29 Proceeding or decision of Board not invalid by reason of vacancy etc. 26
30 Conflicts of interest 27
31 Staff 27
Part 6—Miscellaneous, transitionals and repeal 28
Division 1—General 28
31A Scope of indemnity certificate 28
32 Effect of indemnity certificate in sequence of appeals 29
33 Effect of indemnity certificate where there is limited period for appealing 30
34 Effect of indemnity certificate where there is no limited period for appealing 30
35 No payments without a certificate of the Board 32
35A No payments to certain persons or in respect of certain matters 32
35B Meaning of costs reasonably incurred 33
35C Board may require costs to be taxed etc. 33
35D Time limits for applications to Board 34
35E Expiry of indemnity certificates 34
36 Correction of errors 35
37 No appeal against grant or refusal of, or limitation on, indemnity certificate 35
38 Crown cannot be granted an indemnity certificate 35
39 Payments made or incurred by Victoria Legal Aid 35
40 Supreme Court—Limitation of jurisdiction 36
41 Regulations 36
42 Board discharged from liability 36
Division 2—Transitionals and repeal 37
43 Transitional—Application of Act 37
43A Transitional—2002 amendments 37
44 Transitional—Members of the Board 37
45 Repeal 38
46 Transitional—2004 amendments 38
47 Transitional—Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017 39
Endnotes 40
1 General information 40
2 Table of Amendments 42
3 Amendments Not in Operation 45
4 Explanatory details 46
Version No.031
Appeal Costs Act 1998
No. 87 of 1998
Version incorporating amendments as at
1 March 2020
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1 Purpose
The purpose of this Act is to re-enact, with amendments, the Appeal Costs Act 1964.
2 Commencement
(1) Section 1 and this section come into operation on the day on which this Act receives the Royal Assent.
(2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3) If a provision referred to in subsection (2) does not come into operation before 1 April 1999, it comes into operation on that day.
3 Definitions
(1) In this Act—
appeal includes an appeal by way of re-hearing, an application for a new trial and any proceeding in the nature of an appeal, but does not include a case stated;
approved form means a form approved by the Board;
Board means the Appeal Costs Board under Part 5;
case stated means—
(a) a case stated for the opinion or determination of a superior court on a question of law; or
(b) a question of law reserved in the form of a special case for the opinion of a superior court;
costs, in relation to an appeal or case stated, includes the costs of an application for an indemnity certificate in respect of the appeal or case stated but does not include costs incurred in a court of first instance except where otherwise expressly provided;
court includes any tribunal or other body—
(a) from whose decision there is an appeal to a superior court on a question of law; or
(b) which may state a case for the opinion or determination of a superior court on a question of law or reserve any question of law in the form of a special case for the opinion of a superior court;
discontinued, in relation to a civil or criminal proceeding, includes discontinued because of—
(a) the death or illness of a judge or magistrate hearing the proceeding; or
(b) a disagreement on the part of the jury;
indemnity certificate means an indemnity certificate granted under Part 2, 3 or 4;
S. 3(1) def. of insolvent under administration repealed by No. 4/2008 s. 32(Sch. item 1).
S. 3(1) def. of legal practitioner inserted by No. 18/2005 s. 18(Sch. 1 item 5), amended by No. 17/2014 s. 160(Sch. 2 item 5).
legal practitioner means an Australian legal practitioner;
member means chairperson or other member of the Board;
sequence of appeals means a sequence of appeals in which an appeal that follows next after another appeal in the sequence is an appeal against the decision in that other appeal.
(2) For the purposes of this Act—
S. 3(2)(a) amended by No. 13/2019 s. 221(Sch. 1 item 2).
(a) if an appellant is a minor or a person under a disability, a reference to an appellant includes a reference to his or her litigation guardian or a person who is his or her guardian within the meaning of the Guardianship and Administration Act 2019;
S. 3(2)(b) amended by No. 13/2019 s. 221(Sch. 1 item 2).
(b) if a respondent is a minor or a person under a disability, a reference to a respondent includes a reference to his or her litigation guardian or a person who is his or her guardian within the meaning of the Guardianship and Administration Act 2019.
Part 2—Entitlement to payment in civil matters
4 Application by respondent for indemnity certificate in respect of appeal
(1) If an appeal against a decision of a court in a civil proceeding—
(a) to the Trial Division of the Supreme Court; or
(b) to the Court of Appeal, including an appeal to the Court of Appeal from a decision of the Trial Division of the Supreme Court; or
(c) to the High Court of Australia from a decision of the Supreme Court—
succeeds, a respondent to that appeal may apply to the Supreme Court for, and the court may grant, an indemnity certificate in respect of costs.
(2) If an appeal to the County Court against a decision of a court in a civil proceeding succeeds, a respondent to that appeal may apply to the County Court for, and the court may grant, an indemnity certificate in respect of costs.
5 Certificate entitles respondent to payment of costs
(1) Subject to subsection (2), a respondent granted an indemnity certificate under section 4 is entitled to be paid by the Board, on an application made to it by the respondent in the approved form—
(a) an amount equal to the appellant's costs (if any)—
(i) of the appeal in respect of which the indemnity certificate was granted; and
(ii) if the court makes an order for a new trial—of any new trial that is held as a consequence of that order; and
(iii) if the appeal in respect of which the indemnity certificate was granted is an appeal in a sequence of appeals—of any appeal or appeals in the sequence that preceded that appeal—
that the respondent has been ordered to pay and has actually paid; and
S. 5(1)(b) amended by No. 38/2017 s. 15.
(b) an amount equal to the respondent's own costs—
(i) of the appeal in respect of which the indemnity certificate was granted; and
(ii) if the court makes an order for a new trial—of any new trial that is held as a consequence of that order; and
(iii) if the appeal in respect of which the indemnity certificate was granted is an appeal in a sequence of appeals—of any appeal or appeals in the sequence that preceded that appeal—
that have not been ordered to be paid by any other party, as assessed by the Board on a standard basis, or as agreed to by the Board and the respondent; and
(c) if the costs referred to in paragraph (b) are assessed, an amount equal to the costs incurred by the respondent in connection with the assessment.
