Defence Force Retirement and Death Benefits (Review Tribunals) Regulations (Cth)

Statutory Rules

1974 No. 251

REGULATIONS UNDER THE DEFENCE FORCE RETIREMENT AND DEATH BENEFITS ACT 1973-1974.*

I, THE GOVERNOR-GENERAL of Australia, acting with the advice of the Executive Council, hereby make the following Regulations under the Defence Force Retirement and Death Benefits Act 1973-1974.

Dated this nineteenth day of December, 1974.

JOHN R. KERR

Governor-General.

By His Excellency’s Command,

W. L. MORRISON

Minister of State for and on behalf of the

Minister of State for Defence.

DEFENCE FORCE RETIREMENT AND DEATH BENEFITS (REVIEW TRIBUNALS) REGULATIONS

Citation.

1. These Regulations may be cited as the Defence Force Retirement and Death Benefits (Review Tribunals) Regulations.

Definitions.

2. In these Regulations—

“ Review Tribunal ” means an Invalidity Classification Review Tribunal or an Administrative Review Tribunal;

“ the Act ” means the Defence Force Retirement and Death Benefits Act 1973-1974;

Sitting fees for members of Invalidity Classification Review Tribunals.

3. (1) Subject to sub-regulation (2), for the purposes of section 103 of the Act, the fee payable to a member of an Invalidity Classification Review Tribunal in respect of a day on which he attends a sitting of the tribunal is—

(a) in the case of the Chairman of the tribunal—$56 per day; and

(b) in the case of a member of the tribunal other than the Chairman a fee ascertained in accordance with the following table:—

State or Territory where member attends a sitting, of a Tribunal	Fee for first hour	Fee for each subsequent half hour or part of a half hour
$	$
New South Wales or Northern Territory ..............................................................................................	22.40	11.20
Victoria, Queensland, South Australia or Western Australia ..............................................................................................	20.80	10.40
Tasmania ..............................................................................................	18.40	9.20

* Notified in the Australian Government Gazette on 23 December 1974.

(2) The sitting fee referred to in sub-regulation (1) is not payable to—

(a) an officer of an authority of Australia who is required by the terms of his employment to give the whole of his time to the duties of his employment; or

(b) a person holding the office of Chairman of an Assessment Appeal Tribunal established under sub-section 65(1) of the Repatriation Act 1920-1974 who would be deemed, under sub-section 62 (1) of that Act, to have vacated his office if he were to receive any payment under sub-regulation (1).

Sitting fees for members of Administrative Review Tribunals.

4. (1) Subject to sub-regulation (2), for the purposes of section 107 of the Act, the fee payable to a member of an Administrative Review Tribunal in respect of a day on which he attends a sitting of the tribunal is—

(a) in the case of the Chairman of the tribunal—$65 per day; and

(b) in the case of a member of the tribunal other than the Chairman—$35 per day.

(2) The sitting fee referred to in sub-regulation (1) is not payable to an officer of an authority of Australia who is required by the terms of his employment to give the whole of his time to the duties of his employment.

Witnesses’ fees and expenses.

5. A witness appearing before a Review Tribunal shall be paid such fees and travelling expenses as the Chairman of the Review Tribunal allows in accordance with the scale in the Schedule.

Information in records may be made available to appellant.

6. The Chairman of a Review Tribunal may, so far as is consistent with the interests of a person requesting a review of a decision of the Authority, make available to the person, or his representative, information contained in the records and other papers relating to the decision and the reconsideration of the decision by the Authority.

Notification of resumption of hearing.

7. Where the proceedings before a Review Tribunal have been adjourned, the Review Tribunal shall cause 7 days’ notice in writing to be given to the parties of the time and date of resumption of the proceedings.

Service of documents.

8. A document that is required or permitted by or under the Act or these Regulations to be served on a person in connexion with any proceedings before a Review Tribunal may be served on that person—

(a) in the case of a person other than a Chairman of a Review Tribunal—by delivering the document to the person or by sending the document by registered post addressed to the person at the last address of the person known to the person serving the document; or

(b) in the case of a Chairman of a Review Tribunal—by delivering the document at, or by sending the document by registered post addressed to him care of, the Australian Government Retirement Benefits Office in Canberra.

Service of decision on a party.

9. Where a party to proceedings before a Review Tribunal does not appear, or is not represented by another person at the proceedings when the Review Tribunal gives its decision in the matter in accordance with sub-section 113 (1) of the Act, the Chairman of the Review Tribunal shall cause a copy of the tribunal’s decision and the reasons for the decision to be served forthwith on the party.

