WORKPLACE RELATIONS ACT 1996
- SECT 170CJ
Commission may order payment of costs

(1)

If the Commission is satisfied:

(a) that a person (first party):
(i) made an application under section 170CE; or
(ii) began proceedings relating to an application; and
(b) the first party did so in circumstances where it should have been reasonably apparent to the first party that he or she had no reasonable prospect of success in relation to the application or proceeding;

the Commission may, on application under this section by the other party to the application or proceeding, make an order for costs against the first party.

(2)

If the Commission is satisfied that a party (first party) to a proceeding relating to an application under section 170CE has acted unreasonably in failing:

(a) to discontinue the proceeding; or
(b) to agree to terms of settlement that could lead to the discontinuance of the application;

the Commission may, on an application under this section by the other party to the proceeding, make an order for costs against the first party.

(3)

If the Commission is satisfied:

(a) that a party (first party) to a proceeding relating to an application made under section 170CE caused costs to be incurred by the other party to the proceeding; and
(b) that the first party caused the costs to be incurred because of the first party's unreasonable act or omission in connection with the conduct of the proceeding;

the Commission may, on an application by the other party under this section, make an order for costs against the first party.

(4)

In making a decision under this section, the Commission may have regard to any certificate issued or advice given under section 170CF and whether a party pursued a course of action contrary to any such certificate or advice.

(5)

An application for an order for costs under this section must be made within 14 days after the determination, discontinuance, settlement or dismissal of the application under section 170CE or proceeding relating to an application under section 170CE (as the case may be).

(5A)

A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in respect of:

(a) an application to the Commission under section 170CE; and
(b) a proceeding in respect of an application under section 170CE.

(6)

Without limiting, by implication, the generality of the items of expenditure for which the schedule may provide, those items may include:

(a) legal and professional costs and disbursements; and
(b) expenses arising from the representation of a party by a person or organisation other than on a legal professional basis; and
(c) expenses of witnesses.

(7)

If a schedule of costs is prescribed for the purposes of subsection (5A), then, in awarding costs under this section, the Commission:

(a) is not limited to the items of expenditure appearing in the schedule; but
(b) if an item does appear in the schedule—must not award costs in respect of that item at a rate or of an amount in excess of the rate or amount appearing in the schedule.

(8)

For the purposes of this section, the following proceedings are examples of proceedings relating to an application under section 170CE in respect of which the Commission may make an order for costs:

(b) a proceeding for dismissal of an application under section 170CE on the ground that the application is outside jurisdiction;
(c) conciliation proceedings under section 170CF;
(d) arbitration proceedings under section 170CG;
(e) an appeal to the Full Bench from an order of the Commission under section 170CH or a costs order under section 170CJ;
(f) a proceeding concerning an application for costs by one party in respect of another party's application for costs.