(2) The maximum amount payable to a respondent pursuant to an indemnity certificate granted under section 4 is $50 000 or any other amount that is prescribed.
6 Appellant may request direct payment in certain circumstances
S. 6(1) amended by No. 38/2017 s. 16(a).
(1) An appellant, whose costs referred to in section 5(1)(a) were ordered to be paid by a respondent granted an indemnity certificate under section 4, is entitled to be paid those costs (or any part of them) by the Board, on an application made to it by the appellant in the approved form, if the Board is satisfied that—
S. 6(1)(a) substituted by No. 38/2017 s. 16(b).
(a) the appellant has taken reasonable steps to obtain payment from the respondent; and
S. 6(1)(b) substituted by No. 38/2017 s. 16(b).
(b) despite the appellant taking reasonable steps in accordance with paragraph (a), the respondent has not paid those costs or that part.
(2) On the payment to the appellant, the Board is discharged from any liability to the respondent in respect of any costs so paid.
(3) The maximum amount payable to an appellant under this section is $50 000 or any other amount that is prescribed.
7 Application by successful appellant for grant of indemnity certificate in certain circumstances
(1) If—
(a) there is an appeal against the decision of the Magistrates' Court in a civil proceeding to the Supreme Court on a question of law; and
(b) the respondent does not appear either in the proceedings before the Magistrates' Court or on the appeal; and
(c) the appeal succeeds but the Supreme Court refuses to order the respondent to pay the appellant's costs of the appeal—
the appellant may apply to the Supreme Court for, and the court may grant, an indemnity certificate in respect of costs.
(2) Subject to subsection (3), an appellant granted an indemnity certificate under subsection (1) is entitled to be paid by the Board, on an application made to it by the appellant in the approved form—
S. 7(2)(a) amended by No. 38/2017 s. 17.
(a) an amount equal to the appellant's own costs of the appeal as assessed by the Board on a standard basis, or as agreed to by the Board and the appellant; and
(b) if the costs referred to in paragraph (a) are assessed, an amount equal to the costs incurred by the appellant in connection with the assessment.
(3) The maximum amount payable to an appellant pursuant to an indemnity certificate granted under subsection (1) is $2000 or any other amount that is prescribed.
8 Appellant ordered to pay costs of new trial entitled to be indemnified
(1) If, on an appeal in a civil proceeding the court orders a new trial, and on the new trial the court orders the appellant to pay the respondent's costs of that new trial, the appellant may apply to the trial court for, and that court may grant, an indemnity certificate in respect of costs.
(2) Subject to subsection (3), an appellant granted an indemnity certificate under subsection (1) is entitled to be paid by the Board, on an application made to it by the appellant in the approved form—
(a) an amount equal to the respondent's costs of the new trial that the appellant has been ordered to pay and has actually paid; and
S. 8(2)(b) amended by No. 38/2017 s. 18.
(b) an amount equal to the appellant's own costs of the new trial that have not been ordered to be paid by any other party, as assessed by the Board on a standard basis, or as agreed to by the Board and the appellant; and
(c) if the costs referred to in paragraph (b) are assessed, an amount equal to the costs incurred by the appellant in connection with the assessment.
(3) The maximum amount payable to an appellant pursuant to an indemnity certificate granted under subsection (1) is $50 000 or any other amount that is prescribed.
9 Respondent may request direct payment in certain circumstances
S. 9(1) amended by No. 38/2017 s. 19(a).
(1) A respondent, whose costs referred to in section 8(2)(a) were ordered to be paid by an appellant granted an indemnity certificate under section 8(1), is entitled to be paid those costs (or any part of them) by the Board, on an application made to it by the respondent in the approved form, if the Board is satisfied that—
S. 9(1)(a) substituted by No. 38/2017 s. 19(b).
(a) the respondent has taken reasonable steps to obtain payment from the appellant; and
S. 9(1)(b) substituted by No. 38/2017 s. 19(b).
(b) despite the respondent taking reasonable steps in accordance with paragraph (a), the appellant has not paid those costs or that part.
(2) On the payment to the respondent, the Board is discharged from any liability to the appellant in respect of any costs so paid.
(3) The maximum amount payable to a respondent under this section is $50 000 or any other amount that is prescribed.
10 Application for indemnity certificate if civil proceeding discontinued
(1) If—
(a) the hearing of any civil proceeding is discontinued; and
(b) the reason for the discontinuance was not attributable in any way to the act, neglect or fault of any of the parties to that proceeding or their legal practitioners; and
(c) a new trial is ordered—
a party to that proceeding may apply to the court before which the proceeding is discontinued for, and the court may grant, an indemnity certificate in respect of the party's own costs of the discontinued proceeding.
(2) The court may only grant an indemnity certificate under subsection (1) if it is satisfied that the reason for the discontinuance was as set out in subsection (1)(b).