Notice of appeal.

10. (1) A party to proceedings before a Review Tribunal who wishes to appeal from a decision of the tribunal to the Australian Industrial Court in pursuance of section 123 of the Act shall file with the Registrar a notice of appeal setting out the question or questions of law on which the appeal is brought.

(2) The notice of appeal shall be filed with the Registrar within 30 days after the date on which the decision was given.

Place for hearing appeals.

11. Unless the Court or a Judge otherwise directs, an appeal from a decision of a Review Tribunal shall be heard—

(a) in the capital city of the State, or the principal city or town of the Territory, in which the proceedings before the Review Tribunal took place; or

(b) if the proceedings before the Review Tribunal took place in a Territory in which there is no Registry of the Court—at Canberra.

To whom notice is to be given.

12. (1) A copy of a notice of appeal filed with the Registrar in accordance with regulation 10 shall be served upon all parties affected by the appeal.

(2) The Court may direct that notice of an appeal be served on a person who is not a party and, in the meantime, may postpone or adjourn the hearing of the appeal upon such terms as are just, and may give such judgment and make such order as might have been given or made if the persons served with that notice had originally been parties.

(3) A person on whom notice of an appeal is so directed to be served shall be deemed to be a respondent.

(4) A notice of appeal may be amended at any time as the Court thinks fit.

(5) The appellant shall, before setting down the appeal for hearing, file in the Registry situated in the place where the appeal is to be heard an affidavit of service on all parties of the notice of appeal.

Title of appeals.

13. A notice of appeal and all subsequent proceedings on an appeal shall be entitled “ In the Commonwealth Industrial Court on appeal under the Defence Force Retirement and Death Benefits Act from ” (naming the Review Tribunal from which the appeal is brought) and shall also be entitled as between the parties who are the appellant or appellants and the respondent or respondents.

Notice to Review Tribunal.

14. The appellant shall, within 7 days after filing the notice of appeal with the Registrar, serve a copy of the notice of appeal on the Chairman of the Review Tribunal from which the appeal is brought.

Appealable nature of decision to be shown by affidavit.

15. (1) Within 7 days after filing the notice of appeal, the appellant shall—

(a) file, in the Registry in the State or Territory where the notice of appeal was filed, an affidavit setting out sufficient facts to show that the decision was one from which an appeal lies to the Court;

(b) serve a copy of the affidavit on the Chairman of the Review Tribunal from which the appeal is brought; and

(c) serve a copy of the affidavit on the respondent or, if there is more than one respondent, on each respondent.

(2) Where the evidence given before the Review Tribunal from which the appeal is brought is material for the purposes of the appeal and no depositions, written transcript or official notes of that evidence are available, the affidavit shall set forth an account of the evidence given before that Review Tribunal.

(3) A respondent may, within 10 days after service on him of the affidavit of the appellant, file an answering affidavit in the Registry referred to in sub-regulation (1).

(4) A respondent who files an answering affidavit in accordance with sub-regulation (3) shall, within the period referred to in that sub-regulation, serve a copy of the affidavit on the Chairman of the Review Tribunal from which the appeal is brought and serve a copy of the affidavit on the appellant and on every other respondent.

(5) Where notice of appeal to the Court is given in any case in which an appeal cannot be brought to the Court, the Court or a Judge may set aside the notice.

When appeal deemed to be instituted.

16. Upon compliance with regulations 10, 12, 14 and 15, the appeal shall be deemed to be instituted.

Transmission of documents.

17. (1) The Chairman of the Review Tribunal from which an appeal is brought shall, as soon as practicable after the service on him of a copy of the notice of appeal, transmit to the Registrar in charge of the Registry situated in the State or Territory where the appeal is to be heard a certified copy of each document that is required for the hearing of the appeal.

(2) If, after copies of documents are transmitted in accordance with sub-regulation (1) to the Registrar in charge of a Registry, the Court or a Judge directs that the appeal be heard in another State or Territory, the Registrar shall transmit the copies to the Registrar in charge of the Registry situated in that other State or Territory.

(3) A statement of the reasons of the Review Tribunal for the decision from which the appeal is brought shall be included in the documents transmitted in accordance with sub-regulations (1) and (2).

(4) Upon application by the appellant, the Court or a Judge may supply to the appellant a list of the documents referred to in this regulation and a certified copy of any such document that is not in the possession of the appellant.

Setting down of appeal.

18. (1) An appeal shall be set down by the appellant for hearing at a sitting of the Court appointed for hearing appeals under the Act at the place at which it is to be heard.

