INDUSTRIAL RELATIONS ACT 2016 - SCHEDULE 2
INDUSTRIAL RELATIONS ACT 2016 - SCHEDULE 2
SCHEDULE 2 – Costs provisions for proceedings under Anti-Discrimination Act 1991
1 Definitions for schedule
In this schedule—
"commission" , for an appeal to the court under chapter 11 , part 6 against a
decision of the commission in relation to a proceeding heard by the commission
under the Anti-Discrimination Act 1991 , includes the court.
"proceeding" means a proceeding mentioned in section 548 .
2 Each party usually bears own costs
Other than as provided under this schedule, each party to the proceeding must bear the party’s own costs for the proceeding.
3 Limitation for children
(1) The commission must not award costs against a child.
(2) Subsection (1) does not prevent the commission making an order under section 5 of this schedule against a representative of a child.
4 Costs against party in interests of justice
(1) The commission may make an order requiring a party to the proceeding to pay all or a stated part of the costs of another party to the proceeding if the commission considers the interests of justice require it to make the order.
(2) In deciding whether to award costs under subsection (1) the commission may have regard to the following—(a) whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding;(b) the nature and complexity of the proceeding;(c) the relative strengths of the claims made by each of the parties to the proceeding;(e) the financial circumstances of the parties to the proceeding;(f) anything else the commission considers relevant.
5 Costs against representative in interests of justice
(1) If the commission considers a representative of a party to the proceeding, rather than the party, is responsible for unnecessarily disadvantaging another party to the proceeding as mentioned in section 4 (2) (a) of this schedule, the commission may make a costs order requiring the representative to pay a stated amount to the other party as compensation for the unnecessary costs.
(2) Before making an order under subsection (1) , the commission must give the representative a reasonable opportunity to be heard in relation to making the order.
6 Costs against intervening parties
(1) If the Attorney-General intervenes in the proceeding for the State, the commission may make a costs order requiring the State to pay a stated amount to a party to the proceeding as compensation for all or a part of the costs reasonably incurred by the party as a result of the intervention.
(2) If the commission gives leave to a person to intervene in the proceeding, the commission may make a costs order requiring the person to pay a stated amount to a party to the proceeding as compensation for all or a part of the costs reasonably incurred by the party as a result of the intervention.
7 Other power to award costs
The rules may authorise the commission to award costs in other circumstances, including, for example, the payment of costs in the proceeding if an offer to settle the complaint or other matter that is the subject of the proceeding has been made but not accepted.
8 Costs awarded at any stage
If the commission may award costs under a provision of this schedule, the costs may be awarded at any stage of the proceeding or after the proceeding has ended.
9 Fixing or assessing costs
(1) If the commission makes a costs order under a provision of this schedule, the commission must fix the costs if possible.
(2) If it is not possible to fix the costs having regard to the nature of the proceeding, the commission may make an order requiring the costs to be assessed under the rules.
(3) The rules may provide that costs must be assessed by reference to a scale under the rules applying to a court.
10 Staying proceeding
(1) Subsection (2) applies if the commission makes a costs order under a provision of this schedule before the proceeding ends.
(2) The commission may make an order requiring the costs to be paid before it continues with the proceeding.
(3) Subsection (4) applies if a party has been ordered to pay the costs of another party under this schedule, and the party, before paying the costs, starts another proceeding before the commission against the other party.
(4) The commission may make an order staying the other proceeding until the costs are paid.
11 Security
(1) This section applies if, under a provision of this schedule, the commission may award a party’s costs for the proceeding.
(2) On the application of a party (
"applicant party" ) to the proceeding against whom a claim is made or an outcome or decision sought in the proceeding, the commission may make an order—(a) requiring another party to the proceeding to give security for the applicant party’s costs within the period stated in the order; and(b) staying the proceeding, or the part of the proceeding against the applicant party, until the security is given.
(3) If the security is not given within the period stated in the order, the commission may make an order dismissing the proceeding, or the part of the proceeding against the applicant party.
(4) In deciding whether to make an order under subsection (1) , the commission may have regard to any of the following matters—(a) the financial circumstances of the parties to the proceeding;(b) the prospects of success or merits of the proceeding or the part of the proceeding against the applicant party;(c) the genuineness of the proceeding or the part of the proceeding against the applicant party;(d) anything else the commission considers relevant.