S. 10(3) amended by No. 38/2017 s. 20.
(3) A party granted an indemnity certificate under subsection (1) who pays, or is ordered to pay, any additional costs as a consequence of the order for a new trial 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 thrown away of the discontinued proceeding that the Board considers to have been reasonably incurred.
11 Plaintiff who is under a disability or is a minor entitled to payment when offer of compromise not approved by court
If in a proceeding brought by or on behalf of a plaintiff who is under a disability or is a minor—
(a) an offer of compromise is made by a defendant; and
(b) the court refuses to approve the acceptance of the offer; and
(c) the plaintiff obtains a judgment on the claim to which the offer relates that is not more favourable to him or her than the terms of the offer; and
(d) the plaintiff is ordered by the court to pay the whole or part of the defendant's costs of the proceeding—
the plaintiff may apply to the court for, and the court may grant, an indemnity certificate in respect of costs.
12 Certificate entitles plaintiff to payment of costs
(1) Subject to subsection (2), a plaintiff granted an indemnity certificate under section 11 is entitled to be paid by the Board, on an application made to it by the plaintiff in the approved form—
(a) an amount equal to the defendant's costs (if any) of the proceeding that the plaintiff has been ordered to pay and has actually paid; and
S. 12(1)(b) amended by No. 38/2017 s. 21.
(b) an amount equal to the plaintiff's own costs of the proceeding incurred after the date on which the court refused to approve the acceptance of the offer, that have not been ordered to be paid by any other party, as assessed by the Board on a standard basis, or as agreed to by the Board and the plaintiff; and
(c) if the costs referred to in paragraph (b) are assessed, an amount equal to the costs incurred by the plaintiff in connection with the assessment.
(2) The maximum amount payable to a plaintiff pursuant to an indemnity certificate granted under section 11 is $50 000 or any other amount that is prescribed.
13 Defendant may request direct payment in certain circumstances
S. 13(1) amended by No. 38/2017 s. 22(a).
(1) A defendant, whose costs referred to in section 12(1)(a) were ordered to be paid by a plaintiff granted an indemnity certificate under section 11, is entitled to be paid those costs (or any part of them) by the Board, on an application made to it by the defendant in the approved form, if the Board is satisfied that—
S. 13(1)(a) substituted by No. 38/2017 s. 22(b).
(a) the defendant has taken reasonable steps to obtain payment from the plaintiff; and
S. 13(1)(b) substituted by No. 38/2017 s. 22(b).
(b) despite the defendant taking reasonable steps in accordance with paragraph (a), the plaintiff has not paid those costs or that part.
(2) On the payment to the defendant, the Board is discharged from any liability to the plaintiff in respect of any costs so paid.
(3) The maximum amount payable to a defendant under this section is $50 000 or any other amount that is prescribed.
Part 3—Entitlement to payment in criminal matters
14 Application for indemnity certificate if appeal against conviction is successful
S. 14(1) amended by No. 68/2009 s. 97(Sch. item 8.1).
(1) If an appeal to a superior court against a conviction for an indictable offence succeeds and the court quashes or sets aside the conviction, the appellant may, whether or not the court orders a new trial, apply to the court for, and the court may grant, an indemnity certificate in respect of costs.
(2) If, on an appeal referred to in subsection (1), the superior court orders a new trial, the appellant, in their application under that subsection for an indemnity certificate, may apply for the inclusion in that certificate of any additional costs that they will pay, or will be ordered to pay, as a consequence of the order for a new trial.
(3) An appellant granted an indemnity certificate under subsection (1) is entitled to be paid by the Board, on an application made to it by the appellant in the approved form—
(a) an amount equal to the appellant's own costs of the appeal; and
(b) any additional costs that the appellant pays, or is ordered to pay, as a consequence of the order for a new trial—
that the Board considers to have been reasonably incurred.
(4) In this section, conviction includes—
S. 14(4)(a) amended by No. 55/2014 s. 141(1).
(a) a finding under section 17(1)(c) or 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;
(b) a verdict of not guilty because of mental impairment;
(c) a finding of unfitness to stand trial.
15 Application for indemnity certificate by respondent if the Crown or DPP appeals
(1) If an appeal is instituted under—
S. 15(1)(a) substituted by No. 68/2009 s. 97(Sch. item 8.2), amended by No. 48/2018 s. 39.
(a) section 257, 260, 287, 290A or 291 of the Criminal Procedure Act 2009; or
S. 15(1)(b) substituted by No. 68/2009 s. 97(Sch. item 8.2).
(b) section 427 of the Children, Youth and Families Act 2005—
S. 15(1)(c) substituted by No. 48/2006 s. 42(Sch. item 3), repealed by No. 68/2009 s. 97(Sch. item 8.2).
the respondent to that appeal may apply to the Court of Appeal or the County Court (as the case requires) for, and the court may grant, an indemnity certificate in respect of the respondent's own costs of the appeal.
(2) A respondent granted an indemnity certificate under subsection (1) is entitled to be paid by the Board, on an application made to it by the respondent in the approved form, an amount equal to the respondent's own costs of the appeal that the Board considers to have been reasonably incurred.
S. 15A inserted by No. 7/2009 s. 431 (as amended by No. 68/2009 s. 54(q)).
15A Application for indemnity certificate if interlocutory appeal by accused is successful
(1) In this section—
interlocutory appeal means an appeal under Division 4 of Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009.
(2) If an interlocutory appeal by an accused succeeds, the accused may apply to the Court of Appeal for, and the Court of Appeal may grant, an indemnity certificate in respect of—
(a) the accused's own costs of the appeal; and
(b) if a new trial is ordered, any additional costs that the accused will pay, or will be ordered to pay, as a consequence of the order for a new trial.
