//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2001] VSCA 181
procedural. The requested indemnity certificates were refused. The application for a certificate concerning the 22 March 2001 adjournment could be renewed after Hall paid additional costs as a consequence of...
The Court dealt with whether Hall could obtain certificates for costs incurred when his criminal appeal was not reached on two scheduled dates. It treated the first date, when the appeal was listed and counsel attended, as an adjournment. It held that the statutory deeming rule for a date when a proceeding was not listed did not extend to an appeal. In any event, Hall had not yet paid, or been ordered to pay, the extra costs required by the Act. The certificates were therefore refused at that time, although the application about the first date could be renewed after payment.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,115 words · generated 28/09/2026
In R v Hall [2001] VSCA 181, the Victorian Court of Appeal considered an application for indemnity certificates under s 17 of the Appeal Costs Act 1998 (Vic). The application arose during a criminal appeal against sentence. The judgment addressed the certificate application, not the substantive merits or outcome of the sentence appeal.
No linked legislation citations have been extracted yet.
Hall’s appeal had been fixed for hearing on 22 March 2001. It was listed that day and counsel attended, but the case was not reached. The Court did not make an order. The appeal was taken out of the list and re-fixed for 9 August 2001. On that later date, counsel had been told in advance that the appeal would not be reached, and it was not listed for hearing. These different listing circumstances drove the Court’s interpretation of s 17. ([5])
At the conclusion of the appeal hearing on 26 September 2001, Hall’s counsel sought two certificates, proceeding on the basis that the appeal had twice been fixed for hearing but not reached. The Court asked for written submissions and later sought further submissions about s 17(1)(c). ([2]) That paragraph requires the party to have “pays, or is ordered to pay” additional costs as a consequence of the adjournment.
The Court distinguished the two dates. It held that 22 March was an adjournment under s 17(1), because the proceeding had been listed but was not reached. The Court held that the 9 August circumstances could only be brought within s 17(4), because the appeal was not listed that day. It concluded that s 17(4) did not apply to an appeal. ([16], [19], [22], [28])
The Court also found that Hall had not yet paid, or been ordered to pay, additional costs. Although counsel said he intended to mark a fee for both days, the Court was concerned only with the costs relating to 22 March. ([31], [34]) It refused the certificates then sought, but said the application concerning 22 March could be renewed after Hall had paid additional costs as a consequence of that adjournment. ([43])
The reasoning has two distinct statutory questions: what amounts to an adjournment, and when the applicant meets the costs precondition for a certificate.
First, the Court read s 17(4) as addressing a particular circumstance: a hearing date has been fixed, but the proceeding is not listed on that date. The text did not say what happened when the matter was listed but not reached. The Court concluded that this was not an accidental gap. Rather, a listed proceeding that was not reached was an adjournment within s 17(1). ([16]) It accepted the submission that the 22 March event was an adjournment under that subsection. ([19])
The Court’s footnote explains the practical logic behind that reading: it considered that it would be absurd if a certificate could be available where a fixed-date proceeding was not listed, but unavailable where it was listed and not reached, since the latter was a situation in which a party was likely to incur additional costs. (Footnote [1] to the judgment.) This supports the Court’s interpretation of how the subsections fit together, rather than supplying a separate statutory test.
Second, the Court read s 17(4) as not applying to appeals. It did not base that conclusion simply on the word “accused”. It contrasted the language of s 17(4) with s 17(1). Section 17(1) expressly accommodates a party who may be a “defendant, appellant or respondent” and distinguishes a party accused of an offence from one convicted of an offence. ([25]) In the Court’s reading, a person who has been convicted and is now pursuing an appeal is not within “the accused” in s 17(4). The Court considered the statutory wording decisive, while making clear that it expressed no view on whether the resulting distinction was desirable. ([25])
Third, the Court treated payment or an order to pay additional costs as a condition precedent. It read s 17(1)(c) together with s 17(2)(b), which requires the Court to be satisfied that the party has necessarily incurred additional costs. The Court considered the precise language of s 17(1)(c) to demonstrate what “incurred” means for this purpose: the party must already have paid, or been ordered to pay, the additional costs. ([34]) It rejected a reading that would treat “pays” as including “will pay”, noting that this would make the words “or is ordered to pay” redundant. (Footnote [4].)
