Dismissing proceedings on withdrawal or for want of prosecution (1) The applicant in any proceedings may withdraw or agree to the withdrawal of the proceedings or a part of the proceedings. (2) Unless otherwise provided by the rules, an applicant can only act under subsection (1) with the leave of the Tribunal. (3) The Tribunal may make an order dismissing or striking out all, or any part, of any proceedings if the applicant withdraws or agrees to the withdrawal of the proceedings or that part of it. (4) At any time, the Tribunal may make an order dismissing or striking out all, or any part, of any proceedings for want of prosecution. (5) The Tribunal's power to make an order under subsection (4) is exercisable only by a legally qualified member of the Tribunal or a registrar who is authorised in writing by the President of the Tribunal to make such an order (whether generally or in relation to particular classes of matters or otherwise). (6) The Tribunal may make an order under this section on the application of a party or on its own initiative. 48—Frivolous, vexatious or improper proceedings (1) This section applies if the Tribunal believes that a proceeding— (a) is frivolous, vexatious, misconceived or lacking in substance or involves a trivial matter or amount; or (b) is being used for an improper purpose; or (c) is otherwise an abuse of process. (2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and may make any related or ancillary order. (3) The Tribunal may act under subsection (2) on the application of a party or on its own initiative. (4) If a proceeding is dismissed or struck out under this section, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a Presidential member. 49—Proceedings being conducted to cause disadvantage (1) This section applies if the Tribunal believes that a party to any proceedings is conducting the proceedings in a way that unnecessarily disadvantages another party to the proceedings by conduct such as— (a) failing to comply with an order or direction of the Tribunal without reasonable cause; or (b) failing to comply with this Act or a relevant Act; or (c) asking for an adjournment the need for which is attributable to a failure described in paragraph (a) or (b); or (d) attempting to deceive another party or the Tribunal; or (e) vexatiously conducting the proceedings; or (f) failing to attend any hearing in the proceedings. (2) If this section applies, the Tribunal may— (a) if the party causing the disadvantage is the applicant, order that the proceedings be dismissed or struck out; and (b) if the party causing the disadvantage is not the applicant— (i) determine the proceedings in favour of the applicant and make any appropriate orders; or (ii) order that the party causing the disadvantage be struck out of the proceedings. (3) The Tribunal may act under subsection (2) on the application of a party or on its own initiative. (4) If any proceedings are dismissed or struck out under this section, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a Presidential member. Division 4—Conferences, mediation and settlement 50—Conferences (1) The Tribunal may, at an initial directions hearing or at any other time, require parties to any proceedings to attend a compulsory conference. (2) The Tribunal must, if so required by the rules or a relevant Act, require parties to attend a compulsory conference. (3) Despite subsection (2) (and section 4), the Tribunal may dispense with a conference if it is of the opinion that— (a) no useful purpose would be served by a conference between the parties; or (b) there is some other reason that justifies dispensing with the conference. (4) The purpose of a compulsory conference is to identify and clarify the issues in the proceedings and to promote the resolution of the matters by a settlement between the parties. (5) A compulsory conference may, at the discretion of the member of the Tribunal presiding at the conference, be adjourned or reconvened from time to time. (6) Unless the member of the Tribunal presiding at the conference directs otherwise, a compulsory conference is to be held in private. (7) Subject to this section and except to the extent to which the rules may specify the procedure for a compulsory conference, the member of the Tribunal presiding at a compulsory conference may determine the procedure for the conference. (8) The member of the Tribunal presiding at a compulsory conference may— (a) if that member is not a Presidential member—refer any question of law to a Presidential member of the Tribunal for determination; (b) require a party to the proceedings to furnish particulars of his or her case; (c) determine who, apart from the parties to the proceedings (and their representatives), may be present at the conference; (d) subject to subsection (11), record any settlement reached at a conference and make any determination or order (including an order under, or for the purposes of, a relevant Act) necessary to give effect to a settlement; (e) on his or her own initiative, close the conference at any time if, in his or her opinion, settlement cannot be reached; (f) advise the Tribunal if the conference does not reach a settlement within a reasonable time; (g) permit a party to withdraw from the proceedings (and make any consequential order that is appropriate in the circumstances); (h) determine a matter against any party who obstructs or delays the conference, fails to attend the conference, or fails to comply with a rule or order of the Tribunal and, in so doing, make any order as the member of the Tribunal thinks fit (including an order as to costs); (i) do such other things as the rules of the Tribunal so provide. (9) If a question of law is referred to a Presidential member of the Tribunal under subsection (8)(a), the Presidential member may refer the question to the Court of Appeal for determination. (10) Evidence of anything said or done in the course of a compulsory conference under this section is inadmissible in proceedings before the Tribunal except by consent of all parties to the proceedings. (11) The member of the Tribunal presiding at a compulsory conference— (a) must not accept a settlement that appears