(3) An accused granted an indemnity certificate under subsection (2) is entitled to be paid by the Board, on an application made to it by the accused in the approved form—
(a) an amount equal to the accused's own costs of the appeal; and
(b) any additional costs that the accused pays, or is ordered to pay, as a consequence of the order for a new trial—
that the Board considers to have been reasonably incurred.
S. 15B inserted by No. 7/2009 s. 431 (as amended by No. 68/2009 ss 49(q), 54(q)).
15B Application for indemnity certificate by respondent if interlocutory appeal by prosecution
(1) If the prosecution appeals under section 295 of the Criminal Procedure Act 2009, the respondent to that appeal may apply to the Court of Appeal for, and the Court of Appeal may grant, an indemnity certificate in respect of—
(a) the respondent's own costs of the appeal; and
(b) if a new trial is ordered, any additional costs that the respondent will pay, or will be ordered to pay, as a consequence of the order for a new trial.
(2) A respondent granted an indemnity certificate under subsection (1) is entitled to be paid by the Board, on an application made to it by the respondent in the approved form—
(a) an amount equal to the respondent's own costs of the appeal; and
(b) any additional costs that the respondent pays, or is ordered to pay, as a consequence of the order for a new trial—
that the Board considers to have been reasonably incurred.
S. 15C inserted by No. 7/2009 s. 431 (as amended by No. 68/2009 s. 54(q)).
15C Application for indemnity certificate if case stated for Court of Appeal
(1) If a court states a case under section 305 of the Criminal Procedure Act 2009, the accused may apply to the Court of Appeal for, and the Court of Appeal may grant, an indemnity certificate in respect of—
(a) the accused's own costs of the hearing and determination of the question of law set out in the case stated; and
(b) if a new trial is ordered, any additional costs that the accused will pay, or will be ordered to pay, as a consequence of the order for a new trial.
(2) An accused granted an indemnity certificate under subsection (1) is entitled to be paid by the Board, on an application made to it by the accused in the approved form—
(a) an amount equal to the accused's own costs of the hearing and determination of the question of law set out in the case stated; and
(b) if a new trial is ordered, any additional costs that the accused pays, or is ordered to pay, as a consequence of the order for a new trial—
that the Board considers to have been reasonably incurred.
16 Application for indemnity certificate if criminal proceeding discontinued
(1) If—
(a) the hearing of any criminal proceeding is discontinued; and
(b) the reason for the discontinuance was not attributable in any way to the act, neglect or fault of an accused or that accused's legal practitioner; and
(c) a new hearing or trial is ordered—
that accused may apply to the court before which the proceeding is discontinued for, and the court may grant, an indemnity certificate in respect of that accused's own costs of the discontinued proceeding.
(2) The court may only grant an indemnity certificate under subsection (1) if it is satisfied that the reason for the discontinuance was as set out in subsection (1)(b).
S. 16(3) amended by No. 38/2017 s. 23.
(3) An accused granted an indemnity certificate under subsection (1) who pays, or is ordered to pay, any additional costs as a consequence of the order for a new hearing or trial is entitled to be paid by the Board, on an application made to it by the accused in the approved form, an amount equal to the accused's own costs thrown away of the discontinued proceeding 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, if in a criminal proceeding the presiding judge or magistrate directs that the proceeding be discontinued without ordering a new hearing or trial but with a view to another hearing or trial based on the same facts, or facts of a similar character, being conducted against the accused, a new hearing or trial is deemed to have been ordered.
17 Application for indemnity certificate if criminal proceeding adjourned
S. 17(1) amended by No. 34/2004 s. 4(1).
(1) If—
(a) the hearing of any criminal proceeding is adjourned; and
S. 17(1)(b) amended by Nos 35/2002 s. 26(1)(a), 68/2009 s. 97(Sch. item 8.3).
(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 an accused, appellant or respondent in the proceeding), or that party's legal practitioner—
S. 17(1)(c) repealed by No. 35/2002 s. 26(1)(b).
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 for the day on which the adjournment is granted and, if appropriate, the next day on which the court sits.
S. 17(2) substituted by Nos 35/2002 s. 26(2), 34/2004 s. 4(2).
(2) The court may only grant an indemnity certificate under subsection (1) if it is satisfied that—
(a) it is inappropriate to make an order for costs against any party or any other person; and
(b) the reason for the adjournment was as set out in subsection (1)(b).
S. 17(3) amended by Nos 35/2002 s. 26(3), 34/2004 s. 4(3), 14/2006 s. 3.
(3) A party granted an indemnity certificate under subsection (1) is entitled to be paid by the Board, on an application made to it by that party in the approved form and on proof being provided by that party of the costs that have been incurred, an amount equal to that party's own costs of the adjournment, to the maximum, if any, specified under subsection (5), in respect of the day or days referred to in the indemnity certificate, that the Board considers to have been reasonably incurred and that have not been ordered to be paid by any other party.
S. 17(4) amended by Nos 35/2002 s. 26(4), 68/2009 s. 97(Sch. item 8.4).
(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 party accused or convicted of an offence (whether that party is an accused, appellant or respondent in the proceeding) to which the proceeding relates 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.
S. 17(5) inserted by No. 34/2004 s. 4(4).
(5) The Attorney-General may, by order published in the Government Gazette, specify the maximum amount payable by the Board for each day in respect of which an indemnity certificate has been granted under this section.