The Court acknowledged that the Act was remedial and that a liberal construction may be appropriate where possible. But it also identified the Act as involving the disbursement of public money. It held that neither the Act’s remedial character nor the Appeal Costs Board’s reported practice could overcome the clear statutory condition. ([37])
The judgment’s account of the statutory position is centred on s 17 as it then stood. It contains no description of later legislative amendments, so no claim about the present text of the provision can be made from this source alone.
As explained in Hall, s 17(1) sets out the core route to an indemnity certificate following an adjournment of a criminal proceeding. The reason for the adjournment must not be attributable to the act, neglect or fault of the accused or convicted party, or their legal practitioner. The applicant must also pay, or be ordered to pay, additional costs as a consequence of the adjournment. Under s 17(2), the Court must be satisfied as to the non-attributable reason and that the party necessarily incurred additional costs. ([8], [28], [34])
Section 17(4) supplied a deeming rule for a fixed hearing date when the proceeding was not listed on that date. The Court held that it did not apply to appeals. ([22], [25]) The complementary category, a proceeding that was listed but not reached, was treated as an adjournment under s 17(1). ([16], [19])
The decision also clarifies that the statute’s reference in s 17(1) to defendants, appellants and respondents did not limit subsection (1) to completed appeals. The Court considered that subsection applicable to applications for leave to appeal, even when heard by a single judge. ([40]) It distinguished that interpretation from its conclusion about s 17(4), which it held did not apply to an appeal. ([40])
The judgment therefore establishes a construction of the statutory text considered by the Court, rather than a general proposition about all adjournment-cost schemes. Any assessment of a later or current provision would require the relevant statutory text and any subsequent authorities, neither of which is supplied here.
At [16], the Court said that a listed proceeding which was not reached “constitutes an adjournment within the meaning of sub-s.(1).” In plain English, the Court treated the first date as an adjournment even though no formal adjournment order was made. It reasoned that s 17(4) did not need to cover that scenario because it was already within s 17(1).
At [22], the Court explained the other implication of s 17(4): without the deeming rule, a fixed date on which a proceeding was not listed would not be an adjournment under s 17(1). In plain English, s 17(4) mattered for the second date because the appeal was not listed. The provision supplied a legal deeming rule for that kind of event, but the Court held it was unavailable in Hall’s appeal.
At [25], the Court said the statutory contrast made it “impossible to read ‘the accused’ in sub-s.(4) as extending to a person who has been convicted and is now the appellant or the respondent in an appeal.” In plain English, the Court relied on the different categories used in adjacent subsections. It did not treat the word “accused” as a loose label covering a convicted person bringing an appeal.
At [34], the Court stated that before applying, a party “must pay, or be ordered to pay, additional costs as a consequence of the adjournment.” In plain English, expected future costs or an intention to charge a fee did not satisfy the statutory wording. The applicant had to have paid or have an order requiring payment.
At [37], the Court said, “If there is a condition precedent, it must be satisfied.” In context, this meant the Court would not grant a certificate simply because the Appeal Costs Board had reportedly used a more accommodating administrative practice. The statutory words governed the Court’s decision.
The most direct factual pattern is a criminal proceeding fixed for hearing that is listed, but not reached. Hall treats that as an adjournment under s 17(1), where the other statutory requirements are also met. ([16], [19]) The case does not make the listing circumstance alone sufficient for a certificate: the reason must not be attributable to the relevant party or practitioner, and the additional-cost conditions must also be addressed. ([8], [28], [34])
A second pattern is a criminal matter with a hearing date fixed but no listing on that date. The Court’s reasoning treats that as a situation requiring s 17(4), rather than s 17(1). ([22]) But the judgment holds that s 17(4) does not apply to an appeal. ([25], [28]) The difference between a listed-but-not-reached matter and a fixed-but-not-listed matter is therefore significant under the provision construed in Hall.
A third pattern concerns the timing and status of costs. Even where there has been a qualifying adjournment for reasons not attributable to the party or practitioner, the party must have paid, or been ordered to pay, additional costs before applying for a certificate under s 17(1). ([28], [34]) A proposed fee, or an expectation that it will later be paid, was not enough on the Court’s reading.
Finally, Hall says that s 17(1) extends to applications for leave to appeal, including applications heard by a single judge. ([40]) It does not extend that conclusion to s 17(4). These are statutory construction holdings tied to the language of the Victorian Act considered in the judgment; the source does not establish how another statutory scheme should be read.
