Suitors' Fund Act 1964

The Act’s operative architecture rests on a few recurring legal and financial concepts: levy funding, agency special purpose account, certificate‑driven entitlements, capped payments, exclusions by corporate size, Board discretion, and financial safeguards under public finance law.

• Levy and funding flow. Section 5 imposes a statutory levy on filing or commencement of specified processes, with the amount and differential rates to be prescribed by regulation (s 5(1), (3)). The Department must prepare quarterly statements of processes to the Treasurer, who charges the Consolidated Account and credits an equivalent amount to the Fund (s 6). The compilation table records commencement dates of levy provisions introduced by recent amendments.
• Agency special purpose account. The Fund is an agency special purpose account under the Financial Management Act 2006 (s 4(1)). This links the Fund into the state’s public finance framework: the Fund’s administration, audit and reporting are governed by the Financial Management Act and the Auditor General Act (s 4A). Interest on investments and income credited under s 4(2) form part of the Fund (s 4(4)), and Fund accounts are audited by the Auditor General (s 4(9)).
• Certificate mechanism. Entitlement to payment from the Fund is generally contingent on a court issuing either an indemnity certificate (s 10) or a costs certificate (s 12A), or on the Board subsequently directing payment (s 7, s 11, s 14). Indemnity certificates are available where an appeal on a question of law succeeds (s 10); costs certificates are available to appellants where conviction is quashed without a new trial (s 12A). Other statutory pathways (s 14, s 14A, s 14B, s 15) authorise the Board to direct payments where proceedings are rendered abortive, where infants’ guardian ad litem costs are ordered to be charged to the Fund, where a court refuses to approve a settlement for a person under disability, and where damages awards are varied on appeal or in a motion for a new trial.
• Caps and exclusions. The Act prescribes per‑claim caps and categorical exclusions. Several sections cap the amount payable to any one respondent or appellant at $1,000 (or such other amount as prescribed), in some cases, and s 14B caps payments for persons under disability at $5,000 (ss 11(3)(b), 12A(5), 14A(2), 14B(4), 15(2)(b)). The Crown and companies (including foreign companies and registrable Australian bodies) with paid‑up capital or equivalent of $200,000 or more are excluded from entitlement in a number of provisions (ss 13(3), 14(2), 15(3)). Section 15A extends exclusion to related bodies corporate of large corporations.
• Board discretion and procedural controls. Payments may only be made on the Board’s written direction and only when the Board is satisfied statutory authorisation and procedural compliance have been met (s 7). The Board decides taxation or agreement of taxable costs for entitlements under the Act (s 11(1)(b), s 12A(4)(a)(i)/(b)(ii)). The Board’s composition is prescribed: three members appointed by the Governor, including nominees of the Law Society and the Legal Practice Board (s 8(1)-(2)), and the Board may regulate its proceedings and appoint staff (s 9).
• Interaction with court costs rules. The Act defines “costs” to include costs of applications for indemnity or costs certificates but excludes costs incurred in courts of first instance unless expressly provided otherwise (s 3, definition of “costs”). The Act also anticipates regulation to cover taxation or assessment of costs where court rules do not provide or where a party refuses or neglects to tax (s 17(b)).
• Financial safety valves. The Board may temporarily borrow from the Treasurer when the Fund is insufficient (s 4(6)-(7)); the Treasurer may invest surpluses subject to the Trustees Act model (s 4(8)). These mechanisms create a temporary state credit pathway and a charge on the Fund while borrowings are outstanding.

Taken together these concepts design a targeted, certificate‑triggered cost mitigation facility financed by a dedicated levy and constrained by caps, exclusions and public finance rules.

The Act allocates rights and obligations across several identifiable groups: litigants (appellants and respondents), court users more generally (those issuing processes), the legal profession, the Board and its secretariat, the Department, the Treasurer and Auditor General, and corporate entities characterised by paid‑up capital.