to be inconsistent with a relevant Act (but he or she may adjourn the proceedings to enable the parties to explore the possibility of varying the settlement to comply with a relevant Act); and (b) may decline to accept a settlement on the basis that the settlement may materially prejudice any person who was not represented at the conference but who has a direct or material interest in the matter. (12) If the member of the Tribunal presiding at a conference is unable to continue with the conference, another member of the Tribunal may be appointed to continue and complete the conference. (13) Unless all parties to the proceedings agree to his or her continued participation, the member of the Tribunal who presided at the conference is disqualified from sitting as a member of the Tribunal for the purpose of hearing and determining the matter. (14) A registrar is expressly authorised to constitute the Tribunal for the purposes of this section. (15) The rules may set out circumstances where the outcome of any proceedings under this section (including details of a settlement) are to be available to members of the public. 51—Mediation (1) The Tribunal may, at an initial directions hearing or at any other time, refer the matter, or any aspect of the matter, for mediation by a person specified as a mediator by the Tribunal. (2) The person specified as a mediator must be a person who has been approved by the President of the Tribunal to act as a mediator. (3) The referral may be made with or without the consent of the parties. (4) The purpose of a mediation is to achieve the resolution of the matters by a settlement between the parties. (5) The rules may specify how notice of the mediation is to be given, how the mediation is to be conducted, and the fees to be paid by a party to the mediation. (6) Unless the mediator directs otherwise, the mediation is to be held in private. (7) Subject to this section and except to the extent to which the rules may specify the procedure for a mediation, the mediator may determine the procedure for the mediation. (8) If the mediator is a member of the Tribunal and a settlement is reached at the mediation, the mediator may reduce the terms of the settlement to writing and make any determination or order (including an order under, or for the purposes of, a relevant Act) necessary to give effect to the settlement. (9) If a settlement is not reached at the mediation or the mediator is not a member of the Tribunal, the mediator is to report on the outcome of the mediation to the Tribunal as constituted when it made the referral. (10) Any settlement under this section— (a) must not be inconsistent with a relevant Act; and (b) may be rejected by the Tribunal on the basis that the settlement may materially prejudice any person who has not participated in the mediation but who has a direct or material interest in the matter. (11) Evidence of anything said or done in the course of a mediation under this section is inadmissible in proceedings before the Tribunal except by consent of all parties to the proceedings. (12) If the mediator is a member of the Tribunal, the member cannot take any further part in dealing with the proceedings after the mediation, unless all parties to the proceedings agree to his or her continued participation. (13) The rules may set out circumstances where the outcome of any proceedings under this section (including details of a settlement) are to be available to members of the public. 52—Settling proceedings (1) The Tribunal may itself endeavour to achieve a negotiated settlement of a matter before the Tribunal. (2) If the parties agree in writing to settle a matter before the Tribunal, the Tribunal may make any determination or order (including an order under, or for the purposes of, a relevant Act) necessary to give effect to the settlement. (3) A settlement under this section must not be inconsistent with a relevant Act and the Tribunal may reject a settlement under subsection (2) on the basis that the settlement may materially prejudice any person who is not a party to the settlement but who has a direct or material interest in the matter or that the terms of the settlement are inappropriate. Division 5—Parties 53—Parties (1) A person is a party to proceedings before the Tribunal if the person is— (a) the applicant; or (b) in the case of any disciplinary proceedings or any proceedings constituted by any inquiry into a person—the person who is the subject of the proceedings; or (c) in the case of proceedings involving the review of a decision—the decision‑maker; or (ca) without limiting a preceding paragraph, a respondent to an application before the Tribunal, a person against whom a claim is made by proceedings brought before the Tribunal, or a party to a dispute before the Tribunal; or (d) a person joined in the proceedings by order of the Tribunal; or (e) a person lawfully intervening in the proceedings; or (f) a person specified by another provision of this Act or a relevant Act to be a party to the proceedings. (2) Subsection (1) applies subject to any provision or exclusion made by the rules of the Tribunal. (3) In any proceedings where a decision‑maker is a party, the official description rather than the personal name of the decision‑maker is to be used so far as is practicable. 54—Person may be joined as party (1) The Tribunal may order that a person be joined as a party to proceedings before the Tribunal if the Tribunal considers that— (a) the person should be bound by, or have the benefit of, a decision of the Tribunal in the proceedings; or (b) the person's interests are affected by the proceedings; or (c) for any other reason it is desirable that the person be joined as a party. (2) The Tribunal may make an order under this section— (a) on the application of any person or on its own initiative; and (b) without notice to the person to whom the order relates. 55—Intervening (1) The Attorney‑General may, on behalf of the State, intervene in any proceedings before the Tribunal at any time. (2) The Tribunal may give leave at any time for any other person to intervene in proceedings before the Tribunal on conditions, if any, that the Tribunal thinks fit.