S. 17(6) inserted by No. 34/2004 s. 4(4).
(6) An order made under subsection (5)—
(a) may be of general or limited application;
(b) may differ according to differences in time, place or circumstance.
S. 17A inserted by No. 81/2011 s. 21.
17A Application for indemnity certificate if DPP applies for continuation of prosecution of person previously acquitted
(1) If an application is made to the Court of Appeal under section 327H of the Criminal Procedure Act 2009, the accused may apply to the Court of Appeal for, and, if it is in the interests of justice to do so, the Court of Appeal may grant, an indemnity certificate in respect of—
(a) the accused's own costs of the application; and
(b) if the Court of Appeal orders that the prosecution of the charge in the direct indictment against the accused may continue, any additional costs that the accused will pay, or will be ordered to pay, as a consequence of the order for the continuation of the prosecution.
(2) In determining whether it is in the interests of justice to grant an indemnity certificate under subsection (1), the Court of Appeal may have regard to—
(a) whether the Court of Appeal orders that the prosecution of the charge in the direct indictment against the accused may continue; and
(b) whether the previous acquittal was attributable in any way to the act, neglect or fault of the accused; and
(c) any other matter that the Court of Appeal considers relevant.
(3) An accused granted an indemnity certificate under subsection (1) is entitled to be paid by the Board, on an application made to it by the accused in the approved form—
(a) an amount equal to the accused's own costs of the application; and
(b) any additional costs that the accused pays, or is ordered to pay, as a consequence of the order for the continuation of the prosecution—
that the Board considers to have been reasonably incurred.
18 Proceedings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
For the purposes of this Part—
(a) an appeal to the Court of Appeal—
(i) against a finding under section 17(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or
S. 18(a)(ii) substituted by No. 68/2009 s. 97(Sch. item 8.5).
(ii) under section 14A or 24AA of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or
S. 18(a)(iii) repealed by No. 68/2009 s. 97(Sch. item 8.5).
S. 18(ab) inserted by No. 55/2014 s. 141(2).
(ab) an appeal to the County Court or the Trial Division of the Supreme Court—
(i) against a finding under section 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or
(ii) under section 38U, 38ZE or 38ZF of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or
S. 18(b) substituted by No. 68/2009 s. 97(Sch. item 8.6), amended by No. 55/2014 s. 141(3).
(b) an investigation under Part 2 or Division 2 of Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 into the fitness of an accused to stand trial; or
S. 18(c) amended by No. 55/2014 s. 141(4).
(c) a special hearing conducted under Part 3 or Division 3 of Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—
is to be taken to be a criminal proceeding.
Part 4—Indemnity certificates in cases stated
19 Cases stated and questions of law reserved for opinion
(1) If in any proceeding—
(a) a case is stated for the opinion or determination of a superior court on a question of law; or
(b) a question of law is reserved in the form of a special case for the opinion of a superior court—
any party to that proceeding other than a party who is or represents the Crown, may apply to the superior court for, and the court may grant, an indemnity certificate in respect of the costs that the party has incurred in respect of the proceeding on the case stated.
(2) Subject to subsection (3), a party granted an indemnity certificate under subsection (1) is entitled to be paid by the Board, on an application made to it by the party in the approved form, an amount equal to that party's own costs of the proceeding on the case stated that the Board considers to have been reasonably incurred.
(3) The maximum amount payable to a party pursuant to an indemnity certificate granted under subsection (1) is $50 000 or any other amount that is prescribed.
Part 5—Appeal Costs Board
20 Appeal Costs Board
There continues to be an Appeal Costs Board.
21 Functions of the Board
The functions of the Board are—
(a) to assess and determine applications for payment made under this Act; and
(b) to approve forms for the purposes of this Act; and
(c) to issue certificates in respect of applications for payment made under this Act; and
(d) as the Board thinks fit, to conduct proceedings in respect of applications for payment made under this Act; and
(e) as requested by the Attorney-General, to advise, or submit a report to, him or her on any matter relating to the operation of this Act;
(f) to exercise and discharge any other powers, authorities, duties, functions or obligations conferred or imposed on it by or under this Act.
22 Membership
(1) The Board consists of the following members appointed by the Attorney-General—
(a) a chairperson; and
S. 22(1)(ab) inserted by No. 38/2017 s. 24.
(ab) a deputy chairperson; and
(b) as many other persons as the Attorney-General thinks fit.
S. 22(2) substituted by Nos 108/2004 s. 117(1) (Sch. 3 item 13.1), 80/2006 s. 26(Sch. item 4).
(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.
23 Term of appointment and termination
(1) A member holds office, subject to this Act, for a term of 3 years from the date of appointment and is eligible for re-appointment.
(2) The Attorney-General may at any time terminate the appointment of a member.
24 Payment of members
A member or acting member of the Board is entitled to be paid any fees, expenses or allowances that are fixed by the Governor in Council.
25 Vacancies and resignations
(1) The office of a member becomes vacant if the member—
(a) becomes an insolvent under administration; or
(b) is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence.
(2) A member may resign by writing delivered to the Attorney-General.
26 Acting members
(1) If a member is absent or, for any other reason, is unable to perform the duties of office, the Attorney-General may appoint an acting member.
(2) An acting member is appointed for the term (not exceeding 28 days) specified in the instrument of appointment.
(3) An acting member has all the powers and must perform all the duties of a member.
(4) The Attorney-General may at any time terminate an acting member's appointment.