• Court users and litigants. Those who commence proceedings in the specified courts, or who are parties to appeals, are directly affected. A statutory levy is imposed on the issue or commencement of processes in the Supreme Court, District Court, Children’s Court and Magistrates Court and on criminal summonses in courts of summary jurisdiction (s 5(1)). Litigants who are respondents to successful appeals on a question of law, appellants whose convictions are quashed without a new trial, parties to proceedings rendered abortive without their fault, guardians ad litem, and persons under disability in the circumstances stated are potential beneficiaries of Fund payments (ss 10-15, 14A, 14B, 12A). The Act defines “appeal” broadly to include case stated, motions for new trial, and appeals under Part 2 of the Criminal Appeals Act 2004 (s 3), which affects the range of covered proceedings.
• Paying population. The immediate financial cost of the levy falls on persons issuing the covered processes. The levy is set and may vary by class under regulation (s 5(3)). The Department collates records and the Treasurer ultimately credits the Fund from Consolidated Account appropriations reflecting those processes (s 6). The Act therefore spreads costs across users of the court filing system, rather than charging beneficiaries alone at the point of payment.
• The legal profession. Solicitors and counsel will be involved in applying for certificates (s 10, s 12A), in agreement or taxation of costs with the Board (s 11(1)(b), s 12A(4)(a)(i)), and in advising clients about undertakings (s 12(2)(b)‑(4)). Two seats on the Board are filled by nominees of the Law Society and the Legal Practice Board, giving the regulated profession formal representation in the Board’s membership (s 8(2)(b)-(c)).
• Public administration and oversight. The Department is obliged to prepare quarterly statements of process numbers for the Treasurer (s 6(1)). The Treasurer administers appropriation and investment actions (s 4(6)-(8), s 6(2)). The Auditor General audits Fund accounts (s 4(9)). The Board directs payments and may appoint a Secretary and other officers (s 9(7)).
• Corporations and the Crown. The Act excludes the Crown and companies with paid‑up capital of or equivalent to $200,000 or more from entitlement in several provisions (s 13(3), s 14(2), s 15(3)). The definition of “company” and “foreign company” cross‑references the Corporations Act 2001 (s 3), including registrable Australian bodies, and s 15A extends the exclusion to related bodies corporate of large corporations. These provisions tailor the Fund to assist individuals and smaller entities rather than larger corporate or Crown litigants.
• Vulnerable persons. Special provision applies for infants (guardian ad litem costs) (s 14A) and persons under disability where the court refuses to approve a settlement (s 14B). These carve‑outs create a pathway for Fund support where the court intervenes to protect persons lacking legal capacity.
• Applicants for payments. Parties who are eligible to receive Fund payments must engage with two decision points: obtaining the requisite certificate or court order and then applying to the Board for a written direction to pay from the Fund (s 7, s 11, ss 12-12A, s 14, s 15). The Act places procedural duties on applicants including taxation or agreement of costs and production of certificates of taxation where necessary (s 11(1)(b), (c), s 12A(4)).

In short, the levy spreads cost across court users broadly, while the Fund’s entitlement rules and exclusions direct benefits to individual litigants, certain vulnerable persons and small parties, and exclude larger corporate and Crown defendants from receiving Fund payments in many cases.

The Act creates specific statutory duties for public officials and rights for litigants and beneficiaries. Rights are typically conditional on court certificates and Board satisfaction, while duties are procedural and financial.

Key duties:

• Courts: The Supreme Court and the District Court have the duty or power to grant indemnity certificates where an appeal on a question of law succeeds (s 10(1)-(3)). The Supreme Court must, in certain appellate scenarios where costs would have been ordered but for other law, make findings about those costs to enable a costs certificate (s 12A(2)(a)-(b)).
• Department: The Department must prepare and send to the Treasurer, quarterly, a signed statement specifying the number of processes for which levies are payable (s 6(1)). This duty creates the administrative data flow that triggers appropriations to the Fund (s 6(2)).
• Treasurer: Upon receipt of the Department’s statement, the Treasurer must cause an amount equal to the total levy payable in respect of specified processes to be charged to the Consolidated Account and credited to the Fund (s 6(2)). The Treasurer may invest surplus Fund moneys temporarily and must credit interest to the Fund (s 4(8)). The Treasurer may advance funds to the Fund when the Board certifies insufficiency (s 4(6)), and any advance is a charge on the Fund until repaid (s 4(7)).
• Board: The Board must direct in writing all payments out of the Fund (s 7(1)). It must be satisfied that payments are authorised by the Act and that claim procedures have been complied with before issuing directions (s 7(2)). The Board has duties to tax or agree costs where the Act requires it (s 11(1)(b), s 12A(4)(a)(i)), to determine payments under sections 11, 12A, 14, 14A, 14B and 15 and to manage the Fund under the Financial Management Act and Auditor General Act as noted (s 4(5), s 4A). The Board must regulate its own proceedings, appoint a Secretary and staff as necessary, and may advise the Minister (s 9(5)-(7)).
• Applicants/parties: Applicants must apply to the proper court for an indemnity or costs certificate where required (s 10, s 12A). Where taxation of costs is necessary, they must engage in taxation or reach agreement with the Board and produce certificates of taxation where needed to the Board (s 11(1)(b), (c), s 12A(4)). A respondent who gives an undertaking not to appeal and then does may be required by written demand to repay amounts received from the Fund (s 12(4)(a)-(b)).
• Governor: Appoints Board members and may remove and replace them; the Governor may also appoint a Secretary and other officers (s 8(1), (4), s 9(7)).

Key rights:

• Entitlement to payment from the Fund. Where a court grants an indemnity certificate to a respondent to a successful appeal on a question of law, the respondent is entitled to be paid from the Fund specified costs: amounts equal to the appellant’s costs ordered to be paid and actually paid by the respondent, and amounts equal to the respondent’s own costs as taxed or agreed by the Board and the respondent or solicitor; and costs of taxation where applicable (s 11(1)(a)-(c)). Where the Board is satisfied of inability or unwillingness of the respondent to pay those appellant costs, it may direct payment to the appellant on behalf of the respondent (s 11(2)).
• Costs certificates to appellants. Where conviction is quashed without a new trial, or where an appeal on a question of law succeeds and the court would have ordered costs but for other law, the Supreme Court may grant a costs certificate entitling the appellant to be paid from the Fund (s 12A(1)-(4)), subject to statutory caps (s 12A(5)).
• Other entitlements. The Act creates statutory rights to Fund payments in connection with aborted proceedings and adjournments not attributable to the party’s fault (s 14), guardian ad litem costs for infants where ordered by the court (s 14A), indemnity certificates for persons under disability where the court refuses a proposed settlement and the award is not more than the offer (s 14B), and for respondents where damages awards are varied on appeal or a new trial is ordered (s 15).
• Finality and non‑review. The grant or refusal of an indemnity certificate or costs certificate by the relevant court is not subject to appeal (s 13(1)).

Rights are subject to statutory conditions (taxation, production of certificates), monetary caps (e.g. $1,000 or $5,000 where specified), and categorical exclusions for Crown and larger corporate entities (s 13(3), s 14(2), s 15(3), s 15A). The Board’s written direction is the operational gateway to payment (s 7).

The Act’s text establishes procedural enforcement mechanisms and monetary controls rather than criminal penalties. It relies on administrative, civil and public finance enforcement paths.