The supplied judgment contains no later judicial decisions discussing, following, distinguishing or limiting R v Hall. It is therefore not possible, on the material available here, to describe how later courts have treated the case or to identify a subsequent line of authority.
The judgment does refer to other statutory provisions, including ss 3(1), 34, 35(2), 39 and 43 of the Crimes Act 1958 (Vic), and s 582 in connection with the grant of leave in Hall’s proceeding. ([40] and footnotes) Those are statutory references, not later judicial treatments of the decision.
The judgment also reports the Appeal Costs Board’s practice at the time: according to counsel, the Board had paid on the tendering of counsel’s backsheet without proof of payment or an order, and had taken the view that s 17(4) applied to an appeal. ([37]) The Court considered those reported administrative views but did not accept them as a basis for departing from the statutory language. That discussion concerns reported administrative practice, not a later court’s treatment of Hall.
The judgment expressly left open whether the exclusion of appeals from s 17(4) was desirable. The Court said the result was compelled by the statutory language and did not express an opinion on its merits. ([25]) That leaves a policy question distinct from the construction it adopted.
The Court also said it did not need to decide whether s 17(1) would apply to a listed-but-not-reached proceeding without the implication it drew from s 17(4). ([16]) Its conclusion was that the statutory structure implied such a proceeding was an adjournment; it did not separately determine the subsection’s operation in the absence of that contextual inference.
The judgment does not set out a detailed method for calculating which costs are “necessarily incurred” or “reasonably incurred”. Section 17(2)(b) required necessary additional costs, and s 17(3) referred to costs the Board considered reasonably incurred, but the immediate issue was the prior payment-or-order requirement. ([8], [34], [37]) Further questions about quantification were not resolved in the passages provided.
The Court said it could readily assume that it would be proper for counsel to mark a fee for the relevant day, but it did not determine a final amount or decide the ultimate merits of a renewed certificate application. ([31], [43]) The judgment therefore distinguishes the existence of a qualifying adjournment from proof that the remaining certificate requirements have been satisfied.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, get a qualified Australian lawyer to check it.
[ 2001] VSCA 181
Costs - Indemnity certificates - Criminal proceedings - Adjournment - Case fixed for hearing and listed but not reached - Case fixed for hearing but not listed - Appeals and applications for leave to appeal - Conditions precedent to application for, and grant of, certificate when criminal proceeding adjourned - Appeal Costs Act 1998, s.17.
"17. Application for indemnity certificate if criminal proceeding adjourned (1) If - (a) the hearing of any criminal proceeding is adjourned; and (b) the reason for the adjournment was not attributable in any way to the act, neglect or fault of a party accused or convicted of an offence to which the proceeding relates (whether that party is a defendant, appellant or respondent in the proceeding), or that party's legal practitioner; and (c) that party pays, or is ordered to pay, any additional costs as a consequence of the adjournment - that party may apply to the court for, and the court may grant, an indemnity certificate in respect of that party's own costs of the adjournment. (2) The court may only grant an indemnity certificate under sub-section (1) if it is satisfied that - (a) the reason for the adjournment was as set out in sub-section (1)(b); and (b) the party has necessarily incurred additional costs as a consequence of the adjournment. (3) A party granted an indemnity certificate under sub-section (1) is entitled to be paid by the Board, on an application made to it by that party in the approved form, an amount equal to that party's own costs of the adjournment that the Board considers to have been reasonably incurred and that have not been ordered to be paid by any other party. (4) For the purposes of this section, a criminal proceeding is deemed to have been adjourned if the court hearing the proceeding, the informant or the Director of Public Prosecutions (as the case may be) notifies the accused or their legal practitioner that a date has been fixed for the hearing of the proceeding, and the proceeding is not listed for hearing on that day."
[1] It would be absurd for a certificate to be available where a date has been fixed for the hearing of a proceeding and the proceeding is not listed but not to be available if the proceeding is listed. That is the very case, short of a hearing actually beginning and being formally adjourned, where a party is likely to incur additional costs.
[2] Sub-section (4) was not inserted for abundance of caution. It was necessary in order to cover that case.
[4] The word "pays" in sub-s.(1)(c) cannot be read as including "will pay" because, among other reasons, that would make the words "or is ordered to pay" otiose.
R
Hall [2001] VSCA 181
The requested indemnity certificates were refused. The application for a certificate concerning the 22 March 2001 adjournment could be renewed after Hall paid additional costs as a consequence of that adjournment. ([43])