27 Proceedings before the Board
S. 27(1) amended by Nos 69/2009 s. 54(Sch. Pt 2 item 4), 67/2014 s. 147(Sch. 2 item 3).
(1) The Board has the powers conferred by sections 14, 15, 16 and 21(1) of the Evidence (Miscellaneous Provisions) Act 1958, as in force immediately before their repeal, on a board appointed by the Governor in Council.
(2) The Board may agree to pay to any applicant any amount in respect of the cost of making an application to it that it thinks fit.
(3) Any amount that the Board agrees to pay to an applicant under subsection (2) must be included in any certificate issued under section 35 to that applicant.
S. 27A inserted by No. 34/2004 s. 5.
27A Board need not hold hearing
(1) The Board may determine an application for payment under this Act without holding a hearing.
(2) The Board may, in its discretion, give an applicant for payment under this Act an opportunity to appear before the Board to be heard in relation to the application.
28 Meetings
S. 28(1) amended by No. 38/2017 s. 25(1).
(1) The chairperson (or in the chairperson's absence, the deputy chairperson) must preside at a meeting of the Board.
(2) A majority of the members for the time being holding office constitutes a quorum of the Board.
(3) If there is a quorum at a meeting of the Board, the Board may act despite any vacancy in its membership.
S. 28(4) amended by No. 38/2017 s. 25(1).
(4) Subject to subsection (5), a matter arising at a meeting of the Board is determined by a majority of votes and the chairperson (or in the chairperson's absence, the deputy chairperson) has a deliberative vote and, in the case of an equality of votes, a second or casting vote.
(5) If at any meeting of the Board at which 2 members only are present, those members differ in opinion on a matter, the determination of that matter must be postponed to the next meeting of the Board at which more than 2 members are present.
(6) The Board must ensure that accurate minutes are kept of its meetings.
S. 28(7) substituted by No. 38/2017 s. 25(2).
(7) Subject to this Part and the regulations, the Board may—
(a) conduct its meetings in any manner it thinks fit; and
(b) regulate its own proceedings.
29 Proceeding or decision of Board not invalid by reason of vacancy etc.
A proceeding or decision of the Board is not invalid only because of a vacancy in the office of a member or a defect or irregularity relating to the appointment of a member or, in the case of a person appointed as an acting member, on the ground that the occasion for that person so acting had not arisen or had ceased.
30 Conflicts of interest
(1) If—
(a) a member has a personal interest (whether pecuniary or otherwise) in a matter being considered or about to be considered by the Board; and
(b) the interest appears to raise a conflict of interest with the proper performance of the member's duties in relation to the consideration of the matter—
the member, as soon as practicable after becoming aware of the relevant facts, must declare the nature of the interest at a meeting of the Board.
5 penalty units.
(2) The person presiding at a meeting at which a declaration is made must cause a record of the declaration to be made in the minutes of the meeting.
(3) After becoming aware of the conflict of interest in a matter—
(a) unless the Board directs otherwise, the member must not be present during any deliberations on the matter; and
(b) the member is not entitled to vote on the matter; and
(c) if the member does vote, the vote must be disallowed.
S. 31 amended by No. 108/2004 s. 117(1) (Sch. 3 item 13.2).
31 Staff
A Secretary to the Board may be employed under Part 3 of the Public Administration Act 2004.
Part 6—Miscellaneous, transitionals and repeal
Division 1—General
S. 31A inserted by No. 38/2017 s. 26.
31A Scope of indemnity certificate
(1) An indemnity certificate granted under this Act may be expressed as applying, subject to the court's discretion, to limited or specific costs of an appeal or trial.
(2) Without limiting subsection (1), a certificate expressed as applying to limited or specific costs of an appeal may be expressed as—
(a) applying or not applying to a stated part of an appeal or a trial; or
(b) applying or not applying in respect of the fees of a particular Australian legal practitioner or law practice (within the meaning of the Legal Profession Uniform Law (Victoria)); or
(c) applying or not applying to specified items in a scale of costs; or
(d) applying to a limited time period; or
(e) as provided in any combination of paragraphs (a), (b), (c) and (d).
(3) A certificate that contains no written limitation or specifications under subsection (1) is taken to apply without limitation, subject to this Act.
Note
See also section 37.
32 Effect of indemnity certificate in sequence of appeals
(1) An indemnity certificate granted to a respondent under this Act in respect of an appeal in a sequence of appeals is discharged by force of this subsection and of no effect if—
(a) in a later appeal in that sequence, the respondent granted the indemnity certificate is successful; or
(b) an indemnity certificate is granted in respect of a later appeal in that sequence and the respondent granted an indemnity certificate in respect of the earlier appeal is a party to the later appeal.
(2) An indemnity certificate granted to an appellant under this Act in respect of an appeal to the Supreme Court is discharged by force of this subsection and of no effect if the appellant is a party to a successful appeal against the decision of the Supreme Court.
(3) If an appeal and a later appeal or later appeals form a sequence of appeals, and an indemnity certificate in respect of any of those appeals has not been discharged by force of this section, a reference in section 33 or 34 to—
(a) the decision in the appeal is to be construed as including a reference to the decision in the later appeal or any other later appeal (as the case may be); and
(b) the determination of an appeal is to be construed as including a reference to the determination of any later appeal.
(4) The operation of this section is not affected by section 33 or 34.