• No criminal penalties in the Act. The Act does not create criminal offences for non‑compliance with its requirements for applicants or officials. Enforcement is carried out through statutory duties and civil mechanisms.
• Recovery as debt. The Act authorises recovery of amounts paid in breach of an undertaking. If a respondent gives an undertaking under s 12(2)(b) that he will not apply for leave or appeal, and then applies or appeals, the Board may demand repayment of any amounts paid under the indemnity certificate; in default the amount may be recovered by the Board from the respondent as a debt in any court of competent jurisdiction (s 12(4)(a)). Amounts recovered are to be credited to the Fund (s 12(4)(b)). This civil recovery power enforces undertakings given to obtain Fund assistance.
• Budgetary and appropriation controls. Payments from the Fund require a written direction of the Board (s 7(1)) and the Board must be satisfied that payments are authorised and that claim procedures have been complied with (s 7(2)). This condition is an administrative control: only Board‑directed payments are lawful. The Treasurer’s crediting of the Fund from Consolidated Account appropriations is based on the Department’s statements of process numbers (s 6), providing a control over the flow of levy revenue into the Fund.
• Financial charge on Fund for borrowings. If the Board certifies insufficiency of Fund balances, it may borrow from the Treasurer (s 4(6)). Any amount advanced is a charge on the Fund until repaid (s 4(7)). The charge creates an internal priority for repayment and ensures that the Treasurer’s advance is recoverable from future Fund moneys.
• Audit and reporting oversight. The Auditor General audits Fund accounts (s 4(9)) and the Fund’s financial administration and reporting are governed by the Financial Management Act and Auditor General Act (s 4A). These statutory audit mechanisms provide oversight and enforce compliance with public finance rules.
• Non‑appealability of certificate decisions. The Act precludes appeal against the grant or refusal of indemnity and costs certificates (s 13(1)), which enforces finality and limits judicial review to other available avenues only. Practically this reduces litigation over certificate determinations.
• Regulations for taxation and costs procedure. The Governor may make regulations relating to taxation or assessment of costs where court rules do not apply or where a party refuses or neglects to tax (s 17(b)). These regulations can set procedural enforcement detail for taxation disputes and bills of costs.

There are therefore no express criminal penalties in the Act; enforcement is administrative, civil and financial: Board written directions gate lawful payments (s 7), civil debt recovery enforces undertakings (s 12(4)), and audit and appropriation regimes control Fund integrity (ss 4, 4A, 6).

The Act is cross‑referenced to, and operates alongside, multiple other statutes and general public finance law. The statutory text makes specific cross‑references and delegates certain operational matters to regulation where interaction with other procedural and financial regimes is necessary.

• Financial Management and auditing regimes. The Fund is established as an agency special purpose account under s 16 of the Financial Management Act 2006 (s 4(1)). Section 4A expressly applies the Financial Management Act 2006 and the Auditor General Act 2006 to the department and the Fund, which means the Fund’s financial administration, audit and reporting are governed by those Acts (s 4A). The Treasurer’s authority to invest surplus Fund moneys follows Part III of the Trustees Act 1962 model for trust investments (s 4(8)), so existing trust investment principles interact with Fund investments.
• Corporations Act 2001. The Act defines “company” and “foreign company” by reference to the Corporations Act 2001 (s 3). Section 15A relies on the Corporations Act 2001 concept of related body corporate to exclude subsidiaries and related corporations of larger companies from Fund entitlements. The cross‑reference to Commonwealth corporate definitions is therefore central to the Act’s exclusions and who may receive Fund payments.
• Court rules and taxation of costs. The Act contemplates interaction with court rules for costs assessment but provides mechanisms where those rules do not cover a situation. “Costs” are defined in s 3 and expressly exclude costs in a court of first instance except where otherwise provided, signalling the Act is generally directed at appellate cost risks. Section 17(b) empowers regulations to cover taxation or assessment of costs where court rules do not apply or where a party refuses to tax. The Supreme Court and District Court have jurisdictional roles under ss 10 and 12A to grant certificates; where a court gives an order it triggers the Board’s role in taxation and payment.
• Criminal Appeals Act 2004 and Criminal Procedure Act 2004. The Act’s definition of “appeal” includes appeals under Part 2 of the Criminal Appeals Act 2004 (s 3). Section 5(1)(c) imposes the levy also on the issue of any summons or court hearing notice under the Criminal Procedure Act 2004 in relation to prosecutions in courts of summary jurisdiction; s 14(1)(ba) also references appeals commenced by a prosecutor under ss 24(2)(da) or 25(3)(aa) of the Criminal Appeals Act 2004. These cross‑references include criminal appellate and summary procedures in the Fund’s perimeter.
• Magistrates Court (Civil Proceedings) Act 2004 and Guardianship and Administration Act 1990. Section 5(1)(b) specifically includes commencements in the Magistrates Court under the Magistrates Court (Civil Proceedings) Act 2004 within levy coverage. Section 14B(1) references Part 6 of the Guardianship and Administration Act 1990 for the definition of persons under administration, integrating guardianship law concepts into the Fund’s protections for persons under a disability.
• Legal profession legislation. The Law Society of Western Australia and the Legal Practice Board nominate members to the Board (s 8(2)(b)-(c)). The Legal Practice Board is established under the Legal Profession Uniform Law Application Act 2022 (see s 8 amendment note). This embeds legal profession governance into the Board’s composition and thus into Fund governance.
• Trustees Act 1962. The Treasurer’s power to invest Fund surpluses follows the investment power for trust funds in Part III of the Trustees Act 1962 (s 4(8)), aligning Fund investment practice with trust investment law.
• Interpretation Act 1984. Section 5(4) expressly states nothing in the section limits the operation of s 43 of the Interpretation Act 1984, indicating that general interpretive rules continue to apply to levy provisions (s 5(4)).