(2) Unless the Court or a Judge otherwise directs, an appeal shall be set down for the first sitting referred to in sub-regulation (1) appointed to be held after the expiration of one month from the institution of the appeal.

(3) Notwithstanding sub-regulation (2), the appeal may, with the consent of the respondent, or, if there is more than one respondent, with the consent of all the respondents, be set down for hearing at an earlier sitting than the sitting referred to in that sub-regulation.

(4) If the appellant does not set down the appeal for hearing at the sitting referred to in sub-regulation (2), the respondent, or, if there is more than one respondent, a respondent, may apply to the Court by motion upon notice for an order dismissing the appeal for want of prosecution.

(5) Where a respondent has not, at least 21 days before the date appointed for holding the sitting at which the appeal is to be heard, been notified of that date, he may, unless he has consented to accept shorter notice, apply to the Court by motion upon notice for an order dismissing the appeal for want of prosecution.

(6) Where a respondent who may apply to the Court for an order under sub-regulation (4) does not, within 6 months after the filing of the notice of appeal, apply for such an order, the Court shall, on the application of the Registrar, dismiss the appeal for want of prosecution.

Written argument on appeals.

19.(1) Notwithstanding anything contained in these Regulations, the Court or a Judge may, with the consent of the parties, permit the legal argument in connexion with an appeal to be presented in whole or in part in writing, and, where the argument is to be presented wholly in writing, it is not necessary for the appeal to be set down for hearing or for the parties to appear on the hearing of the appeal either personally or by counsel.

(2) The Court or a Judge may give any consequential directions with respect to the procedure in an appeal to which this regulation applies.

Cross appeals.

20. (1) It is not necessary for a respondent to give notice of motion by way of cross appeal, but if a respondent intends upon the hearing of an appeal to contend that the decision, judgment or order appealed from should be varied, he shall, not less than 21 days before the day for which the appeal is set down for hearing, give notice of his intention to any of the parties affected by the contention.

(2) The failure to give a notice referred to in sub-regulation (1) does not diminish the powers of the Court when hearing the appeal, but may, in the discretion of the Court, be ground for an adjournment of the appeal or for a special order as to costs.

(3) A copy of the notice referred to in sub-regulation (1) shall be filed in the Registry situated in the place where the appeal is to be heard.

Appeal book to be lodged.

21. Not later than 5 days before the day upon which the appeal is set down for hearing, the appellant shall, unless the Court or a Judge otherwise directs—

(a) lodge in the Registry situated in the place where the appeal is to be heard 4 copies of an appeal book containing a copy of the notice of appeal, a copy of the affidavit of the appellant, copies of the documents referred to in regulation 17 and a copy of any affidavit or notice filed or given by a respondent; and

(b) serve 2 copies of the appeal book upon each respondent or upon his solicitor.

Expediting appeals.

22. Notwithstanding anything contained in these Regulations, the Court or a Judge may expedite the hearing of any appeal of which notice has been filed in the Court, whether the appeal has been duly instituted or not.

Dismissal for want of prosecution on respondent’s application.

23. An order dismissing an appeal for want of prosecution may be drawn up and signed by the Registrar on the application of the respondent, or, if there is more than one respondent, on the application of a respondent, without other warrant than this regulation, but if notice of cross appeal or notice of intention to move to vary the decision appealed from has been given, the order shall not be drawn up without the consent of the party giving that notice.

SCHEDULE Regulation 5

WITNESSES’ FEES AND TRAVELLING EXPENSES

1. A witness appearing before the Tribunal to give evidence because of his professional, scientific or other special skill or knowledge shall be paid a fee of not less than $10.50 or more than $52.50 for each day on which he so appears.

2. A witness, other than a witness referred to in Item 1, appearing before the Tribunal to give evidence shall be paid—

(a) if he is remunerated by wages, salary or fees—

(i) a fee equal to the amount of wages, salary or fees lost by him by reason of his so appearing; or

(ii) a fee of $16.00 for each day on which he so appears,

whichever is the less; or

(b) if he is not so remunerated—a fee of $6.00 for each day on which he so appears.

3. A witness appearing before the Tribunal to give expert evidence shall be paid, in addition to any other fee payable to him under Item 1 or 2, a reasonable amount for qualifying to give that evidence.

4. A witness appearing before the Tribunal to give evidence shall be paid a reasonable amount—

(a) in respect of his conveyance to and from the place at which he so attends; and

(b) if he is required to be absent overnight from his usual place of residence—for meals and accommodation.