33 Effect of indemnity certificate where there is limited period for appealing
If an appeal lies against a decision in an appeal and there is a limited period for instituting that appeal, the effect of an indemnity certificate granted to a respondent under section 4, or to an appellant under section 7(1), in respect of that appeal is stayed—
(a) if no appeal is instituted against the decision in that appeal during that period—until the expiry of that period; or
(b) if an appeal is instituted against the decision in that appeal—until the determination of the appeal.
34 Effect of indemnity certificate where there is no limited period for appealing
(1) If an appeal lies against a decision in an appeal and there is not a limited period for instituting that appeal, the effect of an indemnity certificate granted to a respondent under section 4 in respect of that appeal is stayed—
(a) if an application for leave to appeal against the decision in that appeal is made—until that application is determined and, if leave is granted, until the determination of the appeal; or
(b) until the respondent gives an undertaking in writing to the Board that they will not make an application for leave to appeal or appeal against the decision in that appeal—
whichever happens first.
(2) If an appeal lies against a decision in an appeal and there is not a limited period for instituting that appeal, the effect of an indemnity certificate granted to an appellant under section 7(1) in respect of that appeal is stayed—
(a) if an application for leave to appeal against the decision in that appeal is made—until that application is determined and, if leave is granted, until the determination of the appeal; or
(b) until the expiry of 3 months after the date of the decision in the appeal against which an appeal lies—
whichever happens first.
(3) If a respondent breaches an undertaking that they have given to the Board under subsection (1)(b), the respondent must, on demand made by the Board, repay to the Board any amount paid to the respondent pursuant to the indemnity certificate.
(4) If an appellant granted an indemnity certificate under section 7(1) in respect of an appeal to the Supreme Court is a party to a successful appeal against the decision of the Supreme Court, the appellant must, on demand made by the Board, repay to the Board any amount paid to the appellant pursuant to the indemnity certificate.
(5) If a person does not repay any amount required to be repaid under subsection (3) or (4), the Board may recover that amount as a debt due to it in a court of competent jurisdiction.
(6) Any amount paid to or recovered by the Board under this section must be paid into the Consolidated Fund.
35 No payments without a certificate of the Board
(1) No amount is to be paid under this Act otherwise than in accordance with a certificate of the Board.
(2) The Board must not issue a certificate for the payment of any amount under this Act unless it is satisfied that the payment is authorised by this Act and that the provisions of this Act and the regulations in relation to a claim for the payment have been complied with.
(3) Any money that the Board is required to pay under this Act is to be paid out of money made available to the Board for the purpose.
S. 35A inserted by No. 34/2004 s. 6.
35A No payments to certain persons or in respect of certain matters
(1) Despite any other provision in this Act, no amount is to be paid by the Board under this Act, other than on an application under section 6, 9 or 13—
(a) to a corporation having paid up share capital of $200 000 or more or to a subsidiary of such a corporation; or
(b) to an insurer of a party whose rights under the contract of insurance have been subrogated to the insurer; or
(c) in respect of costs that are recoverable under an insurance policy or would be recoverable but for any amount payable by way of excess under or in relation to the policy.
(2) In subsection (1), corporation and subsidiary have the same meanings as in the Corporations Act.
S. 35B inserted by No. 34/2004 s. 6.
35B Meaning of costs reasonably incurred
In considering whether costs have been reasonably incurred, the Board must take into account—
(a) whether the seniority and number of counsel engaged were appropriate for the proceeding; and
(b) in the case of an adjournment, whether counsel took action to mitigate any loss to them arising from the adjournment, such as undertaking other work or being available for other work during the period of the adjournment; and
(c) any other matter specified by the Attorney-General by order published in the Government Gazette.
S. 35C inserted by No. 34/2004 s. 6.
35C Board may require costs to be taxed etc.
(1) The Board may require that costs the subject of an indemnity certificate be taxed by the taxing officer of the court concerned or by an assessor nominated by the Board.
(2) The Attorney-General may, by order published in the Government Gazette, direct that all costs—
(a) of a specified class; or
(b) of an amount exceeding a specified amount—
must be taxed by the taxing officer of the court concerned or by an assessor nominated by the Board before the Board determines an application for payment under this Act.
(3) The Board may require that all or part of the costs of a taxation referred to in subsection (1) or (2) be borne by the applicant for payment under this Act.
S. 35D inserted by No. 34/2004 s. 6.
35D Time limits for applications to Board
An application for payment under this Act must be lodged with the Board not later than 12 months after the final determination of the matter to which the indemnity certificate relates.
S. 35E inserted by No. 34/2004 s. 6.
35E Expiry of indemnity certificates
(1) Subject to subsection (2), if an application for payment under this Act is not lodged with the Board within the time referred to in section 35D, the indemnity certificate expires.
(2) Despite subsection (1), the Board may determine that an application for payment under this Act may be assessed and determined as if the indemnity certificate had not expired, if it considers that it is in the interests of justice to do so.
S. 35E(3) inserted by No. 38/2017 s. 27.
(3) In considering whether it is in the interests of justice to determine an application as if the indemnity certificate has not expired under subsection (2), the Board must have regard to the following—
(a) whether any negotiations with the other party regarding the settlement, taxation or payment of costs were progressed with reasonable expedition;
(b) the actions of the applicant and the applicant's legal practitioner;
(c) the consequences of granting or not granting the extension, including any financial implications;
(d) whether it is fair and equitable in the circumstances to consider an application made beyond the time limit specified in section 35D.
36 Correction of errors
The Board, on its own initiative or at the request of the person in respect of whom the Board has issued a certificate, may correct the certificate if it contains—
(a) a clerical error or accidental slip or omission; or
(b) an evident miscalculation of figures; or
(c) an evident material mistake in the description of a person or thing.