These interactions mean practitioners must consider the Fund alongside public finance controls, corporate definitions in Commonwealth law, court rules on costs and taxation, criminal appeal procedures, guardianship law, and legal profession governance. Regulations under s 17 can further mediate interaction points where court rules or practice are silent.

The compiled text contains a detailed compilation table recording amendments from 1964 through to 2022. The Act has been amended repeatedly to adjust definitions, governance, financial administration and levy operation. Key amendment features and dates from the compilation table are:

• Early amendments and commencement. The original Suitors’ Fund Act 1964 commenced in stages in 1965 (see compilation entries for 1964 and Decimal Currency Act 1965). Amendments in 1969 and 1971 added substantive new provisions including the costs certificate regime introduced by the 1971 Amendment Act (see s 12A as inserted by No. 57 of 1971).
• 1970s-1980s adjustments. Multiple Acts in the 1970s and 1980s amended definitions, Board composition and financial provisions: Suitors’ Fund Amendment Acts 1969, 1971, 1977, 1978 and the 1984 amendment altered the Act’s mechanics (compilation entries list dates and assent numbers). The Trustees Act investment mechanics and Treasury oversight evolved through these changes and subsequent financial administration amendments.
• Financial administration and auditing alignment. The Act was brought within the modern financial management framework via amendments implemented in 1985, 1993 and further in 2006, leading to the Agency Special Purpose Account reference and s 4A application of the Financial Management Act 2006 and Auditor General Act 2006. The compilation table (Acts Amendment (Financial Administration and Audit) Act 1985; Financial Administration Legislation Amendment Act 1993; Financial Legislation Amendment and Repeal Act 2006) shows these connections.
• Court and criminal procedure linkage. Amendments enacted in 2004 (Courts Legislation Amendment and Repeal Act 2004; Criminal Procedure and Appeals consequential Acts) updated cross‑references and extended levy coverage to additional processes, reflecting wider court reform.
• Legal profession and governance updates. The Legal Profession Act 2008 and associated amendments updated the Board nomination mechanics, reflected in s 8 and the amendment history entries for 2008 and the Legal Profession Uniform Law Application Act 2022 (s 424) which altered the nominating body and took effect 1 July 2022.
• 2019 reforms to levy and review. Two related Acts in 2019 , the Suitors’ Fund Amendment Act 2019 (No. 8 of 2019) and the Suitors’ Fund Amendment (Levy) Act 2019 (No. 9 of 2019) , amended the Act and introduced a statutory review obligation (s 18) to examine the levy’s effect on access to courts and implementation of Law Reform Commission recommendations. The compilation table shows that s 1-3 and s 6 of the 2019 Amendment Act commenced on 15 May 2019, while ss 4 and 5 commenced 1 January 2021. The separate 2019 Levy Act likewise had parts commence 1 January 2021. These dates are pertinent to the timing of levy operation and the review trigger in s 18.
• Incremental numeric and drafting changes. The compilation table records numerous other amendments, reprints and technical changes through to 2022. Notably, s 3’s defined terms have been amended several times (see s 3 amendments list), and the Board composition provisions were updated in 2022 to reflect the Legal Practice Board nomination (s 8 amended No. 9 of 2022 s 424).

The amendment record shows that the Act has migrated from a mid‑20th century statutory instrument to a Fund integrated within contemporary public finance and court procedure regimes. The 2019 package both reworked levy mechanics and imposed a statutory review requirement, signalling legislative attention to the levy’s effect and to modern governance norms (see s 18 and compilation entries for 2019).

The Act’s text and compilation table do not record any case law or litigation history. The statute itself does not cite judicial decisions, and the compilation table lists amendments and commencement dates but not judicial treatment. The Act expressly constrains judicial review avenues in one respect: no appeal lies against the grant or refusal of an indemnity certificate or costs certificate by the relevant court (s 13(1)). Beyond that express provision, the Act is silent in the text supplied about any reported litigation interpreting its provisions.

Practitioners wishing to identify relevant case law must therefore search Western Australian decisions, appellate reports and any judicial consideration of indemnity certificates, costs certificates, Board decisions or the Act’s exclusions (for example, disputes about the application of the $200,000 paid‑up capital exclusion or the meaning of “appeal” in particular contexts). The Act’s transplantation into the Financial Management Act 2006 and the Auditor General Act 2006 framework (s 4A) may also have generated administrative law questions as to Treasury and audit interactions, but such decisions are not cited in the Act itself.

In addition, the Act’s non‑appealability clause (s 13(1)) means that direct appellate challenge to a court’s certificate determination is statutorily barred, which will shape litigation pathways and available remedies. If parties seek to challenge Board directions, recovery demands under s 12(4), or the Board’s assessment of eligibility, they would likely proceed by ordinary judicial review or debt actions, subject to statutory bars and justiciability rules. The Act as compiled does not list any such proceedings.

Therefore, the compiled statute provides the regulatory framework but not any internal record of judicial interpretation; locating litigation history requires external case law research beyond the statute text.

The Act contains a number of operational and substantive traps for practitioners and administrators. These are concrete features that can generate unexpected outcomes if overlooked.

• Levy commencement and scope. The levy is imposed on issuing or commencing specified processes (s 5(1)), and the regulations may prescribe different levy amounts by process (s 5(3)). The 2019 amendment timetable means parts of the levy regime came into effect at different times (compilation table: some amendments commenced 1 January 2021). Practising lawyers must check the applicable regulatory schedule and commencement dates for the levy amount and which processes attract it.
• “Costs” is narrowly drawn for many purposes. The Act defines “costs” to include costs of an application for an indemnity or costs certificate, but it expressly excludes costs incurred in a court of first instance unless the Act otherwise provides (s 3 definition of “costs”). That exclusion means that many first‑instance costs are not recoverable from the Fund unless a specific provision applies; costs recovery from the Fund is predominantly an appellate focused remedy under the Act (see ss 10-12A, 14, 15).
• Certificates are jurisdictional preconditions. Most entitlements require an indemnity or costs certificate granted by the court (s 10, s 12A) before the Board can direct payment (s 7). If a party fails to secure the required court certificate, the Board lacks lawful basis to pay. Practitioners must therefore ensure that applications for certificates are timely, properly framed and supported by the court retrial or appeal outcome.
• Undertakings carry repayment risks. If a respondent gives a written undertaking under s 12(2)(b) that he will not seek further leave to appeal or appeal, and then does so, the Board may demand repayment of amounts paid under the indemnity certificate; amounts unpaid can be recovered as a debt (s 12(4)). This civil debt recovery facility is a direct enforcement mechanism that can be overlooked when clients give undertakings to secure payments.
• Caps can be small relative to actual costs. The Act sets statutory maximums for amounts payable from the Fund: e.g. the amount payable to any one respondent is capped at $1,000 or such other prescribed amount in a number of provisions (s 11(3)(b), s 12A(5), s 14A(2), s 15(2)(b)), while s 14B caps payments to $5,000 for persons under disability (s 14B(4)). The phrase “or such other amount as may from time to time be prescribed” means the cap can be adjusted by regulation, but absent that, claims may be capped substantially below actual taxed costs. Users must check current prescribed caps.
• Categorical exclusions. The Crown and companies with paid‑up capital or equivalent of $200,000 or more are excluded from entitlement under several provisions (s 13(3), s 14(2), s 15(3)), and s 15A extends exclusion to related bodies corporate of such companies. Large corporate defendants or the Crown cannot generally claim; identifying company status requires applying the Corporations Act definitions and tracing corporate groups for related‑body exclusions (s 3, s 15A).
• Non‑appealability of certificate decisions. Courts’ determinative grant or refusal of indemnity or costs certificates is final and not subject to appeal (s 13(1)). That statutory finality limits appellate remedies and shifts the contest to applications before the trial or appeal court and to Board administrative review if available.
• Board discretion and evidentiary requirements. Payment from the Fund is conditional on the Board being satisfied the payment is authorised and procedural steps have been complied with (s 7(2)). The Board determines taxation of costs or agreement and requires certificates of taxation in some cases (s 11(1)(b), (c)). Parties must therefore prepare and present adequate cost bills, taxation submissions and documentary evidence to the Board. Section 17(b) anticipates regulation for situations where court rules do not address taxation, potentially creating two separate procedures for cost assessment.
• Borrowing creates a charge on the Fund. If the Board borrows from the Treasurer to meet payments (s 4(6)-(7)), the advance is a charge on the Fund until repaid, which may affect the Fund’s long‑run balance and future entitlements.
• Ministerial nominations and appointment timelines. The Law Society and the Legal Practice Board nominate Board members (s 8(2)(b)-(c)), but if they fail to nominate within 30 days the Minister may appoint an otherwise eligible person to represent their interests (s 8(3)). That timeline can produce a Governor/Minister appointment rather than a professional body nominee, with governance and stakeholder implications.
• Review obligation tied to amendment timetable. Section 18 requires the Minister to review the Act’s operation and the levy’s effect after the 2nd anniversary of the day on which s 6 of the Suitors’ Fund Amendment Act 2019 comes into operation, and to table a report in Parliament not later than 12 months after that anniversary. Practitioners should note the statutory review requirement as a potential trigger for reforms or regulatory changes to the levy and caps.