S. 37 (Heading) inserted by No. 38/2017 s. 28(1).
37 No appeal against grant or refusal of, or limitation on, indemnity certificate
(1) The grant or refusal of an indemnity certificate by a court is in its discretion.
(2) No appeal lies against a grant or refusal by a court of an indemnity certificate.
S. 37(3) inserted by No. 38/2017 s. 28(2).
(3) No appeal lies against a grant by a court of an indemnity certificate that is limited in accordance with section 31A.
38 Crown cannot be granted an indemnity certificate
A court must not grant an indemnity certificate in favour of the Crown or any person representing the Crown.
39 Payments made or incurred by Victoria Legal Aid
For the purposes of this Act—
(a) payments made or expenses incurred by Victoria Legal Aid in respect of the provision of legal assistance to any person in accordance with the Legal Aid Act 1978 are to be taken to be made or incurred by that person; and
S. 39(b) amended by No. 38/2017 s. 74.
(b) any amount paid to Victoria Legal Aid under this Act in respect of an assisted person within the meaning of the Legal Aid Act 1978 is not to be taken to be an amount paid to the Crown.
S. 40 amended by No. 38/2017 s. 29 (ILA s. 39B(1)).
40 Supreme Court—Limitation of jurisdiction
(1) It is the intention of section 37(2) to alter or vary section 85 of the Constitution Act 1975.
S. 40(2) inserted by No. 38/2017 s. 29.
(2) It is the intention of section 37(3) to alter or vary section 85 of the Constitution Act 1975.
41 Regulations
(1) The Governor in Council may make regulations for or with respect to any matter or thing that is required or permitted to be prescribed or necessary to be prescribed to give effect to this Act.
(2) Without limiting subsection (1), the Governor in Council may make regulations for or with respect to—
(a) the making of payments under this Act;
(b) prescribing the maximum amount payable pursuant to an indemnity certificate.
42 Board discharged from liability
Any amount payable to a person under this Act may, if the Board thinks fit, be paid to their legal practitioner or to Victoria Legal Aid if the person is an assisted person within the meaning of the Legal Aid Act 1978 and, on that payment, the Board is discharged from liability to that person in respect of that amount.
Division 2—Transitionals and repeal
43 Transitional—Application of Act
(1) This Act only applies with respect to new proceedings.
(2) The Appeal Costs Act 1964 continues to apply, despite its repeal, to appeals within the meaning of that Act or other proceedings to which it was capable of applying that were instituted or commenced before its repeal.
(3) For the purposes of this section, a new proceeding is—
(a) an appeal instituted; or
(b) a proceeding commenced; or
(c) a case stated brought—
on or after the commencement of this section.
S. 43A inserted by No. 35/2002 s. 27.
43A Transitional—2002 amendments
The amendments of section 17 of this Act made by section 26 of the Criminal Justice Legislation (Miscellaneous Amendments) Act 2002 apply to an application under section 17 made on or after the commencement of section 26 of that Act, irrespective of when the criminal proceeding commenced.
44 Transitional—Members of the Board
Any person who, immediately before the commencement of section 20 held office as a member of the Appeal Costs Board, continues, on and from the commencement of that section, to hold that office for the balance of his or her term of appointment but may be re-appointed or resign in accordance with this Act.
45 Repeal
The Appeal Costs Act 1964 is repealed.
S. 46 inserted by No. 34/2004 s. 7.
46 Transitional—2004 amendments
(1) Section 17 as amended by section 4 of the Appeal Costs and Penalty Interest Rates Acts (Amendment) Act 2004 applies to the grant of an indemnity certificate on or after the commencement of that Act.
(2) Section 27A as inserted by section 5 of the Appeal Costs and Penalty Interest Rates Acts (Amendment) Act 2004 applies to an application to the Board made on or after the commencement of that Act, irrespective of when the indemnity certificate was granted.
(3) Section 35A as inserted by section 6 of the Appeal Costs and Penalty Interest Rates Acts (Amendment) Act 2004 applies to an application to the Board in respect of an indemnity certificate granted on or after the commencement of that Act.
(4) Sections 35B and 35C as inserted by section 6 of the Appeal Costs and Penalty Interest Rates Acts (Amendment) Act 2004 apply to an application to the Board made on or after the commencement of that Act, irrespective of when the indemnity certificate was granted.
(5) Sections 35D and 35E as inserted by section 6 of the Appeal Costs and Penalty Interest Rates Acts (Amendment) Act 2004 apply to indemnity certificates granted on or after the commencement of that Act.
S. 47 inserted by No. 38/2017 s. 30.
47 Transitional—Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017
The amendments made to this Act by sections 15, 16, 17, 18, 19, 21, 22 and 27 of the Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017 apply in relation to an application made to the Board after the commencement of the applicable section or sections, whether the relevant indemnity certificate was granted before, on or after the commencement of the applicable section or sections.
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 8 October 1998
Legislative Council: 10 November 1998
The long title for the Bill for this Act was "A Bill to re-enact, with amendments, the Appeal Costs Act 1964 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 8 October 1998
Legislative Council: 10 November 1998
Absolute majorities:
Legislative Assembly: 30 October 1998
Legislative Council: 12 November 1998
The Appeal Costs Act 1998 was assented to on 24 November 1998 and came into operation as follows:
Sections 1 and 2 on 24 November 1998: section 2(1); rest of Act on 1 April 1999: section 2(3).
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Appeal Costs Act 1998 by Acts and subordinate instruments.