These operational details can produce unintended outcomes if not checked: small statutory caps, documentary and taxation processes, non‑appealability, and eligibility exclusions are particular points that frequently give rise to disputes or client dissatisfaction.

This section sets out practical, source‑grounded steps for practitioners, departments and Board officers to comply with the Act’s requirements. Where the Act delegates detail to regulations, check the relevant regulations and current prescribed amounts.

For litigants and solicitors:

• Pay the levy when it is required. The levy is payable upon issue or commencement of specified processes in the listed courts (s 5(1)). Confirm the prescribed levy amount and whether differing amounts apply to the specific process or class by consulting the regulations (s 5(3)). Keep receipts and file evidence of payment with court records.
• Apply for the appropriate court certificate. Where relief from the Fund depends on a certificate, apply to the correct court: indemnity certificates for successful appeals on a question of law to the Supreme Court or District Court as appropriate (s 10); costs certificates following quashing of conviction without a new trial to the Supreme Court (s 12A). Prepare applications promptly because indemnity certificates may be inoperative during time limits for further appeals (s 12(2)).
• Ensure costs are taxed or agreed. The Act generally requires costs to be “taxed or agreed upon by the Board and the respondent or the respondent’s solicitor” (s 11(1)(b)). Where the Board is to assess or agree costs, arrange taxation or reach an agreement and obtain the certificate of taxation when applicable (s 11(1)(c), s 12A(4)). Where court rules do not provide, the regulations may prescribe the procedure for taxation (s 17(b)).
• Produce necessary documentation to the Board. When applying for Board direction, supply the court certificate, certificate(s) of taxation or agreement, and any other supporting documents that show costs were ordered and actually paid, or taxed and unpaid where the respondent is not traceable (s 11(1)-(2), s 12A(4)). If a party seeks payment on behalf of a respondent because the respondent cannot pay or cannot be found, the Board expects proof and a certificate of taxation where relevant (s 11(2)(c)).
• Be cautious with undertakings. If the respondent is asked to lodge an undertaking not to appeal as a precondition to a certificate becoming operative (s 12(2)(b)), ensure clients understand the repayment obligation that attaches if the undertaking is breached and the Board demands repayment (s 12(4)).
• Check eligibility exclusions and caps. Before relying on the Fund, confirm whether the Crown or the party is a company or foreign company with paid‑up capital of or equivalent to $200,000 or more (s 13(3), s 14(2), s 15(3)). For related bodies corporate, apply the Corporations Act 2001 definitions to determine if s 15A excludes entitlement. Also verify current prescribed monetary caps (e.g. $1,000 or $5,000) as these caps can be changed by regulation (ss 11(3)(b), 12A(5), 14A(2), 14B(4), 15(2)(b)).
• For persons under disability and infants. If you represent an infant or person under a disability, seek the court’s order approving that costs be charged to the Suitors’ Fund where appropriate: a guardian ad litem’s costs can be charged (s 14A), and an indemnity certificate may be granted where the court refuses to approve a proposed settlement and the award awarded is not more than the offered amount (s 14B(2)-(3)). Ensure the court specifies amounts to be taxed or otherwise fixed (s 14A(1), s 14B(3)).
• Lodge applications within procedural windows. Indemnity certificates may be inoperative during the time limited for appealing against the decision (s 12(2)(a)) and during the pendency of further appeals (s 12(2)(c)), so timing applications matters.

For the Department and Treasurer:

• Produce quarterly statements. The Department’s chief executive officer must prepare and send quarterly statements specifying the total number of processes upon which the levy is payable to the Treasurer for the preceding three months (s 6(1)). Maintain accurate process records and reconciliations supporting the amounts to be appropriated to the Fund.
• Coordinate appropriation and investment. On receipt of the Department’s statement, the Treasurer must cause to be charged to the Consolidated Account and credited to the Fund an amount equal to the total levy payable in respect of the processes specified (s 6(2)). Where surplus Fund moneys are available, the Treasurer may temporarily invest them under the Trustees Act standard and credit interest to the Fund (s 4(8)). Track any advances to the Fund and the statutory charge on the Fund while an advance remains unpaid (s 4(6)-(7)).
• Ensure audit compliance. Maintain Fund accounts compatible with the Financial Management Act and Auditor General Act requirements; the Fund is audited by the Auditor General (s 4A, s 4(9)). Provide required reports and records to support audit trails.

For the Board and its officers:

• Authorise payments by written direction only. No payment is lawful unless made pursuant to a written direction of the Board (s 7(1)). Ensure minutes and decision records document the Board’s satisfaction that payments are authorised by the Act and that claim procedures have been complied with (s 7(2)).
• Manage taxation and agreement processes. Undertake taxation of costs or reach agreements with parties for costs assessments where required by the Act (s 11(1)(b), s 12A(4)(a)(i)). Where court rules do not address the taxation issue, rely on regulations under s 17(b) or the Board’s procedural rules to resolve disputes over bills of costs.
• Maintain financial controls and borrow responsibly. If the Board certifies insufficiency it may borrow from the Treasurer (s 4(6)), but record the borrowing and plan for repayment because advances are a charge on the Fund (s 4(7)). Keep Fund management aligned with the Financial Management Act reporting and the Auditor General’s requirements (s 4A, s 4(9)).
• Implement regulatory instruments. Work with the Minister to identify and propose regulations to prescribe levy amounts, caps and procedural matters permitted under s 17. The Board should ensure internal procedures for evidence, taxation and agreements reflect the regulations.

General compliance tips:

• Always check the current regulations for prescribed levy amounts and any adjustments to caps described in the Act as “such other amount as may from time to time be prescribed” (e.g. ss 11(3)(b), 12A(5), 14A(2), 14B(4), 15(2)(b)).
• Confirm corporate status by reference to the Corporations Act 2001 when assessing whether a party is excluded due to paid‑up capital thresholds (s 3, s 15A).
• File and retain documentary proof of levy payments, court certificates, taxation certificates and agreements, and ensure solicitors’ bills are prepared in a form that supports taxation where necessary (s 17(c) anticipates regulations regarding preparation and service of bills of costs).
• Be mindful of the non‑appealability of certificate decisions (s 13(1)) and plan procedural steps to obtain or defend certificates at first instance.
• Track the Ministerial review timetable under s 18, which may prompt changes to levy levels or regulations; practitioners should monitor any report tabled under s 18 and subsequent legislative or regulatory reforms.

Following these steps aligns operational practice with the statutory requirements set out in the Act and its regulatory delegations.